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Shishupal vs The State Of Madhya Pradesh Thr. on 1 August, 2019

1 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA

Criminal Appeal No.596/2015
………Appellant: Shishupal
Versus
………Respondent: State of M.P.
—————————————————————————————-
Shri Sumit Shrivastava, learned counsel for the appellant.

Shri Purushottam Rai, learned Panel Lawyer for the

respondent/State.

—————————————————————————————-
Date of hearing : 27/07/2019
Date of Judgment : 01/08/2019
Whether approved for reporting :
Law laid down :

Significant paragraphs :
JUDGMENT

(01/08/2019)

This Criminal Appeal under Section 374 of Cr.P.C. has been filed

against the judgment and sentence dated 30-4-2015 passed by Additional

Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No. 89 of 2014, by

which the appellant has been convicted for the following offences :

1 Under Section 363 I.P.C. 3 years R.I. and fine of Rs. 100 in
default 1 month R.I.

2 Under Section 366 I.P.C. 5 years R.I. and fine of Rs. 200 in
default 2 months R.I.

3 Under Section 376(h)(m) 10 years R.I. and fine of Rs. 400 in
I.P.C. default 4 months R.I.
2 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

2. The necessary facts for the disposal of the present appeal in short

are that on 9-6-2014, the complainant Shanti accompanied by her grand

son Nabal Singh, lodged a F.I.R. to the effect that her son Sabailal has

expired about 10 years back, and wife has left the house about 5 years

back and therefore, her grand children are residing with her. Sabailal

had two daughters and one son. The prosecutrix is aged about 13 years

and was on visiting terms with the appellant. On 8-6-2014, all of them

went to sleep and when She woke up in the morning, She found that the

prosecutrix is missing. When it was enquired in the village, then it was

found that appellant is also not in the village. Thus, it was alleged, that

the appellant has taken away the prosecutrix. On this report, the police

registered the crime no. 150/2014 for offence under Sections 363,Section366 of

I.P.C. and later on, offence under Section 376 of I.P.C. and under

Sections 3/4 and 5/6 of Protection of Children From Sexual Offences

Act, 2012 (In short POCSO) were added. The police recovered the

prosecutrix on 21-8-2014 from the company of the appellant. The

appellant was arrested. The prosecutrix was sent for medical

examination. The school record of the prosecutrix was seized. The

ossification test was got conducted. After recording the evidence of the

witnesses, the police filed the charge sheet for offence under Section

363,Section366,Section376 of I.P.C. and under Section 3/4,5/6 of POCSO.

3. The Trial Court by order dated 25-9-2014 framed charges under

Sections 363,Section366,Section376(h)(m) of I.P.C. and under Section 4 of POCSO.

4. The appellant abjured his guilt and pleaded not guilty.

3 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

5. The prosecution in order to prove its case, examined Shantibai

(P.W.1), Nabal Singh (P.W.2), Vijayrampal (P.W.3), Jalma (P.W.4), Dabbu

(P.W.5), Rajesh Choubey (P.W.6), Jitendra (P.W.7), Dr. Anjana Jain

(P.W.8), Reshu Chandel (P.W.9), Ravishanker Tiwari (P.W.10), Birbal

Singh (P.W.11), Dr. Sant Kumar Sharma (P.W.12), Prosecutrix (P.W.13),

Mujaffar (P.W.14), and Vinayak Shukla (P.W.15). The appellant

examined himself as defence witness (D.W.1), Rakesh Parihar (D.W.2) in

his defence.

6. The Trial Court by the impugned judgment and sentence,

convicted and sentenced the appellant for the above mentioned offences.

7. Challenging the judgment and sentence passed by the Court below,

it is submitted by the Counsel for the appellant, that the prosecutrix has

falsely implicated the appellant because of enmity. Further the

prosecution has failed to prove that the prosecutrix was minor below the

age of 18 years and the prosecutrix was the consenting party. The

appellant is jail from 21-8-2014 i.e., from the date of his arrest and has

completed almost 5 years of actual jail sentence and the period already

undergone by the appellant is sufficient to meet the ends of justice.

8. Per contra, it is submitted by the Counsel for the State, that the

prosecution has proved the school record in order to prove the date of

birth of the prosecutrix. She was aged about 13 years on the date of

incident and was recovered from the possession of the appellant, and the

Trial Court has given cogent reasons for convicting the appellant and the

prosecution has proved the guilt of the appellant beyond reasonable
4 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

doubt.

