Prakash vs State

Conviction,Sentence

Under Section 376 of the Indian Penal Code,"Rigorous Imprisonment for 7 years, and fine of

Rs.400/- with default stipulation

Under Section 366 of the Indian Penal Code,"Rigorous Imprisonment for 5 years, and fine of

Rs.300/- with default stipulation

Under Section 363 of the Indian Penal Code,"Rigorous Imprisonment for 2 years, and fine of

Rs.200/- with default stipulation

forcibly from her house to the hills of Dongargarh and committed sexual intercourse with her in the hills of Dongargarh and thereafter also so many,

times at Nagpur without her will and consent yet her above statement is not reliable because from the statements of her uncle Kejauram (PW2) and,

her maternal grandfather Rajbhan Singh (PW8), FIR (Ex.P1) and the love letters (Articles A and B) seized vide Ex.P6, it is clear that there was a",

love relation between the prosecutrix and the Appellant and due to the said relation, she herself left her house and went away with the Appellant. Had",

she been taken away forcibly and sexual intercourse would have been committed with her without her will and consent, she would have disclosed the",

incident during journey from her village to Nagpur and during her 40 days' stay with the Appellant at Nagpur to nearby people as she had ample,

opportunity to do so but she did not disclose the incident to anyone nor did she even shout or raise any alarm and she was recovered from the hut of,

the Appellant situated at Nagpur. Thus, she was a consenting party to the incident.",

The prosecutrix (PW3), in her Court statement, has stated that her date of birth is 1.11.1984. Kejauram (PW2) and Rajbhan Singh (PW8) have",

also stated that the date of birth of the prosecutrix is 1.11.1984. Mother and father of the prosecutrix have not been examined by the prosecution.,

Though Kejauram (PW2) has stated that the date of birth of the prosecutrix is 1.11.1984 yet he has been unable to state the date of birth of his own,

four children. Similarly, Rajbhan Singh (PW8) has admitted that birth of the prosecutrix had taken place at Village Patharatola. He has admitted that",

he did not know who recorded the birth entry of the prosecutrix in the kotwari register.,

Head Constable Bhikham Singh (PW9) is the witness who brought the birth registration register (Ex.P14). In the said register, the date of birth of",

the prosecutrix is mentioned as 1.11.1984. As per the entries made in Ex.P14, the name of informant is mentioned as P.R. Chandrawanshi and place",

of birth of the prosecutrix is mentioned as Jaisinghtola. Bhikham Singh (PW9) has admitted that he is unable to explain about who got the entries,

recorded. As per the statement of Rajbhan Singh (PW8), maternal grandfather of the prosecutrix, the birth of the prosecutrix took place at Village",

Patharatola. Bhikham Singh (PW9) has categorically stated that as per entries of Ex.P14, birth place of the prosecutrix is not Village Patharatola, but",

is Village Jaisinghtola. Statements of mother and father of the prosecutrix under Section 161 of the Code of Criminal Procedure have not been,

recorded by the prosecution nor their statements are recorded in the Court. Why were their statements not recorded is not explained by the,

prosecution.,

From the above, it is clear that except the entries of Ex.P14, there is no other documentary evidence available regarding date of birth of the",

prosecutrix. No kotwari register was seized. No ossification test of the prosecutrix was conducted by the prosecution. It is settled legal position that,

the date of birth mentioned in the school register or any such document has no evidentiary value unless the person who made the entries or who gave,

the date of birth is examined. Merely proof of such document would not tantamount to proof of all the contents or the correctness of date of birth,

stated in the document. In Birad Mal Singhvi case (supra), the Supreme Court has observed thus:",

“14. ….. If the entry in the scholar's register regarding date of birth is made on 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 such as extract of School Register, mark list or certificate of Education Board etc. are",

proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the",

contents or the correctness of date of birth stated in the documents. .....â€​,

The above observation has been reiterated by the Supreme Court in Sunil case (supra).,

In the instant case, from the record, it appears that there is no conclusive proof of legally admissible evidence in relation to age of the prosecutrix",

which could suggest that on the date of incident she was minor. Though oral statements have been made by the prosecutrix, her maternal grandfather",

and uncle that she was minor at the relevant point of time and as per the entries of birth registration register (Ex.P14) her date of birth is 1.11.1984 yet,

the prosecution has failed to prove as to on what basis the said date of birth of the prosecutrix was recorded in Ex.P14. Mother and father of the,

prosecutrix have not been examined by the prosecution. Name of the informant in Ex.P14 is mentioned as P.R. Chandrawanshi. No evidence is,

available on record that the name of father of the prosecutrix is P.R. Chandrawanshi. Even ossification test of the prosecutrix has not been done to,

determine her age.,

From the above discussion, I find that no case is made out against the Appellant.",

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges",

framed against him.,

It is reported that the Appellant is on bail. His bail bonds shall continue for a further period of six months from today in terms of the provisions,

contained in Section 437A of the Code of Criminal Procedure.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,