Rajasthan High Court - Jodhpur
Vishal Gund @ Aman vs State on 19 August, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
1/39
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. CRIMINAL APPEAL NO.208/2012 Vishal Gund @ Aman Vs. The State of Rajasthan Date of judgment : 19.8.2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. K.R.Bhati, for the appellant.
Mr. A.R.Nikub, P.P. Reportable <><><> The instant appeal has been preferred by the appellant Vishal challenging the judgment dated 28.1.2012 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur Metro in Sessions Case No.50/2011, whereby the appellant was convicted and sentenced as below:
U/s.363 IPC 5 Years' R.I. and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo six months' S.I. U/s.366 IPC 5 Years' R.I. and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo six months' S.I. 2/39 U/s.376 IPC 7 Years' R.I. and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo six months' S.I. All the sentences were ordered to run concurrently.
Succinctly stated the facts of the case are that the complainant Anil Puri PW12 submitted a written report Ex.P15 to the SHO Police Station Sadar Kotwali, Jodhpur. It was alleged in the report that the complainant's daughter aged 13½ years, student of the 8th standard in Naveen Adarsh Vidhya Mandir, Ram Chowk with her date of birth being 9.8.1997, went missing without any information and was not traceable after 6.3.2011. The complainant suspected that his minor daughter had been kidnapped by Aman S/o Prakash Harijan with intention of marrying her. A photograph (Ex.P6) of the kidnapped girl was also submitted alongwith the report.
On the basis of this report, an FIR No.48/2011 was registered at the Police Station Kotwali Jodhpur. The girl Ms.'L' (hereinafter referred to as the prosecutrix) alongwith the appellant voluntarily appeared at the police station on 22.3.2011. She was sought to be handed over in guardianship of her father but refused. On her medical examination being conducted, it was observed that her hymen was not intact and she was found to be habituated to sexual intercourse. The accused was arrested on the same day i.e on 22.3.2011. The prosecutrix was examined under Section 161 3/39 Cr.P.C on 22.3.2011. She stated that she had come into contact with the accused about 1½ years ago. Both of them developed intimacy. They decided to marry each other on 6.3.2011. Accordingly, she left her father's house, joined the appellant and both boarded a bus for Jaipur. Thereafter, she married the appellant at a temple at Jaipur and started living with him as his wife. She specifically stated that she established consensual sexual relations with the appellant.
On count of her refusal to go with her parents, the prosecutrix was sent to the Nari Niketan. Thereafter, she was produced before the Magistrate on the prosecution's application and was examined under Section 164 Cr.P.C. on 28.3.2011. In the said statement Ex.P5, she reiterated the version, which she had deposed to the Investigating Officer under Section 161 Cr.P.C. She emphasised having intimate relations with the accused over a period of 1½ - 2 years. She stated that she called the accused on 6.3.2011 and threatened him that if he did not agree to marry her then she would commit suicide. She left her father's house of her own free will. The accused requested her to rethink over her decision but she remained adamant on her plan to marry him. Thereafter, she asked the accused to take her to some other place. Thereafter, both of them went to Jaipur. They checked into a Dharamshala at Jaipur. Thereafter, they went to a temple and married each other. She specifically stated that the 4/39 appellant did not force her to leave her father's home and also did not force her into the marriage. She reiterated that she went with the accused of her own free will and also married him voluntarily. She also stated that she established consensual physical relations with the accused before the marriage and also thereafter. She further stated that she told the accused that she would be completing the age of 18 years on 9th of April and thus, they should appear before the Police. Accordingly, both of them came to Jodhpur on 22.3.2011 and appeared before the Police Officers. She stated that her date of birth was 9th of April and that she would complete 18 years of age on the coming 9th of April. She further stated the her parents had procured a forged mark-sheet because they apprehended that she might elope with Vishal. She further stated that earlier also, she had eloped with Vishal. She also alleged that her parents used to beat her and were forcing her to marry someone else. She stated that she desired to live with Vishal only and if she was sent with her parents then she would kill herself.
As the girl refused to go with her parents and expressed a desire to accompany the accused, who was in custody, the Judicial Magistrate No.8 Jodhpur by order dated 23.3.2011 directed her to be sent to the Nari Niketan in view of her date of birth entered in the school record filed by the informant.
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Finally after remaining in the Nari Niketan for a period of about two months, the prosecutrix filed an application to the Superintendent, Nari Niketan on 9.5.2011 that she was desirous of meeting her parents. The parents were accordingly permitted to meet her and ultimately, she was produced before the Court on 16.5.2011 on which date, she expressed a desire to go with her parents. On the very day, the trial Court i.e. the court of the learned Additional Sessions Judge No.1, Jodhpur directed that the custody of the prosecutrix be handed over to her parents.
In the interregnum, the investigating agency after concluding investigation had already filed a charge-sheet against the appellant for the offences under Sections 363, 366 and 376 I.P.C. in the court of the Judicial Magistrate No.8, Jodhpur.
