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Rahul vs The State Of Madhya Pradesh on 23 July, 2018

Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 1

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE

SINGLE BENCH : HON’BLE SHRI JUSTICE VIRENDER
SINGH

Criminal Appeal No.3295/2018
Rahul
Vs.
State of M.P.
-x-x-x-x-x-x-x-x-x-x-x-

Mr. M.R. Phadke, learned counsel for the appellant.
Mr. Hemant Sharma, learned Public Prosecutor for the
respondent-State.
-x-x-x-x-x-x-x-x-x-x-x-

Reserved on:17/07/2018
JUDGMENT

(Delivered on 23rd day of July, 2018)

Being aggrieved by judgment and order dated
22/03/2018 passed in Sessions Trial No.346/2015 by 2nd
Additional Sessions Judge, Shujalpur, district-Shajapur,
whereby the learned trial Court has held the appellant guilty
for the offence under Sections 363 366 of IPC and
sentenced him to undergo 2 years and 5 years RI and fine of
Rs.1000/- each respectively; in default of payment of fine
further to undergo 6 months RI each, the appellant has
preferred this appeal.

2. Facts in brief are that on 31.07.2015 prosecutrix, aged
16 years, had gone to the school but didn’t return home from
the school. Her mother informed her grandfather at the farm
land. They searched for her in village and also at the places of
relatives. During the search, they came to know that the
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 2

accused was also not at home. Suspecting that he has taken
away the prosecutrix, grandfather informed police Kalapipal.
The Police registered Crime No.301/15 u/S 363 366 of IPC.
The police recovered the prosecutrix. On next day i.e.
01/08/2015 from railway station, Indore and produced her
before the Judicial Magistrate who recorded her statement
under Section 164 Cr.P.C. The police also seized documents
i.e. scholar register, school leaving certificate and mark-sheet
from her school to establish her date of birth. After arresting
the accused, the police filed the charge-sheet.

3. Accused was charged, tried and convicted as stated in
para-1 above.

4. The appellant has preferred this appeal on the ground
that the judgment of the trial Court is contrary to the law and
facts of the case. Learned trial Court has committed error in
appreciating the document relating to the age of the
prosecutrix particularly the document produced by the
defence. As per the document produced by the defence, her
age comes to 18+ years at the time of the incident but learned
trial Court discarded this evidence without any just and proper
reason. Further the learned trial Court has erroneously not
considered that the prosecutrix was consenting party,
therefore, finding recorded by the learned trial Court are
incorrect and the appellant deserves to be acquitted.

5. It is further submitted that in her statements recorded
under Sections 161 Cr.P.C. before the Police as well as
u/S.164 of Cr.P.C. before the Judicial Magistrate, the
prosecutrix has not supported the case of the prosecution and
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 3

has stated that she had gone along with the appellant on her
own will as they both were having affair. Whereas in the court
statement she took a somersault and levelled allegations
against the appellant. This renders the entire Court statement
doubtful. Learned trial Court has committed error in not
considering such and other contradictions and omissions
appeared in the statements of the prosecutrix. Essential
ingredients constituting the offence charged with, are not
available on the record even then the learned trial Court has
convicted the appellant. The judgment passed by the learned
trial Court is bad in law and therefore, it is prayed that the
same be set aside and the appellant be acquitted.

6. Learned Public Prosecutor has opposed the prayer.
Supporting the judgment of the learned trial Court, the learned
Public Prosecutor has submitted that the prosecutrix in her
statement has clearly depicted the incident before the trial
Court and her statement is well supported by the evidence
produced by the prosecution, therefore, no ground for
interference in the impugned judgment is made out and
according to the learned Public Prosecutor, the appeal
deserves to be dismissed.

7. I have considered rival contentions of the parties and
have gone through the record.

8. Statement of prosecutrix recorded by Judicial Magistrate
First Class under Section 164 Cr.P.C. (Ex.P/13) reads thus:-

“1 eSa xzke csgjkoy esa jgrh gwa vkSj d{kk 11 oha
esa i+rh gwaA eS esjs xkao ds gh jgus okys jkgqy cykbZ dks
67 o”kZ iwoZ ls tkurh gwaA eS vkSj jkgqy ,dnwljs dks
ilUn djrs gS vkSj ‘kknh djuk pkgrs gSA eSa vkSj jkgqy
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 4

