Gujarat High Court
Nileshbhai Narsinhbhai Devipoojak vs State Of Gujarat on 24 February, 2018
Author: A.J.Shastri
Bench: A.J. Shastri
R/CR.A/1699/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1699 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
===============================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
NILESHBHAI NARSINHBHAI DEVIPOOJAK
Versus
STATE OF GUJARAT
================================================================
Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MR PRATIK B BAROT for the PETITIONER(s) No. 1
MR HARDIK SONI, APP for the RESPONDENT(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 24/02/2018
ORAL JUDGMENT
1. The present Criminal Appeal under Section 374(2) of the Code of Criminal Procedure is filed against the judgment and order of conviction and sentence dated 28.1.2016 passed by the Special Judge, Surendranagar in Special (POCSO) Case No.9 of 2015.
Page 1 of 30R/CR.A/1699/2016 JUDGMENT
2. The case of the prosecution, in brief, is that on the day of incident i.e. on 8.2.2014 at about 10.30 a.m. in the morning, the original accused alleged to have kidnapped and abducted the prosecutrix from her lawful guardianship of parents, aged 14 years 8 months and 8 days at the time of incident and thereby, committed an offence and thereafter, the victim was made to accompany the appellant - accused at Morbi where it is alleged that there was a forcible intercourse made by the appellant. In such circumstances, an offence was registered by the complainant for the offence punishable under Sections 363, 366, 376(2)(n) of the Indian Penal Code and Sections 3(1) and (4) of the Prevention of Children from Sexual Offences Act,2012. The complainant, who is the father of the victim, named as Bharatbhai Ramjibhai Parmar, had lodged the FIR before the Surendranagar "B" Division Police Station, pursuant to which the investigation had been carried. The record of the case further revealed that it is the case of the prosecution that during the course of investigation, sufficient material has been found against the appellant accused which led the police authority to submit the chargesheet before the learned Chief Judicial Magistrate, Surendranagar. However, since the offence was registered under the POCSO Act, the same was transmitted and committed to the Court of learned Special Designated Court, Surendranagar where the same was registered as Special (POCSO) Case No.9 of 2015. Pursuant to the Page 2 of 30 R/CR.A/1699/2016 JUDGMENT committal, the learned Special Judge framed the charge against the appellant accused for the offences punishable under Sections 363 and 366 of the IPC and Section 4 of the POCSO Act and since the appellant accused has pleaded not guilty when the plea was recorded, the case was put up for further trial.
2.1 With a view to adjudicate the case against the appellant accused, the prosecution was given an opportunity to lead the evidence and the prosecution has examined as many as 12 witnesses and adduced documentary evidence. After allowing the prosecution to lead the evidence, a further statement was recorded under Section 313 of the Cr.P.C. of the appellant accused and since it was reiterated that he has not committed the offence, the case was put up for trial in which the learned trial court has framed the issues.
2.2 After adjudication and after examining the material on record and considering the testimony of the witnesses, the learned Special Judge, Surendranagar by way of judgment and order dated 28.1.2016 was pleased to find the appellant accused as guilty for an offence with which he has been charged and in exercise of jurisdiction under Section 235(2) of the Cr.P.C., the appellant accused was held guilty and inflicted 7 years' RI for the offence punishable under Section 363 of the IPC and a fine of Rs.1000/ and upon nonpayment of fine, 3 months' SI is also ordered. So far as the offence punishable Page 3 of 30 R/CR.A/1699/2016 JUDGMENT under Section 366 of the IPC is concerned, in the same line, 7 years' RI for the offence punishable under Section 363 of the IPC and a fine of Rs.1000/ and upon nonpayment of fine, 3 months' SI is ordered. So far as offence committed under Section 4 of the POCSO Act is concerned, 7 years' RI with fine of Rs.2000/ is inflicted upon and in default, 6 months' SI is ordered. Subsequently, as a consequent of it, further observation has been made with regard to payment of compensation by virtue of effect of Section 357(A) of the Cr.P.C. and the same was ordered to determined and to be paid within a period of 30 days and thereby, the order of conviction and sentence is passed on 28.1.2016 which is the subject matter of present Criminal Appeal under Section 374(2) of the Cr.P.C.
