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Madhya Pradesh High Court · body

2012 DIGILAW 1032 (MP)

Raja Babu v. State of M. P.

2012-10-09

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 29.10.1996 passed by the learned Additional Sessions Judge Khurai, District Sagar in S.T. No. 227/94, whereby the appellant was convicted for the offences punishable under Sections 363 & 366 of IPC and sentenced for four years' R.I. with fine of Rs. 1,000/- and five years' R.I. with fine of Rs. 1,000/- respectively. In each default of payment of fine, three months' S.I. was directed. The prosecution's case, in short is that, on 23.6.1994 at about 5:00 a.m. in the morning, Asha Bai (PW-6) mother of the prosecutrix found that the prosecutrix was not on bed. In the morning, Asha Bai, her husband Krishna Kumar (PW-5) and brother-in-law Nand Kishore (PW-4) tried to search the prosecutrix, but they could not get any indication about the elope of the prosecutrix. Nand kishore had lodged a written report Ex. P/3 in that respect before the S.H.O. Bina. In the evening, one Sanjeev Yadav came from Sagar, who was inquiring about the house of the appellant and therefore, he was taken by Nand Kishore, Krishna etc. with him to the Police Station and he had informed that the appellant and the prosecutrix were residing in the house of aunt of the appellant at Sagar and thereafter, the prosecutrix as well as the appellant were brought back to the Police Station, Bina. A case was registered. After due investigation, a charge sheet was filed before the J.M.F.C. Bina, who committed the case to the Sessions Court, Sagar and ultimately it was transferred to the Additional Sessions Judge, Khurai. 2. The appellant abjured his guilt. He did not take any specific plea in defence. However, he has stated that he was falsely implicated in the matter due to enmity. He produced various letters Exs. D/2 to D/10 received from the prosecutrix to show that the prosecutrix was in love affairs with the appellant and she herself went with the appellant. In defence Rajkumar (DW-1) was examined to prove the handwriting of the prosecutrix. 3. The learned Additional Sessions Judge after considering the evidence adduced by both the parties, convicted the appellant for the offences punishable under Sections 363 & 366 of IPC and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. In defence Rajkumar (DW-1) was examined to prove the handwriting of the prosecutrix. 3. The learned Additional Sessions Judge after considering the evidence adduced by both the parties, convicted the appellant for the offences punishable under Sections 363 & 366 of IPC and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that according to the mark sheet shown for the prosecutrix, her age at the time of alleged incident was 17 years 5 months and 10 days. There was no basis shown by which the date of birth was informed to the school authority at the time of her admission. The parents of the prosecutrix have accepted that a 'Janmkundli' of the prosecutrix was available with them but they did not produce the same before the Court. Under such circumstances, the prosecutrix was above 18 years of age at the time of incident and she went by herself with the appellant. Looking to her love letters Exs. D/2 to D/10, she was in love with the appellant and therefore, she herself eloped from her house. Hence, no offence punishable under Section 363 or 366 of IPC is made out against the appellant. In alternate, it is submitted that the appellant has faced the trial and appeal for last 18 years and therefore, it is prayed that he may not be sent to the jail again. 6. On the other hand, learned Panel Lawyer has submitted that it is nowhere proved whether those letters were written by the prosecutrix or not. Similarly, the prosecutrix was below 18 years of age at the time of incident and therefore, at least the offence punishable under Section 363 of IPC shall be constituted against the appellant. 7. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether, the appeal filed by the appellant can be accepted? And whether the sentence passed against him may be reduced? 8. First of all, the age of the prosecutrix may be considered. According to her mark sheet of High School Examination Ex. P/4, the date of birth of the prosecutrix was 13.1.1977 and therefore, she was 17 years 5 months and 10 days old at the time of incident. And whether the sentence passed against him may be reduced? 8. First of all, the age of the prosecutrix may be considered. According to her mark sheet of High School Examination Ex. P/4, the date of birth of the prosecutrix was 13.1.1977 and therefore, she was 17 years 5 months and 10 days old at the time of incident. The prosecution has also submitted a mark sheet of the prosecutrix of class 11th in which her date of birth was mentioned to be 13.1.1977. Generally, the date of birth given on the mark sheet of High School Examination is to be taken as a final date of birth of a person for his remaining service career and for that purpose and the entry in the mark sheet of High School Examination is important. Idea behind the value of that mark sheet is that if a person believes that his date of birth is correctly mentioned in the school record and he continues with that record then according to his conduct, he is estopped to say that it was not the correct date of birth, which was mentioned in his High School Examination mark sheet. Secondly, a child takes admission in the school and he/she continues for 10-12 years with same particulars relating to the date of birth provided to the school and therefore, it can be presumed that he gave a correct information to the school and therefore, when he mentions the date of birth in the High School Examination form then, it is given in the mark sheet or the certificate of the High School Examination as it is, it becomes final. 