^-! Siigls Esncli CCriminal IH THE HIGH COURT OF JQDICATXJRE AT <»ABAIiPBR,MP< ^\^~ Crlmlaal Appeal No.^^ /97« APPEIAAKT. (IN JAIL). ^). Ji.la Kddaku S/o. Fuldas» age 25 years, Occupation, Agriculture, R/o. v.i.ll- jawar, PS- Balaraiapur Distt-Sargu ja.MP (Amblleapur), MP. ^-^3^ •Versus' ftiv RESPONDENT. Stafee of M.P. througb PS-Balarampur Distt- Sarguja, MP. CRIHINAL APPEAL 0/S. 374(2) OF THE CODE OF CRIMNAL PROCEDURE-1973. •'s^, "'.te^^'" '^^s t^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Cr.A.No-1457 of 1997 Jila Kodaku. Versus State of M.P. (now Chh^tisgarh). JUDGMENT PostforOjo-09-2011 Sd/- Prashant Kumar Mishra Judge Kl: i°;:r /r HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH APPELLANT RESPONDENT HON'BLE SHRI PRASHANT KUMAR MISHRA.J. Cr.A.No.1457 of 1997 Versus Jila Kodaku. State of M.P. (now Chhaffisgarh). snn 5.R. Sinna, counsel forthe appellant. Shri Pradeep Singh, Pane! Lawysrfor ihe Stats. JUDGMENT { o&/OS<2Q11) The appellant has challenged his conviction for offence under Sections 363, 366 and 373(1) of I.P.C. and sentence of Rl for five years, seven yeare and seven years respectively for each of the offence. He has also challenged the imposition fine of Rs.1,000/-, in default of payment of fine, to undergo additional Rl for two months. (2) Case of the prosecution, in short, is that the accused abduded the prosecutrix aged 15-16 years from the lawful guardianship of her father at about 7.00 p.m. on 06/01/1993 with an intention to commit illegal sexual intercourse and by criminally intimidating her he commKted sexual intercourse with the prosecutrix. The girl was missing from the house in the evening, at about 7.00 p.m. on 06/01/1993. RW-1 Bodhani Bai, mother ofthe prosecutrix lodged the F.I.R. Ex.P/1 and the girl was recovered on 11/01/1993. Entries in the Dakhil-Kharij reflister was seized vide Ex.P/7 and P/8. Certificate of the Head Master showing date of birth was seized vide Ex.P^ and after arresting the accused wde Ex.P/19 and compleh'ng the investigation the charge-sheet was filed. The prosecution examined 13 witnesses to bring home Uie charges. In his statement under Section 313 of Cr.P.C. the appellant sated that the deceased was aged about 20 years and had married him as per her own wishes and they have a son from the marriage. (3) In the present case, the prosecutrix has not been examined because she died during pendency of the trial. Similariy father of the prosecutrix was '\^. neither cited as a witness nor examined in course of trial. .^A^•^ ^_^' (4) PW-1 Bodhani Bai is the mother offhe prosecutrix. TMs witness says that on the date of incident, when she came back from market, her daughter, the prosecutrix, was cooking food and after having her meal she started fleeing from the house and in spite of s^rch she could not locate her in the night. On the next day she met Krishna with whom the accused was working because Krishna has informed some villagers that the accused and the prosecutrix have eloped. Krishna told RW-1 Uiat she should contact the Sarpanch and tfiereafter Sarpanch and village Patel suggested her to convene a Panchayat meeting, wherein parents of the accused were toid that giri should be brought and handed over to her mother. After the Panchayat meeting she lodged report after consulting the Sarpanch and Patel of the village. The girt was later brought by faBier of the accused along witti one Tatu Baiga and handed over to the Police. In her examination-in-Chief itself she further says that after the giri was recovered one Tatu Baiga of the village took her daughter to Bihar on two difFerent occasions and on both occasions she was brought back to the village at ttie instance of Police. Her husband was working at Panipat and on receiving letter, he came to the village and again e girl was recovered from the house of appellant/accused. In para 6 and 7 she states that the accused abducted her daughter for four times and later on they performed Court marriage and they have a child from the said marriage. l-1er daughter died at the time of delivery ofchild. (5) During her cross-examination, this wifness, PW-1 Bodhani Bai state that the prosecufrix was admitted to the school by her father at the time of Fagun, the Kotwar had takenthe information for making entry in the Kotwari register. She admits that age of her daughter was dated by her father in approximate terms. In the FIR she has stated that the age of the prosecutrix is 15-16 years, however, she denies that she has informed fte Police that the age of the prosecutrix is 15-16 years. She ftjrther admits that her daughter was in habit offleeing from the house without informing her and Uiat she had gone to Bihar without informing her for about 4-5 times. She further admits that her daughter remained with the appellant for about nine months but she did not lodge any report though she explains that report was not lodged 'f^/ because she is a poor person. ;\\ Ulll: aiii 3 (6) RW-2 Girwar Singh Patel of the village has proved the Swijrdnama of the prosecutrix vide Ex.P/2 and the seizure of towel and undenwear of the accused vide Ex.P^ and P/4, however, after adinitting hissignature in the Search Panchnama vide Ex.P/5 he denies Uiat search of the house of ttie appellant was made in his presence. PW-3 Tatu is the maternal uncle ofttie appellant in whose house the prosecutrix was recovered. PW-4 Mohandas is the witness to the seizure of towel and underwear vide Ex.P/3 and FW-5 Tarachand is also a witness of seizure vlde Ex. P/4. PW-6 Baldev Prasad Mishra is the witness to Ex.P/7 by which school register was seized. PW-7 Rajdhan Singh is the Assistant Teacher of Primary School, Jabar from whom the school register Ex.P/7 was seized. According to this witne^ entry No. 321 of page No. 45 of the register contains the name of Sharda Kumari D/o Shri Ramu Ram, Village - Jabar