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Mohammad Shamshuddin And Ors vs The State Of M.P. 31 Wps/1319/2019 … on 26 February, 2019

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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 22-2-2019
Pronounced on 26-2-2019
CRIMINAL APPEAL No. 2985/1998
(Arising out of judgment of conviction and order of sentence dated 10-
12-1998 passed by the Addl. Sessions Judge, Khairagarh, Sessions
Division Rajnandgaon, MP (now in CG) in Sessions Trial No. 88/98)
1. Mohammed Shamshuddin aged about 32 years son of Badruddin
resident of village Taranga, PS Bhatapara, district Raipur
presently resident of Dauchaura, Khairagarh, Distt. Rajnandgaon,
MP (now in CG)
2. Mohammed Sabir alias Raju aged about 27 years son of Gul
Mohammed resident of Vidyanagar, opposite Police Line, Raipur,
MP (now in CG)
3. Mohammed Rizwan aged about 23 years son of Rahman
resident of Turkaripara, Distt. Rajnandgaon, MP (now in CG)
Appellants
Versus
State of MP (now CG), through PS Khairagarh, Distt. Rajnandgaon, MP
(now CG).
Respondent

For appellants No. 1 and 3 : Shri Adil Minhaj, Adv.
For appellant No. 2 : Shri Sudhir Verma and Shri CR Sahu,
Adv.

For Respondent/State : Shri Vikram Dixit, Govt. Adv..

Hon’ble Mr. Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT

1. In this criminal appeal, challenge is levied to the judgment of

conviction and order of sentence dated 10-12-1998 passed by the Addl.

Sessions Judge, Khairagarh, Sessions Division Rajnandgaon, MP (now

in CG) in Sessions Trial No. 88/98 whereby and whereunder he

convicted and sentenced the appellants as under:-

Appellants No. 2 Mohd. Sabir and appellant No. 3 Mohd. Rijwan

Sr. Offence u/S. Sentence In default of
No. payment of fine

1. 363, Indian Penal RI for 7 years + fine of Additional RI for
Code (for short ‘IPC’) Rs. 2,000/- 6 months

2. 366, IPC RI for 7 years + fine of Additional RI for
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Rs. 2,000/- 6 months

Appellants No. 1 Shamshuddin

Sr. Offence u/S. Sentence In default of
No. payment of fine

1. 363, Indian Penal RI for 7 years + fine of Additional RI for
Code (for short ‘IPC’) Rs. 2,000/- 6 months

2. 366, IPC RI for 7 years + fine of Additional RI for
Rs. 2,000/- 6 months

3 376, IPC RI for 10 years + fine of Additional RI for
Rs. 3,000/- 6 months
All the substantive jail sentences have been directed to run

concurrently.

2. In brief, the prosecution story is that at the time of alleged

incident prosecutrix was about 14 years old. She was a resident of Gol

Bajar, Khairagarh. She and appellant No. 1 Mohd. Shamshuddin were

agreed to perform marriage. He had promised her that he will give

divorce to her married wife. They used to send letters to each other. On

28-4-1997 at about 1.30 pm she had left her paternal house, after

sitting in the bicycle of appellant No. 3 Mohd. Rijwan, she went to Dau

Chaura. Near the burial ground she sat on Moped of appellant No. 1

Mohd. Shamshuddin, they went to village Garrapar. Thereafter they,

appellant No. 2 Mohd. Sabir went to Jabalpur by Tampo Trax.

Thereafter they went to Damoh where they stayed about 1 and half

months in the house of Julla Begum who is paternal aunt of appellant

No. 2 Mohd. Sabir. Thereafter they went Jabalpur and resided in a

rented house. Thereafter she and appellant No. 1Mohd. Shamshuddin

went to Kawardha. Thereafter on saying of appellant No. 1

Shamshuddin she returned back in her paternal house. Meanwhile on

1-5-1997 her father had lodged an FIR in police station Khairagarh.

