Madhya Pradesh High Court
Upendra @ Bhelu Baiga vs The State Of Madhya Pradesh on 6 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-3154-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 6 th OF AUGUST, 2024
CRIMINAL APPEAL No. 3154 of 2024
UPENDRA @ BHELU BAIGA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sourabh Singh Thakur - Advocate for the appellant.
Shri Arvind Singh - Government Advocate for the respondent/State.
Shri Sumit Kanojiya - Advocate for the objector.
JUDGMENT
Per: Justice Vivek Agarwal
This Criminal Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, is filed by the appellant Upendra @ Bhelu Baiga S/o
Motilal Baiga being aggrieved of the judgment dated 26.02.2024 passed by
the learned Special Judge POCSO, Anuppur, District Anuppur in Special
Case No. 18 of 2022, whereby, appellant has been convicted and sentenced
as under:-
Conviction Sentence
Section Act Imprisonment Fine (if deposited Imprisonment in lieu
details) of fine)
5(L)/6 of POCSO Act in R.I. for 20 years and fine Fine amount not R.I. for 05 months
substitute of Section 376(2) of Rs.5000/- deposited.
of IPC
3/4 of POCSO Act in R.I. for 20 years and fine Fine amount not R.I. for 05 months
2 CRA-3154-2024
substitute of Section 376 of of Rs.5000/- deposited.
IPC
363 of IPC R.I. for 05 years and fine Fine amount not R.I. for 01 month.
of Rs.1000/- deposited
366 of IPC R.I. for 05 years and fine Fine amount not R.I. for 01 month.
of Rs.1000/- deposited
366-A of IPC R.I. for 07 years and fine Fine amount not R.I. for 05 months.
of Rs.5000/- deposited
368 of IPC R.I. for 05 years and fine Fine amount not R.I. for 01 months.
of Rs.1000/- deposited
(All the sentences to run concurrently)
The case of prosecution in short is that on 10.12.2021, complainant
and his wife had left the prosecutrix and their other children at home and had
gone for work and when they returned back in the evening, they found that
the prosecutrix who had gone to the school had not come back. On local
enquiry from the friends and relatives when no information was received,
then missing person report was lodged at Police Station Chachai Chowki
Devhara, when the personnel at Chowki Devhara recorded the missing
person report at Zero and forwarded it to the Police Station Chachai. Missing
person report is Ex.P-33, on the basis of which FIR (Ex.P-34) was lodged.
After 1-1½ months of the report, prosecutrix was recovered vide Ex.P-7.
After, obtaining consent of the prosecutrix and her parents, she was subjected
to medical examination. On the identification of the prosecutrix spot map and
other documents were prepared.
2. Vide Ex.P-30 appellant Upendra @ Bhelu Baiga was sent for
medical examination. The motor-cycle which was used, was recovered. Age
related documents of the prosecutrix were collected vide Ex.P-19 and P-20,
were marked as the age proof of the prosecutrix.
3. Learned counsel for the appellant submitted that the appellant is
innocent. The conviction and sentence is against the evidence and facts
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available on record. Learned court below committed grave error in believing
the hearsay story of the so called witnesses to convict the appellant.
Prosecutrix (PW-1), mother of prosecutrix (PW-2), uncle of prosecutrix
(PW-3), sister of prosecutrix (PW-4), father of prosecutrix (PW-5), aunt of
the prosecutrix (PW-7) and Santosh Kumar (PW-8) have all been declared
hostile and did not support the prosecution story. Yet conviction has been
recorded which is arbitrary and illegal.
4. It is also submitted that, prosecutrix (PW-1) clearly stated that her
age is 20 years and therefore, the entire case in regard to the age of the
prosecutrix became suspect. Mukesh Singh Chandel (PW-6) admitted that
while recording date of birth of the prosecutrix no birth certificate was
obtained from the family of the prosecutrix and the date of birth was
recorded on their oral statement. Thus, the assumption of document being
forged and manipulated should have been a circumstance to be taken in
favour of appellant.
5. Dr. Soshan Khes (PW-9) stated that victim was well conscious,
normal and her hymen was old torned. No injury was found on internal or
external part of the body. Thus, it is submitted that a case of consensual
relationship has been converted to that of exploitation of the prosecutrix
which exposes the case of the prosecution and that calls for setting aside of
the impugned judgment and conviction.
6. Sanjay Khalko (PW-11) admitted that while drawing the sample of
the accused, it was not sealed by him and no packet of sample was made
before him and Doctor too had not examined the accused at that particular
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time, therefore entire case of prosecution suffers from several lacunas and
serious irregularities.
7. It is also submitted that S.I. Sonam Soni (PW-10) admitted in her
cross-examination that no documents were seized by her to prove the
correctness of the date of birth of the prosecutrix and that being another
circumstance against the appellant, the finding of conviction and sentence
needs to be set-aside.
