Gujarat High Court
Ranjitbhai Raisangbhai Chu. Koli vs State Of ... on 13 October, 2016
Author: G.B.Shah
Bench: G.B.Shah
R/CR.A/1285/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1285 of 2016
With
CRIMINAL MISC.APPLICATION NO. 23206 of 2016
In
CRIMINAL APPEAL NO. 1285 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the constitution of India,
1950 or any order made thereunder?
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RANJITBHAI RAISANGBHAI CHU. KOLI....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR. YOGENDRA THAKORE, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 13/10/2016
ORAL JUDGMENT
1. Pursuant to order dated 14/09/2016 passed by this Court, the Page 1 of 34 HC-NIC Page 1 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT appeal is listed for final hearing. Mr. Thakore, the learned advocate for the appellant, has supplied the paperbook. R&P is also received from the concerned trial Court. Accordingly, the matter is heard finally.
2. Present appeal assails the judgment and order dated 06/08/2016, passed by the learned Special Judge, Surendranagar in Special (POCSO) Case No. 03 of 2014, whereby, the appellant herein original accused came to be convicted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for brevity, 'the IPC') and Sections 3 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for brevity, 'the POCSO Act'), and for the offence punishable under Section 363 of the IPC, he was sentenced to undergo rigorous imprisonment (RI) for two years and a fine of Rs.500/ and in default of payment of fine, to undergo, further simple imprisonment (SI) for two months; for the offence punishable under Section 366 of the IPC, to undergo RI for two years and a fine of Rs.500/ and in default of payment of fine, to undergo further SI for two months, whereas, for the offence punishable under Section 376 of the IPC, to undergo RI for seven years and a fine of Rs.1,000/ and in default of Page 2 of 34 HC-NIC Page 2 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT payment of fine, to undergo further SI for three months. No separate sentence has been imposed for the offence under the POCSO Act. All the sentences were to run concurrently. Whereas, Criminal Misc. Application No. 23206 of 2016 has been filed by the applicant appellant - original accused under Section 389 of the Code of Criminal Procedure, 1973 (for brevity, 'the Code') for suspension of sentence pending the present appeal.
3. Filtering the unnecessary details, the case of the prosecution is that, on 28/02/2014 at about 1:00 a.m. (in night), the appellant herein - original accused allegedly kidnapped the minor daughter of complainant Baldevbhai Bajubhai Sonecha from his lawful guardianship with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, and thereafter, taking her to Ahmedabad and Bayad, committed repeated illicit intercourse. Thus, the accused committed the offence alleged against him for which, a complaint came to be lodged.
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3.1 Pursuant to the complaint, investigation was carried out. After investigation, chargesheet was filed. The trial Court framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 3.2 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:
ORAL EVIDENCE S/n. Name of Witness Exh.
1 Dr. Chirag Jagdishbhai Panchal 10 2 Dr. Arunkumar Ramkishan Prasad 16 3 Jayendrabhai Mahadevbhai 21 4 Himatbhai Manjibhai 23 5 Victim 25 6 Baldevbhai Bajubhai, complainant 27 7 Hansaben Baldevbhai, mother of complainant 30 8 Sukhdevbhai Bajubhai, uncle of victim 32 9 Rekhaben Bajubhai, 33 10 Nehalben Bhanjibhai, TalaticumMantri 34 11 Shaktidan Ratubhai Israni, PSI 36 12 Rajeshbhai Bavaji Thakore 39 13 Dineshbhai Bachubhai 40 14 Bachubhai Bhagvanbhai 41 15 Vishnubhai Ramanbhai 42 Page 4 of 34 HC-NIC Page 4 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT 16 Husenbhai Abdulbhai Piparvadiya, IO 44 17 Champaben Bajubhai Sonecha 46 18 Meenaben Bharatbhai Poojara, Social Worker 48 19 Sakarabhai Radvabhai Vasava, CPI, IO 49 DOCUMENTARY EVIDENCE S/n. Document Exh. 1 Police Yadi as to medical examination of the 11 victim 2 Case papers of the victim 12 3 Letter as to handing over the samples of the 13 victim 4 Medical Certificate of the victim 14 5 Police Yadi as to medical examination of the 17 accused 6 Case papers of the accused 18 7 Medical Certificate of the accused 19 8 Letter as to handing over the samples of the 20 accused 9 Panchnama of the clothes put on by the victim 22 and the accused at the time of incident 10 Birth Certificate of the victim 28 11 Original complaint with FIR 29 12 Copy of relevant portion of Births and Deaths 35
Register, registering the birth of the victim 13 Forwarding letter as to sending of muddamal to 50 FSL 14 Receipt of FSL 51 15 Form as to calling for details of mobile phone and 52 to the call details of mobile used in crime 56 16 FSL Analysis and Serological Report 61 3.3 At the end of the trial, Further Statement of the accused under Page 5 of 34 HC-NIC Page 5 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT Section 313 of the Code was recorded in which the accused denied the evidence forthcoming on the record and stated that a false case has been filed against him. Thus, after recording abovereferred Further Statement and hearing the arguments on behalf of prosecution and the defence, the learned trial Judge came to the aforesaid conclusion by the impugned judgment and order, giving rise to prefer the present appeal by the accused.
