SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Santosh Kumar vs State 13 Fam/91/2011 Dayachand … on 19 April, 2018

1/15

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 06.04.2018
Pronounced on 19.04.2018

CRIMINAL APPEAL No. 1282 of 1999
 Santosh Kumar S/o Shri Sadhu Ram Satnami, aged about 20
years, R/o Khandaspot Thana Barela, District – Durg, M.P. (Now
C.G.)
—- Appellant
Versus
 State of M.P. (Now C.G.)

—- Respondent
.

For appellant : Shri K.K. Singh and Shri Parag Kotecha, Advocates
For Respondent/State : Shri Lav Sharma, Panel Lawyer

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 31.03.1999 passed by the

Additional Sessions Judge, Bemetara District – Durg in Sessions Trial

No. 164/1998 whereby and whereunder he convicted and sentenced

the appellant as under:-

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

1. 363, Indian RI for 3 years + fine Additional RI for 3 months
Penal Code of Rs. 200/-

(for short
‘IPC’)

2. 366, IPC RI for 3 years + fine Additional RI for 3 months
of Rs. 200/-

3. 376, IPC RI for 7 years + fine Additional RI for 3 months
of Rs. 200/-

2/15

All the substantive jail sentences have been directed to run

concurrently.

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

alleged incident was aged near about 13 years, she was resident of

village Gutheli. She was studying in class sixth. On 09.02.1998, she

had gone to her village school. Near about 1 pm she felt stomach pain,

thus after obtaining leave, she left school and went to village pond.

When she was returning back from the pond to school, on the way,

appellant who was along with bicycle told her that he would marry her,

thus asked her to come and sit on his bicycle. Prosecutrix thereafter,

moved by this incitement, sat on his bicycle. Appellant took her to his

brother-in-law’s house at village – Banbarad where the appellant

committed sexual intercourse with prosecutrix on the pretext of

marriage. On 11.02.1998, prosecutrix and appellant enjoyed a fair at

village Banbarad. In the evening, her father searching her reached

there and took her back. Being night at that time, prosecutrix went to

PS Berala on 12.02.1998 where she lodged FIR vide Ex.P/1. During

investigation PW 13 Sub Inspector J.S. Chouhan, PS Berla seized one

underwear from prosecutrix vide Ex. P/2 and one underwear from

appellant vide Ex. P/3. He sent the prosecutrix and her aforesaid

underwear for medical examination. PW 7 Dr. Smt. Sugam Sawant

examined prosecutrix and gave report vide Ex. P/5. The said lady

doctor also examined the seized underwear of prosecutrix and gave

report vide Ex. P/6. PW 8 Dr. M.C. Patela examined seized underwear

of appellant and gave report vide Ex. P/7. Said doctor also examined

appellant and gave report vide Ex. P/8. During the investigation the

statements of witnesses have been also recorded under Section 162
3/15

Cr.P.C. Spot map was prepared by the investigating officer. PW 12 Dr.

A.D. Urgaonkar examined x-ray film of prosecutrix and gave opinion

vide Ex. P/11. Two sealed slides were also seized vide Ex. P/16. From

PW 6 Suresh Kumar, the Lecturer and In-charge Principal, Government

Higher Secondary School, Gutheli birth certificate of prosecutrix was

seized vide Ex. P/17. Birth certificate of prosecutrix is Ex. P/4-C. Spot

map was also prepared by Patwari. Seized underwear, slides were sent

to RFSL. RFSL report is Ex. P/21. After completion of the investigation,

the charge-sheet was filed against appellant under Section 363, 366,

376 IPC. The trial Court framed charges against appellant under

Section 363, 366, 376(1) IPC. Appellant abjured the charges and faced

trial. To bring home the charges, the prosecution examined as many as

13 witnesses.

3. Appellant did not examine any witness on his defence. The

defence of appellant is that his father’s paddy was kept in the custody

of prosecutrix’s father, therefore to escape from returning back the

same, he has been falsely implicated in the case.

4. Shri K.K. Singh and Shri Parag Kotecha, counsel for the

appellant strenuously argued that the prosecution has failed to prove

that the age of prosecutrix was below 18 years. Prosecutrix was the

consenting party. Thus, aforesaid conviction and sentence are bad in

the eyes of law and not sustainable. Thus, aforesaid conviction and

sentence may be set aside.

5. Shri Lav sharma, Panel Lawyer for the State submitted that

aforesaid conviction and sentence are based on clinching evidence led

by the prosecution. He supported the aforesaid conviction and

sentence and submitted that no interference is called for by this Court.
4/15

6. The first and foremost question for adjudication before me is,

what was the age of prosecutrix on 09.02.1998?

7. Shri K.K. Singh and Shri Parag Kotecha, counsel for appellant

placed reliance on para 6 of Akeel v. State of M.P. [1998 (2) MPLJ

199} relevant portion is extracted below:-

“6. … it is well known that the determination of age by ossification

test is neither absolute nor exact…….

