Sahodra Bai vs Gajendra Singh and Another

Radhe Shyam Sharma, J.—This revision is directed against judgment dated 24.11.2006 passed by Additional Session Judge, Korba in Session Trial No. 4872005. By the impugned judgment, accused/respondent No. 1 Gajendra Singh has been acquitted of the charges under Sections 363, 366 and 376(1) of the Indian Penal Code. 2. Case of the prosecution, in brief, is as under:

On 21.4.2005, at about 1.00 pm, the prosecutrix (PW14) had gone to attend the call of nature in the field of Kharmora situated in Village Barkonha. Respondent No. 1 came there, forcibly caught her and asked her to come with him. On refusal, respondent No. 1 threatened to assault her with a knife. On shouting and crying by prosecutrix (PW14), respondent No. 1 did not leave her and saying that he will marry her, took her to Village Kaparmar. On the way, Tijram (PW7), Dhan Singh (PW3) and Tijkunwar (PW1) witnessed respondent No. 1 taking prosecutrix (PW14). Respondent No. 1 threatened them that if they will inform anyone, he will kill them. Respondent No. 1 took prosecutrix (PW14) in the forest situated between Kaparmar and Jobi and committed rape against her. Thereafter, he took her to the house of his relative at Village Jobi. At about 10.00 p.m. on being scolded by Chatur Singh (PW5) and Santram, respondent No. 1 took prosecutrix (PW14) to his house at Village Barkonha. On the next day, at about 4 O''clock, mother, uncle and father of prosecutrix (PW14) came to the house of respondent No. 1 and took the prosecutrix (PW14), Prosecutrix (PW14) narrated them the incident. She lodged First Information Report (Ex. P7) at Police Station Kartala on 4.5.2005 at about 11 O''clock. She was sent to Primary Health Centre, Tilkeja, Distt. Korba for medical examination vide Ex. P9. Dr. Anju Rautray (PW16) examined prosecutrix (PW14) and gave her report (Ex. P20) in which she found that the vagina of prosecutrix (PW14) admitted one finger with pain and difficulty and her hymen was intact. She further found that partial penetration could be possible in the vagina but final opinion could be given after laboratory examination. Two vaginal slides were prepared by her for examination. She referred the prosecutrix (PW14) to Department of Radiology for determination of her age.

In further investigation, Primary School Certificate of prosecutrix (PW14) was seized vide Ex.P2 and Dakhil Kharij Panji (Ex. P6) was seized vide Ex. P7. Respondent No. 1 was also sent to Community Health Centre, Kartala for medical examination vide Ex. P13. Dr. D.R. Raj (PW9) examined him and gave his report (Ex. P4).

After completion of the investigation, charge sheet was filed against respondent No. 1 in the Court of Judicial Magistrate First Class, Korba, who, in turn, committed the case to the Court of Session Judge, Korba, from where it was received on transfer by Additional Session Judge, Korba, who conducted the trial and acquitted respondent No. 1 of the charges framed against him.

Shri Sanjeev Banjare, learned counsel for the applicant/prosecutrix (PW14) argued that on the date of incident, age of prosecutrix (PW14) was below 16 years. He further argued that the finding given by the trial Court is perverse. Respondent No. 1 abducted prosecutrix (PW14) forcibly. The judgment of acquittal recorded by the trial Court is not sustainable. Therefore, the revision may be allowed and respondent No. 1 may be convicted.

Shri A. N. Bhakta, learned counsel for respondent No. 1, supporting the impugned judgment, submitted that the judgment of acquittal passed by the learned Additional Session Judge does not warrant any interference by this court.

Shri Rajendra Tripathi, learned Panel Lawyer for the State respondent No. 2 supported the arguments advanced by learned counsel for the applicant.

We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 48/2005.

Now, we shall examine whether on the date of incident, age of prosecutrix (PW14) was below 16 years or not?

Kamlabai (PW2), who is mother of prosecutrix (PW14), deposed that she did not know that 9.10.1985 was date of birth of prosecutrix (PW14), but her age was got recorded in the school telling below than the actual. It is true that what was the age of prosecutrix (PW14) and in which class she was studying were not aware to her. She further deposed that she had five issues (children) and prosecutrix (PW14) is her second daughter.