4. Heard Mr. Yogendra Thakore, the learned advocate for the appellant - original accused and Mr. K. L. Pandya, the learned Additional Public Prosecutor, for the respondent - State.
4.1 The learned advocate for the appellant accused contended that the judgment and order of the trial Court is against the provisions of law; the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has failed to prove the whole ingredients of the offence for which the accused is convicted and sentenced and thereby, the learned trial Judge has erred in coming to such a conclusion. He took this Court through the oral as well as the entire documentary evidence on record and submitted that the evidence of the victim herself is not Page 6 of 34 HC-NIC Page 6 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT trustworthy for the reason that as per the medical certificate issued by the doctor (gynaecologist) at Community Health Center, Dhrangadhra, the victim herself had given history that the present appellant had never entered into physical relations and that, she was having love affair with the appellant and accordingly, no offence can be said to have been committed under Section 376 of the IPC.
4.2 He further submitted that the learned trial Judge has gravely erred in considering the aspects of consent and age. He, by drawing attention of the Court to the extract of the Births and Deaths Register, exh. 35, submitted that looking to the said document it appears that all the thumb impressions are not attested by any person, which itself creates doubt about the veracity of the said document and thus, cannot be relied as evidence.
4.3 Moreover, he submitted that to prove the case that the victim was minor on the date of incident, the age of the victim should be proved by cogent and reliable evidence and in the case on hand, the prosecution has failed to prove the age, rather correct age, of the victim. Moreover, as per the deposition of PW7 Page 7 of 34 HC-NIC Page 7 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT Hansaben Baldevbhai, the mother of the victim, out of her three daughters, the victim was the eldest one and second daughter (Varsha), had born in the year 1998, was younger to victim by two and half years, whereas, as per the deposition of the complainant and the Birth Certificate of the victim, produced at exh. 28, the victim had also born in the year 1998, to be precise, on 12/06/1998. Thus, if the deposition of the mother of the victim is taken into consideration, there appears material contradictions in the prosecution case as to the age of the victim. He submitted that for ascertaining the correct and actual age of the victim and that, on the date of incident, the victim, actually, was minor, is not proved beyond reasonable doubt and the said material aspect, the learned trial Judge has failed to take into consideration at all and hence, the impugned judgment and order is not tenable in the eye of law and requires to be set aside. 4.4 He also submitted that the learned trial Judge has materially erred in law as well as in facts as he has not considered the material aspect that the victim had stayed with the appellant - accused for about one month at various places, and had she been kidnapped, she would have definitely inform someone about it, but it is not the case. Moreover, during that period, they Page 8 of 34 HC-NIC Page 8 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT travelled by different conveyance but she had not complained anything against the appellant - accused. Thus, apparently, it is the case of consent. Moreover, they both were knowing each other prior to the incident in question and there was a love affair. 4.5 It was further submitted that the evidence of the victim itself is not trustworthy as there appears several contradictions in the same and it also does not get corroboration with the evidence of other prosecution witnesses.
4.6 The learned advocate for the appellant - accused further submitted that even the medical evidence does not support the case of the prosecuted inasmuch as there was no injury marks found on the body of the victim nor was any sperm marks, which can be substantiated by the medical evidence on record and thus, the fact of rape and/or force applied upon the victim, allegedly committed by the present appellant, does not get corroboration from the medical evidence.
4.7 The learned advocate for the appellant - accused further submitted that looking to the deposition of PW6 Baldevbhai Bajubhai, the complainant and father of the victim at exh. 27, in Page 9 of 34 HC-NIC Page 9 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT his crossexamination he has specifically admitted that when he had gone to bring his daughter back along with his brother, she refused to return. Moreover, on asking by the police also, the victim had refused to return with the complainant. Thus, this fact is suggestive of the fact of false implication of the appellant in the crime for the reason that had the victim been kidnapped and raped, she would not have refused to return with the complainant, more particularly, before the police personnel. 4.8 Moreover, it is also a fact that there was a quite delay in lodging the complaint, which also creates doubts in the case of the prosecution as no wise man, after knowing that his daughter is missing, would wait for the right time for lodging the complaint. Moreover, there appears no plausible explanation for the delay caused in registering the complaint.
