Gujarat High Court
State Of Gujarat vs Lalji Chhaganaji Thakor on 21 September, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 902 of 1996
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
=============================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=============================================
STATE OF GUJARAT
Versus
LALJI CHHAGANAJI THAKOR & 1 other(s)
=============================================
Appearance:
MS KRINA P. CALLA, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No.
1,2
MR PRADEEP PATEL(642) for the Opponent(s)/Respondent(s) No. 1,2
=============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 21/09/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. In the present appeal presented under Section 378 of the Code of Criminal Procedure Code, 1973 (for short, "the Cr.P.C."), the State has assailed the judgment and order dated Page 1 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined 12.07.1996 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur in Sessions Case No.18 of 1995 (below Exh.10), wherein and whereby, at the end of the trial, the accused - opponents have been acquitted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for short, "the IPC"), since the prosecution has failed to prove its case beyond reasonable doubt.
BRIEF FACTS:
2. The case of the prosecution stems out of the complaint dated 08.04.1994 given by the father of the victim alleging that the opponents accused had taken away his daughter.
3. It is the case of the complainant, as per his complaint, that he is residing in Khudad village and is serving in the State Transport Corporation as a driver and on the date of incident i.e. on 31.03.1994, he was on his duty and driving an S.T.Bus from Viramgam to Bhatariya. Since his duty was at the night hours, he halted one night at Asthana Village and on the next morning at about 1:30 hours, he reached at his home i.e. Khudad village, at that time, he came to know about such incident of the accused having taken away his daughter on 31.03.1994 and when he inquired from his wife - Valiben about the missing of his daughter, she told him that the accused have enticed her and since he was unable to find her daughter, he has registered a complaint on 08.04.1994.
4. It appears from the deposition of the Investigating Officer (PW-8), who is examined below Exh.39, wherein he has stated that on 27.04.1994, the accused No.1 was caught with the Page 2 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined victim in the field of Neelgiri at Virochannagar, however he fled away from the field. On the very same day i.e. on 27.04.1994, the victim was taken for medical examination. It is the case of the prosecution that the victim was enticed away by the accused and was forcibly confined and the accused No.1 had repeatedly committed rape on the victim for the intervening days till they were caught from the Neelgiri field at Virochannagar.
5. The Trial Court, after examining the documentary as well as ocular evidences framed total six questions of law and answered them in negative on the basis of the evidences led before it acquitting the accused for the offences, for which, they were charged by recording benefit of doubt.
SUBMISSIONS ON BEHALF OF THE STATE:
6. Learned Additional Public Prosecutor Ms.Calla, has submitted that the Trial Court has acquitted the accused merely for the reason that the age of the prosecutrix was not established by the prosecution. She has submitted that in fact, the Trial Court has fell in error in not appreciating the deposition of the PW-5, who was the Headmaster (Principal) of the school, wherein the victim has studied. She has submitted that the PW-5 has produced the school register, in which, the date of the birth of the prosecutrix was mentioned as 01.01.1982 and her sister as 01.01.1983 and accordingly, the school leaving certificate was issued on 04.04.1994 clarifying that the date of birth of the victim was 01.01.1982 and she would be minor on the date of the offence, when the offence was committed.Page 3 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023
NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined
7. Learned Additional Public Prosecutor has further referred to the evidence of the PW-1 (Babaram Ambaram) and has submitted that his evidence also reveals that the age of the prosecutrix was below 16 years. Learned APP has further placed reliance on the deposition of the mother of the victim - Valiben (PW-3), who is examined at Exh.24 and has submitted that the mother has specifically stated that on the date of the incident, the prosecutrix was 12 years of age.
8. While referring to the evidence of the victim (PW-4) at Exh.25, she has submitted that her deposition reveals that she was forcibly taken by the accused and she was subjected to sexual intercourse forcibly for more than 15 to 20 days. She has submitted that in fact, in her cross-examination, she has admitted that her age is 12 to 13 years and she was taken by the accused at various places.