2.3 The present Criminal Appeal appears to have been admitted by this Court vide oral order dated 20.12.2017. Further, since the appellant accused is in jail, the office has put up the same on Saturday for final hearing, in which Mr.Pratik Barot, learned advocate, has represented the appellant - accused and Mr.Hardik Soni, learned APP, has represented the State authority.
3. Mr.Pratik Barot, learned advocate, has contended that the entire judgment and order passed by the trial court is centering around the effect of the provision of the POCSO Act. The crux of the matter whether the prosecution has been able to establish Page 4 of 30 R/CR.A/1699/2016 JUDGMENT the age of the victim below 18, is not satisfactorily explained and, therefore, if the age is not found to be minor as per the provision contained under the POCSO Act then, conviction based upon it is not justifiable in the eye of law. Learned advocate has further contended that here is the case in which the prosecutrix herself has eloped in past somewhere around June,2013 with this appellant - accused on account of the deep love and affection and at that point of time also, the present appellant was made the victim of the circumstance and was dealt with the offence punishable under Sections 363 and 366 of the IPC. Mr.Pratik Barot, learned advocate, has invited the attention that the competent court has exonerated and acquitted the appellant - accused at that point of time as the prosecution has not been able to establish the offence against the appellant accused and now again, the appellant - accused is made the victim of this offence which he has not committed. On the contrary, learned advocate has invited the attention of this Court that practically, it is a case of consent and there is absolutely no material that any offence is committed by the appellant accused. On the contrary, the situation is converse. Learned advocate has then contended that on account of misbehaviour by the stepfather of the prosecutrix, the prosecutrix has eloped with the present appellant to save herself and this elopement was with absolute consent of the prosecutrix and, therefore, appellant accused has not committed any offence. But for the fact that an allegation is made Page 5 of 30 R/CR.A/1699/2016 JUDGMENT that the prosecutrix is minor, the appellant is subjected to such kind of conviction and sentence. In fact, there is no cogent material adduced by the prosecution to see that age of the girl can be established as minor.
3.1 Mr.Pratik Barot, learned advocate, has drawn the attention to various testimonies relied upon and led by the prosecution during the course of adjudication and thereby, has contended that this is a case of consent and prosecution has miserably failed in establishing the age of the victim. Learned advocate has first of all drawn the attention to the testimony of Medical Officers, who have been examined during the course of trial in which the prosecution has relied upon PW3 - Dr.Mitesh Ajaykumar Shah, who is examined at Exh.10 in which a categorical narration of the history given by the prosecutrix herself is indicating that it is absolutely by her consent, both had eloped and there is no other material which is emerging by virtue of which it can be said that any force is applied by the appellant accused. In fact, from the testimony of Dr.Jyotiben Ashokkumar Gupta, who is examined at Exh.22, has also categorically recorded the version and history of prosecutrix and has opined that no opinion is given with regard to the age of her nor has sent for ossification test. Learned advocate has then drawn the attention to yet another testimony of Dr.Altaf Usmanbhai recorded at Exh.61 in which there is an opinion that age of the prosecutrix might be between 14 to 19 years, whereas Page 6 of 30 R/CR.A/1699/2016 JUDGMENT Radiology and Xray reports indicate that the age of the prosecutrix might be between 14 to 17 years. So, on the basis of such testimony, Mr.Barot, learned advocate, has contended that prosecution has not established the age so succinctly which would permit the Court to continue the order of conviction. The crossexamination of this witness is also indicative of the fact that there is no cogent material to establish that the prosecutrix is minor. In view of these testimonies of the Medical Officers, learned advocate has submitted that the age of the prosecutrix might be ranging from 14 to 19 years as is reflecting on Page361. Even the Radiological report is also a mere opinion on the basis of which no order of conviction can be solitarily rest upon the appellant accused. So, ultimate submission of Mr.Pratik Barot, learned advocate, is that there is no justifiable medical opinion which would render prosecutrix as minor with certainty and in such a cloudy and uncertain material, no order of conviction can be passed under the provision of POCSO Act.