The case being triable exclusively by a court of sessions was committed to the court of Sessions Judge, Jodhpur from where the same was transferred to the court of learned Additional Sessions Judge (Fast Track) No.1, Jodhpur for trial.
The learned trial Judge framed charges against the appellant by order dated 7.5.2011. The appellant pleaded not guilty and claimed trial. The prosecution examined 18 witnesses in support of its case. The accused in his statement recorded under Section 313 Cr.P.C. pleaded that the 6/39 prosecutrix used to project herself to be a major girl. She herself came to meet him. He stated that he neither kidnapped nor abducted the prosecutrix from the lawful guardianship of her parents. He took a specific plea that he had been implicated in this case as he belonged to a Scheduled Caste.
At the conclusion of the trial,the learned trial Court by the impugned judgment dated 28.1.2012 convicted and sentenced the appellant as above. The appellant has preferred the instant appeal being aggrieved of his conviction and the sentences awarded to him.
Shri K.R.Bhati learned counsel for the appellant vehemently contended that the conviction of the appellant as recorded by the learned trial Judge is grossly illegal and contrary to the facts available on the record. He urged that the learned trial judge failed to appreciate the evidence in the proper perspective and mechanically relied on the testimony of the interested prosecution witnesses for convicting the appellant. He further contended that the prosecutrix pressurised appellant to elope with her after convincing him by saying that she was 17 years of age. She virtually forced the appellant to take her away and when the appellant tried to reason with her for not taking the hasty step, she threatened him that, she would commit suicide. Learned counsel contended that in view of the convincing stand taken by the prosecutrix that her age was above 17 years, the accused had 7/39 no reason to entertain any doubt that she was a minor at that time. He further contended that the appellant himself was just a young boy of just 18½ years when the incident took place and therefore, he could not be expected to be mature enough so as to evaluate the circumstances like a grown up man and to resist the carnal advances of the prosecutrix. Learned counsel vehemently contended that the prosecutrix was mature beyond her age and was adamant on marrying the appellant and having relations with him. For achieving her objective, she planned the whole episode meticulously. In order to convince the appellant about her being above sixteen years of age, she carried with her, the family ration card wherein her age was mentioned as 6 years in the year 2001. She pressurised the appellant to leave Jodhpur and proceeded to Jaipur. There she voluntarily married the appellant. On coming to know of the police case, she persuaded the appellant to return to Jodhpur and approach the Police after convincing him that she would be completing 18 years shortly and thus, she could not be sent in the custody of her parents. Learned counsel further contended that the prosecutrix was examined during the course of the investigation and the statement which she gave before the Investigating Officer was marked as Ex.D2 at the trial. He submitted that though in the said statement, the age of the prosecutrix was mentioned as 13½ years but despite that, she refused to go with her parents 8/39 and was sent to the Nari Niketan on her own request. Thereafter, she was produced before the learned Magistrate on 28.3.2013 for her examination under Section 164 Cr.P.C. In the said statement, which was marked as Ex.P5 at the trial, she gave her age to be 17 years and deposed that she threatened the appellant that she would commit suicide if he did not consent to marry her. The appellant advised her against the hasty step but she remained adamant to achieve her objective. She deposed before the learned Magistrate that her parents had procured a forged mark sheet apprehending that she might elope with Vishal. Learned counsel urged that even uptill the filing of the charge-sheet, the prosecutrix did not tender any statement implicating the appellant for the offences. It is only for the first time, during the trial and that too after the prosecutrix was given in her parents' custody that she deposed before the trial court on 22.6.2011 that the appellant kidnapped her and committed rape with her. Learned counsel submitted that the fact that the prosecutrix was forced to depose against the appellant under pressure is apparent from the note appended by the trial judge at the end of her statement, wherein it was mentioned that the prosecutrix was weeping all the time while giving the statement. The learned counsel further contended that the allegations made by the prosecutrix in her examination-in- chief regarding her being under fear of the threat given by the 9/39 accused when she was examined under Section 164 Cr.P.C. is totally false. He contended that the prosecutrix and the appellant voluntarily appeared before the Investigating Officer on 22.3.2011. She refused to go with her parents on which she was sent to Nari Niketan. There, for a period of five days, she had ample opportunity to ponder over the whole scenario in an absolutely free atmosphere and without any external influence and yet she chose not to level any allegation against the appellant when examined under Section 164 Cr.P.C. on 28.3.2011. The learned counsel contended that on being examined on oath after being handed over into the custody of her parents, an attempt was made by the prosecutrix to discard and to make Ex.P5 the statement under Section 164 Cr.P.C. redundant by alleging that she was threatened by the accused. Learned counsel submitted that on being cross- examined, the prosecutrix admitted that she did not complain to the magistrate who recorded Ex.P5 that the accused had threatened her to give a favourable statement. Learned counsel further pointed out to this Court the love letters Ex.D12, D13 & D14 admittedly