9. Learned APP in order to buttress her submissions, has have placed reliance on the injuries certificate issued by the doctor, who had examined her (at Exh.33) and has submitted that as per the certificate, the victim was having 28 teeth (14 in the lower jaw and 14 in the upper jaw) and hence, while placing reliance on the judgment of the Supreme Court in the case of Dilip Vs. State of Madhya Pradesh [(2013) 14 SCC 331] and in the case of Kailash @ Tanti Banjara Vs. State Of Madhya Pradesh, (2013) 14 SCC 340], she has submitted that it can be safely presumed that the victim was minor of 12 to 14 years of age. Thus, it is urged by the learned APP that the acquittal of the opponents accused as recorded by the Trail Court may be reversed by setting aside the judgment and order passed by the Trial Court.
Page 4 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined SUBMISSIONS ON BEHALF OF THE ACCUSED:
10. Vehemently opposing the present appeal filed by the State, learned advocate Mr.Pradeep Patel, appearing for the accused - opponents has submitted that the deposition of the prosecutrix read with the deposition of her parents does not reveal that the prosecutrix was minor at the time of the incident. He has submitted that after the alleged incident had taken place, the prosecutrix was immediately married by her parents. While referring to the deposition of the father of the prosecutrix, he has submitted that his deposition reveals that he has stated that his eldest daughter - Reviben is married and is having a daughter of aged 10 years, who was born after 5 years of marriage. It is submitted that the deposition of the father was recorded on 25.09.1995 and from his deposition, it can be assumed that Reviben would have been about aged 25 years and even if it is taken that the Reviben, has married at the age of 10 years of her marriage then the age of the victim would be five years lesser than Reviben and hence, it can be presumed that the age of the victim would not be less than 20 years. He has submitted that this version is fully supported by the deposition of the mother victim, who has categorically stated that the age of her sister is 25 years.
11. Learned advocate Mr.Patel, has further submitted that the complainant has categorically mentioned that the birth of the victim was registered with the local authority i.e. before the Panchayat and such date was given by himself, however neither the birth and death register maintained by the Page 5 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined Panchayat is produced nor any evidence with regard to the date of birth recorded in such register is produced or the birth certificate is produced before the Trial Court, which is the best piece of evidence to establish the correct age of the victim.
12. While placing reliance on the evidence of the mother of the victim, he has submitted that she got married, when her age was 10 years and at that time, her elder daughter - Reviben was born and the age of Reviben is 25 years on 26.09.1995 i.e. when her evidence was recorded by the Trial Court. Thus, it is submitted that the conjoint reading of the depositions of the parents, it can be presumed that the age of the victim was supposed to be between 20 to 25 years.
13. Learned advocate Mr.Patel, while referring to the deposition the Principal, PW-5, (at Exh.28), has submitted that his deposition does not reveal that he has verified the date from the record of the Panchayat or the date, which is recorded in the birth register, which is given by the parents of the victim i.e. the mother and father. He has further submitted that the very register (Exh.29) reveals that the date of birth of the elder sister Kailashben has 01.01.1983, whereas the date of the victim is revealed as 01.01.1982. It is thus submitted that in view of the discrepancies in the evidence, the case of the prosecution in establishing the age of the victim as 12 years cannot be believed and such age cannot be determined on the basis of school leaving certificate, which has been issued after the date of the incident. In support of his submissions, learned advocate Mr.Patel, has placed reliance on the decision of the Supreme Court in the case of Alamelu Vs. State of Madras (represented by Inspector of Police), [2011 Page 6 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined (2) SCC 385 ], he has also referred to the decision of Division Bench of this Court rendered in the case of State of Gujarat Vs. Manubhai @ Tinabhai Sankalbhai Solanki, [2017 (3) GCD 2551], the decision of Single Bench of this Court in the case of State of Gujarat Vs. Mulji @ Mahesh Vajubhai Kathrotia, [2016 (2) GLR 1441 ] and finally, he relied upon the decision of the Division Bench judgment of this Court in the case of State of Gujarat Vs. Jivanlal Chhotalal Patel, [1985 G.L.H. 388], and while referring to the aforesaid decisions, it is submitted that the prosecution was supposed to further corroborate the evidence of school leaving certificate for establishing the date of birth by producing register of birth and death register maintained by the Panchayat. It is further submitted that the complainant has only produced the school leaving certificate, which has been issued after the alleged incident, however he has not asserted the specific date of birth of the victim and though he has deposed that her date of birth was registered in the Panchayat. It is thus, submitted that merely on the basis of the entries, which are made in the register maintained by the school, the conviction cannot be recorded for a serious offence like rape, which invites an harsh punishment.