3.2 Mr.Partik Barot, learned advocate, has thereafter switched over to other material to contend that the prosecutrix age was not established by the prosecution beyond the reasonable doubt and for that purpose, Mr.Barot, learned advocate, has invited the attention of this Court to the School Leaving Certificate and the testimony of Principal of the School, who has been examined by the prosecution. Mr.Barot, learned advocate, has submitted that Page 7 of 30 R/CR.A/1699/2016 JUDGMENT 'strict proof' principle is vogue in criminal jurisprudence. As a result of this, when there is a serious doubt raised with respect to the exact age of the prosecutrix, the benefit of doubt must lean in favour of the accused, more particularly in the background of present case in which the prosecutrix herself eloped with the appellant accused and established physical relationship with the consent. To strengthen the submissions, Mr.Pratik Barot, learned advocate, has relied upon the following submissions :
(1) Deelip Singh Alias Dilip Kumar v. State of Bihar, reported in (2005) 1 SCC 88.
(2) Madan Mohan Singh & Ors. v. Rajni Kant & Ors., reported in (2010) 9 SCC 209.
(3) Alamelu & Anr. v. State represented by Inspector of Police, reported in (2011) 2 SCC 385.
(4) State of Gujarat v. Mulji @ Mahesh Vajubhai Kathrotia, reported in 2016 (2) GLR 1441.
(5) A decision rendered in Criminal Appeal No.78 of 2017, decided on 7.10.2017.
(6) State of Madhya Pradesh v. Munna, reported in (2016) 1 SCC 696.
3.3 After referring to these decisions, Mr.Pratik Page 8 of 30 R/CR.A/1699/2016 JUDGMENT Barot, learned advocate, has submitted that this is a case in which benefit of doubt must be given to the appellant - accused. These decisions will be dealt with at an appropriate stage in the present proceedings.
4. To meet with the stand taken by Mr.Pratik Barot, learned advocate, Mr.Hardik Soni, learned APP appearing for the State, has vehemently contended that the trial court has rightly exercised the jurisdiction in passing an order of conviction. In fact, by the School Leaving Certificate, the age of the prosecutrix is established to be a minor and as such, looking to the stringency of provision contained under the POCSO Act, it cannot be said that any error is committed in passing the order of conviction. Mr.Soni, learned APP, has further contended that when the prosecutrix is minor, whether she has eloped with her consent or not, is insignificant. On the contrary, the medical evidence is indicating that it cannot be said to be a major. It has been contended that even the age has been asserted by the father of the prosecutrix as well as the principal of the school, who has been examined and hence, there appears to be no error committed by the trial court.
4.1 Mr.Hardik Soni, learned APP, has further contended that regarding date of birth recorded in the School Leaving Certificate is not controverted by crossexamining and as such, the trial court appears Page 9 of 30 R/CR.A/1699/2016 JUDGMENT to have rightly believed the same to be correct. Learned APP has further contended that as per the provision of the Bombay Primary Education Rules, while recording the age in the School Leaving Certificate, parents' version might have been taken and as such, it is not possible to disbelieve the case of the prosecution. In addition to this, even ossification test has been undertaken and regarding that, the testimony of Dr.Altaf is materially bringing the case of the prosecution to its logical end which has rightly been observed by the trial court. The date of incident is 8.2.2014 and the examination has taken place on 17.11.2015 i.e. almost after a period of one year and nine months. So, in any case, the prosecutrix was below the age of 18. As a result of this, the conclusion of convicting the appellant accused was rightly held. Even as per the medical evidence, more particularly Radiological report, the age is ranging between 14 to 17 years as is reflecting on page367 of the paper book compilation. So, when the prosecutrix was of a tender age, the order of conviction cannot be said to be not just and proper. On the contrary, comparing of medical evidence coupled with the testimony which reveals that it may be a case of consent but, as said earlier, a consent cannot be accepted as prosecutrix was below the age of 18 years. As a result of this, the trial court has rightly passed an order of conviction and sentence which is not possible to be reversed. Learned APP then vehemently contended that a well reasoned judgment may not be interfered with Page 10 of 30 R/CR.A/1699/2016 JUDGMENT and the appeal may be dismissed.
