Madhya Pradesh High Court
Tijubai @ Omvati Bai vs The State Of Madhya Pradesh on 3 September, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:24955
1 Cr.A.No.382/2015
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
CRIMINAL APPEAL No. 382 of 2015
TIJUBAI @ OMVATI BAI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
...............................................................................................
Appearance:
Shri Nilesh Dave, learned counsel for the appellant No.1.
Shri Avinash Kumar Khare, learned counsel for the appellant No.2.
Shri Kamal Kumar Tiwari, learned Government Advocate for the
respondent/State.
..............................................................................................
Reserved on : 29/08/2024
Pronounced on : 03/09/2024
JUDGMENT
Per: Justice Binod Kumar Dwivedi
The present criminal appeal has been filed under Section 374 of the
Code of Criminal Procedure, 1973 by the appellants against the judgment of
conviction and sentence dated 09/03/2015 passed by the 1 st Additional
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Sessions Judge, Biaora, District Rajgarh in S.T. No.422/2013, whereby the
appellants have been convicted and sentenced as under :-
Conviction Sentence
Fine if
Imprisonment
Section Act Imprisonment deposited
in lieu of fine
details
120(b)(1) IPC 14 years R.I. Rs.1,000/- 6 months R.I.
363 IPC 7 years R.I. Rs.1,000/- 6 months R.I.
342 IPC 1 year R.I. Rs.500/- 1 month R.I
366 IPC 10 years R.I. Rs.1,000/- 6 months R.I.
506(II) IPC 3 years R.I. Rs.1,000/- 2 months R.I.
376(d) IPC L.I. Rs.10,000/- 1 Year R.I.
376(2)(N)
IPC L.I. Rs.10,000/- 1 Year R.I.
Appellant no.2
376(1)
IPC 10 years R.I. Rs.5,000/- 6 months R.I.
Appellant no.2
02. The prosecution story as having emerged during trial, briefly stated, is
that victim (PW-4) lodged report at Police Station Suthaliya, district Rajgarh
with regard to the fact that on 18.11.2013 at about 7:00 pm appellant – Tijubai
came to her house and took the victim to her house where appellant – Mahesh
was already present. As soon as she entered the house, Tijubai closed the door
and put the latch and thereafter, appellant – Mahesh closed her mouth and
committed rape on her and threatened her to kill if she disclosed the incident
to anyone. The victim informed about the incident to her mother (PW-10). On
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27/11/2013, the incident was report to the aforesaid police station where the
offence was registered at Crime No.242/2013 under Sections 376, 342, 506/34
of IPC and Section 3/4 of the Protection of Children from Sexual Offences
Act, 2012.
03. During investigation, victim was taken for medical examination to the
hospital at Rajgarh where she was examined by Dr. Shambhavi Soni
(PW-15). On medical examination, as per Ex.-P/7 she found that her hymen
was torn. Vaginal Slide was prepared and handed over to the concerned
Constable. The accused was examined by Dr.B.S.Shikariya (PW-3) and report
(Ex.-P/4) was prepared. The sealed articles were sent for FSL examination
vide Ex.-P/12 and FSL report (Ex.-P/1) was obtained. During investigation,
the accused/appellants were arrested vide arrest memos (Ex.-P/4) and (Ex.-
P/10). The sealed articles received from District Hospital, Rajgarh were seized
vide seizure memos (Ex.-P/5 and P/6). Spot map was prepared vide (Ex.-P/9
and P/11). Statement of the prosecution witnesses were recorded under Section
161 of Cr.P.C. and on completion of investigation, charge sheet was filed
before the Court of Magistrate of competent local jurisdiction who in turn
committed the case to the Court of Sessions and the trial commenced. Charges
as mentioned herein above were framed and read over to the appellants who
abjured the guilt and claimed to be tried.
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04. To prove the prosecution case, the prosecution examined as many as 16
witnesses and also marked documents (Ex.-P/1 to P/12). On examination
under Section 313 of Cr.P.C., the appellants claimed ignorance with regard to
most of the circumstances. They have also pleaded innocence and also
examined four witnesses namely Jagdish S/o Shankarlal (DW-1), Arun Jat
(DW-2), Sumitra Bai (DW-3) and Jagdish S/o Chhotelal (DW-4) in their
defence. The appellants have also marked documents (Ex.-D/1 to D/13). They
have specifically taken plea in their examination under Section 313 of Cr.P.C.
that they have been falsely implicated in the matter due to previous enmity.
The learned trial Court vide the impugned judgment convicted and sentenced
the appellants as mentioned herein above which is assailed in the present
appeal before this Court.
05. Learned counsel for the appellant – Mahesh has vehemently assailed the
impugned judgment on the following main grounds:- (i) the age of the victim
(PW-4) has not been ascertained having regard to the oral and documentary
evidence available on record. In support of his contention he has invited
attention of this Court towards the statements of Pratap Singh Mandloi (PW-
1), victim (PW-4), mother of the victim (PW-10) and Lekhraj (PW-16),
brother of the victim and the Scholar Register (Ex.-P/2) in this regard.
Assailing the finding with regard to the ascertainment of age and holding the
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victim as child, he has placed reliance on the judgment dated 23/06/2021 of
the co-ordinate Bench of this Court in Cr.A.No.1313/2017 wherein it has been
held as under:-
“12. Regarding the admissibility of the documents
proved in support of the age of the prosecutix and their
probative value, the Supreme Court in the case of Satpal
Singh v. State of Haryana, (2010) 8 SCC 714 has held as
under:-
19. So far as the issue as to whether the prosecutrix was a
major or minor, it has also been elaborately considered by the
courts below. In fact, the School Register has been produced
and proved by the Head Master, Mohinder Singh (PW 3).