14. Learned advocate Mr.Patel, has further submitted that the doctor, in fact, who had examined the victim, has not deposed before the Court since the doctor - Sanjay N. Patel, who had examined victim, had gone to America after giving resignation, who has prepared the injury certificate. Learned advocate Mr.Patel, has submitted that the injury certificate does not in any manner find any injury mark on the body victim or on her private parts. He has submitted that he has Page 7 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined also not found any injury on the genitals of the accused. It is submitted that if the version of prosecutrix believed that she was constantly subjected to rape for more than 15 days, there would have been some injuries recorded on her body, however in absence of such injuries, the version of the prosecutrix cannot be believed. He has further stated that the evidence of the PW-7 doctor would, in fact, reveal that he has estimated the age of the prosecutrix / victim between 12 to 14 years and the doctor has admitted that as per the medico legal aspect, the age of the victim recorded between 12 to 14 years is incorrect. Thus, it is submitted that the version of the victim about abducting her by the accused and subjecting to rape does not inspire confidence, hence, the acquittal delivered by the Trial Court, may not be disturbed. Further it was urged that the Trial Court after duly appreciating the evidence on record has given cogent, convincing and sufficient reasons in support of its conclusion and that in the absence of any perversity in the findings recorded by the trial Court, interference of this Court is not warranted in exercise of powers under Section 378 of the IPC.
15. Finally, it is submitted by the learned advocate Mr.Patel that today, the accused No.1 is aged about 55 years and is a poor labourer and the prosecutrix is also settled in her life and hence, the acquittal may not be reversed. It is further submitted that the accused had already undergone more than two years of incarceration, when the judgment of the acquittal was delivered by the Trial Court and hence, even if the Court finds that the accused No.1 was guilty of offence, he may not be convicted.
Page 8 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined ANALYSIS OF EVIDENCE:
16. We have heard the learned advocates appearing for the respective parties at length and have have also perused the judgment and order of the Trial Court.
17. As noted earlier, the complainant, who is father of the victim, has lodged the complaint on 08.04.1994. The contents of the complaint reveal that he is an employee of the State Transport Corporation and is working as a driver. In his complaint, he has narrated that he came to know about the incident that her daughter has been enticed away by the accused on 31.03.1994, which was informed to him by the mother of the victim, when he returned from his duty. Thus, there has been delay of more than 7 to 8 days in registering the offence. The delay of 7 to 8 days is not satisfactorily explained by both the father and mother of the victim.
18. The Investigating Officer (PW-8) in his evidence at Exh.39 has specifically stated that the victim along with the accused No.1 were found on 27.04.1994 at Virochannagar in the field of Neelgiri and the accused No.1 had fled away from there and accordingly, on the very same day, the victim was medically examined. Thus, the entire allegations appears to be against the accused No.1, whereas the role of the accused No.2 as per the prosecution, is that he was present with accused No.1 when she was taken away. The entire case of the prosecution is premised on the age of the victim, wherein it is projected that she was minor aged about 12 years, at the time of the Page 9 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined incident. The father of the victim (PW-1) complainant in his examination-in-chief has categorically stated that the incident had happened on 31.03.1994 and at that time, the age of the victim was 12 years, when she was taken away by the accused No.1. It is stated by him that he had inquired from his relatives and since she was not found, he has registered an FIR after a period of six to seven days. He has accordingly, produced the school leaving certificate that was given Exh.30 by the Trial Court. Thus, from the deposition of the complainant itself reveals that the complainant belatedly registered the complaint after a period of more than 7 days and he has also asserted that the age of the prosecutrix was 12 years, when the incident has happened on 31.03.1994.