4.9 Making above submissions, the learned advocate for the appellant accused requested to allow the present appeal as no ingredients of the said offence have been proved and the prosecution has failed to prove its case against the accused beyond reasonable doubt, setting aside the impugned judgment and order. In support, the learned advocate for the appellant -
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accused has relied upon a decision of the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Munna @ Shambhoo Nath, reported in 2016 (1) SCC 696, more particularly, para 8 and 9 of the same, which read as under:
"8. To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, bone ossification test, but the High Court held that none of them could bring home the case of the prosecution. The prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where the prosecutrix studied in her 9th standard. In his cross examination, PW1 stated that the age of the prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examinationin chief of PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but further in her examination inchief and crossexamination, she stated that she could not opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused.
9. From the Xray report of the ossification test, the Page 11 of 34 HC-NIC Page 11 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the Xray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her crossexamination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 23 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 1516 years at the time of the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the Ossification Test, Xray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident . Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent."
5. Per contra, Mr. Pandya, the learned Additional Public Prosecutor Page 12 of 34 HC-NIC Page 12 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT for the respondent - State, supported the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference. It is submitted that the prosecution has successfully proved the case against the accused beyond reasonable doubt and the learned trial Judge, after taking into consideration all the aspects of the matter, has come to such a conclusion, which is just and proper and accordingly, it is requested that this Court should not interfere in appeal. He took the Court through the relevant oral as well as documentary evidence on record and the discussion made by the learned trial Judge in the impugned judgment and order and submitted that the prosecution has successfully proved its case against the appellant - accused and the learned trial Judge has committed no error in convicting the accused after duly evaluating and appreciating the evidence on record and considering the gravity of the offence, he requested that this Court may not interfere in the appeal and eventually, requested to dismiss the present appeal confirming the impugned judgment and order.
6. I have considered the abovereferred rival submissions made by the learned advocates for the parties and also gone through the Page 13 of 34 HC-NIC Page 13 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT evidence on record and reappreciated and reevaluated the same on the touchstone of the latest decisions of the Hon'ble Apex Court. I have also gone through the decision relied upon by the learned advocate for the appellant - accused. 6.1 The case of the prosecution is that the appellant herein had kidnapped the minor daughter of the complainant, stayed with her and committed repeated illicit intercourse with her, whereas, as per the case of the defence, there was a love affair between the appellant and the victim, the age of the victim is not proved beyond doubt to be the minor and no case is made out against the appellant - accused for the alleged offences. 6.2 To adjudge the case, the factor of age of the victim is important.
Referring the evidence of PW6 Baldevbhai Bajubhai, the father of the victim at exh. 27, he has stated that, when the incident in question had occurred, the victim was aged about 16 years and 06 months. A copy of Birth Certificate of the victim is also produced at exh. 28 in which, the date of birth of the victim is mentioned to be '12/06/1998' and accordingly, if the age of the victim is considered, on the date of incident i.e. on 28/02/2014, the victim was below 16 years. However, in the case on hand the Page 14 of 34 HC-NIC Page 14 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT TalaticumMantri viz. PW10 Nehalben Bhanjibhai, is examined at exh. 34, who has produced the extract of Births and Deaths Register vide exh. 35. Perusing the same minutely, it appears that in the said document, in the entry at serial No. 23, the age of the victim is shown to be '12/06/1998', however, in column No. 23 of the said document against the said entry No. 23, there appears a thumb impression of the informant, as it appears and also argued by the learned advocate for the appellant, the same appears to be not identified by any person. Moreover, considering the Birth Certificate of the victim, exh. 28, the date of issue is mentioned to be '05/04/2014' i.e. after the alleged incident had taken place on '28/02/2014' and thus, it is clear that it is only after the incident in question had occurred, the Birth Certificate at exh. 28 was got to be issued. Moreover, from the deposition of PW10, TalaticumMantri, she has admitted that she had issued the same on the basis of the record available to her and she did not know the fact as to who had got the said entry registered in the said register. A further perusal of her deposition reveals that this witness has specifically admitted in her crossexamination that, 'it is true that in the case on hand in which Birth Certificate she has issued, in the entry No. 23, the Page 15 of 34 HC-NIC Page 15 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT name of the child is inserted