5. Having heard the learned advocates appearing for the respective parties and having gone through the reasons which are assigned by the trial court, it prima facie reveals that age of the prosecutrix is an yardstick to examine the validity of the impugned order of conviction. From overall consideration of material on record, it is revealing that prior to present alleged offence, the prosecutrix had eloped with this very accused and with regard to that complaint, the trial commenced, concluded and an order of acquittal came to be passed and from the testimony also, a case of consent is visible. As a result of this, with respect to ascertaining the age, some of the relevant material on record deserves scrutiny.
6. In undertaking such exercise, first of all the order of acquittal which was passed on earlier occasion with respect to Sessions Case No.27 of 2013 which is part of the record of the case in which in para.12 on page63 and 65, a categorical conclusion appears to be that there was no intention of the appellant accused to kidnap or take away the prosecutrix and the said order of acquittal was passed on .7.2015. Of course, the same was with respect to an offence punishable under Sections 363, 366 and 114 of the IPC. But this circumstance of an order of acquittal is material to examine the veracity of testimony of witnesses on record.
Page 11 of 30R/CR.A/1699/2016 JUDGMENT
7. The prosecution has examined as many as 12 witnesses. But for the purpose of relevant issue in controversy, some of the relevant testimonies are to be dealt with and in that context, the first deposition which can be said to be relevant is a depositon of PW3 Dr.Mitesh Ajaykumar Shah, who is examined at Exh.10. This Medical Officer before whom the prosecutrix was brought for medical examination on 18.12.2014 at around 11.45 a.m. The history was recorded of the prosecutrix as given by her only in which there is a categorical circumstance emerging that she on her own went away with the appellant accused in the month of February,2014 and were nabbed by the police on 17.12.2014. So, practically for a period of 10 months, the prosecutrix on her own resided with the appellant accused. Additionally, this testimony reveals that prior to this incident, even in June,2013, on account of the intimatant love relations, they on their own went away and this history has been given by prosecutrix herself personally which is recorded in verbatim. During this course of recording, it has also been conveyed by her that both have established the physical relationship during this period of 10 months and it is also emerging from the testimony which has been recorded that both were in love and affection since about one and half year. The appellant accused is of a tender age. In crossexamination of this Medical Officer, it has been clearly admitted that no xray was taken by him of the prosecutrix and has clearly opined that it Page 12 of 30 R/CR.A/1699/2016 JUDGMENT is possible that tooth can come at an advanced age also. However, this witness has deposed that the age of the prosecutrix can be ascertained medically only after ossification test.
8. Yet another Medical Officer - Dr.Jyoti Gupta has been examined by the prosecution at Exh.22, who was serving as Gynecologist in Dhangadhra Government Hospital at the relevant point of time. This Medical Officer has also recorded and seen the history given by the prosecutrix. On the basis of physical examination, this Medical Officer found that there were no recent injuries on private part of the prosecutrix and the other parts of the body fully grown up. This Medical Officer has also not opined anything with respect to the age since there was no ossification test at the time when this Medical Officer examined.