19. The school leaving certificate, which has been produced by the father at Exh.30 as well as the deposition of the Principal (PW-5) reveal the date of birth is 01.01.1982 and the date of issuance of the certificate is 04.04.1994. Unquestionably, the school leaving certificate has been issued and procured after the date of incident i.e. 31.03.1994, as asserted in the complaint as well as in the evidence of the complainant. The deposition of the father was recorded by the Trial Court on 25.09.1995.
20. If we take the date of birth of the victim as 01.01.1982, the age of the victim would be 12 years. In the cross- examination of the complainant, he has specifically stated that he has registered birth of the prosecutrix in the record of the Panchayat before 14 years. He has further stated that he has recorded her date of birth in the school, when he had taken her Page 10 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined admission and when the school had inquired about the birth certificate, he had accordingly given the birth certificate to the school authority and the school authority has written the same. Thus, despite birth certificate, which could have been the best piece of the evidence, the same is not produced by the complainant. Neither the Investigating Officer has gathered the same. It is further deposed by him that after the date of incident within three months, he has married the victim and she was below 18 years of age, when her marriage has been solemnized.
21. The mother of the victim PW-3 Valiben Babaji in her evidence at Exh.24 has reiterated that the age of the daughter on the date of incident was 12 years. She has further stated that she could not find her daughter for 25 days and in her cross-examination, she has deposed that her elder daughter - Reviben is aged about 25 years and she got married at the age of 10 years. She has further stated that the victim was 10 years of age, while taking her education and she does not exactly remember here, in which year, the victim was born. She has further admitted that she does not know about calculation of years.
22. The victim has been examined below Exh.25 as the prosecutrix witness No.4 on 26.09.1995. It is interesting to note that the age recorded in her evidence is 12 years and she has deposed that around one and half years back, she was taken forcibly by the accused No.1 to Sarasvadi village, from there to Virochannagar and they stayed at his uncle's place and his uncle had taken to Neelgiri and the rape was Page 11 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined committed by the accused at Neelgiri. She has deposed that she stayed there for 10 days, though even she refused, the accused used to commit rape on her. In her cross-examination, it is elicited that the offence has occurred for one and half years back and thereafter, she has married when her deposition was recorded by the Court. She has asserted that her age was 12 to 13 years, when the deposition was being recorded. In her cross-examination, it is elicited that the accused was carrying knife and when she was taken from Meraj village to Kalyanpur. She shouted on the way of village of Meraj, where 10 to 15 persons had gathered and she has told them that the accused was forcibly taking her and she belongs to village Khudad and the name of her father is Babaji, however none of the such persons had made any attempt to rescue her as the accused was carrying the knife and hence, thereafter, those people went away. She has further narrated that she has informed the accused that he would not like to go with him and she would like to return to her village Khudad and accordingly, she went away towards Meraj village to Gazipur and from Gazipur, she went to Manipura and she stopped at Manipura village for 10 to 15 minutes and thereafter, she went Ranipura village and however, she did not inform in that village that the accused had fled away her forcibly or requested to anyone to help / drop her to village Khudad and at that time, when she stayed at village Ranpura, a police personnel noticed her and inquired her the name and surname, where she informed that the accused No.1 has forcibly taken her and she was handed over to her parents by the police.
