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2010 DIGILAW 241 (CHH)

Thanduram Bonkiram Dhobi v. State of M. P.

2010-10-06

SUNIL KUMAR SINHA

body2010
Judgment SUNIL KUMAR SINHA (1) This appeal is directed against the judgment dated 27th of August, 1993 passed in Sessions trial No. 122/92 by the Additional Sessions Judge, Sakti. (2) By the impugned judgment, the appellant has been convicted u/Ss. 363 and 366 IPC and sentenced to undergo R. I. for 5 years. The facts, briefly stated, are as under :- The prosecutrix (PW-7) was the adopted daughter of Balram Sharma (PW-5). Her natural father was Acchutanand (PW-8), who was brother-in-law (Shadooh) of Balram Sharma (PW-5). They were residing in village Palarikala, P. S. Bardwar. Sister of Acchutanand was residing in village Bhavreli. Acchutanand, on account of illness of his sister, left the prosecutrix in her house to look after his sister. the prosecutrix was taken to the house of his sister on the bicycle of the appellant. The allegations are that on the next day i.e. on 15-7-1990, the appellant went to the house of the sister of Acchutanand and told about the illness of the mother of the prosecutrix. On this pretext, he took the prosecutrix with him. When Acchutanand came to know about all this, he lodged the First Information Report (Ex.-P/11). The prosecutrix remained with the appellant for a very long period. They visited many places and ultimately she was recovered. The case of the prosecution is that the appellant abducted the prosecutrix who was a minor on the date of incident, therefore, he was liable for punishment u/Ss. 363 and 366 IPC. The learned Sessions Judge held that on the basis of evidence available on record, it was established that the prosecutrix was below 18 years of age on the date of incident and she was abducted by the appellant and was taken to different places, therefore, the appellant was liable for punishment u/Ss. 363 and 366 IPC. (3) MR. Vishnu Koshta, learned counsel appearing on behalf of the appellant, argued that it was not established by the prosecution that the prosecutrix was below 18 years of age, therefore, the finding of the age was perverse and looking to the conduct of the prosecutrix, no offence u/Ss. 363 and 366 IPC would be made out. (4) On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 363 and 366 IPC would be made out. (4) On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (5) The prosecution adduced oral as well as documentary evidence to prove the age of the prosecutrix. So far as oral evidence is concerned, Acchutanand (PW-8 - father of the prosecutrix) simply deposed that her daughter was aged about 17-18 years on the date of his evidence, which was recorded on 22- 2-1993. He very fairly admitted that he cannot tell the date of birth of his daughter. The prosecutrix (PW-7) has also not deposed about her date of birth, however, she deposed that she was aged about 17 years. As far as documentary evidence is concerned, the school certificates were produced by the prosecution. The duplicate copy of the transfer certificate issued on 25-8-1990 is Ex. P/9. Mark sheet of Class 9th is Ex.-P/7 and mark sheet of Class 8th is Ex.-P/10. In all documents, the date of the birth of the prosecutrix has been mentioned as 25-6-1974. Apart from the above, copy of the school register of Primary School, Palarikala has been filed as Ex. P/12 (C). According to this document, the prosecutrix was admitted in the school in Class 1st on 10-7-1980 and she left the institution on 1-5-1985 after passing Class 5th. The learned Sessions Judge relied on the evidence of the prosecutrix and her father and held that according to them, when the prosecutrix was aged about 17-18 years on the date of their evidence, she must be below 18 years on the date of incident. The Sessions Judge also held that in all above documents, the date of the birth of the prosecutrix has been mentioned as 25-6-1974, therefore, it was proved that she was below 18 years on the date of incident which took place on 15- 7-1990. (6) IN Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, the Supreme Court held that the date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. (6) IN Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, the Supreme Court held that the date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. 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 relating to the date of birth were proved, it does not mean that the contents of document were also proved. Mere proof of the documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. In Babloo Pasi v. State of Jharkhand and Anr. AIR 2009 SC 314, the Supreme Court, referring to the judgment of Birad Mal Singhvi (supra), held that Section 35 of the Indian Evidence Act, 1872 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 Evidence 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. (7) IN case on hand, the mark-sheet and the duplicate transfer certificate have been exhibited by Balram Sharma (PW-5) but the contents of those documents were not at all proved by the prosecution. Therefore, the said documents i.e. Ex.-P/7, Ex.-P/9 and Ex.