Madras High Court
Kesavan vs The Inspector Of Police on 27 October, 2021
Crl.R.C.No.513 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.513 of 2017
Kesavan ....Petitioner
.. Vs ..
The Inspector of Police,
All Women Police Station,
Mayiladuthurai,
Crime No.20 of 2006 ... Respondent
PRAYER: Criminal Revision Case filed under Section 397 r/w. 401 of
Cr.P.C., to set aside the conviction and sentence imposed in the
judgment dated 11.09.2015 made in C.A.No.50 of 2010 on the file of
the learned Sessions Court, (Fast Track Mahila Court) Nagapattinam,
confirming the judgment dated 19.04.2010 made in S.C.No.188 of
2008 on the file of the learned Additional Assistant Sessions Court
(Additional Sub Court) Mayiladuthurai.
For petitioner : Mr.C.Samivel,
Legal-Aid-Counsel
For Respondent : Mr.S.Vinoth Kumar,
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Crl.R.C.No.513 of 2017
Public Prosecutor (Crl.Side)
ORDER
The convicted accused is the revision petitioner herein.
2. This revision is filed against the conviction imposed in the judgment dated 11.09.2015 made in Crl.A.No.50 of 2010 on the file of the Sessions Court (Fast Track Mahila Court), Nagapattinam, confirming the judgment dated 19.04.2010 made in S.C.No.188 of 2008 on the file of the Additional Assistant Sessions Court (Additional Sub Court) Mayiladuthurai, sentencing the petitioner to undergo seven years Rigorous Imprisonment and to pay fine of Rs.5,000/-, in default to undergo six months Simple Imprisonment.
3. The accused charged for an offence under Section 376 I.P.C as stood before the amendment.
4. To substantiate the charges, the prosecution examined P.W.1 to P.W.10, and marked Exs.P1 to 10 and no material object was marked. On the side of the defence, D.W.1 was examined and Ex.D1 was marked.
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5. On a consideration of both oral and documentary evidence, the trial Court held that the charge has been proved and accordingly laid the conviction and sentence as stated supra. On appeal, the Mahila Court in Crl.A.No.50 of 2010 confirmed the same and hence this revision petition by the accused.
6. Mr.C.Samivel, learned Legal-Aid-Counsel appearing for the accused contended that:
(i) Ex.P10 Birth Certificate has not been proved in the manner known to law to be that of the alleged victim and the genuineness of the same was seriously disputed by the accused, but those aspects were not taken into consideration by the Courts below.
(ii) The victim girl Ranjitha is an educated girl and she has not lodged any complaint before the Police for 6 months from the date of the alleged occurrence, which would show that the accused was not involved in the offence.
(iii) Further, in the Birth Certificate, the father's name of victim has been stated as Veeramani, whereas her actual father's name is Rajkannu and it is a vital discrepancy.
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(iv) Inordinate delay in lodging the complaint would dismantle the prosecution case and its credibility. It is submitted that the complaint has been lodged on 13.09.2006, whereas the alleged occurrence was said to have happened as early as in February 2006 itself but the delay has not been properly explained by the prosecution.
7. The learned Government Advocate (Crl.Side) appearing for the respondent-police has made submissions in support of the judgments of the Courts below.
8. The case of the prosecution is that P.W.1the victim Ranjitha was aged about 15 years and she used to go to the tea shop of the accused to fetch tea. On one day in February 2006, when victim Ranjitha went to the tea shop of the accused, he, with an intention of having sexual contact with her elicited her into his house and forcibly had sexual intercourse with her and subsequently, on many occasions, he had sexual contact with the victim, as a result of which, she became pregnant and gave birth to a female child on 24.09.2006. In the D.N.A test from the blood samples of the victim and accused, the Doctor had revealed that the accused is the biological father of the female child 4/19 Crl.R.C.No.513 of 2017 born to the victim Ranjitha. So, he was charge sheeted under Section 376 I.P.C.