Page 12 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined
23. The version of the victim, which is narrated by her deposition does not corroborate with the evidence of the Investigating Officer, who has stated that the accused was caught with her on 27.04.1994 at Virochannagar in the fields of Neelgiri and the accused thereafter fled away from there. She has deposed that the accused no.1 had accompanied her till Meraj villagea from there she alone went to Gazipur and from Gazipur to Manipura and from Manipura to Ranipura and from Ranipura, the police had met her and, she was taken to her home after 2 hours journey to Khudad village,and when the police personal dropped her at her house her parents were also present, at her home. On the question being asked by the Trial Court about she being taken from Meraj to Gazipur, Gazipur to Manipura and Manipura to Ranipura and whether from Neelgiri, one Khodabhai had taken her away or not, she has specifically answered that it is true that from Neelgiri, Khodabhai had taken her. The prosecution has not examined Khodabhai and has not cited him as a witness.
24. It is interesting to note that further in her cross- examination, it is elicited that she is not aware that where Virochannagar is situated and she does not know the uncle of the accused Laljibhai. It is further elicited and admitted by her that the police had told her to depose that the accused had taken her to Virochannagar at his uncle's place, and also mention that thereafter, the uncle has dropped her at Neelgiri. She has further deposed that the police had told her to depose that the accused had committed rape on her in Neelgiri. She has further deposed that the accused used to forcibly have sexual intercourse with her and she suffered constant bleeding Page 13 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined and was in constant pain and for 10 days she was subjected ordeal and due to such sexual intercourse, there was inflammation and she has experienced pain for 15 to 20 days.
25. The entire evidence of the victim if closely read, the same will not inspire confidence in her story. She has also admitted that the police had asked her to depose and state about the rape having committed on her by the accused and also suggested to mention the place from where she was found i.e at Neelgiri. On the date of deposition, she has asserted that her aged is 12 to 13 years, which was recorded on 26.09.1995. The age does not reconcile with the date of incident. The version of the prosecution relating to the manner and the place from she was found with the accused appears to be dubious. The evidence of the victim does not reconcile with the evidence of I.O in this regard. Thus, her deposition appears to be tutored by the police authority and hence, her version does not establish the guilt of the accused beyond reasonable doubt, and cannot be used for convicting the accused no,1 for a serious offence like rape which invites a harsh punishment.
26. At this stage, it would be apposite to refer to the deposition of the doctor PW-7 at Exh.32, in his deposition the doctor has stated that Dr.Sanjay N. Patel, who was the Medical Officer and examined the victim had left to America and he has produced the certificate of the victim after her examination which is given Exh.33. The deposition of the doctor reveals that the age of the victim is recorded 12 to 14 years looking to her teeth, which would be approximate. In her examination in chief, he has submitted that the age of the victim would not be Page 14 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined more than 15 years of age and he has further stated that the injury does not reveal that there was any sexual intercourse. He has submitted that he does not have personal knowledge about the case and he is depositing the same on the basis of the documents and the injuries certificate. One finger test is adopted and it is deposed by him that such test would not in uncertain terms state that the sexual intercourse is not possible, however he stated that he cannot give any opinion that whether the prosecutrix was used to sexual intercourse and no history is recorded. He has further admitted that if the rape is committed on 12 years girl, the sign of such rape would be visible, however in the case of the prosecutrix, he did not find any sign of forceful sexual intercourse. It is further narrated that the prosecutrix did not complain of any pain in her vagina or discharge of blood. It is further submitted that he did not find any injury on the private part of the victim. It is also deposed that he did not find any injury on the genitals of the accused. He has deposed that if had committed rape on the girl of age of 12 years,it would also have injuries on his genitals. It is admitted in his cross-examination that as per medico legal aspect the age of the victim, which is recorded as 12 to 14 years, is incorrect.