vkil esa ckr djrs gS ;g ckr esjs eEeh lkSje ckbZ o
firk y[kuyky dks irk py x;h rks mUgksusa eqs
lek;k FkkA eEeh ikik us esjh 23 eghus igys [kjnksu
xkao esa ftrsUnz uke ds yM+ds ls dj nh gS ysfdu lxkbZ
ds ckn Hkh eSa jkgqy ls ckr djrh FkhA jkgqy us eqs dgk
Fkk fd rqe dkykihiy vk tkuk vkSj ge nksuksa ‘kknh dj
ysaxs] eSus Hkh gka dj nh blfy, eSa jkgqy ds lkFk fnukad
31-7-15 dks ‘kke ds le; fdlh dks fcuk crk;s
dkykihiy ls viuh ethZ ls Vsªu esa cSBdj mTtSu pyh
xbZ Fkh jkgqy Hkh mlh jkr esa dkykihiy ls Vsªu esa
cSBdj mTtSu vk x;kA ml jkr dks ge nksuksa mTtSu
Lvs’ku ij igqaps vkSj LVs’ku ij gh jkr :ds FksA ge
nksuksa cSaxyksj tkuk pkg jgs Fks ysfdu Vsªu ugh gksus ls
ogha jsYos LVs’ku ij cSBs Fks brus esa esjs ikik ogka vk x;s]
ikik dks ns[kdj jkgqy eqs ogha IysVQkeZ ij NksM+dj
Hkkx x;kA ikik us eqs idM+ fy;k vkSj fQj iqfyl dks
Qksu yxk;k mlds ckn iqfyl vk;h rks oks eqs vkSj ikik
dks ysdj dkykihiy vk x;hA jkgqy eqs ‘kknh ds fy,
Hkxkdj ysdj tk jgk Fkk ysfdu jkgqy us esjs lkFk dksbZ
xyr gjdr o [kksVk dke ugh fd;kA eSa viuh bPNk ls
vius eEeh ikik ds lkFk tkuk pkgrh gwaA”

9. Before recording this statement, learned Judicial
Magistrate has complied with the conditions stipulated for
recording such statement. He explained her rights and its
repercussions to the prosecutrix and after ensuring that she is
giving her statement voluntarily, recorded her statement.

10. Similar is the statement of the prosecutrix recorded by
the police under Section 161 of Cr.P.C.

11. In both these pretrial statements the prosecutrix has not
made any allegation against the appellant.

12. The learned trial Court has recorded conviction mainly
relying on the statement of the prosecutrix given before the
Court during the trial in which the prosecutrix has supported
the case of the prosecution alleging that the appellant took her
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 5

away forcibly.

13. Both these statements recorded at pre post-trial stage
are different and almost contrary to each other. Her pretrial
statements clearly show her consent and willingness to go
with the appellant, which makes her post-trial statement
doubtful and unreliable.

14. Now the question remains as to the age of the
prosecutrix; as if she was minor at the time of the incident, her
consent is meaningless but if she was major at that time, her
consent will play crucial role in deciding the culpability of the
appellant.

15. On this aspect also, two antonymous sets of evidence are
available on record, one produced by the prosecution while
other by the defence. The prosecution has produced entry of
scholar register (Ex.P/9) showing date of birth of the
prosecutrix as 05/07/1999 and her mark-sheet of Board of
Secondary Education, Madhya Pradesh of the year 2015
(Ex.P/5) showing the same date of birth. Both these
documents are proved by Principal, Satyam Shiksha Niketan
High School, Behrawal Kalapipal, Purushottam Shrivastava
(P.W.8) and the prosecutrix (P.W.3) herself respectively. At the
other side, the defence has produced and proved scholar
register of Govt. Girls Primary School, Bhehrawal (Ex.D/3)
and School Transfer Certificate issued by the Principal of the
same school (Ex.D/4). In both these documents, date of birth
of the prosecutrix is mentioned as 5th of July, 1997 in word
and figure both. The defence has examined In-charge
Principal of the same school – Shivprasad Sharma as D.W.2,
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 6

who has proved both these documents so also the date of birth
of the prosecutrix mentioned in these documents.

16. Again, two different and converse date of births of the
prosecutrix are available on record, one showing her under 18
years at the time of the incident while other is showing her
over 18 years. Learned trial Court has relied on the date of
birth produced by the prosecution and discarded the record of
the government school without assigning any justified reason.

17. I have considered statement of witnesses produced by
rival parties and also the record proved by them.

18. First of all, it would be apt to mention that the defence
has produced record of the Govt. Girls Primary School
while the record produced by the prosecution is record of a
private school. Certainly, Public Document has to be given
more weightage in comparison to Private Document more
particularly when we also have reasons to do so. A
presumption; though rebuttable, is also attached to the Public
Document. Until and unless something contrary is proved, the
Public Documents shall be treated as true.

19. Now we consider the merits. So far as entries in the
scholar register Ex.P/9 is concerned, The Principal of Satayam
Shiksha Niketan Purushottam PW/8 has admitted that in this
document (Ex.P/9), the date of birth of the prosecutrix was
mentioned on the basis of the record of the primary section of
the school and undisputedly, in the matriculation mark-sheet,
the date of birth is mentioned on the basis of this scholar
register.

