Mahesh Ram @ Mahesh Dewar vs State Of Chhattisgarh

In this appeal, appellant has challenged the legality and sustainability of the order of conviction dated 20.03.2017 passed in Sessions Trial No. 01/2016, whereby learned Sessions Judge, Manendragarh, District Koriya, Chhattisgarh, convicted the appellant and awarded sentence as mentioned below.

Conviction

Sentence

U/s 376(2)(K) of I.P.C.

RI for 10 years and fine of Rs. 5000/- in default of payment RI for 6 months.

U/s 4 of POCSO Act

RI for 10 years and fine of Rs. 5000/- in default of payment RI for 6 months.

U/s 6 of POCSO Act

RI for 10 years and fine of Rs. 5000/- in default of payment RI for 6 months. All sentences to run concurrently.

Facts relevant for disposal of this appeal are that the prosecutrix lodged the report on 11.11.2015 mentioning therein that complainant along with her family members approached to appellant for taking treatment through traditional method of jharphook. Appellant took her near Bachara Talab, her family members were restricted by appellant to go to the place and prosecutrix alone was taken to the other side of bank of talab. On the pretext of treatment through jharphook appellant asked the prosecutrix to remove her clothes and thereafter committed forceful intercourse with her. Based on the report offence under Section 376(2)(K)(N) of IPC and Section 4 & 6 of POCSO Act was registered against appellant. Police after investigation submitted charge sheet under the aforementioned offences and learned trial court considering the material available in the charge sheet had framed charges against appellant for commission of aforementioned offences. Prosecution examined 15 witnesses to bring home the guilt and exhibited 24 documents in its support. Prosecutrix was examined as PW-4 who at the time of incident was 15 years of age, she stood with the allegation levelled in the F.I.R. and statement under Section 161 and Section 164 CrPC, nothing adverse had come in her cross-examination. Mother of prosecutrix was examined as PW-1, she also narrated the story of taking her daughter for jharphook near Bachra Talab and stated that on the next day her daughter intimated about commission of rape upon her by appellant. Balveer Singh, uncle of prosecutrix, was examined as PW-2 who stated that the daughter of his brother /prosecutrix was suffering from Epilepsy disease for which she was taking treatment through traditional method of jharphook and he stated that his brother intimated about commission of offence by appellant. PW-3, Santosh Kumar, has proved that he along with Harinarayan and the prosecutrix went on motor cycle to the talab and appellant also came to the talab. He took the prosecutrix for treatment little far from them. Father of prosecutrix Harinarayan is examined as PW-5 who also stood with the allegation made by him in his statement recorded under Section 161 of CrPC. PW-9, Mahavir Prasad, Head Master of the Government Girls Primary School proved the admission register wherein name of prosecutrix is mentioned at serial no. 503 and her date of birth is mentioned as 20.03.1999 and date of admission is 23.06.2005. The admission register is marked as Exh. P-10. PW-14, Dr. Rajshree Singh, examined the prosecutrix, on internal examination found some penetrated injury over fabranated hymen with swelling and pain. She proved the MLC report Exh. P-13. Appellant’s statement was recorded under Section 313 of CrPC in which he has shown his ignorance to all the questions put to him and further stated that he does not want to state in his defense.

From the aforementioned evidence available on record, prosecution proved that prosecutrix was taken by her father, neighbor and relatives for jharphook to the appellant where they went to near the pond and the appellant took her little far from other person present there and on the pretext of performing jharphook had committed sexual intercourse with her. Age of prosecutrix is proved to be below 16 years on the date of incident by producing the school admission register which is a Government document and therefore the entries made therein is admissible in evidence. Merely because the Head Master/ teacher who made the entries in the school register is not examined will not made the Government record inadmissible in the facts of the case. Hon’ble Supreme Court in the case of State of Chhattisgarh vs. Lekhram reported in (2006) 5 SCC 736 has held that entry in school Register is admissible in evidence. Paragraph 13 of the aforementioned rulings is extracted below for ready reference:

“13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the 'gauna' ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.”

Recently, Hon'ble Supreme Court in case of State of Madhya Pradesh Vs Preetam reported in (2018) 17 SCC 658 has held that School registers are authentic documents maintained in official course and are entitled to credence of much weight unless proved otherwise. Relevant portions of aforementioned ruling are extracted as under:

“9. In the present case evidence of prosecutrix (PW-1) is supported by the medical evidence and also by the evidence of Mangrulal (PW-4) who saw the accused running away from the scene of occurrence. Insofar as the consent of the prosecutrix (PW-1) pointed out by the High Court is concerned, we find it difficult to agree with the view taken by the High Court. In her chief examination, Dr. U.S. Vasnik (PW-6) has stated that the age of the victim could be between 13 and 17 years. Of course in her cross-examination, Dr. Vasnik has agreed to the suggestion that the age of the victim could be 17 years.

In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined.

In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex.P/13-A, age of the victim has to be taken as 12 years at the time of occurrence.”

In aforementioned ruling Hon'ble Supreme Court has held that School registers as being maintained by government officials in discharge of their official duty when proved by oral evidence of Teacher /Head Master of School to be admissible in evidence. To prove age of prosecutrix in case of such nature, entire facts and circumstances are to be taken into consideration along with oral as well as documentary evidence brought on record by prosecution.

The doctor, PW-14, has proved the MLC report Exh. P-13 and opined that the prosecutrix was not habitual of sexual intercourse, there are signs and symptoms showing sexual intercourse 2-3 days before, based on the internal injuries.

Upon considering entire documents and oral evidence available on record, I do not find any error in the judgment of learned court below convicting the appellant for offences punishable under the Sections as mentioned above and considering the manner in which the offence is committed and minimum sentence prescribed under Section 6 of the POCSO Act, the punishment imposed upon the appellant cannot be said to be on higher side.

For the aforementioned discussion and reasons, I do not find any merit in this appeal which is liable to be and is hereby dismissed accordingly.