Madhya Pradesh High CourtMansingh vs The State Of Madhya Pradesh on 28 September, 2021Author:Subodh AbhyankarBench:Subodh Abhyankar:1:                                        Cr.A. No.310-2017\n\n  THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE\n                                   SINGLE BENCH\n\n                          Criminal Appeal No. 310-2017\n\n                      Mansingh s/o Onkarsingh Mayda Bheel\n                                                     Vs.\n                                   State of Madhya Pradesh\n-----------------------------------------------------------------------------------------------\nCoram :                 Hon'ble Shri Justice Subodh Abhyankar\n----------------------------------------------------------------------------------------------------------------\n        Ms. Sangeeta Parsai, learned counsel for the appellant.\n        Shri Vismit Panot, learned Panel Lawyer for the counsel for the\nrespondent/State.\n----------------------------------------------------------------------------------------------------------------\n\n                          Whether approved for reporting : No\n\n\n                                            JUDGMENT(Delivered on 28 / 09 /2021)1.              The appellant has preferred the present appeal underSection 374of Cr.P.C., being aggrieved by judgment dated\n\n07/05/2016 passed by the Sessions Judge & Special Judge, District-\n\nRatlam in S.T. No.71/2017, whereby he has been convicted\n\nsentenced him as under:-Conviction                                                  Sentence\n  Section      Act                  Imprisonment                   Fine              Imprisonment in\n\n                                                                                         lieu of fine\n  363 (A)IPC3 Years RI                 1000/-                  6 months\n  5(L)(2)         POCSO               10 Years RI                 5000/-\n\n     r/w 6\n      342IPC6 months RI                                          02 years2.           In brief, the facts of the case are that on 6.8.2013, at around\n\n12 o' clock in the noon, when the prosecutrix,around 14 years of\n       :2:                         Cr.A. No.310-2017\n\nold was alone at her house as her parents had gone to the market,\n\nthe appellant came to her house and told her that he would marry\n\nher and also told her to come with him and as the prosecutrix\n\nrefused, he threatened her of dire consequences and thus, the\n\nappellant took her to Gram Sakad to his relatives where she was\n\nkept in a room for around 10 days where the appellant raped her.\n\nThereafter the appellant took her to Nimbaheda, Rajasthan where\n\nthey stayed together after he rented a room and where also she was\n\nsubjected to rape. The appellant had also told her that his father\n\nhas already paid the money for her as per their custom.3.          It is further the case of the prosecution that when the\n\nappellant was sleeping two days prior to the Deepawali, at that\n\ntime the prosecutrix slipped out of the house and came to her\n\nmother and father's village and thus, on 06.08.2013, the First\n\nInformation Report was lodged in the police station at Crime No.\n\n122/2013 under the aforesaid sections. It is not disputed that the\n\nprosecutrix also got pregnant during the time when she resided\n\nwith the appellant, which has also been proved by P.W.8 Dr. Preeti\n\nAgrawal.4.          Thus, the question before this Court that falls for\n\nconsideration is that whether the prosectrix was major at the time\n\nof the incident and whether she was also a consenting party.5.          So far as the age of the prosecutrix is concerned, the only\n\ndocument which is placed on record is the scholar register, Ex.P/6-\n\nC, mentioned as Chhatra ka Prashansa Patra proved by the P.W.\n      :3:                         Cr.A. No.310-2017\n\n6 Prakash Rawat, the Assistant Teacher in the Government Primary\n\nSchool Kuwanjhagar and according to this document, the\n\nprosecutrix's date of birth is 5.4.1999. Relying upon the aforesaid\n\ndocument, the learned Judge of the trial court has held that at the\n\ntime of incident i.e., on 06.08.2013, the prosecutrix was taken by\n\nthe appellant she was aged 14 years 14 months and one day.6.         So far as this document Ex.P/6-C is concerned, the date of\n\nbirth of the prosectrux is mentioned as 5.4.1999 and although there\n\nare some interpolations apparent but the said interpolation are\n\nhardly relevant as in the absence of any authentic document\n\nregarding the date of birth of the prosecutrix, this Court is of the\n\nconsidered opinion is that, this said document cannot be relied\n\nupon to determine the age of the prosecutrix. This Court also finds\n\nthat, P.W.4 Kunwaribai, mother of the prosectrix, has stated that\n\nshe got married around 18 years ago and she has four children and\n\nthe prosecutrix being the eldest one, was born after one and a half\n\nyears of her marriage . She has denied that the prosecutrix was 19\n\nyears old. P.W.5 Bahadur, father of the prosecutrix has stated that\n\nhis marriage was solemnized around 20 years ago and after two-\n\nthree years of their marriage, the prosecutrix was born in the house\n\nonly and he had also not given any intimation about her birth to the\n\nPanchayat. In such circumstances, in the absence of any reliable\n\ndocument on record to prove the date of birth of the prosecutrix, it\n\nis apparent that the prosecutrix's age can not be not 14 years and 4\n\nmonths as she appears to be over and above 18 years and as such it\n      :4:                                  Cr.A. No.310-2017\n\ncan be said that the prosecution has not been able to prove her age\n\npositively, to be below 18 years.                     