20. The Prosecutrix, her parents so also the Principal of
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 7

Satyam Shiksha Niketan High School, Bherhawal, a private
school have claimed that since beginning i.e. Class-I, the
prosecutrix has studied in this Satyam Shiksha Niketan but
when been asked, they failed to produce record of admission
of the prosecutrix in Class-I to Class-V, which is the basic
document for making entries in the later documents like
scholar register of Class-IX or the matriculation mark-sheet.
Principal, Purushottam (P.W.8), who has produced those
document has admitted in his cross-examination that no
document regarding admission of the prosecutrix in Class-I up
to Class-V are available in his school. To escape from
responsibility, he come forward with explanation that in the
preceding year of his statement i.e. in the year 2015, the said
record got vanished as room in which the record was kept,
submerged in the rainwater due to heavy rains. The reason is
ostensibly false. No evidence regarding heavy rains or
accumulation of rainwater is produced and at one place they
are saying that the record of Class-I to V is got destroyed due
to rainwater, but at the same time, they are claiming that
record from VIth standard onward was available with them.
This creates doubt regarding truthfulness of the statement of
the principal.

21. Thus, the document produced and proved by the
Principal Purushottam (P.W.8) are based on the record of
admission of the prosecutrix in the primary section which is
not available and non-availability of that record is doubtful,
therefore, the record produced by the prosecution becomes
doubtful.

Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 8

22. Shivprasad Sharma (D.W.2) has deposed on oath that as
per the scholar register available in the Govt. Girls Primary
School, Bheherwal, the prosecutrix was admitted in the school
in the year 2003 on 18/07/2003. After sometime, she left the
school and school leaving certificate was issued to her but
after some gap she was again admitted to the school and as
per rules and procedure, entry of her readmission was made
mentioning the same serial number and in all these
documents, her date of birth is mentioned as 05/07/1997.
Despite adroit efforts, nothing could be extracted by the
learned Public Prosecutor from his cross-examination which
makes his statement or the document produced by him
doubtful.

23. The learned trial Court has relied upon the oral
statements of the prosecutrix, her parents and the principal of
a private school assuming that these statements are
corroborated by the documents proved by them. But these
documents relied upon by the learned trial Court are not found
trustworthy and oral evidence to contradict the contents of
document cannot be accepted. Law is well settled as to when
written document is available, no amount of oral evidence can
substitute it.

24. The argument of the learned Public Prosecutor is that the
appellant could not establish genuineness of the record of the
Govt. Girls School beyond reasonable doubts. But In Salim
Zia v. State of Uttar Pradesh (1979) 2 SCC 648 : (AIR
1979 SC 391) Hon’ble the Supreme Court observed that ‘the
burden on an accused person to establish his defence is not as
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 9

onerous as the one which lies on the prosecution. While the
prosecution is required to prove its case beyond reasonable
doubt, the accused need not establish the plea to the hilt and
may discharge his onus by establishing a mere
“preponderance of probabilities” either by laying basis for that
plea in the cross-examination of the prosecution witnesses or
by adducing defence evidence.’ In Shivaji Laxman Shinde
Vs. State of Maharashtra and another 2002 CRI. L. J.
3044 (Bombay HC) it is held that it is a credential principle
of criminal law that the accused does not have to prove
defence beyond reasonable doubt he can succeed if he creates
doubt about the prosecution case. In the case of Krishna
Janardhan Bhat v. Dattathraya G. Hegde reported in AIR
2008 SC 1325 : (2008 (2) AIR Kar R 219) it is observed by
the Hon’ble Supreme Court at paragraph Nos. 23 and 25 as
under :

23 : “……. Standard of proof on the part of an
accused and that of the prosecution in a criminal
case is different.”

25 : “Furthermore, whereas prosecution must
prove the guilt of an accused beyond all
reasonable doubt the standard of proof so as to
prove a defence on the part of an accused is
“preponderance of probabilities”. …

25. Similarly, in Mohd. Ramzani v. State of Delhi 1980
Supp SCC 215 : (AIR 1980 SC 1341), it has been held that it
is trite that the onus which rests on an accused person under
Section 105, Evidence Act, to establish his plea of private
defence is not as onerous as the unshifting burden which lies
on the prosecution to establish every ingredient of the offence
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 10

with which the accused is charged, beyond reasonable doubt.

