Madras High Court
Ravichandran vs State Through on 27 September, 2024
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.A.(MD) No.244 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.08.2024
PRONOUNCED ON : 27.09.2024
CORAM :
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
and
THE HON'BLE MR.JUSTICE K.RAJASEKAR
Crl.A.(MD) No.244 of 2020
Ravichandran ... Appellant
vs.
State through,
The Inspector of Police,
All Women Police Station,
Alangulam, Tirunelveli District.
(Crime No.16 of 2016) ... Respondent
PRAYER : Criminal Appeal filed under Section 374 of Cr.P.C., pleased to set
aside the conviction and sentence imposed against the appellant by the Mahila
Court, Tirunelveli in Special Case No.68 of 2017 on 14.11.2019 and acquit the
appellant/accused.
For Appellant : Mr.V.Sasikumar
For Respondent : Mr.R.Meenakshi Sundaram,
Additional Public Prosecutor
1
https://www.mhc.tn.gov.in/judis
Crl.A.(MD) No.244 of 2020
JUDGMENT
(Delivered by A.D.JAGADISH CHANDIRA, J.) Challenging the judgment of conviction and sentence rendered by the learned Sessions Judge, Mahila Court,Tirunelveli, in Spl. Case No.68 of 2017, dated 14.11.2019, the present Criminal Appeal has been preferred by the sole accused.
2. The appellant stands convicted and sentenced as under:-
Legal provision Sentence imposed Section 6 of POCSO Act, 2012 Life imprisonment and a fine of Rs.2 lakhs, in default, to undergo one year simple imprisonment.
Section 506 (i) IPC Six months rigorous imprisonment and a fine of Rs. 1000, in default, to undergo one month simple imprisonment. 3. The case of the prosecution is as follows :-
i) The de facto complainant/victim girl (PW2) is residing at Veikalipatti Village along with her family. She had completed 10th standard and thereafter, 2 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 completed Diploma in Nursing and is working as a Nurse in Susila Hospital at Pavoorchatram, Tenkasi, for the past 1 ¼ years. The accused, who is a married man having two male children, was residing at the victim's neighboring village Lakshmipati and he was working as an Accountant in the Ramya Dairy Farm and he used to visit the victim’s paternal uncle’s house for settling account regarding supply of milk. Whenever the victim's paternal uncle was not at home, the accused used to hand over the cash to the mother of the victim/PW1. During such time, the victim got acquainted with the accused and they were having a relationship for about 1 ½ years.
(ii) During January 2016, the accused had induced the victim with the sweet coated words and asked her to marry him. When the victim had enquired him stating that he is already a married man, the accused had promised to marry the victim and take care of her too well. The accused used to give lift to the victim in his motorcycle when she returns from the hospital at 8.00 pm and whileso, on 12.03.2016, he had taken the victim in his bike after her duty and during such time, the accused had taken her to a secluded place and on the promise of marrying her, compelled her and committed penetrative sexual assault on her. Similarly,till 07.08.2016, the accused had taken her to the same place on several occasions and 3 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 committed repetitive penetrative sexual assault on her, due to which, the victim became pregnant. When the victim had informed the accused that she was pregnant, the accused had informed her that he would take care of her.
(iii) While so, PW7, sister-in-law of victim, who was also working in the same hospital, found that the stomach of PW2/victim to be big and bulged and when she had enquired about the same, the victim had not revealed anything. Thereafter, on 20.08.2016, PW7 had found that PW2 was pregnant. The victim, fearing that her pregnancy would be exposed to others, had informed the same to the accused and at that time, he had intimidated her saying that she should not reveal the same to anyone and threatened to kill her parents in the event of her revealing.