According to him, Rajinder Kaur (PW 15), the prosecutrix, was
admitted in Government School, Sharifgarh, Dist. Kurukshetra
on 2.05.1990 on the basis of School Leaving Certificate issued
by Government Primary School, Dhantori. In the School
Register, her date of birth has been recorded as 13.02.1975. The
question does arise as to whether the date of birth recorded in
the School Register is admissible in evidence and can be relied
upon without any corroboration. This question becomes
relevant for the reason that in cross- examination, Sh. Mohinder
Singh, Head Master (PW 3), has stated that the date of birth is
registered in the school register as per the information furnished
by the person/guardian accompanying the students, who comes
to the school for admission and the school authorities do not
verify the date of birth by any other means.
20. 20. A document is admissible under Section 35 of the
Indian Evidence Act, 1872 (hereinafter called as `Evidence
Act’) being a public document if prepared by a government
official in the exercise of his official duty. However, the
question does arise as what is the authenticity of the said entry
for the reason that admissibility of a document is one thing and
probity of it is different.
21. In State of Bihar & Ors. Vs. Radha Krishna Singh &
Ors. AIR 1983 SC 684, this Court dealt with a similar
contention and held as under:-
“40. ………Admissibility of a document is one thing and its
probative value quite another – these two aspects cannot beSignature Not Verified
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combined. A document may be admissible and yet may not
carry any conviction and weight of its probative value may be
nil……(SCC p.138, para 40)
53……..Where a report is given by a responsible officer, which
is based on evidence of witnesses and documents and has “a
statutory flavour in that it is given not merely by an
administrative officer but under the authority of a Statute, its
probative value would indeed be very high so as to be entitled
to great weight. (SCC p.143, para 53)
145. (4) The probative value of documents which, however
ancient they may be, do not disclose sources of their
information or have not achieved sufficient notoriety is
precious little.(SCC p.171, para 145)”
22. Therefore, a document may be admissible, but as to whether
the entry contained therein has any probative value may still be
required to be examined in the facts and circumstances of a
particular case. The aforesaid legal proposition stands fortified
by the judgments of this Court in Ram Prasad Sharma Vs.
State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of
Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah
& Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of
Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi
Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of
Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh
Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat
Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these
cases, it has been held that even if the entry was made in an
official record by the concerned official in the discharge of his
official duty, it may have weight but still may require
corroboration by the person on whose information the entry
has been made and as to whether the entry so made has been
exhibited and proved. The standard of proof required herein is
the same as in other civil and criminal cases. Such entries may
be in any public document, i.e. school register, voter list or
family register prepared under the Rules and Regulations etc. in
force, and may be admissible under Section 35 of the Evidence
Act as held in Mohd. Ikram Hussain Vs. The State of U.P. &
Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West
Bengal AIR 1999 SC 1587.
23. There may be conflicting entries in the official document
and in such a situation, the entry made at a later stage has to be
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accepted and relied upon. (Vide Shri Raja Durga Singh of
Solon Vs. Tholu & Ors. AIR 1963 SC 361).
24. While dealing with a similar issue in Birad Mal Singhvi
Vs. Anand Purohit AIR 1988 SC 1796, this Court held as
under:- (SCC p.619, para 15)
“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 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.”
25. A Constitution Bench of this Court, while dealing with a
similar issue in Brij Mohan Singh Vs. Priya Brat Narain
Sinha & Ors. AIR 1965 SC 282, observed as under:- AIR
p.286, para 18)
“18…….The reason why an entry made by a public servant in a
public or other official book, register, or record stating a fact in
issue or a relevant fact has been made relevant is that when a
public servant makes it himself in the discharge of his official
duty, the probability of its being truly and correctly recorded is
high. That probability is reduced to a minimum when the public
servant himself is illiterate and has to depend on somebody else
to make the entry. We have therefore come to the conclusion
that the High Court is right in holding that the entry made in
an official record maintained by the illiterate Chowkidar, by
somebody else at his request does not come within Section 35
of the Evidence Act.”
26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283,
while dealing with a similar issue, this Court observed that very
often parents furnish incorrect date of birth to the school
authorities to make up the age in order to secure admission for
their children. For determining the age of the child, the best
evidence is of his/her parents, if it is supported by un-
impeccable documents. In case the date of birth depicted in the
school register/certificate stands belied by the un-impeccable
evidence of reliable persons and contemporaneous documents
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like the date of birth register of the Municipal Corporation,
Government Hospital/Nursing Home etc, the entry in the school
register is to be discarded.
27. Thus, the entry in respect of age of the child seeking
admission, made in the school register by semi-literate
chowkidar at the instance of a person who came along with the
child having no personal knowledge of the correct date of birth,
cannot be relied upon.
28. Thus, the law on the issue can be summerised that the
entry made in the official record by an official or person
authorised in performance of an official duty is admissible
under Section 35 of the Evidence Act but the party may still
ask the Court/Authority to examine its probative value. The
authenticity of the entry would depend as on whose
instruction/information such entry stood recorded and what
was his source of information. Thus, entry in school
register/certificate requires to be proved in accordance with
law. Standard of proof for the same remains as in any other
civil and criminal case.
29. In case, the issue is examined in the light of the aforesaid
settled legal proposition, 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 as 13.02.1975 at the
time of initial admission in the primary school. More so, it
cannot be ascertained as who was the person who had recorded
her date of birth in the Primary School Register. More so, the
entry in respect of the date of birth of the prosecutrix in the
Primary School Register has not been produced and proved
before the Trial Court. Thus, in view of the above, it cannot be
held with certainty that the prosecutrix was a major. Be that as
it may, the issue of majority becomes irrelevant if the
prosecution successfully establishes that it was not a consent
case.”
