Lalji v. State Of Chhattisgarh
HIGH COURT OF CHHATTISGARH BILASPUR CriminalAppeal No. 647 of 2002 Lalji
Versus
State of Chhattisgarh C A V JUDGMENT > Post for pronouncement ofjudgment on 25/01/201 8 Sd/ Sharad Kumar Gupta Judge
MFR HIGH COURT OF CHHATTISGARH BILASPUR Reserved on 23-1-201 8 Pronounced on 25-1-2018 CRIMINAL APPEAL No. 647/2002 Lalji S/o.
Mantram Jaiswal aged about years, R/o.
Village Damapur, Police Station Lalpur, Distt. Bilaspur (CG).
Versus
State of Chhattisgarh through Police Station Laipur, Distt. Biiaspur (CG) For appeiiant Mr. H.S. Ahiuwalia, Advocate.
For State Ms. M. Asha, Panel Lawyer.
Hon'ble Mr. Sharad Kumar Gupta, Judge C.A.V. JUDGMENT this criminal appeal, challenge levied to the judgment of conviction and order of sentence dated 29-4-2002 passed by the Addl.
Sessions Judge, Mungeli, Sessions Division Bilaspur, Distt. Bilaspur (CG) whereby and whereunder he convicted and sentenced the appellant as under:- Under Sentence Fine Default clause Section payment of fine 363, IPC 2 years RI Rs. 500/- Additional 3 months Rl 366 IPC 4 years RI Rs.1 ,OOO/- Additional 6 months RI 376(1) IPC 7 years Rl Rs.1,500/- Additional 1 year Rl 1'
All substantive jail sentences are directed run concurrently.
This is admitted by the appellant that P.W. 2 Prosecutrix, P.W.3 Ramkumar Jaiswal, P.W. 4 Nainkali Bai, P.W. 5 Rajendra Kumar live at village Damapur. He is also neighbour ofthem. In brief, prosecution story is that prosecutrix Was 15 years old on 25-3-2000. On 25-3-2000 father P.W.
Ramkumar Jaiswal and mother of the prosecutrix P.W. 4 Smt.
Nainkali Bai had gone their barn (Kothar) for doing work.
Prosecutrix was present in the house. When Ramkumar Jaiswal Nainkali Bai returned to their house at about 7.00 pm they found present house.
They searched for the prosecutrix but she could not be traced. During search they came to know that the appeilant is aiso not present at viliage.
Ramkumar Jaiswai suspecting appeilant lodged FIR in PS Laipur on 27-3-2000.
During investigation, it was found that the appeiiant had kidnapped the prosecutrix and took her to Deihi and they resided there for about 3 months. He committed rape with the Prosecutrix in Deihi. The poiice officials took back appellant and from Delhi handed over the her father. After completion the investigation, a charge sheet was filed against the appellant under Sections 363, 366 and 376 of the lndian Penal Code (in brevity 'IPC').
The trial Court framed charges against the appellant under Section 363, 366 and 376(1) IPC. The appellant abjured the charges and faced trial. To bring home the charges, prosecution examined as many as 8 witnesses. The t appellant has not examined any witness in his defence. After conclusion trial, trial Court convicted sentenced the appellant as mentioned above. Being aggrieved, the appeiiant has preferred this criminal appeal. Mr. Ahluwalia, counsel for the'appellant vehemently argued that the prosecution has failed to prove that at the time of the first alleged incident, prosecutrix was below years of age.
Materials available on record arg sufficient show prosecutrix was consenting party.
Thus conviction sentences appellant may be set aside and he may be acquitted from the aforesaid charges.
6.
Ms.
M.
Asha, Panel Lawyer appearing for State white supporting impugned judgment submitted conviction sentences appellant are based on cogent evidence adduced by the prosecution. Thus no interference called for this Court appeal deserves be dismissed.
7.
First point for consideration before this Court is as to what was the age of the prosecutrix on 25-3-2000.
8, P.W. 3 Ramkumar Jaiswal in paras 2 and 8 of his statement on oath given 15-1-2002 states that now a days, the prosecutrix is near about 17 years old. The prosecutrix was born in the month ofAsarh.
9.
P.W. 4 Smt. Nainkali Bai in para of his statement on oath on 08-03-2002 says that the prosecutrix was aged 15 years, when she disappeared from their house.
¢ 10.
P.W.
Rajendra Kumar who brother ln paras 1 and 3 of his statement on oath given on 8-3'2002 says that now the prosecutrix is about 17 years old. She was born in the year 1984.
11.
As per alleged birth certificate Ex'. P-1-A, the date of birth of the prosecutrix is 28-6-1984 12.
As per alleged MLC report Ex.
P-1.1'-A, P.W. 8 Dr. M.T. Minj had examined her external examination
observed her age as about 16 years old.
13.
ln Netram Sahu V. State of C.G. {2012
(4) CGLJ 168} learned Single Judge of this Court has observed para-8 as under:~ "8 .............. Now next question be decided this Court is regarding the age prosecutrix at the relevant time.
Neither the prosecutrix herself nor her mother has deposed about the date of birth of the prosecutrix.
Mother has categorically stated that prosecutrix was born on 17'"
but she did not remember the month and year thereof as she illiterate.
She has further stated when the child is born in the village, same is reported to the Koz'wa/ and in the case of the prosecutrix also her date of birth was reported him.
According her, birth certificate was being issued from the police station but case no such certificate was issued.
This witness has further stated that at the time of admission of the prosecutrix in the school, it is her father who had got her admitted and birth certificate issued by the Sarpanch was given school.
She has further stated that she did even remember date birth her other two daughters.
Govind Lal Chandravanshi (PW-7) - Head Master of the school has stated that date birth prosecutrix was recorded school register as 2.5.1997 accordingly he issued school certificate Ex.P-9.
However, cross examination this witness has stated that at the time of admission of the prosecutrix whatever date of birth of prosecutrix was disclosed by her guardian, same was recorded in the school register but on what basis it was recorded register it mentioned therein.
He has further stated that it appeared to him it was the mother of the prosecutrix who got her
admitted in the schooL Moreover, no ossification test has been done this ca'Se age prosecutrix as 14 years recorded by the doctor (PW9) has no basis. Doctor (PW-9) has fixed up the age as years on date her medicai examination.
She has stated as to on what basis she has recorded the same.
The doctor (PW-9) did not conduct either the ossification test or any other pathologicai test reach at least proximate age of the victim and thus her assessment regarding age is based on fragile premises."
In Sunil v.
State Haryana {2010 (1) SCC 742} i4.
Hon'ble Supreme court in para 24 observed as under:- "24.Dr. Verma P.W.1, who had clinically examined the prosecutrix, found that her secondary sex characters were well developed. The short question in the facts circumstances this case remains be determined is whether the prosecutrix was a minor?
Dr.
Sadhna Verma, PW1 who examined prosecutrix referred her for verification to the Dental Surgeon Radiologist.
The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, PW1 is a serious flaw in the prosecution version. We are not laying down as rule all these tests must be performed all cases, but in the instant case, in absence of primary evidence, reports Dental Surgeon Radiologist would have helped us arriving at the conclusion regarding the age of the prosecutrix." 15.
in State of Madhya Pradesh v. Munna @ Shambhoo Nath in Criminal Appeal No. 658 of 2011 decided on 18.09.2015 the Hon'ble Supreme Court has observed that the mother of the also able-to give exact age
prosecutrix. No question was also asked to the prosecutrix by prosecution about her age.
Taking into account all these w facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonabie doubt that the giri was less than 16 years of age at the time of the incident. Further the Hon'ble Supreme Court has observed that to prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, bone ossification test but since the doctor was not examined the High Court held that none of them could bring home case prosecution.
The prosecution produced school certificate prosecutrix and examined Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where studied her 9th standard.
In his crossexamination, PW1 stated the age prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned her letter of declaration. The examination-in-chief of PW8 (Dr.
Nisha Sahu) does support prosecution story.
ln her opinion, the girl could not have attained the age of 14 years, but further her examination-in-chief and cross-examination, she stated that she could not opine about the present intercourse.
Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused. The observation regarding age of the prosecutrix given by P.W.
Dr. MT.
Minj Ex.
P-11-A is not based on any scientific or medical test.
lt merely given on basis physical
examination.
Moreover, as per advice given Ex.
P-11-A, the prosecutrix was not examined by the radiologist for confirming her age, nor she examined any dental surgeon k ascertain her age.
For doing so there no reasonable explanation from prosecution.
Thus, looking these circumstances above mentioned judicial precedents, this Court nnds prosecution does get any help from aforesaid observation of PW-8 Dr.
MT.
Minj and Ex.P-11-A in this reference that allegedly on 25-3-2000, the prosecutrix was below 18 years.
i7.
in Subeiai v. State of M.P. (Now c.G.) {2011(4) CGLJ 424} the learned Single Judge of this Court has observed in paras- 9 and 10 as under:
"9.
in A/ame/u and another Vs.
State represented by Inspector ofPo/ice, (2011) 2 SCC 385, the Supreme Court held that the transfer certificate which is issued government school duly signed Headmaster would be admissible in evidence u/s 35 of the Evidence Act 1872.
However, the admissibility of such a document would be of not much evidentiary value prove age absence of the material on the basis of which the age recorded.
The Supreme Court held that - date birth mentioned transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth examined.
ln present case, though PW-10 admitted to issue the transfer certificate (EXP/15) on the basis of entry in the school registerr but the entry in the school register, by which, the prosecutrix was admitted in Class-6th, itself was not proved. 10.
Ghirdharram Sahu (PW-11-father
prosecutrix) did not speak single word about making declaration relating to age of the prosecutrix even he has not deposed regarding the age of the prosecutrix on his personal knowledge.
Puraien Bai (PW-9mother of the prosecutrix) has also not deposed either about age or any declaration made them before school authorities relating age prosecutrix.
Therefore, i am view such situation much reliance would have been placed on entries of the school register or the transfer certificate issued on the basis of such entry, for determining the v age of the prosecutrix."
18.
In Rajkumar Bajaj @ Raja v. State of C.G. {2012 (4) CGLJ 437} learned Single Judge of this Court has observed para-9 as under :- "9.
Minute examination evidence witnesses particularly that of the prosecutrix (PW-3), her parents (PW-1 and PW-2) and Laxmi Bai (PW-9) goes to show that she (prosecutrix) was a consenting 'party.
Evidence further shows lived house Dhaniram (PW-4) along with accused Raja for five days used go out for answering call of nature and fetching water from hand pump but during this long period she, spite having full opportunity, did make any complaint to anyone about her being confined by the accused/appellant Raja.
This conduct also makes it clear she consenting party to the act of accused/appellant Raja. Now only question regarding her age.
Prosecution has filed photocopy Kotwari register (Ex. P-15-A) but event this document has not been proved, by prosecution in accordance with law.
Original Kotwari register has not been produced Court prosecution nor there any
evidence to show as to on what basis the date of birth prosecutrix was enfered said Kotwari register as 20.07.1980.
Even parents have stated anything regarding age prosecutrix.
Moreover, the doctor (PW-8) who medicaiiy examined has stated that she was fuiiy grown up woman.
Though record shows that prosecutrix was referred for x-ray for determination of age, there is no such report on record"
19.
ln Birad Mai Singhvi v. Anand Purohit {AIR 1988 SC 1796} Hon'bie Supreme Court observed paras-14 as under:
"14 ..... if the entry in the scholar's register regarding date of birth is made in the basis of information given parents, 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 documents Exs.
8, 9, 10, would tantamount proof all contents or correctness of date of birth stated in the documents
15. To render a document admissible under Section 35, three conditions must be satished, firstly, entry relied on must be one public or other official book, register or record, secondly, it must be an entry stating fact issue or relevant fact, thirdly, it must be made public servant discharge of his ofhcial duty, or any other person performance of a duty specially enjoined by law. An entry relating date birth made school register is relevant and'admissible under Section 35
1O the Act but entry regarding 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." 20.
In Para- 22 of the judgment of the Supreme Court in Babloo Pasi v.
State of Jharkhand and Another {2008 AIR SCW 7332}, it has been observed that :- "22.
insofar as the Board is concerned, it is evident it has mechanically accepted the entry in Voters List as conclusive without appreciating its probative value in terms of the provisions of Section 35 of the Indian Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register, record, stating fact issue or relevant fact made public servant discharge of his official duty especially enjoined by the law of the country is itself a relevant fact. lt is trite that render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry relied on must be one public or other official book, register or record;
(ii) it must be an entry stating fact issue or a relevant fact, (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined law.
An entry relating date birth '
made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register of not much evidentiary value to prove the age of the person in the absence material on which age record ed .
"
It would be manifest refer para-25 of the judgment Supreme Court in Sunil (supra) which is extracted as under:- "25.
The prosecution"also failed produce any /
g «r w/ 1'] Admission Form of the school which would have been primary evidence regarding 'the age of the prosecutrix.
The School Leaving Certificate produced prosecution was also procured on 12.9.1996,' six days after the incident and three days after the arrest of the appeiiant. As per that certificate also, she joined the school in the middle of the session and left the school middle session. The attendance in the school days also reliable.
The admitted school Ashok Kumar, her brother. The said Ashok Kumar was examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced."
22.
P.W.
Ramkumar Jaiswal says para during his crossexamination that this is true that he had given the information to Kotwar regarding birth prosecutrix.
P.W.
Rajendra Kumar says para during his cross-examination from the information received from the Kotwar they came to know that prosecutrix was born in 1984. P.W. 7 investigating Officer A.S.l. SR. Bhagat says in para 13 given on oath that he had given Ex.
P-1-A on basis entries made birth register kept in police station.
23.
in the case in hand, the prosecution has failed to produce prove the concerned register of the Kotwar wherein the date of birth of the prosecutrix has been mentioned allegedly as 28-61984. Moreover, P.W. 3 Ramkumar Jaiswal, P.W.4 Smt. Nainkali Bai, P.W. 4 Rajkumar do not say clearly and strongly that they had the special means of knowledge of the said date of birth of prosecutrix which they had informed at time of such entry to the concerned authority which has been written in the
ii;
i5 %"1 form could have been main source declaration for date birth prosecution.
The information failed to give plausible explanation as to why it was prosecution done.
Moreover prosecution has failed examine e entry date birth author th register kept in the police station.
original birth above mentioned circumstances, judicial 24.
Looking precedent laid down in Munna @ Shambhoo Nath (Supra) aforesaid judicial precedents, this Court finds that on of EX.P-1-A, it could not be said that at the time of the strength the alleged first incident the prosecutrix was below 18 years. judgment Sunil (Supra) Hon'ble ZS.
ln para Supreme Court have further observed as under:- Bishan, PW8, the father prosecutrix has "26.
not been able to give correct date of birth of the also prosecutrix.
ln his statement he clearly stated that he giving an approximate date without any basis or record.
ln criminal case, conviction appellant cannot be based on an approximate date which supported any.record.
lt would be quite unsafe to base conviction on an approximate n date PW.
Prosecutrix, P.W.
Ramkumar Jaiswal, P.W.
Smt.
26.
i, P.W.5 Rajendra Kumar do state clearly and Nainkali Ba strongly that what is the exact date of birth of the prosecutrix.
kumar Jaiswal says in para 8 that he cannot say that P.W. 3 Ram in which month, year, prosecutrix was born. PW.
Rajendra kumar says in para 3 that he does not know the date and the month regarding birth Qfmthe prosecutrix.
lf above
iki mentioned circumstances, judicial precedents laid down Munna @ Shambhoo Nath (Supra), Subelal (Supra) and aforesaid judicial precedent are considered then this Court disbelieves said statements para P.W.
Ramkumar Jaiswai, Para of P.W. 4 Ramkaii Bai, para 1 and 3 of P.W 5 Rajendra Kumar in this reference that allegedly on 253-2000 the prosecutrix was below 18 years. 27.
Now next question for consideration this Court w hether the appellant allegedly kidnapped the prosecutrix with an intent that she may be forced or seduced to illicit intercourse. 28.
This has been earlier decided that prosecution failed to prove that on 25-3-2000, the prosecutrix was below 18 years. 29.
Shri Ahluwalia, counsel for the appellant placed reliance in S.
Varadarajan -v- State of Madras reported in 1965 (2) Cri.L.J. 33 in which it has been observed by Hon'ble Supreme Court in para-9 as under:- "9.
lt must, however, be borne in mind that there is a distinction between "taking" and allowing minor to accompany person.