27. We have also perused the injury certificate at Exh.33, wherein it is does not reveal any injuries on the body of the deceased or on her vagina and no bloodstain was found on it. The injury certificate reveals teeth of the victim both in the upper jaw and lower jaw as "7/7+7/7 i.e. 28 in total". Thus, if the evidence of the prosecutrix is read in juxtaposition with the medical evidence, the offence of rape is not established Page 15 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined beyond reasonable doubt. The medical evidence also does not suggest about any forceful intercourse and there was no injuries found on organs of the victim and the medical evidence is doubtful in nature about any forceful sexual intercourse committed by the accused No.1 on the victim. If the version of the prosecutrix is believed that she was subjected to 15 days of forcible sexual intercourse, and the pain and swelling has remained for further 15 to 20 days, then indubatbly the medical examination would have shown some sign of forceful sexual intercourse, hence the deposition of the prosecutrix does not satisfy that she was subjected to rape for so many days.
28. Thus, the version of the prosecutrix does not inspire confidence and the conduct of the complainant, who has registered the complaint after a period of 7 days also creates a doubt in the case of the prosecution. In the case of Md.Ali@Guddu Vs. State of Uttar Pradesh, 2015(7)SCC 272, it has been held as under :-
"20 The obtaining factual matrix has to be appreciated on the touchstone of the aforesaid parameters. Be it clearly stated here delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW-2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was Page 16 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined nowhere on the scene. It is the mother who was required to inform the police about missing of her grown up daughter. In the absence of any explanation, it gives rise to a sense of doubt. That apart, the factum that the appellant informed the mother of the victim that he had left the prosecutirx at the door of her house also does not command acceptance. The recovery of the prosecutrix by the brother and her friends also creates a cloud of suspicion. We are not inclined to believe the prosecution version as has been projected that one Arif had informed the brother of the prosecutirx that his sister was at his place but for reasons best known to the prosecution, Arif has not been examined. That apart, the persons who were accompanying the brother have also not been examined by the prosecution. Thus, the manner of recovery of the prosecutrix from the house of Arif remains a mystery.
21 Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend Page 17 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re- appreciating the material on record, by giving the stamp of approval to the same."
29. The complainant has not tendered any explanation for delay in registering the F.I.R. There can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, we find the version of the victim as unreliable and tutored. The same also suffers from major contradiction. So far as the accused no.2 is concerned, the entire evidence does not reveal his invovement. The victim in her evidence only mentions his presence at the time when she was taken away by the accused.
AGE OF VICTIM:
30. The prosecution has heavily placed reliance on the school leaving certificate at Exh.30 and the deposition of the PW-5 in establishing that the age of the prosecutrix was below 16 years and was minor. The PW-5, who is the Principal of the Primary School at Khudad village has produced the school register, which shows at item No.923, the date of birth of the victim as 01.01.1982 whereas as item No.927, the age of her younger sister Kailashben as 01.01.1983. Thus, the PW-5 in his deposition has stated that no details are recorded indicating about the information given about the date of birth in the register and there is no other details recorded in the register. He has further stated that the date of birth is recorded on the Page 18 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined basis of information given by the person and they do not inquire about such date of birth is right or wrong.
31. In these circumstances and in light of the evidence of PW-5, in order to determine the date of birth of the victim, the investigating officer should have collected the birth certificate. It is surprising to note that the complainant, who was an employee of the State Transport Corporation, though has produced the school leaving certificate, which is issued after the incident has admitted that he has registered the date of birth of the victim and the Panchayat has also given the birth certificate, however he has not produced the same before the Trial Court and the Investigating Officer has also not gathered the same. It is also established from the evidence of the father, mother and the victim that they have not mentioned the specific date of birth, but have only asserted that she was 12 years of age when the incident has occurred.