9. Heard the learned Counsel for the parties.

10. Shantibai (P.W.1) has stated that the prosecutrix is her grand

daughter. They were sleeping in the courtyard, and the appellant took

away the prosecutrix. She was searched but could not be traced. The

appellant and his parents were also not in their house. The F.I.R., Ex. P.1

was lodged. The spot map was prepared. About 2 months thereafter, the

prosecutrix and the appellant were caught by the police and she was

handed over to her custody. The prosecutrix was aged about 13 years

and her medical examination was done.

11. When this witness appeared for giving evidence, the Counsel for

the appellant was called by the Court who expressed that neither any

pairokar has contacted him nor he is in possession of the charge sheet.

The Trial Court by expressing its displeasure, recorded the examination-

in-chief and adjourned the case for cross examination.

12. This witness was cross examined on a later date and she stated that

She was sleeping on the cot, whereas the prosecutrix and her sister were

sleeping on the earth. She further admitted that earlier, the appellant was

doing agricultural work in her field but denied that the appellant had

given Rs. 15,000 for purchasing diesel pump. She also admitted that she

had suffered fracture but denied that the appellant had took her to

Shivpuri on jeep for treatment. She further denied that the appellant had

bear the expenses of treatment and conveyance. She further stated that

the appellant used to say that he would take the prosecutrix for a ride.

5 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

13. Nabal Singh (P.W.2) has stated that the prosecutrix is his sister.

They are residing with their grand mother. On the date of incident, he

was sleeping on the roof. The prosecutrix was sleeping with grand

mother. When he woke up in the morning, he found that the prosecutrix

was missing. She was searched in the house of the appellant, and

appellant was also missing. About 2 1/2 months thereafter, the

prosecutrix and the appellant were caught by the police. The prosecutrix

had informed him that the appellant had committed rape on her. The

cross examination was differed and this witness was cross examined on a

subsequent date. In cross examination, this witness has stated that he

has studied upto Class IX. The younger sister is studying in class VI,

whereas the prosecutrix is not studying. She has left the school after

class VII. He further stated that he is aged about 18 years. The

prosecutrix is 13 years. It was admitted that the appellant had also gone

to Shivpuri for the treatment of Shantibai (P.W.1) but denied that the

appellant had paid Rs. 2500 by way of fare of jeep. It was denied that

the appellant had bear the medical expenses. It was also denied that the

appellant had paid money for purchasing diesel pump.

14. Vijayrampal (P.W.3) has proved the school record of the

prosecutrix. He has stated that he is posted as Head Master in Primary

School situated in Nandana. The date of birth of the prosecutrix is 4-4-

2001. The progress report of class Vth of the prosecutrix was marked as

Exhibit P.2. In cross examination, this witness has stated that he has not

brought the admission register because he has been transferred. He
6 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

further admitted that same date of birth is mentioned in the admission

register. He specifically denied that some other date of birth is

mentioned in the admission register. This witness further stated that he

has seen the register prior to coming to the Court. He further admitted

that the date of birth as disclosed by the parents was mentioned in the

school record.

15. Jalma (P.W.4) has stated that the police had recovered the

appellant and the prosecutrix from Nandana Square. Nabal Singh and

Dabbu were also present at the time of recovery. The recovery memo is

Ex. P.3 and she was handed over to the custody of Shantibai by custody

memo Ex. P.4. In cross examination, this witness has denied that the

prosecutrix used to go for doing labour work and specifically stated that

she used to stay in the house.

16. Dabbu (P.W.5) has also stated that the prosecutrix and the

appellant were caught by the police at Nandana Square.

