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Madhya Pradesh High Court · body

2008 DIGILAW 981 (MP)

VINOD KUMAR v. STATE OF M. P.

2008-08-06

S.A.NAQVI

body2008
Judgment S.A. NAQVI, J. ( 1. ) Challenge is to the judgment dated 18.02.1994 passed by Additional Sessions Judge, Dindori, District Mandla in S.T. No. 87/91 whereby the appellant Vinod Kumar has been convicted u/s 366A and 376 of the IPC and sentenced to suffer 5 years rigorous imprisonment and fine of Rs.1,000/- and 7 years rigorous imprisonment and fine of Rs.1,000/- in default 6 months rigorous imprisonment to each count. ( 2. ) The case of the prosecution, in short, is that on 14.1.1991 at about 8-9 p.m. Prosecutrix (PW 7) went to call of nature. She was returning back to her house. On way to the house the appellant Vinod Kumar caught her hold and took her forcibly to Amarkantak road. Next morning the appellant took the prosecutrix by bus to Amarkantak and then Anooppur. The appellant kept prosecutrix in his rented house. The appellant committed rape with the prosecutrix in the house. He committed rape with prosecutrix for three days and three nights. Ram Gopal her cousin and brother-in-law rescued her and took her to Manikpur. FIR was lodged on 8.2.1991 in police station Samnapur. Prosecutrix was medically examined, she was x-rayed. Slides were prepared from her vaginal smear. Her sari was seized. Seized articles were sent for chemical analysis. Statements of witnesses were recorded u/s 161 of Cr.P.C. After completion of investigation, the appellant was charge-sheeted. The case was committed to the courts of session for trial. ( 3. ) Learned trial Court framed charge u/s 366A and 376 of IPC. The appellant abjured the guilt and pleaded innocent and false implication. His defence is that due to enmity he has been falsely implicated. ( 4. ) Prosecution examined 10 witnesses. The appellant examined 3 witnesses in defence. After hearing learned counsel for both the parties, perusing the evidence and material on record, learned trial Court convicted the appellant u/s 366A and 376 of IPC and sentenced him hereinabove mentioned. The appellant has preferred the appeal being aggrieved of the impugned judgment. ( 5. ) I have heard learned counsel for both the parties, perused the impugned judgment, evidence and material on .record. ( 6. The appellant has preferred the appeal being aggrieved of the impugned judgment. ( 5. ) I have heard learned counsel for both the parties, perused the impugned judgment, evidence and material on .record. ( 6. ) Learned counsel for the appellant vehemently argued that document Ex.P/ 12 is not admissible in evidence, because it is secondary evidence, being prepared on the basis of Kotwari book which has not been produced and proved by prosecution, the age of the prosecutrix is above 18 years, prosecutrix is consenting party hence, the appellant can not be convicted u/s366A and 376 of IPC and learned trial Court committed error in convicting the appellant as aforementioned. Contrary to that learned public prosecutor submitted that Ex.P12 is copy of register of concerned police station in respect of date of birth which is maintained by public servant in regular course of duty, this document is admissible u/s 35 of the Evidence Act and this document is not within the purview of secondary evidence. Learned trial Court did not commit any error in convicting the appellant and sentencing him as aforementioned. ( 7. ) The crucial question in this criminal appeal is in respect of age of the prosecutrix (PW 7). Prosecutrix deposed that her age was 15 years at the relevant time. Brother of the prosecutrix Saddu Singh (PW 1) deposed that age of the prosecutrix was 15 years. Father of the prosecutrix Prem Singh (PW 8) also deposed that age of the prosecutrix was 15 years. None of these witnesses were able to give her (Prosecution) date of birth. Dr. Indumati Vishwakarma (PW 4) deposed that on 8.2.1991 she took x-ray of shoulder joint, knee joint, wrist joint and buttock of the prosecutrix, after examining x-ray plates, Ex.P/2 to Ex.P/5 she opined that age of the prosecutrix is in between 17 years to 20 years, as per report Ex/P/6. It is settled principle of law that if authentic date of birth of the prosecutrix, that is to say, evidence in respect of age of the prosecutrix is available then opinion of Doctor on the basis of ossification test can be discarded. ( 8. ) Prem Singh (PW 8) in para 13 of his cross-examination deposed that he is father of 13 children his eldest son expired, if he would have been alive his age would have been 13-14 years. Prosecutrix is youngest daughter. ( 8. ) Prem Singh (PW 8) in para 13 of his cross-examination deposed that he is father of 13 children his eldest son expired, if he would have been alive his age would have been 13-14 years. Prosecutrix is youngest daughter. He specifically deposed that the name of all children were written alongwith date of birth in Kotwar Book. In para 12 of his cross-examination Prem Singh deposed that he went alongwith Kotwar to police station and Inspector saw date of birth of the prosecutrix in Kotwar book and wrote her (Prosecutrix) date of birth. This statement of Prem Singh relates to the date, after the incident. It is clear from the evidence of Prem Singh that date of birth of the prosecutrix was entered in Kotwari book by Kotwar at the relevant time. ( 9. ) Shiv Vratt Tirki (PW 10) was posted as Head constable in police station Samnapur. He deposed that in police station birth and death register is regularly maintained. He brought original register from 1975 to 31.12.1976. He proved document Ex.P/12-C on the basis of original