HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
[Single Bench : Hon’ble Shri H.P. Singh, J.]
Criminal Appeal No. 2104/1997
State of Madhya Pradesh
Criminal Appeal No. 2425/1997
State of Madhya Pradesh
Shri Saleem Ahmed, learned Panel Lawyer for
Shri A.N. Gupta, learned Panel Lawyer for the
J U D G M E N T
This Judgment shall govern the disposal of
aforementioned two Criminal Appeals. Since both these
appeals arise out of the same judgment and common
questions are involved in these appeals, the same were
heard together and are being decided by this common
2: Both, these appeals are directed against the
judgment dated 23.09.1997, passed in Sessions Trial
No.593/1996, by the learned VIII Additional Sessions
Judge, Jabalpur, whereby the present appellants have
been convicted for offence punishable under Sections
363 of IPC and sentenced to undergo R.I. for 5 years
each with fine amount of Rs.5,000/- to each appellant
and in default of payment of fine R.I. for one year each.
Similarly, they have been convicted for offence
punishable under Section 366 of IPC and sentenced to
undergo R.I. for 5 years each with fine amount of
Rs.5,000/- to each appellant and in default of payment
of fine R.I. for one year each.
3: According to the prosecution, on the date of
incident i.e. 7.2.1987, at about 11:00 AM, prosecutrix
(PW/1) went to purchase something at the shop of one
Narayan, thereafter she did not return to home. In the
meantime, the mother of the prosecutrix, Kusum Bai
(PW/2) got an information that accused/appellant
Shamim took her daughter to the Court for the purpose
of marriage. Chhoti Bai (PW/2) rushed to the Court
where she found that her daughter, prosecutrix (PW/1)
along with appellant/Shamim were standing, then
prosecutrix (PW/1) had told her that appellant-Shamim
forcefully took her to the Court for marriage purpose.
Rahim, brother of appellant/Shamim, threatened Chhoti
Bai (PW/2) not to report the matter, otherwise they
would face the dire consequences, but despite that
Chhoti Bai (PW/2) had lodged the report at Police Station
Hanumantal, District Jabalpur (MP), vide Ex.P/1, on the
basis of which, Crime No.74/1987 was registered against
the appellants for the offences punishable under Sections
363 and 366 of IPC.
4: During the course of the investigation, appellants
were arrested, Panchnama and spot map were
prepared. Birth certificate of prosecutrix was seized on
18.2.1987 vide Ex.P/2 by Investigating Officer
S.P.Tiwari (PW/7) in presence of witnesses.
Statements of prosecutrix and other witnesses were
recorded. After completing investigation, the
appellants were charge sheeted for the aforesaid
5: On the basis of the charge-sheet, learned trial
Court framed charges against the accused/appellants
for offences punishable under Sections of the 363 and
366 of IPC. The appellants abjured their guilt.
6: The learned trial Court framed charges as
aforesaid offences against the appellants. Contents of
the charges were read over and explained to the
appellants to which they pleaded not guilty and
claimed to be tried. They took plea that they have
been falsely implicated in this case.
7: But the learned trial Court upon hearing the parties,
on going through the evidence of the witnesses,
exhibited documents and material available before it,
convicted and sentenced the appellants as above by the
8: Being aggrieved by and dissatisfied with the
aforesaid judgment of conviction and order of sentence,
the appellants have preferred these appeals.
9: We have heard learned counsel for both the parties
and perused the record.
10: Learned counsel for the appellants submitted that
learned trial Court has failed to appreciate the factual
aspects of the case. They have been falsely implicated
in this case. Learned counsel further submits that
ingredients to constitute offence under Sections 363 and
366 of IPC are completely missing in the instant case.
He further submits that accused/appellant Abdul Shamim
denied to take away the prosecutrix (PW/1) forcefully for
the purpose of marriage to the Court and in this way
accused/appellant Mahesh Kumar has assisted him.
Learned counsel further submitted that learned trial
Court erred in holding the appellants guilty for the
aforesaid offences. He prays for acquittal of the
appellants by setting aside the judgment of the trial
11: Combating the above arguments, learned Panel
Lawyer appearing on behalf of the respondent/State has
submitted that there is enough evidence to hold guilty
the appellants for commission of above mentioned
offence. Prosecution witnesses and other circumstantial
evidence have supported the case of prosecution. The
learned Panel Lawyer has, vehemently, argued that
learned trial Court in its detailed judgment has
considered thoroughly each and every factual and legal
position submitted by the defence as well as prosecution
and rightly convicted and sentenced the appellants for
the aforesaid offence.
12: The prosecution has examined prosecutrix herself
as (PW/1), her mother Chhoti Bai (PW/2) sisters
Ramsiya (PW/3) Shanti Bai (PW/4), her father Rajanlal
(PW/5), Sub Inspector, S.P. Pandey (PW/6) and
Investigating Officer S.P. Tiwari (PW/7).
13: Now the moot question that arises for
consideration before this Court is, whether the
prosecutrix was below 18 years of age on the date of
14 : Rajanlal (PW/5), father of prosecutrix, has stated
in his statement that the accused/appellants had taken
away her daughter for the purpose of marriage, when
she was 15 years of age. He further stated that he
had given transfer certificate of her daughter to S.P.
Tiwari (PW/7) vide Ex.P/2. In the document Ex.P/2,
the date of prosecutrix has been mentioned as
01.08.1970. On the basis of the statement of father
the prosecutrix, Rajanlal (PW/5) and on the basis of
entry so made in the transfer certificate Ex.P/2,
learned trial Court inferred that it has been proved
beyond reasonable doubt that on the date of incident,
the prosecutrix had not completed the age of 18 years.
Perusal of that transfer certificate, Ex. P/12 reflects
that the date of birth of the prosecutrix is 01.08.1970.