17. Prosecutrix (P.W.13) has stated that her father has expired about 5

years back and her mother has left them voluntarily and she is residing

with her grand mother. The appellant came to her in the night and

persuaded her that he would marry her and thereafter went to Sunaj by

walking and from their they went to Ashoknagar by bus. From bus they

went to Guna and from Guna they went to Jaipur by train. They took a

house on rent and stayed there. The appellant had committed rape on

her. They stayed in Jaipur for a period of about one month and then went

to Barreilly where they stayed for a day. Thereafter, the brother of the
7 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

appellant, instructed the appellant on mobile to bring back the

prosecutrix. The police got the information regarding their return and

accordingly, they were apprehended at Nadia naya kheda. She was got

medically examined, and her petticoat was seized. In cross examination,

she admitted that the appellant had paid Rs.15,000/- for purchasing the

diesel pump and had taken her grand mother to Shivpuri for treatment of

fracture. She also admitted that the medical expenses were paid by the

appellant. She further admitted that when She started cultivating her

fields, then the appellant demanded his money back. She further

admitted that her financial condition was poor and had no money to pay.

However, She denied that false case has been registered so that they may

not be required to return the money. She further stated that the appellant

had persuaded her of getting married.

18. Dr. Anjana Jain (P.W.8) had medically examined the prosecutrix,

and no external injury was found. Hymen was torn old. Her private part

was admitting two fingers easily. She was habitual to sexual intercourse.

Her petticoat was sealed and was handed over. For asserting her age, she

had referred to radiology department. In cross examination, this witness

has specifically stated that the age of the prosecutrix was in between 15-

16 years. The M.L.C. Report is Ex. P.7.

19. Thus, before considering the question that whether the prosecutrix

was a consenting party or not, it would be necessary to find out that

whether the prosecutrix was major or minor.

20. The date of birth mentioned in the Progress Report of Class V of
8 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

the prosecutrix is 4-4-2001. The ossification test of the prosecutrix was

got done and her age was found to be above 12 and below 14 years.

However, the ossification test report was not proved by the prosecution

therefore, it cannot be read against the appellant. Dr. Anjana Jain (P.W.

8) had assessed the age of the prosecutrix in between 15-16 years.

Shantibai (P.W.1) has stated the prosecutrix was 13 years of age, and her

statement regarding age, remained unchallenged in the cross

examination. Vijayrampal (P.W.3) has proved her Progress Report and

he has specifically stated that the date of birth recorded in the School

admission register is also 4-4-2001.

21. The Supreme Court in the case of Jarnail Singh Vs State of

Haryana reported in (2013) 7 SCC 263 has held as under :

22. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12
of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as “the
2007 Rules”). The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile Justice
(Care and SectionProtection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under:

“12. Procedure to be followed in
determination of age.–(1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may
be, the Committee referred to in Rule 19 of
these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with
law within a period of thirty days from the date
of making of the application for that purpose.
(2) The court or the Board or as the case
may be the Committee shall decide the
juvenility or otherwise of the juvenile or the
child or as the case may be the juvenile in
conflict with law, prima facie on the basis of
physical appearance or documents, if available,
and send him to the observation home or in jail.

9 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining–

(a)(i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;

(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;

(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the court or the Board or, as the case
may be, the Committee, for the reasons to
be recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one year,
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the
juvenile in conflict with law.

(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in
sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing
pass an order stating the age and declaring the
status of juvenility or otherwise, for the
purpose of the Act and these Rules and a copy
of the order shall be given to such juvenile or
the person concerned.

(5) Save and except where, further inquiry
10 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

or otherwise is required, inter alia, in terms of
Section 7-A, Section 64 of the Act and these
Rules, no further inquiry shall be conducted by
the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of
this Rule.

(6) The provisions contained in this Rule
shall also apply to those disposed of cases,
where the status of juvenility has not been
determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act for
passing appropriate order in the interest of the
juvenile in conflict with law.”

23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict with
law, we are of the view that the aforesaid statutory
provision should be the basis for determining
age, even of a child who is a victim of crime. For, in
our view, there is hardly any difference insofar as the
issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW, PW 6. The manner of determining
age conclusively has been expressed in sub-rule (3)
of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained by
adopting the first available basis out of a number of
options postulated in Rule 12(3). If, in the scheme of
options under Rule 12(3), an option is expressed in a
preceding clause, it has overriding effect over an
option expressed in a subsequent clause. The highest
rated option available would conclusively determine
the age of a minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of the child
concerned is the highest rated option. In case, the
said certificate is available, no other evidence can be
relied upon. Only in the absence of the said
certificate, Rule 12(3) envisages consideration of the
date of birth entered in the school first attended by
the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable
to be treated as final and conclusive, and no other
material is to be relied upon. Only in the absence of
such entry, Rule 12(3) postulates reliance on a birth
11 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

certificate issued by a corporation or a municipal
authority or a panchayat. Yet again, if such a
certificate is available, then no other material
whatsoever is to be taken into consideration for
determining the age of the child concerned, as the
said certificate would conclusively determine the
age of the child. It is only in the absence of any of
the aforesaid, that Rule 12(3) postulates the
determination of age of the child concerned, on the
basis of medical opinion.

