Madhya Pradesh High Court
State Of M.P. vs Gangaram on 9 April, 2025
Author: Anil Verma
Bench: Anil Verma
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1 CRA-120-2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 9 th OF APRIL, 2025
CRIMINAL APPEAL No. 120 of 2007
STATE OF M.P.
Versus
GANGARAM AND OTHERS
Appearance:
Shri Nirmal Sharma, Public Prosecutor for appellant/State.
None for respondents.
ORDER
The appellant has preferred this appeal under Section 378(3) of Code of
Criminal Procedure (in short "CrPC") for grant of leave to appeal against
judgment of acquittal dated 23.09.2006 passed by First Additional Sessions Judge,
Ashoknagar, District Guna in Sessions Trial No.56/2003, whereby
respondents/accused persons have been acquitted for commission of offence
punishable under Sections 363 and 366/34 of Indian Penal Code (in short "IPC").
2. As per prosecution story, on 20.06.2002 father of the
prosecutrix/complainant Govind Singh along with his family members went to the
village Kakakhedi to attend marriage function. After the said marriage function,
minor prosecutrix went missing from there. He tried to search her everywhere, but
she could not be found. Complainant lodged a missing person report at Police
Station Shadhora District Guna. During enquiry, it has been gathered that the date
of birth of the prosecutrix is 12.03.1986 and respondents/accused persons
abducted her and took her with them at different places. Accordingly, offence has
been registered.
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3. After completion of investigation, charge-sheet has been filed before
Trial Court. The Trial Court has framed charges under Sections 363 and 366/34 of
IPC. Respondents/accused persons abjured their guilt and pleaded their complete
innocence and thereafter prosecution has examined as many as 11 witnesses, while
defence has examined two witnesses. After completion of trial, the Trial Court has
acquitted the respondents/accused from all the charges. Being aggrieved by the
aforesaid, appellant has preferred this criminal appeal for grant of leave to appeal.
4. Learned counsel for the appellant/State contended that the Trial Court has
acquitted the respondents/accused persons without pursuing the evidence brought
on record. From the statements of the prosecutrix and her parents, school record
with the date of birth of the prosecutrix, it was proved that the prosecutrix was
minor, therefore, her consent is not valid and judgment of acquittal of the accused
persons cannot be passed. Prosecutrix herself stated in her statement recorded
under Section 161 of CrPC that rape was committed upon her, therefore, the Trial
Court ought to have framed charges under Section 376 of IPC and trial should be
conducted accordingly. The Trial Court has failed to see that the prosecution has
proved its case beyond all reasonable doubt by the cogent evidence, however,
judgment of acquittal is not in accordance with law, therefore, the instant appeal
may be allowed and respondents/accused persons may be reasonably punished.
5. At the time of final arguments, nobody has appeared on behalf of
respondents.
6. Heard learned counsel for the appellant and perused the entire record.
7. In a case falling under Sections 363 and 366 of IPC, a moot question to
be decided is that "what is the age of the prosecutrix ?". Prosecution in this respect
has examined parents of the prosecutrix. Govind Singh (PW-2) is the father of the
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prosecutrix and Chandra Kala Bai (PW-6) is the mother of the prosecutrix. They
have deposed that at the time of incident, age of daughter/prosecutrix was 14-15
years. Apart from the evidence of these two witnesses, Ramdayal (PW-10), who is
the Teacher of Primary School, village Bamneri, Shadhora, entered into the
witness box and proved admission register (Article - B). During cross-
examination, he fairly admits that as per the admission register, date of birth of the
prosecutrix is 12.03.1986, but at the time of her admission, parents of the
prosecutrix did not furnish any relevant document regarding her date of birth and
her date of birth was written on the basis of assumption, therefore, it is clear that
without having any birth certificate, entry has been done in the school admission
register, therefore, entries in the school register alone could not be relied upon,
specifically when the prosecutioin has failed to lead the evidence as to who has
made entries in the school register and no evidence has been lead by the
prosecution as to on what basis and whose instance date of birth was written in the
school register.
8. In the case of Umesh Chandra Vs. State of Rajasthan [AIR 1982 SC
1057], the Supreme Court has held that entries in the school register are not of
much value unless there is evidence to show that on what material and at whose
instance, it is based. It would be proper to deal with the aforesaid contention in the
light of the relevant statutory provisions.
9. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules,
2007 reads as under:-
"(1) In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be the Committee
referred to in rule 19 of these rules shall determine the age of such
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juvenile or child or a juvenile in conflict with law within a period of
thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the child or as
the case may be the juvenile in conflict with law, prima facie on the
basis of physical appearance or documents, if available, and send him
to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the court or
the Board or, as the case may be, the Committee by seeking evidence
by obtaining--
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat; (b) and only in the
absence of either (i), (ii) or (iii) of clause (a) above, the
medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of the juvenile or
child. In case exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of
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one year. and, while passing orders in such case shall, after
taking into consideration such evidence as may be available,
or the medical opinion, as the case may be, record a finding
in respect of his age and either of the evidence specified in
any of the clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age as regards
such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with
law is found to be below 18 years on the date of offence, on the basis of
any of the conclusive proof specified in sub-rule (3), the Court or the
Board or as the case may be the Committee shall in writing pass an
order stating the age and declaring the status of juvenility or otherwise,
for the purpose of the Act and these rules and a copy of the order shall
be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the Act and
these rules, no further inquiry shall be conducted by the court or the
Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed of cases, where the status of juvenility has not been
determined in accordance with the provisions contained in sub-rule (3)
and the Act, requiring dispensation of the sentence under the Act for
passing appropriate order in the interest of the juvenile in conflict with
law."
[Emphasis Supplied]
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10. Rule 12 of Rules of 2007 prescribes the procedure to be followed for
determination of age. This procedure needs to be followed for determining age in
civil and criminal cases. The age can be determined on the basis of (i) the
matriculation or equivalent certificate, and in the absence whereof (ii) the date of
birth certificate from the school (other than a play school) first attended and in the
absence whereof (iii) the birth certificate issued by a corporation/Municipal
Authority/Panchayat. If no evidence as per (i) (ii) and (iii) are available, the
medical opinion can be sought from a duly constituted Medical Board.
11. In the instant case, indisputably, no evidence as per Rule 12 (3)(a)(i)
and (iii) were produced before the Court below. The statement of PW-10 and the
Admission Register produced by him became the foundation/reason to hold that
prosecutrix was minor. Rule 12 (3)(a)(ii) enjoins the Court to accept a date of birth
certificate provided it is issued by a school first attended. When a statute
prescribes a thing to be done in a particular manner, it has to be done in the same
manner and other methods are forbidden. [See AIR 1959 SC 93 (Baru Ram vs.
Prasanni), 2001 (4) SCC 9 (Dhananjaya Reddy vs. State of Karnataka), 2002 (1)
SCC 633 (Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala) and
judgment of this Court in 2011 (2) MPLJ 690 (Satyanjay Tripathi & Anr. vs.
Banarsi Devi)]. Thus, in our view, the Admission Register of the school was not a
document which satisfies the requirement of Clause (ii) aforesaid. The parents of
prosecutrix could not narrate about her date of birth with necessary clarity. On the
contrary, the statement of father and mother is in variance on this aspect.
12. The Apex Court in Jarnail Singh vs State of Haryana [2013 (7) SCC
263] considered the Scheme of Rule 12 aforesaid and opined that in absence of
certificate issued as per Clause 12 (3)(a)(i), the date of birth entered in the school
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first attended by the child can be treated as final and conclusive. At the cost of
repetition, in the present case, no such certificate issued by school first attended
by the child was produced. The Transfer Certificate was although issued by
primary school but the Admission Register of primary school was not produced.