9. Yet another PW11 Dr.Altaf Usmanibhai is examined by the prosecution. At the relevant point of time, when this Medical Officer was serving in Civil Hospital, Rajkot, the prosecutrix was brought before him on 17.11.2015 at about 3.30 p.m. in the afternoon. Upon perusal of the Radiologist report, it was opined that age of the prosecutrix can range from 14 to 19 years. Now this tentative age can be two years on either side and as per this Medical Officer, on the basis of certificates, it was opined that the age of the girl was ranging from 14 to 19 years and as such, it can be below 18 years or beyond 18 years, Page 13 of 30 R/CR.A/1699/2016 JUDGMENT as well. The crossexamination has revealed that she was referred to Radiologist and Dentist for further ascertainment. But, as per this Medical Officer, the age can be as stated above. Additionally, this Medical Officer has opined that 3rd tooth can be between 17 to 25 years normally. But then another Medical Officer has stated that it can be even developed at the advanced age and this Medical Officer has further opined in crossexamination of his own that opinion is tentative. So, from the overall reading of testimonies of these 3 Medical Officers, the ultimate conclusion which is appearing is that the age of the prosecutrix can range from 14 to 19 years. So, on the basis of this Medical Opinion, it cannot be said that conclusively the prosecution has established that the prosecutrix was minor at the relevant point of time and there is a serious doubt in the absence of any exact opinion as this medical opinion is tentative and cannot be said to be conclusive evidence on the issue.
10. Simultaneously, now upon examination of age, the School Leaving Certificate which is relied upon is reflecting on page189 of the paperbook compilation in which the date of birth recorded is 1.6.1999 and to justify this, the prosecution appears to have examined the Govindbhai Shankar, who is the head teacher and principal of the Ramkrishna Primary School, Sector17, Surendrangar and is examined at Exh.26. Said witness has deposed that on 23.12.2014, when he was on duty, the police officer came to the Page 14 of 30 R/CR.A/1699/2016 JUDGMENT school and inquired about the details of the prosecutrix. The testimony of this witness is revealing that date of birth which has been recorded is '1.6.1999' but, the same was recorded in the General Register at Item No.5872, on the basis of which the School Leaving Certificate at Exh.27 was issued. The crossexamination of this witness is very material which indicates that straightway in 4th standard the prosecutrix was admitted in the school and previously, she was studying in Annapurna Primary School, Surendranagar and on the basis of that, she was admitted in the present school on 13.6.2007. It has been asserted by this witness that what has been recorded in the school register about the date of birth is on the basis of leaving certificate given by Annapurna Primary School. But when the cross examination took place, it is admitted that the Principal has not brought that School Leaving Certificate issued by Annapurna Primary School. It has also been admitted that there is no material of any nature nor produced by the police from Annapurna Primary School on the basis of which the entry has been effected. It has also been admitted that this prosecutrix has left the school after studying in 8 th standard and it has also been admitted that School Leaving Certificate of Annapurna Primary School and the other details are not available. On the basis of this testimony, it is evident that except the entry, nothing has been produced to establish the age which has been recorded. Now, as against this, the prosecution ought to have made an attempt to produce Page 15 of 30 R/CR.A/1699/2016 JUDGMENT some concrete material from Annapurna Primary School to indicate the age as below the age of 18 years. Neither the certificate of that school is produced nor anybody examined from that school nor even a remote circumstance came out by virtue of which it can be confidently conveyed the exact age of the prosecutrix. Hence, the overall consideration which is coming out from this material is that medical evidence is tentative and the oral testimony is not that much clear on the basis of which it can be said with certainty that the age of the prosecutrix is below 18 years and there is a serious doubt about the exact age of the prosecutrix in respect of offence which is alleged to have been committed. Correspondingly, even the Radiologist report at Exh.62 is also opining that it is around 14 to 17 years. But then again 2 years ranging period is available which can come to rescue the present appellant as is prima facie evident.