- P/10 containing the date of birth of the prosecutrix as 25-6-1974 were not relevant for holding her date of birth as mentioned therein. (8) SO far as entry of school register is concerned, Ram Prasad (PW-9), Head Master of the School, deposed that the relevant entry relating to the prosecutrix were not made by him because he was not present at the relevant time in the school. However, he deposed that when a child is admitted in the school, the parents of the child tell the date of birth of the child which is entered in the school register. He did not depose as to what was the basis of such entry of date of birth of the prosecutrix in the school register. Copy of the declaration form or the birth certificate, which is usually submitted by the parents of a child while his admission to the school, have not been produced by the prosecution. The case of the prosecution is that the prosecutrix was adopted by Balram Sharma (PW-5). Balram Sharma deposed that the prosecutrix was aged about 17 years on the date of his evidence which was recorded on 27-5-1992. He deposed in examination- in-chief that he got the prosecutrix admitted in Palarikala school and he had stated his name as guardian of the prosecutrix. However, in the cross examination, he very clearly admitted that when the prosecutrix was taken to the school for admission, he was in jail in some matter and his wife had gone for her admission in the school. He very clearly admitted that he was in jail since 1978 to 1985. However, in the cross examination, he very clearly admitted that when the prosecutrix was taken to the school for admission, he was in jail in some matter and his wife had gone for her admission in the school. He very clearly admitted that he was in jail since 1978 to 1985. It is therefore clear that the entry of date of birth of the prosecutrix in the school register was not made on the basis of information given by Balram Sharma (PW-5). We note that the wife of Balram Sharma has not been examined by the prosecution. Therefore, it was not proved on record that on whose information the entry of date of birth of the prosecutrix was made in the school register which was proved by the Head Master of the school. Therefore, reliance cannot be placed on the entry of the said register. So far as oral evidence of the prosecutrix (PW-7) or her father (Acchutanand PW-8) is concerned, the same is too vague to be relied upon. The prosecutrix or her father did not depose about the date of birth of the prosecutrix. Even they could not tell the year of birth of the prosecutrix. Therefore the age of the prosecutrix was not established either by the evidence of her father or by her own evidence or by the evidence of her stepfather (PW-5). Her age was also not established by the documentary evidence filed by the prosecution i.e. mark-sheets and transfer certificate and the school register. The prosecution, therefore, utterly failed to establish that the prosecutrix was below 18 years of age on the date of incident and the finding in this regard cannot be sustained. (9) Now we shall examine the conduct of the prosecutrix. (10) ADMITTEDLY the prosecutrix and the appellants were well known to each other. The prosecutrix was left to the house of her aunt on the bicycle of the appellant. The case of the prosecution is that the appellant came to the house of the aunt of the prosecutrix on the next day and took her with him on his bicycle on the pretext of the illness of mother of the prosecutrix. However, she was not taken to her village and was taken to some different place. The case of the prosecution is that the appellant came to the house of the aunt of the prosecutrix on the next day and took her with him on his bicycle on the pretext of the illness of mother of the prosecutrix. However, she was not taken to her village and was taken to some different place. If the prosecutrix was not taken to her parents house, she would have resisted when she was being taken to some other place, but she did not do like that. According to the prosecutrix, she was subjected to sexual intercourse by the appellant on the point of knife. We find that there are no charges of commission of rape in this matter. It comes in the evidence of the prosecutrix that she was taken by the appellant to Saragaon railway station. They remained there for one hour and thereafter they boarded Titlagarh passenger and got down at Bilaspur. From Bilaspur they boarded another train and went to Anuppur. In Anuppur, they stayed in a lodge where the appellant committed forcible sexual intercourse against her. On the next morning, they boarded a train and went to Katni. Thereafter they went to Delhi and Noida. They stayed in the house of friend of the appellant. During this period, the prosecutrix had ample opportunity to make complaint to other persons or to raise alarm, but she did not do and she remained with the appellant for a reasonably long period. In fact, they visited many places. According to the prosecutrix she was recovered from Muzaffarnagar. Though she markes allegations that the appellant had sold her to one Rajesh Sharma, but no investigation was done in that line. No other witnesses of the prosecution made such allegations. Rajesh Sharma is neither an accused nor he has been examined as a witness by the prosecution. The above conduct of the prosecutrix goes to show that she willingly accompanied the appellant on the date of incident and remained with him for a reasonably long period and in the above facts and circumstances of the case, it was not established that either the prosecutrix was kidnapped or she was abducted by the appellant and the appellant was liable for punishment u/Ss. 363 and 366 IPC. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/Ss. 363 and 366 IPC are set aside. 363 and 366 IPC. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/Ss. 363 and 366 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Appeal allowed.