(ii) He has assailed the impugned judgment stating that it is a case of false
implication on the ground of previous enmity. To buttress his point, he has
invited attention of this Court towards the statement of victim (PW-4),
Lakhan (PW-6), mother of the victim (PW-10) and brother of the victim
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Lekhraj (PW-16). He has also emphatically pointed out that no acceptable
explanation has been given for lodging FIR by delay of 9 days. In this context
he has relied on the judgment of the Apex Court in the case of Satpal Singh
Vs. State of Haryana reported in AIR 2010 (SCW) 4951 wherein it has
been held has under:-
“13. In a rape case the prosecutrix remains worried
about her future. She remains in traumatic state of mind.
The family of the victim generally shows reluctance to go
to the police station because of society’s attitude towards
such a woman. It casts doubts and shame upon her rather
than comfort and sympathise with her. Family remains
concern about its honour and reputation of the
prosecutrix. After only having a cool thought it is possible
for the family to lodge a complaint in sexual offences.
(Vide Karnel Singh Vs. State of M.P. AIR 1995 SC
2472; and State of Punjab Vs. Gurmeet Singh & Ors.
AIR 1996 SC 1393).
14. This Court has consistently highlighted the reasons,
objects and means of prompt lodging of FIR. Delay in
lodging FIR more often than not, results in embellishment
and exaggeration, which is a creature of an afterthought.
A delayed report not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a coloured
version, an exaggerated account of the incident or a
concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its
veracity. Thus, FIR is to be filed more promptly and if
there is any delay, the prosecution must furnish a
satisfactory explanation for the same for the reason that in
case the substratum of the evidence given by the
complainant/informant is found to be unreliable, the
prosecution case has to be rejected in its entirety. [vide
State of Andhra Pradesh Vs. M. Madhusudhan Rao
(2008) 15 SCC 582].
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15. However, no straight jacket formula can be laid
down in this regard. In case of sexual offences, the criteria
may be different altogether. As honour of the family is
involved, its members have to decide whether to take the
matter to the court or not. In such a fact-situation, near
relations of the prosecutrix may take time as to what
course of action should be adopted. Thus, delay is bound
to occur. This Court has always taken judicial notice of
the fact that “ordinarily the family of the victim would not
intend to get a stigma attached to the victim. Delay in
lodging the First Information Report in a case of this
nature is a normal phenomenon” [vide Satyapal Vs. State
of Haryana AIR 2009 SC 2190].”
(iii) He has further submitted that as per the victim, her clothes got torn
during the incident, but the same has not been seized. In support of his
contention he has also invited attention of this Court to the medical
examination report (Ex.-P/7) and the FSL report (Ex.-P/1) obtained by the
prosecution. Learned counsel has relied on the judgment of Apex Court in the
case of Alamelu and another Vs. State Represented by Inspector of Police
reported in (2011) 2 SCC 385 wherein it has been held as under :-
“40. Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl’s date of birth was 15th June, 1977.
Therefore, even according to the aforesaid certificate, she
would be above 16 years of age (16 years 1 month and 16
days) on the date of the alleged incident, i.e., 31st July,
1993. The transfer certificate has been issued by a
Government School and has been duly signed by the
Headmaster. Therefore, it would be admissible in evidence
under Section 35 of the Indian Evidence Act. However,
the admissibility of such a document would be of not
much evidentiary value to prove the age of the girl in the
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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.
44. In our opinion, the aforesaid burden of proof has not
been discharged by the prosecution. The father says
nothing about the transfer certificate in his evidence. The
Headmaster has not been examined at all. Therefore, the
entry in the transfer certificate can not be relied upon to
definitely fix the age of the girl.
45. We are of the opinion, in the facts of this case, the
age of the girl could not have been fixed on the basis of
the transfer certificate. There was no reliable evidence to
vouchsafe the correctness of the date of birth as recorded
in the transfer certificate. The expert evidence does not
rule out the possibility of the girl being a major. In our
opinion, the prosecution has failed to prove that the girl
was a minor, at the relevant date.”
06. Learned counsel for the appellant – Tijubai has also taken the same line
of arguments as defence on behalf of the appellant – Mahesh and vehemently
argued that this is a case, glaring example of false implication on the ground
of previous enmity.
07. Sounding contra note, learned counsel for the respondent/State
supporting the impugned judgment submits that it has been passed on due
appreciation of evidence available on record. No substantial infirmity could be
pointed out by the appellant which warrant interference in the findings
recorded by the trial Court. He has repelled the contentions raised on behalf of
the appellants about the findings of the trial Court with regard to victim being
minor on the date of incident. Contentions as to previous enmity and lodging
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of false report as counter blast after undue delay has also been opposed. In this
regard, he submits that victim could muster courage to narrate the incident to
her mother only after appellant – Mahesh fled away from the village. On these
contentions, he prays for dismissal of the appeal as having no substance by
affirming the findings of conviction and sentence by the learned trial Court.
08. We have heard the rival contentions of the learned counsel for the
parties and have perused the record.
09. Before adverting to the merits of the case, proposition of law as
expounded by Hon’ble the Supreme Court of India and High Court of
Madhya Pradesh are to be taken note of. The Apex Court in the case of
Sidheswar Ganguly Vs. State of Web Bengal reported in AIR 1958 SC
143 : 1957 SCC Online SC 84, in para 10 has held as under:
“10. ………The learned Judge pointed out the several
items of evidence which had been adduced by the
prosecution bearing on the question of the girl’s age. The
only conclusive piece of evidence may be the birth
certificate, but, unfortunately, in this country such a
document is not ordinarily available. The Court or the
jury has to base its conclusion upon all the facts and
circumstances disclosed on examining all the physical
features of the person whose age is in question, in
conjunction with such oral testimony as may be
available. …….”