Thus, it is held that the\n\nprosecutrix was above 18 years old at the time of the incident.7.         So far as the age of the prosecutrix is concerned, this\n\nCourt in the case of Narayansingh S/o Sajjansingh Sisodiya Vs.\n\nState of Madhya Pradesh (Criminal Appeal No.1100 of 2017)\n\ndecided on 31.5.2021 has held that :"7] Regarding the admissibility of the documents\n           proved in support of the age of the prosecutix and their probative\n           value, the Supreme Court in the case ofSatpal Singh v. State of\n\n           Haryana, (2010) 8 SCC 714 has held as under:-19. So far as the issue as to whether the prosecutrix was a major or\n           minor, it has also been elaborately considered by the courts below.In fact, the school register has been produced and proved by the\n           Headmaster, Mohinder Singh (PW 3). According to him, Rajinder\n           Kaur (PW 15), the prosecutrix, was admitted in Government\n           School, Sharifgarh, District Kurukshetra on 2-5-1990 on the basis\n           of school leaving certificate issued by Government Primary School,\n           Dhantori. In the school register, her date of birth has been recorded\n           as 13-2-1975. The question does arise as to whether the date of\n           birth recorded in the school register is admissible in evidence and\n           can be relied upon without any corroboration. This question\n           becomes relevant for the reason that in cross-examination, Shri\n           Mohinder Singh, Headmaster (PW 3), has stated that the date of\n           birth is registered in the school register as per the information\n           furnished by the person/guardian accompanying the students, who\n           comes to the school for admission and the school authorities do not\n           verify the date of birth by any other means.20. A document is admissible underSection 35of the Evidence Act,\n           1872 (hereinafter called as "theEvidence Act") being a public\n           document if prepared by a government official in the exercise of his\n           official duty. However, the question does arise as to what is the\n           authenticity of the said entry for the reason that admissibility of a\n           document is one thing and probity of it is different.21.InState of Bihar v. Radha Krishna Singh6this Court dealt with\n           a similar contention and held as under:"40. ... Admissibility of a document is one thing and its probative\n           value quite another--these two aspects cannot be combined. A\n           document may be admissible and yet may not carry any conviction\n           and weight or its probative value may be nil. ... (SCC p. 138, para40)53. ... where a report is given by a responsible officer, which is\n           based on evidence of witnesses and documents and has a statutory\n           flavour in that it is given not merely by an administrative officer but\n           under the authority of a statute, its probative value would indeed be\n           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\n           they may be, do not disclose sources of their information or have\n           not achieved sufficient notoriety is precious little. (SCC p. 171, para145)":5:                                    Cr.A. No.310-201722. Therefore, a document may be admissible, but as to whether the\n      entry contained therein has any probative value may still be required\n      to be examined in the facts and circumstances of a particular case.The aforesaid legal proposition stands fortified by the judgments of\n      this Court inRam Prasad Sharma v. State of Bihar; Ram Murti v.\n      State of Haryana Dayaram v. Dawalatshah;Harpal Singh v. State\n      of H.P.;Ravinder Singh Gorkhi v. State of U.P.;Babloo Pasi v. State\n      of Jharkhand;Desh Raj v. Bodh RajandRam Suresh Singh v.\n      Prabhat Singh. In these cases, it has been held that even if the entry\n      was made in an official record by the official concerned in the\n      discharge of his official duty, it may have weight but still may\n      require corroboration by the person on whose information the entry\n      has been made and as to whether the entry so made has been\n      exhibited and proved. The standard of proof required herein is the\n      same as in other civil and criminal cases. Such entries may be in any\n      public document i.e. school register, voters list or family register\n      prepared under the rules and regulations, etc.in force, and may be\n      admissible under Section 35 of the Evidence Act as held in Mohd.\n      Ikram Hussain v. State of U.P. and Santenu Mitra v. State of W.B.23. There may be conflicting entries in the official document and in\n      such a situation, the entry made at a later stage has to be accepted\n      and relied upon. (Vide Durga Singh v. Tholu.)24. While dealing with a similar issue inBirad Mal Singhvi v.\n      Anand Purohit, this Court held as under: (SCC p. 619, para 15)\n      "15. ... To render a document admissible underSection 35, three\n      conditions must be satisfied, firstly, entry that is relied on must be\n      one in a public or other official book, register or record; secondly, it\n      must be an entry stating a fact in issue or relevant fact; and thirdly, it\n      must be made by a public servant in discharge of his official duty, or\n      any other person in performance of a duty specially enjoined by law.