11. Now in the context of this, if the conduct of the complainant to be viewed in the context of aforesaid discussion, the conduct appears to be very serious. In some part of the evidence, it is coming out, more particularly in the statement of the prosecutrix under Section 164 that the complainant was allegedly misbehaving with the prosecutrix and additionally, at Exh.55 it is clearly asserted by this very prosecutrix that the complainant, who is her step father, was physically making an attempt and has also conveyed the appellant accused to pay an Page 16 of 30 R/CR.A/1699/2016 JUDGMENT amount of Rs.2 lacs, failing which a complaint will be lodged and this statement is clearly reflecting on page225. Additionally, the fact that prosecutrix on her own eloped with the appellant accused in the month of February,2014, the complainant appears to have filed complaint in December,2014 after almost a period of more than 10 months and for this delay, there is absolutely no explanation as to under which circumstance, at such belated stage, after 10 months the complaint came to be filed. A clear conduct appears to be to take out something from the appellant accused as is revealing from the record.
12. These are the material piece of evidence emerging from the present case on hand which necessitates this Court to examine the decisions which have been relied upon by the learned advocate for the appellant.
13. First of all, a decision of the Apex Court in case of Deelip Singh Alias Dilip Kumar v. State of Bihar, reported in (2005) 1 SCC 88, relevant catch note of the said decision is reproduced hereinafter:
"A. Penal Code,1860 - Ss.375 secondly and 90 - Rape "Without her consent" Meaning - Consent as explained under S.90 relevant "Consent" compared with "will" and "submission" Consent given by a woman believing the man's promise to marry her would fall within the expression "without her consent" only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax - Nature of consent - Questions Page 17 of 30 R/CR.A/1699/2016 JUDGMENT relevant for determining - Burden on prosecution to prove absence of consent from attendant circumstances - Evidence should be scanned carefully - Past, contemporaneous and subsequent conduct are relevant - On facts, held, prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accused's promise to marry her - But accused's promise was not false from its inception with the intention to seduce her to sexual act - Hence cl. Secondly of S.375 not established - Instead, accused committed breach of promise for which he would be liable for damage under civil law - Words and phrases "consent"."
14. Yet another decision of the Apex Court relied upon by learned advocate for the appellant is in case of Madan Mohan Singh & Ors. v. Rajni Kant & Ors., reported in (2010) 9 SCC 209. Para.17, 18, 20 and 22 since are relevant reproduced hereinafter :
"17. In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, this Court dealt with a similar contention and held as under: "40. Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any 10 conviction and weight of its probative value may be nil.
* * *
53. Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so Page 18 of 30 R/CR.A/1699/2016 JUDGMENT as to be entitled to great weight.
* * *
145.(4)The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little."
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 Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official 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 made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.
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 12 recorded and Page 19 of 30 R/CR.A/1699/2016 JUDGMENT what was his source of information. The entry 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.
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 & 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 & Ors. Vs. Prithvi Singh & Ors., (2001) 2 SCC 524; and State of Punjab Vs. Mohinder Singh, AIR 2005 SC 1868)."
15. One another decision of the Apex Court on which reliance is placed by learned advocate for the appellant is in case of Alamelu & Anr. v. State represented by Inspector of Police, reported in (2011) 2 SCC 385. Relevant observations are in Para.45, 47, 48 and 49 which are reproduced hereinafter:
"45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the Court, PW8, the Xray Expert had clearly stated in the cross examination that on the basis of the medical evidence, generally, the age of an 2 (2003) 8 SCC 745 26 individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the Page 20 of 30 R/CR.A/1699/2016 JUDGMENT basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.
47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows: "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a 4 (2006) 5 SCC 584 28 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the Page 21 of 30 R/CR.A/1699/2016 JUDGMENT prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21of the Constitution, as in that case the accused may unjustly be convicted."
49. In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor."
16. Yet another decision of this Court relied upon by learned advocate for the appellant is in case of State of Gujarat v. Mulji @ Mahesh Vajubhai Kathrotia, reported in 2016 (2) GLR 1441. Relevant catchnote is reproduced hereinafter:
"... Date of birth in school leaving certificate - Evidentiary value - Considering that there is no material on school's record as to on what basis date of birth entered in school register - Person who gave school girl's birth date not examined - Entry of birth date in school register not made in consonance with Bombay Primary Education Rules,1949 - Held, age revealed by ossification test of victim girl required to be given more weightage - Acquittal confirmed."
