Madhya Pradesh High Court
Surendra Uikey vs The State Of Madhya Pradesh on 8 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 8 th OF APRIL, 2025
CRIMINAL APPEAL No. 7587 of 2022
SURENDRA UIKEY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ravindra Kumar Bisen - Advocate for the appellant.
Shri Ved Prakash Tiwari - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
This criminal appeal is filed under Section 374(2) of the Code of Criminal
Procedure being aggrieved of the judgment dated 14/07/2022 passed by the
learned Special Judge (POCSO Act) Balaghat in S.C. No. 31/2019
convicting appellant Surendra Uikey under Section 363 of I.P.C. and
sentenced to undergo five years R.I. with fine of Rs. 10,000/- with default
stipulation of six months R.I., Section 366 (ka) of I.P.C. and sentenced to
undergo five years R.I. with fine of Rs. 10,000/- with default stipulation of
six months R.I., Section 376 (2) (n) of I.P.C. and sentenced to undergo R.I.
for life with fine of Rs. 10,000/- with default stipulation of six months R.I.
and Section 5L/6 of POCSO Act is in regard to for offence under Section
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376(2)(n) of I.P.C.
2. Learned counsel for the appellant submits that the appellant is
innocent. It is submitted that as per the prosecution story on 5/01/2019 at
about 9:30 A.M., the prosecutrix left her home to attend her school but when
she did not return back till evening, then she was searched in the places of
relatives but when she could not be traced, then Crime No.1/2019 was
registered at Police Station Changotola against unknown persons under
Section 363 of I.P.C and investigation was started. On 27/01/2019, the
prosecutrix returned back and on interrogation, she stated that the appellant
had taken her under the cause of performing marriage and she was taken to
Kavardha (C.G.). At Kavardha, they hired the room. There, the appellant
continuously violated her privacy. Thereafter, the appellant had gone to
work at the hotel. Then the prosecutrix ran away and came to her house on
27/01/2019 and narrated her woes to her father. Thereafter, she was
medically examined and the appellant was arrested. The investigation was
completed. The chargesheet was filed. The charges were levied and the
appellant abjured his guilt. The trial was conducted and the appellant has
been punished as mentioned above.
3. It is submitted that date of birth of the prosecutrix is wrongly
mentioned. She was major at the time of the incident. It is a case of consent.
4. The prosecutrix stayed with the appellant from 5/01/2019 to 27/01/2019
and during this period, she did not inform about the incident to anybody
which reveals that it is a case of consent.
5. PW-10 Dr. Rashmi Baghmare had conducted medical examination on
28/10/2020 and she found that there was no injury on the vital parts of the
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prosecutrix and stated that no definite opinion can be given about rape. It is
thus submitted that the appellant has been implicated for different reasons
than the reason of abduction/kidnapping or violation of privacy of the
prosecutrix. He is a youth of 21 years of age and, therefore, his conviction
be set aside.
6. Learned Public Prosecutor Shri Ved Prakash Tiwari supports the
impugned judgment and submits that record of the case speaks against the
appellant and, therefore, no indulgence be shown in the matter.
7. It is pointed out that PW-6 Dr. D. K. Raut Radiologist on ossification
test found the age of the prosecutrix to be 17 years and, therefore, when this
fact is taken into consideration, then it is apparent that the prosecutrix was
minor.
8. After hearing learned counsel for the parties and going through the
record, in her 164 statement, the prosecutrix has stated that the appellant is
known to her. He belongs to her village. He was working at Kavardha in a
hotel. Since, they were known to each other, she had met him at bus stand
which is opposite to her school where in the name of marriage, she was taken
to Kavardha. There, the appellant established physical relationship with her
and he had behaved properly for some time but later on, his behaviour caused
suspicion. Therefore, she ran away and came back to her house.
9. In this case, in the F.I.R. itself, it is mentioned that the prosecutrix is
studying in XIth Class. However, it is interesting and important to note that
Investigation Officer of the case did not made any attempt to seize Xth Class
marksheet which would have been a cogent piece of evidence as regards to
age of the victim in terms of Section 94 of Juvenile Justice Act. This act of
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the Investigation Officer reflects poorly on the quality of the investigation.
10. As far as school entry register Ex. 9(c) is concerned, her date of birth is
mentioned as 10/12/2001. This Dakhil Kharij register has been proved by
PW-4 Ganraj Bisen. In the cross-examination, PW-4 Ganraj Bisen admitted
that there is no mention of any document on the basis of which date of birth
of the prosecutrix was recorded in the school records.
