Madhya Pradesh High Court
Suraj Saket vs The State Of M.P on 7 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 7 th OF APRIL, 2025
CRIMINAL APPEAL No. 4096 of 2021
SURAJ SAKET AND OTHERS
Versus
THE STATE OF M.P AND OTHERS
Appearance:
Shri Ankit Saxena - Advocate for the appellants.
Shri Manas Mani Verma - Government Advocate for respondent no. 1/State.
Shri Sanjay Kumar Kushwaha - Advocate for respondent no. 2.
ORDER
Per: Justice Vivek Agarwal
This criminal appeal is filed by the appellants being aggrieved of the
judgment dated 23/06/2021 passed by the learned Special Judge under the
POCSO Act, Singrauli in Special Case No. 62/2019 convicting appellant no.
1 under Section 376 (3) of I.P.C. with twenty years R.I. and a fine of Rs.
2,000/- with default stipulation of two months R.I. Similarly, he has also
been convicted under Section 376 (2) (n) of I.P.C. with life imprisonment
and a fine of Rs. 2,000/- with default stipulation of two months R.I.
2. Appellant no. 2 has been convicted under Section 312 of I.P.C. with R.I.
for two years and a fine of Rs. 1000/- with default stipulation of one month
R.I. so also under Section 315 of I.P.C. with R.I. for three years and a fine of
Rs. 1000/- with default stipulation of one month R.I.
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3. Shri Ankit Saxena, learned counsel for the appellants submits that the
appellant is innocent. He is now married to the victim. The conviction
under the POCSO Act is not warranted because the prosecution has failed to
prove the aspect of prosecutrix being minor.
4. It is submitted that neither there is any ossification test report nor any
cogent evidence to substantiate the age of the victim. It is further submitted
that the only document available on record is the scholar register Ex. P-11
(c) in which date of birth of the prosecutrix is mentioned as 11/02/2005.
PW-7 Shri Laxman Das Gupta Headmaster of Government Naveen Prathmik
Shala Koyalkhunth, Singrauli has admitted that mother of the prosecutrix had
visited the school for her admission and date of birth of the prosecutrix is as
per the narration of mother of the prosecutrix. In para 15 of his cross-
examination, this witness has admitted that no documentary evidence was
produced at the time of admission in support of the date of birth. He has
further admitted that the date of birth of the victim was given by her mother
orally and, therefore, there is no documentary evidence to show that date of
birth of the prosecutrix is based on some documentary evidence.
5. This witness has also admitted that name of the prosecutrix is mentioned
at Serial No. 855 and, thereafter, in para 18, he has admitted that students
who take admission on a prior date, their names are mentioned above the
person who takes admission subsequently but after having said this, admits
that name of the student at Serial No. 854 reflects that he had taken
admission on 17/09/2011 whereas the prosecutrix whose name is mentioned
at Serial No. 855 had taken admission on 22/07/2011. Thus, it is admitted
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that there are discrepancies in the scholar register. It is also admitted that
various entries made in the scholar register at Serial No. 853 from F to F, D
to D, E to E and G to G were recorded by him on the same date i.e.
25/06/2013. This admission leads to a conclusion that the admission register
is a manipulated document and, therefore, that cannot be taken to be the
proof of date of birth of the prosecutrix.
6. It is further submitted that father of the prosecutrix PW-3 has admitted
that he does not know the date of birth of the prosecutrix. In para 10, he has
admitted that he does not remember the date of birth of the prosecutrix nor
he had gone to any school to get her admitted. At this stage, Shri Kushwaha,
learned counsel for the prosecutrix submits that she was admitted by her
mother and the mother is no more. PW-3 in para 15 also admitted that even
he does not remember his own date of birth. In para 17, he admits that
appellant Sumitra had not informed him of giving any pill to the victim.
7. PW-4 Dr. Umesh Kumar Singh admitted that victim had informed him
that four to five days prior to giving birth to a dead child on 15/09/2019, she
had consumed medicine for abortion. However, she has not taken name of
the appellant no. 2 who either administered that medicine or recommended
that medicine for abortion.
8. In view of such facts, it is submitted that the appellants are innocent.
They have been falsely implicated mainly on the ground of surmises and
conjectures.
9. Shri Sanjay Kumar Kushwaha, learned counsel for respondent no. 2
supports the arguments advanced by Shri Ankit Saxena, learned counsel for
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the appellants and submits that the appellant has already performed the
marriage with the victim and they are staying together. If a proper view with
all the facts and law is not taken into consideration, then there will be
travesty of justice.
10. Shri Manas Mani Verma, learned Government Advocate in his turn
supports the impugned judgment and submits that there is no need for any
indulgence.
11. After hearing learned counsel for the parties and going through the
record, it is evident that firstly there is no evidence on record that appellant
no. 2 had helped the victim in causing miscarriage of child and had helped
her in administering any medicine for abortion. In the absence of any such
evidence on record, PW-4 Doctor has admitted that prosecutrix on her own
had consumed medicine for abortion.
12. The prosecutrix admitted that three to four months prior to the incident,
her parents had a dispute with maternal uncle of Suraj namely Chandulal
Saket and Suraj. The prosecutrix admitted in her cross-examination that she
was taken to the hospital in the Auto by Sumitra Saket accompanied by her
sister.
