Sikkim High Court
Anish Rai vs State Of Sikkim on 20 July, 2018
Equivalent citations: AIRONLINE 2018 SK 17, 2018 CRI. L. J. 4193, (2018) 189 ALLINDCAS 796 (SK)
Author: Meenakshi Madan Rai
Bench: Bhaskar Raj Pradhan, Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED: 20th July, 2018
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, ACTING CHIEF JUSTICE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No. 35 of 2017
Appellant : Anish Rai,
S/o Sunil Rai,
Aged about 26 years,
Resident of Central Zoom,
West Sikkim.
[At present State Central Prison, Rongyek, East Sikkim]
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
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Appearance:
Mr. Gulshan Lama, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Karma Thinlay, Additional Public Prosecutor and
Mr. Thinlay Dorjee, Additional Public Prosecutor for the
State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, ACJ
1. The Appellant is before this Court assailing the Judgment and Order on Sentence of the learned Special Judge (POCSO), South Sikkim at Namchi, in Sessions Trial Case No. 5 of 2016, both dated 20.09.2017. The impugned Order on Crl. A. No. 35 of 2017 2 Anish Rai vs. State of Sikkim Sentence handed out, rigorous imprisonment of ten years under Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‗the POCSO Act'), rigorous imprisonment of ten years under Section 376(2)(n)/376(2) of the Indian Penal Code, 1860 (for short ‗the IPC') and under Section 354(B) of the IPC, rigorous imprisonment of three years and a fine of Rs.5000/- (Rupees five thousand) only, with a default clause of imprisonment. The Sentences were ordered to run concurrently, setting off the period of imprisonment already undergone by the convict.
2. The grounds raised in Appeal are that the age of the Victim was not proved as the parameters laid out for the purposes of arriving at the age of the Victim in terms of the Juvenile Justice (Care and Protection of Children) Rules, 2007, were not complied with. On this count, the attention of this Court was drawn to the ratio of the Hon'ble Supreme Court in 1 Jarnail Singh vs. State of Haryana . That, the evidence of PW-2, the Victim's father, pertaining to the age of the Victim as likely to have been above eighteen years was disregarded by the learned Trial Court. It was also urged that the birth certificate as per the evidence on record was said to be in the possession of the Victim's sister at Delhi but no steps were initiated by the Prosecution to obtain the document as evidence. That, Exhibit-13, the report of the Radiologist is inconclusive since 1 (2013) 7 SCC 263 Crl. A. No. 35 of 2017 3 Anish Rai vs. State of Sikkim the experience of the Radiologist was not placed before the Court apart from which the expert failed to consider factors such as the environment while estimating the bone age of the Victim. Urging for an acquittal of the Appellant, it was contended that the alleged sexual act was consensual as evident from the fact that on the Appellant calling the Victim to various locations, she of her own free will complied with his requests. Besides, PW-14, the Gynaecologist who examined the Victim, opined that the vaginal swab of the Victim did not contain any motile or non-motile spermatozoa thereby revealing no evidence of recent sexual assault on the Victim and also opined that the hymen of the female could be lax due to other physical reasons besides sexual intercourse. In view of the entirety of the evidence, the impugned Judgment and the Order on Sentence be set aside and the Appellant be acquitted.
3. Opposing the arguments of learned Counsel for the Appellant, learned Additional Public Prosecutor drew the attention of this Court to Paragraph 27 of the impugned Judgment wherein the learned Trial Court relying on the decision of Jaya Mala vs. Home Secretary, Govt. of Jammu & Kashmir & Ors.2, held that one can take judicial notice of the fact that the margin of error in age ascertained by Radiological examination is two years on either side. That, on such 2 AIR 1982 SCC 1297 Crl. A. No. 35 of 2017 4 Anish Rai vs. State of Sikkim consideration, the age of the minor Victim could be about sixteen years but below eighteen years at the time of the offence, duly confirmed by the evidence of the minor Victim asserting her date of birth as 13.01.2000. The evidence of the Victim herself would indicate that the appellant had taken her into ―Karfectar‖ jungle where he committed penetrative sexual assault on her. Thereafter, after a week or so, she was again called to another location in Naya Bazaar where once again he committed the act on her, a week later he also violated her at Jorethang. That, there is no reason to doubt the bone age estimation of the Victim as conducted by PW-10, the Radiologist, who had sufficient experience in her field. Agreeing with the finding of the learned Trial Court that the consent of a minor is no consent in the eyes of law, it was canvassed that the Judgment of the learned Trial Court suffers from no illegality and the Appeal deserves a dismissal.