(iv) Thereafter, the victim has given the complaint to the respondent on 24.08.2016 and based on her complaint/Ex.P1, the case in Crime No.16 of 2016 was registered by PW19/Annajothi, Sub-Inspector of Police for the offence under Section 6 of the POCSO Act, 2012 and under Section 506(i) of IPC. The First Information Report is Ex.P17. Thereafter, PW19 handed over the complaint to PW20/Gnanaselvam, Inspector of Police for investigation. 4 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
(v) On 25.08.2016, PW20 visited the scene of occurrence in the presence of PW5 and one Kuthalingam and prepared Observation Mahazar/Ex.P4 and rough Sketch/Ex.P18. Thereafter, PW20 examined the victim/PW2, her mother/PW1, PW5 and PW19 and recorded their statements. Later, based on a secret information, arrested the accused on the same day at 8.00 am near Pavoorrchatram bus stand and on enquiry, the accused admitted to have committed the offence and had given a confession statement. The confession statement was recorded from the accused in the presence of PW6 and one Sakthivel Murugan. Thereafter, PW20 came to the Police Station and sent the victim girl for medical examination to Tenkasi Government Hospital along with the Head Constable Kumari/PW18. The passport given to PW18 is Ex.P19. Later, he sent the accused to remand through Head Constable Senthil Rani/PW17 and Grade-I Police Constable Innasi Muthu.
(vi) PW20, on 26.08.2016, enquired one Muthulakshmi/PW7 and recorded her statement and on 27.08.2016, he enquired PW3 and PW4 and recorded their statements. On 11.09.2016, he obtained the further statement of the victim/PW2 and PW3. On 12.09.2016, in the presence of PW8 and PW9, PW20 had recovered a black colour TVS Star City bike bearing with registration No.TN 76 D 8197 5 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 (M.O.1) under Ex.P.20. After recording the statement of the witnesses, he sent the two-wheeler under Form-95 to the trial Court.
(vii) On 14.09.2016, PW20, had taken custody of the accused from Central Jail, Tirunelveli and sent him to Tirunelveli Medical College Hospital through Head Constable Senthil Rani/PW17 and Grade-I Police Constable Innasi Muthu, for obtaining the certificate regarding his potency. On 17.09.2016, he sent the victim girl to the Judicial Magistrate Court, Cheranmahadevi along with PW18, Head constable Kumari for recording her statement under Section 164 Cr.P.C. On the same day, PW20 had obtained the school certificate of the victim girl from St. Joseph High School through PW17 and recorded the statement of PW17.
(viii) On 19.09.2016, PW20 examined PW11, Head Master of the victim’s school regarding her age and recorded her statement. On 18.11.2016, he collected the samples taken from the victim girl during medical examination and sent it to the Regional Forensic Lab through PW18. On 16.12.2016, he enquired PW14/Selvamurugan, the Doctor, who had examined the accused. On 18.02.2017, he examined the Scientific Expert/PW12, the Doctor/PW13, who conducted medical examination on the victim and recorded their statements. On 21.02.2017, the victim girl delivered a girl child at Tirunelveli Government College Hospital 6 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 and on 23.03.2017, PW20 obtained a further statement from the victim girl and on the same day, he enquired and obtained the statement from PW15, who was in- charge of the Home, where the child was kept.
(ix) On 04.04.2017, PW20 sent a requisition to the Mahila Court through PW18 to obtain FTA cards for conducting DNA test and on 17.04.2017, PW18 had brought the FTA cards from the Forensic Lab, Madurai and thereafter, on 18.04.2017, a request was given to the Mahila Court for conducting DNA test. On 24.04.2017, blood samples were collected from the victim girl and from her child for DNA test. On 25.06.2017, PW17 Senthil Rani and Head Constable Innasi were examined and their statements were recorded. Thereafter, the blood samples taken were handed over to the forensic lab through PW18 on 05.07.2017 and on the same day, his statement was recorded. On 17.07.2017, statement was obtained from the Officer in charge of Registration of Birth and Death, Tirunelveli Corporation, who had issued birth certificate to the child born to the victim. On 24.07.2017, PW20 obtained the statement of PW16, the Scientific Expert ,who had conducted the DNA test and issued the Report with a finding that the accused is the biological father of the child born to the victim. 7 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
(x) After completion of investigation, on 27.07.2017, PW20 filed the final report against the accused before the Mahila Court, for the offence under Sections 6 of the POCSO Act, 2012 and under Section 506(i) of IPC.