13. PW-2 Chutki Devi denied the suggestion that Sumitra had given two to
three tablets for abortion. This witness was not reexamined by the ADPO.
14. PW-3 Bhagwandas also admitted that he was never informed that
Sumitra had administered tablets for abortion.
15. When these facts are taken into consideration, then it is evident that
there is no evidence to the effect that Sumitra had administered any tablets
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for abortion.
16. Thus, conviction of Sumitra under Section 312/315 of I.P.C. cannot be
sustained in the eyes of law.
17. As far as case of appellant Suraj Saket is concerned, the prosecutrix
PW-1 has admitted that appellant is known to her. She admits that her date
of birth is not known to her. She admits that she had taken admission in two
schools and both the schools are functional even today. She admitted that
birth certificate was prepared. She admitted that she has no knowledge about
her date of birth. She admitted that there was a dispute between her parents
and maternal uncle of Suraj namely Chandelal Saket and Suraj. She
admitted that Chandelal Saket had beaten her mother under the influence of
alcohol. She further admitted that she had failed in Class-VI and, thereafter,
dropped out of school. She admitted that she studied in two different schools
in primary classes.
18. PW-3 admitted that the prosecutrix is his daughter. Date of birth of the
prosecutrix is not known to him. He received a phone call from maternal
uncle of Suraj informing him about the accident of the prosecutrix. When he
reached hospital at Baidhan, then he discovered that the prosecutrix had
given birth to a child. In para 7 of the cross-examination, when a suggestion
was given to this victim that date of birth of the prosecutrix is February
2000, he admitted that he does not have any knowledge about the date of
birth of the prosecutrix. In para 10, he admits that he does not remember the
date of birth of the prosecutrix and had not gone to any school to get her
admitted. He admitted that at Baidhan hospital, accused Sumitra had not
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informed him that the victim was administered any pills for abortion.
19. PW-4 Dr. Umesh Kumar Singh admitted that the prosecutrix had
informed him that four to five days prior to the admission, she had consumed
abortion pills.
20. PW-5 Sheela Saket stated that she does not know anything about the
incident. She admitted that seven to eight months prior to the incident,
somebody had violated the privacy of the prosecutrix at village Khadiya.
21. PW-7 Laxman Das Gupta, Headmaster of the school admitted that the
prosecutrix was admitted by her mother and date of birth of the prosecutrix
was recorded as per the narration of her mother in Ex. P-11. He admitted in
para 15 that no document in regard to the date of birth of the prosecutrix was
given.
22. Thus, in the light of this admission and also the fact admitted by this
witness in para 17 that there are serious lapses in the chronology of entry in
the register, this register Ex. P-11 becomes a doubtful document.
23. Thus, once the age of the prosecutrix becomes doubtful, then in the
case of Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796 wherein in
para-15, it is mentioned as under :-
The High Court held that in view of the entries contained in the
Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and
Kailash Chandra Taparia PW 5, the date of birth of Hukmichand
and Suraj Prakash Joshi was proved and on that assumption it held
that the two candidates had attained more than 25 years of age on
the date of their nomination. In our opinion the High Court
committed serious error. Section 35 of the Indian Evidence Act
lays down that entry in any public, official book, register, record
stating a fact in issue or relevant fact and made by a public servant
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in the discharge of his official duty specially enjoined by the law
of the country is itself the relevant fact. To render a document
admissible under Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a public or other
official book, register or record, secondly, it must be an entry
stating a fact in issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined by law. An
entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but the entry
regarding to the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of
the material on which the age was recorded. In Raja Janaki Nath
Roy & Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941
CAL. 41 a Division Bench of the Calcutta High Court discarded
the entry in school register about the age of a party to the suit on
the ground that there was no evidence to show on what material
the entry in the register about the age of the plaintiff was
made. The principle so laid down has been accepted by almost all
the High Courts in the country, see Jagan Nath v. Moti Ram Moti
Ram & Ors., [1951] Punjab 377; Sakhi Ram & Ors. v. Presiding
Officer, Labour Court, North Bihar, Muzzafarpur & Ors., [1966]
Patna 459; Ghanchi Vora Samsuddish Isabhai v. State of Gujarat,
[1970] Gujarat 178 and Radha Kishan Tickoo & Anr. v. Bhushan
Lal Tickoo & Anr., [1971] J & K 62. In addition to these
decisions the High Courts of Allahabed, Bombay, Madras have
considered the question of probative value of an entry regarding
the date of birth made in the scholar's register or in school
certificate in election cases. The Courts have consistently held that
the date of birth mentioned in the scholar;s register or secondary
school certificate has no probative value unless either the parents
are examined or the person on whose information the entry may
have been made, is examined, see Jagdamba prasad v. Sri
Jagannath Prasad & Ors., 42 ELR 465; K. Paramalali v. L.M.
Alangam & Anr., 31 ELR 401 and Krishna Rao Maharu Patil v.
Onkar Narayan Wagh, 14 ELR 386 (Bom).
24. Since, the prosecution has failed to prove the age of the prosecutrix,
the conviction of the appellants is not sustained in the eyes of
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law. Accordingly, the impugned judgment of conviction of the appellant
dated 23/06/2021 is set aside. Appellant, if not, required in any other case be
released forthwith. Case property be disposed of in terms of the directions
of the trial court.
25. In above terms, the appeal is allowed and disposed of.
26. Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