9. The crucial witnesses are P.W.1 to P.W.3. P.W.1 is the victim, P.W.2 is the mother of the victim and P.W.3 is the stepfather of victim and through P.W.10 marked the birth certificate of victim Ranjitha namely Ex.P10 was marked. P.W.1 victim Ranjitha has stated that, at the time of occurrence, she was aged about 14 years. The mother of the P.W.1, namely P.W.2, has stated that at the time of occurrence, she was aged about 14-1/2 years. Even though P.W.1 and P.W.2 have deposed that at the time of occurrence, she was aged about 14 and 14-1/2 years respectively, this minor difference cannot be fatal to the prosecution case. So, as per the evidence of P.W.1/victim Ranjitha and P.W.2, her mother, it is clear that at the time of occurrence, she was below the age of 16 years.
10. From the lower Court records, I find that Ex.P10 was marked through P.W.10 the Investigation Officer and no other reliable documents were produced. The learned Legal-Aid-Counsel for the revision petitioner challenges Ex.P10 that it was obtained after the cross-examination of P.W.2, being mother of the victim girl. The 5/19 Crl.R.C.No.513 of 2017 prosecution has not filed any document to prove her age, except the Birth Certificate Ex.P10.
11. At the time of investigation, admittedly, the victim was 7 months pregnant. So, it cannot be expected to determine the age by radiological method.
12.In cross-examination of P.W.1, she has admitted that the Birth Certificate was available with her. So, for the reason that the Birth Certificate of P.W.1 was not marked through her, and it was marked through P.W.10, will not affect the prosecution case, since P.W.1 admitted in her cross-examination that the Birth Certificate was available. So, this Court considers that the marking of the Birth Certificate of P.W.1 through P.W.10, is not at all fatal to the prosecution case.
13. This Court finds that, in view of the answer elicited in the cross-examination of P.W.1 that Birth Certificate Ex.P10 was available on record, even though the same was marked through P.W.10 Investigation Officer, cannot be considered as fatal to the prosecution. 6/19 Crl.R.C.No.513 of 2017
14. Coming to the next aspect as to the challenge made to the Ex.P10 Birth Certificate with regard to the name of the father mentioned therein, the records reveal that the father's name mentioned in the Birth Certificate is Veeramani. But, as per Ex.P1 complaint and Ex.P7 F.I.R, the father's name of P.W.1 victim is Rajakannu. But, as per the admission of P.W.1 in her cross- examination, it is seen that the said Veeramani is her Biological father. From the cross-examination of P.W.2, it is clear that the said Veeramani is the first husband of her mother. Moreover, the said Rajakannu has been examined as P.W.3. He has also admitted in his cross-examination that the Biological father of P.W.1 is Veeramani and he (P.W.3) is the step father of her. So, as per the above evidence of P.W.1 to P.W.3, the said Veeramani whose name is entered in the Birth Certificate is the Biological father of P.W.1. So, at the time of registering her birth, the name of the Biological father was entered. But, after about 15 years from the registration of birth, the alleged occurrence occurred. Hence, in the meantime, as per the evidence of P.W.1 to P.W.3, it is learnt that the said Rajakannu was married to mother of P.W.1 and so he(P.W.3) is the step father. So, at the time of occurrence and complaint, P.W.3 showed as her father's name as Rajakannu. Considering this aspect though the father's name differs 7/19 Crl.R.C.No.513 of 2017 in the Birth Certificate is not at all fatal to the prosecution case.
15. The learned Legal-Aid-Counsel has also challenged Ex.P10 Birth Certificate with regard of the registration of the Birth Certificate alleging that the Birth Certificate Ex.P10 was registered subsequent to the recording of evidence of P.W.2. This Court has given its anxious consideration for the said contention.