26. In this regard, we can suitably refer Para 14 of the
Ranjitham Vs. Basavaraj and Ors AIR 2012 SC 1856,
which reads as under:

14. That the deceased was stabbed by A2 is
admitted. A2 has taken up the defence of right
of private defence. In several decisions, this
court has considered the nature of this right.
Right of private defence cannot be weighed in a
golden scale and even in absence of physical
injury, in a given case, such a right may be
upheld by the court provided there is reasonable
apprehension to life or reasonable apprehension
of a grievous hurt to a person. It is well settled
that the onus of proof on the accused as to
exercise of right of private defence is not as
heavy as on the prosecution to prove guilt of the
accused and it is sufficient for him to prove the
defence on the touchstone of preponderance of
probabilities (See Sat Narain v. State of
Haryana (2009) 17 SCC 141 : (AIR 2008 SC
999 : 2008 AIR SCW 548). In V Subramani and
Anr. v. State of Tamil Nadu (2005) 10 SCC
358 : (AIR 2005 SC 1983 : 2005 AIR SCW
1311)., this Court examined the nature of this
right. This court held that whether a person
legitimately acted in exercise of his right of
private defence is a question of fact to be
determined on the facts and circumstances of
each case. In a given case it is open to the Court
to consider such a plea even if the accused has
not taken it, but the surrounding circumstances
establish that it was available to him. The
burden is on the accused to establish his plea.

The burden is discharged by showing
preponderance of probabilities in favour of that
plea. The injuries received by the accused, the
imminence of threat to his safety, the injuries
caused by the accused and whether the accused
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 11

had time to have recourse to public authorities
are all relevant factors to be considered.

27. Thus, two documents showing different date of births of
the prosecutrix contrary to each other are available on record.
Similarly to contrary to each other statements of prosecutrix
are also available on record. In such a situation, the evidence
produced by the prosecution becomes doubtful and it is settled
law that the benefit of doubt will always goes in favour of the
accused. If we consider that the evidence produced by the
prosecution is stronger than the one produced by the
appellant, even than looking to the evidence, two views are
possible and in that case also the conviction of the appellant
cannot be upheld. In this regard we profitably refer State of
Gujarat Vs. Jayrajbhai Punjabhai Varu. AIR 2016 SC
3218 in which the Hon’ble Apex Court says that when two
views possible, view favourable to accused should be
adopted. Para 13 of the judgement reads thus:

13. The burden of proof in criminal law is
beyond all reasonable doubt. The prosecution
has to prove the guilt of the accused beyond all
reasonable doubt and it is also the rule of justice
in criminal law that if two views are possible on
the evidence adduced in the case, one pointing
to the guilt of the accused and the other towards
his innocence, the view which is favourable to
the accused should be adopted.

28. Similar view has been taken earlier in State of U. P v.
Munni Ram and others AIR 2011 SC (Supp) 573 stating
that when two views possible on evidence adduced, one
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 12

pointing to the guilt of accused and other to innocence – View
which is favourable to accused is normally to be adopted.
(Para 18) and in Mir Nagvi Askari v. C.B.I AIR 2010
SUPREME COURT 528 (Para 161.) ……. As long as there is
the slightest opportunity of two views possible, in our opinion,
the one in favour of the accused must be adopted and in
Mohd. Azad @ Samin v. State of W. B AIR 2009 SC 1307
Vithal Eknath Adlinge v. State of Maharashtra AIR
2009 SC 2067 when two views possible – view in favour of
accused must be accepted.

9. In State of U.P. v. Ashok Kumar Srivastava
(1992 Crl LJ 1104), it was pointed out that great
care must be taken in evaluating circumstantial
evidence and if the evidence relied on is
reasonably capable of two inferences, the one in
favour of the accused must be accepted. It was
also pointed out that the circumstances relied
upon must be found to have been fully
established and the cumulative effect of all the
facts so established must be consistent only
with the hypothesis of guilt.

29. Learned trial court has not considered the evidence
produced by the prosecution in its right perspective. I have
reasons to doubt the opinion expressed by the learned trial
Court. Considering the facts and the evidence in totality, in
my considered view, the evidence relied upon by the
prosecution doubtful, guilt of the appellant cannot be upheld
on such evidence. The evidence adduced by the prosecution
falls short of reliability and is unsafe to record conviction. It
cannot be said that the prosecution has established the facts
Cr.A. No.3295/2018 (Rahul vs. State of M.P.) 13

beyond reasonable doubt and certainly benefit of doubt is to
be given to the appellant. Consequently, the appeal filed by
the appellant is allowed. The impugned judgment and order of
sentence is hereby set aside. The appellant is acquitted from
the charge under Sections 363 366 of IPC. Fine, if
deposited be returned to the appellant. He be set at liberty
forthwith, if not required in any other offence.

30. The order of the trial court regarding disposal of
property is hereby confirmed.

(Virender Singh)
Judge

soumya

Digitally signed by

Soum
Soumya Ranjan Dalai
DN: cIN, oHigh
Court of Madhya
Pradesh,

ya ouAdministration,
postalCode452001,
stMadhya Pradesh,

Ranjan
2.5.4.20f4d2118683e8
4322bb5797cf28ee606
71538b737cf52962d84
d7b527897e53ac,

Dalai cnSoumya Ranjan
Dalai
Date: 2018.07.24
19:17:36 +05’30’

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