Madras High Court
R.Ramesh vs State By on 17 November, 2008
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 07.03.2019
Date of Judgment 06.06.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.238 of 2009
and
Crl.MP(MD)No.1484 of 2019
R.Ramesh : Appellant/Accused
Vs.
State by
The Inspector of Police,
Thiruverambur Police Station,
Trichy.
Crime No.208 of 2000 : Respondents
Prayer: Criminal Appeals filed under Section 374(2) of the
Criminal Procedure Code, against the judgment passed in S.C.No.
170 of 2000 on the file of the Mahila Court, Trichy, dated
17.11.2008.
For Appellant : Mr.N.Sankar Ganesh
For Respondent : Mr.A.Robinson,
Government Advocate
(Criminal side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal is directed against the judgment passed in S.C.No.170 of 2000 on the file of the Mahila Court, Trichy, dated 17.11.2008.
2.According to the prosecution, on 16.03.2000 the appellant/accused said to have kidnapped the victim Uma Maheswari (PW3), who is the daughter of PW1 and PW2 and took her to Velampatti Village at Dharmapuri Taluk and confined her in the illegal custody and raped her. The Inspector of Police attached to Thiruverumbur Police Station has filed a final report against the accused examining the witnesses.
3.In the trial court, 11 witnesses were examined and 17 Exhibits and 2 material objects were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the appellant under Sections 366 and 376 IPC and sentenced him to undergo 7 years of rigorous imprisonment and to pay a fine of Rs.1,000/-, in default to undergo 3 months of RI for each offence. Aggrieved over the same, the appellant is before this court.
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4.The learned counsel for the appellant/accused submitted that the prosecution has failed to establish the ingredients required for the offences with which he stood charged and convicted him for the said offences; that PW3 (victim girl) stated before the police in 161(3) Statement that she enjoyed the sexual intercourse with the appellant for two or three times and the same was admitted by PW1 in his cross examination, which vitiates the prosecution case; that PW1 who is the mother of the victim stated in her cross examination that she did not file any complaint on 16.03.2000 and she also admitted that her daughter and the accused having love affairs and in this case, PW5, PW7 and PW8 are hostile witnesses and PW1, who is the mother of the victim and PW2, who is the father of the victim are interested witness and PW7, who signed in the confession statement of Ramesh and seizure mahazar stated that he only signed in the confession statement and seizure mahazar in the police station, he denied that he signed confession statement and seizure mahazar at the time of arrest of the accused and PW9 Doctor stated in his cross examination that the victim girl may have sexual intercourse, but the Doctor did not confirm the same and the Investigating Officer stated in his cross examination that he admitted the accused and prosecutrix having love affairs http://www.judis.nic.in 4 and also stated that PW3 did not state that the accused compelled her to sexual intercourse and that there is an inordinate and unexplained delay of 48 hours in registering the FIR and sending the FIR to the Judicial Magistrate concerned and that the prosecution has filed the School Transfer Certificate as evidence for the age proof and in the Transfer Certificate, the prosecution stated that the victim girl age was about 14, but they did not examine the Headmaster as witness, who issued the Transfer Certificate and the police filed the charge sheet on 30.06.2000, wherein the age of the victim is stated as 17, which vitiates the findings of the trial court. In view of the above circumstances, the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal appeal has to be allowed. In support of his contention, the learned counsel appearing the appellant relied upon the following decisions:-
(i)(2009)14 SCC 541 (Mussauddin Ahmed Vs. State of Assam);
(ii)(2011)2 SCC 385 (Alamelu vs. State);
(iii)(2013)7 SCC 675 ( Deepak Gulati Vs. State of Haryana);
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(iv)(2013)9 SCC 113 (Kaini Rajan Vs. State of Kerala)
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the trial court appreciated the evidence in a proper manner and believed the evidence of the witnesses and having regard to the nature of the offences, convicted the appellant and passed proper sentence, which do not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal appeal has to be dismissed.
6.Heard both sides and perused the materials available on record.
7.The main contention raised on the appellant/accused is that the victim girl and the accused loved each other and due to their lover affairs, they went to several places and at that time of alleged occurrence, the victim girl is major and hence, she know the consequence of physical relationship and due to the love affairs, the victim girl went along with the accused and the accused has not http://www.judis.nic.in 6 kidnapped her and the victim girl voluntarily gave her consent and subjected her to sexual intercourse and further due to lover affairs, the victim girl has not complained the illegal custody or rape to the nearby people at Velampatti village, where she spent five days with the accused and the victim girl travelled for more than 7 hours in the bus to reach Velampatti from her native place and she has not raised any alarm for help from the passengers in the bus, in which she travelled and there was no whisper from the mouth of the victim girl stating that any force or completion by the accused to do the said act and the Radiologist examined the victim girl and stated that the age of the victim is above 16 years and below 17 years at that time of occurrence, but on the side of the prosecution Transfer Certificate of the victim girl was filed and as per the Transfer Certificate, the date of birth of the victim, at the time of occurrence is 18.11.1986 i.e, the age of the victim is 15 years at that time of occurrence and to prove the age of the victim girl, the Radiologist report prevails over the school certificate, hence as per the Radiologist report, at that time of occurrence, the age of the victim is above 16 and below 17 years. Hence, the consent given by the victim girl is not material and hence, the consent was not given by the victim girl forcibly and the accused has not kidnapped http://www.judis.nic.in 7 and raped the victim and prays that the accused is entitled to acquittal.