16. Admittedly, after the examination of P.W.2, the requisition was given and Birth Certificate with name entry was issued. But, when Ex.P10 and Ex.D1 are closely scrutinized, it is seen that the birth date of the female child of P.W.2 and Veeramani was entered as 21.01.1991. So, the registration of Birth of the child of them, was entered 17 years before the date of examination of P.W.2. Thus, it is only the application for entering the name of P.W.1 was given, after examination of P.W.2. So, in such a situation, this Court cannot accept and upheld the contention of defence that the document Ex.P10 has name entered thereon but Ex.R1 is without name entry. Merely because in Ex.P10 the name of child entered after the P.W.2 examination the same cannot directed the evidential value of Ex.P10. On that score alone, it cannot be held to be inadmissible in evidence. 8/19 Crl.R.C.No.513 of 2017 So, this Court cannot discard the documentary evidence of Ex.P10. Thus, this Court finds that, what was done after evidence of P.W.2 is the letter/requisition to include the name of the child but not fresh registration of the Birth.
17. The Ex.P10 Birth Certificate was already obtained by P.W.2 (mother) and the date of registration of birth of P.W.1 was in year 1990 itself. P.W.2 has only given the application, after giving evidence, for the name entry only.
18. Moreover, it is contended by the learned Legal-Aid-counsel that the authority who issued the school transfer certificate was not examined and also as to person who made the entry with regard to the date of birth. But, in this case, the Birth Certificate was issued by the Municipal Authority and hence, reliance can be placed on the same.
19. As per Section 14 of of the Registration of Birth and Death Act, 1969, if the birth of the child has been registered without name, within prescribed period, it has to be entered. As per the Rule 10 of Tamil Nadu Birth and Death Rules, the prescribed period is 12 months. In the proviso clause of Rule 10 of the Birth and Death Rules, after 9/19 Crl.R.C.No.513 of 2017 expiry of 12 months, but within a period of 15 years, the name of the child can be entered with fine.
20. Thus, it is clear that even though the name of the child was not entered at first instance, it can be very well entered by next 12 months and after the 12 months, but within 15 years, name of the child can be entered payment of necessary fine prescribed therefor.
21. The above document Ex.P10 is given by the Municipal Authority. So, even though this document was not issued within the prescribed period and also the fine period, it cannot be said to be invalid, since it was issued by the concerned authority and registration of birth was already entered. In such a situation, it is not at all necessary for P.W.2 to declare it as valid. In such a situation the birth entry was registered shortly after the birth of the child and for the entry of name only, the application was given after the examination of P.W.2. In such a situation, this Court considers that this Ex.P10 document cannot invalid for the mere technical reason that entry of her name was made after P.W.2 examination.
22. At the same time, this Court has also taken note of Ex.D1, it was issued for the birth of P.W.1. So, in such a situation, this Court 10/19 Crl.R.C.No.513 of 2017 considers that as per Ex.P10, the date of birth of the child was on 31.12.1990. Birth was registered on 02.01.1991. Ex.D1 is the Birth Certificate of child of Veeramani and Pushpavalli. So, in Ex.D1the name of the child was not entered. But, P.W.2 has given the application along with V.A.O certificate and Village Panchayat President Certificate stating that the name of the child is Ranjitha. On the basis of such documents, the Commissioner of Municipality has ordered for the issuance of the Certificate with name entry of Ranjitha and then on the basis of his order, Ex.P10 Birth certificate with the name entry was issued to P.W.1 and the same was issued after the order of the Commissioner of Municipality on the basis of above said V.A.O and Panchayat President Certificates, but from the evidence adduced on the side of prosecution, it is clear that Ex.P10 was properly issued. So, Ex.P10 Birth Certificate the document which was issued by the proper authority, this Court can presume under Section 114(e) of Indian Evidence Act that it is valid document.
23. If there is anything contrary to rebut the presumption, the defence has to disprove the document, which was issued by the competent authority. So, in such a situation, this Court considers that Ex.P10 and Ex.D1 are admissible in evidence and they reveal that the date of birth of P.W.1 victim was 31.12.1990.
11/19 Crl.R.C.No.513 of 2017
24.The alleged occurrence is stated to have occurred during February 2006, even though P.W.1 has stated that the occurrence was in January 2006. But, as per the prosecution case, the occurrence was in February 2006. Date of birth of P.W.1 as per Ex.P10 Birth Certificate is 31.12.1990. So, at the time of occurrence, this Court considers that P.W.1 has not completed even 16 years and she was below 16 years.