32. The following facts are established from evidence with regard to the age of the victim.
a) Neither the father nor the mother or the victim have mentioned the exact date of birth in their evidence and they have only mentioned 12 years of age on the day of incident.
b) The father has only produced the school leaving certificate issued on 04.04.1994 showing the date of birth of the victim as 01.01.1982. As per the case of the prosecution, the victim was enticed away by the accused on 31.3.1994. The school leaving certificate is issued on 04.04.1994, and the date of leaving the school incorporated in the certificate is 24.03.1994. The father Page 19 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined though was in possession of the birth certificate issued by the Panchayat did not produce the same.
c) The Principal of the Taluka School has produced the register of the School showing the date of birth of the victim as 01.01.1982 and on the same page of the register, the date of birth of her sister is shown as 01.01.1983 which creates doubt in the registration of the date of birth. The Principal has admitted that he is not aware that on whose instance such date of birth was recorded, and the school register also does not disclose such fact.
d) the prosecution is placing reliance on the estimated age of the victim between 12 to 14 on the Injury Certificate,Exh.33 reveals teeth of the victim both in the upper jaw and lower jaw as "7/7+7/7 I,e, 28 in total. The doctor has denied that such estimated age is incorrect as per his medico legal aspect. The case of the prosecution for establishing the age is premised on the dental evidence that she was having 14/14 teeth upper jaw and lower jaw, however the doctor has specifically stated that as per medico legal aspect, such date of 12 to 14 years is incorrect. The judgment in the case of Dilip(supra) and Kailash @ Tanti Banjara (supra), the Apex Court has believed the evidence of doctor who has actually examined the victim. The facts of the cases do not suggest that the only the criteria of number of teeth (molars) was adopted for determination of age of the victim. Along with her dental examination, the evidence also reveals that other secondary sex characters have also been relied upon apart from radiology test. In the present case,the doctor who has actually examined Page 20 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined the victim has not stepped into the witness box, hence the accused cannot be convicted only on the basis of evidence of doctor who has produced the injury certificate and has denied the determination of age of victim.
33. Keeping in mind, the aforementioned facts, we may refer to legal precedents as under:-
Jivanlal Chhotalal Patel (supra) " 6. The school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating agency must know not from today, but if they had read the other judgments of this Court and if they had read the judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. But it appears to us clearly and we report that it clearly appears to us in this particular case that they have not done anything to find out and investigate as to what the age of Sushila was. The school certificate which is produced at Exhibit 19 and if the investigating agency had bothered to read that certificate from column No. 6 they would have known that the girl was not admitted for the first time in that school but she came to that school from some other school and the birth-date which was found in that certificate which was brought for the purpose of getting admission in this school that birth-date was noted. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made thereunder it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school.
That person, is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular date on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not Page 21 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come."
Alamelu(supra) " 38 We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. .........
39 Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604 observed as follows:-
"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who Page 22 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.
xxxxxx....."
Manubhai @ Tinabhai Sankalbhai Solanki (supra) "8 So far as the date of birth of the victim is concerned, it is only from school leaving certificate which deposed by headmaster of primary school PW-9 to the extent that the victim had been admitted by her father in school in the year 1999 and it was recorded accordingly as such. There cannot be any different view for the submissions made by the learned APP that such certificate namely school leaving issued by primary school authority has evidenciary value but such date of birth was only on the basis of statement made by the father of the victim and not on the basis of any record available from village Panchayat under Registration of Births and Deaths Act, 1969.........
10 The record reveals that the school leaving certificate at Exhibit-20 has been produced on record by one Ranjanben Girdharbhai Upadhyay, Assistant Teacher at the Kashibai Vijkorbai Girls School No.1, Rajula. The said witness has deposed that the date of birth of the victim as entered in the school register is 5th October, 1982. During the course of her cross- examination, she has admitted that no details with regard to how the victim came to be admitted have been stated in the register. She has also admitted that at the time when she came to be admitted, no statement on oath with regard to Bhavna s birth date has been obtained because there is no such practice in their school. She has further admitted that there is no supporting evidence to show as to on what basis Bhavna s birth date had been entered in the school register."