8.On the side of the prosecution, it is argued that as per the school certificate, the date of birth of the victim is 18.11.1986 and hence, at the time of occurrence, the age of the victim is 15 years and the victim girl is minor at the time of occurrence and hence, the consent given by the victim is material and the accused fully knowing that the accused is the minor, he took the victim girl to several places and subjected her to sexual intercourse and hence, the accused is not entitled to acquittal.
9.In this case, on the side of the accused, it is stated that to prove the age of the victim, Transfer Certificate was produced on the prosecution side, but the contents in the Transfer Certificate was not proved by examining the Headmaster of the school and hence, the Transfer Certificate issued by the school is not admissible in evidence, but the victim girl was examined by the Radiologist to determine the age and the Radiologist examined the victim and took X-ray and determined the age of the victim as above 16 years and below 17 years and as far as the admissibility of the http://www.judis.nic.in 8 medical evidence as age proof. The Transfer Certificate issued by the School is clearly analysed in the case of Alamelu and another Vs. State represented by Inspector of Police (2011) 2 SCC 385, which would run thus:-
“42.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 Purohit1, observed as follows:-
"14.....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 http://www.judis.nic.in 9 the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who 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 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."
43.The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-
"16....The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."
44.In our opinion, the aforesaid burden of proof has not been discharged by the http://www.judis.nic.in 10 prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all.
Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl.''
10.In this case, the Transfer Certificate issued by the school in which the victim girl studied was marked as Ex.P14 through PW13 (Investigating Officer). On the side of the prosecution, no steps were taken to examine the Head Master of the school or the person, who gave information for the entry made in the Transfer Certificate. But the victim girl was examined by the Radiologist and the Radiologist was examined as PW10. PW10 deposed that for determining the age of the victim, he took X-rays and determined the age of the victim as above 16 and below 17 years.
11.On the basis of the medical evidence, the age of an individual could be fixed approximately. The age may vary from individual to individual. In view of the possible variation in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the X-ray report, it would not http://www.judis.nic.in 11 be possible to give a firm opinion that the girl was definitely below the age of 16 years. The margin of error in age has been judicially recognized by the Apex Court in Jayamala Vs. Government of Jammu and Kashmir in 1982 (2) SCC 538. It is observed in paragraph No.9 as follows:-
"9.......However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
12.Hence, it is held that on the basis of the medical evidence, only the age of the victim girl will be fixed and not on the basis of the Transfer Certificate. As per Ex.P14, the age of the victim is stated as above 16 years and below 17 years and the medical examination pointed out the age approximately with a variation of two years. Therefore, it is held that at the time of occurrence, the age of the victim is above 16 years and below 17 years.
13.In this case, the victim girl was examined as PW3. PW1 and PW2 are parents of the victim girl. PW1 the mother of the http://www.judis.nic.in 12 victim gave Ex.P1 complaint and in her complaint and evidence stated that on 16.03.2000 her daughter went to school and in the evening, she has not turned up and she searched her daughter in several places prior to the occurrence and she saw that her daughter frequently speak with the accused and on 16.03.2000, the accused was not found in his house and after searching her daughter in several places, her daughter was not found and then she came to understand that the accused kidnapped her daughter and then, she gave complaint to the police on 18.03.2000.
14.PW2 is the father of the victim girl and he deposed that on 16.03.2000 his daughter went to school and in the evening he has not turned up and he searched his daughter in several places prior to the occurrence he saw that his daughter frequently speak with the accused on 16.03.200 the accused was not found in his house and after searching his daughter in several places his daughter was not found then he came to understand the accused kidnapped her daughter and then his wife gave complaint to the police.
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14.PW3 the victim girl deposed that on 16.03.2000 at 2.00 pm, she went to the school to get the result card and at the time, the accused came and asked her to come with him to some other place and for that, she refused it, but the accused compelled her to come with him and if she has not come with him, he will fall into the bus and due to it, she went along with the accused to Velampatti and in Velampatti, they stayed 5 days in the house of the friend of the accused and in that house, the accused attempted to rape her.
15.It is to be noted that even though she resisted it, the accused forcibly raped her and prior to the occurrence, she and the accused loved each other and when it was opposed from his family side, she stopped the relationship with the accused, but the accused forcibly took her to Velampatti and raped her and further, the accused promised to marry her. But the accused failed to marry her.
16.PW3 during her evidence stated that the accused forcibly took her from the school and then, he took her into the bus. But she has not stated that she has not raised any alarm for help from the passengers in the bus or in the public road in which so http://www.judis.nic.in 14 many persons are available. Further, PW3 stated during her evidence that she and the accused stayed in the house of the friend of the accused for 5 days. But she has not stated the occurrence to the neighbours of the house in which she stayed.