10. Further, the Apex Court in para 21 and 22 of Vishnu Vs. State of
Maharashtra reported in AIR 2006 SC 508 has held as under:
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“22. In the case of determination of the date of birth of the
child, the best evidence is of the father and the mother. In
the present case, the father and the mother, PW 1 and PW
13 categorically stated that PW 4 the prosecutrix was born
on 29-11-1964, which is supported by unimpeachable
documents, as referred to above in all material particulars.
These are the statements of facts. If the statements of facts
are pitted against the so-called expert opinion of the doctor
with regard to the determination of age based on
ossification test scientifically conducted, the evidence of
facts of the former will prevail over the expert opinion
based on the basis of ossification test. Even as per the
doctor’s opinion in the ossification test for determination
of age, the age varies. In the present case, therefore, the
ossification test cannot form the basis for determination of
the age of the prosecutrix on the face of witness of facts
tendered by PW 1 and PW 13, supported by
unimpeachable documents. Normally, the age recorded in
the school certificate is considered to be the correct
determination of age, provided the parents furnish the
correct age of the ward at the time of admission and it is
authenticated. In the present case, as already noted, the
parents had admitted to have given an incorrect date of
birth of their daughter, presumably with a view to make up
the age to secure admission in the school. Apart from this,
as noticed earlier, the school certificate collected by PW
15 SI Bagal was not an authenticated document. Nobody
was produced to prove the date of birth recorded in the
school certificate. The date of birth recorded in the school
certificate as 29-6-1963 is, therefore, belied by the
unimpeachable evidence of PWs 1 and 13 and
contemporaneous documents like date of birth register of
the Greater Bombay Municipal Corporation and the
register of the Nursing Home where the prosecutrix was
born and proved by Dr. Shashikant Awasare, as noted
above.”
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11. The Apex Court in the case of Madan Mohan Singh and Others Vs.
Rajni Kant and Another reported in (2010) 9 SCC 209 has further
reiterated the considerations to be kept in view while determining the age of
a person. Relevant para 19 to 22 are extracted herein below:
“19. Such entries may be in any public document i.e.
school register, voters’ list or family register prepared
under the Rules and Regulations, etc. in force, and may be
admissible under Section 35 of the Evidence Act as held in
Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC
1625 : (1964) 2 Cri LJ 590] and Santenu Mitra v. State of
W.B. [(1998) 5 SCC 697 : 1998 SCC (Cri) 1381 : AIR
1999 SC 1587]
20. So far as the entries made in the official record by an
official or person authorised in performance of official
duties are concerned, they may be admissible under
Section 35 of the Evidence Act but the court has a right to
examine their probative value. The authenticity of the
entries would depend on whose information such entries
stood recorded and what was his source of information.
The entries in school register/school leaving certificate
require to be proved in accordance with law and the
standard of proof required in such cases remained the same
as in any other civil or criminal cases.
21. For determining the age of a person, the best
evidence is of his/her parents, if it is supported by
unimpeachable documents. In case the date of birth
depicted in the school register/certificate stands belied by
the unimpeachable evidence of reliable persons and
contemporaneous documents like the date of birth register
of the Municipal Corporation, government
hospital/nursing home, etc., the entry in the school register
is to be discarded. (Vide Brij Mohan Singh v. Priya BratSignature Not Verified
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Narain Sinha [AIR 1965 SC 282] , Birad Mal Singhvi v.
Anand Purohit [1988 Supp SCC 604 : AIR 1988 SC
1796] , Vishnu v. State of Maharashtra [(2006) 1 SCC
283 : (2006) 1 SCC (Cri) 217] and Satpal Singh v. State of
Haryana [(2010) 8 SCC 714 : JT (2010) 7 SC 500] .)
22. If a person wants to rely on a particular date of birth
and wants to press a document in service, he has to prove
its authenticity in terms of Section 32(5) or Sections 50,
51, 59, 60 and 61, etc. of the Evidence Act by examining
the person having special means of knowledge,
authenticity of date, time, etc. mentioned therein. (Vide
Updesh Kumar v. Prithvi Singh [(2001) 2 SCC 524 : 2001
SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of
Punjab v. Mohinder Singh [(2005) 3 SCC 702 : AIR 2005
SC 1868] .)”
12. The Hon’ble Apex Court in the case of Jarnail Singh Vs. State of
Haryana reported in (2013) 7 SCC 263 in which it is mandated that the age
of victim is approximately 16 years which is less than 18 years. Parties
were at loggerheads on the aspect of determination of age, it is contended
before this Court that the prosecution has not properly proved the age of
victim. Nevertheless, the mark-sheet of High School Certificate (Ex.-P/8)
has been filed in this respect. Hon’ble the Apex Court in the case of Jarnail
Singh (supra) basing the rules of the Juvenile Justice (Care and
Protection of Children) Act, 2015, ordained that the age of prosecutrix
should be determined on the following grounds:-
“(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
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(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 one year.”
13. On this point, the Division Bench of this Court in the case of
Ramswaroop Vs. State of Madhya Pradesh 2023 Lawsuit (MP) 435 has
recently, after considering the catena of cases, viewed as under :-
“34. This is trite that a document becomes admissible
under Section 35 of Indian Evidence Act, if three
conditions are fulfilled. We have examined the Admission
Register and date of birth Register alongwith the
statement of Headmaster (PW-9) who produced them
before the Court below. We are satisfied that (i) entry
relating to date of birth was made in the Register in
discharge of public duty (ii) the entry states a relevant fact
and (iii) the entry was made by a public servant in
discharge of his official duty. Thus, School Register is a
relevant and admissible document as per Section 35 of the
Act. The School Register was held to be admissible for the
purpose of determination of age in the later judgments of
Supreme Court in Shah Nawaz, Ashwani Kumar Saxena,
Mahadeo and Ram Suresh Singh (supra).