written by the prosecutrix to the accused. He further pointed out to this Court the admission made by the prosecutrix in the cross examination that after leaving her father's house, she told the accused that she was above 17 years of age and would be completing 18 years on 19.4.2011. She also stated that while going away, 10/39 she had taken with her, the family Ration Card Ex.D15, prepared in the year 2001, wherein her age was mentioned as 6 years. The prosecutrix was confronted with certain portions of Ex.P5 her statement recorded under Section 164 Cr.P.C. and she admitted that she gave these statements to the Magistrate. She also admitted that while deposing before the Magistrate, she disclosed her age to be 17 years. She was also confronted with the portion E to F of her statement recorded by the Investigating Officer wherein she stated that she had gone with the appellant of her own free will and that she did not want to return back to her parents' home. He contended that after the girl was released from Nari Niketan, her parents assaulted her physically and pressurised her to depose against the accused and on resentment, she was sent to her maternal grandfather's house. Learned counsel referring to the above noted admissions made by the prosecutrix in her cross- examination urged that the prosecutrix took a conscious decision and meticulously planned her elopement with the accused because she was infatuated with him. Thereafter, she coerced the accused to accompany her to Jaipur under the threat of suicide. There, both performed a marriage ceremony in a temple and also consummated the marriage. Learned counsel thus submitted that the total sequence of events shows that the elopement was not only consensual but was executed under the girl's pressure. 11/39
Challenging the evidence regarding the age of the prosecutrix entered in the school record, the learned counsel submitted that the evidence given by the prosecution for proving the school age of the prosecutrix is extremely doubtful and the documents placed on record as proof of her age were forged. He contended that the school leaving certificate Ex.P10 issued by the Principal of the Prem Bal Niketan Upper Primary School is simply a letter issued on a printed letterhead. He contended that the original record pertaining to the admission of the prosecutrix in the school i.e. the scholar register and the admission form were not proved by the prosecution and thus, the certificate Ex.P10 could not be relied upon as a proof of the prosecutrix's age. Learned counsel urged that the prosecutrix was allegedly admitted in the school in the year 2001, whereas the certificate Ex.P-10 was prepared on 8.4.2011 i.e. after the girl eloped. Learned counsel further submitted that the marksheet Ex.P2, which was placed on record has not been duly proved as the Principal, who issued the marksheet was not examined at the trial. Learned counsel submitted that the prosecutrix's father the first informant Anil Puri PW12 is an employee in the Education Department and therefore, he misused his position and managed to procure the fraudulent school certificate from the private school being run by his neighbour PW7 Anil Sharma. Learned counsel thus submitted that the prosecution 12/39 failed to prove that the prosecutrix was below 18 years of age when she eloped with the appellant.
He placed reliance on a decision rendered by this Court in the case of Man Singh Vs. State of Rajasthan reported in 2008(3) RLW-2605 in support of his contentions and prayed that the appellant is entitled to an acquittal.
Learned Public Prosecutor on the other hand vehemently opposed the submissions of the learned counsel for the appellant. He urged that the prosecutrix was an immature young girl of just 13½ years when she was kidnapped and subjected to rape. He further stated that the prosecutrix clearly deposed in her sworn testimony that the accused had threatened her and that is why she gave a statement favourable to him when she was examined under Section 164 Cr.P.C because she feared retribution from the accused. Learned Public Prosecutor submitted that the case of consent as set up by the learned counsel for the appellant cannot be accepted in view of the fact that the prosecutrix was just 13½ years of age at the time of the incident and was not legally competent to give consent. He thus urged that the appeal deserves to be rejected.
Heard and considered the arguments advanced by the learned counsel for the appellant and perused the judgment impugned and the record.
Consent was the plea of the appellant in his 13/39 statement under Section 313 Cr.P.C. and in the arguments which advanced on his behalf. The trial judge vide para 25 of its judgement held that in view of the circumstances available on record, the consent of the prosecutrix was apparently implicit on the face of the record and rightly so in the opinion of this Court. Thus the limited sphere of consideration in which this court has to marshal and evaluate the facts is to examine, whether the prosecutrix was competent to give consent for the relations and if not then what would be the fate of the accused on count of the inability of the prosecutrix to give consent.
Before appreciating the argument regarding consent, it would be appropriate first to address the issue regarding the age of the prosecutrix. If the age of the prosecutrix is conclusively held to be less than 16 years, then the relevancy of her consent in the relations would be diminished as then, she would not be legally competent to give consent for either going away with the accused or for establishing physical relations thereby impairing the defence theory.
For the sake of convenience, some relevant portions of the statements of the prosecutrix PW2 and the first informant PW12 are being reproduced hereinbelow:
"प डब 2 मस. "ल"
"...ज धपर स जब हम ज पर ग थ तब म मर घर स रप व गहन लकर ग थ । म द अगठ"
14/39व व द गल क नकलस लकर ग थ । रप कर#ब हज$र द हज$र लकर ग थ ।...
...म%न 07/03/2011 क इसस श$द# क( थ क *कक इसन मझस कह$ कक मझस श$द# कर नह# त म तझ ज$न स म$र दग$।...