4. Having thus heard the rival arguments put forth by learned Counsel for the parties in extenso and examining the evidence and documents meticulously, what requires determination by this Court is;
(i) Whether the Prosecution was able to establish that the Victim was a minor?
(ii) Whether the act of the Victim was consensual or was she under coercion?
(iii) Whether the learned Trial Court was in error in convicting the Appellant?
Crl. A. No. 35 of 2017 5
Anish Rai vs. State of Sikkim
5. PW-2, the father of the alleged minor Victim PW-1, on 11.12.2015, lodged a written complaint, Exhibit-3, before the Jorethang Police Station, South Sikkim, complaining therein that PW-1 had been sexually assaulted by the Appellant on several occasions at various places. On the same day, the Complaint was registered against the Appellant as Jorethang Police Station Case FIR No. 62/2015, under Section 6 of the POCSO Act and investigation taken up. It was revealed thereof that the Appellant came to know PW-1 through a friend of hers after which they spoke to each other on the phone and agreed to meet. The Victim was on a subsequent day called to Namchi road by the Appellant who drove her in his car, took her to a nearby jungle in ―Karfectar‖ and sexually assaulted her. This incident was followed by another act of sexual assault in the Appellant's car, a week later at Naya Bazaar, West Sikkim, when PW-6, the Appellant's friend, drove the Appellant's car and stopped at the road side. Later, PW-6 reached her home. The third incident occurred on 04.12.2015 at Dzongri Hotel, Jorethang. On 10.12.2015, the wife of the Appellant came to learn of the illicit relationship between her husband and the Victim, whom she confronted. The Appellant and his wife had a verbal altercation leading to the matter being reported at the Naya Bazaar Police Station by the Appellant's wife where PW-2 came to learn that his daughter had been sexually assaulted by the Appellant. The incidents having occurred under the Crl. A. No. 35 of 2017 6 Anish Rai vs. State of Sikkim jurisdiction of Jorethang Police Station the matter came to be forwarded therein. On conclusion of investigation, charge- sheet was submitted against the Appellant under Section 5(l) and Section 5(p) of the POCSO Act.
6. The learned Trial Court thereupon proceeded to frame charge against the Appellant under Section 5(l) of the POCSO Act, and Section 376(2)(i)(n) of the IPC and Section 354B of the IPC. 16 (sixteen) witnesses were examined by the Prosecution which was followed by the examination of the Appellant under Section 313 of the Code of Criminal Procedure, 1973, providing him an opportunity of explaining the incriminating evidence against him. Rival submissions by learned Counsel for the parties were advanced and the trial culminated in the impugned Judgment and the Order on Sentence.
7. Taking up the first question for consideration, in this context according to the Victim, her date of birth is 13.01.2000, the first incident of sexual assault between the Appellant and the Victim is said to have occurred in the month of November 2015, which would make her fifteen years ten months at the time of the incident. However, PW-2, the Victim's father under cross-examination unequivocally stated that he did not know the exact date of birth of his daughter and it was possible that she was above eighteen years of age during September-November 2015. Admittedly, the birth Crl. A. No. 35 of 2017 7 Anish Rai vs. State of Sikkim certificate of the Victim is not in the records of the case and while reverting to the evidence of the Victim, she admitted under cross-examination that her father had applied for her birth certificate which was with her elder sister, who was in New Delhi. According to PW-16, the Investigating Officer (for short ‗the I.O.'), as no birth certificate was available he obtained a certificate from the school attended by the minor Victim and identified Exhibit-31 as the Certificate issued by the Principal of the Senior Secondary School, where the minor Victim had read upto class 5. The said certificate reflected the Victim's date of birth to be 01.12.2001, contrary to 13.01.2000 as stated by the Victim herself. Despite having obtained the aforesaid certificate, the I.O. under cross- examination insisted that the date of birth of the alleged Victim was 13.01.2000, while at the same time admitting that no documents were produced by him to substantiate this statement. The I.O. would admit that apart from the bone age estimation report, which according to him was correct, there was no document on record to prove that the alleged Victim was a minor during the alleged incidents. The I.O., as evident from his deposition was aware that the Victim's birth certificate was with her elder sister who was in New Delhi, but failed to furnish any reasons to justify non furnishing of the document in evidence. It is also his admission that he had not submitted any application or requisition letter to conduct the ossification test of the alleged Victim in connection with the Crl. A. No. 35 of 2017 8 Anish Rai vs. State of Sikkim case. Apart from admitting that the School Register or the School Admission Register was not produced by him to prove the existence of Exhibit-31, the Principal who issued the document was not examined to establish its probative value.
