Althaf vs State Of Karnataka By Doddaballapur ... on 21 November, 2011

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Karnataka High Court

Althaf vs State Of Karnataka By Doddaballapur ... on 21 November, 2011

was insisting that the victim - PW-S to marry him. At about and to pay a fine of Rs. 1000/- for the offence P/U /S 376 of IPC, 1D., to undergo imprisonment for one vear and furhter BS i mw sentencing him to undergo imprisonment for 6 months and to pay fine of Rs.500/- for the offence P/U/S.417 of IPC-T.D., to undergo imprisonment for 3 months. Al the senterices. shall PUP COTICUITEenN thy :

This Appeal coming on for hearing this day, the Court delivered ine following:

; BS JUDGMENT. _ This appeal is by the accused against the judgement of.

conviction in S.C.No.8/2004 dated 1s! Nectober.2005 an the fle

2. Accused Alihaf @ Kappe was-charge-sheeted and tried for an offence punishable under Gecitons 363, 366-A, 376 and 417 of the Indian Penal Code.

3, Case-of the prosecution is that, PW-S - victim and the accused were 'residerits of Same area in Dodcdaballpura Town.

"Accused was-an auto 'driver, PWs-9 and 10 are the parents of PWS. PWO owas cunning a phote studio and a petty shop. Victim used to sit in the shop when her father used to go out. 'he accused used to go to the said shop and had a 'quainted himsem with the victini and had developed love. The accused F i am, on 198.2003, accused asked PW-8 to come near Mangala School. When victim came io the said place. he took her in an auto and went to 'DY Crass, Doddaballapura, from where they went in a bus to Yelahanka, Bangalore. where accused and PW-S stayed in a house belonging to Pyw_2. PW-2 was residing au oe Bs oe . _ ao as a temant under PW-1i. On the intervening. night of 19/20.8.2003, accused had an imferceurse with Pweg, Accused had promised her thet, in 2-3 days he would marry her. Since the accused had no money, accused had taken the 'ar-studs of PW-8 1o the jewel shop of PW-3:

4. In the meanwhile, PW-20,-who had seen PW-8 and accused going in "o bus at.'D' Cross, Doddaballapur on 19.8.2003, had intobmed PW-9, PW.S had filed a complaint as per Ex.PO before the Doddaballapura Town Police. The Doddaballapura Police has registered a case for an offence punushable.under Sections 8363 and 366 of IPC. PW-6 -- Head » Constable, who was deputed to search of the accused and PYW-

8, atvabout. GO aun. of 21.98.2003, he saw accused and PW-Ss alighting the bus at 'D' Cross, Doddaballa pura. fe iook both "the. accused as well as PW-8 to the Police Station where PY 22 the statement of PW-S as per Ex.pPS. Since the statement of PW-8 reveals the offence punishable under Section 376 of IPC, he referred the Matter to PW-2]. PW} made further investigation, referred PW-8 to the Doctor ~ PW- 13, PW-13 on examination issued the medical certificate as per Ex.PIO. He also sent the accused for chemical exaniination, PW-14 examined the accused and issued medicai- certiicate Ex.PL1. PW-13 had collected pubic hair and swab of Pw- é, :

which were referred to FSI, examination, Pw. 19° issue ec the opinion as per Ex.Pl4. Pw 9: also collecic dad Ex. PA gehod oe certificate in proof of the age of the' viciim. "Atlee completion of the investigation, he filed the charge stioet, -

5. On committal, learned Sessions Judge securing the presence of the accused framed the following charges:

. "Firstiy "that. you OR. 19.8.2003 at 7 am, kidnapped O.W.2 Kureari, Sunitha, a minor under 15 yeurs fiom lawful guardianship of her father MG. Venkatesh, frort: the place near Mangala School at Doddaballapura. Town within Doddaballapura Police Station limits and the: reby committed an offence punishable under Section 363 of IPC and with the evgmtzarice of the Court ars f Session.

ae . Beeondly, that you ¢ on. the abowe scxicl date and _ time ae Doe ddaballapura Town within Doddabdliapura Police Siation: limits: induced <CW1- Kumar Suniiha: aged. about 15. 'Years, "a minor: girl. to come: tout YOU intent. that she may be forced o educed to libeit. | "under Section 366 A of IPC and eahin the cogniz; arice eof Court a Session ced | ae ; Thirdly, that 4 you. during above said period on _ different mes," ab dif ferent. places : Tepeatedty vonunitted rape: on CW. Het 3 var Sunttha and. thereby:

you and. thereby committed: an comuniited an offence punishable under Section 376 of IPC and within the cognizance of Court of Session.