Accordingly, on the date of incident i.e. 07.02.1987,
the age of prosecutrix was 16 years, 6 months and 6
15: Merely because document Ex.P/2 is proved, it
does not mean that the contents of document is also
proved. The date of birth of the prosecutrix as
mentioned in the said transfer certificate document
could be proved by the evidence of other persons who
could vouchsafe for the truth of the facts in issue. The
father of prosecutrix Rajanlal (PW/5) in his deposition
has stated that at the time of incident her daughter
was 15 years of age. In the cross-examination he
deposed that he has stated whatever he has stated in
the examination in chief.
16: The date of birth mentioned in transfer certificate
Ex.P/2 would have no evidentiary value unless the
person, who made the entry or who gave the date of
birth is examined. Father of prosecutrix Rajanlal
(PW/5) in his deposition has stated that her daughter
had studied upto 4th Class. No person or teacher from
the school where she had studied has been examined.
No other certificate or document except transfer
certificate was produced regarding her age. Her date
of birth had been written only on the basis of T.C.
17: Thus, father of prosecutrix has not stated the
date of birth of prosecutrix. In his statement he has
stated at the time of incident her daughter was 15
years of age. Thus, in fixing the age of the prosecutrix,
the court below relied solely on the transfer certificate.
“The legal position is not in dispute that mere
production and making of document as exhibit
by the court cannot be held to be a due proof
of its contents. Its execution has to be proved
by admissible evidence, that is, by the
“evidence of those persons who can
vouchsafe for the truth of the facts in issue”.”
Even, in this case T.C. Or any document related to
birth date of the prosecutrix has not been exhibited.
In such circumstances, we are constrained to hold that
the court below without examining the factual and
legal issues has unnecessarily rushed to the conclusion
that the prosecutrix was minor at the time of the
alleged abduction. There is no satisfactory evidence to
indicate that she was a minor.
19: Thus, we are of the considered opinion, in the
facts of this case the age of prosecutrix could not have
been fixed on the basis of above mentioned certificate
and, thus, prosecution is failed to prove that on the
date of incident, the age of prosecutrix was below 18
20: The prosecutrix (PW/1), she has stated that when
she went outside of her house, accused/appellants
along with other accused namely, Rajwa, Mahesh,
Rashid, Shamin and Shiv met her, took her in a
rickshaw to the Court for the purpose of marriage.
Thereafter, her mother, Chhoti Bai (PW/2) came there
and took her to the police Station Hanumantal.
Thereafter, after lodging the report by her and her
mother Chhoti Bai (PW/2), they went to her home.
Prosecutrix (PW/1) further stated that
accused/appellants had beaten her and her parents
also. Even, the accused/appellants and other accused
persons had committed riot with her in-laws. In her
cross-examination, she has stated all the aforesaid
versions in detail, but has nor stated anything about
her age or date of birth. In para 8 of her cross-
examination, she has stated that she has not cleared
5th Class examination.
21. So far as statements of prosecutrix
regarding abduction is concerned, trial Court has
observed that version of the prosecutrix as given by
her in her statement recorded under Section 161 of
the Code of Criminal Procedure differs substantially
from the evidence given by her in the Court. That
apart, from her evidence it clear that she was taken to
the Court for the purpose of marriage by the
accused/appellants along with others and she went
along with them without any protest. Moreover, she
met a number of persons, but did not tell or narrate to
anyone about the abduction. Had she been forcibly
abducted by the accused/appellants, there were
numerous occasions on which she could have easily
raised an alarm and invite intervention of others.
However, she singularly failed to do so, which, as per
the trial Court leads to the inescapable conclusion that
she was a consenting party and had accompanied the
accused/appellants on her own free will and accord. As
stated above, prosecution has failed to prove that at
the time of the incident, the prosecutrix was below 18
years of age.
22. Considering the nature of the evidence, it
appears to us that the victim was a consenting party to
the entire incident because prosecutrix (PW/1) in her
statement, has stated that several persons were
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coming and going. Near Ghamapur Chowk, Jabalpur,
many persons were standing, but she never raised an
alarm showing protest. She has further stated that
accused/appellants caught hold of her neck. As such,
the entire story about the abduction of prosecutrix
seems to have been concocted. There is no reliable
evidence to support the conviction of
accused/appellants for the offence under Section 366
of IPC. The circumstances clearly show that the
prosecutrix voluntarily and consciously consented to
have gone with the accused/appellants and her
consent was not in consequence of any misconception
of fact. Therefore, we are of the considered opinion
that there was no misconception of fact and the victim
being a full grown up lady voluntarily consented to go
with the accused/appellants. Evidence of Prosecutrix
(PW/1) also reveals that she wanted to marry
accused/appellant Abdul Shamim, but she could not
marry as her parents objected to the marriage. Thus,
the charges levelled against the respondent under
Sections of the 363 366 have not been proved.
Therefore, learned trial Court erred in convicting the
accused/appellants for offences as aforesaid.
23: In the aforesaid circumstances, in the
considered opinion of this Court, trial Court should
have considered the entire material evidence on record
against accused/appellants in its entirety.
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24 : On the basis of evidence produced by
prosecution, prosecution has failed to prove that on
the date of incident prosecutrix was less than 18 years
of age. As per evidence, she was consenting party.
Under such circumstances, appellant could not be
convicted for offence under Sections 363 366 of IPC.
The conviction as well as sentence ordered by the trial
Court for offences aforesaid cannot be sustained.
Consequently, the appeal filed by the appellants is
hereby allowed. Their conviction as well as sentence
for offence punishable under Sections 363 366 of
IPC are hereby set aside. The appellants are acquitted
from all the charges levelled against them.
Let a copy of this order be sent to the trial Court
along with the record.