After completion of the investigation charge-sheet was filed against
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appellants. The trial Court framed charges against all the appellants

under Sections 363, 366, IPC and against appellant no. 1, charge of

offence under Section 376, IPC was also framed. They abjured the

charges and faced trial. To bring home the charges the prosecution

examined as many as 9 witnesses. They did not examine any witness

on his defence. After conclusion of the trial, trial court convicted and

sentenced them as aforesaid.

3. Being aggrieved, the appellants have preferred this criminal

appeal.

4. Counsel for the appellants strenuously argued that the

prosecution has failed to prove that the age of prosecutrix was below 18

years at the time of the alleged incident. She was a consenting party.

Thus, aforesaid conviction and sentences are bad in the eyes of law

and not sustainable. Thus, aforesaid conviction and sentences may be

set aside and the appellants may be acquitted of the aforesaid charges.

5. The Govt. Adv. Appearing for the State submitted that aforesaid

conviction and sentences are based on clinching evidence led by the

prosecution. He supported the aforesaid conviction and sentences and

submitted that no interference is called for by this Court.

6. The first and foremost question for adjudication before this court

is as to whether prosecutrix was below 18 years of age on 28-4-1997.

7. P.W. 1 Abdul Rafiq who is father of the prosecutrix says in para 4

and 7 of his statement given on oath that on 28-4-1997 prosecutrix had

given the examination of Class 8th. At the time of alleged incident, her

daughter was 13 years old.

8. P.W. 1 Abdul Rafiq says in para 8 during his cross-examination

that he had admitted prosecutrix in school and at that time he had got
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written her date of birth.

9. As per the TC of Model Girls Higher Secondary School,

Khairagarh Ex. P-14 date of birth of the prosecutrix is 8-4-1983.

10. In Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) the

Hon’ble Supreme Court observed in paras-14 and 15 as under:

“14…..If the entry in the scholar’s register regarding date of birth
is made On the basis of information given by parents, the entry
would have evidentiary value but if it is given by a stranger or by
someone else who had no special means of knowledge of the
date of birth, such an entry will have no evidentiary value. Merely
because the documents Exs. 8, 9, 10. 11 and 12 were proved, it
does not mean that the contents of documents were also proved.
Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the correctness of date
of birth stated in the documents…..

15. …To render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on must be
one in a public or other official book, register or record, secondly,
it must be an entry stating a fact in issue or relevant fact, and
thirdly, it must be made by a public servant in discharge of his
official duty, or any other person in performance of a duty
specially enjoined by law. An entry relating to date of birth made
in the school register is relevant and admissible under Section 35
of the Act but the entry regarding to the age of a person in a
school register is of not much evidentiary value to prove the age
of the person in the absence of the material on which the age
was recorded….”

11. In Babloo Pasi v. State of Jharkhand and Another (2008 AIR

SCW 7332), Hon’ble Supreme Court in para 22 observed as under:-

“22. Insofar as the Board is concerned, it is evident that it has
mechanically accepted the entry in Voters List as conclusive
without appreciating its probative value in terms of the provisions
of Section 35 of the Indian Evidence Act, 1872. Section 35 of the
said Act lays down that an entry in any public or other official
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book, register, record, stating a fact in issue or relevant fact made
by a public servant in the discharge of his official duty especially
enjoined by the law of the country is itself a relevant fact. It is trite
that to render a document admissible under Section 35, three
conditions have to be satisfied, namely: (i) entry that is relied on
must be one in a public or other official book, register or record;

(ii) it must be an entry stating a fact in issue or a relevant fact,
and (iii) it must be made by a public servant in discharge of his
official duties, or in performance of his duty especially enjoined by
law. An entry relating to date of birth made in the school register
is relevant and admissible under Section 35 of the Act but the
entry regarding the age of a person in a school register is of not
much evidentiary value to prove the age of the person in the
absence of the material on which the age was recorded.”