17. One another decision of the Apex Court which is relied upon by the learned advocate for the appellant is in case of State of Madhya Pradesh v. Munna, reported in (2016) 1 SCC 696. Para.10 and 11 since relevant are reproduced hereinafter :
Page 22 of 30R/CR.A/1699/2016 JUDGMENT "10. This Court in the case of Birad Mal Singhvi v. Anand Purohit, (1988) Supp. SCC 604, has held:
"17. ...the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined."
11. Further it was held by this Court in the case of Sunil v. State of Haryana, (2010) 1 SCC 742 that -
"26. ............ In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
18. Learned advocate for the appellant has then relied upon a decision of this Court rendered in Criminal Appeal No.78 of 2017, dated 7.10.2017. Relevant observation made in Para.19 and 21.2 are reproduced hereinafter :
"19. While coming to this conclusion, the Court is mindful of the circumstance that offence of rape is a serious offence and the same is not to be viewed lightly. There are decisions to the effect that the testimony of prosecutrix itself is sufficient enough to hold the person guilty of an offence of rape. But when the statement of prosecutrix is found to be highly inconsistent, not corroborated by other independent material, more particularly the medical examination, it is not always safe to go on deposition and the testimony of prosecutrix herself. A conjoint reading of entire evidence if found to be creditworthy, then only a conviction can be imposed, Page 23 of 30 R/CR.A/1699/2016 JUDGMENT otherwise the benefit of doubt deserves to be given. For this purpose, some observations of the Apex Court deserve to be taken into consideration. The Apex Court, in case of State of Karnataka v. F. Natraj, reported in 2015 (16) SCC 752, has in Para.15 and 16, has observed as under :
"15 Learned counsel for the respondent further relied upon Mohd. Ali v. State of U.P., (2015) 7 SCC 272, wherein this Court recently held as follows:
"30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony..."
16 In the present case, the gaps in the evidences of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. The accused respondent is, therefore, entitled to benefit of doubt."
21.2 Yet another decision which has been relied upon by learned advocate for the appellant is a decision delivered by the Division Bench of this Court in case of Bhupatbhai Somabhai Sardiya v.
Page 24 of 30R/CR.A/1699/2016 JUDGMENT State of Gujarat, reported in 2012 (0) GLHELHC 226734, in which with regard to the age, some observations are made which are very relevant to be taken note of, hence, reproduced hereinafter :
"7. So far as the age of the prosecutrix is concerned, it may be recorded, at the outset, that there is no infallible evidence brought on record by the prosecution. The certificate of registration of birth, if any, is not forming part of the record and it comes on record that the birth was not registered. The father of the prosecutrix - Sukhabhai Hamirbhai (Exh.14) in his deposition states that the age of prosecutrix was 13 years, but barring this word, he has nothing to support his say.
7.1 The prosecution has then relied upon medical evidence wherein Dr.Vijay Krishan (Exh.30) says that he had examined the prosecutrix and he found her age to be 16 years. However, there is also evidence of Dr.Ishwarbhai (Exh.39), who had performed ossification test, and according to him, the age of the prosecutrix was between 17 and 19 years. He has issued a certificate to that effect as well.
7.2 The resultant effect is that the prosecution has not been able to prove the exact age of the prosecutrix and there is a possibility of she being more than 16 years of age and even a major i.e. more than 18 years of age."
19. From the aforesaid observations of various decisions delivered by the Apex Court including this Court, the overall view of the evidence indicate that prosecution has not been able to prove the age of the prosecutrix exactly as minor. Hence, in view of Page 25 of 30 R/CR.A/1699/2016 JUDGMENT overall consideration, the benefit of doubt must lean in favour of the appellant accused.