8. Law as laid down by Supreme Court in State of M.P. Vs.
Preetam [(2018) 17 Supreme Court Cases 658], is crystal clear. It is held
that absence of external injury on the person of the prosecutrix cannot lead
to conclusion of consent of prosecutrix in occurrence. In Para 12, it is noted
that when prosecutrix is found to be aged 12 years at the time of offence and
hence her consent or otherwise was of no relevance for bringing the offence
out of the meaning of Section 375 IPC. It is also held that the High Court
erred in ignoring the material and evidence produced and reversed the
conviction of accused.
9. It is also held by the Supreme Court that an opinion of Doctor
cannot be taken as final on the age of prosecutrix. School registers are
authentic documents maintained in official course and are entitled to
credence of much weight unless proved otherwise.
10. Thus the words used by Hon'ble the Supreme Court are that the
school registers are the authentic documents being maintained in the official
course, and are entitled to credence of much weight, unless proved
otherwise. Therefore, this Court is required to examine as to whether the
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appellant has been able to carve out a case within the meaning of words
'unless proved otherwise'.
11. In the case of Preetam (supra), Head-Master/Head Teacher of
Primary School was examined and in his statement, he stated that date of
birth of prosecutix was 16.5.1981 i.e. she was 12 years of age as on the date
of the occurrence i.e. 6.3.1993. The trial court did not act upon the evidence
of the Head Master/ Head Teacher on the ground, that the person, who
admitted the prosecutrix in the school, was not examined. In this context it is
held that the school registers are authentic documents maintained in official
course and are entitled to credence of much weight unless proved otherwise.
12. Section 94(2) of Juvenile Justice (Care and Protection of
Children) Act, 2015, provides that to undertake the process of age
determination, evidence will be sought by obtaining :-
(i) the date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the Board:
13. In the present case, there is no matriculation or equivalent
certificate from the concerned Examination Board on record. There is also
no Birth Certificate given by a Corporation or a Municipal Authority or a
6 CRA-3154-2024
Panchayat on record.
14. It is evident from the evidence which has come on record that the
date of birth of the prosecutrix is mentioned as 18.02.2005, in the school
entry register Ex.P/21-C. Thus, evidently she was minor on the date of the
incident. This date of birth is proved by Mukesh Singh Chandel (PW/6),
Incharge Headmaster of the government Primary School, Devhara, Anuppur.
15. In cross-examination, he has admitted that Ex.P/21, does not reveal
as to on what basis date of birth of the prosecutrix were recored. That
document also does not reveal that whether the parents of the prosecutrix
was educated or not. The community to which the parents of the prosecutrix
belong, they are usually less literate. He further deposed that the date of
birth which is mentioned may be on the basis of some guess work and which
can be incorrect also. He also admitted that normally children are admitted
from the said community when they attain age of seven years or more. He
has also admitted that no birth certificate was produced by the authorities.
16. Thus, it is pointed out that when prosecutrix took admission in the
school vide Ex.P/21-C, in the year 2010, her age was seven yeas. That
means her date of bith is of 2003 and incident actually took place on
10.12.2021, and therefore, prosecutrix was major at the time of the incident.
17. Statements of prosecutrix (PW/1), reveal that in cross-examination
she has accepted that her age is about 20 years. Her statements were recored
on 23.09.2022. She has not supported the prosecution case. In her
statements, she admitted that she had not given any permission to the doctor
to examine her and in cross-examination deposed that police authorities had
7 CRA-3154-2024
obtained her signatures on blank papers.
18. Mother of the prosecutrix PW/2 has admitted in her cross-
examination that when prosecutrix was four years of age, she was admitted
in Anganwadi and then she studied at Anganwadi for 3-4 years. Then she
was admitted in Government school. She admitted that she has no
knowledge about the date of birth of the proecutrix. Similarly, father of the
prosecutrix PW/5, deposed that age of the prosecutrix was 24 years. Thus,
reasonable doubt has been created at the age of the prosecutrix. She is
already married to the appellant.
19. When date of birth of the prosecutrix is under doubt and there is a
reasonable doubt to discard the school entry register on the basis of the
teacher from school and the testimony of the parents, then prosecutrix cannot
be considered to be a child in terms of Section 2(1)(d) of the POCSO Act,
2012, and once she cannot be considered as a child, then there cannot be any
conviction under Section 5(2)(6) or 3/4 of POCSO Act. It will become a
case of consent where prosecutrix had admittedly gone with the appellant.
Thus, conviction being not founded on sound legal principles, is hereby set
aside.
20. In view of aforesaid, we allow the appeal. The appellant must now
be released forthwith.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
A.Praj.
8 CRA-3154-2024