35. Pertinently, in Ashwani Kumar Saxena (supra), the
Apex Court made it crystal clear that Admission Register
of the school in which a candidate first attended, is a
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birth. It was poignantly held that the argument that parents
could have entered a wrong date of birth in the Admission
Register is erroneous because parents could not have
anticipated at the time of entry of date of birth that their
child would commit a crime or subject to a crime in
future.”
14. In the case of Desh Raj Vs. Bodh Raj reported in AIR 2008 SC 632
in para 25 and 26 has held as under:
“25. Section 35 of the Evidence Act provides that an
entry in any public or other official book or register or
record, stating a fact in issue or relevant fact and made by
a public servant in the discharge of his official duty or by
any other person in performance of a duty specifically
enjoined by law of the country in which such book or
register is kept, is itself a relevant fact. Having regard to
the provisions of Section 35, entries in school admission
registers in regard to age, caste, etc. have always been
considered as relevant and admissible. (See Umesh
Chandra v. State of Rajasthan [(1982) 2 SCC 202 : 1982
SCC (L&S) 200 : 1982 SCC (Cri) 396] and State of
Punjab v. Mohinder Singh [(2005) 3 SCC 702] .) In
Madhuri Patil v. Addl. Commr. Tribal Development
[(1994) 6 SCC 241 : 1994 SCC (L&S) 1349 : (1994) 28
ATC 259] this Court observed that caste is reflected in
relevant entries in the public records or school or college
admission register at the relevant time and certificates are
issued on its basis. In Birad Mal Singhvi [1988 Supp SCC
604 : AIR 1988 SC 1796] this Court after referring to the
ingredients of Section 35 held thus: (SCC pp. 619-21,
paras 15 & 17)
“15. … 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
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which the age was recorded. …
***
17. … The entries regarding dates of birth
contained in the scholar’s register and the
secondary school examination have no probative
value, as no person on whose information the
dates of birth of the aforesaid candidates was
mentioned in the school record was examined.
In the absence of the connecting evidence the
documents produced by the respondent, to prove
the age of the aforesaid two candidates have no
evidentiary value.”
26. This Court further held that unless the parents, or
persons conversant with their date of birth were examined,
the entry in the school register by itself will not have
much evidentiary value. In this case, we are concerned
with the “caste” and not the date of birth. The residents of
a village have more familiarity with the “caste” of a co-
villager than the date of birth of the co-villager. Several
villagers who knew the respondent and their father,
including a cousin of the respondent has been examined
and they have stated the caste of the respondent. The
appellant has also produced other documentary evidence
which clinch the issue, namely, the application made by
the respondent’s father for admission of the respondent to
school, birth register extract and Village Pariwar Register
extracts to establish the caste of the respondent. Further
the said entries in the school register were made nearly
forty years prior to the election petition. When read with
other oral and documentary evidence, it cannot be said
that Ext. PW 2-A has no evidentiary value even by
applying the strict standards mentioned in Birad Mal
Singhvi [1988 Supp SCC 604 : AIR 1988 SC 1796].”
15. The Apex Court in the case of Jyoti Prakash Rai Vs. State of Bihar
reported in AIR 2008 SC 1696 in para 21 has held as under:
“21. In Ravinder Singh Gorkhi v. State of U.P. [(2006) 5
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SCC 584 : (2006) 2 SCC (Cri) 632] it was held : (SCC p.
591, para 21)
“21. Determination of the date of birth of
a person before a court of law, whether in a civil
proceeding or a criminal proceeding, would
depend upon the facts and circumstances of each
case. Such a date of birth has to be determined
on the basis of the materials on records. It will
be a matter of appreciation of evidence adduced
by the parties. Different standards having regard
to the provision of Section 35 of the Evidence
Act cannot be applied in a civil case or a
criminal case.”
It was furthermore held : (Ravinder Singh Gorkhi
case [(2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632] , pp.
595-96, paras 38-40)
“38. The age of a person as recorded in the
school register or otherwise may be used for
various purposes, namely, for obtaining
admission; for obtaining an appointment; for
contesting election; registration of marriage;
obtaining a separate unit under the ceiling laws;
and even for the purpose of litigating before a
civil forum e.g. necessity of being represented in
a court of law by a guardian or where a suit is
filed on the ground that the plaintiff being a
minor he was not appropriately represented
therein or any transaction made on his behalf was
void as he was a minor. A court of law for the
purpose of determining the age of a party to the
lis, having regard to the provisions of Section 35
of the Evidence Act will have to apply the same
standard. No different standard can be applied in
case of an accused as in a case of abduction or
rape, or similar offence where the victim or the
prosecutrix although might have consented with
the accused, if on the basis of the entries made in
the register maintained by the school, a judgment
of conviction is recorded, the accused would be
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deprived of his constitutional right under Article
21 of the Constitution, as in that case the accused
may unjustly be convicted.
39. We are, therefore, of the opinion that until the
age of a person is required to be determined in a
manner laid down under a statute, different
standard of proof should not be adopted. It is no
doubt true that the court must strike a balance. In
case of a dispute, the court may appreciate the
evidence having regard to the facts and
circumstances of the case. It would be a duty of
the court of law to accord the benefit to a
juvenile, provided he is one. To give the same
benefit to a person who in fact is not a juvenile
may cause injustice to the victim. In this case,
the appellant had never been serious in
projecting his plea that he on the date of
commission of the offence was a minor. He made
such statement for the first time while he was
examined under Section 313 of the Code of
Criminal Procedure.
40. The family background of the appellant is
also a relevant fact. His father was a ‘Pradhan’ of
the village. He was found to be in possession of
an unlicensed firearm. He was all along
represented by a lawyer. The court estimated his
age to be 18 years. He was tried jointly with the
other accused. He had been treated alike with the
other accused. On merit of the matter also the
appellant stands on the same footing as the other
accused. The prosecution has proved its case. In
fact no such plea could be raised as the special
leave petition of the persons similarly situated
was dismissed when the Court issued notice
having regard to the contention raised by him for
the first time that he was a minor on the date of
occurrence.”
