A document may be admissible under section 35 of Evidence Act, but as to whether the entry contained therein has any probative value may still be required to be examined: Madhya Pradesh High Court
The Madhya Pradesh High Court in the case of Relsingh vs The State Of Madhya Pradesh (CRIMINAL APPEAL No.835 OF 2017) upheld that a document may be admissible under section 35 of Evidence Act, but as to whether the entry contained therein has any probative value may still be required to be examined:
Facts of the case: The appellant and complainant’s minor daughter prosecutrix, aged about 12 years both were residents of same village Raikhed, Police Station Pansemal, District Barwani (MP) and were having love affair with each other. On 16.05.2015, at about 10.00 AM, when prosecutrix was going towards her school, appellant came there and forcefully got her seated on his motorcycle and took her to Shahada (Maharashtra), kept her there captivated in a room and committed rape upon her repeatedly.
On the same day, when the complainant returned home and found his minor daughter prosecutrix went missing, he searched for her at nearby places and came to know that prosecutrix had eloped with the appellant. Thereafter, on 28.05.2015, he informed the police about the incident, on the basis of which, on the same day, missing person’s report and FIR was lodged at Police Station. SHO Police Station recovered the prosecutrix from the possession of the appellant as per Dastyabi Panchnama and recorded the statement of the prosecutrix.
Dr. Gayatri Pandit opined in her MLC report that as no injury detected on the private part or all over the body of the prosecutrix therefore, opinion regarding recent sexual activity cannot be given. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, convicted the appellant for the offence punishable under Sections 363, 366-A and 376(2)(n) of IPC and Section 3/4 of POCSO Act and sentenced him to suffer. Being aggrieved with the said judgement of conviction and order of sentence, appellant had preferred this appeal for setting aside the impugned judgement and discharging him from the charges framed against him.
Judgment: According to the court the questions which fall for consideration of this Court are that firstly, whether the prosecutrix was minor at the time of incident and secondly, whether the prosecutrix was a consenting party?
A document is admissible under Section 35 of the Evidence Act, 1872 being a public document if prepared by a government official in the exercise of his official duty. However, the question does arise as to what is the authenticity of the said entry for the reason that admissibility of a document is one thing and probity of it is different. A document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case.
The law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. In case, the issue was to be examined in the light of the aforesaid settled legal proposition, there was nothing on record to corroborate the date of birth of the prosecutrix recorded in the school register. It could not be held with certainty that the prosecutrix was a major or minor.
So far as consent of the prosecutrix was concerned, she deposed that appellant on the pretext of marriage took her to Shahada (Maharashtra), kept her there captivated in a room and committed rape upon her repeatedly. In her cross-examination she admitted that in her community, there is a custom/practice wherein the groom’s party gives dowry to the bride’s party. She also admitted that when the appellant’s father did not give Rs.30,000/- to her father, he broke up her engagement with the appellant. She also admitted that appellant and his father themselves left her to her home.
As her age at the time of incident had not been found proved below 18 years and her statements with regard to commission of the offence of rape are also not specific, in such facts and circumstances of the case, the Court found that prosecution had failed to prove that there was no consent on the part of prosecutrix. Hence, conviction of the appellant could not be upheld.
JUDGMENT REVIEWED BY : SHUBHANGI CHAUDHARY