24. Following the scheme of Rule 12 of the
2007 Rules, it is apparent that the age of the
prosecutrix VW, PW 6 could not be determined on
the basis of the matriculation (or equivalent)
certificate as she had herself deposed, that she had
studied up to Class 3 only, and thereafter, had left her
school and had started to do household work. The
prosecution in the facts and circumstances of this
case, had endeavoured to establish the age of the
prosecutrix VW, PW 6 on the next available basis in
the sequence of options expressed in Rule 12(3) of
the 2007 Rules. The prosecution produced Satpal
(PW 4) to prove the age of the prosecutrix VW, PW

6. Satpal (PW 4) was the Head Master of
Government High School, Jathlana, where the
prosecutrix VW, PW 6 had studied up to Class 3.
Satpal (PW 4) had proved the certificate Ext. PG, as
having been made on the basis of the school records
indicating that the prosecutrix VW, PW 6 was born
on 15-5-1977. In the scheme contemplated under
Rule 12(3) of the 2007 Rules, it is not permissible to
determine age in any other manner, and certainly not
on the basis of an option mentioned in a subsequent
clause. We are therefore of the view that the High
Court was fully justified in relying on the aforesaid
basis for establishing the age of the prosecutrix VW,
PW 6.

The Supreme Court in the case of State of Chhattisgarh Vs.

Lekhram reported in (2006) 5 SCC 736 has held as under :

12. A register maintained in a school is admissible
in evidence to prove date of birth of the person
concerned in terms of Section 35 of the Evidence
Act. Such dates of births are recorded in the school
register by the authorities in discharge of their public
duty. PW 5, who was an Assistant Teacher in the said
12 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

school in the year 1977, categorically stated that the
mother of the prosecutrix disclosed her date of birth.
The father of the prosecutrix also deposed to the said
effect.

13. The prosecutrix took admission in the year
1977. She was, therefore, about 6-7 years old at that
time. She was admitted in Class I. Even by the
village standard, she took admission in the school a
bit late. She was married in the year 1985 when she
was evidently a minor. She stayed in her in-laws’
place for some time and after the “gauna” ceremony,
she came back. The materials on record as regards
the age of the prosecutrix were, therefore, required to
be considered in the aforementioned backdrop. It
may be true that an entry in the school register is not
conclusive but it has evidentiary value. Such
evidentiary value of a school register is corroborated
by oral evidence as the same was recorded on the
basis of the statement of the mother of the
prosecutrix.

14. Only because PW 3 the father of the
prosecutrix could not state about the date of birth of
his other children, the same, by itself, would not
mean that he had been deposing falsely. We have
noticed hereinbefore, that he, in answer to the queries
made by the counsel for the parties, categorically
stated about the year in which his other children were
born. His statement in this behalf appears to be
consistent and if the said statements were
corroborative of the entries made in the register in the
school, there was no reason as to why the High Court
should have disbelieved the same. We, therefore, are
of the opinion that the High Court committed a
serious error in passing the impugned judgment. It
cannot, therefore, be sustained. It is set aside
accordingly.

The Supreme Court in the case of Murugan VS. State of T.N.

reported in (2011) 6 SCC 111 has held as under :

24. The documents made ante litem motam can be
relied upon safely, when such documents are
admissible under Section 35 of the Evidence Act,
1872. (Vide Umesh Chandra v. State of Rajasthan
and SectionState of Bihar v. Radha Krishna Singh.)