Lastly, that you on or about the above said date cheated CWl- Kumari Sunitha by dishonestly induced fo marry her and took her with you to different places 7 but did not marry her and thereby cominitted an of affence punishable under Section 417 Of IPC and within the cognizance of Court of Session."

G. Accused pleaded not guilty arid claimed to be tried.

¢, Prosecution in order to prove, the charge examined PWs-i to 22. On the efe.rce side, one Shahataz was examined as DW-1, Exs.P qe. bo. PI 6 were marked in the evidence of progecis ion . withesses and. prose nution produced M.Os.1 to 9. | &, The trial court though found that the victim had not shown any protest and consented for the sexual act, however, fox. Pa proves that the victim Was less than 16 vears, as on the

- date of ineideni-and she was only 14 years S months and the evideriee of PW] 3 proves that, the accused had committed sexual. act on her and held that as per the provisions of Section 376 clause fg) of IPC, as it falls under Exception-6 of : Section 6375 oF IPC and it amounts to rape, convicted the accused for an offence punishable under Sections 363, 366-A, ee 13.85.2003 near Mangala School, Accordingly, she went at ?

376 and 417 of IPC. It is against the said judgment, the accused is in appeal.

G. Heard Sri-Hashmath Pasha. learned Counsel. forthe accused and the learned Government Pleader for the State. iO. The statement of the victim was recorded' as, per Ex.P8 after PW-6 brought the accused 'with the victim to the. Police Station. In her statement, 'she has stated that, she is the second daughter of py s-9 and 10-08 er father is running a photo studio in the name and style as 'Gayathri Phote Studio"

and is also having petty shop. Ww henever her father used to go out. she used te look alter the photo studio as well as the petty shop. ; Accused used to come for purchasing pan beeda and she developed intimacy and both were loving each other. About 15 days-priur to the incident, accused had met her ata "bus stop and had told that, if they stay in the village. they will bein wouble and had told her that both of them should uo away and marry. On 18.8.2008 at about 3 p.m. he came to the shop and told the victim to come at about 7 a.m. on am, on 19.8.2003 near Managala School from where the aceused took her in an auto towards 'TY Cross. Doddaballanur, "under the impressi

12. in the cross-examiination, she admits that. she did not call any one when accused took her in auto. Even when he took her in bus, she did not cry or sought for heip.- She also did not inform any person or the Police, Ever she did n6t - inform the inmates of the house that. she has bees brought forcibly by the accused. She did not ever: try-to-e: ape EVEN though the accused had gone cut: In the examination-in-chiel' also, she admits that the ho use in which | they lived had a kitchen, bathroom and one: rocm and iit the room, there was one cot, all the other inmates were sleeping on the floor and she was sleeping Gn' the wot and after 'half-an-hour, accused came on the cot and vominit sexta' act, In her statement (Ex. PS) victim does not allege tha t accused forcibly took her, her staternent recorded at the first instance shows that, accused and the victim were in love. She went near Mangala "School as:per-the direction of the accused. © 3. Even invix.P9 -- complaint filed by PW-9 - father of the victim, itis alleged that, the accused had induced the ovictim - PW-S for marriage and has kidnapped her. PWs-9 and TQ-are the parents of (he victirs, PW-9 in his evidence has "stated that, on 19.8.2005, victim had gone out and they were 'hat, she nvust have gone to attend Se

-. Government Telugu High School, Doddaball Special classes. Till 4 O° clock when she did not return. they made enquiry and one Srinivas ~ PW-20 informed that the viclim: had gone along with accused. then PW-9 Ales complaint as per Ex,Po. Ex.P-8, the statement of te. victim recorded by the Police, evidence of PWS and 1 evidence of PWs- 9 and 10 show that. there was soine | relationship beivie een. accused and the victim. Vietira he 18 lefts fhe. house atid gone é at the Ack "ised haci with the accused. There is no evidence come to the house of PW-B. i4. PW-8 has given her: age "UY her statement as 15 who examine 4. ire Victim on 22.2 9008 years, PW-13.< Doctor, at 10.10 am... has: not determined ure age, but she has stated that, vietim has | bee en: "subjec ted to sexual act. She collected vaginal smear, swab and: pubis hair for chemical cxamination. However, stie has Stated that. she did not find any external Injury, on her body or around the private part of the victim. z Victine-has of. been subjected to radiolc ical examination for the purpose. ol assessin ig her age, 15> Prosecution has examined PW-4 -- Head Master of AbuUra. PW-4 in i fis evidence has Stated that, he has produced the copy of the "

admission register -- Ex.P4, which shows that the victim was admitted to their school in 2001-2002. Her date of birth is mentioned is as 18.11.1988 and has also stated tbat -he. has produced the copy of the register at the instance of the Police. In the cross-examination, it is sugsestea that the _ copy produced is a false copy of the en iry of date of birth,