12. It would be manifest to refer para-25 of the judgment of the

Supreme Court in Sunil v. State of Haryana [2010 (1) SCC 742] which

is extracted as under:-

“25. The prosecution also failed to produce any Admission Form
of the school which would have been primary evidence regarding
the age of the prosecutrix. The School Leaving Certificate
produced by the prosecution was also procured on 12.9.1996, six
days after the incident and three days after the arrest of the
appellant. As per that certificate also, she joined the school in the
middle of the session and left the school in the middle of the
session. The attendance in the school of 100 days is also not
reliable. The prosecutrix was admitted in the school by Ashok
Kumar, her brother. The said Ashok Kumar was not examined.
The alleged School Leaving Certificate on the basis of which the
age was entered in the school was not produced.”

13. In Alamelu and another Vs. State represented by Inspector of

Police, (2011) 2 SCC 385, the Supreme Court held :

“that the transfer certificate which is issued by a government
school and is duly signed by Headmaster would be admissible in
evidence u/s 35 of the Evidence Act, 1872. However, the
admissibility of such a document would be of not much
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evidentiary value to prove the age of the prosecutrix in the
absence of the material on the basis of which the age was
recorded. The date of birth mentioned in the transfer certificate
would have no evidentiary value unless the person, who made
the entry or who gave the date of birth is examined.”

14. In the case in hand P.W. 1 Abdul Rafiq, P.W. 2 Prosecutrix and

P.W. 3 Amjad Khan who is real brother of the prosecutrix do not say

clearly and strongly about the date of birth of the prosecutrix and

reasons therefor.

15. P.W. 9 Aditya Khare, in-charge principal of Girls Higher

Secondary School, Khairagarh says in para 5 during his cross

examination that he had not admitted prosecutrix in the school, she was

admitted by the then principle who was posted at that time.

16. In the case in hand, prosecution failed to examine concerned

officer who had written the said date of birth of the prosecutrix at the

time of her admission in the school, in the declaration form or in the

school register, that could have been a source of information for the

date of birth of the prosecutrix. Prosecution has failed to give any

explanation as to why it was not done.

17. Looking to the aforesaid facts and circumstances of the case,

judicial precedents laid down by Hon’ble Supreme court in Birad Mal

Singhvi (Surpa), Babloo Pasi (Supra), Sunil (Supra), Alamelu

(Supra) this court disbelieves aforesaid statements of para 4 and 7 of

P.W. 1 Abdul Rafiq, and Ex. P-14 in the reference that on 28-4-1997

the prosecutrix was below the 18 years of age.

18. As per alleged MLC report Ex. P-6, P.W. 6 Dr. Kanti

Gangajaliwale opined after the Dental examination that prosecutrix was

around 14-15 years of age.

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19. In Ex. P-6, P.W. 6 Dr. Kanti Gangajaliwale had advised x-ray of

long bone of prosecutrix for confirmation of age.

20. P.W. 6 Dr. Kanti Gangajaliwale says in para 3 and 4 during her

cross-examination that she is not dental expert. This is true that without

ossification test the age cannot be determined correctly.

21. In the case in hand no ossification test was conducted by the

prosecution of the prosecutrix for determination of her age.

22. In Jaya Mala v. Home Secretary, Government of Jammu and

Kashmir And Others [AIR 1982 SC 1297] the Hon’ble Supreme Court

has observed that margin of error in age ascertained by radiological

examination is two years on either side.

23. Looking to the aforesaid facts and circumstances of the case,

looking to the aforesaid judicial precedent laid down by Hon’ble

Supreme Court in the matter of Jaya Mala (supra) this Court

disbelieves Ex. P-6 in the reference that on 28-4-1997 the prosecutrix

was below 18 years of age.

24. After the appreciation of the evidence discussed herebefore this

Court finds that prosecution has failed to prove beyond reasonable

doubt that on 28-4-1997 prosecutrix was below 18 years of age.

25. Now second question for adjudication before this Court is as to

whether prosecutrix was allegedly “a consenting party”.

26. As per the prosecution story, prosecutrix was agreed to marry

with appellant No. 1 Mohd. Shamshuddin. On 28-4-1997 she had left

her paternal house by sitting on bicycle of appellant No. 3 Mohd.