later on'. She has also stated that she did not have any record if in prior any Birth Certificate was issued in favour of the victim and this creates doubt about the prosecution case. In this regard, the evidence of the mother of the victim is also of much importance. Referring her deposition recorded as PW7 Hansaben Baldevbhai at exh. 30, she has stated that she has three daughters out of whom, the victim is the elder one. In her crossexamination, she has stated that, 'It is true that she has five children. It is true that she does not know the birth dates of any of them. It is true that after the birth of the victim, Varsha had born. It is true that Varsha had also born at her home'. She has further deposed that, 'It is true that Varsha had born in the year 1998. It is true that the victim is elder by two and half years than Varsha. It is true that she had not gone any where to search out her daughter'. Thus, if the deposition of this witness is taken into consideration and believed, the victim would have been more than 18 years on the date of incident as this witness goes to state, as referred above, that Varsha, who was younger to victim by two and half years, had born in the year 1998. Moreover, after the above admission on the part of the mother of the victim, the prosecution could have tried to Page 16 of 34 HC-NIC Page 16 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT brought the cogent evidence regarding the birth date of younger daughter Varsha but no efforts appear to have been made by the prosecution. Accordingly, it creates doubts as regards the case of the prosecution that the victim was minor on the date of incident, more particularly, for the reason that the Birth Certificate of the victim at exh. 28 though shows her date of birth to be '12/06/1998', it is also a fact that it was issued after the incident in question had occurred. Moreover, the same was issued by the PW10 TalaticumMantri on the basis of the record available to her i.e. the Births and Deaths Register, however, looking to the extract of the said register, nobody has attested the the thumb impression against the entry No. 23 related to the victim. Moreover, in the said register, the name of the victim, appears to have been added later on and as per the evidence of the mother of the victim, she should be more than 18 years of age on the date of incident and under the circumstances, I am of the opinion that a serious doubt has been created as to the age of the victim, more particularly, when, to ascertain that whether the victim was minor on the date of incident or not, no cogent evidence is there on record. And, when the said aspect is not proved by the prosecution beyond reasonable doubt, in the opinion of this Court, conviction on the basis of the same, cannot Page 17 of 34 HC-NIC Page 17 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT be sustained.
6.3 So far as kidnapping and committing rape upon the victim is concerned, undoubtedly, the defence has put forward a case of love affair between the appellant and victim. The said contention appears to have substance for the reason that after the incident in question, the appellant and victim had stayed together for about one month and during the said period they had travelled at different places. However, there is nothing on record to show that the victim had resisted the said happening as there is nothing on record to show that she shouted for help or resisted otherwise. Moreover, from the medical evidence also it has come on record that there were no injury marks on the body of the victim which can suggest any force had been applied by the present appellant - accused for committing rape on her. Moreover, it has also come on record by deposition of the complainant himself that when he had gone to bring the victim back along with his brother, the victim had denied to return, even on asking by the police and accordingly, in the considered opinion of this Court, the learned trial Judge has failed to consider all these material aspects and imposed the conviction, which is contrary to the facts and evidence on record.
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6.4 Moreover, for ascertaining the age of the victim, no test much less the ossification test was conducted. Moreover, the IO also appears to have not taken any care to have the exact age of the victim on record and under the circumstances, there appears serious lacuna in the investigation also, more particularly, when the case is under Section 375 of the IPC. In this regard, the observations made by the Hon'ble Apex Court in the decision, relied upon by the learned advocate for the appellant - accused, in the case of Munna @ Shambhoo Nath (supra) are required to be referred, more particularly, para 7 to 12 of the same, which are extracted hereunder:
"7. Section 375 (as it stood before the Criminal Law Amendment Act, 2013) of the Indian Penal Code, 1860 states:
"A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: ... ... ... ... ...
Sixthly - With or without her consent, when she is under sixteen years of age..."Page 19 of 34
HC-NIC Page 19 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT In light of the aforementioned provision, the second issue regarding the determination of age of the prosecutrix is crucial to establish whether the respondent is liable for rape or not.
8. To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, bone ossification test, but the High Court held that none of them could bring home the case of the prosecution. The prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where the prosecutrix studied in her 9th standard. In his cross examination, PW1 stated that the age of the prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examinationin chief of PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but further in her examination inchief and crossexamination, she stated that she could not opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused.