8. We may now turn our attention to the decision of the Hon'ble Supreme Court in Jarnail Singh (supra). While considering the procedure for determining the minor's age reference was made to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, and held as follows;
―22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
12. Procedure to be followed in determination of Age.--
(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;Crl. A. No. 35 of 2017 9
Anish Rai vs. State of Sikkim
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either
(i), (ii) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a) (i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Subrule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
Crl. A. No. 35 of 2017 10
Anish Rai vs. State of Sikkim
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.
24. ................................. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause.
.............................................................‖
9. In Mahadeo S/o Kerba Maske vs. State of Maharashtra and Another3, the Hon'ble Supreme Court would hold that;
―12. .......................................... Under Rule 12(3)(b), it is specifically provided that only in 3 (2013) 14 SCC 637 Crl. A. No. 35 of 2017 11 Anish Rai vs. State of Sikkim the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical option can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.‖ It may of course be clarified here that Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is now incorporated in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
10. On the edifice of these observations, while examining whether the law was complied with in the instant matter, it becomes apparent that the Victim had read upto class 5 only, hence the question of obtaining a matriculation certificate does not arise. In the absence of matriculation or an equivalent certificate, the Rule provides that the date of birth certificate from the school (other than a play school) first attended be obtained. This is what the I.O. appears to have resorted to by seizing Exhibit-31, showing the Victim's date of birth as 01.12.2001, contrary to date of birth mentioned by the Victim herself viz; 13.01.2000. What is lacking in the exercise of the I.O. is the absence of seizure of the Admission Register coupled with the fact that the Principal was not examined. It needs no reiteration that the definition of ―evidence‖ and ―proved‖ elucidated in Section 3 of the Indian Evidence Act, 1872, must be read along with Section 67 of the same statute which requires that the signature purporting to Crl. A. No. 35 of 2017 12 Anish Rai vs. State of Sikkim be that of a particular person must be established by specific evidence. Hence, Exhibit-31 remained unproved. Exhibit-31 was stated to be issued on the requisition of the I.O., which however is unavailable in the records. Even assuming that as Exhibit-31 remained unassailed at the time of evidence, it ought to be taken into consideration by this Court, the Victim herself has given evidence contrary to the document by stating, ―....................... My date of birth is 13.01.2000.‖. While her father, PW-2, would depose that, ―I do not know the exact date of birth of my daughter it was (sic „is‟) possible that she was above eighteen years of age during September-November 2015.‖ On this point relevant reference can be made to the ratiocination in Vishnu vs. State of Maharashtra4, wherein the Hon'ble Supreme Court held as follows;
"24. In the case of determination of date of birth of the child, the best evidence is of the father and the mother. In the present case, the father and the mother - PW-1 and PW-13 categorically stated that PW-4 the prosecutrix was born on 29.11.1964, which is supported by the unimpeachable documents, as referred to above in all material particulars. These are the statements of facts. If the statements of facts are pitted against the so-called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by PW-1 and PW-13, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. ............................................‖ [emphasis supplied] 4 2006 Cri. L.J. 303 Crl. A. No. 35 of 2017 13 Anish Rai vs. State of Sikkim
11. Without further ado, we may also refer to the Judgement of Birad Mal Singhvi vs. Anand Purohit5, wherein the Hon'ble Supreme Court while discussing Exhibits 8, 9, 10 and 11, entries in the scholar's register, counterfoil of Secondary Education Certificate of one Hukmi Chand Bhandari, copy of tabulation record of the Secondary School Examination 1974 and copy of tabulation of record of Secondary School Examination of 1977 respectively, observed as follows;
―14. ............................. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8, 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved.
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 it is given by a stranger or by 5 AIR 1988 SC 1796 Crl. A. No. 35 of 2017 14 Anish Rai vs. State of Sikkim 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 Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmichand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi.