School leaving certificate cannot form the basis to

determine the age as the guardians have tendency to understate

the age of their children at time of admission in school……”

8. As per the birth certificate Ex. P/4-C the date of birth of

prosecutrix is 26.06.1985 issued on the basis of the entry at serial

number 2160 of the Dakhil Kharij Register.

9. 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 in 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
5/15

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.”

10. 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 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
6/15

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.”

11. 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.”

12. In Subelal v. State of M.P. (Now C.G.) {2011(4) CGLJ 424}

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

under :-

“9. 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 evidentiary
7/15

value to prove the age of the prosecutrix in the
absence of the material on the basis of which the age
was recorded. The Supreme Court held that – 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. In the present case, though PW-10
admitted to issue the transfer certificate (Ex.P/15) on
the basis of entry in the school register, but the entry
in the school register, by which, the prosecutrix was
admitted in Class-6th, itself was not proved.

13. In the matter of State of Madhya Pradesh v. Munna @

Shambhoo Nath in Criminal Appeal No. 658 of 2011 decided on

18.09.2015 the Hon’ble Supreme Court has observed that the mother

of the prosecutrix also was not able to give the exact age of the

prosecutrix. No question was also asked to the prosecutrix by the

prosecution about her age. Taking into account all these facts, the High

Court correctly came to the conclusion that the prosecution has totally

failed to prove beyond reasonable doubt that the girl was less than 16

years of age at the time of the incident. Further the Hon’ble Supreme

Court has observed that to prove its case, the prosecution produced

evidences including school certificate, opinion of the doctor who

conducted medical examination of the prosecutrix, bone ossification

test but since the doctor was not examined the High Court held that

none of them could bring home the case of the prosecution. The

prosecution produced school certificate of the prosecutrix and

examined the Principal of Babu Manmohandas Hitkarini Girls Higher

Secondary School, Dixitpura (PW1), where the prosecutrix studied in

her 9th standard. In his cross-examination, PW1 stated that the age of

the prosecutrix was noted at the time of admission but he had no
8/15

knowledge about the fact as to what date of birth would have been

mentioned in her letter of declaration. The examination-in-chief of PW8

(Dr. Nisha Sahu) does not support the prosecution story. In her opinion,

the girl could not have attained the age of 14 years, but further in her

examination-in-chief and cross-examination, she stated that she could

not opine about the present intercourse. Other findings of PW8 are

mere opinions and cannot be relied upon completely to establish the

guilt of the accused.

14. In the case in hand, the prosecution failed to examine any person

who had special means of knowledge of the aforesaid date of birth of

prosecutrix which he/she had informed at the time of said entry to the

concerned authority which has been written in the declaration form, that

could have been main source of information for the date of birth of the

prosecutrix. The prosecution failed to give any explanation as to why it

was not done. Moreover, prosecution failed to examine the author of the

entry of the aforesaid date of birth of prosecutrix in Dakhil Kharij

Register and declaration form. Looking to these circumstances and the

aforesaid judicial precedents laid down in Akeel (Supra), Birad Mal

Singhvi (Supra), Babloo Pasi (Supra), Sunil (Supra) and Subelal

(Supra), this Court finds that the prosecution does not get any help from

Ex. P/4-C for assessment of the age of prosecutrix.

15. As per the ossification test report Ex. P/11, PW 12 Dr. A.D

Urgaonkar had examined the X-ray film of prosecutrix and opined that

the age of prosecutrix is 15 years.

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

Kashmire And Others {AIR 1982 SC 1297} the Hon’ble Supreme
9/15

Court has observed that margin of error in age ascertained by

radiological examination is two years on either side.

17. There is no such evidence on record on the strength of which it

could be said that Ex.P/11 is not believable in this reference that margin

of error of two years is possible on either side.

18. During recording of the statement of PW1 prosecutrix, Court had

prima facie estimated her age as 13 years.

19. PW1 prosecutrix says in para 1 of her statement given on oath

that at the time of the incident she was studying in 6th class. She says

in para 4 during her cross examination that she failed in one academic

year.

20. PW2 Chhannu who is the father of prosecutrix says in para 1 of

his statement given on oath that at the time of incident prosecutrix was

studying in 6th class, at that time her age was 13 years. He says in para

5 during his cross-examination that prosecutrix failed in one academic

year.

21. PW3 Urvashi, the mother of prosecutrix, says in para 1 of her

statement given on oath that at the time of incident prosecutrix was

studying in class 6th, at that time her age was 13 years.

22. As per the medical report Ex.P/5, PW7 Dr. Smt. Sugam Sawant

had estimated age of prosecutrix as 13 years.

23. There is no such evidence on record on the strength of which it

could be said that the aforesaid estimated age of the prosecutrix by

Court, aforesaid statement of PW1 prosecutrix, PW2 Chhannu, PW3
10/15

Urvashi, aforesaid estimated age of prosecutrix by PW 7 Dr. Smt.

Sugam Sawant are not natural, not simple and not normal.