9. From the Xray report of the ossification test, the doctor opined that the age of the prosecutrix could not be Page 20 of 34 HC-NIC Page 20 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT more than 14 years. However, since the doctor was never examined, the Xray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her crossexamination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 23 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 1516 years at the time of the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the Ossification Test, Xray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident . Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent.
10. This Court in the case of Birad Mal Singhvi v. Anand Purohit, has held: (SCC p. 620, para 17):
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HC-NIC Page 21 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT "17. ...the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined."
11. Further it was held by this Court in the case of Sunil v. State of Haryana that: (SCC p. 750, para 26) "26. .... In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
12. In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved."
6.5 At this stage, a reference to the decision of the Bombay High Page 22 of 34 HC-NIC Page 22 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT Court in the case of Balu Baburao Kadam Vs. State of Maharashtra, passed in Criminal Appeal No. 565 of 1996 dated 03/05/2016 would be relevant, more particularly, para 19 of the same, which reads as under:
"19. Section 375 of IPC reads as under: "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 or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: Page 23 of 34 HC-NIC Page 23 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT 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.
...
Sixthly - With or without her consent, when she is under eighteen years of age.
Seventhly - When she is unable to communicate consent."
The main ingredient is 'consent' and the same has to be considered in the facts of the case. In the present case, due to minority of age - as alleged by the prosecution would make consent, if any, insignificant. Therefore, it was incumbent upon the prosecution to establish the factum of minority beyond reasonable doubt."
6.6 Thus, in aforesaid view of the matter, when there are material contradictions and improvements in the evidence of the victim herself together with the fact that for ascertaining the age of the Page 24 of 34 HC-NIC Page 24 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT victim, no ossification test had been conducted and thereby, the exact age of the victim has not on record and the aforesaid lacuna in the case on hand, in the considered opinion of this Court, the prosecution has failed to prove its case against the present appellant - accused beyond reasonable doubt and the conclusion arrived by the learned trial Judge appears to be without considering the aforesaid material aspects. This Court is quite aware of the fact that so far as the offence punishable under Section 376 of the IPC is concerned, conviction can be based on the sole testimony of the prosecutrix if her version does not arouse any doubt in the mind of the Court. Simultaneously, it is also well settled legal position that when facts and circumstances cast a doubt on veracity of the prosecution case, it would be unsafe to convict the accused relying on an uncorroborated version of the prosecutrix. The Hon'ble Apex Court, in the decision of Kaini Rajan Vs. State of Kerala, reported in (2013) 9 SCC 113, in para 12, has held as under:
"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, Page 25 of 34 HC-NIC Page 25 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her or any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H. P. v. Mango Ram.)"
6.7 Moreover, in the decision in Dilip Vs. State of Madhya Pradesh, reported in (2013) 14 SCC 331, in paras 15 to 19, it is held by the Hon'ble Apex Court as under:
"15. So far as the issue of determining the age is concerned, in the instant case Doctor has found that prosecutrix was Page 26 of 34 HC-NIC Page 26 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT having only 28 teeth, 14 in each jaw. Such an issue was considered by this Court in Bishnudayal v. State of Bihar, wherein the Court appreciated the evidence as under: (SCC p. 360, para 8) "8. The evidence with regard to the age of the girl was given by the prosecutrix (PW 9), and her father Jagarnath (PW 4) and Dr. Asha Prasad (PW 14). PW 9 and PW 4 both stated that Sumitra (PW 9) was 13 14 years of age at the time of occurrence. Dr. Asha Prasad opined that the girl was only 13 or 14 years of age on 671967 when the witness examined her. The Doctor based this opinion on physical facts, namely, that the examinee (PW 9) had 28 teeth, 14 in each jaw, smooth pubic hair and axillary hair, which means the hair, according to the opinion of the Doctor, had just started appearing at the age of 14."
(Emphasis added) A similar view has been reiterated by this Court while deciding Kailash v. State of M.P., vide judgment and order dated 1042013, wherein relying upon several other factors for determining the age, this very Bench has taken a view that as the prosecutrix therein had only 28 teeth considering the other sexual character, she was only 14 years of age. Therefore, in view of the above, we do not find any fault with the finding recorded by the High Court so far as the issue of age is concerned.
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16. In case, the prosecutrix was below 16 years of age at the relevant time, the issue of consent becomes totally irrelevant. Even the issue of consent is no more res integra even in a case where the prosecutrix was above 16 years of age.