...मर पललस म. ब $न ह थ। पदश0 ड -2 म. ए स ब भ$ग "म%न और........ह% लस त स रहन लग" सन$ और कह$ कक ह म%न पललस क दद $ थ$ सव कह$ कक ह ब $न म%न मलजजम क कहन स दद $ थ$।...
...अमन मर सकल क आस प$स आत$ थ$ व मझ छडत$ थ$ व कहत$ कक मर स$थ घमन चल म%न मन$ कक $ त उसन धमक( द# कक म तझ व तर प$प$ क म$र दग$। ह ब$त म%न मर पललस ब $न म.
नह# बत$ । मर मजजस<ट क समक ब $न ह थ तब भ म%न ह ब$त नह# बत$ थ । सव कह$ कक इसन मझ डर$ $ व धमक$ $ इसलल नह# बत$ ।...
... ह ब$त सह# ह% कक मर प$प$ लशक$ ववभ$ग म. क$ र0 त ह% । मर छठ" स$तव क म$क0श ट पत$वल# म. नह# ह% ।...
... ह ब$त सह# ह% कक जजस सम मर मजजस<ट स$हब क समक ब $न हए थ उस सम म न$र# ननकतन म. थ । ह ब$त सह# ह% कक म ददन$क 22/03/2011 स ददन$क 27/03/2011 तक न$र# ननकतन थ व 28/03/2011 क न$र# ननकतन स आकर म%न मजजस<ट स$हब क प$स ब $न दद $ थ$। इन ददन* म. मलजजम मर स नह# लमल$ थ$। पदश0 प -5 म. म%न नह# ललख$ $ कक जब हम थ$न म. थ त इसन कह$ कक म त क%स भ छट ज$ऊग$ परनत तन मर फवर म. ब $न नह# दद त म तझ ज$न स म$र दग$।
... ह सह# ह% कक मजजस<ट स$हब क( पछत$छ म. म%न मर# उम 17 स$ल बत$ई थ । पदश0 ड -3 आदलशक$ पर ए स ब मर हसत$कर ह% । पदश0 ड -3 क( पशत पर आदलशक$ ददन$क 28.3.2011 ललख हई ह% ज पदश0 ड -4 ह% जजस पर भ ए स ब मर हसत$कर ह% ।
आदलशक$ ददन$क 23.3.2011 पदश0 ड -5 ह% जजस पर ए स ब मर हसत$कर ह% । ह ब$त सह# ह% कक इस कस क ह ज$न क ब$द ददन$क 09.05.2011 क एक प$थ0न$ पत मन अपन म$त$-वपत$ स लमलन क ललए सव0पथम प$थ0न$ पत दद $ थ$ ज पदश0 ड -6 ह% जजस पर ए स ब मर हसत$कर ह% । ह सह# ह% कक मन ज श$द# क( थ उसक फ ट ग$फ0स पदश0 ड -7 स लकर पदश0 ड -11 तक ह% । गव$ह क पदश0 ड -12, पदश0-13 एव पदश0 ड - 14 पत ददख$कर पछ$ ग $ कक ह पत आपक द$र$ ललख ग ह गव$ह न उतर दद $ कक ह पत म%न ललख ह% लककन मर स ललखव$ ग ह।...
... ह सह# ह% कक म%न घर स ज$न क ब$द ह कह$ थ$ कक मर# उम 17 स$ल स अधधक ह% तथ$ 09.4.2011 क म 18 स$ल क( ह ज$ऊग ।...
... ह सह# ह% कक म पदश0 ड -15 र$शन क$ड0 15/39 हम$र घर क$ ह% जजस म अपन स$थ लकर ग थ।
पदश0 ड -15 र$शन क$ड0 म. वर0 2001 म. मर# उम छ:
वर0 गलत अककत क( गई ह% । म अपन वपत$ क हसतललवप पहच$नत हN। पदश0 ड -16 प$थ0न$ पत पर मर वपत$ क( हसतललवप व फ ट ह जजस पर ए स ब मर वपत$ क हसत$कर ह% । ह सह# ह% कक पदश0 ड -16 प$थ0न$ पत म. मर वपत$ न मर# उम वर0 2001 म. छ:
वर0 ललख$ई थ । पदश0 प -5 ब $न ध$र$ 164 स आरप स म. म%न स स ड भ$ग म. ह ब$त ललख$ई थ कक म अलभ क क ड%ढ-द वर0 स ज$नत हN और उसस प $र करत हN। ब $न पदश0-5 क$ ई स एफ भ$ग "म अमन स ह# श$द# करन$ च$हत हN ........ व$पस नह# ज$ऊग ।" सन$ और कह$ कक ह ब$त मन मजजस<ट स$हब क ललख$ई थ । ब $न पदश0 प -5 क$ ज स एच भ$ग "अमन न कह$ ....... श$द# करन$ च$हत हN।" सन$ और कह$ कक ह भ$ग म%न मजजस<ट स$हब क ललख$ थ । ब $न पदश0 प -5 क$ आई स ज भ$ग "ज पर म. हम धम0श$ल$ ....... स$थ श$द# क( थ " ह ब$त गव$ह न सन$ और कह$ कक ह ब$त मन मजजस<ट स$हब क बत$ई थ । ब $न पदश0 प -5 क$ क स एल भ$ग "अमन न मर स$थ ------- मर कहन पर ह# कक $ थ$" सन$ और कह$ कक ह ब$त म%न मजजस<ट स$हब क ललख$ई थ । ब $न पदश0 प - 5 क$ एम स एन भ$ग "म%न अमन स कह$ ....... पश ह ज$त ह%" सन$ और कह$ कक ह ब$त म%न मजजस<ट स$हब क ललख$ई थ । ब $न पदश0 प -5 क$ ओ स प भ$ग "म इस नS अपल क ....... श$द# कह# ओर कहन$ च$हत ह।" सन$ और कह$ कक ह ब$त मन मजजस<ट स$हब क ललख$ई थ । ब $न पदश0 ड -5 क$ क स आर भ$ग "म%न सन$ थ$ कक व ....... रहग त मर ज$ऊग ।" सन$ और कह$ कक ह ब$त मन मजजस<ट स$हब क ललख$ई थ म%न मजजस<ट स$हब क पदश0 प -5 क ब $न क एस स प भ$ग म. अपन उम 17 वर0 ललख$ थ । पललस ब $न पदश0 ड -2 क$ स स ड भ$ग "घर स भ$गन क दSर$न ....... जगह क$ पत$ नह# ह%, सन$ और कह$ कक म%न ऐस$ ब $न पललस क ललख$ $ थ$। पललस ब $न पदश0 ड -2 क$ ई स एफ भ$ग "अब म%न अपन मजU स ....... घर नह# ज$न$ नह# ज$न$ च$हत हN" सन$ और कह$ कक म%न पललस क ललख$ $ थ$। क ट0 न मझ मर म$त$-वपत$ क सपद0 कक $ हआ ह% । ह कहन$ गलत ह% कक मर म$त$ वपत$ मर स$थ म$रप ट करत ह% और उन ल ग* न मझ नननह$ल भज दद $ ह । ह कहन$ गलत ह% कक मर म$त$-वपत$ मर स$थ म$रप ट करत ह इसललए म नन ह$ल रहन$ च$हत हN।...
...म 22 म$च0 स 2011 स 16.5.2011 तक न$र# ननकतन म. रह# हN। ह सह# ह% कक न$र# ननकतन म. रहन क दSर$न म%न अपन म$त$-वपत$ क स$थ ज$न स इनक$र कर दद $ थ$।"
16/39
"प .डब 12 अननल पर# " ह कहन$ सह# ह% कक पदश0 प .2 म. कब ह पम$ण पत ज$र# हआ, त$र#ख क$ हव$ल$ नह# ह%, खद कह$ कक त$र#ख क$ हव$ल$ नह# ह%, सत क$ हव$ल$ ह% । ह कहन$ सह# ह% कक पदश0 प . 2 पर जह$ पध$न$च$ 0 क( स ल लग ह%, उस स ल पर हसत$कर नह# ह%, सव कह$ म%न पष W पर हसत$कर ह% । गव$ह न कह$ कक एफ आई आर पदश0 प . 15 म. अककत नव न आदश0 ववद$मददर र$मचSक व जनमनतधथ 9.8.97 ह% क सबध म. इस सकल ब$बत पत$वल# म. दसत$वज नह# ह%, मन त पललस क दसत$वज दद $ थ$, पत$ नह# श$लमल कक $ $ नह#। ह सह# ह% कक पदश0 प .2 क सबध म.
कक मर# बचच पम ब$ल ननकतन म. पढत थ क$ अकन पदश0 प .2 म. नह# ह% , पललस ब $न म. भ मन ह ब$त नह# ललख$ई थ । पदश0. ड . 15 र$शन क$ड0 मर$ ह% , इसम. मर# पत क( उम छ: वर0 अककत ह% , ह र$शन क$ड0 2001 म. बन$ थ$, सव कह$ कक मर# पत क( उम इसम. मन नह# ललख$ई थ । पदश0 ड .16 म. मर# फ ट लग हई ह% ।...
...जनवर# 2011 म. $नन इस घटन$ स द म$ह पहल मर# पत क अमन भग$कर ल ग $ थ$। ह ब$त सह# ह% कक म%न ररप ट0 दज0 नह# कर$ई, सव कह$ कक हम ल ग पललस थ$न ग थ, ररप ट0 दज0 नह# कर#, अमन और "ल" क पकडकर, "ल" क मर हव$ल कर दद $ और अमन क उनक घर व$ल* क हव$ल कर दद $ थ$।...
... ह ब$त सह# ह% कक मर# लडक( अनपगढ म.
प%द$ हई थ । ह मझ $द नह# ह% कक जह$ पर मर# पत "ल" क$ जनम पम$ण पत बन$ $ ग $ थ$। ह कहन$ गलत ह% कक उस जनम पम$ण पत म. मर# पत क( उम अठ$रह वर0 ह न क क$रण मन व पललस म.
