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IN THE HIGH COURT OF MADHYA PRADESH
Atul Sreedharan, J.
Vijay @ Cheeku v. The State of Madhya Pradesh
Criminal Appeal No. 4693 of 2021 (Gwalior);
Decided on 27.3.2023
(1) Protection of Children from Sexual Offences Act, 2012 -- S. 2 (d) -- Juvenile Justice (Care and Protection of Children) Rules, 2007 -- R. 12 -- age of prosecutrix -- in case of Mahadeo, Supreme Court had to borrow means of determining age of prosecutrix from provisions of R. 12 (3) (i) to (iii) of Rules of 2007, on account of absence of analogous provision in POCSO Act -- however, Supreme Court never intended its opinion to forbid enquiry by Courts into reliability of date of birth of prosecutrix as entered in school register -- it does not require that Courts consider date of birth of prosecutrix entered in school register as gospel truth -- such date of birth must be tested for reliability before its acceptance, based on source of information upon which entry was made in school register. (2013) 14 SCC 637 discussed. (2002) 3 SCC 496 followed. [Paras 16 & 17
(2) Protection of Children from Sexual Offences Act, 2012 -- S. 2 (d) -- age of prosecutrix -- source of information relating to date of birth of child/prosecutrix is statement of parent/guardian -- Court must satisfy itself that parent/guardian has affirmatively stated so in his or her testimony -- parent/guardian state in testimony that they do not know date of birth of prosecutrix, or that they gave an estimation without being sure -- Court must look for alternate proof relating to prosecutrix’s date of birth. [Para 18
(3) Protection of Children from Sexual Offences Act, 2012 -- S. 2 (d) -- age of prosecutrix -- both mother and father of prosecutrix in their testimony state emphatically that they are unable to give date of birth of prosecutrix -- even state that date of birth was given to school authorities on basis of estimation -- such date of birth is unreliable and does not inspire confidence -- ten years of appellant’s life cannot be taken away on basis of estimation, speculation and guess work relating to age of prosecutrix. [Paras 19
(4) Protection of Children from Sexual Offences Act, 2012 -- S.2 (d) -- age of prosecutrix -- is a fact in issue -- prosecution must prove it beyond reasonable doubt to secure conviction of accused. [Para 19
(5) Protection of Children from Sexual Offences Act, 2012 -- S.2 (d) -- age of prosecutrix -- school certificate gives age of prosecutrix on basis of vague estimation -- scientific evidence, i.e., report of radiologist shows age of prosecutrix as above eighteen years -- report of radiologist relied upon to fix date of birth of prosecutrix. [Para 20
(6) Penal Code, 1860 -- Ss. 363, 366A and 376 (2) (n) -- prosecutrix and appellant eloped and later married and had children -- parents of prosecutrix lodged complaint against appellant -- statement of prosecutrix clearly reveals that elopement and cohabitation was consensual -- only on account of intransigence of parents of prosecutrix and their unwillingness to accept appellant as son-in-law, case was foisted upon him -- age of prosecutrix in penumbra of doubt -- must be held in favour of appellant on basis of radiological report -- appellant acquitted. [Paras 22 to 24
