[PRECEDENT] 1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE SINGLE BENCH : HON'BLE SHRI JUSTICE VIRENDER SINGH [PRECEDENT] -x-x-x-x-x-x-x-x-x-x-x- Mr. [ENTITY], learned counsel for the appellant. Mr. [ENTITY], 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 [SECTION] & [SECTION] of [ACT] 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 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/[SECTION] & [SECTION] of [ACT]. 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] [ACT] 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 [SECTION] [ACT] before the Police as well as u/[SECTION] of [ACT] before the Judicial Magistrate, the prosecutrix has not supported the case of the prosecution and 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] [ACT] (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 6&7 o"kZ iwoZ ls tkurh gwaA eS vkSj jkgqy ,d&nwljs dks ilUn djrs gS vkSj 'kknh djuk pkgrs gSA eSa vkSj jkgqy vkil esa ckr djrs gS ;g ckr esjs eEeh lkSje ckbZ o firk y[kuyky dks irk py x;h rks mUgksusa eq>s le>k;k FkkA eEeh ikik us esjh 2&3 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 eq>s 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 Vsu esa cSBdj mTtSu pyh xbZ Fkh jkgqy Hkh mlh jkr esa dkykihiy ls Vsu 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 Vsu ugh gksus ls ogha jsYos LVs'ku ij cSBs Fks brus esa esjs ikik ogka vk x;s] ikik dks ns[kdj jkgqy eq>s ogha IysVQkeZ ij NksM+dj Hkkx x;kA ikik us eq>s idM+ fy;k vkSj fQj iqfyl dks Qksu yxk;k mlds ckn iqfyl vk;h rks oks eq>s vkSj ikik dks ysdj dkykihiy vk x;hA jkgqy eq>s '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] of [ACT]
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 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, [ENTITY], [ENTITY] (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 - [ENTITY] as D.W.2, 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 [ENTITY] 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 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, [ENTITY] (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 [ENTITY] (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.
22. [ENTITY] (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 [PRECEDENT] Hon'ble the Supreme Court observed that 'the burden on an accused person to establish his defence is not as 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 [PRECEDENT] 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 [PRECEDENT] 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 [PRECEDENT], it has been held that it is trite that the onus which rests on an accused person under [SECTION], [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 [PRECEDENT] 10 with which the accused is charged, beyond reasonable doubt.
26. In this regard, we can suitably refer Para 14 of the [PRECEDENT], 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 [PRECEDENT]. In [PRECEDENT]., 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 [PRECEDENT] 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 [PRECEDENT]. [PRECEDENT] 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 [PRECEDENT] stating that when two views possible on evidence adduced, one [PRECEDENT] 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 [PRECEDENT]) 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 [PRECEDENT] & [PRECEDENT] when two views possible - view in favour of accused must be accepted.
9. In [PRECEDENT], 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 [PRECEDENT] 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 [SECTION] & [SECTION] of [ACT]. 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.
([ENTITY]) Judge soumya [ENTITY] DN: c=IN, o=High Court of Madhya Pradesh, ya ou=Administration, postalCode=452001, st=Madhya Pradesh, Ranjan 2.5.4.20=f4d2118683e8 4322bb5797cf28ee606 71538b737cf52962d84 d7b527897e53ac, Dalai cn=[ENTITY] Date: 2018.07.24 19:17:36 +05'30'