Radhelal PW4 father of prosecutrix (PW14) deposed that prosecutrix (PW14) is his daughter, whose age was, on the date of incident, 15 years. He further deposed that he was unable to tell date and month of his birth, but he took birth in the year 1967. It is wrong to say that his age was 45 years. It is wrong to say that he was deposing his age below than the actual. He got married when he was 20 years old. He further deposed that 20 years had elapsed after his marriage. He was unable to tell that at which age he got married. Prosecutrix (PW14) is his second daughter. Eldest daughter''s name is Shanti Bai, He had five issues (children). It is true that gap of 1-2 years exists between his each child. It is wrong to say that his eldest daughter was 20 years old. He further deposed that his eldest daughter was 18 years old. It is wrong to say that date of birth of prosecutrix (PW14) is 9.10.1985. He further deposed that her date of birth is 1990.

Chheduram Sandilya (PW11) deposed that he was posted as Astt. Teacher in Primary School, Barkonha since 27.8.1980. He had brought the admission register for the year 1996-1997 in the Court in connection with prosecutrix (PW14), who had studied from class 1 to 5 in Primary School, Barkonha. Admission number of prosecutrix (PW14) was 226 and was recorded at page No. 3 in the admission register. In the said admission register, the date of birth of prosecutrix (PW14) was mentioned as 9.10.1990. In cross-examination, he deposed that he recorded the date of birth of prosecutrix (PW14) as was told by her father (Radhelal PW4). He further deposed that it is true that at the time of admission of prosecutrix (PW14) in the school, entries regarding her name, her father''s name and her date of birth were not made by him. The same were made in the register by Lakhanlal Kashyap.

Dr. Anju Rautray (PW16) deposed that she had examined the prosecutrix (PW14). At the time of examination of prosecutrix (PW14), her age was about 16 years.

In Birad Mal Singhvi Vs. Anand Purohit, , the Hon''ble Supreme Court held that the date of birth mentioned in the scholar''s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. 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 ft 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 relating to the date of birth were proved, it does not mean that the contents of document were also proved. Mere proof of the documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents.

In Babloo Pasi v. State of Jharkhand and another AIR 2009 SC 314, the Hon''ble Supreme Court, referring to the judgment of Birad Mal Singhvi (supra), held that Section 35 of the Indian Evidence Act, 1872 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 u/s 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 u/s 35 of the Evidence Act but the entry 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.

In the case on hand, Dakhil Kharij Panji has been exhibited as Ex. P6 by Chheduram Sandilya (PW11), but the contents thereof were not at all proved by the prosecution. Kamlabai (PW2) specifically deposed that it is true that age of prosecutrix (PW14) was got recorded mentioning below than the actual, Radhelal (PW4) was unable to state his date of birth. He was also not sure about his age on the date of his deposition. Looking to his deposition made in paragraph 13, he was not sure about the date of birth of his daughter (prosecutrix PW14). So far as entry in the school register is concerned, Chheduram Sandilya (PW11) was posted as an Assistant Teacher in the school in which prosecutrix (PW14) studied. He deposed that the relevant entries regarding prosecutrix (PW14) were not made by him. He further deposed that the same were made in the said register by Lakhanlal Kashyap. Prosecutrix (PW14) was not taken to the school for admission. Instead, they had gone door to door for admission of children in their school. He further deposed that a register was maintained regarding entry of date of birth of the students and signatures of parents/guardians were being obtained in the said register. He further deposed that the police had not seized the said register. He did not depose as to what was the basis of such entry of date of birth of prosecutrix (PW14) in the school register. The register in which entries of dates of birth were made and signatures of parents/guardians were obtained was not produced by the prosecution. It is, therefore, clear that entry of date of birth of prosecutrix (PW14) in Dakhil Kharij Panji (Ex. P6) was not made on the basis of information given by her father Radhelal (PW4) or on the basis of birth certificate or Kotwari Register etc.

So far as oral evidence of prosecutrix (PW14), her father Radhelal (PW4) or her mother Kamlabai (PW2) are concerned, the same are too vague: Therefore, the prosecution utterly failed to establish that the prosecutrix (PW14) was below 16 or 18 year of age on the date of incident. Therefore, the finding recorded by learned Additional Session Judge that the prosecution could not prove that the prosecutrix (PW14) was below 18 years of age is proper.

Now, we shall examine conduct of prosecutrix (PW14).

Admittedly, prosecutrix (PW14) and respondent No. 1 were well known to each other.