The two expressions are synonymous though we would like to guard ourselves from laying down no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 Indian Penal Code. We would limit ourselves case like the present where the minor alleged to have been taken by the accused person left her father's protection. knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person.
ln such as "case we do not think that the accused cannot be saidto have taken her away from keeping of her lawful guardian.
Something
'14 more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation him formation intention minor leave house of the guardian."
30in Subelal (supra) para-12 learned Single Judge has observed as follows:- "12.
Now we shall examine conduct prosecutrix. The case prosecution that the prosecutrix accompanied the appellant and she went from village Zoratarai village Bhakara on his bicycle. From Bhakara, they boarded a bus and went Dhamtari.
Further, from Dhamtari, they went village Utai to the house of the sister of the appellant, they again boarded mini bus went Bhilai (Power House). The appellant took the prosecutrix to house his other sister who residing Bhilai. The prosecutrix alleges that she was subjected to forcible sexual intercourse by the appellant in the house his sister.
Though visited many places with the appellant' but she did not make any compliant accompanied him normal manner. This shows that she was not abducted and taken force she accompanied appellant on her own will and it was not a case that .
appellant committed sexual intercourse without her consent.
Considering evidence of age conduct of the prosecutrix, l am of the view that the prosecutrix was a consenting party with the appellant and in the above facts and circumstances of the case, the offences u/ss 363, 366 & 376 Indian Penal Code would not be made outagainst the appellant.
"
31.
In Sheikh Shariff v.
State Chhattisgarh {ILR '
Chhattisgarh 1317} the learned Single Judge in para-18 has observed as follows :-
W "18' Now coming to the other Sections 363 and 366 of l.P.C., the statement of the' prosecutrix (P.W.-1) are examined in between the lines, major contradictions appears in the Court statement.
It was stated that she administered with intoxicated substance thereafter, she was not in know of any fact that what happened.
Further taking into the other documents, which are on record, which would show that she was recovered at Mominpara, Raipur from the custody of appeiiant after about days incident.
The evidence is also on record, the prosecutrix remained custody from date disappearance from 22.02.2012 05.03.012 i.e.
about two weeks. The statement would further show that she traveled from different place in the company of appellant and these facts remained unexplained."
32.
P.W. 2 the prosecutrix in paras 2, 7, 9 and says that at the time alleged first incident, she had gone for defecation towards appellant's house. The appellant had promised her that he will marry her.
This true that the appellant was already married before she and appellant had gone Delhi. The appellant was keeping her well like his wife. This is also true that there was love relationship between them. They had gone to village Kanteli by walking. They went from Kanteli to Lormi bus.
They stayed school at Lormi.
She had told anyone that the appellant is taking her to Delhi. Then they went to Kota by bus.
In Delhi there were so many huts near the hut where they resided. She had not told to anyone at Delhi that the appellant had committed bad acts with her.
When appellant committed bad acts, she did not stop him.
During residing Delhi for 3 months she never complained to anyone that the appellant had kidnapped her.
'l6 33.
Looking above mentioned circumstances, judicial precedent laid down Rajkumar Bajaj (Supra) this Court finds aforesaid judiciai precedents, prosecutrix was a consenting party.
34.
After the appreciation of the evidence, this Court finds that the prosecution has failed prove beyond reasonabie doubt that appeiiant had taken away prosecutrix, who aiiegediy below years, out keeping her lawful guardian Ramkumar Jaiswal, without the consent of him, with an intent that she may be forced or seduced to illicit intercourse l and also raped her.
35.
Looking to the facts, circumstances and materials of the case this Court finds that the Trial Court has committed gross mistake in convicting and sentencing the appellant as aforesaid. 36.
After the complete full appreciation evidence, this Court allows the appeal and sets aside the impugned judgment of conviction and order of sentence dated 29-4-2002 of the trial Court and acquits the appellant from the charges under Section 363, 366, 376(1) IPC extending the benefit of doubt. 37.
Thaappellant is on bail. The bail bond of the appellant stands discharged subject to the provisions contained in Section 437-A of the Cr.P.C.
Sd/- Sharad Kumar Gupta * '
Judge Pathak