Rijwan, she went to Dau Chaura. Thereafter, she sat on the moped of

appellant No. 1 Mohd. Shamshuddin and went to Garrapar along with

him. Thereafter they and appellant No. 2 Mohd. Sabir went to Jabalpur
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by Tampo Trax. From there they went to Damoh. They lived for one and

half month in the house of paternal aunt of appellant No. 2 Sabir.

Thereafter they went to Jabalpur and lived in a rented house. Thereafter

she and appellant No. 1 Mohd. Shamshuddin went to Kawardha.

27. P.W. 1 Abdul Rafiq says in para 2 during examination in chief that

in the bag of prosecutrix a letter was found. From reading of the said

letter, it was revealed that she had planned for absconding. P.W. 2

Prosecutrix says in para 3 during examination in chief that first he had

sent a letter to appellant No. 1 Mohd. Shamshuddin. She says in para

5, 11 (twice) and 15 during her cross-examination that she had written

the letters Ex. D-2 Ex. D-3, Ex. D-4, Ex. D-5 and Ex. D-6 to appellant

Mohd. Shamshuddin. This Court finds that these letters are the love

letters. This is true that she wanted to go on her wish and will thus, she

had sat on the carrier of the cycle of appellant No. 3 Mohd. Rijwan.

She had not made complaint to anyone during residing in Damoh,

Jabalpur and Kawardha. At the time of sexual intercourses, she had

snatched the hairs of appellant No. 1 Mohd. Shamshuddin but this fact

is omitted in her police statement Ex. D-7. During residing at Jabalpur,

they used to meet with some other persons. This is true that they were

going for dinner in the house of people of their community. This is true

that she did not complain to anyone.

28. In Rajkumar Bajaj @ Raja v. State of C.G. [2012 (4) CGLJ 437]

the learned Single Judge of this Court has observed in para-9 as

under :-

“9. Minute examination of the evidence of the witnesses
particularly that of the prosecutrix (PW-3), her parents (PW-1 and
PW-2) and Laxmi Bai (PW-9) goes to show that she (prosecutrix)
was a consenting party. Evidence further shows that the
prosecutrix lived in the house of Dhaniram (PW-4) along with
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accused Raja for five days and used to go out for answering the
call of nature and fetching water from the hand pump but during
this long period she, in spite of having full opportunity, did not
make any complaint to anyone about her being confined by the
accused/appellant Raja. This conduct of the prosecutrix also
makes it clear that she was consenting party to the act of
accused/appellant Raja. Now the only question is regarding her
age. Prosecution has filed photocopy of the Kotwari register (Ex.
P-15-A) but event this document has not been proved by the
prosecution in accordance with law. Original Kotwari register has
not been produced in the Court by the prosecution nor there is
any evidence to show as to on what basis the date of birth of the
prosecutrix was entered in the said Kotwari register as
20.07.1980. Even the parents of the prosecutrix have not stated
anything regarding the age of the prosecutrix. Moreover, the
doctor (PW-8) who medically examined the prosecutrix has
stated that she was a fully grown up woman. Though the record
shows that prosecutrix was referred for x-ray for determination of
age, there is no such report on record”

29. In Subelal v. State of M.P. (Now C.G.) [2011(4) CGLJ 424] in

para-12 the learned Single Judge has observed as follows:-

“12. Now we shall examine the conduct of the prosecutrix. The
case of the prosecution is that the prosecutrix accompanied the
appellant and she went from village Zoratarai to village Bhakara
on his bicycle. From Bhakara, they boarded a bus and went to
Dhamtari. Further, from Dhamtari, they went to village Utai to the
house of the sister of the appellant, they again boarded a mini
bus and went to Bhilai (Power House). The appellant took the
prosecutrix to the house of his other sister who was residing in
Bhilai. The prosecutrix alleges that she was subjected to forcible
sexual intercourse by the appellant in the house of his sister.
Though the prosecutrix visited many places with the appellant,
but she did not make any compliant and accompanied him in
normal manner. This shows that she was not abducted and was
not taken by force and she accompanied the appellant on her
own will and it was not a case that the appellant committed
sexual intercourse without her consent. Considering the evidence
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of age and conduct of the prosecutrix, I am of the view that the
prosecutrix was a consenting party with the appellant and in the
above facts and circumstances of the case, the offences u/ss
363, 366 376 Indian Penal Code would not be made out
against the appellant.”