17.At this juncture, it is necessary to refer the cross examination of PW3. PW3 stated in here cross examination as follows:-
''NghyPrhh; tprhuizapy; vjphp ehd; gs;spf; $lj;jpy; ,Ue;J te;jNghJ vd;id tYf;fl;lhakhf tyJ ifia gpbj;J NgUe;jpy; Vw;w Kaw;rp nra;jhh; vd;Wk;> ehd; NgUe;jpy; tpOe;JtpLNtd; vd;W gae;J NgUe;jpy; Vwptpl;Nld; vd;W nrhy;ytpy;iy. gs;spf;
$lj;jpw;F gpd;GwKs;s Nfl; topahf vd;id tYfl;lhag;gLj;jp ,Oj;J nrd;whh;. me;j ,lk; elkhl;lk;
cs;s ,lk;jhd;. mg;NghJ NghyP]; ...epd;W
nfhz;bUg;gth; ,y;iy. Ehd; .... nfhz;L rg;jk; VJk;
Nghltpy;iy. elj;JdhplNkh rfgazpfsplNkh vJTk;
$wtpy;iy. Ntyk;gl;bapy; ,Ue;j 5 ehl;fSk; mf;fk;
gf;fj;jpy; cs;sth;fSld; Ngrpf; nfhz;L ,Ue;Njd;.”
18.Further, PW3 during her cross examination stated that http://www.judis.nic.in 15 she wrote several love letters to the accused and further she has given ring to the accused. PW3 travelled from Thiruverumbur to Velampatti with the accused and the distance between Thiruverumbur and Velampatti is 200 Kms and they travelled for more than 7 hours. During the transit period, she has not taken any steps to escape from the accused.
19.In this case, the Investigating Officer was examined as PW11. PW11 has not examined any independent person belongs to Velampatti village. Further, PW11 stated that during his investigation, he came to understand that the accused and the victim girl loved each other. PW11 stated during his cross examination as follows:-
'cwTf;fhuh; tPl;by; jq;fitj;jhh; vd;Wjhd; nrhy;ypAs;shh;. vjphp jd;id 2> 3 Kiw tYf;fl;lhakhf fw;gopj;jhh; vd;W nrhy;ytpy;iy. clYwT nfhz;L [hypahf ,Ue;Njhk; vd;Wjhd; ghjpf;fg;gl;l ngz; thf;F %yj;jpy; nrhy;ypAs;shh;.”
20.PW1 has not stated in the complaint that the accused http://www.judis.nic.in 16 forcibly kidnapped her daughter. On perusal of the cross examination of PW11, the victim girl stated that she and the accused had intercourse and she enjoyed it with the accused happily.
21.Already it was decided that at the time of occurrence, the age of the victim is above 16 and below 17 years. The occurrence is the year of 2000. At this juncture, it is necessary to refer Section 375 IPC, which states that a man is said to commit rape if he with or without consent, when the victim is under the age of 16 years. But in this case, at the time of occurrence, the age of the victim is above 16 and below 17 years.
22.On careful perusal of the evidence of PW3, it reveals that she and the accused loved each other and due to love affairs knowing fully the consequence of physical relationship, she went along with the accused voluntarily. Further, PW3 stated that she happily enjoyed the physical relationship with the accused on the belief that the accused will marry her. But the accused refused to marry her.
23.From the evidence of PW3 it reveals that she http://www.judis.nic.in 17 voluntarily went with the accused to several places and subjected her to in sexual intercourse. As per section 375 a man is said to have commit rape if he with or without consent when the victim is under the age of 16 years. In this case at the time of occurrence the age of the victim is above 16 years. Hence, she gave the consent for sexual intercourse on the belief that the accused will marry her. But the accused refused to marry her.
24.In this case, there was no evidence for forcible kidnapping and raped of PW3 by the accused. But there is evidence for committing the offence under Section 417 IPC and hence, the accused is found guilty under Section 417 of IPC.
25.For all the reasons stated above, this court is of the considered view that the appellant is found guilty under Section 417 IPC and he is liable to be punished for the said offence.
26.In the result, this Criminal Revision is partly allowed. http://www.judis.nic.in 18 The punishment imposed on the appellant for the offence under Section 376 IPC altered into 417 IPC and the appellant is directed to undergo 1 year RI and also pay a fine of Rs.1,000/-, in default to undergo RI for 3 months for the said offence. Further, the appellant is directed to pay a compensation of Rs.1,50,000/- to the victim. In respect of the offence under Section 366 IPC, the appellant is not found guilty and he is acquitted from the said offence. The period of sentence, if any already undergone by the appellant/accused is set off under Section 428 of Cr.P.C. Consequently, connected Miscellaneous Petition is closed.
27.Post the matter after a week for reporting compliance.
06.06.2019 Index:Yes/No Internet:Yes/No er T.KRISHNAVALLI,J http://www.judis.nic.in 19 er To,
1.The Mahila Court, Trichy.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.A.(MD)No.238 of 2009
and Crl.MP(MD)No.1484 of 2019 06.06.2019 http://www.judis.nic.in