register, which he took back after completion of his evidence . As per Shiv Vratt Tirki (PW 10), the date of birth of Sadhna Bai daughter of Prem Singh is entered as 28.9.1975. There is evidence on record that prosecutrix is also known as Sadhna Bai hence, this entry in Ex.P12- C relates to the prosecutrix. Learned counsel for the appellant relying upon Sukhia @ Sushma v. Gambhira 2002 (2) M.P.L.J. 405 urged that no original document is produced, no foundation was laid to establish the right to give secondary evidence, hence, document Ex.P/12-C being secondary evidence is not admissible in evidence. Para 9 of the citation is relevant para which relates to lease deed. ( 10. ) Learned counsel for the appellant relying on Kalyan Singh v. Smt. Chhoti and anothers AIR 1973 SC 396, Bank of Inda v. M/s. Allibhoy Mohammed and Ors. AIR 2008 Bom. 81 and Sunil Kumar and another v.Anguri Choudhari and another 2002(3) M.P.L.J. 371 vehemently argued that original register of that document Ex.P/12-C is secondary evidence u/s 63(3) of Evidence Act and unless the requirement of provisions of section 65 of the Evidence Act are not fulfilled, secondary evidence is not admissible, hence Ex.P/12-C is inadmissible in evidence. AIR 2008 Bom. 81 and Sunil Kumar and another v.Anguri Choudhari and another 2002(3) M.P.L.J. 371 vehemently argued that original register of that document Ex.P/12-C is secondary evidence u/s 63(3) of Evidence Act and unless the requirement of provisions of section 65 of the Evidence Act are not fulfilled, secondary evidence is not admissible, hence Ex.P/12-C is inadmissible in evidence. In case of Sunil Kumar (Supra) true copy of the original document was produced and it was not a certified copy of that document compared with the original hence, the document was held to be inadmissible in evidence. In case of Bank of India (Supra), it has been held that secondary evidence can not be accepted unless sufficient reason is given for non-production of original document as envisaged in section 65 of the Evidence Act. In Kalyan Singh case (Supra) it has been held that ordinary copy of registered sale deed is not a secondary evidence and it can not be admitted in evidence. On going through the aforementioned citations it is clear if a document is within purview of secondary evidence u/s 63 of the Evidence Act it can be proved under provision of Section 65 of the Evidence Act. The question hinges that whether the register of birth and death maintained in police station is a secondary evidence or primary evidence ? ( 11. ) It is clear from the evidence of Shiv Vratt Tirki (PW 10) that register in respect of birth and death is regularly maintained in police station on the basis of entries in Kotwari book. After entering into date of birth in register in police station, Kotwari book be returned to Kotwar. Entry in original register in respect of date of birth of prosecutrix was entered in 1975 by another Moharir of the police station Samnapur at the relevant time. It is not disputed that head constable moharir of the police is a public servant. It is proved by the evidence of Shiv Vratt Tirki (PW 10) that in regular course of his duty head constable mohrir regularly maintains birth and death register in police station on the basis of Kotwari book or at the information of the Kotwar. Section 35 of the Evidence Act reads as under: "35. It is proved by the evidence of Shiv Vratt Tirki (PW 10) that in regular course of his duty head constable mohrir regularly maintains birth and death register in police station on the basis of Kotwari book or at the information of the Kotwar. Section 35 of the Evidence Act reads as under: "35. Relevancy of entry in public(record or an electronic record) made in performance of duty.- An entry in any public or other official book, register or (record or an electronic 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 specially enjoined by the law of the country in which such book, register, or (record or an electronic record) is kept, is itself a relevant fact." ( 12. ) On going through the section 35 of the Evidence at it is clear that if an entry in public or other official book or register and record or in electronic record stating a fact in issue or relevant fact made by public servant in discharge of his official duty is itself a relevant fact, which means to say that if an entry is made in a register by public servant in discharge of his official duty in respect of relevant fact is primary evidence u/s 62 of the Evidence Act, and not secondary evidence u/s 63 of the Evidence Act. Original register in relation to document Ex.P/12 -C is regularly maintained by a public servant in police station Samnapur which is an official register and record hence, the original register can not be termed as secondary evidence u/s 63(3) of the Evidence Act, because the original register is not a copy made from or compared with original Kotwari book, entry in police station register is original entry on the basis of Kotwari book and it is not a copy made from or compared with original book, hence I hold that the register of birth and death maintained in police station Samnapur of which Ex.P/12-C is a copy is not secondary evidence, but it is primary evidence. Shiv Vratt Tirki (PW 10) at the time of evidence brought original register in the Court at the time of his examination, copy of register Ex.P12-C was kept in record and original register was returned back. Shiv Vratt Tirki (PW 10) at the time of evidence brought original register in the Court at the time of his examination, copy of register Ex.P12-C was kept in record and original register was returned back. The