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16. In the case of Satpal Singh Vs. Stae of Haryana reported in (2010)
8 SCC 714 also it has been held that the entry made in official record by the
official or person authorized in performance of his official duty is
admissible under Section 35 of the Evidence Act but the party may still ask
the Court/authority to examine its probative value. The authenticity of the
entry would depend as to on whose instruction/information such entry stood
recorded and what was his source of information.
17. The Division Bench of our own High Court in the case of Shudha
Vs. Charan Singh and Another reported in 2007(II) MPWN 118 has held
that where in school record no basis of mention of date of birth disclosed,
cannot be relied upon. Relevant para 7 is extracted herein below:
“The prosecution has heavily relied on the entry in school
register about age of the prosecutrix i.e., 1.6.1989, but
prosecution has failed to lead any evidence as to who, and
on what basis, this date_of birth disclosed before the
school authority. The father of the prosecutrix Kanhyala
(PW 4) has admitted that he did not get ‘Janpatri’ of the
prosecutrix prepared and also not having in writing the
date of birth of the prosecutrix. He also admitted that at
the time of birth of the prosecutrix, the intimation was not
given to village Kotwar, Sarpanch, or village chowkidar.
He has stated that prosecutrix was taken to school for
admission by his brother Radheshyam (PW 6), but as
discussed herein above, PW6 Radheshyam’s statement is
completely silent on this issue. Kanhyalal (PW 4) is not
able to give his own date of birth and date of birth of other
children. In the light of these factual situations,
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birth of the prosecutrix in the school register and in our
considered view, the learned trial Court, after detailed
evaluation of evidence has given correct finding about age
of the prosecutrix and prosecution has failed to discharge
this burden by adducing cogent and reliable evidence.”
18. From perusal of the aforesaid proposition of law as laid down by our
own High Court as by the Apex Court, it is apparent that the evidence of
parents with regard to the age of child, if supported by relevant document
like birth certificate issued by Municipal Corporation, is the best evidence.
In absence of the above, other relevant factors including oral evidence is to
be considered.
19. In the instant case, it is undisputed that no documentary evidence
except Scholar Register (Ex.-P/2) has been placed on record for
ascertaining the age of the victim (PW-4). To prove Scholar Register (Ex.-
P/2), Pratap Singh Mandloi (PW-1), on 02/12/2013 who was posted as
Head Master at Government Primary School, Haasrod where the victim was
admitted for schooling, has been examined by the prosecution. He has
stated that on 08/07/2008 the victim was admitted in School by his mother
(PW-10). In this Scholar Register her date of birth has been mentioned as
05/06/2001. This document has been verified by him on 02/12/2013 bearing
his signatures between letters ‘A’ to ‘A’. In para 3 to 5 of his cross-
examination he has admitted that on the date of admission of the victim no
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document with regard to proof of her age was submitted. Age mentioned in
Scholar Register (Ex.-P/2) might be wrong. In para 5 of cross-examination,
this witness has admitted that mother of the victim (PW-10) was not in a
position to give information about date of birth of the victim, therefore, he
on his own estimation has mentioned date of birth of victim in Ex.-P/2.
Thus, it is apparent that the date of birth of the victim in Scholar Register is
purely based on guess work of Pratap Singh Mandloi (PW-1).
20. The mother of the victim (PW-10) in para 14 of cross-examination
has also admitted that she did not got recorded date of birth of the her
daughter / victim, in the school. Teacher might have recorded her date of
birth. This admission of mother of the victim also corroborates testimony of
Pratap Singh Mandloi (PW-1). No basis of mentioning of date of birth is
disclosed in Scholar Register (Ex.-P/2). In light of the judgments in the case
of Shudha (Supra), Sidheswar Ganguly (Supra), Vishnu (Supra),
Madan Mohan Singh (Supra), Jarnail Singh (Supra), Ramswaroop
(Supra), Desh Raj (Supra), Jyoti Prakash Rai (Supra) and Satpal Singh
(Supra) no probative value can be attached to this document.
21. As far as oral evidence is concerned, the mother of the victim (PW-
10) in para 4 of her cross-examination has admitted that she could not
remember the date of birth of the victim. She has further stated that she was
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married 30-35 years ago (date of recording of statement of this witness is
25/09/2014). She has also admitted that after three years of marriage, her
son Lekhraj (PW-16) was born. She has also admitted that after two years
of of birth of Lekhraj (PW-16) victim was born. On the basis of statement
of this witness (PW-10) it appears that victim was born near about 25 years
before the date of statement i.e. 25/09/2014 of PW-1. On the basis of this
statement, by no stretch of imagination, the victim can be held below 18
years on the date of incident i.e. on 18/11/2013.
22. Victim (PW-4) though in answer to second question before the first
paragraph during examination before the Court has mentioned her date of
birth 05/06/2001 but in para 5 of cross-examination she has admitted that
her parents are illiterate and no mark sheet or birth certificate is available
with regard to her date of birth. In para 17 of cross-examination she has also
admitted that her father committed suicide near about 25 years back.
Further she has stated that on the date of death of her father she was in lap
and has not started even to walk. Death of father of the victim occurred 25
years back (date of recording of statement of this witness is 08/05/2024)
finds corroboration from para 15 of the statement of Lekhraj (PW-16),
brother of the victim. Thus, it is manifest that she was born before the date
of death of her father.