¼1½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 &&/kkjk 2¼?k½ && fd'kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ fu;e] 2007 && fu- 12 && vfHk;ksD=h dh o; && iksDlks vf/kfu;e esa ln`'k mica/kksa ds vHkko ds dkj.k egknso ds izdj.k esa mPpre U;k;ky; dks vfHk;ksD=h dh o; vo/kkfjr djus dk lk/ku lu~ 2007 ds fu;eksa ds fu- 12¼3½¼1½ ls ¼3½ ds mica/kksa ls ysuk iM+k Fkk && rFkkfi] mPpre U;k;ky; dk vk'k; U;k;ky;ksa dks fo|ky; jftLVj esa izfo"V fd, x, vfHk;ksD=h ds tUe fnukad dh fo'oluh;rk dh tk¡p djus ls fuf"k) djus dk dHkh ugha Fkk && mlesa ;g vis{kk ugha dh xbZ gS fd U;k;ky; fo|ky; jftLVj esa izfo"V vfHk;ksD=h ds tUe fnuakd dks osn okD; ekusa && ,sls tUe fnukad dks Lohdkj djus ls iwoZ] fo|ky; jftLVj esa dh xbZ izfof"V dh tkudkjh ds lzksr ds vk/kkj ij mldh fo'oluh;rk dk ijh{k.k vo'; fd;k tkuk pkfg,A ¼2013½14 ,l lh lh 637 foosfprA ¼2002½3 ,l lh lh 496 vuqlfjrA ¼iSjk 16 ,oa 17
¼2½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 &&/kkjk 2¼?k½ && vfHk;ksD=h dh o; && ckfydk@vfHk;ksD=h ds tUe fnukad dh tkudkjh dk lzksr ekrk&firk@laj{kd dk dFku && U;k;ky; dks Lo;a dk lek/kku djuk gksxk fd ekrk&firk@laj{kd us vius ifjlk{; esa ,slk ldkjkRed :i ls dgk gS && ekrk&firk@laj{kd us ifjlk{; esa dgk fd mUgsa vfHk;ksD=h dk tUe fnukad Kkr ugha] vFkok ;g fd mUgksaus vk'oLr gq, fcuk] izkDdyu fd;k Fkk && U;k;ky; dks vfHk;ksD=h ds tUe fnukad ds laca/k esa vkuqdfYid lcwr ढw¡ ढuk gksxkA ¼iSjk 18
¼3½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 &&/kkjk 2¼?k½ && vfHk;ksD=h dh o; && vfHk;ksD=h ds ekrk vkSj firk] nksuksa us vius ifjLkk{; esa n`ढ+rk ls dgk fd og vfHk;ksD=h dk tUe fnukad crkus esa vleFkZ gSa && ;gk¡ rd dgk fd fo|ky; ds izkf/kdkfj;ksa dks tUe fnukad izkDdyu ds vkèkkj ij fn;k x;k Fkk && ,slk tUe fnukad Hkjksls ;ksX; rFkk fo'oklksRiknd ugha && vfHk;ksD=h dh o; ds laca/k esa izkDdyu] vVdyckth vkSj vankt ds vk/kkj ij vihykFkhZ ds thou ds nl o"kZ ugha Nhus tk ldrsA ¼iSjk 19
¼4½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 &&/kkjk 2¼?k½ && vfHk;ksD=h dh o; && fookfnr rF; gS && vfHk;qDr dh nks"kflf) lqfuf'pr djus ds fy, vfHk;kstui{k dks mls ;qfDr;qDr lansg ls ijs lkfcr djuk vko';dA ¼iSjk 19
¼5½ ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e] 2012 &&/kkjk 2¼?k½ && vfHk;ksD=h dh o; && fo|ky; ds izek.ki= esa vfHk;ksD=h dh o; vfuf'pr izkDdyu ds vk/kkj ij nh xbZ && oSKkfud lk{;] vFkkZr~ fofdj.k& fpfdRlk foKkuh ds izfrosnu esa vfHk;ksD=h dh o; vBkjg o"kZ ls vf/kd nf'kZr && vfHk;ksD=h dk tUe fnukad r; djus ds fy, fofdj.k fpfdRlk foKkuh dk izfrosnu voyafcrA ¼iSjk 20
¼6½ naM lafgrk] 1860 &&/kkjk 363] 366d rFkk 376 ¼2½¼ढ½ && vfHk;ksD=h vkSj vihykFkhZ us iyk;u dj ckn esa fookg fd;k rFkk larkuksa dks tUe fn;k && vfHk;ksD=h ds ekrk&firk us vihykFkhZ ds fo#) f'kdk;r nkf[ky dh && vfHk;ksD=h ds dFku ls Li"V nf'kZr fd iyk;u vkSj lgokl lgefrtU; Fkk && vfHk;ksD=h ds ekrk&firk dh gB/kfeZrk vkSj vihykFkhZ dks viuk nkekn Lohdkj djus dh vfuPNk ek= ds dkj.k ml ij izdj.k yknk x;k && vfHk;ksD=h dh o; lansg ds ?ksjs esa && fofdj.k fpfdRlk foKku izfrosnu ds vk/kkj ij vihykFkhZ ds i{k esa ekuh tkuk gksxh && vihykFkhZ nks"keqDrA ¼iSjk 22 ls 24
ORDER
1. None present for the appellant as the counsel for the appellant has abstained from work on account of the call given by the State Bar Council.
