Madhya Pradesh High Court
Ishwar Singh vs The State Of Madhya Pradesh on 18 March, 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 18th OF MARCH, 2025
CRIMINAL APPEAL No. 5082 of 2023
ISHWAR SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Neelima Giri Goswami - Advocate for appellant.
Shri G.S. Thakur - Government Advocate for the State.
JUDGMENT
Per: Justice Vivek Agarwal
With the consent of the parties, this appeal is taken up for final
disposal during motion hearing.
2. Learned counsel for appellant does not want to press I.A. No.7863/2023,
which is an application for suspension of sentence and grant of bail.
3. Accordingly, I.A. No.7863/2023 is dismissed as not pressed.
4. This criminal appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by the appellant Ishwar Singh being aggrieved of the
judgment dated 15.03.2023 passed by the learned Special Judge (POCSO
Act) Balaghat District Balaghat (M.P.) in Special Case No.56/2020, whereby
the appellant has been convicted for offences under Section 363 of the IPC
and sentenced to R.I. for five years with fine of Rs.1,000/-, Section 366 of
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the IPC and sentenced to R.I. for seven years, Section 6 of the POCSO Act
and sentenced to imprisonment for life with fine of Rs.10,000/- and Section
376(2)(n) of the IPC, conviction included as per Section 6 of POCSO Act
with default stipulation.
5. Learned counsel for the appellant submits that prosecutrix is a consenting
party. There is a consent of prosecutrix as as per her evidence. It is pointed
out that prosecutrix in para 16 of her cross-examination has admitted that she
was talking to the appellant on mobile phone and they had developed good
relationship during such exchange of verbal communication. It is also
admitted by the prosecutrix that she was admitted by her father and she does
not know as to on what basis, her date of birth was mentioned in her school
entry register. It is pointed out in Ex.P/17-C that date of birth of prosecutrix
was mentioned as 05.07.2002 and incident took place on 12.06.2020,
therefore, at the time incident, she was 17 years, 11 months and 7 days of
age. However, it is submitted that she was consenting adult and it will be
evident from the evidence of PW-2 father of prosecutrix who has admitted in
para 16 of his cross-examination that he does not know the date of birth of
prosecutrix and thereafter, she has stated that infact mother of the prosecutrix
who had gone to get her admitted in the school. He has also stated that he
had taken the certificate from Gram Panchayat as proof of date of birth but
no such certificate has been submitted on record by prosecution or school
authorities. It is submitted that school teacher is PW-6 and Shri Vinod
Nagpure has admitted that he cannot state as to on what basis, the date of
birth of prosecutrix was recorded as 05.07.2002 and he even could not state
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that which document was made the basis of such date of birth being
mentioned in the school register. He has admitted that he does not know as
to who the prosecutrix admitted and no admission form of prosecutrix has
been exhibited by the prosecution before the trial Court. Thus, it is submitted
that date of birth of prosecutrix being not proved, in the case of consent and
therefore, prosecutrix being an adult and she had gone with the appellant on
her own volition and she has admitted that they were in relationship with
each other, conviction under Sections 363, 366, 376(2)(n) of the IPC and
Section 6 of the POCSO Act is not sustainable.
6. Shri G.S. Thakur, learned Public Prosecutor, in his turn, supports the
impugned judgment and conviction.
7. After hearing learned counsel for the parties and going through the
Ex.P/17-C and 18, which are school entry register and the certificate issued
by the school respectively.
8. In Ex.P/17-C the date of birth of the prosecutrix is mentioned as
05.07.2002. She had taken admission in first class on 06.07.2007. She left
the school after obtaining T.C. on 16.04.2012. School certificate Ex.P/18 also
reveals her date of birth to be 05.07.2002.
9. However, there is no documentary evidence. Though PW-2 father of the
prosecutrix has submitted that he had produced a birth certificate from the
concerned Panchayat but no such certificate has been produced either by the
school authorities or on behalf of PW-6 Vinod Nagpure, head master of the
school was examined and this fact has been admitted by Shri Nagpure that he
cannot state as to on what basis date of birth of prosecutrix was recorded. If
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there would be any document available on record, he would have shown that
document or would have narrated about it.
10. PW-2 has stated that it was mother of the prosecutrix who had gone to
the school to get her admitted. Later on, he improvised the statement and
stated that he had gone to admit the prosecutrix. This fact is corroborated by
the statement of prosecutrix (PW-1). However, in the same breath, PW-2 has
admitted that he does not know the date of birth of prosecutrix. In view of
such fact and the law laid down by the Hon'ble Apex Court in the case
o f Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 , wherein in
paragraphs 14 and 15, the Hon'ble Apex Court has noted 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
PW5. 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 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
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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 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
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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 nation papers. Neither the
admission form nor the examination form on the basis
of which the aforesaid entries relating to 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
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
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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 in 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, 1(). 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
HukmiChand 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
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
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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 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
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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, 14ELR 386."
This Court is of the opinion that prosecution has to prove the date of
birth. Since they have failed to discharge their burden, prosecutrix could not
have been considered to be a minor, otherwise MLC report of the prosecutrix
Ex.P/14 reveals that there was no any sign of any injury over any part of the
body and also secondary sexual characters were well developed. Thus, once
the prosecution has failed to prove her date of birth and the basis on which it
was recorded rendering her to be major then the fact of the matter is that
being a case of consent, as admitted by prosecutrix in para 16 of her cross-
examination where she has admitted that she was talking to the accused on
mobile phone which was given by accused to her. In fact she has admitted in
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para 2 of her examination-in-chief and then they had developed good
relationships. Thereafter, she has also admitted that she had given name of
her village to the accused person as a result of which he had visited her
village at Balaghat. She has also admitted that she had met the accused for
the first time at Balaghat Bus Stand and thereafter, they had visited together
Anand Hotel where they had stayed for 2-3 hours and taken photographs of
this event. She has also admitted that accused had performed the marriage by
garlanding her in a Temple as stated by her in para 4 of her examination-in-
chief. In para 18, she has also admitted that the jeep in which she travelled
with the appellant having a driver and other co-passengers but she never
made any complaint to anyone of them in regard to that she is being
abducted or forced to marry. She has also admitted that when she had
received a call from her father then appellant had dropped her back. Thus, the
conduct of the prosecutrix reveals that it is a case of consent and since age of
the prosecutrix could not be established to be minor by prosecution, it is a
case of acquittal, therefore, the impugned judgment deserves to be set aside,
having failed to take into consideration the aforesaid facts and, accordingly,
impugned judgment is set aside.
11. In the result, appeal filed by the appellant is allowed and disposed of.
He be released forthwith, if not required in any other case. The case property
be disposed off in terms of the judgment of the trial Court. Record of the trial
Court be sent back. Pending application(s), if any, also stand disposed of.
Fine amount, if deposited, be refunded to the appellant.
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(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
pn