Page 23 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined Mulji @ Mahesh Vajubhai Kathrotia(supra) "11 Thus, from the testimony of the said witness, it is evident that there is no material on the record of the school to indicate as to on what basis, the birth date came to be entered in the school register. From the testimony of Savitaben Tapubhai, mother of the victim, it emerges that her sister - Raliyatben was the first wife of her husband, however, since for thirty five years, she (Raliyatben) did not bear any children, her parents had got her (Savitaben) married to Tapubhai. She has further deposed that Raliyatben had gone for Bhavna s admission to the school and it was she who had given her birth date. She has further deposed that she is not aware as to what was Bhavna s age at the time when she was admitted in the school. Thus, from the evidence of the said witness, what emerges is that at the time when the victim came to be admitted in the school, it was Raliyatben who had gone for the purpose of her admission. Under the circumstances, in the light of the principles enunciated by this court in the case of State of Gujarat v. Jivanlal Chhotalal Patel (supra), Raliyatben was required to be examined in the court so as to prove that on a particular date, she had gone to the school authorities to get the victim admitted and that she had given the birth date from a particular source. However, Raliyatben has not been examined in the present case to prove the basis on which she had given the birth date of the victim.
12 Apart from the above, a perusal of the provisions of the Bombay Primary Education Rules and more particularly, rule 130 thereof, reveals that every child seeking admission for the first time into an approved school is required to produce a certificate of age signed by its parents. In the case of illiterate parents, the certificates are required to bear their thumb impression attested by a literate person other than a teacher of the school to which the child seeks admission. It is the date of birth given in this certificate which is required to be entered in the school (General) Register. Thus, at the Page 24 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined time when the child seeks admission for the first time into an approved school, the birth date is required to be entered on the basis of a certificate of age signed by its parents. In the facts of the present case, from the testimony of Ranjanben Girdharbhai Upadhyay, it is evident that no such certificate signed by the parents of the victim had been obtained at the time when admission was sought in the school. Under the circumstances, the entry made in the school register with regard to the date of birth of the victim is not in consonance with the provisions of Bombay Primary Education Rules."
34. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P., (2006) 5 SCC 584 held as follows:-
"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section
35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the Page 25 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."
35. The conspectus of the legal precedents as mentioned herein above is as under:-
The school leaving certificate issued by the statutory authority which is running a government school or by local body is admissible under Section 35 of the Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the further corroborative evidence. The person who made the entry and who gave the date of birth is required to be examined. Such person who is supporting the date of birth recorded in the school leaving certificate has to disclose the source of date of birth. As per the provisions of Bombay Primary Education Rules and more particularly, rule 130 thereof, reveals that every child seeking admission for the first time into an approved school is required to produce a certificate of age signed by its parents. In the case of illiterate parents, the certificates are required to bear their thumb impression attested by a literate person other than a teacher of the school to which the child seeks admission. It is the date of birth given in this certificate which is required to be entered in the school (General) Register. Thus, at the time when the child seeks admission for the first time into an approved school, the birth date is required to be entered on the basis of a certificate of age signed by its parents. This is necessary Page 26 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023 NEUTRAL CITATION R/CR.A/902/1996 CAV JUDGMENT DATED: 21/09/2023 undefined because under the Bombay Primary Education Act and the Rules made there under it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules. The investigating officer is required to collect the evidence as who got the date of birth recorded in the school, and has to collect the record available from the local body which recorded the date of birth under Registration of Births and Deaths Act, 1969.
36. In the present case, even it is assumed that the prosecution has been able to establish the age of prosecutrix below 16 year (prior to amendment of Act of 2013), then also the evidence does not establish the offense of rape beyond reasonable doubt. Hence, we do not find that the judgment and order passed by the trial court is tainted with any perversity or is premised on absolute incorrect appreciation of evidence. Thus, dismissal is the only fate, of which the present appeal is worthy of.
37. The appeal is dismissed. R & P shall be returned to the concerned Trial Court.
Sd/-
(A. S. SUPEHIA, J) Sd/-
(M. R. MENGDEY,J) MAHESH/01 Page 27 of 27 Downloaded on : Thu Sep 21 20:44:37 IST 2023