25. In view of the discussion supra, this Court finds that Ex.P10 was obtained by P.W.2 only after her evidence and the name of the victim girl P.W.1 alone has been included by following the proper procedures as contemplated and the registration was within the period and that they have acted according to Law to get Ex.P10. The registration of the date of birth of P.W.1 in Ex.P10 and she was born to P.W.2 through her first husband Veeramani and after the birth of P.W.1. (mother of the victim girl P.W.2) has married to her second husband viz P.W.3. The name has been incorporated as contemplated under the above said Act and hence, the officer from the Municipality who was examined and has categorically stated that after following the procedures, the name of the child was entered and not otherwise, and hence the birth of P.W.1 was duly recorded and so, the contentions 12/19 Crl.R.C.No.513 of 2017 raised by the Legal-Aid-Counsel touching Ex.P10 Birth Certificate of P.W.1, stands negatived. Accordingly, I hold that Ex.P10 birth certificate of P.W.1 victim girl is proved in the manner known to law.
26. In view of the discussion of the preceding paragraphs, this Court finds from the evidence of P.W.1, that the victim girl/P.W.1 is below 16 years and she is an illiterate. So, even though it was put forth by the prosecution that the occurrence was in February 2006 and it was stated by P.W.1 as January 2006, this Court cannot give much importance to the difference of month stated by P.W.1.
27. The victim girl was below 16 years at the time of occurrence. So, her consent is immaterial. As per the prosecution case and D.N.A report, it was proved that the accused is the biological father of the child of the victim P.W.1. So, as discussed earlier, P.W.1, at the time of occurrence, was below the age of 16 years. This Court considers that the consent of the victim at the time of occurrence, is not necessary.
28. Thus, the age of the victim girl during the relevant point of time is below 16 years and the alleged consent was obtained or not is immaterial.
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29. As extracted supra, the learned Legal-Aid-Counsel contended that there is a considerable delay in filing the complaint before the Police. In the matter of preferring the complaint of the nature in this case whether is it immaterial or material as to whether the delay was explained properly or not is the most point for consideration.
30. As far as delay is concerned, the delay as projected by the learned Legal-Aid-Counsel, in giving the complaint is properly explained by P.W.1 and P.W.2 themselves.
31. Next it has to be considered as to Whether the evidence of P.W.1 is reliable and trust worthy. As stated supra, consent is immaterial, since P.W.1 was held to be below the age of 16 years at the relevant point of time, P.W.1 has stated in her chief examination as follows:-
2006 $dthp khjk; rk;gtk; ele;jJ/ khiy 3 kzpf;F ele;jJ/ ehd; jz;zPh; Cw;wg; nghndd;/ vdf;Fk; xU Flk; jz;zPh; it vd;whh;/ vjphpjhd; brhd;dhh;/ tPlo; y; ahUk; ,y;iy/ clnd fjtpid rhj;jptpl;L thiag; bghj;jp vd;id fPnH js;sp tpl;lhh;/ nkny gLj;Jtpl;lhh;/ xU ifahy; ntl;oia mtpHj; ;jhh;/ vd; ghthilia mtpH;jJ ; tpl;lhh;/ vd;
fhy;fs; ,uz;ila[k; tpyf;fp tpl;L mthpd; Mz;Fwpia vLj;J vd; gpwg;g[Wg;gpy; itj;J mGj;jpdhh;/ vd;dhy; vGe;jpUf;f Koatpy;iy/ bfh";rk; neuk; vd;dhy; xd;Wk; 14/19 Crl.R.C.No.513 of 2017 bra;a Koatpy;iy/ vdf;F xnu uj;jkhf ,Ue;jJ/ vGe;J mGnjd;/ eP Vd; mGfpwha;/ cdf;F $Pdp jUfpnwd;/ ahhplKk; brhy;yhnj vd;W brhd;dhh;/ eP ahhplkhtJ brhd;dhy; cd; jk;gp j';ifia bfhd;W tpLntd; vd;W kpul;odhh;/ rk;gtj;jpd; nghJ vdf;F taJ 14/ gpwF ,uz;L Kiw bfhy;iyf;Fs; kpul;ona vd;id gyte;jg;gLj;jpdhh;/ gpwF ehd; fh;gg; khfptpl;nld;/ 32/ Thus, from the chief examination of P.W.1, it is clear about the offence and occurrence. So, from the evidence of P.W.1, it is crystal clear that the accused alone has committed the offence.