(xi) The case was taken on file in Special Case No.68 of 2017 by the learned Sessions Judge, Mahila Court, Tirunelveli.
(xii) On summoning, the Appellant/accused appeared and after compliance of Section 207 Cr.P.C., charges were framed against the accused. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined PW1 to PW20 and marked Ex.P1 to Ex.P21 and M.O1. Neither oral nor documentary evidence has been adduced on the side of the defence.
(xiii) On completion of evidence, the appellant/accused was examined under Section 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused had denied the charges.
(xiv) The trial Court, on considering the entire materials and after hearing the arguments, found the appellant/accused guilty and imposed punishments, as referred to above. Challenging the Judgment of conviction and sentence, the present Criminal Appeal has been filed.
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4. The submissions of the learned counsel for the appellant are as under:-
(i) The appellant has been charged for the offence under Section 6 of the POCSO Act, 2012 and under Section 506(i) of IPC. In order to prove the offence under Section 6 of the POCSO Act, 2012, a burden is cast on the prosecution to prove that the victim was minor on the date of the offence, whereas, the prosecution has failed to discharge the burden of proof concerning the age of the victim. The prosecution relied on the copy of the School Transfer Certificate/ Ex.P5, which cannot be accepted for determination of the age of the victim. The Court below has fallen into an error in accepting the oral evidence for convicting the accused when there are several materials on record to suggest that the victim was aged 19 years on the date of the alleged occurrence.
(ii) Admittedly, it had been a case of a consensual sexual relationship between two consenting adults. Even as per the evidence of the victim/PW2, the accused is known to her, she was also aware that the accused was a married man and that the relationship between them was consensual and they have a physical relationship on several occasions. Further, the victim had not given any complaint till her pregnancy came to be known by her relatives.9
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(iii) The evidence is categoric that the relationship was consensual and was not an aggravated one. The continued relationship would prove that there was no threat or criminal intimidation on the victim and there is absolutely no evidence to show that the accused had committed the offence by putting the victim under misconception or by threat of fear or injury to herself or her relatives.
5. Per contra, Mr.R.Meenakshi Sundaram, learned Additional Public Prosecutor submitted that as per Ex.P5, a copy of the School Transfer Certificate, the date of birth of the victim is 20.06.1998 and though, there had been several instances of sexual assault, the first instance of sexual assault is stated to be on 12.03.2016, the date on which the victim was a minor and thereby, the offence was committed. Due to the sexual assault, the victim became pregnant and she delivered a child on 21.02.2017. The prosecution, by marking Ex.P10/DNA Report and the evidence of PW16, proved that the petitioner is the biological father of the child born to the victim. He further submitted that the trial Court had rightly found the accused guilty and convicted him, thereby, the judgment of conviction rendered by the Trial Court does not warrant any interference and the Criminal Appeal is liable to be dismissed.
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6. In reply, the learned counsel for the appellant submitted that even if it is proved that the accused/appellant is the biological father of the child born to the victim, unless and until the age of the victim is conclusively proved by the legal evidence to be below 18 years on the date of the occurrence, the appellant cannot be convicted for the offence under Section 6 of the POCSO Act, 2012. He further submitted that since the reliability of Ex.P5, School Transfer Certificate, cannot be accepted, when especially, the author of the same has not been examined and the evidence of PW1, mother of the victim is contradictory to Ex.P1/complaint, where she had stated that the victim was born on Tamil month of “Maasi” (khrp), which corresponds to the month of February or March and not June as stated in Ex.P5/ School Transfer Certificate. He also submitted that in Ex.P17, the First Information Report, which is the first document came into existence, the year of birth of the victim at Column 6(c) has been stated to be 1997. In support of his contention, he relied on the decision rendered by the Hon'ble Apex Court in P.Yuvaprakash vs. State rep. by Inspect of Police reported in 2023 SCC OnLine SC 846.