पश नह# कक $ ह ।...
... ह ब$त सह# ह% कक म उप-ननदशक, म$ध लमक लशक$ ज धपर क अध नसथ क$ 0 करत$ हN।
ह ब$त सह# ह% कक पक$श पत छवरल$ल ज$नत हररजन ननव$स लख$र$ बसत ज धपर न मर ववभ$ग स मर# श$द# क( त$र#ख व मर बचच* क जनम क सन क$ ब Sर$ म$गन हत मर ववभ$ग क दद $ थ$,जजस ब$बत व ककगत सचन$ क लल ववभ$ग द$र$ मर स पछ$ ग $ कक आवदनकत$0 क ह सचन$ ववभ$ग द$र$ द# ज$व $ नह#। ह ब$त सह# ह% कक म%न ववभ$ग क बत$ $ कक ह मर# व ककगत सचन$ ह%, ज आवदनकत$0 $ ककस क नह# द# ज$व। उप-ननदशक क$ पत कम$क 853 दद. 28.7.11 पदश0 ड . 27 ह% , इस पर ऐ स ब क$ व 0 $हक उप-ननदशक क हसत$कर ह% ।
... ह कहन$ गलत ह% कक मर ववभ$ग म. मर# व ककगत सचन$ अनस$र मर# श$द# क( त$र#ख 1994 स पहल क( ह और मर# पत क( उम अठ$रह वर0 स 17/39 ऊपर ह न$ दज0 ह , इस क$रण म%न सचन$ दन स इक$र कक $ ह ।...
... ह सह# ह% कक अननल शम$0 मर मSह ल म. रहत$ ह% ओर क$सटबल सत र भ मर मSह ल म. रहत ह% ।."
Certain relevant portions of the testimony of PW7 Anil Sharma the witness, who proved the school leaving certificate Ex.P10 are also reproduced hereinbelow:
"प .डब 7 अननल शम$0 "पदश0 प 10 पम$ण पत मर द$र$ त% $र कक $ ग $ ह% । ददन$क 8.4.11 क म पम ब$ल ननकतन उचच प$थलमक ववद$ल , पच मददर क$ धड$ फतहस$गर, ज धपर म. अध $पक व वपस पल क पद पर त%न$त थ$, "ल" न अध न हत सन 2000- 2001 म. कक$ नस0र# म. हम$र# सकल म. पवश लल $, "ल" क पवश$क 1002/2000-2001 ह% । "ल" क( जनम नतधथ ववद$ल पवश पत क अनस$र 09.08.1997 दज0 ह% , जजसन ददन$क 6.8.2000 क कक$ नस0र# म. पवश लल $ थ$ तथ$ ददन$क 30.4.08 क कक$ पचम उत ण0 कर अन त पवश हत ववद$ल छ ड$ थ$।...
... ह सह# ह% कक लटर पड क ई भ छपव$ सकत$ ह% ।."
... ह सह# ह% कक पवश सबध स$र# सचन$ए एस.आर.रजजसटर म. दज0 क( ज$त ह% । मन एस.आर.रजजसटर क( नकल पललस व$ल* क नह# द#। अजखद कह$ पललस व$ल* न कवल लटर पड ह# म$ग$ थ$। लटर पड पर सचन$ म$ग , ज मन द#।
...इस सकल क( म$ललक मर# म$त$ज ह% ।...
. ... ह सह# ह% कक अननल पर# मर$ पडSस ह% । ह गलत ह% कक "ल" मर# सकल म. नह# पढ# ह और मर$ सकल ह# नह# ह । ह सह# ह% कक प$ईवट सकल म.
पवश लल $ ज$त$ ह% त जनम पम$ण पत म$ग$ ज$त$ ह% लककन उस सम ह पचलन म. नह# थ$। ह सह# ह% कक पदश0 प 10 पर अननल पर# $ उसक पररव$र क ककस सदस क हसत$कर कक हए नह# ह% ।...
... ह सह# ह% कक पवश फ$म0 न $ $ल क( पत$वल# म. नह# ह% ।..."