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23. The brother of victim Lekhraj (PW-16) in para 1 of his examination-
in-chief has stated that the victim is his younger sister of about 10-12 years
of age. He has also admitted that his sister Mausam Bai just younger to him
is 17 years of age. On first page of statement of this witness before the
Court, in witness details his age is mentioned as 13 years. In para 5 of his
cross-examination, he has admitted that his age is 18 years. The above
material contradictions with regard to age of this witness falsify his
statement with regard to his age and the age of victim, his younger sister.
Therefore, statement of this witness with regard to the age of victim is not
reliable as it does not found support from the statements of any other
witnesses or from any documents. Trial Court has also committed grave
error in placing reliance on entry in Scholar Register (Ex.-P/2), which is
otherwise not reliable as mentioned herein above.
24. In view of the aforesaid discussion, finding of the trial Court in para
27 of the impugned judgment that on the date of incident 18/11/2023
victim was below 16 years of age is erroneous in teeth of the evidence
available on record and cannot be upheld. Thus, we are of the opinion that
prosecution utterly failed to prove that victim was a child below the age of
18 years on the date of incident.
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25. In view of the above finding of this Court with regard to the age of
victim on the date of incident, the conviction of appellants for the offence
under Section 363 of IPC and Section 6 of POCSO Act fails as victim has
not been found to be age of below 18 years. The above offences are
attracted only when the victim is minor.
26. The appellants have also been convicted under Section 366 of IPC,
which is extracted herein below:
“366. Kidnapping, abducting or inducing woman
to compel her marriage, etc.- Whoever kidnaps or
abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, 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, shall be punished
with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine;
[and whoever, by means of criminal intimidation as
defined in this Code or of abuse of authority or any other
method of compulsion, induces any woman to go from any
place with intent that she may be, or knowing that it is
likely that she will be, forced or seduced to illicit
intercourse with another person shall also be punishable as
aforesaid.]”
27. No evidence is available on record to the effect that victim was
kidnapped or abducted by the appellant Tijubai with an intent that she may
be compelled, or knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she may be forced or
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seduced to illicit intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse, but no evidence in this regard is
available in the instant case.
28. Victim (PW-4) herself stated that on the date of alleged incident she
was at her home when appellant Tijubai @ Omvati Bai came and took her
to her house where the alleged incident of rape happened. Even an iota of
evidence is not available on record that victim was seduced and taken away
by the appellant Tijubai. Similarly except bald singular statement of the
victim, no evidence is available to attract the offence of intimidation as
enshrined under Section 506-II of IPC. Hence, in absence of any evidence
conviction under Section 366 and 506-II of IPC can also not found stamp of
approval of this Court.
29. The contentions of learned counsel for the appellant assailing the
finding of conviction and sentence in the impugned judgment with regard to
the offence under Section 342 and 376(d) of IPC are that this case is glaring
example of false implication on the ground of previous enmity. No incident
of rape as alleged has taken place. To buttress his point, learned counsel has
invited attention of this Court towards belated FIR (Ex.-P/3). Date of
alleged incident in the instant case is 18/11/2013 and date of lodging of FIR
is 27/11/2013. Learned counsel submitted that FIR is lodged after a delay of
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about nine days and no satisfactory explanation has been offered by the
prosecution with regard to the delay in lodging the FIR.
30. In this regard learned counsel has drawn attention of this Court
towards another FIR (Ex.-D/12) registered at Crime No.245/2013 at Police
Station Suthaliya against Lakhan (PW-6), Lekhraj (PW-16) and other five.
It has been submitted that when this FIR (Ex.-D/12) was registered against
the complainant side i.e. Lokesh (PW-6) and brother of the victim Lekhraj
(PW-16) for incident which took place at about 07:00 pm on 18/11/2013.
He submits that as a counter blast FIR (Ex.-P/3) in the present case has been
lodged. It has also been submitted that brother of victim Radheshyam was
prosecuted for offence of arson and was convicted for that. Due to this
previous enmities, instant case has been lodged against the appellants on
false grounds to settle the score against the appellants.
31. It is no longer res integra that delay in lodging of FIR if not properly
explained dents prosecution case. It is true that in cases of rape family takes
some time before lodging FIR as prestige of family and victim as well is on
stake, but the explanation given must be reliable specially in cases where
previous enmity exists between the parties. In the Instant case as per FIR
Ex.P-3, incident allegedly took place on 18/11/2013 at about 7:00 pm and
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FIR was lodged on 27/11/2013. The reason for delay in lodging FIR has
been assigned as threat of life from the appellant – Mahesh to the victim.
32. The mother of the victim (PW-10) and brother of victim (PW-16)
have stated in their statements before the Court that after the incident, the
victim narrated the incident to them only after appellant – Mahesh has fled
away from the village, but no reliable evidence has been brought on record
in this regard as to when appellant – Mahesh left the village. Mother of the
victim (PW-10) in her examination-in-chief in para 2 has stated that victim
was left after 1½ hours of the incident and when she returned back to home,
she was not taking food and used to cry and when she was enquired about
the reason of unusual behaviour, she stated that appellant – Mahesh has
committed rape on her. In para 10 of cross examination mother of the
prosecutrix (PW-10) has stated that on the date of incident when she and her
son (PW-16) returned from the field between 12:00 pm to 01:00 am in the
night, the victim was sleeping. On the next day after taking food she left for
school and returned from there at about 04:00 pm and after that she was
performing the household chores. This continued for 8-10 days. She usually
went to school and participated in the household chores. This statement
belies her statement given in para 2 where this witness has stated that after
the incident victim was not taking food properly and behaved abnormally.
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33. Looking to para 10 of the statement of mother of the prosecutrix
(PW-10), statement of her son (PW-16) also comes under suspicion and
does not inspire confidence with regard to unusual conduct of the victim
after the incident. Therefore, we are not inclined to accept the explanation
that after the incident due to shock and trauma, the victim was behaving
abnormally and therefore, she did not narrate the incident to these witnesses
caused delay in lodging of FIR.
