Vinod Kumar s/o Hazarilal Joshi vs Gangadhar s/o Bardichand

This Judgment shall govern the disposal of aforementioned two Criminal Appeals. Since both these appeals arise out of the same judgment and common questions are involved in these appeals, the same were heard together and are being decided by this common judgment.

Both, these appeals are directed against the judgment dated 23.09.1997, passed in Sessions Trial No.593/1996, by the learned VIII Additional Sessions Judge, Jabalpur, whereby the present appellants have been convicted for offence punishable under Sections 363 of IPC and sentenced to undergo R.I. for 5 years each with fine amount of Rs.5,000/- to each appellant and in default of payment of fine R.I. for one year each. Similarly, they have been convicted for offence punishable under Section 366 of IPC and sentenced to undergo R.I. for 5 years each with fine amount of Rs.5,000/- to each appellant and in default of payment of fine R.I. for one year each.

According to the prosecution, on the date of incident i.e. 7.2.1987, at about 11:00 AM, prosecutrix (PW/1) went to purchase something at the shop of one Narayan, thereafter she did not return to home. In the meantime, the mother of the prosecutrix, Kusum Bai (PW/2) got an information that accused/appellant Shamim took her daughter to the Court for the purpose of marriage. Chhoti Bai (PW/2) rushed to the Court where she found that her daughter, prosecutrix (PW/1) along with appellant/Shamim were standing, then prosecutrix (PW/1) had told her that appellant-Shamim forcefully took her to the Court for marriage purpose. Rahim, brother of appellant/Shamim, threatened Chhoti Bai (PW/2) not to report the matter, otherwise they

would face the dire consequences, but despite that Chhoti Bai (PW/2) had lodged the report at Police Station Hanumantal, District Jabalpur (MP), vide Ex.P/1, on the basis of which, Crime No.74/1987 was registered against the appellants for the offences punishable under Sections 363 and 366 of IPC.

During the course of the investigation, appellants were arrested, Panchnama and spot map were prepared. Birth certificate of prosecutrix was seized on 18.2.1987 vide Ex.P/2 by Investigating Officer S.P.Tiwari (PW/7) in presence of witnesses. Statements of prosecutrix and other witnesses were recorded. After completing investigation, the appellants were charge sheeted for the aforesaid offences.

On the basis of the charge-sheet, learned trial Court framed charges against the accused/appellants for offences punishable under Sections of the 363 and 366 of IPC . The appellants abjured their guilt.

The learned trial Court framed charges as aforesaid offences against the appellants. Contents of the charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. They took plea that they have been falsely implicated in this case.

But the learned trial Court upon hearing the parties, on going through the evidence of the witnesses, exhibited documents and material available before it, convicted and sentenced the appellants as above by the impugned judgment.

Being aggrieved by and dissatisfied with the aforesaid judgment of conviction and order of sentence, the appellants have preferred these appeals.

We have heard learned counsel for both the parties and perused the record.

Learned counsel for the appellants submitted that learned trial Court has failed to appreciate the factual aspects of the case. They have been falsely implicated in this case. Learned counsel further submits that ingredients to constitute offence under Sections 363 and 366 of IPC are completely missing in the instant case. He further submits that accused/appellant Abdul Shamim denied to take away the prosecutrix (PW/1) forcefully for the purpose of marriage to the Court and in this way accused/appellant Mahesh Kumar has assisted him. Learned counsel further submitted that learned trial Court erred in holding the appellants guilty for the aforesaid offences. He prays for acquittal of the appellants by setting aside the judgment of the trial Court.

Combating the above arguments, learned Panel Lawyer appearing on behalf of the respondent/State has submitted that there is enough evidence to hold guilty the appellants for commission of above mentioned offence. Prosecution witnesses and other circumstantial evidence have supported the case of prosecution. The learned Panel Lawyer has, vehemently, argued that learned trial Court in its detailed judgment has considered thoroughly each and every factual and legal position submitted by the defence as well as prosecution and rightly convicted and sentenced the appellants for the aforesaid offence.

The prosecution has examined prosecutrix herself as (PW/1), her mother Chhoti Bai (PW/2) sisters Ramsiya (PW/3) & Shanti Bai (PW/4), her father Rajanlal (PW/5), Sub Inspector, S.P. Pandey (PW/6) and Investigating Officer S.P. Tiwari (PW/7).

Now the moot question that arises for consideration before this Court is, whether the prosecutrix was below 18 years of age on the date of the incident?

Rajanlal (PW/5), father of prosecutrix, has stated in his statement that the accused/appellants had taken away her daughter for the purpose of marriage, when she was 15 years of age. He further stated that he

had given transfer certificate of her daughter to S.P. Tiwari (PW/7) vide Ex.P/2. In the document Ex.P/2, the date of prosecutrix has been mentioned as 01.08.1970. On the basis of the statement of father the prosecutrix, Rajanlal (PW/5) and on the basis of entry so made in the transfer certificate Ex.P/2, learned trial Court inferred that it has been proved beyond reasonable doubt that on the date of incident, the prosecutrix had not completed the age of 18 years. Perusal of that transfer certificate, Ex. P/12 reflects that the date of birth of the prosecutrix is 01.08.1970. Accordingly, on the date of incident i.e. 07.02.1987, the age of prosecutrix was 16 years, 6 months and 6 days.