(For protecting the victim's identity, her name has been replaced by "ल" wherever it is referred to in the statement) From the portions of the evidence which have been quoted above, certain very significant circumstances come to 18/39 fore. In the FIR Ex.P15 there is no reference that the prosecutrix ever studied in the Prem Bal Niketan Upper Primary School. It was mentioned in the FIR that the girl was studying in the 8th standard in Naveen Adarsh Vidhya Mandir, Ram Chowk. The prosecutrix in her sworn testimony did not mention that she had ever studied in the Prem Bal Niketan Upper Primary School. Anil Sharma, the Principal of Prem Bal Niketan Upper Primary School admitted that the first informant is his neighbour. The school is owned by his mother. Admittedly, the scholar register of the school as well as the admission form regarding the admission of the prosecutrix in this school were not procured during investigation and were not proved at the trial. The first informant Anil Puri is an employee in the Education Department and a specific suggestion was given to him regarding departmental influence having been used for fraudulently procuring the certificate Ex.P10. No document issued by the Naveen Adarsh Vidhya Mandir, Ram Chowk school where the prosecutrix last studied as per the F.I.R was placed on record for proving her date of birth. The prosecutrix in her cross-examination admitted that while going away from her home she had taken the family Ration Card Ex.D15 with her. In the said Ration Card, which was prepared in the year 2001, her age was mentioned as 6 years. The Ration Card application form Ex.D16 was proved by the defence by putting 19/39 the same to the prosecutrix as well as Anil Puri PW12 and it was admitted by both the witnesses that in the said Ration Card application form submitted in the year 2001, the age of the prosecutrix was mentioned as 6 years. In the Ration Card Ex D.15 issued in the year 2001, the prosecutrix is shown to be the eldest child of the first informant Anil Puri and her age is recorded as 6 years. The first informant Anil Puri and his wife PW1 Smt.Vimla claimed that they were married in the year 1994. Therefore, the possibility of the prosecutrix being born in the year 1995 is not ruled out. This fact gains corroboration from the Ration Card application form Ex.D16, wherein the age of the prosecutrix is mentioned in the year 2001 as being 6 years. An attempt was made on behalf of the accused to procure the date of marriage of the complainant and the age of his children in his service record by filing an application under the Right to Information Act but the first informant objected the said attempt and accordingly the application rejected by the complainant's employer, the Education Department. When a question arises regarding the determination of the age of the victim, the provisions of Juvenile Justice Act would be applicable and the age would have to be determined as per the Rule 12 of the Juvenile Justice Rules.
The Hon'ble Apex Court considered this issue in the case of Jarnail Singh Vs. State of Punjab reported in 2013 20/39 (9) JT (SC)-374 and held as below:
"20. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The afore stated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"12. Procedure to be followed in determination of Age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) 21/39 first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either
(i), (ii) or (iii) of Clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the Clauses (a) (i), (ii), (iii) or in the absence whereof, Clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in Sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
22/39(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in Sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in Sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12 (3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a 23/39 minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
Thus, in order to prove the age of the victim, first priority is to be given to the matriculation certificate issued by the Board. If the matriculation certificate is unavailable then, the age is to be determined by the method provided in Section 35 of the Evidence Act. For this purpose, the original school record i.e. admission form of the student and the entry made in the Scholar Admission Register of the school first attended has to be proved by evidence of the person who got the child admitted in the school as well as the principal/authorised person of the school.
24/39
The Hon'ble Apex Court considered the issue in the case of Biradmal Singhvi Vs. Anand Purohit reported in (1988) Supp SCC 604 and held as below:
"To render a document admissible under Section 35, three conditions must be satisfied firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country see Jagan Nath v. Moti Ram, AIR 1951 Punjab 377, Sakhi Ram v.
Presiding Officer, Labour Court, North Bihar, Muzzafarpur, AIR 1966 Patna 459, Ghanchi Vora Samsuddin Isabhai v. State of Gujarat, AIR 1970 Guj 178 and Radha Kishan Tickoo v. Bhushan lal Tickoo, AIR 1971 J and K 62. In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register on in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register of secondary school certificate has no 25/39 probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Sri Jagannath Prasad, (1969) 42 ELR 465 (All), K. Paramalali v. L. M. Alangaram, (1967) 31 ELR 401 (Mad ), Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958) 14 ELR 386 (Bom)."
The same issue arose before the Hon'ble Apex Court in the case of Ravindra Singh Gorki Vs. State of U.P. reported in (2006)5 SCC 584, wherein it was held as below:
"21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.
22. Mr. Mishra, however, would urge that while in a civil dispute a strict proof may be necessary, in a criminal case and particularly in the case of a juvenile, the court may consider any evidence which may be brought on records by the parties. We do not agree.
23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the 26/39 country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country, and (iv) all persons concerned indisputably must have an access thereto.
24.A question was raised as to whether the determination of the age of a child should be made on the basis of the date on which the occurrence took place or when, he was produced before the court.
The said question came up for consideration in the context of the provisions of the Juvenile Justice Act, 2000 before a Constitution Bench in Pratap Singh v. State of Jharkhand and Anr. [2005 (3) SCC 551]. It was held that the date of commission of the offence would be the relevant date.
25. In terms of the aforementioned decision of the Constitution Bench such determination is required to be made even if at the relevant time, the juvenile crossed the age of eighteen years. In absence of any other statute operating in the field, Section 35 will have application and the court, while determining such age would depend upon the materials brought on records by the parties which would be admissible in evidence in terms of Section 35 of the Act.
xxx
29. We, however, notice that in Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714), as regard applicability of the provision of Section 35 of the Indian Evidence Act, 1872 vis-a-vis a school register, it was stated:
"19. It is not disputed that the 27/39 register of admission of students relied upon by the defence is not maintained under any statutory requirement. The author of the register has also not been examined. The register is not paged (sic) at all. Column 12 of the register deals with "age at the time of admission". Entries 1 to 45 mention the age of the students in terms of years, months and days.