34. FIR Ex.-D/12 lodged at the instance of Sumitrabai against Lakhan
(PW-6) and Lekhraj (PW-16) along with 5 other persons has been placed on
record to show that complaint party had attacked and vandalized the house
of the complainant. FIR (Ex.-D/12) was lodged on 27/11/2013 for the
incident which took place at 7:30 am and same day after this FIR, as a
counter blast, FIR (Ex.P/3) of rape on victim has been lodged against the
appellants on the same date i.e. 27/11/2013 at 11:10 am.
35. Harishankar Bhargav (PW-2) Sub Inspector, who has proved the FIR
(Ex.-P/3) of the instant case has also admitted in cross examination para 3
that at the instance of Jagdish S/o Shankarlal Mehar r/o Haasrod FIR
(Ex.D/6) under Section 436/34 of IPC and Section 3(2) 3 of SC/ST Act was
registered against brother of the victim (PW-16). Mother of the victim (PW-
10) in cross examination in para 7 has admitted that she knows Lakhan
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(PW-6) Sarjansingh, Udaysingh, Mangu, Lakhan S/o Kaluji and
Radheshyam. She has further stated that Radheshyam is brother and others
are her jeth and dewar. She has also admitted that at the instance of mother
of appellant – Mahesh, a report (Ex.-D/12) was lodged at police station
Suthaliya against her dewar and jeth, son and brother. Sub Inspector
Harishankar Bhargav (PW-2), who has proved the FIR (Ex.-P/3) against the
appellants has also admitted in para 3 of cross-examination that an FIR at
the instance of Jagdish S/o Shankarlal (DW-1) resident of Haasrod under
Section 436/34 of IPC and Section 3 (2) 3 of SC/ST Act was registered
against the Radheshyam (brother of PW-10, mother of the victim) and
brother of the victim (PW-16). It is also admitted that Radheshyam has been
convicted in this case on arson. The defence witness Jagdish has also
proved that there was previous enmity between the appellants and the
complaint on the aforesaid grounds.
36. In view of the above evidence, arguments advanced on behalf of the
appellants that they have been falsely implicated in this case to settle the
score has substance. It can also be noted that as per the victim when she
entered in the house of Tijubai, who locked the door with latch and
appellant – Mahesh who was already present there had taken to her to the
first floor of the house where he committed rape upon her. She has stated in
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para 12 that her clothes got torn in the incident but the clothes have not
been produced before the Investigating Officer for seizure which was
substantial piece of evidence. In para 11 the victim has further admitted that
when appellant – Mahesh was taking her to the upper floor, her mouth and
hands were open, but no signs of scuffle have been found on the person of
the victim during the medical examination or on the person of the appellant
– Mahesh. Even though the victim has stated that when she was taken to the
upper floor by appellant – Mahesh, she loudly raised hue and cry, but this
statement is also not found reliable, as the place of incident i.e. the house of
the appellant Tijubai and Mahesh is in the vicinity of the house of the
victim from where if loud alarm is raised, will be heard in the house of the
victim, as has been admitted by mother of the victim (PW-10) in para 9 of
the cross examination. Therefore, it is not reliable that the victim raised
alarm at the time of incident and despite that none appeared to save her.
37. Dr. Shambhavi Soni (PW-15) who had medically examined the victim
has stated that she did not notice any mark of injury on the person of the
victim. Hymen was old torn. Vagina was permitting 2 fingers. There were
no injuries on the internal part. In such circumstances, she opined that no
definite opinion can be given about the sexual intercourse with the
appellant. In medical examination, no recent sexual activity has been
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 04-09-2024
15:43:12
NEUTRAL CITATION NO. 2024:MPHC-IND:24955
33 Cr.A.No.382/2015
noticed. In FSL examination, presence of sperm have not been found in
vaginal slide Article A and underwear, salwar and Kurta Article C1, C2, C3
of the victim. When this medical examination report (Ex.P/7) and FSL
report Ex.P-1 is read conjointly with the evidence available on record with
regard to the lodging of FIR by explaining undue delay and previous enmity
of high degree between the family of the victim and the appellants, it makes
amply clear that prosecution utterly failed to prove that the incident of
commission of rape took place as alleged in the FIR (Ex.-P/3).
38. In view of the aforesaid, we are of the opinion that the prosecution
utterly failed to prove the charges of offence as levelled against the
appellants. The learned trial Court did not take cognizance of the aforesaid
infirmities in the prosecution case as surfaced in the evidence adduced,
therefore, the finding of conviction of the appellants with regard to the
offfence under Sections 120(b)(1), 363,342,366,506(II), 376(d),376(2)(N),
376(1) of IPC is highly vulnerable and cannot be sustained.
39. Resultantly, the appeal succeeds and is hereby allowed by setting
aside the judgment of conviction and sentence for offence under Sections
120(b)(1), 363, 342, 366, 506(II), 376(d), 376(2)(N), 376(1) of IPC and
Section 6 of Protection of Children from Sexual Offences Act, 2012 and the
appellants are acquitted of the charges. Fine amount, if any, deposited by
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 04-09-2024
15:43:12
NEUTRAL CITATION NO. 2024:MPHC-IND:24955
34 Cr.A.No.382/2015
the appellants be refunded to them. The appellant No.2 is in jail. He be
released forthwith, if not required in any other case. The bail bond of
appellant No.1 is discharged.
40. A copy of judgment along with record be sent back to the concerned
Court for compliance. A copy of the judgment be also sent through fastest
mode to the concerned jail for necessary action and compliance.
41. Interlocutory application, if any, stands closed.
Certified copy as per rules.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI )
JUDGE JUDGE
RJ
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 04-09-2024
15:43:12