The High Court allowed the appeal and set aside the conviction, holding that the prosecution failed to prove the prosecutrix's age or that forceful rape occurred, citing insufficient evidence regarding birth records and lack of injuries.
The judgment and order of conviction passed by the learned Court below are set aside and the appeal is allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IH THE H.IGH COURT OS' JUDICATURE ATsJAB&EPHR (H.P.)
CRIMINAL APPEAL HO. ^3%3_0f 1998.
•APPELL&NT
: CT-IAHDRIK& VXHSR RAJAK S/Q Eha-ri Sai, Age-19 years, ) R/o Vlilage-Juaapara,P.S.-Patna Distt.Sarguja; {N'o&' Korea) M.P.
( II<i JAIL )
VERSUS
RESPOKDENT!
The Sta.te of Madhya Pradesh through-P.S.-Patna.Oistt.Sarguja (Now Korea) !"I»F.
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erijainal a.ppeal ,u/s _374 (2) ,qf..y^_22^2-2£-£Ei£!lSSi Procedure s 1973.
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HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 2383 of 1998
Appellant Chandrika Kumar Rajak
VERSUS
Respondent The State of Madhya Pradesh (Now C.G.)
CRIMINAL APPEAL U/S. 374 (2) OF CRIMINAL PROCEDURE CODE
SB: Hon'ble Shri Goutam Bhaduri. J.
Present: Shri Shakti Raj Sinha, Advocate for the appellant.
Shri Gary Mukhopadhyay, Panel Lawyer for the State.
JUDGMENT
(Passed on 01st day of January, 2014)
Page2
of the prosecution that the prosecutrix was allured on the pretext of marriage by the accused. After having ran away with the accused, the prosecutrixwassubjectedtorape,whichshedidnotdisclosetoanyone and uttimately on 22.11.1997, the prosecutrix was left at one place named Katora, wherefrom she came back to her house. On the report having been made, crime was investigated and charge sheet was filed. During the course of trial, the accused denied the charges and claimed to be tried. During the course oftrial, the prosecution had examined as many as 19 witnesses and the learned Court below after conclusion of trial and evaluating the evidence came to a finding that the appellant accused has committed crime and thereby convicted him as aforesaid. Hence this appeal.
Page3
of the prosecutrix (PW-2) and went through the entire statement and submits that the prosecutrix remained with the accused from 15.11.1997 to 21.11.1997 and no resistance was made, therefore, this cannot be said that the prosecutrix was forcefully taken away from the lawful guardianship of her mother and father. He also referred to the statement of Santosh Kumar (PW-4), who has stated that when he saw the prosecutrix and the accused and tried to suggest them to go back, he was asked to leave the place, thereby the inference which could have been drawn that the prosecutrix was a consenting party to the entire incident. He further submits that the Doctor who was examined as PW-8 though has suggested to ascertain the age of the prosecutrix and referred for Radiology test, despite that the prosecution has not conducted such examination of prosecutrix and therefore the benefit of doubt was given to hold that the prosecutrix was major on the date of incident. He therefore submits that the entire finding arrived at by the learned Court below is bad, which cannot be sustained.
Per contra, the learned State counsel submits that the prosecutrix was a minor on the date of incident and she was enticed by the accused on the pretext of marriage and rape was committed on her. It is further submission of the State that the date of birth of the prosecutrix which is shown to be 27.05.1984 cannot be doubted since it was disclosed by the family members of the prosecutrix. He therefore submits that according to Ex.P-1, the date of birth of the prosecutrix, if is counted, she happened to be minor on the date of incident and therefore submitted that the order of the learned Court below iswell merited, which cannot be interfered.
Page4
Headmaster and had brought the entry register. He has further proved the mark sheet of the prosecutrix, which is marked as Ex.P-1, wherein the date of birth of the prosecutrix is shown to be 27.05.1994. The witness has stated that the date of birth in the mark sheet is recorded on the bas.is of the register maintained in the school.
