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Fiza Parvez vs Firoz Khan @ Khabda on 2 August, 2017


M.Cr.C No.21795/2016

Fiza Parvez
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).


( 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

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 sister’s 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

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
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 applicant’s application

being devoid of merit deserves to be dismissed. Accordingly, the

application is dismissed.



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