2. The prosecutrix is present in person along with her youngest child. She is married to the appellant. The appellant is in jail since his conviction by the Ld. trial Court.
3. Today matter is listed for orders on I.A. No.18472/2022 for suspension of sentence. Earlier, two applications for suspension of sentence have already been dismissed on merits vide order dated 6.1.2022 and 27.6.2022. Learned counsel for the State has prayed that the application may be dismissed as there is no change in circumstances.
4. This Court asked the prosecutrix what she has to say about the case as she has appeared in person. The prosecutrix says that she has studied up to Class 7th. Though literate, she cannot read a Hindi Newspaper. She further says that she can only sign her name in Hindi. According to the prosecutrix, from the time the appellant was enlarged on bail pending trial till he was sent to prison to undergo his sentence, the prosecutrix and the appellant had got married and they have three children whose names are Akash aged about six years, Prince aged about four years and Mohit, the youngest, who is about one and half years old. The prosecutrix broke down before this Court and stated that she is on the verge of penury as her husband, the appellant herein, is in prison undergoing his sentence. She has also stated that she was compelled by her parents to testify against her husband in the trial. After she married the appellant, her parents have refused to keep her, and her in-laws have given her a room for her stay and have told her that they have done enough for her and that she should now fend for herself and her three children. She further stated that she has taken debt from several relations just to keep her nose out of the water and does odd jobs like cleaning, cooking, and stitching whenever such work is available and thus ekes out her livelihood with great difficulty. She says that she has no assistance from any quarter. Giving due consideration to the distress of the prosecutrix and her dire financial condition, this Court asked the learned counsel for the State if he is prepared to argue the matter finally to which he has consented. Therefore, the I.A No. 18472/2022 for suspension of sentence is dismissed on the grounds of no change in circumstances and the appeal itself is taken on board for final hearing.
5. In the absence of the learned counsel for the appellant, this Court on its own has gone through the record of the trial Court.
6. Learned counsel for the State has prayed that the appeal be dismissed as the order passed by the learned trial Court is well founded, based upon a proper appreciation of facts, and has correctly applied the law to the facts of the case. He further submits that even if the record goes to reflect consent on the part of the prosecutrix, the same is immaterial as the prosecutrix was a minor on the date on which she was taken away by the appellant and subjected to sexual intercourse by the appellant. He has further drawn the attention of this Court to the testimony of the prosecutrix dated 16.9.2015 in which she has supported the case of the prosecution in its entirety and has not been declared hostile and that statement of the prosecutrix reveals how she was taken away by the appellant and that she was a minor on the date on which the appellant forced her to elope with him along with the assistance of two other co-accused persons and committed the rape with her. He further submits that the prosecutrix had even levelled allegations of rape against other two co-accused persons from which she had resiled subsequently.
7. Learned counsel for the State has also drawn the attention of this Court to the DNA report which discloses a perfect match of the DNA isolated from the semen stains found on the panty of the prosecutrix with the DNA of the appellan
School records' date of birth entries admissible but not conclusive proof of age without evidence of basis; prosecution must prove victim's minority beyond reasonable doubt for statutory rape convict....
The central legal point established in the judgment is the importance of proving the prosecutrix's age and consent in cases involving offences under IPC Sections 363, 366, 376 and the Scheduled Caste....
Prosecution must prove the age of the victim to secure conviction under relevant IPC sections; evidentiary discrepancies can lead to acquittal.
The appeal was allowed as the prosecution failed to prove the prosecutrix's age and voluntary relationship negated the charges of abduction and rape.
A perusal of Rule 12(3) of J.J.Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate....
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