HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(SINGLE BENCH : HONâBLE SHRI JUSTICE J.P.GUPTA)
M.Cr.C No.21795/2016
Fiza Parvez
Vs.
Firoz Khan @ Khaba another
Shri Vikalp Soni, learned counsel for the applicant.
Shri Pradeep Gupta, Panel Lawyer for the respondent/State.
Whether approved for reporting : (Yes/No).
ORDER
( 02.08.2017)
This petition has been filed under section 378(3) read with section
372 of the Cr.P.C for grant of leave to appeal against the
judgment dated 01/09/2016 passed by the XIVth Additional
Sessions Judge, Bhopal in S.T No.556/2013 whereby the
respondent no.1 Firoz have been acquitted of the offence
punishable under section 363, 366 of the IPC.
2. In brief, the facts of the case are that on 14/05/2013
respondent took away prosecutrix without consent of the parent
of prosecutrix and kidnapped her. In this regard father of the
prosecutrix lodged FIR on the same day in police station Aishbag,
Bhopal where Crime No.211/2013 was registered under section
363, 366 of the IPC and later on prosecutrix was found in
company of the respondent and was produced before the Judicial
Magistrate, where she refused to go in the house of her father
and also make complaint for commission of rape by her brother
before leaving the house with the respondent. On completion of
the investigation, the charge sheet was filed and the case was
committed to the Sessions Court and respondent no.1 claimed to
be innocent and after trial, learned Trial court acquitted the
respondent no.1 as the prosecution failed to prove the charges
beyond reasonable doubt.
3. The prosecutrix have challenged aforesaid finding of the
learned trial court and prayed for grant of leave to appeal on the
basis that finding of the learned trial court is contrary to the law,
the facts and circumstances of the case, the learned trial court
has not appreciated the oral and documentary evidence in the
right prespective. The prosecutrix has categorically stated against
the respondent with regard to the fact constituted alleged offence
and about her age learned trial court has wrongly come to the
conclusion that the prosecutrix was major at the time of the
incident. In view of the law laid down by the Hon’ble Apex Court
in the case of Jarnail Singh Vs. State of Haryana reported in
2013 AIR SCW 4438 held that with a view to determine age of
the prosecutrix provision contained in Rule 12 of Juvenile Justice
(Care and Protection of Children) Rules, 2007 shall be followed
and according to the aforesaid Rules firstly the date of birth
mentioned in the record of the school at the time of admission in
st
Class 1 to be considered in place of report of medical expert.
Therefore, finding of the learned trial court is illegal and
prosecution has proved its case. There is fair chance to succeed in
the appeal, therefore, leave to appeal be granted.
4. Considering the contention of the learned counsel for the
parties and on perusal of the record, it is found that with regard
to kidnapping of the prosecutrix by the respondent no.1 only
statement of the prosecutrix is on record and she has been
examined as PW-11 on 12/05/2016 before the trial court. Her
statement is full of contradiction and exaggeration and prima
facie not reliable. On careful scrutiny of her statement, it appears
that she willfully went with the respondent no.1 as in her parental
house she was under sexual assault by her brothers. The
statement given by her during the investigation to the Magistrate
concerned and police which content as Ex.D-1, Ex. D-8 and Ex.D-9
do not disclose the story narrated by the prosecutrix before the
court that she was sold out by her neighbourer Farida to the
respondent, by getting Rs.30,000/- from the him and thereafter
handed over to the respondent at Sehore where respondent
committed rape with her and further arranged marriage with her
on the basis of false medical certificate with regard to age of her.
In such circumstances, learned trial court has not committed any
error in discarding the evidence of the prosecutrix. However from
the evidence of prosecutrix it establish that she went with
respondent Firoz and also married with her and it was done with
the consent of the prosecutrix.
5. In such circumstances, the question of age of the prosecutrix is
very much crucial. In this regard father of the prosecutrix Syed
Parvez (PW-7) has not disclosed the age of the prosecutrix. Sister
of the prosecutrix Fareen Parvez (PW-10) has stated that at the
time of incident age of the prosecutrix was 15 years, but with
regard to age of prosecutrix sisterâs evidence have no much
value. Prosecutrix (PW-11) herself has not stated her age at the
time of the incident. Smt. M.Z Khan (PW-1) has stated that
prosecutrix was studying in Sunshine Convent School, Bagh
Dilkusha, Bhopal and according to the school record date of birth
of prosecutrix was 26/07/1997 as per School Record Ex.P-2 and it
st
was recorded on 23/07/2004 when she was admitted in Class 1
but the witness has admitted that the entry in Ex.P-2 has not been
made by her. The aforesaid school is a private school. Neither
father of the prosecutrix nor prosecutrix has stated that she had
studied in the aforesaid school or the aforesaid date of birth
recorded by parents of the prosecutrix. There is nothing on record
to show the basis on which the aforesaid entry was made. In the
aforesaid circumstances, learned trial court dealing all aspects
with regard to the evidence of age of the prosecutrix in
paragraphs 20 to 27 of the judgment, discarding the aforesaid
entry with regard to date of birth of the prosecutrix in school
record. On the basis of medical evidence Dr.C.S. Jain (PW-4)
based on ossification test held that age of the prosecutrix may be
more than 18 years at the time of incident. The learned trial court
in the aforesaid circumstances has not committed any violation of
the law laid down by the Hon’ble Apex Court in the Jarnail
Singh’s case (supra) with regard to determination of age of the
prosecutrix. As the learned trial court has firstly considered the
evidence with regard to school entry record at the time of
st
admission of prosecutrix in Class 1 but the entry has not been
found to be proved in accordance with the law. Therefore, in
absence of other evidence, the learned trial court has considered
report of the medical expert based on ossification test, which is in
accordance with the Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007. In the aforesaid judgment,
the learned Apex court has not laid down that mere production of
school entry record it will be deemed to be proved. The entry of
the record have to be proved in accordance with the provision of
section 35 of the Indian Evidence Act. As no such step have been
taken by the prosecution during the trial, therefore, school entry
record Ex.P-2 has been found to be not proved and learned trial
court has not committed any legal or factual error. The learned
trial court has rightly came to the conclusion that prosecution has
failed to prove the age of the prosecutrix below 18 years beyond
reasonable doubt.
6. The aforesaid finding of the learned trial court is based on
matriculation appreciation of evidence and prima facie does not
appear to be illegal, improper or contrary to law. Hence it cannot
be said that prima facie learned trial court has committed any
error in coming to the conclusion of finding of acquittal of the
respondent no.1 of the offence punishable under section 363, 366
of the IPC.
7. In view of the aforesaid discussion, prima facie there is no
ground to grant leave to appeal against the judgment of the
acquittal of respondent no.1. Hence the applicantâs application
being devoid of merit deserves to be dismissed. Accordingly, the
application is dismissed.
(J. P. GUPTA)
JUDGE
tarun