.....................................................................‖ [emphasis supplied]
12. In Madan Mohan Singh and Others vs. Rajni Kant and Another6, the Hon'ble Supreme Court while distinguishing between admissibility of a document and its probative value observed as follows;
―18. Therefore, 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 aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar [(1969) 2 SCC 359 : AIR 1970 SC 326] , Ram Murti v. State of Haryana [(1970) 3 SCC 21 : 1970 SCC (Cri) 371 : AIR 1970 SC 1029], Dayaram v. Dawalatshah [(1971) 1 SCC 358 : AIR 1971 SC 681], Harpal Singh v. State of H.P. [(1981) 1 SCC 560 : 1981 SCC (Cri) 208 : AIR 1981 SC 361], Ravinder Singh Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632], Babloo Pasi v. State of Jharkhand [(2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266], Desh Raj v. Bodh Raj [(2008) 2 SCC 186 : AIR 2008 SC 632] and Ram Suresh Singh v. Prabhat Singh [(2009) 6 SCC 681 :
(2010) 2 SCC (Cri) 1194]. In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so 6 (2010) 9 SCC 209 Crl. A. No. 35 of 2017 15 Anish Rai vs. State of Sikkim made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.
19. Such entries may be in any public document i.e. school register, voters' list or family register prepared under the Rules and Regulations, etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC 1625 : (1964) 2 Cri LJ 590] and Santenu Mitra v. State of W.B. [(1998) 5 SCC 697 : 1998 SCC (Cri) 1381 : AIR 1999 SC 1587].
20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
21. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. (Vide Brij Mohan Singh v. Priya Brat Narain Sinha [AIR 1965 SC 282], Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604 : AIR 1988 SC 1796], Vishnu v. State of Maharashtra [(2006) 1 SCC 283 :
(2006) 1 SCC (Cri) 217] and Satpal Singh v. State of Haryana [(2010) 8 SCC 714 : JT (2010) 7 SC 500].
22. If a person wants to rely on a particular date of birth and wants to press a document in service, he has to prove its authenticity in terms of Section 32(5) or Sections 50, 51, 59, 60 and 61, etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of date, time, etc. mentioned therein. (Vide Updesh Kumar v. Prithvi Singh [(2001) 2 SCC 524 : 2001 SCC (Cri) 1300 : 2001 SCC (L&S) 1063] and State of Punjab v. Mohinder Singh [(2005) 3 SCC 702 : AIR 2005 SC 1868].)‖ [emphasis supplied]
13. A careful reading of the extracts supra would clarify that a given document may be admissible under Section 35 of the Evidence Act, but the Court is not barred Crl. A. No. 35 of 2017 16 Anish Rai vs. State of Sikkim from taking evidence to test the authenticity of the entries made therein. It needs no reiteration that admissibility of a document is one thing, while proof of its contents is an altogether different aspect. In fact, the ratio supra emphasises that the entries in School Register/School Leaving Certificate require to be proved in accordance with law, demanding the same standard of proof as in any other criminal case.
14. Although, the above discussions clear the air on the aspect of the Victim's age, however, we cannot ignore the evidence of PW-10, the medical expert which too merits a discussion. The Prosecution at no point of time has established that the Victim was forwarded for bone age estimation to PW-
10. Evidently, it was on the direction of PW-14, the Gynaecologist who examined the Victim that she was sent to PW-10, needless to observe that PW-10 was not authorised by the investigating agency to verify the age of the Victim. PW- 10, the Radiologist, in her evidence would state that she had conducted the bone age estimation test of the minor Victim. She has, inter alia, stated as follows;
" ................................. On the basis of the concerned X-rays I came to the following findings;
1. Left knee - The lower end of femur had fused;
2. Right wrist - Lower end of radius and ulna had not fused;
3. Right elbow - Medical epicondyle had fused;
4. Right shoulder - Acromion had not fused.
5. Right hip - Ilac crest had just appeared.
I thus came to the opinion that the approximate bone age of the minor victim was between 15 to 15.8 years as on the date of the test i.e., 02.02.2016. Exhibit-13 (which runs overleaf) is Crl. A. No. 35 of 2017 17 Anish Rai vs. State of Sikkim the concerned document in that regard. Exhibit-13(a) is my signature. Exhibit-14 (in four numbers) are the concerned X-ray films."
15. Having perused the said report, we may usefully refer to Section 45 and Section 51 of the Indian Evidence Act, 1872, which provides as follows;
―45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.