16. The trial court relyi ng G nthe statement of the victim before the Police as per Ex.PS, hér evidence before the Court, evidence of PW-13 - Doctor, who bad exaztined PW-8 and the evidence of PWs-9 and IC pafents of he victim, held that the victim has been subjected.to sexualintercourse and also held that PW-4. has. préeduced -Ex.P4,...the copy of the schaol admission register) which proves the age of the victim is less than 16 years as on the dale of incident. As such, the trial court held that the Prosecution has proved the charge for an offence purishable under sections 376, 863 and 366-A of IPC. "17. The-entire case of the prosecution is dependent on . the evidence of PW-4 -- Head Master, PW-8 - victim, PWs-S and LG. parents of the victim and PW. io, the Doctor. who 'xaniined the victim and Pw-i4 -- Doctor. who examined the 'accused. From the evidence of these witnesses, if proves that Coast pig ene the victim was taken by the accused and he stayed with her for two days, Curing this period, he had an intercourse with the victim. PW-14 has stated that the accused was cape performing sexual act. PW-13 has stated that, the: vicki HEE Has _ A bak.

undergone sexual act. No doubt, PSL report - FixcP. : 4A does ret prove the same, however, PSL report is hae on the ma collected by PW-1S only on 22.5 ANOS Len, after | a wo days, 'But insolar as the accused committing. Se xual act on the victim PW-S is concerned, PW-& and PW- 13s evidence 'supports the prosecution case. The evidence also shows that the victim knew the accuséd, : they had a love "affair, viclim had gone & along with the accused 'and it was. not forcible. Her statement Ex.P8 shows that she was volunteer to go with the accused and had not protestéd: which. shows that the accused and the victim were iritending te marry each other as they had no "money, they came back to town.

: 1 iew of Unis evidence, 2 the victim is more than 16 year : sand if the accused had committed any sexual act with

-- consent of the victim, IL would not constitute any offence. ° if the > victim is is less than 16 years, ever il there is a consent. it woud attract the offence punishable under Section 376 of IPC, 'in view of Exception-G to Section 375 of IPC, eof Put iQ. To prove the age of the victim, the prosecution has relied on the evidence of PW-4 and Ex.P4. for the. ac

20. Learned Counsel appearing cused.

submitted that, it is not sale to rely on the evidence of PW-4, He submitted that, the burden of proof that the victiny was jess. than the age of 16 years is heavily on the prosecition, x-P4- and the evidence of PW-4 do not prove the age of the vietim, as PW-4 is not the author of Ex.P4 nor Ex.P4 ts the original entry. PW-4 has admitted that, itis oaly a elpy' and no original register is produced before the pou 7 He also submitted that. according to PW A the victim. was admitted to the school in 2001-2002, and shehad net studied: in the sare school from the beginning, she tad cofne froti another school, the evidence does not disclose from which school she had been transferred ; and subniitted iat, inthe absence of delinite evidence as g@ her age as less than . regard co the age ol the victim, prestumin Le. years based or Ex.P4, is erroneous.

2i, On the other hand, learned Government Pleader had supported the findings of the trial court and submitted that, ppor g PW-4 ig the competent authority and is a Public Officer and in discharge of public duty. he had made an entry and such entry is admissible,

422. Since the evidence on record shows thatthe victim:

had a consent to stay with the accused. the only question that arises for consideration is, as to whether the victim wes less:

than 16 years and whether the prosecution has proved her age --

with material admissible evidence: _

23. PW-4 in his evidence as stated 'that, Ex.P4 is the copy of the admission register and accordirig to him, PW-8 --

victim was admitted to their school in 2007-2002 and he had been working in the said achoel for the past five years Le., as on the date of evidence. He 'has not stated that the said entry is made by him. He has not-stated as to from which school the victim was transferred. to their school. It is aise not stated thal, PW-4-had perused" the entries and has issued the copy. 'ister was not produced before the court. Even assuming that. PW-4 being a Government emplovee, in order 8 altract.the provisions of Section 35 of ihe Evidence Act, the ~ document must be a public document and such entries made furnent must be by a public employee and it should be in md C discharge of his public duty. Whether it is Statutory or not, Cyd

f but PW-4 does not say that said entries are made by him or made by an Officer, who is a public employee and entr usted