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7. He further submitted that it is a case of consensual relationship between the appellant/accused and the victim. The victim, despite having the knowledge that the accused is a married man, consented to the affair knowing well the consequences and the consent was not obtained by either misrepresentation or mis conception. He also submitted that the trial Court had imposed a fine of Rs. 2,00,000/- at the time of conviction, out of which, Rs.1,00,000/- each was directed to be paid as compensation to the victim/PW2 and the child born to the victim and the appellant/accused had already deposited the same and that apart from the arguments on merits, in order to further compensate the inconvenience caused to the victim, the appellant/accused is also ready and willing to deposit an additional amount of Rs.3 lakhs before the learned Sessions Judge, Mahila Court, Tirunelveli and the appellant has no objection in the amount being disbursed to the victim. He had also produced the Demand Draft (No.766703) for a sum of Rs.3,00,000/- drawn in favour of the trial Judge (Sessions Judge, Mahila Court, Tirunelveli).
8. Heard the learned counsel appearing for the parties and perused the materials available on record.
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9. The evidence of the prosecution as culled out from the deposition of witnesses are as follows :-
9.1. PW1/mother of the victim had deposed that the victim, her 2nd daughter had completed 10th standard and was working as a Nurse in Pavoorchatram Sushila Hospital during the time of occurrence. She deposed that the accused was known to them since he was employed under one of her relatives.
She had further deposed that the accused, by threatening her daughter that he would kill her father, had compelled her daughter and taken her in his motorcycle to a secluded place and committed sexual assault on her and that she came to know that only after her daughter had become pregnant. When she had questioned the accused, he had denied having committed the same and had later refused to marry her daughter and thereafter, she had given a complaint against him. She had further deposed that her daughter was aged about 17 years at the time of occurrence and that she was born in the Tamil month of 'Maasi' (khrp)/ However, in her cross- examination, she had deposed that during the enquiry conducted by the respondent, she had stated that her daughter, the victim was aged 19 years and that after giving a complaint she had not taken her daughter back to her home. 13 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 9.2. PW2/ the Victim had deposed that she had completed 10th standard and thereafter, she had undergone one year Diploma course in Nursing and had been working as a Nurse in a private hospital for about 1½ years. She further deposed that the accused, who is known to her, on 12.03.2016, had followed the bus in which she was traveling and had come to the hospital, where she was working and offered to give her lift to return back home. When she had refused, he threatened to kill her parents and out of fear, she had gone along with him in his bike and that he had taken her to a secluded place on the way and committed penetrative sexual assault on her and that she became pregnant and she did not inform it to anybody. Later, her sister-in-law, who was working along with her in the hospital, found that she was pregnant and she was the one who disclosed it to her parents and relatives. She had further deposed that her paternal uncle, PW3 had also seen her going along with the accused in the motorcycle. When her relatives and parents had questioned the accused, he had denied the same and refused to marry her. Thereafter, she had given a complaint, Ex.P1. The accused is the biological father of her child. Further, PW2 had admitted that she was aware that the accused was a married man and also submitted that the accused had also 14 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 agreed to marry her, keep her well and there was physical relationship between them on several occasions.
9.3. Further in the cross examination, the victim/PW2 had admitted that there was physical relationship between herself and the accused for about 6 months on several occasions and that she had not disclosed the same to any of her relatives or in the hospital, where she was working, since the accused had threatened her that he would harm her parents. She has also admitted that in Ex.P1, complaint, she had stated that she had completed 18 years and was running 19 years.