25. This Court in Madan Mohan Singh v. Rajni
13 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

Kant considered a large number of judgments
including SectionBrij Mohan Singh v. Priya Brat Narain
Sinha, SectionBirad Mal Singhvi v. Anand Purohit, SectionUpdesh
Kumar v. Prithvi Singh, SectionState of Punjab v. Mohinder
Singh, SectionVishnu v. State of Maharashtra and SectionSatpal
Singh v. State of Haryana and came to the
conclusion that while considering such an issue and
documents admissible under Section 35 of the
Evidence Act, the court has a right to examine the
probative value of the contents of the document. The
authenticity of entries may also depend on whose
information such entry stood recorded and what was
his source of information, meaning thereby, that such
document may also require corroboration in some
cases.

26. In the instant case, in the birth certificate
issued by the Municipality, the birth was shown to
be as on 30-3-1984; registration was made on 5-4-
1984; registration number has also been shown; and
names of the parents and their address have correctly
been mentioned. Thus, there is no reason to doubt
the veracity of the said certificate. More so, the
school certificate has been issued by the Headmaster
on the basis of the entry made in the school register
which corroborates the contents of the certificate of
birth issued by the Municipality. Both these entries
in the school register as well as in the Municipality
came much before the criminal prosecution started
and those entries stand fully supported and
corroborated by the evidence of Parimala (PW 15),
the mother of the prosecutrix. She had been cross-
examined at length but nothing could be elicited to
doubt her testimony. The defence put a suggestion to
her that she was talking about the age of her younger
daughter and not of Shankari (PW 4), which she
flatly denied. Her deposition remained unshaken and
is fully reliable.

22. The School register is admissible in evidence in terms of Section

35 of Evidence Act. At the time of recording of date of birth, no one had

anticipated that such an incident would happen. Thus, this Court is of the

considered opinion, that the date of birth recorded in the School record is

4-4-2001 whereas the incident took place in the intervening night of 8 th
14 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

and 9-6-2014. thus, it is held that the prosecutrix was aged about 13

years and six months on the date of incident, and thus she was minor.

21. When the prosecutrix has been held to be minor on the date of

incident, then the question that whether she was a consenting party or

not becomes immaterial.

23. So far as the question of false implication of the appellant is

concerned, according to the prosecution case, the prosecutrix was

recovered from his possession. They went to Jaipur via Ashoknagar,

Guna and from Jaipur, they went to Barreilly from where they came

back. Even the appellant was missing from his house immediately after

the incident. Further, no one would put her chastity at stake for trivial

issues.

24. The Trial Court has convicted the appellant for offence under

Section 376(h)(m) I.P.C. 376 (2)(h) and (m) reads as under :

“(h) commits rape on a woman knowing her to be pregnant; or

(m) while committing rape causes grievous bodily harm or maims
or disfigures or endangers the life of a woman.”

25. It is not the case of the prosecution that the prosecutrix was

pregnant and still rape was committed on her. Further there is no

allegation that while committing rape, the appellant had caused any

grievous bodily harm or maims or disfigured or endangered the life of

the prosecutrix. Thus, the conviction of the appellant for the offence

under Section 376(2)(h) and (m) of SectionI.P.C. is set aside.

26. Now the question is that whether the appellant, in absence of

charge under Section 376(1) of I.P.C., can be convicted. Offence under
15 Criminal Appeal No.596/2015
Shishupal Vs. State of M.P.

Section 376(2)(h) and (m) SectionIPC are graver offence and the element of

rape is involved. Therefore, this Court is of the considered opinion, that

although no charge under Section 376(1) of I.P.C. was framed against the

petitioner, however, under the facts and circumstances of the case, he can

be convicted under Section 376(1) IPC. Accordingly, the appellant is

convicted under Section 376 (1) of SectionIPC.

27. The minimum sentence for offence under Section 376 I.P.C., at the

relevant time was seven years. The appellant was aged about 21 years

on the date of incident. Under the facts and circumstances of the case,

the appellant is sentenced to rigorous imprisonment of seven years and a

fine of Rs. 5000/-. In default, he would serve rigorous imprisonment of

6 months. The sentence for the remaining offence under Sections 363,

Section366 IPC, shall remain the same. The sentences are directed to run

concurrently.

28. The appellant is in jail.

29. With aforesaid modification, the judgment and sentence dated 30-

4-2015 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in

S.T. No. 89 of 2014 is hereby affirmed.

30. The appeal succeeds and is allowed to the extent mentioned

above.

(G.S. Ahluwalia)
Judge
Arun*
ARUN KUMAR MISHRA
2019.08.02 09:44:32 +05’30’

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