Jayprakash v. State Of C.G.

AFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved on 26.09.2018 Pronounced on 23.10.2018 CRIMINAL APPEAL No. 574/2002 (Arising out of judgment of conviction and order of sentence dated 14.05.2002 passed by the Additional Sessions Judge Mungeli, Sessions Division Bilaspur, district Bilaspur, CG in Sessions Trial No. 10/2001) ...

Jayaprakash son of Dude Prasad Sonwani (wrongly mentioned in memo of appeal as 'Hauhe Prasad Sonwani'), aged about 23 years, R/o. Village Chatta, P.S. Lalpur, Distt. Bilaspur ---- Appellant

Versus

State of C.G. through P.S. Kotwali, Lalpur, Distt. Bilaspur (CG) ---- Respondent.

For appellant : Shri H.S.Ahluwalia , Advocate.

For Respondent/State : Shri Vinod Tekam, Panel Lawyer. Hon'ble Mr. Sharad Kumar Gupta, Judge C.A.V.

JUDGMENT

1.

In this criminal appeal, challenge is levied to the judgment of conviction and order of sentence dated 14.05.2002 passed by the Additional Sessions Judge Mungeli, Sessions Division Bilaspur, district Bilaspur, CG in Sessions Trial No. 10/2001 whereby and whereunder he convicted and sentenced the appellant as under:- Sr.

No.

Offence u/S.

Sentence In default of payment of fine 1.

363, Indian Penal Code (for short 'IPC') RI for 4 years + fine of Rs. 1000/- Additional RI for 6 months 2.

366, IPC RI for 4 years + fine of Rs. 1000/- Additional RI for 6 months

Both the substantive jail sentences have been directed to run concurrently.

2.

In brief, the prosecution story is that on 27/11/2000 prosecutrix was aged about 14 years. She was resident of village Chhata. Appellant used to say that he will marry her. There was love affair between them. On 27/11/2000 he took her by enticing on pretext of marriage. He took her to Mungeli and thereafter in his maternal aunt's house at village Jhaki. During her searching, Bhokle alias Mahetaru told her father Prakash that he had seen them in village Mungeli, when he asked them to return back, they refused. On 3/12/2000 Prakash lodged FIR in police station Lalpur. Police recovered her from the possession of appellant. After completion of the investigation the charge-sheet was filed against him under Section 363, 366 I.P.C. The trial Court framed charges against him appellant under Section 363, 366 I.P.C.

He abjured the charges and faced trial. To bring home the charges the prosecution examined as many as 6 witnesses. He did not examine any witness on his defence. After conclusion of the trial, trial court convicted and sentenced him as aforesaid. Being aggrieved he preferred this criminal appeal.

3.

Shri H. S. Ahluwalia, counsel for the appellant strenuously argued that the prosecution has failed to prove that the age of prosecutrix was below 18 years. She was the consenting party. Thus, aforesaid conviction and sentences are bad in the eyes of law and not sustainable. Thus, aforesaid conviction and sentences may be set aside.

4.

Shri Vinod Tekam, Panel Lawyer for the State submitted that aforesaid conviction and sentences are based on clinching evidence led

by the prosecution. He supported the aforesaid conviction and sentences and submitted that no interference is called for by this court. 5.

The first and foremost question for adjudication before this court is as to what was the age of prosecutrix on 27/11/2000. 6.

PW1 Prakash says in para no. 2 of his statement given on oath on 15/03/2002 that age of the prosecutrix may be 15-16 years. 7.

PW 2 prosecutrix says in para 1 of her statement on 15/03/2002 that now her age is 16 years.

8.

PW 3 Hansa Bai who is mother of the prosecutrix says in para 2 of her statement given on oath that prosecutrix was born in Bhado month of 1986-1987.

9.

As per the photocopy of Dakhil kharij register Ex.P-3-C date of the birth of prosecutrix is 09/07/1986.

10.

As per the birth certificate Ex-P-4 the date of birth of the prosecutrix as per the school register is 09/07/1986. 11.

In Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) the Hon'ble Supreme Court observed in paras-14 and 15 as under: "14.....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.....

15. ...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...."

12.

In Babloo Pasi v. State of Jharkhand and Another (2008 AIR SCW 7332), Hon'ble Supreme Court in para 22 observed as under:- "22. Insofar as the Board is concerned, it is evident that 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 a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact.

It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially 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 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." 13.

It would be manifest to refer para-25 of the judgment of the Supreme Court in Sunil v. State of Haryana [2010 (1) SCC 742] which is extracted as under:- "25. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate

produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced." 14.

In Alamelu and another Vs. State represented by Inspector of Police, [(2011) 2 SCC 385], the Supreme Court held : "that the transfer certificate which is issued by a government school and is duly signed by 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 to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined." 15.

P.W. 1 Prakash, P.W. 2 prosecutrix, P.W. 3 Hansabai do not say the exact date of birth of the prosecutrix and reason therefor. 16.

P.W. 4 Hoshlal Ratre Assistant Teacher says in para 4 during his cross-examination that on the basis of transfer certificate of Government Primary School, Prithampur, prosecutrix was admitted in his school. He says in para 3 that on the basis of Dakhil kharij register he had given birth certificate Ex. P-4.

17.