24. Ex.P/11 gets corroboration from the aforesaid estimated age of

prosecutrix by the Court, aforesaid statement of PW1 prosecutrix, PW2

Chhannu, PW3 Urvashi, aforesaid estimated age of prosecutrix by PW7

Dr. Smt. Sugam Sawant, thus appellant does not get any help from the

aforesaid judicial precedent laid down by the Hon’ble Single Judge of

MP High Court in Akeel (supra), thus, this Court believes on Ex.P/11 in

this reference that there is possibility of error of two years of age on

each side.

25. After appreciation of the evidence discussed herebefore this

Court finds that the prosecution has failed to prove that on 09.02.1998

the age of prosecutrix was below 16 years, but succeeded to prove that

on that date the age of prosecutrix was below 18 years.

26. Now, the second question for adjudication before me is that

whether prosecutrix was allegedly a free consenting party.

27. 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
accused Raja for five days and used to go out for
answering the call of nature and fetching water from
11/15

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”

28. In Subelal (supra) 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
12/15

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 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. ”

29. PW1 prosecutrix says in para 1 that appellant had given her

threatening of life. PW2 Chhannu says in para 1 that prosecutrix

had told him that appellant had given threatening to her. This is

not the prosecution case. This is also not the prosecution case

that from village Gutheli till recovery of her from village Banbarad

she did not call anybody for help or shouted specially when she

went with appellant at village fair, and during the alleged forcible

intercourse she did not offer resistance by using force like

snatching due to any reason. Looking to these circumstances

and judicial precedents Rajkumar Bajaj (Supra) and Subelal

(supra), this Court finds that prosecutrix was a consenting party.

30. 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
13/15

prosecutrix who is under 18 years of age. Before this amendment

for constituting this offence the age of prosecutrix was under 16

years.

31. Shri K.K. Singh and Shri Parag Kotecha, counsel for appellant

cited observation of the Hon’ble Supreme Court in Amar

Bahadur Singh v. State of U.P. in para 5, relevant portion is

extracted herebelow: –

“5. …and it was perhaps when the accused and the

prosecutrix had been caught red handed then the

story of rape had been cooked up to salvage some of

the family honour ..”

32. In the case in hand, the prosecutrix was not caught red

handed. The facts of this case are different. Thus appellant does

not get any help from the aforesaid judicial precedent laid down

by the Hon’ble Supreme Court in Amar Bahadur Singh (supra)

regarding alleged rape.

33. This has been earlier decided that prosecutrix was

consenting party. On 09.02.1998, she was above the 16 years of

age. Thus, this Court finds that the prosecution has failed to

prove that the appellant had committed rape on prosecutrix.

34. PW1 prosecutrix says in para 1 that appellant had

persuaded her to sit on his bicycle and then taken her away.

35. PW2 Chhannu says that prosecutrix had told him that

appellant had persuaded her to sit her on bicycle and thereafter

he taken her away.

14/15

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

which it could be said that the aforesaid statements of para 1 of

PW1 prosecutrix, PW2 Chhannu are not believable. In the case

in hand, there is no such evidence on strength of which it would

be deemed that PW1 prosecutrix, PW2 Chhannu had stated

aforesaid statements of para 1 against appellant allegedly to

escape from returning back the paddy to the father of appellant.

Thus, this Court believes on aforesaid statements of para 1 of

PW1 prosecutrix, PW2 Chhannu.

37. As per the provisions of Section 361 any person takes or

entices any male who is 16 years of age or any female who is

under age of 18 years, or any person of unsound mind, out of the

keeping of the lawful guardian of such minor or such person,

without the consent of such guardian, then it is said to kidnap

such minor or person from lawful guardianship.

38. In the case in hand, it has been earlier decided that on

09.02.1998, prosecutrix was below 18 years of age.

39. After appreciation of the evidence discussed herebefore

this Court finds that the prosecution has succeeded to prove

beyond reasonable doubt that appellant had taken away

prosecutrix who was allegedly below 18 years, out of keeping of

her lawful guardian PW2 Chhannu without the consent of him

with an intent that she may be forced or seduced to illicit

intercourse.

40. After appreciation of the evidence discussed herebefore
15/15

the conviction and sentence of the appellant under Section

376(1) IPC is hereby set aside. The conviction of the appellant

under Section 363, 366 are affirmed. Section 366 IPC is the

major Section and ingredients of Section 361 IPC are included in

Section 366 IPC. Thus, the trial Court committed illegality in

sentencing the appellant under Section 363 IPC. Thus, the

aforesaid sentence of the appellant under Section 363 IPC is

hereby set aside. Sentence under Section 366 IPC awarded by

the trial Court to the appellant is not excessive, thus, sentence

awarded under Section 366 IPC is hereby affirmed.

41. Accordingly, the appeal is partly allowed to the above

extent.

42. In aforesaid circumstances, since the sentence under

Section 366 IPC has been affirmed, bail and bond of the

appellant are cancelled. The appellant is directed to surrender

before the trial Court forthwith, the authorities concerned are also

directed to take the appellant in custody forthwith, for serving the

remaining part of the sentence.

Sd/-

(Sharad Kumar Gupta)
Judge

kishore

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation