Madhya Pradesh High Court
Rahul Lodhi vs The State Of Madhya Pradesh on 25 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 25th OF APRIL, 2025
CRIMINAL APPEAL No. 3739 of 2023
RAHUL LODHI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Amit Jain, Advocate for the Appellant.
Shri Nitin Gupta, Government Advocate for the State.
ORDER
Per: Justice Vivek Agarwal
Learned counsel for the appellant is heard on I.A.No.5869/2023, which
is first application for suspension of sentence and grant of bail to the
appellant Rahul Lodhi.
2. Learned counsel for the appellant prays for withdrawal of
I.A.No.5869/2023 as he proposes to argue this case finally.
3. Prayer made by learned counsel for the appellant is not opposed by the
learned Government Advocate for the State.
4. Accordingly, I.A.No.5869/2023 is dismissed as withdrawn.
5. With consent of learned counsel for the parties, this appeal is finally
heard.
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6. This appeal under Section 374(2) of the Code of Criminal Procedure,
1973 (for short "Cr.P.C") is filed by the appellant Rahul Lodhi S/o Late
Narayan Singh Lodhi being aggrieved of the judgment dated 23.1.2023
passed by learned Special Judge (POCSO Act) & IX Additional Sessions
Judge, Sagar, in Special Case No.248/2021 convicting him for the offence
under Sections 363, 366, 376(2)(n) of Indian Penal Code, 1860 (for short
"I.P.C") and Section 5(l) read with Section 6 of the Protection of Children
From Sexual Offences Act, 2012 (for short "POCSO Act") and sentencing
him to suffer rigorous imprisonment for twenty years with fine of Rs.8,000/-
for the offence under Section 5(l)/6 of the POCSO Act and the rigorous
imprisonment for three years with fine of Rs.1,000/- for the offence under
Section 366 of the I.P.C and in default of payment of fine to undergo
additional rigorous imprisonment for two years and one year respectively
with a further direction to run all the jail sentences concurrently.
7. Learned counsel for the appellant submits that the age of the prosecutrix
is doubtful. She is a consenting party. She had run away with the appellant
on her own. The mother of the prosecutrix (PW.4) admits in her testimony
that her marriage was performed when she was 17-18 years of age. After
two years of the marriage, she had given birth to her first male child and
there is a gap of two years between the birth of her second child, who
unfortunately died and her third child is the prosecutrix. In the deposition
sheet, the age of mother of the prosecutrix (PW.4) is mentioned as 43 years,
which means that her marriage was performed about 26 years prior to the
date of the incident. In this manner, the age of the prosecutrix will come out
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to be about 20 years.
8. Reading the testimony of the School Master Anandi Lal (PW.3), it is
pointed out by learned counsel for the appellant that he too admits that it is
quite often in villages to record date of birth by reducing the age of a person
by two and a half to three years. Anandi Lal (PW.3) admits overwriting and
cutting in the name of the mother of the prosecutrix in Exhibit P/14. In
Exhibit P/13C, the date of birth of the prosecutrix is mentioned as 10.7.2004
whereas the incident took place in the intervening night of 22-23/5/2021.
The father of the prosecutrix (PW.2) too admits that he does not remember
the date of birth of his elder son and the date of his marriage etc. Dr. Kiran
Singh (PW.5) states that the secondary sexual characters of the prosecutrix
were well developed. There were no injury marks, be it external or internal.
9. Learned counsel for the appellant submits that the prosecutrix is major at
the time of the incident and merely positivity of the DNA is not a sufficient
circumstance to uphold conviction of the appellant. He, therefore, prays for
setting aside the finding of conviction recorded against the appellant by
learned Special Judge (POCSO Act) & IX Additional Sessions Judge, Sagar,
in Special Case No.248/2021 vide impugned judgment dated 23.1.2023.
10. Learned Government Advocate for the State in his turn submits that the
DNA report (Exhibit P/24) is available on record and that is positive qua the
appellant Rahul Lodhi.
11. We have heard learned counsel for the parties and gone through the
record.
12. The prosecutrix (PW.1) states that the appellant is residing in her
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neighbourhood. She had studied upto Class-XI. She does not remember her
date of birth. For last few months, she was talking to the appellant. She had
left her home at about 11:00 P.M. along with the appellant and had travelled
on foot through Jungle and then in a Taxi, they had reached Khurai and from
Khurai Railway Station, they had gone to Rewa where, T.T. had caught them
and thereafter Rahul had called his brother. His brother had come to Khurai
Railway Station where they stayed for 2-3 hours. After sometime, the
Naryaoli Police had come and had recovered the prosecutrix.
13. The prosecutrix in her cross-examination admits that Rahul is friend of
her brother and used to visit her house in presence of her brother. She admits
that because of his visits, she came into love relationship with Rahul. Rahul
used to say that he wants to marry her and she too had informed her elder
brother that she wants to marry Rahul. She admits that she was possessing
two mobiles with her and out of those two mobiles, one was given by Rahul
to her. She admits that she had left her home with money and purse. She had
carried about Rs.1.5 Lakh from her house. In Paragraph No.18, she admits
that Rahul is her boyfriend.
14. The father of the prosecutrix (PW.2) admits that when he got up to
answer the call of nature then he found that the prosecutrix was not there.
His son thought that she may have gone with her mother for plucking of
Tendu Leaves etc. He admits that he does not remember the date of birth of
the prosecutrix. He admits that he is not literate. He had recorded the date of
birth of the prosecutrix by estimation and improvised his statement later on
that he had taken a document from the Pandit, who had prepared the
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horoscope of the prosecutrix.
15. The School Teacher Anandi Lal (PW.3) in Paragraph No.7 of his cross-
examination admits that there is no documentary evidence on the basis of
which the date of birth of the prosecutrix was recorded in the School Entry
Register.
16. The mother of the prosecutrix (PW.4) admits that her marriage was
performed when she was 17-18 years of age. She had three kids and out of
these three kids, one died unfortunately. There is age gap of two years each
between the age of her children and by that estimation, the age of the
prosecutrix comes out to be over 18 years.
17. The Apex Court in Paragraph Nos.14 & 15 of Birad Mal Singhvi
versus Anand Purohit AIR 1988 SC 1796 has held as under:-
14.We would now consider the evidence
produced by the respondent on the question of age of
Hukmi Chand and Suraj Prakash Joshi. The respondent
examined Anantram Sharma PW.3 and Kailash Chandra
Taparia PW.5. Anantram Sharma PW.3 has been the
Principal of New Government Higher Secondary
School, Jodhpur since 1984. On the basis of the
scholar's register he stated before the High Court that
Hukmi Chand joined school on 24.6.1972 in 9th class
and his date of birth as mentioned in scholar's register
was 13.6.1956. He made this statement on the basis of
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the entries contained in the scholar's register Ex.8. He
admitted that entries in the scholar's register are made
on the basis of the entries contained in the admission
form. He could not produce the admission form in
original or its copy. He stated that Hukmi Chand was
admitted in 9th class on the basis of transfer certificate
issued by the Government Middle School, Palasni from
where he had passed 8th standard. He proved the
signature of Satya Narain Mathur the then Principal
who had issued the copy of the scholar's register Ex.8.
Satya Narain Mathur was admittedly alive but he was
not examined to show as to on what basis he had
mentioned the date of birth of Hukmi Chand in Ex.8.
The evidence of Anantram Sharma merely proved that
Ex.8 was a copy of entries in scholar's register. His
testimony does not show as to on what basis the entry
relating to date of birth of Hukmi Chand was made in
the scholar's register. Kailash Chandra Taparia PW.5
was Deputy Director (Examination) Board of
Secondary Education, Rajasthan, he produced the
counter foil of Secondary Education Certificate of
Hukmi Chand Bhandari, a copy of which has been filed
as Ex.9. He also proved the tabulation record of the
Secondary School Examination 1974, a copy of which
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has been filed as Ex.10. In both these documents
Hukmi Chand's date of birth was recorded as 13.6.1956.
Kailash Chandra Taparia further proved Ex.11 which is
the copy of the tabulation record of Secondary School
Examination of 1977 relating to SuraJ Prakash Joshi. In
that document the date of birth of Suraj Prakash Joshi
was recorded 11.3.1959. Kailash Chandra Taparia
stated that date of birth as mentioned in the counter foil
of the certificates and in the tabulation form Ex.12 was
recorded on the basis of the date of birth mentioned by
the candidate in the examination form. But the
examination form or its copy was not produced before
Court. In substance the statement of the aforesaid two
witnesses merely prove that in the scholar's register as
well as in the Secondary School examination records
the date of birth of a certain Hukmi Chand was
mentioned as 13.6.1956 and in the tabulation record of
Secondary School Examination a certain Suraj Prakash
Joshi's date of birth was mentioned as 11.3.1959. No
evidence was produced by the respondent to prove that
the aforesaid documents related to Hukmi Chand and
Suraj Prakash Joshi who had filed nomination papers.