The prosecution has examined the father of the prosecutrix as PW-1. He has stated that the date of birth of the prosecutrix is 27.05.1994 for which he had a school certificate, which is marked as Ex.P-1. The witness has further stated that he has recorded the age of the prosecutrix in the School.
One witness, Mohd. Ishaq Siddiqui, who has been examined as PW-10, has also stated that the age of the prosecutrix was 13-14 years and it was disclosed to him that the accused had enticed the prosecutrix and committed rape on the pretext of marriage. This witness in the crossexamination has said that the prosecutrix is the daughter of the younger brother of Bechu Singh, who was examined as PW-1. He has further stated that the father of the prosecutrix stays at U.P. and Bechu Singh (PW-1) did not have any child for which he had kept the daughter of his brother with him.
The Headmaster, who had been examined as PW-13, has proved the mark sheet, wherein the date of birth is registered, in the crossexamination, has said that whatever the date are being said by the parents at the time of admission that is being recorded in the register and no separate certificate is called for and on such submission the date of birth is recorded in register and the register were being countersigned by the guardian of the student. He has further stated in the cross-examination that he had brought the register with him, but it was not filled up in his presence. The said register has not been proved in the case.
age 5
^) / Page 6
expert medical report. The prosecutrix was neither referred to the Dental Surgeon or to the Radiotogist or both these opinions may be withheld from the Court. The Doctor in this case after the examination had referred the prosecutrixforRadiologicaltestbutthesamewhetherwas perirormedor not is not clear, which casts a suspicion on the prosecution version.
For determining the date of birth, only fact is available is Ex.P-1 i.e. the mark sheet. According to the statement of the witnesses, the said mark sheet is not the primary document, but the recording of the date of birth in such mark sheet was made on the basis of the date of birth register. The witness PW-13, who has proved the Ex.P-1 is not the person who made the entry. He has clearly stated that the date of birth is recorded on the basis of a register, which is countersigned by the parents when a student is admitted to the School. The evidence has come on record that PW-1 is not the actual father of the prosecutrix. Furthermore, who made the eniiy or who gave the date of birth to record it in the register is not clear. The suspicion looms large for the fact that despite the register was alive and available on the basis of which the date of birth was recorded, it was not placed before the Court so as to prove the entry by whom it was made or by whom it was countersigned. It was suppressed by the prosecution. So the fact is not clear that the entry made in the Ex.P-1 on the basis of a register, how it was registered and on what basis the date of birth was recorded.
"42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi v. Anand Pumhit (1988 Supp SCC 604) observed asfollows : (SCC pp. 618-19, para 14)
'(2011) 2 SCC 385
ts^Page 7
"14. ...... The date of birth mentioned in the scholars' registerhas no evidentiary value unless the personwhomadetheentryor who gavethedateof birth is examined. ...... Merely because the documents Exts. 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 Exts. 8, 9, 10,11 and 12 would not tantamount to proof of all the contents or the correctness of the date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Humki Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as producedbytheaforesaidtwowitnessesdoesnot furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be provedbyadmissibleevidencei.e.bytheevidenceof those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was producedbytherespondentto provethetruthofthe facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the afates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted."
"16. .... The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the'evidence of those persons who can vouchsafe for the truth of the facts in issue'."
Pa'ge
Page
and the fact that forceful rape was committed on her do not inspire confidence.
Sd/-
Goutam Bhaduri Judge
ashok
2 issues framed by the court
Whether the prosecution successfully proved the age of the prosecutrix to establish she was a minor.
Whether the prosecution established that forceful rape was committed and the minor was taken away from parental guardianship.
Colour shows how this judgement treated each authority
Alamelu & Another v. State represented by Inspector of PoliceReferred¶52
AIR 1941 SC 39 · Who else cites this
Birad Mal Singhvi v. Anand PumhitReferred¶53
(1988 Supp SCC 604) · Who else cites this
Narbada Devi Gupta v. Birendra JaisawalReferred¶57
[(2003) 8 SCC 745] · Who else cites this
Chandrika Kumar Rajak
State of Madhya Pradesh (Now C.G.)
Goutam Bhaduri
As recorded by the court registry
2 orders share this CNR
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