High Court allowed criminal appeal challenging conviction under Sections 363 and 366 IPC. Court held prosecution failed to prove prosecutrix was below 18 or that she was abducted against her will, acquitting the appellant.
Appellant acquitted of charges under Sections 363 and 366 IPC; bail discharged subject to provisions of Section 437-A Cr PC.
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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
| Sr. | Offence u/S. |
Sentence | In default of |
|---|---|---|---|
| No. | 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 |
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Both the substantive jail sentences have been directed to run concurrently.
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by the prosecution. He supported the aforesaid conviction and sentences and submitted that no interference is called for by this court.
“ 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,
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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....”
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.”
“ 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
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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.”
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.”
the exact date of birth of the prosecutrix and reason therefor.
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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.
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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. Though the record shows that prosecutrix was referred for x-ray for determination of age, there is no such report on record”
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.
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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.”
“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.”
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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.
Sd/( Sharad Kumar Gupta) Judge
Pathak
3 issues framed by the court
Whether the prosecution proved that the prosecutrix was below the age of 18 years on the date of the alleged incident.
Whether the prosecutrix was a free and consenting party to the alleged incident.
Whether the charges under Sections 363 and 366 IPC were proved beyond reasonable doubt.
Colour shows how this judgement treated each authority
Birad Mal Singhvi v. Anand PurohitExplained¶29
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Babloo Pasi v. State of JharkhandExplained¶29
Babloo Pasi v. State of Jharkhand and Another (2008 AIR SCW 7332) · Who else cites this
Sunil v. State of HaryanaExplained¶29
Sunil v. State of Haryana [2010 (1) SCC 742] · Who else cites this
Alamelu and another Vs. StateExplained¶29
Alamelu and another Vs. State represented by Inspector of Police, [(2011) 2 SCC 385] · Who else cites this
Rajkumar Bajaj @ Raja v. State of C.G.Followed¶35
Rajkumar Bajaj @ Raja v. State of C.G. [2012 (4) CGLJ 437]
Subelal v. State of M.P.Followed¶35
Subelal v. State of M.P. (Now C.G.) [2011(4) CGLJ 424]
Kavita Chandrakant Lakhani v. State of MaharashtraApplied¶37
Kavita Chandrakant Lakhani -v- State of Maharashtra and another [(2018) 6 SCC 664] · Who else cites this
2 provisions across 1 enactments
Jayaprakash son of Dude Prasad Sonwani
State of C.G.
Sharad Kumar Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