original register being a public document, hence it is not necessary to examine the scriber of the register its copy which is produced in the Court after going through original register is admissible in evidence hence, because it relates to the year 1975 to 31.12.76 and it is regularly maintained in police station, hence document Ex.P/12-C is admissible in evidence. The forgoing citations do not help in any way to the appellant. The arguments advanced by the learned counsel for the appellant are devoid of merit. Ex.P/12-C is a genuine document, in which date of birth of the prosecutrix is written as 28.9.75. Hence, it is proved beyond reasonable doubt that date of birth of the prosecutrix is 28.9.75. Incident occurred on 14.1.1991 hence, it is proved that on the date of the incident age of the prosecutrix was below 16 years and learned trial Court did not commit any error in holding that the ate of the prosecutrix was below 16 years at the time of the incident hence I affirmed finding arrived at by learned trial Court. ( 13. ) Though it has not been challenged during the course of argument that the appellant took away prosecutrix (PW 7) from village Samnapur and kept her in Nainpur in a rented house and committed sexual intercourse with her, but I think apposite to consider prosecution evidence in this respect. Prosecutrix (P.W.7) deposed that on the fateful night she went to evacuate in garden. After evacuating she was about to come back appellant came there and took her forcibly on the point of knife to Amarkantak and then Anooppur, where he committed sexual intercourse with her. Thereafter she was recovered from the possession of the appellant from Anooppur and she lodged F.I.R. Ex. P/9. Prem Singh (PW 8) also deposed that her daughter prosecutrix was missing. He searched her, but could not find her. Ultimately she was found in Anooppur and she was recovered from the possession of appellant. She narrated whole incident to him. Saddu Singh (PW 1), Gangaram (PW 2), Ramgopal (PW 3) and Dadua (PW 9) also corroborated testimony of the prosecutrix and Prem Singh. He searched her, but could not find her. Ultimately she was found in Anooppur and she was recovered from the possession of appellant. She narrated whole incident to him. Saddu Singh (PW 1), Gangaram (PW 2), Ramgopal (PW 3) and Dadua (PW 9) also corroborated testimony of the prosecutrix and Prem Singh. On going through the evidence of these witnesses there appears no infirmity in their statements on material points they remained firm and consistent. Evidence of these witnesses is corroborated by F.I.R. Ex.P/9. Their evidence is reliable and it is proved that the prosecutrix eloped with the appellant and the appellant committed sexual intercourse with her more than once and ultimately she was recovered from the possession of the appellant. ( 14. ) Learned trial Court in para 35 of the judgment came to hold that the prosecutrix was a consenting party and she voluntarily eloped with the appellant. On going through the evidence of the prosecutrix(P.W. 7), it is clear that she went place to place alongwith the appellant and she never complained or called any one to rescue her. The conduct of the prosecutrix proves that she was a consenting party and learned trial Court on sound reasoning rightly held that the prosecutrix voluntarily eloped and she was a consenting party. ( 15. ) The prosecutrix (PW 7) is a married woman. She is wife of Gangaram (PW 2). At the time of the incident she was living with her parents. On going through the evidence of Gangaram (PW2), Prem Singh (PW 8) and prosecutrix (PW 7) it is crystal clear that appellant took the prosecutrix and enticed her to get her consent to go with him without consent or permission of her parents and husband with intent to force her illicit intercourse. At the time of the incident age of the prosecutrix was below 16 years. As per section 366A who ever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place and to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse shall be punishable under this section. As per section 366A who ever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place and to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse shall be punishable under this section. It is proved that the appellant took the prosecutrix whose age was under 16 years knowingly that she will be seduced to illicit intercourse and he committed sexual intercourse with the prosecutrix though with her consent. At that time the age of the prosecutrix was below 16 years hence the act of the appellant of committing sexual intercourse with prosecutrix though with her consent comes within the purview of section 375(Sixthly) of IPC. Hence, it is proved beyond doubt that the appellant has committed offence u/s 366 A and 376 of IPC. ( 16. ) As per above discussion, I am of the view that the learned trial Court did not commit any error in convicting the appellant of the charge u/s 366A and 376 IPC looking to the facts and circumstances of the case the jail sentence awarded by learned trial Court is adequate and no interference is warranted in the order of sentence, consequently impugned judgment of conviction and order of sentence is hereby affirmed. ( 17. ) Consequently, appeal has no merit, deserves to be and is hereby dismissed. The appellant is on bail his bail bond stands discharged. He is directed to surrender forthwith before the trial Court to undergo the remaining part of the jail sentence otherwise learned trial Court is directed to issue non-bailable warrant against the appellant and commit him to jail to undergo the remaining part of the jail sentence. Appeal dismissed.