9.4. PW3 and PW4 are the relatives of the victim and they had spoken about the victim's traveling in the pillion along with the accused in a motorcycle, however they have admitted that they had not disclosed the same to anyone prior to the complaint.
9.5. PW5 is the witness to the Observation Mahazar. PW6 is the witness to the arrest of the accused. PW7 is the sister-in-law of the victim, who was working with the victim in the same hospital and she is the one who had confirmed about the pregnancy of the victim.
15 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 9.6. PW8 and PW9 are the witnesses to the recovery of the motorcycle of the accused, M.O.1. They have not supported the prosecution and they have been treated as hostile witnesses.
9.7. PW10 is the Sanitary Inspector, who had issued the Birth Certificate/Ex.P3 to the child born to the victim. He had spoken about the registration of the birth of the child of the victim and the accused on 21.02.2017 at the Government Medical College Hospital, Tirunelveli at his office and issuance of the Birth Certificate.
9.8. PW11 is the Head Mistress of St.Joseph School, where the victim had studied. Through her EX.P5, a copy of the School transfer certificate was marked. However, in her cross examination, she had admitted that she was not aware that on what basis entries regarding the date of birth of the victim was made in the transfer certificate.
9.9. PW12, PW17 and PW18 are the official witnesses, who have assisted in the investigation.
9.10. PW13 is the Doctor who had conducted the medical examination of the victim. She had deposed that on 25.07.2016, she had examined the victim and at that time, the victim had informed her that she had gone with a 16 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 known person and had intercourse with him several times with her consent and that she was aware that he was a married man and since he assured that he would marry her, she went along with him. During examination, she found that the pregnancy was 10 to 11 weeks and that there was no indication of recent intercourse and that the fetus was 13 weeks old. She issued Ex.P7 Accident Register and Final Opinion, Ex.P8. During her cross examination, she had deposed that if the last menstrual cycle of the victim was on 29.02.2016, the delivery of the child could have been either at the end of November or in the beginning of December and since it was a normal delivery on 21.02.2017, there could not have been a chance of the victim becoming pregnant during the month of March 2016.
9.11. PW14 is the Doctor, who had conducted medical examination on the accused.
9.12. PW15 is the person in-charge of the Home, where the child born to the victim was kept. PW15 had deposed that the child was taken for DNA test. In her cross examination, she had deposed that the child was not brought to the Home by mother.
17 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 9.13. PW16 is the Scientific Expert, who had conducted the DNA test and issued Ex.P10/DNA Report. As per his evidence, the accused is the biological father of the child born to the victim.
9.14. PW19 is the Sub Inspector of Police, who had registered the First Information Report/Ex.P17, based on the complaint/ Ex.P1 given by the victim/PW2. She had deposed that at the time of giving complaint, the victim had informed her that she was aged about 19 years and that she had not informed that at the time of the occurrence, she was 17 years.
9.15. PW20 is the Inspector who had conducted the investigation and filed the final report.
10. Now what is to be seen is that whether the prosecution has proved the age of the victim to be below 18 years on the date of offence and whether the trial Court is right in convicting the accused based on the evidence.
11. Taking into consideration the facts of the case, in order to prove the offence under Section 6 of the POCSO Act, 2012, a bounden duty is cast on the prosecution to prove the age of the victim beyond all reasonable doubts that the 18 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 victim was minor on the date of the occurrence. In order to prove the age of the victim to be 20.06.1998, the prosecution has marked Ex.P5, a copy of the school transfer certificate through PW11, Head Mistress of the school where the victim had studied upto 10th standard. Further, PW11 had deposed that she is not the person, who has issued the transfer certificate and she has also deposed that she is not aware as to on what basis, the entries were made in Ex.P5. Further, the contents in Ex.P5 is contradicted by the evidence of PW1, mother of the victim, who had deposed that her daughter/victim was born in the Tamil month of “Maasi”, which corresponds to the English month of either February or March and not the month of June as stated in Ex.P5. Thus, the reliability of Ex.P5 becomes doubtful.