―51. Grounds of opinion, when relevant.-- Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.‖ Thus, the opinion of person specially skilled in a particular field as described in the Section being experts are relevant facts. Medical evidence given by an expert has to be given the weight it deserves and ought not to be brushed aside. This is however not to say that the opinion of an expert is always binding on the Court. The evidence so furnished has to be appreciated in accordance with law and accepted only if found to be trustworthy. It would be trite to reiterate that the opinion of an expert although relevant would carry little weight with the Court unless it is supported by a clear statement of what he noticed and on what basis his opinion was formed. The expert is required to give an account of the experiments performed by him for the purpose of forming his opinion. In the instant matter, it was incumbent on PW-10 to Crl. A. No. 35 of 2017 18 Anish Rai vs. State of Sikkim have first demonstrated her expertise in the field by way of evidence and thereafter, to testify as to how she had formed her opinion regarding the age of the Victim. Undoubtedly, the X-ray gives the details of the stages of the fusion of the bone but this by itself does not suffice to form her opinion or for the Court to reach a conclusion. The witness ought to have clarified and elaborated on what the various stages of the fusion of the bone signified and how consequently she had reached her finding of the bone age of the Victim to enable the Court to reach a decision with clarity and to appreciate her efforts.
16. In Madan Gopal Kakkad v. Naval Dubey and Anr. 7, the Hon'ble Supreme Court observed as follows;
―34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the experts opinion is accepted, it is not the opinion of the medical officer but of the Court.‖ This would, therefore, mean that the Court is required to be circumspect when accepting the opinion of the medical officer especially when unsupported by reasons for the opinion.
7 (1992) 2 SCR 921 Crl. A. No. 35 of 2017 19 Anish Rai vs. State of Sikkim
17. In such circumstances of the matter, it is evident that besides the failure of the Prosecution to establish the minority of the Victim either by Exhibit-31 or expert evidence, an adverse inference can be drawn by this Court under Section 114(g) of the Indian Evidence Act, 1872, since the I.O. despite knowledge failed to collect the birth certificate of the Victim from her sister. The birth certificate issued by the school having held no evidentiary value, the prosecution ought to have furnished the birth certificate given by a corporation, municipal authority, or a panchayat, failing which only then can resort be taken to bone age estimation, which in any event in the instant matter is otiose.
18. While addressing the second question as to whether the act of the Victim was consensual or was she under coercion, her evidence suffices to explain their aspect. In the first instance, she has admitted that she had ―an affair‖ with the Appellant and it was her statement that after she saw him in Jorethang when she was with her friend, she took his number from her friend and gave the Appellant a missed call, to which he responded. As requested by the Appellant, she met him near the Jorethang bridge and proceeded together towards ―Karfectar‖ jungle. Her cross-examination does not demolish this evidence. The evidence of PW-6, who had driven the Appellant and the Victim in his vehicle, would also reveal that the Victim had travelled in the vehicle driven by him Crl. A. No. 35 of 2017 20 Anish Rai vs. State of Sikkim along with the Appellant. The Victim raised no objection to being with the Appellant neither did she make any complaint to the witness nor was there any allegation that the Appellant had forcefully taken her or kept her in his custody. There is nothing inchoate in her statement that, ―...... It is true that I did not reveal my love affair with the accused to my father or any of my family members. It is also true that I did not inform them that the accused person was having physical relations with me. It is true when I was called by the police in connection with this case I did not complain to the police concerning any physical relations between me and the accused. ..........‖ The evidence on record as emerges supra, is clearly indicative of the free will of the Victim in accompanying the Appellant and consenting to the acts between them. The learned Trial Court has correctly observed in the impugned Judgment at Paragraph 21 that the sexual intercourse appears to be a consensual one. If the victim was afraid or was being forced into an act of sexual assault by the Appellant she could have sought help from PW-6 or for that matter she could have refrained/desisted from meeting him in the first instance at Jorethang bridge or on other occasions as already reflected hereinabove. It is also evident that the Appellant did not employ physical force on the Victim. Thus, there is no other conclusion save the fact that the act of the Victim was consensual.
19. Needless to add while summing up the entire gamut of facts and evidence on record, for the reasons Crl. A. No. 35 of 2017 21 Anish Rai vs. State of Sikkim discussed succinctly, we have no qualms in arriving at the finding that the learned Trial Court was in error in convicting the Appellant, which thereby sets to rest the third question.
20. Consequently, the impugned Judgment and Order on Sentence is set aside. The Appeal succeeds and the Appellant is acquitted of the offences charged with.
21. Consequently, the Appellant be set at liberty forthwith, unless required in any other case.
22. Fine, if any, deposited by the Appellant as per the assailed Order on Sentence of the learned Trial Court, be refunded to him.
23. Copy of this Judgment be transmitted to the learned Trial Court for information and compliance.
24. Records be remitted forthwith.
Sd/- Sd/-
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
20.07.2018 20.07.2018
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