11. Father of the prosecutrix PW-3 has admitted that his daughter has
studied at two places. The police had not asked for her birth
certificate. Neither he himself nor his wife got her birth certificate
prepared. He says that he had given intimation to the village Kotwar but he
is no more. He had himself gone to the school for her admission and had
given her date of birth orally. He has further admitted that at the time of the
admission, birth certificate was demanded but he had not given.
12. He has admitted that the prosecutrix had gone in a saree. When she
came back, she was not in a saree nor she brought her school bag with
her. He also admitted that Changotola bus stand always has a good amount
of people. When the prosecutrix had returned back, then she was looking
well and, thereafter, she had taken bath etc. and after changing clothes, she
had gone to the police station. In para 4, he has admitted that he has an elder
son to the prosecutrix who is elder in age by two years. He admitted that he
had never visited Kavardha with police personnel. He also admitted that the
appellant was residing two to three house after his house. He also admitted
that mental health of the prosecutrix is fine. She had returned in a saree.
Admittedly saree is not part of school uniform.
13. PW-2 mother of the prosecutrix too admitted that there is one son elder
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to the prosecutrix who is two years elder to her. The prosecutrix was born at
village Ghunadi. She did not remember the date of birth of her son. She
admitted that she cannot say as to whether the prosecutrix was in love with
the appellant. She has also admitted that she had not gone to the school to
record her name in the school records at the time of her admission. She
admitted that daughter was born in Ghunadi, a fact which is corroborated by
PW-3 and PW-1. Thus, it is evident that when PW-3 father of the
prosecutrix admits that the prosecutrix PW-1 has studied at Ghunadi and
Changotola, then Ex. P-9 (c) being a document from Ghunadi and there is no
document from Changotola creates a doubt about the age of the
prosecutrix. The prosecutrix has admitted that she is in possession of her
birth certificate but its non-production is another circumstance which creates
doubt about her actual date of birth. Non-production of Xth class marksheet
is another circumstance coupled with the fact that in ossification test report,
Dr. D.K. Raut has mentioned the age of the prosecutrix as 17 years but in the
cross-examination, he has admitted that because of weather, environment
etc., there can be difference of two years. Therefore, there is an element of
doubt created as to the age of the prosecutrix.
14. 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
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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
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).
15. Therefore, the prosecution has failed to prove the age of the
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prosecutrix. The concerned lady Doctor PW-10 Dr. Rashmi Baghmare has
categorically mentioned that there were no injury marks on the private body
parts of the prosecutrix. Her sexual characteristics were fully developed as
per her age. She was conscious and well oriented. Thus, once the
prosecution has failed to prove the age of the prosecutrix and also failed to
prove that she was minor at the time of the incident, then taking this fact into
consideration as admitted by the prosecutrix that opposite to the bus stand,
there is a police station and if there was any allurement or threat, then instead
of reporting the matter to the police at the police station situated just opposite
the bus stand from where she was taken and also the fact that she did not
narrate her story to anybody on the way from Changotola to Kavardha,
coupled with the fact that she has admitted that on the date of the accident,
she had parked her bicycle under a Mahua tree and had travelled with the
appellant and in reply to another question that 'शाद का झांसा' means that she
said that the appellant had said that he will keep her properly and will not do
anything against her wish and will always keep her happy, therefore, she had
gone with him.
16. When these facts are taken into consideration, then it is evident that it is
a case of consent between two adults, who are capable of understanding their
good and bad as is admitted by PW-2 and PW-3 and, therefore, in view of
such facts, when margin of two years is taken into consideration as is
admitted by Radiologist Dr. D. K. Raut, admittedly the prosecutrix was a
major and, therefore, benefit of doubt is required to be given in favour of the
appellant.
17. There is another interesting fact that PW-7, paternal uncle, of the
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prosecutrix in para 13 admitted that when on 5/01/2019, he was called to the
house of the prosecutrix, then it was informed that the prosecutrix left her
home along with her clothes, marksheet, Aadhar card etc. which again
corroborates the story of the defence that the prosecutrix left her home on her
own volition and it is a case of neither abduction nor kidnapping and,
therefore, conviction under Section 363, 366 (ka) of I.P.C. is not made out
since the age of the prosecutrix could not be proved, she was not
minor. Therefore, the offence under Section 5L/6 of POCSO Act and 376
(2) (n) of I.P.C. is also not made out.
18. Thus, conviction of the appellant is not sustainable in the eyes of
law. Accordingly, the impugned judgment of conviction of the appellant
dated 14/07/2022 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.
19. In above terms, the appeal is allowed and disposed of.
20. Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