12. In the case of P. Yuvaprakash v. State, referred supra, the Hon'ble Apex Court has held that the School Transfer Certificate cannot be accepted for the determination of the age of victim. The relevant paragraphs of the decision are extracted hereunder :
“11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act which 19 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 reads as follows:
“34. Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.”
12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
“94. Presumption and determination of age. - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; 20 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” "13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
“(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.
14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of 21 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh, this court outlined the procedure to be followed in cases where 22 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof;
(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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh that:
“Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94 (2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 23 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.”
13. Now, coming to the facts regarding consent, the evidence of the victim/PW2 itself is that the accused was known to her and that she was also aware that he was a married man having children. Admittedly, there had been physical relationship between them on several occasions. The testimony of the victim is that the accused continued with the relationship under threat, which, in the opinion of this Court seems to be not reliable. Even as per the evidence of PW13, Doctor who conducted medical examination on the victim girl, the victim, at the time of medical examination, had admitted to the consensual relationship between them. It is also relevant to extract the opinion given by PW13 in Ex.P7 & Ex.P8 ( Accident Register and Final Opinion), “alleged to have gone with a known person to 24 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 Melapavoor for 6 months had intercourse with him many times with her consent.
She knows that he is already married and has two children and inspite of that she has gone with him as he said that he will marry her also”.
14. Further, in this case, admittedly, the victim had not given a complaint immediately and that the complaint had been given to the police only after her ripe pregnancy came to be known to her parents and relatives. Though there is a presumption against the accused under Section 114A of the Indian Evidence Act, 1872, the Hon'ble Apex Court, in several judgements relating to cases of this nature concerning rape, consent and presumption falling under Sec 114A of the Indian Evidence Act, has held that the best guidance to the judicial mind while considering the question of consent is to consider the evidence before it and the surrounding circumstances before reaching a conclusion and that there cannot be a straight jacket formula for determining the question of consent.
15. In this regard, it is relevant to extract the necessary and relevant paragraphs in Nazim Ahamed Vs State (NCT Delhi) 2023 SCC OnLine SC 89, where, the Apex Court, after referring to and analysing several earlier decisions, 25 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 has, in detail, elucidated the legal principles regarding appreciation of evidence regarding presumption as to consent in cases of rape. The relevant paragraphs are extracted hereunder:-
"9. For the better appreciation of the submissions made by the learned counsels for the parties, the relevant provisions contained in Section 90 and Section 375 of IPC, are reproduced below:— “90. Consent known to be given under fear or misconception.— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.—if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
375. Rape.- A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following 26 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 seven descriptions:— First- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under eighteen years of age.
Seventhly- when she is unable to communicate consent. Explanation 1- For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 27 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime - ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act.
As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
11. It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Penal Code, 1860, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC. Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of ‘Rape’, even though committed with the consent of the prosecutrix. In our opinion, the expression “misconception of fact” contained in Section 90 IPC is also required to be appreciated in the light of the Clauses - contained in Section 375 IPC, more particularly the Clauses - Thirdly, Fourthly and Fifthly thereof, when the accused is charged for the offence of ‘rape’. The circumstances described in the said three Clauses are wider than the expression “misconception of fact”, as contemplated in Section 90 of IPC. Section 375 describes seven circumstances under which the ‘rape’ could be said to have been committed. As per the Clause - Thirdly, a rape could be said to have been committed, even with her consent, when the consent of the prosecutrix is obtained by putting her or any person in whom she is interested in fear of death or of hurt. As per the Clause - Fourthly, with her consent, when the man knows that he is not her husband and that her consent is given because she believes 28 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 that he is another man to whom she is or believes herself to be lawfully married; and as per the Clause - Fifthly, with her consent when at the time of giving the consent, the prosecutrix by reason of unsoundness of mind or intoxication or the administration of stupefying or unwholesome substance by the accused or through another, she is unable to understand the nature and consequences of that to which she gives consent. Thus, apart from the prosecutrix being under the misconception of fact as contemplated in Section 90, her consent would be treated as ‘no consent’ if she had given her consent under any of the circumstances mentioned in Section 375 of IPC.