Neither the admission form nor the examination form
on the basis of which the aforesaid entries relating to
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the date of birth of Hukmi Chand and Suraj Prakash
Joshi were recorded was produced before the High
Court. No doubt, Exs.8,9,10, 11 and 12 are relevant and
admissible but these documents have no evidentiary
value for purpose of proof of date of birth of Hukmi
Chand and Suraj Prakash Joshi as the vital piece of
evidence is missing, because no evidence was placed
before the Court to show on whose information the date
of birth of Hukmi Chand and the date of birth of Suraj
Prakash Joshi were recorded in the aforesaid document.
As already stated neither of the parents of the two
candidates nor any other person having special
knowledge about their date of birth was examined by
the respondent to prove the date of birth as mentioned
in the aforesaid documents. Parents or near relations
having special knowledge are the best person to depose
about the date of birth of a person. If entry regarding
date of birth in the scholars register is made on the
information given by parents or some one having
special knowledge of the fact, the same would have
probative value. The testimony of Anantram Sharma
and Kailash Chandra Taparia merely prove the
documents but the contents of those documents were
not proved. The date of birth mentioned in the scholar's
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register has no evidentiary value unless the person who
made the entry or who gave the date of birth is
examined. The entry contained in the admission form or
in the scholar register must be shown to be made on the
basis of information given by the parents or a person
having special knowledge about the date of birth of the
person concerned. If the entry in the scholar's register
regarding date of birth is made on the basis of
information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge
of the date of birth, such an entry will have no
evidentiary value. Merely because the documents
Exs.8,9,10,11 and 12 were proved, it does not mean that
the contents of documents were also proved. Mere proof
of the documents Exs.8,9,10,11 and 12 would not
tantamount to proof of all the contents or the
correctness of date of birth stated in the documents.
Since the truth of the fact, namely, the date of birth of
Hukmi Chand and Suraj Prakash Joshi was in issue,
mere proof of the documents as produced by the
aforesaid two witnesses does not furnish evidence of
the truth of the facts or contents of the documents. The
truth or otherwise of the facts in issue, namely, the date
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of birth of the two candidates as mentioned in the
documents could be proved by admissible evidence i.e.
by the evidence of those persons who could vouch safe
for the truth of the facts in issue. No evidence of any
such kind was produced by the respondent to prove the
truth of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the circumstances
the dates of birth as mentioned in the aforesaid
documents have no probative value and the dates of
birth as mentioned therein could not be accepted.
15.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 the 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 in
the discharge of his official duty specially enjoined by
the law of the country is itself the relevant fact. To
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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 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 AIR 1951
Punjab 377, Sakhi Ram v. Presiding Officer, Labour
Court, North Bihar, Muzzafarpur & Ors AIR 1966
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Patna 459, Ghanchi Vora Samsuddish Isabhai v. State
of Gujarat AIR 1970 Guj 178 and Radha Kishan Tickoo
v. Bhushan Lal Tickoo AIR 1971 J&K 62. In addition
to these decisions, the High Courts of Allahabad,
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
(1969) 42 ELR 465 (All), K. Paramalali v. L.M.
Alangaram (1967) 31 ELR 401 (Mad) and Krishna Rao
Maharu Patil v. Onkar Narayan Wagh (1958) 14 ELR
386 (Bom).
18. A Division Bench of Gujarat High Court in Premjibhai Bachubhai
Khasiya versus State of Gujarat & Another 2009 CRI.L.J 2888 has held that
"mere matching of the DNA is not a sufficient circumstance to record
conviction. If there is a consensual relationship then matching of the DNA is
insignificant. In every case one has to put the DNA evidence in the context
of the rest of the evidence and decide whether taken as a whole, it does
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amount to a prima facie case".
19. Keeping in view the aforesaid pronouncement of law, in the present
case, since the prosecution has failed to prove the age of the prosecutrix to be
minor and from the evidence of the prosecutrix (PW.1) itself, it is evident
that she was a consenting party and in a consensual relationship, matching of
the DNA is insignificant, we are of the considered opinion that the
learned Special Judge (POCSO Act) & IX Additional Sessions Judge, Sagar
committed an error to record conviction against the appellant while passing
the impugned judgment dated 23.1.2023 in Special Case No.248/2021,
which cannot be sustained in the eyes of law. The impugned judgment dated
23.1.2023 passed by learned Special Judge (POCSO Act) & IX Additional
Sessions Judge, Sagar, in Special Case No.248/2021 is hereby set aside.
20. Accordingly, this appeal is allowed and disposed of.
21. The appellant Rahul Lodhi S/o Late Narayan Singh Lodhi be released
forthwith, if not required in any other case.
22. The case property be disposed of in terms of the order of the Trial
Court.
23. Record of the Trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
amit