9. The doctrine of estopple and conduct of the concerned person is final for himself only, but if the date of birth is to be examined for a third party then, such mark sheet cannot be taken as a conclusive proof of the age of the prosecutrix. In the present case, the prosecutrix was almost 171/2 years of age at the time of the incident. Also, since there was no allegation of rape therefore, the prosecutrix could not be examined by the doctor and no ossification test was performed. There is no medical report about the assessment of her age. In the present case, the prosecutrix was almost 171/2 years of age at the time of the incident. Also, since there was no allegation of rape therefore, the prosecutrix could not be examined by the doctor and no ossification test was performed. There is no medical report about the assessment of her age. The cardinal principle for the assessment of the age on the basis of educational record is that what was the basis by which a particular date of birth was shown to the school authorities at the time of admission and hence the initial admission form is to be referred and proved. In the present case, Krishna Kumar (PW-5) has claimed that when he went to the school for admission of the prosecutrix, he gave her date of birth according to her 'Janmkundli'. Asha Bai (PW-6) and Krishna Kumar (PW-5) have accepted that her 'Janmkundli' is available with them but neither it was given to the police nor it was produced before the Court. A doubt is created due to the conduct of these witnesses that the actual date of birth of the prosecutrix was different and therefore, 'Janmkundli' was not shown to the police. If a doubt is created then, the benefit of doubt is to be given to the accused. When the prosecutrix was 171/2 years of age according to her educational records and it is doubtful that her date of birth was not correctly given to the school authority then, a doubt is also created that the prosecutrix was above 18 years of age at the time of incident. 10. Nand Kishore, Krishan Kumar and Ashabai were examined before the Court about the incident. They have stated that at 2:30 a.m. in the morning, the prosecutrix went to answer the call of nature and thereafter, it was not clear that as and when, she came back from the toilet. She was found missing at about 5:00 a.m. It is also accepted by these witnesses that she took some golden ornaments, one suitcase and one bag with her. The overt act of the prosecutrix clearly indicates that she went from her house in the night hours, when all the family members were sleeping and she went with the preparation that she would never come back to her house before her marriage with the appellant. The overt act of the prosecutrix clearly indicates that she went from her house in the night hours, when all the family members were sleeping and she went with the preparation that she would never come back to her house before her marriage with the appellant. The prosecutrix has expired during the trial and therefore, she could not be examined. However, it is apparent that she was found with the appellant at Sagar in the house of appellant's aunt and therefore, it is clear that the prosecutrix went to the house of aunt of the appellant at Sagar alongwith the appellant. However, it is nowhere clear as to whether the appellant went to the house of the prosecutrix to take her or she went from her house on her own and joined the appellant somewhere in Bina township or not. On this point, all the witnesses are silent. Looking to the conduct of the prosecutrix as depicted by these witnesses, it is clear that she left her house on her own and therefore, she was a consenting party. Under such circumstances, no offence punishable under Section 366 of IPC is made out against the appellant. The learned Additional Sessions Judge has erred in convicting the appellant for the offence punishable under Section 366 of IPC. 11. Rajkumar (DW-1) has proved that the letters Exs. D/2 to D/10 were written by the prosecutrix. Nand Kishore (PW-4) has claimed that he was conversant with the language and handwriting of the prosecutrix but he refused to identify whether handwriting of those documents was of the prosecutrix or not. It appears that those letters were given by the prosecutrix and therefore, her interest in the appellant is visible. However, for the offence punishable under Section 363 of IPC, the consent of the prosecutrix is not sufficient but consent of her parents is necessary. If the prosecutrix was taken from the legal guardian of her parents then, the offence punishable under Section 363 of IPC may constitute. As discussed above, the prosecution has failed to prove beyond doubt that the prosecutrix was below 18 years of age at the time of incident, then prosecutrix could not be subjected for kidnapping as per the Provision of Section 363 of IPC and therefore, no offence punishable under Section 363 of IPC is made out against the appellant. As discussed above, the prosecution has failed to prove beyond doubt that the prosecutrix was below 18 years of age at the time of incident, then prosecutrix could not be subjected for kidnapping as per the Provision of Section 363 of IPC and therefore, no offence punishable under Section 363 of IPC is made out against the appellant. The learned Additional Sessions Judge has committed an error in convicting the appellant for the offence punishable under Section 363 of IPC. 12. In the present case, when the appellant is not to be convicted for any offence then, it is not necessary to discuss about the question of sentence. Hence, on the basis of aforesaid discussion, the appeal filed by the appellant can be accepted and therefore, it is hereby accepted. The conviction as well as the sentence directed by the trial Court for the offences punishable under Sections 363 & 366 of IPC is hereby set aside. The appellant is acquitted from all the charges levelled against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court. 13. The appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.