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2024 DIGILAW 710 (MP)

Uvesh Mohammad v. State of M. P.

2024-11-13

DEVNARAYAN MISHRA, VIVEK AGARWAL

body2024
JUDGMENT Per: Justice Vivek Agarwal 1. With the consent, the case is taken up for final disposal in motion hearing. 2. Learned counsel for the appellant submits that he is not pressing I.A. no.7457/2024 an application for suspension of sentence and grant of bail and it is dismissed as withdrawn. 3. Appellant is aggrieved of the judgment dated 3.11.2022 passed by learned II Additional Sessions Judge and Special Judge, Protection of Children from Sexual Offences Act, 2012, Begumganj, District-Raisen in S.C. No.44/2020 whereby learned trial Court has convicted and sentenced appellant in the following manner: Conviction Sentence Section Act Imprisonment Fine Imprisonment in lieu of fine 363 I.P.C. R.I. for five years Rs. 1,000/- R.I. for two months 366 I.P.C. R.I. for seven years Rs. 1,000/- R.I. for two months 376(2)(n) I.P.C. R.I. for twenty years Rs. 3,000/- R.I. for three months 5(J)(ii)/6 POCSO Act R.I. for twenty years Rs. 3,000/- R.I. for three months 4. It is submitted that appellant is innocent. The matter of consent has been converted into that of violation of privacy in the hands of appellant. Reading from the statement of the prosecutrix under section 164 of Cr.P.C. as are available on record as Ex.D-1, it is pointed out that prosecutrix before the concerned Magistrate had clearly stated that in January 2019 between 1:00 am to 1:30 am, she had left her home to be with her lover Uvesh. She had gone to Bhopal with her lover on her own volition. They had taken a room on rent in which they stayed. On next day of her elopement, she had performed Nikah with the appellant. After Nikah, they stayed together and two days prior, she had come back to Bhopal when they were caught by Police. In para-2 of the cross-examination, prosecutrix stated that as she wants to live with Uvesh, she had gone with him on her own volition and he had not coerced her for performance of Nikah. She had performed marriage on her own. 5. It is also submitted that even father of the prosecutrix had knowledge of daughter going on her own violation with the appellant. It is further submitted that age of the victim is doubtful. Reading from the evidence of father of the victim (PW-2), it is pointed out that father of the victim admitted that her daughter had studied in a Government School. It is further submitted that age of the victim is doubtful. Reading from the evidence of father of the victim (PW-2), it is pointed out that father of the victim admitted that her daughter had studied in a Government School. In cross-examination, he admitted that his marriage was performed 20 years back. He has five children. Prosecutrix is the eldest. She was born about two years after marriage. Father of the victim (PW-2) admitted that prosecutrix was born in a hospital but then said that he had not obtained any certificate from the hospital. He also stated that his wife was subjected to vaccination during pregnancy but no card is available. He further admitted that at the time of admission of the prosecutrix in the school, he had not produced any certificate as to the date of birth of the prosecutrix and her date of birth was recorded on rough estimation. It has also come on record that in the Ration Card, date of birth of the victim is mentioned as 2000. Shashikala Gautam School Teacher (PW-9) admitted that there is overwriting in regard to date of birth on Ex.P-28C. She admitted that at the time of admission of the prosecutrix, she was not working as In-charge of Headmaster of the school. No certificate of date of birth was produced by his school Headmaster which would have been made available alongwith the admission form. Thus, date of birth of the prosecutrix is doubtful. Her age has become doubtful. It is submitted that there is overwriting in the Ex.P-28C and it has been changed from 2000 to 2002. There are no initials over this overwriting. 6. Shri Yash Soni, learned Deputy Advocate General submits that the DNA report Ex.P-50 is positive. It has come on record that the child born to the victim and the present appellant is a biological daughter of the victim and the present appellant. Therefore, it is submitted that in view of this DNA report, no indulgence is called for. 7. After hearing learned counsel for the parties and going through the record. 8. First aspect which is required to be seen before invoking provisions of POCSO Act is as to whether the victim was a minor at the time of the incident or not. In this behalf, evidence of the father of the victim (PW-2) and that of the school teacher (PW-9) is material. 9. 8. First aspect which is required to be seen before invoking provisions of POCSO Act is as to whether the victim was a minor at the time of the incident or not. In this behalf, evidence of the father of the victim (PW-2) and that of the school teacher (PW-9) is material. 9. As submitted by Shri Mayank Srivastava and available on record, father admitted that his marriage was performed 20 years prior. Victim was born two years thereafter. Therefore, on the time of the deposition being recorded i.e. in July 2019, age of the prosecutrix was about 18 years. Similarly, he admitted that prosecutrix was born in a hospital. Mother of the prosecutrix had undergone vaccination during the pregnancy but he did not produce either the birth certificate from the hospital or the vaccination record of the hospital to which his wife was subjected during her pregnancy when she was carrying the prosecutrix in her home. In cross-examination, he has somewhere admitted that names of this witness, his wife and children are mentioned in the family card. The suggestion is given to him that in the Ration Card, date of birth of the victim is mentioned as 2000. 10. School Teacher (PW-9) admitted that there is overwriting in the school record Ex.P-28C. We have perused this Ex.P-28C and find that overwriting is not countersigned nor there is any mention of date of birth in words. Thus, age of the prosecutrix is doubtful and when there is doubt then it was incumbent upon the prosecution who have resorted to occisification test to have come to a conclusion as to whether the prosecutrix was minor at the time of the incident or not. 11. Dr. Deepak Gupta (PW-8) stated that on 22.4.2018, he examined the prosecutrix aged about 18 years being brought by Aishwarya, Police Constable 287. He found her to be pregnant. He had not found any external injury. Hymen was old healed. No opinion could be given in regard to violation of privacy. He had prepared two slides. In cross-examination, this witness stated that victim had informed him that three and a half months prior, she had gone with her friend whose name was not given by prosecutrix to this witness. When all these facts are taken into consideration, it is evident that there is no documentary evidence to support a document Ex.P-28C. He had prepared two slides. In cross-examination, this witness stated that victim had informed him that three and a half months prior, she had gone with her friend whose name was not given by prosecutrix to this witness. When all these facts are taken into consideration, it is evident that there is no documentary evidence to support a document Ex.P-28C. It does not reveal as to on what basis, the date of birth of the prosecutrix was recorded. Father of the prosecutrix (PW-2) admitted that there was no basis for writing of date of birth in the school records and it was recorded on the basis of estimation. When these facts are taken into consideration and when read with section 164 of Cr.P.C. statements of the prosecutrix then it is evident that prosecutrix was major. It is a case of consent and therefore, conviction under section 5(J)(ii)/6 of POCSO Act in absence of prosecution proving the prosecutrix to be minor at the time of the incident is not made out. It is hereby quashed. 12. As far as conviction under Sections 363, 366, 376(2)(n) of IPC and section 5(J)(ii)/6 of POCSO Act is concerned, the prosecutrix herself admitted before the Magistrate that she had gone with the present appellant on her own volition. On the next day, she had performed marriage and she was major at the time of the incident and even offence under sections 363, 366, 376(2)(n) of IPC and section 5(J)(ii)/6 of POCSO Act will not be made out. Therefore, appeal is allowed. Appellant's conviction and sentence are set aside. 13. Appellant, if not required in any other case, be released forthwith. 14. Case property be disposed of in terms of the order of the trial Court. 15. Record of the trial court be sent back.