In the case in hand, the prosecution failed to prove the entry of the aforesaid date of birth of prosecutrix in School Register at the time of admission and Declaration Form by examining the author of the same. Prosecution also failed to examine any person who had special means of knowledge of the aforesaid date of birth of prosecutrix which

he/she had informed at the time of said entry to the concerned authority which has been written in the declaration form and school register, that could have been main source of information for the date of birth of the prosecutrix. The prosecution failed to give any explanation as to why it was not done.

18.

In the case in hand Prosecution failed to conduct the ossification test of the prosecutrix to determine her age. 19.

Looking to the aforesaid facts and circumstances of the case, judicial precedents laid down by Hon'ble Supreme court in Birad Mal Singhvi (Surpa), Babloo Pasi (Supra), Sunil (Supra), Alamelu (Supra) this court disbelieves aforesaid statements of P.W. 1 Prakash, P.W. 2 Prosecutrix, P.W. 3 Hansabai, Ex. P-3-C, Ex. P-4 in the reference that on 27-11-2000, the prosecutrix was below the 18 years of age.

20.

After appreciation of the evidence discussed herebefore this Court finds that the prosecution has failed to prove that 27-11-2000 the age of prosecutrix was below 18 years.

21.

Now the second question for adjudication before this court is whether prosecutrix was allegedly a free consenting party. 22.

P.W.2 prosecutrix says in para no. 2 and 5 that appellant had taken her to Mungeli and Jhaki. They travelled in a bus from Mungeli to Jhaki. They stayed in the house of his maternal aunt. She had not complained to any person against him. Moreover this is the prosecution case that there was the love affair between them, P.W.5 Mahtaru alias Bhokle had asked them to return back at Mungeli but they refused. 23.

In Rajkumar Bajaj @ Raja v. State of C.G. [2012 (4) CGLJ 437] the learned Single Judge of this Court has observed in para-9 as

under :- "9. Minute examination of the evidence of the 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 that the prosecutrix lived in the house of Dhaniram (PW-4) along with accused Raja for five days and used to go out for answering the call of nature and fetching water from the hand pump but during this long period she, in spite of having full opportunity, did not make any complaint to anyone about her being confined by the accused/appellant Raja. This conduct of the prosecutrix also makes it clear that she was consenting party to the act of accused/appellant Raja. Now the only question is regarding her age. Prosecution has filed photocopy of the Kotwari register (Ex.

P-15-A) but event this document has not been proved by the prosecution in accordance with law. Original Kotwari register has not been produced in the Court by the prosecution nor there is any evidence to show as to on what basis the date of birth of the prosecutrix was entered in the said Kotwari register as 20.07.1980. Even the parents of the prosecutrix have not stated anything regarding the age of the prosecutrix. Moreover, the doctor (PW-8) who medically examined the prosecutrix has stated that she was a fully grown up woman.

24.

In Subelal v. State of M.P. (Now C.G.) [2011(4) CGLJ 424] in para-12 the learned Single Judge has observed as follows:- "12. Now we shall examine the conduct of the prosecutrix. The case of the prosecution is that the prosecutrix accompanied the appellant and she went from village Zoratarai to village Bhakara on his bicycle. From Bhakara, they boarded a bus and went to Dhamtari. Further, from Dhamtari, they went to village Utai to the house of the sister of the appellant, they again boarded a mini bus and went to Bhilai (Power House). The appellant took the prosecutrix to the house of his other sister who was residing in Bhilai. The prosecutrix alleges that she was subjected to forcible sexual intercourse by the appellant in the house of his sister.

Though the prosecutrix visited many places with the appellant, but she did not make any compliant and accompanied him in normal manner. This shows that she was not abducted and was not taken by force and she accompanied the appellant on her own will and it was not a case that the appellant committed sexual intercourse without her consent. Considering the evidence of age and conduct of the prosecutrix, I 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 out against the appellant."

25.

Looking to the above mentioned facts and circumstances of the case, Judicial Precedents laid down by learned Single judge of this court in the matter of Rajkumar Bajaj alias Raja (supra), Subelal (supra), this court finds that prosecutrix was free consenting party. 26.

Shri H.S. Ahluwalia counsel for the appellant placed reliance on decision of the Hon'ble Supreme Court in the matter of Kavita Chandrakant Lakhani -v- State of Maharashtra and another [(2018) 6 SCC 664], wherein it has been held that - "mere abduction does not bring accused under ambit of Section 366 I.P.C .It must be proved that accused abducted woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse." 27.

Looking to the above-mentioned facts and circumstances of the case this court finds that aforesaid Judicial precedent laid down by Hon'ble Supreme court in Kavita Chandrakant lakhani (supra) is applicable in favour of appellant regarding Section 366 I.P.C. 28.

Looking to the above mentioned facts and circumstances of the case this court finds that prosecution has failed to prove beyond reasonable doubt the charges punishable u/s 363, 366, IPC. Thus, trial

court committed illegality in convicting and sentencing appellant as aforesaid. Hence, the appeal is allowed. This Court acquits him of the charges punishable u/s 363, 366, IPC extending benefit of doubt to him. 29.

After expiration of prescribed period of legal remedy available to the party, the fine amount if deposited by the appellant be returned to him.

30.

The appellant is on bail. His bail bond stands discharged subject to the provisions contend in Section 437-A of the Cr.P.C Sd/- (Sharad Kumar Gupta) Judge Pathak