33. As per the prosecution case, the age of the accused at the time of occurrence was 15 years. Thus, the age of the victim at the time of occurrence was below 16 years. P.W.4 Doctor has examined the accused and has given Accident Register Ex.P4 certifying that the accused is potent. P.W.1 to P.W.3 have clearly stated about the occurrence. The Scientific Officer, namely P.W.9 has also stated in Ex.P6 that the accused is the biological father of the child of P.W.1. As per Ex.P10 and Ex.D1, P.W.1 is aged below 16 years at the time of occurrence. So, on considering the above aspects, this Court comes to the conclusion that the prosecution has clearly proved the change. 15/19 Crl.R.C.No.513 of 2017
34. Thus, this Court finds that the answer elicited in the cross of prosecution witness goes to show that the consent was not obtained as projected by the defence this Court finds that the delay in giving the complaint is properly explained by P.W.1 and P.W.2 themselves.
35. In view of the discussion in the preceding paragraphs, this Court has no hesitation to hold that Ex.P1 is Birth Certificate of P.W.1 and Ex.P1 has been proved in the manner known to law. P.W.2 mother has given a requisition for inclusion of the name and the factum of birth of P.W.1 was duly immediately recorded after her birth as mentioned in the Certificate therein. The name of the father mentioned in the certificate is that of Biological father of P.W.1 while the name of the father of the P.W.1 mentioned in the complaint is step-father hence it does not affect the case of the prosecution.
36. Furthermore, in view of proper explanation adduced by the P.W.1 and P.W.2 mother and P.W.3 step father of P.W.1, this Court for the reasons recorded therein holds that though there was a delay of 6 months, since the factum of pregnancy was itself came to the knowledge of the parents only after the 7th month, as could be seen 16/19 Crl.R.C.No.513 of 2017 from the explanation offered by the parents of P.W.1 coupled with the delay, has been held to be properly explained by prosecution and all the contentions of the defence stands negatived and the specific evidence of P.W.1 shows with regard to the manner of the act of the accused on the private body which has resulted in pregnancy. As per the D.N.A. report, the accused is the father of the child of P.W.1 victim and as per the evidence of P.W.10, there is nothing suggestive the accused is impotent and as per the D.N.A report accused is the Biological father and hence the charge under Section 376 I.P.C is proved beyond reasonable doubt.
37. All the points raised on behalf of the accused, stands negatived and hence as the accused has filed to probalize the suggestive case, put forth to him in Section 313 Cr.P.C questioning.
Hence, this Court holds that the orders passed by the Courts below are just and proper and the conviction and sentence passed by the Courts below are sustainable in law for the proved charge against the accused. Further, the quantum of sentence also cannot be termed to be excessive.
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38. In the result, this Criminal Revision is dismissed. Since the accused is on bail, the trial Court is directed to take steps to secure the accused to undergo the balance of period of his sentence if any. The conviction and sentence imposed on the petitioner/accused is confirmed. The sentence of imprisonment already undergone by the petitioner/accused shall be set off under Section 428 Cr.P.C.
27.10.2021 nvi Internet:Yes/No Speaking Order:Yes/No To
1. The Sessions Court, (Fast Track Mahila Court) Nagapattinam,
2. The Additional Assistant Sessions Court (Additional Sub Court) Mayiladuthurai.
3. The Inspector of Police, All Women Police Station, Mayiladuthurai.
4. The Public Prosecutor, High Court, Madras.
18/19 Crl.R.C.No.513 of 2017
RMT.TEEKAA RAMAN, J.
nvi order in Crl.R.C.No.513 of 2017 27.10.2021 19/19