\n      An entry relating to date of birth made in the school register is\n      relevant and admissible underSection 35of the Act, but entry\n      regarding to the age of a person in a school register is of not\n      much evidentiary value to prove the age of the person in the\n      absence of the material on which the age was recorded."25. A Constitution Bench of this Court, while dealing with a similar\n      issue inBrij Mohan Singh v. Priya Brat Narain Sinha, observed as\n      under: (AIR p. 286, para 18)\n       "18. ... The reason why an entry made by a public servant in a\n       public or other official book, register, or record stating a fact in\n       issue or a relevant fact has been made relevant is that when a public\n       servant makes it himself in the discharge of his official duty, the\n       probability of its being truly and correctly recorded is high. That\n       probability is reduced to a minimum when the public servant\n       himself is illiterate and has to depend on somebody else to make\n       the entry. We have therefore come to the conclusion that the High\n       Court is right in holding that the entry made in an official record\n       maintained by the illiterate chowkidar, by somebody else at his\n       request does not come withinSection 35of the Evidence Act."26.InVishnu v. State of Maharashtra20while dealing with a\n       similar issue, this Court observed that very often parents furnish\n       incorrect date of birth to the school authorities to make up the age\n       in order to secure admission for their children. For determining the\n       age of the child, the best evidence is of his/her parents, if it is\n       supported by unimpeccable documents. In case the date of birth\n       depicted in the school register/certificate stands belied by the\n       unimpeccable evidence of reliable persons and contemporaneous\n       documents like the date of birth register of the municipal\n       corporation, government hospital/nursing home, etc., the entry in\n       the school register is to be discarded.27. Thus, the entry in respect of age of the child seeking admission,\n       made in the school register by semi-literate chowkidar at the\n       instance of a person who came along with the child having no\n       personal knowledge of the correct date of birth, cannot be relied\n       upon.:6:                                   Cr.A. No.310-201728. Thus, the law on the issue can be summarised that the entry\n            made in the official record by an official or person authorised\n            in performance of an official duty is admissible underSection\n            35of the Evidence Act but the party may still ask the\n            court/authority to examine its probative value. The\n            authenticity of the entry would depend as to on whose\n            instruction/information such entry stood recorded and what\n            was his source of information. Thus, entry in school\n            register/certificate requires to be proved in accordance with\n            law. Standard of proof for the same remains as in any other\n            civil and criminal case.29. In case, the issue is examined in the light of the aforesaid\n            settled legal proposition, there is nothing on record to corroborate\n            the date of birth of the prosecutrix recorded in the school register. It\n            is not possible to ascertain as to who was the person who had given\n            her date of birth as 13-2-1975 at the time of initial admission in the\n            primary school. More so, it cannot be ascertained as who was the\n            person who had recorded her date of birth in the primary school\n            register. More so, the entry in respect of the date of birth of the\n            prosecutrix in the primary school register has not been produced\n            and proved before the trial court. Thus, in view of the above, it\n            cannot be held with certainty that the prosecutrix was a major. Be\n            that as it may, the issue of majority becomes irrelevant if the\n            prosecution successfully establishes that it was not a consent case.(emphasis supplied)\n\n              8]       A perusal of the aforesaid decision clearly reveals that\n              merely production of the scholar register in itself does not\n              tantamount to the proof of the age of the prosecutrix unless the\n              same is substantiated by some other unimpeachable evidence of\n              reliable persons and contemporaneous documents like the\n              date of birth register of the municipal corporation,\n              government hospital/nursing home, etc.\n      Learned Judge of the Trial Court has also relied upon the fact that the\n      documents produced by the prosecution in respect of age of the\n      prosecutrix, including Exhibit P/15(C) dated 12/06/2012 which is the\n      scholar register of the subsequent school of the prosecutrix, and it is\n      held that it is much prior to the date of offence in the year 2016,\n      hence, there is no reason to disbelieve the aforesaid document.In the\n      considered opinion of this Court, in the light of the aforesaid\n      decision in the case ofSatpal Singh(supra), the finding recorded by\n      the learned Judge of the Trial Court only on the basis of scholar\n      register cannot be countenanced in the eyes of law and thus, this\n      court finds that the prosecution has not been able to prove that the\n      prosecutrix was below the age of 18 years at the time of the\n\n      incident."