Kamlabai (PW2), who is mother of prosecutrix (PW14), deposed that on the date of incident, when they did not know about the whereabouts of her daughter, prosecutrix (PW14), they asked about her from the villagers. Tijkunwar (PW1) and others told her that respondent No. 1 and prosecutrix (PW14) had gone together towards Kaparmar. Tijram (PW7) did not tell her anything. In cross-examination, she deposed that office of Sarpanch of their village was reserved for woman candidate. Jaglal is real brother of Radhelal (PW4) father of the prosecutrix (PW14). It is true that Pramila, wife of Jaglal had contested the election for the office of Sarpanch in their village but she had lost the same. She did not know whether the mother of respondent No. 1 had contested the election for the office of the Sarpanch of their vii/age or not? She further deposed that she did not know whether her husband Radhelal (PW4) contented any election or not? It is true that father of respondent No. 1 had projected Jagatlal in the election and had got him win and her husband had lost that election. She further deposed that due to threats given by respondent No. 1 to her husband Radhelal (PW4), the report was lodged belatedly. She further deposed that she had not stated all the above facts before police. She further deposed that respondent No. 1 is her Dever (brother-in-law). It is wrong to say that respondent No. 1 was going to marry prosecutrix (PW14). She was not aware whether marriage was performed between respondent No. 1 and prosecutrix (PW14) or not?

Dhan Singh (PW3) deposed that on the date of incident, he and his wife had gone to pluck Char in the village. At about 2-3 p.m., they saw that respondent No. 1 was taking prosecutrix (PW14) with him towards Kapar Road. In cross-examination, he deposed that it is true that he had climbed on the Char tree. He himself did not see anybody corning or going. He deposed whatever was told by his wife Tijkunwar (PW1).

Radhelal (PW4) father of prosecutrix (PW14) deposed that on Thursday, 21.4.2005, they were not present at their house. At about 1.00 pm, his daughter prosecutrix (PW14) had gone towards the field to attend the call of nature. At that time, respondent No. 1 caught and threatened her. He asked her to come with him and said that he will marry her. Prosecutrix (PW14) refused her repeatedly, shouted and cried, but respondent No. 1 threatened her of life showing a knife. Prosecutrix (PW14), shouting, went along with respondent No. 1. He further deposed that when they returned home in the evening, they came to know that prosecutrix (PW14) was not present at home. On being asked from the villagers, Dhan Singh (PW3) told the that when they were plucking Char in the forest, they saw that respondent No. 1 and prosecutrix (PW14) were going towards Kaparmar forest. He further deposed that he himself, his wife Kamlabai (PW2), Kumar Singh, Jaglal and others had gone to the house of Ganpat (father of respondent No. 1). They had taken prosecutrix (PW14) back their home. She had narrated them the same as was deposed by him. She told them that she was taken to the house of maternal uncle (Mama) of respondent No. 1 at Village Jobi via Kaparmar. They had stayed there 2-3 hours. On being informed by maternal aunt (Mami) of respondent No. 1 in Village Barkonha, Chatur Singh (PW5) and Santram had gone to Village Jobi. They had seen her in the house of respondent No. 1 and brought back home there from. On being asked parents of respondent No. 1 why they had taken" prosecutrix (PW14) at their them house, they did not reply anything. Prosecutrix (PW14) narrated them about the incident. She told them that when she had gone to attend the call of nature, respondent No. 1, threatening her of life showing a knife, forcibly took her with him. Respondent No. 1 undressed her in the forest situated, near Villages Jobi and Kaparmar and committed sexual intercourse with her. Thereafter, respondent No. 1 took her to the house of his maternal uncle (Mama) at Village Jobi and had kept there. On being informed in Village Barkonha, Chatur Singh (PW5) and Santram had gone to Village Jobi. In cross-examination, he deposed that Gram Panchayat of their village is Jobi Pali. He had contested the election for the office of Panch of Gram Panchayat Jobi Pali. It is true that he had lost the election. He further deposed that it is true that office of Sarpanch of Gram Panchayat Jobi Pali was reserved for a woman candidate, for which, Pramila, wife of his brother had contested the election. It is true that mother of respondent No. 1 had contested the election against Pramila. Pramila had lost the election. It is true that Pramila had lost the election due to contesting the said election by Jano Bai.

Chatur Singh (PW5) deposed that he himself, Santram, Surendra and others had gone to the house of Devdhar, maternal uncle of respondent No. 1, situated at Village Jobi to take back prosecutrix (PW14). Prosecutrix (PW14) came out of the house first, thereafter, respondent No. 1 came out of the house. When he asked prosecutrix (PW 14), she replied that she had gone along with respondent No. 1 to the house of maternal uncle of respondent No. 1 at her own will. Both prosecutrix (PW14) and respondent No. 1 told that they will marry each other. Thereafter, they had taken back both of them to their houses.