with public duty of making entry and the document - Ex, Pa is a public document. Normally the entries in the pe abi ic register are admissible in evidence, bul in case of Stitaiget offence. , care and caution is required to be taken as the cortect ages required to be proved by the prosecution, Taking the evidence of PW-4 as it is, it is not even correborated by: the evidence Of any other witnesses. Str arigely pws: S anc 10, the parents of ihe victim in their evidence, nowhere wey | have stated that the victim was aged less.tharn 16 years.. PW-S-~ victim has stated that, she is study tng & inp ee standard and ir. the evidence she does not disclose her age. excep! in "the preamble portion, it is mentioned aS 16 years, But by itself it will not prove the age of the PW-8, when there is cogent evidence. Even victim also "dees ot say fat shé was minor. PW-13 -- Docter, who has examine sd the victim, has mot assessed the age of the victim pour 15 excdnt' stati Bat. Police brought the victim aged a . Tne victim was not sublected to any medical exe cumini ation as regard to the age, which was very important to . "eorrobor: ate with the evidence of PW-4, as such. the whole case ois dependant only on the evidence of PW-4 and Ex.P4. The imal court relying on the evidence of PW-4 and Ex.P4 has observed that:

"Because PW-8 was proved to be much bel ota 16 years. her consent for sexucl intercourse is ir arterial - Accused cannot take shelter under the conseril- Lof PA Wis to intercourse with her.' Further observed that:

"no suggestion has been made to the iwites ESE PWs-8, Qeand 10 that PW-8 wads not a' mirior and p V- & was minor of immature mirid, easily believing the assurance Of the accused. might héa de accomiptunied him without hesitation, as she ivas nat capable of giving consent to the accused { le accom, pany him and lo have sex with him'...

On the basis of these. findings, the trial court has convicted the accused, 24, i Ex.P4 is not proved and it does not satisfactorily prove the age of t he vietim as less than 16 years, there is no 'other evidence on rec ord, which would prove the age of the victin - When Police lave noi stated the age of the victim as less than i 6 years, the trial court observed that the evidence of os PWs-9 and 0 has not been questioned by suggesting that the

-- wict im was not minor, but PW-9 and PW-10 themselves have "hot stated that PW-8 was minor or was less than age of 16 "years. There is no reason for ihe accused to question PW-9 and PW-10 as to the age of the victim PW-S. In my opinion, é ol the same. PW-4 has also not stated that he made. the original entries in the register, there is no birtr. certificats, .

(here is no authenticated material, wh ich could. eliric "A ney .

prove the age of the victim. If the: age of the victin ie fee proved and if there is admisstor: of consent of the. victim tc.

have sexual intercourse with the accused, if would pot come within the purview of Exver pr ion: 6 of Section 375 to altract the provisions of Section 376 af IPC.

25. The Ap Ox C5: ae bo a. Judgiaent ireported in AFR 1965 SC 282 in. the: maiter OF bri Mohan Singh -vs- Priya Brat Nerain Sinna and other' observed that:

"Entry of date of birth in school admission register ~ In actual life if offen nappens that persons give false age Of the boy af the time of his admission to a school so that later in We he would have an advantage when _ Seeking public service jor which a minimum age for

- cligibtl ay is often prescribed. The court of fact cannot

- ignore >this jact while assessing the value of the entry and if-us ould be improper jor the court fo base any "conclusion on the basis of the entry, when itis alleged thatthe entry was made upon false information supplied with the above motive".

The Apex Court in a judgment reported in AIR 1893 "SC 2448 in the matter of Jagtar Singh -vs- State of Punjab has held that, when the school certificate is produced without mentioning the school from which the student was transferred, such certificate cannot be relied.

2/, in AIR 2006 SC 2187 in the matter of Ravinder 7 Singh Gorkhi -vs- State of U.P., i the Head Master of the:

Sehool had stated that he had no knowledge as' to 'tHe birth date. if the register maintained by the school is not produced, second copy of the school Jeaving ertificate was produ ced and not the original copy and the chai mot the accused on the basis of the school leaving certificate chat be was iG years at the time of commission'of offence was not, accepted by the Apex ie was not issued by the Court, as. the school-leaving. certifies person, who.was in the-school, at the time when the person was admitted therein.

28, Since the entire case of the prosecution is dependant on the evidence of PW ~4 and Ex.P4, as the Ex.P4 by itself dces not clinchin gly prove beyond reasonable doubt as to the age of . _ the victim, in my opinion, the trial court was not justified in

-- convicting the accused only on the basis of Ex.P4 and evidence of pw "4. If this evidence is excluded, there is no other "materia age of the victim. Since eo 9] the statement of victim and her evidence proves that the accused had not taken her by force or against her willingness, the charge for other offences is also not proved.

29. In these circumstances, [ am constraiised to hold.

legal evidence. Accordingly, the appeal deserves ic be allowed. . Hence, | pass the following; i | Appeal is allowed. - "The : fidgment. of _ conviction in S.C.No.8/2004 datéd 1# October 2008 on the file of Fast Track Court-Ill, Bangalore Rural District, 'Bangalore. is hereby set aside. The accused 4s aurpuitied of the offences for which he was convicted. The bail botid stands discharged.

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