Dilip Kanoje vs The State Of Madhya Pradesh
2024 Latest Caselaw 21271 MP

Madhya Pradesh High Court

Dilip Kanoje vs The State Of Madhya Pradesh on 6 August, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal, Avanindra Kumar Singh

                                     1                                CRA-305-2024
   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. 305 of 2024
                        DILIP KANOJE
                            Versus
          THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
  Shri Rajneesh Pandey - Advocate for the appellant Dilip Kanoje.
  Smt. Sandhya Devi Rajak - Advocate for the Objector.

  Shri Arvind Singh - Government Advocate for the respondent/State.

                                      ORDER

Per: Justice Vivek Agarwal

Heard this appeal under Section 374 (2) of the Code of Criminal Procedure 1973 on behalf of the appellant Dilip Kanoje, with the consent of the parties.

2. This appeal is filed by the appellant being aggrieved of the Judgment passed in SCATR No.144/2020, dated 23.11.2023, by the Special Judge, Exclusive Special Court (POCSO) & S.C./S.T.(Prevention of Atrocities) Act, 1989, Betul, District Betul, whereby the appellant stands convicted for offences punishable under Sections 363/3(2)(va) of S.C./S.T. (Prevention of Atrocities) Act, Sections 366, 376(2)(n) of IPC including Section 5(L)/5(j)(ii)/6 of POCSO Act, Section 3(2)(v) including Section 3(1)

(b)(i) & (ii) of SC/ST (Prevention of Atrocities) Act, for which he is sentenced to undergo R.I. for three years, five years, twenty years and life imprisonment respectively, with fine of Rs.1,000/- Rs.,1,000/-, Rs.5,000/-, 2 CRA-305-2024 Rs.2,000/- respectively along with default stipulation on each count, and in default of payment of fine to undergo further sentence of S.I. for three months, six months, one year and one year respectively. All the sentences to run concurrently.

3. It is submitted that appellant Dilip Kanoje is innocent, he has been falsely implicated. The prosecutrix is not a minor. On the date of incident, she had already attained the age of majority, threfore, the provisions of POCSO Act will not be applicable.

4 . The prosecution has produced Certificate - Ex.- P/2 issued by the Head Master, Middle School, Jhirnadhhana showing her date of birth as 21.6.2002. In the Register - Ex. P/3C, it is mentioned that prosecutrix took admission on 17.6.2013 in the sixth class. Thus, first school entry register to prove the date of birth has not been produced. Prosecution has also failed to produce birth certificate issued by a local body or Registrar of birth and death.

5 . It is also pointed out that in the MLC - Ex.P/6, Doctor - P.W.-4 opined that there was no injury mark present on external or internal examination. She said that no definite opinion can be given for sexual intercourse. It is further submitted that since prosecutrix had gone with the appellant on her own volition, and she had indulged in a relationship on her own, as she has admitted in Para 3 that she had entered into a marriage alliance with the appellant and the child, which is born from the wedlock, is about two years of age. She has also admitted that she had become pregnant after her marriage. When all these aspects are taken into consideration along with the cross-examination, the prosecutrix has admitted that she has no document in regard to her date of birth.

6. P.W.-2 - mother of the prosecutrix has admitted that her marriage took place 25 years prior to her date of deposition. Incident is reported to be that of 2019, therefore, at the time of incident, marriage of P.W.-2 was 22 years old. She deposed that she does not know date of birth of her children. She has admitted that after one year of her marriage, her eldest son was born, and after a year thereof, prosecutrix was born.

7. There is no 10 th Class Mark-sheet/Certificate available on record.

3 CRA-305-2024

8. Thus, it is submitted that the appellant is innocent. 9 . Shri Arvind Singh, learned Government Advocate supports the Judgment of conviction and submits that since the prosecutrix was minor at the time of the incident, therefore, the prosecutrix was the minor and there cannot be any consent of minor, therefore, the impugned judgment be maintained and appeal be dismissed.

10. After hearing learned counsel for parties and on going through the evidence, which has come on record, it has come on record that the prosecution failed to provide any evidence of first school entry register to show the actual date of birth of the prosecutrix. They have also failed to provide any Certificate issued by the local Authority/competent Authority/Registrar (Birth and Death) to point out the date of birth of the prosecutrix.

1 1 . Doctor - P.W.-4 - Dr. (Smt.) Roopal Shrivastava has admitted that no definite opinion could be given about immediate intercourse with the prosecutrix.

P.W.-2 is the mother of the prosecutrix. She has admitted that name of the prosecutrix was entered in school register by her father. She has given evidence to the effect that she was married 25 years prior to the date of deposition and first child was born after a year and second child i.e. prosecutrix one year thereafter.

1 2 . P.W.-5 is the father of the prosecutrix. He has also admitted in Para 4 that prosecutrix had informed him that she had gone on her own volition with the appellant. In Para 9 of the cross-examination, this witness has admitted that date of birth of the prosecutrix in the school was recorded on the basis of guess work and there is no documentary evidence to show that date of birth recorded is the correct date of birth.

13. It is true that prosecutrix has also admitted that she had gone with the appellant on her own volition and the child born out of wedlock is that of the appellant.

14. 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 4 CRA-305-2024 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.

15. 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.

16. 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 appellant has been able to carve out a case within the meaning of words 'unless proved otherwise'.

17. 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.

18. 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;

5 CRA-305-2024

(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:

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 Panchayat on record.

19. The Head Master, P.W.-1 Smt. Durga Sahu, has admitted that as per Ex.-P/3C, date of birth of the prosecutrix is mentioned as 21.6.2002. She had taken admission in his school on 17.6.2013 in sixth class. In Cross- examination, this witness has admitted that admission in sixth class was given to the prosecutrix on the basis of T.C. of fifth class. This witness admitted that T.C. of the previous school is not on record. She admitted that along with the T.C., no Birth Certificate was given. She further admitted that on what basis date of birth of the prosecutrix was mentioned in Class 1, is not known to her. Thus, when this evidence of P.W.1 is read with the evidence of P.W. 2 and P.W.5, then it is evident that the appellant has been able to carve out a case within the meaning of clause 'unless proved otherwise' as held by Supreme Court in the case of Preetam (Supra), and therefore, once a case is carved out in terms of the exception to the rule of authenticity of school registers etc., read with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, then it cannot be said that prosecution proved the age of the prosecutrix to be below 18 years on the date of incident beyond reasonable doubt, and therefore, the failure of the prosecution cannot be a ground to penalize the appellant.

20. Thus, there being no material to show that prosecutrix was a minor on the date of the incident, the fact which is admitted by P.W.-1, P.W.-2 - mother of the prosecutrix, P.W.-3 prosecutrix herself and P.W.-5 - father of the prosecutrix , then conviction of the appellant under Sections 363/3(2)(va) of S.C./S.T. (Prevention of Atrocities) Act, Sections 366, 376(2)(n) of IPC including Section 5(L)/5(j)(ii)/6 of POCSO Act, Section 3(2)(v) including Section 3(1)(b)(i) & (ii) of SC/ST (Prevention of 6 CRA-305-2024 Atrocities) Act cannot be maintained.

21. The impugned Judgment of conviction is set aside. The appeal is allowed. If appellant is not required in any other case, then he be released from prison.

                       (VIVEK AGARWAL)        (AVANINDRA KUMAR SINGH)
                            JUDGE                      JUDGE


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NIDHI DAVE
2024.08.12 14:54:33 +05'30'