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2011 DIGILAW 222 (CHH)

SUBELAL v. STATE OF M. P.

2011-07-08

SUNIL KUMAR SINHA

body2011
JUDGMENT 1. This appeal is directed against the judgment dated 23rd of December, 1994 passed in Sessions Trial No. 6/94 by the Additional Session Judge, Dhamtar. By the impugned judgment, the appellant has been convicted and sentenced in following manner with a further direction to run the sentences concurrently:- Conviction Sentence u/s 363 IPC R.1. for 3 years and fine of Rs.200/-, in default S.1. for 6 months u/s 366 IPC R.1. for 5 years and fine of Rs.500/-, in default R.1. for 1 year u/s 376 IPC R.1. for 7 years and fine of Rs.500/-, in default R.1. for I year . 2. The facts, briefly stated, are as under: The appellant and co-accused- Mahesh were trial by the Session Court for the aforesaid offences. The allegations are that on 23.1.92, they abducted the prosecutrix (PW -I), who was a minor. She was taken to various places and was recovered on 28.1.92. In between this period, the appellant committed repeated sexual intercourse against the prosecutrix. The Session Court held that the prosecutrix was a minor below 16 years and the appellant committed forcible sexual intercourse against her, after abducting her from the lawful guardianship of her father, therefore, he was liable for punishment u/ss 363, 366, 376 IPC. The appellant was accordingly punished. However, co-accused- Mahesh, who was prosecuted u/ss 363 & 366 IPC, was acquitted. 3. Mr. Aditya Tiwari, learned counsel appearing on behalf of the appellant, argued that the finding relating to age is perverse; the prosecution could not establish that the prosecutrix was a minor; the prosecutrix accompanied the appellant on her own and visited many places on bicycle and bus; she never made any complaint; therefore, she was a consenting party with the appellant. 4. On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 5. I have heard learned counsel for the parties at length and have also perused the records of the session case. 6. The learned Session Judge has recorded the find of age on the evidence of the prosecutrix (PW -I); the evidence of In-charge Headmaster Premlal Mishra (PW-IO); the clinical observation of Dr. (Smt.) S. Singhal (PW4); and finding of Dr. S.C. Visnoi (PW-6) who performed the ossification test. 7. 6. The learned Session Judge has recorded the find of age on the evidence of the prosecutrix (PW -I); the evidence of In-charge Headmaster Premlal Mishra (PW-IO); the clinical observation of Dr. (Smt.) S. Singhal (PW4); and finding of Dr. S.C. Visnoi (PW-6) who performed the ossification test. 7. Prosecutrix (PW - I) deposed that she was aged about 18 years on the date of her examination which took place in the month of March 1994. They were 2 brothers and 2 sisters and she was eldest among them. She deposed that at the time of incident, she was a regular student of Class-8th in Middle School Joratarai. 8. Premlal Mishra (PW - I 0) was the In-charge Headmaster of the School. He produced the admission register (Ex.-PII 3-C) and attendance register of the School. In the admission register there is entry of the name of the prosecutrix at serial No.3 I 7, according to which, her date of birth is 12.6.1976. He admitted to issue transfer certificate (Ex.-P/I 5), in which, the date of birth of the prosecutrix has been shown as 12.6. I 976. Premlal Mishra (PW -10) admitted in the cross-examination that the entry in relation to admission of the prosecutrix in admission register was not made by him. He further admitted that while making entry in admission register in Ciass-6th (middle section), they make entry on the basis of entries in the certificate of Class-5th pass. The admission register (Ex.-P/13-C) would show that the prosecutrix was admitted in the concerned Institution, in Class-6th and the entries were made at serial No. 317. It is thus clear that the above entries in admission register (Ex.-P/ 13-C) were made by concerned person on the basis of certificate of Class 5th passed and not on the basis of any declaration made by father or guardian of the prosecutrix. The earlier transfer certificate or Class-5th passed certificate have not been proved by the prosecution. PW -10 clearly deposed that he did not make the entry in admission register. No declaration form was produced to show as to what was the declaration of the father/guardian at the time of initial admission of the prosecutrix or at any point of time before the School Authorities. 9. In Alamelu and another Vs. PW -10 clearly deposed that he did not make the entry in admission register. No declaration form was produced to show as to what was the declaration of the father/guardian at the time of initial admission of the prosecutrix or at any point of time before the School Authorities. 9. In Alamelu and another Vs. State represented by Inspector of Police 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 Supreme Court held that - 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. In the present case, though PW -10 admitted to issue the transfer certificate (Ex.-P/15) on the basis of entry in the school register, but the entry in the school register, by which, the prosecutrix was admitted in Class-6th, itself was not proved. 10. Ghirdharram Sahu (PW-11- father of the prosecutrix) did not speak single word about making declaration relating to age of the prosecutrix. Even he has not deposed regarding the age of the prosecutrix on his personal knowledge. Puraien Bai (PW-9 - mother of the prosecutrix) has also not deposed either about the age of the prosecutrix or that any declaration was made by them before the School Authorities relating to age of the prosecutrix. Therefore, I am of the view that in such situation much reliance would not have been placed on the entries of the school register or the transfer certificate issued on the basis of such entry, for determining the age of the prosecutrix. 11. Dr. S.C. Visnoi (PW-6) determined the age of the prosecutrix in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex.-P/9. The X-ray plates are Ex.- P/10, P/11 & P/12. 11. Dr. S.C. Visnoi (PW-6) determined the age of the prosecutrix in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex.-P/9. The X-ray plates are Ex.- P/10, P/11 & P/12. In Modi's Jurisprudence (20th Edition), it is stated that too' much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to 3 years on either side. In the present case, Dr. Visnoi (PW-6) also admitted in the cross-examination that a difference of 3 years on either side may be there in the age determined on the basis of ossification test. In this manner; if we add 3 years towards upper side, the age of the prosecutrix would come to 19 years. Besides the above, there is no other evidence of the age of the prosecutrix. On appreciation of the above evidence, I am of the view that the prosecution could not establish that the prosecutrix was a minor and the finding recorded by the Session Judge cannot be sustained. 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'by boarding a bus. After staying in 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. Though the prosecutrix visited many places with the appellant, but she did not make any complaint and accompanied him in normal manner. 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. Though the prosecutrix visited many places with the appellant, but she did not make any complaint 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/s~ 363, 366 & 376 IPC would not be made out against the appellant. 13. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 363, 366 & 376 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.