20. Yet another circumstance which has weighed with the Court is about delay in lodging the complaint by the complainant who is the step father of the prosecutrix. From the evidence, more particularly from the statement of the prosecutrix herself recorded under Section 164 of the Cr.P.C., it is coming out that it is this complainant being a step father was unnaturally dealing with the prosecutrix and though the prosecutrix was away from February,2014 till December,2014, this very complainant has chosen not to raise any voice nor has lodged any complaint and it is only after a period of approximately 10 months, the complaint appears to have been filed with no explanation of delay. Normally, in such kind of offences, the delay should be a secondary consideration for the Court but then, the same is not such an issue which can be completely unnoticed. Here, in the present case on hand, as stated earlier, a surprise silence is maintained by the complainant for a period of 10 months, though the prosecutrix was willingly with the appellant accused and without tendering any explanation of delay, the complaint came to be filed. Hence, one of the decisions of the Apex Court in case of Mohd. Ali alias Guddu v. State of Uttar Pradesh, reported in (2015) 7 SCC 272 has got some relevance with impact on this issue. Hence, the Court deems it proper to reproduce some of the relevant observations contained Page 26 of 30 R/CR.A/1699/2016 JUDGMENT in various paragraphs of the said decision.
"20.For the aforesaid purpose, first we shall advert to the issue of lodging of the First Information Report. As is demonstrated, the victim missed from the house on 22.11.1996 but the mother lodged the FIR on 3.12.1996 almost after expiry of eleven days alleging the factum of kidnapping by the accused persons, namely, Ali Waris and Md. Ali @ Guddu. It is interesting to note that the mother, had alleged that Ali Waris had left the girl at her door steps. In such a circumstance, if nothing else, the PW2, the mother, who is expected to have necessitous concern, could have gone to the police station to lodge a missing report which could have prompted the investigation officer to act. It baffles the commonsense that the mother after searching in the neighbourhood as well as amongst the relatives still, for some unfathomable reason that defeats the basic human prudence approached the police station quite belatedly.
21. It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle. But, a pregnant one, applying all these allowances, in this context, it is apt to refer to the pronouncement in Rajesh Patel v. State of Jharkhand wherein in the facts and circumstances of the said delay of 11 Page 27 of 30 R/CR.A/1699/2016 JUDGMENT days in lodging the FIR with the jurisdictional police was treated as fatal as the explanation offered was regarded as totally untenable. This Court did not accept the reasoning ascribed by the High Court in accepting the explanation as same was fundamentally erroneous.
27. The obtaining factual matrix has to be appreciated on the touchstone of the aforesaid parameters. Be it clearly stated here delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown up daughter. In the absence of any explanation, it gives rise to a sense of doubt.
28. That apart, the factum that the appellant informed the mother of the victim that he had left the prosecutirx at the door of her house also does not command acceptance. The recovery of the prosecutrix by the brother and her friends also creates a cloud of suspicion. We are not inclined to believe the prosecution version as has been projected that one Arif had informed the brother of the prosecutirx that his sister was at his place but for reasons best known to the prosecution, Arif has not Page 28 of 30 R/CR.A/1699/2016 JUDGMENT been examined. That apart, the persons who were accompanying the brother have also not been examined by the prosecution. Thus, the manner of recovery of the prosecutrix from the house of Arif remains a mystery.
29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon."
21. In view of aforesaid overall discussion and analysis of evidence at length, this Court is of the considered view that prosecution has not established Page 29 of 30 R/CR.A/1699/2016 JUDGMENT the case beyond the reasonable doubt. As a result of this, the circumstances are such in which the Court has to extend the benefit of doubt in favour of present appellant - accused in such a peculiar set of circumstance.
22. The present appeal is allowed. The judgment and order of conviction and sentence dated 28.01.2016 passed by the learned Special Judge, Surendranagar in Special (POSCO) Case No. 9 of 2015 is quashed and set aside. In view of the peculiar set of circumstance by extending the benefit of doubt, the appellant accused is acquitted from all the charges which have been levelled against him. In view of this, since the appellant accused is in jail, the appellant accused ordered to be released forthwith, if he is not required in any other offences. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(A.J.SHASTRI ,J.) V.J. SATWARA Page 30 of 30