30. Looking to the above mentioned facts and circumstances of the

case, looking to the aforesaid judicial precedents laid down by

Rajkumar Bajaj @ Raja (supra) and Subelal (supra), this Court finds

that prosecutrix was a ‘consenting party’.

31. Third question for adjudiciation before this Court is as to whether

the consent of prosecutrix was “free consent”.

32. P.W. 2 Prosecutrix says in para 4 that she had gone along with

appellant No. 1 Mohd. Shamshuddin on account of his enticement on

pretext of marriage.

33. The Hon’ble Supreme Court in the matter of Uday -v- State of

Karnataka [(2003) 4 SCC 46] held as under :-

“for determining whether consent given by the prosecutrix was
voluntary or under a misconception of fact, no straight jacket
formula can be laid down but following factors stand out (i) where
a girl was of 19 years of age and had sufficient intelligence to
understand the significance and moral quality of the act she was
consenting to, (ii) she was conscious of the fact that her marriage
was difficult on account of caste considerations, (iii) it was difficult
to impute to the appellant knowledge the prosecutrix has
consented in consequence of a misconception of fact arising from
his promise, (iv) there was no evidence to prove conclusively that
the appellant never intended to marry the prosecutrix. On the
basis of the above factors this court did not feel persuaded to
hold that consent was obtained by misconception of fact on the
part of the victim.”

34. In the matters of Yedla Srinivasa Rao -v- State of AP [(2006)8

Supreme 326] and Deepak Gulati -v- State of Haryana [(2013) 3 SCC
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675, Hon’ble Supreme Court has laid down following judicial precedent

that –

“merely because accused could not keep his promise on account
of unavoidable circumstances, prosecutrix cannot be said to have
given her consent under misconception of fact arising from any
false promise of marriage.”

35. As per the prosecution story appellant had assured the

prosecutrix that he will get divorce to his legally wedded wife. It means

that prosecutrix was knowing that the appellant is already married and

he had not given divorce to his legally married wife.

36. There is no such evidence available on record on strength of

which it can be said that the intention of the appellant right from the

beginning was not bonafide and he had made a false promise to marry

prosecutrix, from the initial stage he had no intention to marry with her.

37. As per the provisions of Section 375 of the IPC, Sixthly [the

Criminal Law (Amendment) Act, 2013 came into force on 3 rd day of

February, 2013] a man is guilty of the offence of rape who commits

sexual intercourse with or without consent of the prosecutrix who is

under 18 years of age. Before this amendment for constituting this

offence the age of prosecutrix was under 16 years.

38. Looking to the above mentioned facts and circumstances of the
case, Judicial Precedents laid down by Hon’ble Supreme Court in the
matters of Uday (supra), Yedla Srinivasa Rao and Deepak Gulati
(supra), this court disbelieves the statement of para 4 of prosecutrix in
the reference that her consent was not free consent and this Court
finds that consent of the prosecutrix was free consent.

39. Looking to the above mentioned facts and circumstances of the

case this court finds that prosecution has failed to prove beyond

reasonable doubt the charges punishable u/s 363, 366, 376, IPC. Thus,

trial court committed illegality in convicting and sentencing appellants
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as aforesaid. Hence, the appeal is allowed. The impugned judgment of

conviction and order of sentences are hereby set aside. This court

acquits appellants of the charges punishable u/s 363 and 366, IPC

extending them benefit of doubt. This Court also acquits appellant No 1

Mohd. Shamshuddin of the charge punishable under Section 376 of the

IPC extending him benefit of doubt.

40. The appellants are on bail. Their bail bonds shall continue for a

further period of 6 months as per requirement of Section 437-A of the

Cr.P.C.

Sd/-

(Sharad Kumar Gupta)
Judge

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