Daulatram (PW6) deposed that on being asked from prosecutrix (PW14), she did not tell him anything. Police had enquired from him and had taken his statement. How prosecutrix (PW14) had gone out, he was not aware of it.

Tijram (PW7) deposed that on the date of incident, at about 1.00 p.m., he had gone along with prosecutrix (PW14) to new house to collect wood. He stayed inside the house. Prosecutrix (PW14) came out of the house. Respondent No. 1 was wandering outside the house. Respondent No. 1 caught hand of prosecutrix (PW14) and asked her to accompany him. On being refused by prosecutrix (PW14), respondent No. 1 threatened her of life. Prosecutrix (PW14) shouted and cried. He, having heard cry of prosecutrix (PW14), ran and asked respondent No. 1 to leave prosecutrix (PW14), but he did not leave her. Respondent No. 1 threatened him that if he will toll anything in his house, he will kill him. Due to fear, he came back home and respondent No. 1 took prosecutrix (PW14) to Village Jogi. In the evening, he narrated the incident to his parents at his house. In cross-examination he deposed that it is true that families of Radhelal (PW4) and respondent No. 1 are at inimical terms due to election. It is true that he was disclosing about the incident first time in the Court. Earlier also he had narrated about the incident to police at Kartala. He had gone to Police Station, Kartala along with his uncle Radhelal (PW4). Near the house of prosecutrix (PW14), houses of Jagat, Samaru and others are situated. It is true that coming and going of villagers continued in the village.

Prosecutrix (PW14) deposed that at about 1-1:30 p.m., she had gone from her old house to new house to attend the call of nature. At that time, she saw that respondent No. 1 was wandering near the new house. Feeling shy, she began to comeback her old house. Respondent No. 1 chased her. He caught her hand near the new house itself and asked her to accompany him. She asked him where will he take her? He asked her to come with him and threatened her of life in case of her refusal. He forcibly took her towards the forest of Barkona. She further deposed that her brother Tijram (PW7) was playing near the new house. Having heard her voice, he came saying that who was shouting? He asked respondent No. 1 to leave her, but respondent No. 1 refused to leave. Respondent No. 1 threatened Tijram (PW7) to go away, otherwise he would kill him. Having feared, Tijram (PW7) fled from there. She further deposed that respondent No. 1 took her towards the forest forcibly and she was shouting at that time. Respondent No. 1 asked her not to shout and threatened her of life. She feared. Respondent No. 1 committed rape with her in the forest. While she was being raped, she shouted and tried to come out of his clutches. Respondent No. 1 threatened her that if she will shout, he will kill her. Thereafter, respondent No. 1, having caught her, took her to Village Jogi. Respondent No. 1 took her to the house of his Nani (grand-mother) at Village Jogi and kept her there whole day. In cross-examination, she deposed that her date of birth is 9.10.1990. She further deposed that on 21-5-2005, she stayed at Village Jogi whole day and returned her village in the evening. She further deposed that it is true that her father had come to the Court along with her on the date of her deposition.

Dr. Anju Rautray (PW16) deposed that she examined prosecutor; (PW14) and gave her report (Ex.P20), in which she found that the vagina of prosecutrix (PW14) admitted one finger with pain and difficulty and her hymen was intact. She further found that partial penetration could be possible in the vagina but final opinion could be given after laboratory examination. She further deposed that no sexual intercourse was committed with prosecutrix (PW14).

Looking to the evidence of prosecutrix (PW14), her conduct goes to show that she willingly accompanied respondent No. 1 on the date of incident and remained with him and did not try to come out of his clutches.

From the above facts and circumstances of the case, it is not established that respondent No. 1 abducted prosecutrix (PW14) forcibly and committed forcible sexual intercourse with her.

Therefore, it cannot be said that the learned Additional Session Judge has not correctly appreciated the evidence on record or that acquittal of respondent No. 1 has resulted into travesty of justice. Therefore, the judgment of acquittal recorded by the learned Additional Session Judge does not call for interference by this Court. For the foregoing reasons, the revision is liable to be and is hereby dismissed. The bail bonds of respondent No. 1, if furnished, are cancelled and sureties stand discharged.