Nobody entered the witness box to prove any document issued by the school first
attended by the child. In (2010) 8 SCC 714 (Satpal Singh vs. State of Haryana),
the Court opined there is nothing on record to corroborate the date of birth of the
prosecutrix recorded in the school register. It is not possible to ascertain as to who
was the person who had given her date of birth at the time of initial admission in
the primary school. It cannot be ascertained as who was the person who had
recorded her date of birth in the primary school register. The primary school
register was not produced and proved before the Trial Court and, therefore, it was
opined that it cannot be held with certainty that the prosecutrix was major. We find
support in our view from the judgment of Satpal Singh (supra) and constrained to
hold that TC issued by previous school does not fulfill the requirement of Rule 12
of the said rules.
13. In the instant case, prosecution has failed to furnish the birth certificate
of the prosecutrix. No ossification test has been conducted to ascertain the age of
the prosecutrix, even no MLC has been conducted by the prosecutrix, therefore,
the case of the prosecution regarding date of birth of the prosecutrix is very
doubtful.
14. Similarly, in the case of Alamelu vs. State [(2011) 2 SCC 385], it was
poignantly held that date of birth mentioned the Transfer Certificate has no
evidentiary value unless the person who made such entry or who gave the date of
birth is examined. Pertinently, the Transfer Certificate was disbelieved because
the Head Master of concerned school which had issued the TC was not examined.
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This judgment covers the aforesaid aspect squarely and it can be safely held that
prosecution has failed to establish that prosecutrix was minor at the time of
incident.
15. In this backdrop, the question of consent of prosecutrix assumes
significance/importance. Putting it differently, if prosecution could have
established by leading cogent evidence that prosecutrix was minor, then this Court
would have persuaded with the argument of learned Public Prosecutor that
question of consent is irrelevant in this case. The incident took place on
intervening night of 25th and 26th of June, 2002 and the missing person report of
the prosecutrix was not proved in the instant matter.
16. Prosecutrix (PW-1) categorically admits in her cross-examination that
she was remained with the accused Ashok for the period of three months and she
went with him at Bhopal 4-5 times and Guna 2-3 times and other places 4-5 times
and travelled through Bus and Train. It appears that prosecutrix was taken from
one place to another by public transport but she did not raise any alarm. She
travelled with the accused Ashok by Bus and Train and she was having liberty to
make complaint to co-passengers that the accused Ashok took her forcefully but
she did not make complaint to anybody against the act of the accused Ashok. She
was ramained in the company of the accused for a period of more than 3 months
and during which also, she neither tried to escape from his custody nor took help
of any person to save herself. Chandra Kala Bai (PW-6) who is the mother of the
prosecutrix in para 4 of her cross-examination admits that marriage of the
prosecutrix was solemnized with accused Ashok. Govind Singh (PW-2) also
admits in para 9 of his cross-examination that he came to know that marriage of
the prosecutrix has been solemnized with accused Ashok at Ganjbasoda.
17. Lalta Prasad (DW-1) categorically stated in his statement that on
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29.06.2002 accused Ashok along with prosecutrix came at office of the Arya
Samaj situated at Ganjbasoda along with an application. They have filed their
affidavits and prosecutrix stated that she has voluntarily come with Ashok and
then he solemnized the marriage and issued marriage certificate (Ex. D-18). S.L.
Acharaya (DW-2) who is the Notary also deposed that he has signed the affidavit
of the prosecutrix after due verification and affidavit is Ex. D-14. Therefore, on
the basis of aforesaid, it appears that the prosecutrix got married with the accused
Ashok and lived with him as wife for a period about 3 months.
18. In these circumstances, this Court is of the considered view that
prosecution has failed to prove that the prosecutrix was minor at the time of
incident and she was abducted by the respondents. The Trial Court has properly
appreciated the evidence available on record and on the basis of aforesaid
evidence, the Trial Court has rightly held that the respondents/accused are not
guilty for the alleged offences and rightly acquitted the respondents/accused for
the aforesaid offences. The findings recorded by the Trial Court do not appear to
be perverse. No ground is available for convicting the respondents/accused
persons for the aforesaid offences. There is no substance in this appeal.
19. Resultantly, this criminal appeal filed by the appellant / State is
dismissed.
(ANIL VERMA)
JUDGE
Abhi