12. The exposition of law in this regard is discernible in various decisions of this Court, however the application of such law or of such decisions would depend upon the proved facts in each case, known as legal evidence. The ratio laid down in the judgments or the law declared by this Court do provide the guidelines to the judicial mind of the courts to decide the cases on hand, but the courts while applying the law also have to consider the evidence before them and the surrounding circumstances under which the alleged offences are committed by the accused.
13. A reference of some of the decisions of this Court dealing with the different dimensions and angles of the word ‘consent’ in the context of Section 90 and Section 375 would be beneficial for deciding this appeal.
14. In Uday v. State of Karnataka, the prosecutrix aged about 19 years had given her consent for having a sexual intercourse with the accused with whom she was deeply in love, and it was alleged by the prosecution that the prosecutrix continued to meet the accused as the accused had given her a promise to marry her on a later date. The prosecutrix became pregnant and the complaint was lodged on failure of the accused to marry her. This Court while holding that under the circumstances, the consent could not be said to have been given under a misconception of fact under section 90 of IPC, held in para 21 and 23 as under:— 29 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
22. -xxx- xx -
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact 30 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.”
15. In Deelip Singh alias Dilip Kumar v. State of Bihar (supra), this Court after discussing various earlier decisions of this Court and other High Courts, further explained the observations made in Uday case (supra) and observed as under:— “28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda [1984 Cri LJ 1535 :
(1983) 2 CHN 290 (Cal)] which was approvingly referred to in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 :
(2003) 2 Scale 329]. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7) — “unless the court can be assured that from the very inception the accused never really intended to marry her”. (emphasis 31 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case [ILR (1913) 36 Mad 453 : 15 Cri LJ 24] (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775: (2003) 2 Scale 329] as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.”
16. In Deepak Gulati v. State of Haryana, this Court gave one more dimension of the word ‘consent’ by distinguishing ‘Rape’ and ‘consensual sex’ and observed as under:
“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between 32 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
22. xxxxx
23. xxxxx
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her”.33
https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
17. Again in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra (supra), this Court interpreting the Section 90 and the Clause - Secondly in Section375 of IPC, observed as under:— “23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.”
18. Now, in the instant case, having regard to the statutory provisions and their interpretations by this Court in various judgments, one may be tempted to hold the appellant-accused guilty of the offence under Section 376 IPC as has been done by the Sessions Court and the High Court, however, on the closer scrutiny of the evidence on record, we find that it was fallacy on the part of the courts below to hold the appellant guilty under Section 376 IPC.”” 34 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
16. Now, coming to the case on hand, the statement of the victim that she was subjected to penetrative sexual assault under threat of doing away with her parents is not a believable one. Admittedly, the victim had completed Nursing Course and was working as a Nurse in a private hospital for about 1 ½ years and as stated above, the victim and the accused are known to each other and she had also admitted that she was already aware that the accused was a married man having two children and that he had assured to marry her. The silence maintained by the victim girl without lodging a complaint with the respondent immediately after the occurrence or rather till her pregnancy was found out by her relatives, vitiates the case of the victim that her consent was obtained under threat.
17. A careful and conjoint analysis of the contents of the complaint, Ex.P1 and the evidence adduced by PW2 makes it clear that in the complaint, which being the earlier version of the victim girl, she had stated that she had acquaintance with the accused for about 1 ½ years, that he had induced her with an assurance to marry her and even when enquired about his marital status, he had re- assured to marry her and in fact, the accused used to pick up her from her work place. It is her further contention in the complaint that when she had become 35 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 pregnant and apprised him of the same, he had threatened to do away with her parents if she reveals to anybody about their relationship.