with date of birth mentioned as 1(^04/1979. PW-8 Ramsagar Choudhari is the Head Master of the Primary School who has made the enfries at the instancs of the father of the prosecutrix, however, according to this witness no prpof regarding date of bjrth is submitted by the father of the prosecutrix and he stated the date of birth in approximate terms. (7) This Court shall now consider the evjdence regarding the age of the prosecutrix to find out whether on the date of offence she was mjnor. Apart from the evidence of mother,the other evidence regarding age is contained in Ex.P/8, copy of Dakhil-Kharij register of Primary School, Jabar, Dish-fct - Surguja. In the said register Entry No. 321 mentions Sharda Kumari, D/o Shri Ramu Ram, Village - Jabar, date of birth 10/04/1979. On the basis of this entry, certificate Ex.P/9 was issued by the Head Master ofttie School. In this particular entry name of the father of the prosecutrix is mentioned as Ramu Ram whereas in the FIR name ofthe mother of the prosecutrix is written as Smt. Bodhani W/o Sakal, by caste Ahir. In Ex.P/2 also name of Bodhani Bai is mentioned as W/o Sakal Ahir. In Ex.P/4, the seizure memo, name of the prosecutrix is mentioned as Kumari Sharda D/o Sakal Chawani^i Ahir and simiiar is the description in Ex.P/6 and Ex.P/12. Ex.P/13 is the letter of consent under the thumb impression of mother of the prosecutrix where her husband's name is mentioned as Sakal Yadav and in Ex.P/14 name offattier - pf the prosecutrix is again mentioned as Sakal Yadav. Similar is the i description in Ex.P/16 and Ex.P/17, however, in the deposition sheet ^v i^l!. Bodhani Bai has mentioned her husband's name as Ramu. Simitarty name of father of PW-10 Raj Ram (brother of the prosecutrbe) is menUoned as Ramu Ram. Thus, there is serious discrepancy witt) regard to the entry contained in the Dakhit-Kharij reaister wrtiere name offather ofthegirl Kumari Sharda is mentioned as Ramu Ram whereas in the FIR and in all other documents proved by the prosecution name of the father of the prosecutrix is mentioned as Sakal Ram. There is absolutely no evidence in the record to suggest that Ramu Ram was also known as Sakai Ram, thus, the enfry made in the Dakhil - Kharij register does not inspire confidence to conclusively determine that the date of birth mentioned in the Dakhil - Kharij register is that ofttie prosecutrix. (8) In the present case the prosecutrix has not been examjnecl as she died immediately after delivery of ttie child and the child is presently residing wifh the appellant. Statement of the father of the prosecutrix has also not been recorded. The prosecutrix was never sent for radiological examination to determine her age. (9) In the matter of Birad Mal Singhvi vs. Anand Purohit reported in 1988 (Suppl.) SCC 604, the Hon'ble Supreme Court, while dealing with the issue as to how the entry regarding age in the school register is to be proved and its evidentiary value, it has been laid-down that if entry regarcBng date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same wrould have probative value and further that the date of birth mentioned in the schQlar's rsgister has no evidentiary value untess the person who made the entry or who gave the date of birth is examined. (10) In the matter of State of Chhattisgarh ys. Lekhram reported in 2006 (5) SCC 736, it has been held that an entry in the school register is not conclusive but it has evidentiary value. (11) In the matter of Sunil Vs. Stateof Haryana reported in 2010 (1) SCC 742, the Hon'ble Supreme Court, on finding ttiat the age mentioned in the school leaving certificate beingnot reliable, held that ttie failure of the prosecution in getting the prosecutrix examined from the Dental Surgeonor e Radiologist is a serious flaw in the prosecution version. It i? observed in ithis case that, it is not a rule that all these tests must be performed in all r ^ i^^^ cases, but in the absence of preliminary evidence, report of ttie Dental Surgeon and the Radiologist would have helped in amving at the CQncluston regarding the age of the prosecutrix. The Hon'ble Supreme Court uttimatety held that on the basis of nature of evidence available on record, it would be unsafe to convict the appellant when they are so many inflrmities, hote and lacunae in the prosecution version. (12} In the case before this Court, there is serious infirmtty leading to grave doubt on the entry made in the school register Ex. P/8, because in this document name of the father of the prosecutrix is mentfoned as Ramu Ram whereas in all other documents like Ex. P/1 (FIR), Ex.P/2 (Supurdnama), Ex.P/4 (Seizure Memo)etc. name offather ofthe prosecutrix is mentioned as Sakal Ahir with no evidence that Ramu Ram and Sakat Ahir were one and the same person. If this entry in Ex.P/8 cannot be relied on, there is absolutely no ofter reliable evidence as neither the girl nor her father has been examined during the trial and neither report ofany DentalSurgeon is availabte nor the girl was ever sent for radiologist examination to ascertain her age. With these serious lacunae in the prosecution case, the evidence of PW-1 Bodhani Bai needs reference wherein she has said that tte prosecutrix remained with the appellant for more than nine months; they were married; and she delivered a child, and that she had gone with the appellant frequently and at least on 4-5 occasions. Thus, with the nature of evidence availabte on record, it would be unsafe to sustain the conviction and convict the appellant for having committed offence under Sections 363,366 and 376 (1) of I.P.C. (13) Accordingly, the impugned judgment of conviction and sentence imposed upon the appellant are set-aside. The appellant is on bail. His bail bond are discharged and he need not surrendered. The appeal stands allowed. —-—.=^_— Sd/- Prashant Kumar Mishra Judge