17. In State of H.P. v. Mange Ram, AIR 2000 SC 2798, this Court, while dealing with the issue held: (SCC pp. 230
31) "13. ...Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." (Emphasis added)
18. In Uday v. State of Karnataka, AIR 2003 SC 1639, a similar view has been reiterated by this Court observing:
(SCC p. 57, para 21) "21. ...We are inclined to agree with this view that there is no strait jacket formula for determining Page 28 of 34 HC-NIC Page 28 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT 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."
19. In Pradeep Kumar Verma v. State of Bihar and Anr, AIR 2007 SC 3059, this Court held as under: (SCC pp. 416 17, para 911) "9. The crucial expression in Section 375 which defines 'rape' as 'against her will'. It seems to connote that the offending act was despite resistance and opposition of the woman.
10. '17. The Penal Code does not define "consent" in positive terms, but what cannot be regarded as "consent" ...is explained by Section 90 [which] reads as follows:
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18. Consent given firstly under fear of injury and secondly under a misconception of fact is not "consent"
at all. That is what is [explained in] first part of Section 90. [There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
19. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in Page 30 of 34 HC-NIC Page 30 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT negative terminology.' As observed by this Court in Deelip Singh v. State of Bihar, SCC p. 99, paras 1719, Section 90 cannot be considered as an exhaustive definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded.
11. '21. In most of the decisions in which the meaning of the expression "consent" under IPC was discussed, reference was made to the passages occurring in Stroud's Judicial Dictionary, Jowitt's Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent "as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side". Jowitt, while employing the same language added the following:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
22. In Words and Phrases, Permanent Edn., Vol. 8 A, the following passages culled out from certain old decisions of the American courts are found:
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HC-NIC Page 31 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT "...adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'.
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent..." ' (Deelip Singh case, SCC pp. 99100, paras 2122)"
6.8 Thus, considering all the aspects of the matter in entirety and the discussion made herein above, I am of the view that benefit of doubt is required to be given to the appellant - accused as the prosecution has failed to prove the same beyond reasonable doubt. The learned Additional Public Prosecutor has submitted that the date of incident is 28/02/2014 and considering the documents at exhs. 28 and 35, the birth date of the victim revealed to be 12/06/1998 and accordingly, her age was below 16 years and considering the amended provision of description sixthly of S. 375 of the IPC, the trial Court has rightly appreciated the said clause, however, I am of the view that for taking the benefit of amended provision or the old provision of S. 375 of the IPC, it was incumbent upon the prosecution to establish the Page 32 of 34 HC-NIC Page 32 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT factum of minority beyond reasonable doubt. So far as the case on hand is concerned, the prosecution has failed to prove the same as discussed herein above. Moreover, it is well settled legal position that the main ingredient 'consent' is required to be considered in facts of the case. The expression, "against her will"
means, the act must have been done in spite of the opposition of the woman. In the case on hand, the descriptions: third, fourth and fifth of S. 375 of the IPC, are not proved for the reason that the prosecution has not proved that the consent of the victim was obtained by putting her or any person in whom she is interested in fear of death or of hurt. From the abovereferred decisions of the Hon'ble Apex Court as well as of this Court, whether there was consent or not, is required to be ascertained only on a careful study of all the relevant circumstances. In the case on hand, convincing and trustworthy evidence to that effect has not come on record as discussed above and as such, the learned Additional Public Prosecutor is not in a position to take otherwise view of the matter by showing any substantive and cogent evidence. Accordingly, the present appeal deserves to be allowed and the impugned judgment and order is required to be set aside.
7. In view of the aforesaid discussion, present appeal succeeds and Page 33 of 34 HC-NIC Page 33 of 34 Created On Fri Oct 14 00:47:25 IST 2016 R/CR.A/1285/2016 JUDGMENT the impugned judgment and order dated 06/08/2016, passed by the learned Special Judge, Surendranagar in Special (POCSO) Case No. 03 of 2014, is hereby set aside and the appellant - original accused is acquitted of the charge for which he is convicted and sentenced by giving benefit of doubt. The appellant - accused is reported to be in jail and accordingly, he is directed to be set free forthwith if not required in any other case. In view of main appeal is allowed, no orders are required to be passed in Criminal Misc. Application No. 23206 of 2016 and the same is accordingly, disposed of. Registry to return the R&P to the trial Court forthwith. The outcome of this appeal be communicated by fax to the concerned jail authority as well as to the trial Court concerned forthwith for its onward compliance.
[ G. B. Shah, J. ] hiren Page 34 of 34 HC-NIC Page 34 of 34 Created On Fri Oct 14 00:47:25 IST 2016