Merely because document Ex.P/2 is proved, it does not mean that the contents of document is also proved. The date of birth of the prosecutrix as mentioned in the said transfer certificate document could be proved by the evidence of other persons who could vouchsafe for the truth of the facts in issue. The father of prosecutrix Rajanlal (PW/5) in his deposition has stated that at the time of incident her daughter was 15 years of age. In the cross-examination he deposed that he has stated whatever he has stated in the examination in chief.

The date of birth mentioned in transfer certificate Ex.P/2 would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. Father of prosecutrix Rajanlal (PW/5) in his deposition has stated that her daughter had studied upto 4th Class. No person or teacher from the school where she had studied has been examined. No other certificate or document except transfer certificate was produced regarding her age. Her date of birth had been written only on the basis of T.C. issued.

Thus, father of prosecutrix has not stated the date of birth of prosecutrix. In his statement he has stated at the time of incident her daughter was 15 years of age. Thus, in fixing the age of the prosecutrix, the court below relied solely on the transfer certificate.

"The legal position is not in dispute that mere production and making of document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."

Even, in this case T.C. Or any document related to birth date of the prosecutrix has not been exhibited. In such circumstances, we are constrained to hold that the court below without examining the factual and legal issues has unnecessarily rushed to the conclusion that the prosecutrix was minor at the time of the

alleged abduction. There is no satisfactory evidence to indicate that she was a minor.

Thus, we are of the considered opinion, in the facts of this case the age of prosecutrix could not have been fixed on the basis of above mentioned certificate and, thus, prosecution is failed to prove that on the date of incident, the age of prosecutrix was below 18 years.

The prosecutrix (PW/1), she has stated that when she went outside of her house, accused/appellants along with other accused namely, Rajwa, Mahesh, Rashid, Shamin and Shiv met her, took her in a rickshaw to the Court for the purpose of marriage. Thereafter, her mother, Chhoti Bai (PW/2) came there and took her to the police Station Hanumantal. Thereafter, after lodging the report by her and her mother Chhoti Bai (PW/2), they went to her home. Prosecutrix (PW/1) further stated that accused/appellants had beaten her and her parents also. Even, the accused/appellants and other accused persons had committed riot with her in-laws. In her cross-examination, she has stated all the aforesaid versions in detail, but has nor stated anything about her age or date of birth. In para 8 of her cross- examination, she has stated that she has not cleared 5th Class examination.

So far as statements of prosecutrix regarding abduction is concerned, trial Court has observed that version of the prosecutrix as given by her in her statement recorded under Section 161 of the Code of Criminal Procedure differs substantially from the evidence given by her in the Court. That apart, from her evidence it clear that she was taken to the Court for the purpose of marriage by the accused/appellants along with others and she went along with them without any protest. Moreover, she met a number of persons, but did not tell or narrate to anyone about the abduction. Had she been forcibly abducted by the accused/appellants, there were numerous occasions on which she could have easily raised an alarm and invite intervention of others. However, she singularly failed to do so, which, as per the trial Court leads to the inescapable conclusion that she was a consenting party and had accompanied the accused/appellants on her own free will and accord. As stated above, prosecution has failed to prove that at the time of the incident, the prosecutrix was below 18 years of age.

Considering the nature of the evidence, it appears to us that the victim was a consenting party to the entire incident because prosecutrix (PW/1) in her statement, has stated that several persons were

coming and going. Near Ghamapur Chowk, Jabalpur, many persons were standing, but she never raised an alarm showing protest. She has further stated that accused/appellants caught hold of her neck. As such, the entire story about the abduction of prosecutrix seems to have been concocted. There is no reliable evidence to support the conviction of accused/appellants for the offence under Section 366 of IPC. The circumstances clearly show that the prosecutrix voluntarily and consciously consented to have gone with the accused/appellants and her consent was not in consequence of any misconception of fact. Therefore, we are of the considered opinion that there was no misconception of fact and the victim being a full grown up lady voluntarily consented to go with the accused/appellants. Evidence of Prosecutrix (PW/1) also reveals that she wanted to marry accused/appellant Abdul Shamim, but she could not marry as her parents objected to the marriage. Thus, the charges levelled against the respondent under Sections of the 363 & 366 have not been proved. Therefore, learned trial Court erred in convicting the accused/appellants for offences as aforesaid.

In the aforesaid circumstances, in the considered opinion of this Court, trial Court should have considered the entire material evidence on record against accused/appellants in its entirety.

On the basis of evidence produced by prosecution, prosecution has failed to prove that on the date of incident prosecutrix was less than 18 years of age. As per evidence, she was consenting party. Under such circumstances, appellant could not be convicted for offence under Sections 363 & 366 of IPC. The conviction as well as sentence ordered by the trial Court for offences aforesaid cannot be sustained. Consequently, the appeal filed by the appellants is hereby allowed. Their conviction as well as sentence for offence punishable under Sections 363 & 366 of IPC are hereby set aside. The appellants are acquitted from all the charges levelled against them.

Let a copy of this order be sent to the trial Court along with the record.