(emphasis supplied as original)8.         So far as the consent of the prosecutrix regarding her stay\n\nand the relationship with the appellant are concerned, it is found\n      :7:                         Cr.A. No.310-2017\n\nthat the prosecutrix went missing on 6.8.2013 whereas the FIR to\n\nthis effect was lodged by the father of the prosecutrix only on\n\n06.11.2013 i.e. after around 2 moths, and there is no document\n\navailable on record to show that any attempt was made by the\n\nparents of prosecutrix to lodge her missing person report. Thus, it\n\nis apparent that the parents of the prosecutrix were well aware of\n\nthe prosecutrix's absconsion with the appellant.9.         So far as the conduct of the prosecutrix is concerned, she\n\nhas admitted that there were other houses also adjacent to her own\n\nhouse and she had walked from her house to another village with\n\nthe appellant which took them half an hour to reach their\n\ndestination. Thereafter, she travelled with the appellant in a public\n\ntransport bus to villege Nimbaheda and she has admitted that she\n\ndid not inform anybody that the appellant was forcibly taking her.\n\nFrom village-Nimbaheda they also went to village-Javad and she\n\nhas admitted that the appellant used to leave her at home while he\n\nused to go on work. Although she has also stated that when the\n\nappellant used to go out of his house he used to close the door\n\nfrom outside but it is an omission. She has also stated that even\n\nwhen she used to go to answer the natures call, at that time also the\n\nappellant used to accompany her          but this statement, in the\n\nconsidered opinion of this Court appears rather preposterous\n\nespecially when she has also admitted that she used to cook the\n\nmeal at the home. Although she has denied that when she came\n\nback to her father's house there were talks of compromise in the\n       :8:                         Cr.A. No.310-2017\n\nmatter and she has also denied that the compromise took place for\n\nconsideration of Rs.2 Lakhs which amount was given to her father.\n\nShe has also denied that she got pregnant and had an abortion.10.         Prosecutrix's mother Kunwaribai P.W.4 has also stated that\n\nshe has tried to lodge the missing person report of the prosecutrix\n\nbut it was not recorded. She has also admitted that 2-3 months\n\nprior to the present incident, the prosecutrix had eloped with the\n\npresent appellant only for which also a report was lodged at\n\nBangrod police station and she has denied that when her daughter\n\nfirst time eloped, she did not lodge any report. This clearly means\n\nthat the prosecutrix, on earlier occasion also had gone along with\n\nthe appellant. Although P.W.4 Kunwaribai has denied that there\n\nwas any agreement between them and has also denied that out of\n\nRs.2 Lakhs she has already received Rs.1.5 lakhs from the\n\nappellant's side in a village panchayat but the prosecutrix's father,\n\nP.W. 5 Bahadur has however admitted that there was a Panchayat\n\nwhen his daughter went away with the appellant but the girl was\n\nstill not returned.11.         The appellant, in his defence has also proved vide Ex.D/1\n\nby D.W.1 Tolaram, who has stated that the prosectutrix had gone\n\nwith the appellant on two occasions and thereafter there was an\n\nagreement with the Panchayat which is called Bhanjagada\n\n(agreement) on which various villagers had signed including the\n\nP.W.5 Bahadur, father of the prosecutrix. It is apparent that the\n\ndocument Ex.D/1 has not been put to the father of the prosexutrix,\n        :9:                         Cr.A. No.310-2017\n\nas he was examined on 11.8.20214 whereas the document is\n\nproved in the court on 6.10.2017.12.          Be that as it may, from the aforementioned discussion, it\n\nis apparent that the prosecutrix has travelled excessively with the\n\nappellant from the public transport including the bus and train as\n\nwell, which she has admitted in para 6 of her deposition. In such\n\ncircumstances, it is held that the prosecutrix was a consenting\n\nparty under the facts and circumstances of the case, this Court has\n\nno hesitation to come to a conclusion that the prosecutrix was\n\nmajor and was a consenting party.13.    In such circumstances, the conviction of the appellant cannot\n\nbe sustained and he is entitled to the benefit of doubt and is liable\n\nto be acquitted from the charges levelled against him.14.     Thus, the appeal stands allowed and the impugned judgment\n\ndated 07/05/2016 is hereby set aside. The appellant stands\n\nacquitted and he be released immediately from the jail, if he is\n\nnot required in any other case.(Subodh Abhyankar)\n                                                   Judge\n\n\nmoniDigitally signed by MONI RAJUDate: 2021.09.28 18:06:09+05'30':10:                           Cr.A. No.310-2017THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE\n                        Criminal Appeal No. 310-2017\n         ( Mansingh s/o Onkarsingh Mayda Bheel vs. State of Madhya Pradesh)\n\nIndore, Dated: 16/09/2021\n\n       Ms. Sangeeta Parsai, learned counsel for the appellant.\n       Shri Vismit Panot, learned Panel Lawyer for the\nrespondent/State.Arguments heard.Reserved for judgment.(SUBODH ABHYANKAR )\n                                                 JUDGE\n\n\n\nIndore, Dated: 28/09/2021\n\n          Judgment delivered, signed and dated.(SUBODH ABHYANKAR )\n                                                 JUDGE\n\n\n\nMoniDigitally signed by MONI RAJUDate: 2021.09.28 18:06:22+05'30'