18. Whereas, in her later version rather in an improved version viz., in her deposition, PW2 had taken an entirely contradictory stand as if she had not even apprised him anything about her, particularly, her work place when he had enquired. Her further evidence is that the accused had tried to pick up her in his bike on 12.3.2016 from her work place and when she had refused, he had threatened her to do away with her parents in the event of her refusal. PW2 had uttered in her evidence only at a later point of time as if the accused had given assurance of marrying her. The inducement and assurance is pleaded first and the threat or coercion for consent is pleaded next in the complaint, whereas in evidence, threat or coercion is pleaded first and projected as a predominant one and the assurance had been pleaded later.
19. While there being such contradictions in the versions of PW2, the complaint being the earlier version, PW2's contention therein makes it clear that on one hand, she takes a stand as if the accused had assured to marry her though he 36 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 is already married and having two children. On the other hand, she takes a stand as if her consent was snatched under threat. Both the stands cannot sail together as they are contradictory with each other. Such contradictory versions of the victim girl prove that it is a clear case of consensual relationship under a false hope of herself of securing a marital relationship with a married man having two children, ignoring the adverse consequences, however, when a demand for such a marital relationship was refused, she had chosen to lodge a complaint against him for the offences punishable under the provisions of POCSO and also under Section 506(i) IPC alleging criminal intimidation.
20. At the risk of repetition, this court finds that other than the only document, Ex.P5, which is a School Transfer Certificate, produced by the prosecution, no other material has been produced to prove the age of the victim girl. Further, the evidence of PW1, the mother of the victim girl is also not clear as to the exact date of birth of the victim girl. In such circumstances, we are of the concrete view that the prosecution has failed to prove, beyond all doubts, the age of the victim to construe that she was a minor at the time of occurrence and thereby benefit of doubt has to be accorded to the accused. 37 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
21. Taking into consideration the totality of the circumstances, this Court is of the opinion that the testimony of the victim is unreliable and the prosecution has failed to prove its case beyond all reasonable doubts and that the victim was a minor at the time of occurrence by producing adequate proof. The other evidence including the medical evidence also does not support the case of rape or forceful sexual intercourse. The trial court, without properly appreciating the evidence, had found the accused guilty and convicted him and thereby, the judgment deserves to be set aside.
22. However, taking into consideration the fact that the petitioner having voluntarily offered to compensate the victim for the inconvenience caused to her by depositing a sum of Rs.3 lakhs to be paid to the victim and further give up his Appeal in respect of the fine amount already deposited, the Registry is directed to forward the Demand Draft to the trial Court and the trial Court shall ensure that the amount is disbursed to the victim.
38 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020
23. In fine, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant, by judgment and order dated 14.11.2019, in Special Case No.68 of 2017, on the file of the Mahila Court, Tirunelveli is set aside and the appellant is acquitted of the charges framed against him. Bail bond and sureties executed by the appellant shall stand terminated and since the accused had given up his claim for refund of fine amount, no orders regarding refund of fine amount is passed.
(A.D.J.C.,J.) (K.R.S.,J.) 27 .09.2024 Index: Yes/No. Internet: Yes/No. ham/ssk To
1. The Sessions Judge, Mahila Court, Tirunelveli.
2. The Inspector of Police, All Women Police Station, Alangulam, Tirunelveli District.
3. The Public Prosecutor, High Court, Madurai.
39 https://www.mhc.tn.gov.in/judis Crl.A.(MD) No.244 of 2020 A.D.JAGADISH CHANDIRA, J.
and K.RAJASEKAR, J.
ham/ssk P.D. JUDGMENT IN Criminal Appeal (MD) No.244 of 2020 Delivered on 27.09.2024 40 https://www.mhc.tn.gov.in/judis