Entry 1 is dated 25-1-1988 whereas Entry 45 is dated 31-3- 1989. Thereafter except for Entry 45, the page is totally blank and fresh entries are made w.e.f. 5-1-
1990, apparently by one person up to Entry 32. All entries are dated 5-1-1990. The other entries made on various dates appear to have been made by one person though in different inks.
Entries for the years 1990 are up to Entry 64 whereafter entries of 1991 are made again apparently by the same person. Entry 36 relates to Rajnath Chauhan, son of Firato Chauhan. In all the entries except Entry 32, after 5-1-1990 in column 12 instead of age some date is mentioned which, according to the defence is the date of birth of the student concerned. In Entry 32 the age of the student concerned has been recorded. In column 12 again in the entries with effect from 9-1- 1992, the age of the students are mentioned and not their dates of birth. The manner in which the register has been maintained does not inspire confidence of the Court to put any reliance on it.
Learned defence counsel has also not referred to any provision of law for accepting its authenticity in terms of Section 35 of the Evidence Act. The entries made in such a register cannot be taken as a proof of age of the accused for 28/39 any purpose."
30. We are, however, not oblivious of a decision of this Court in Bhola Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially-oriented legislation, such a plea should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the said benefit would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on records.
31.The aforementioned decisions have been noticed by this Court in Zakarius Lakra and others v. Union of India and another [(2005) 3 SCC 161], wherein a Bench of this Court while entertaining an application under Article 32 of the Constitution of India opined that although the same was not maintainable, but having regard to the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388], the review petition should be allowed to be converted into curative petition. [See also Raj Singh v. State of Haryana (2000) 6 SCC 759].
32. We are, however, not concerned in this case with such a situation.
33. The deposition of the Headmaster of the school in this case did not satisfy the requirements of the law laid down in the aforementioned decisions.
34.Mr. Mishra, however, relied upon Umesh Chandra v. State of Rajasthan [(1982) 2 SCC 202]. Therein a register maintained by a public school of repute had been produced. This Court relied thereupon, opining that Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a public school maintains 29/39 a register in ordinary course of business, the same would be admissible in evidence.
35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon. xxxx
37.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 minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of the 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 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.
30/39
38. We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted."
Similar view was expressed by the Hon'ble Apex Court in the case of Babloo Pasi Vs. State of Jharkhand & Anr. reported in (2008) 13 SCC 133, wherein Hon'ble Apex Court held as under:
"21. From the afore-extracted orders of the Board as well as the High Court, it is manifest that the question of determination of age of the accused has been decided by both the Courts in a casual manner, ignoring the principles of law on the subject.
22. Insofar as the Board is concerned, it is evident that it has mechanically accepted the entry in Voters List as conclusive without appreciating its probative value in terms of the provisions of Section 35 of the Indian Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register, record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely : (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and
(iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law.An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Actbut the entry regarding the age of a person in aschool register is of not much evidentiary value to prove the age of the person in the 31/39 absence of the material on which the age was recorded. (See : Birad Mal Singhvi v.
Anand Purohit)"
As the prosectrix had studied only upto the eighth standard there is no question of the matriculation certificate being available. Thus, it was essential for the prosecution to lead evidence as per Section 35 of the Evidence Act to prove the age of the girl. This was all the more essential because the school leaving certificate, which the prosecution chose to rely upon was issued by a private school and thus it was not even a public document, which could be admitted under Section 74 of the Evidence Act.
Admittedly, in this case, neither the original scholar register nor the admission form on the strength whereof the prosecutrix was first admitted in the school were proved on record by the prosecution.
As a result of the aforesaid discussion, this Court has no hesitation in arriving to the conclusion that the prosecution has failed to prove that the prosecutrix was below 16 years of age at the time of the occurrence.
Contrary to this, the accused on the strength of the documents Ex.D15 and D16 and the admissions made by the witnesses PW1 Smt.Vimla, PW2 the prosecutrix and PW12 Anil Puri the first informant has been able to create a doubt that the prosecutrix was above 16 and nearly 18 years of age on the date of the occurrence. The prosecution deliberately 32/39 withheld material documents, which were essential and relevant for proving the age of the prosecutrix. The finding recorded by the learned trial Judge that the documents pertaining to the initial admission of the prosecutrix in the school were proved by the prosecution for establishing her date of birth as 09.04.1997 is obviously incorrect. The witness Anil Kumar Sharma PW7 admitted that the original scholar was not submitted to the Investigating Officer. The Investigating Officer PW16 Datar Singh admitted that the record regarding the initial admission of the prosecutrix in the school was not procured during investigation. The Investigating Officer also admitted that he requested the first informant to submit the birth certificate but he avoided to produce the same. PW1 Smt.Vimla admitted in her cross-
examination that the birth certificate of the prosecutrix was prepared at Anoopgarh. The birth certificate was a vital piece of evidence and was withheld by the prosecution. In this view of the matter, the finding recorded by the learned trial Judge that the prosecutrix was below 16 years of age on the date of the occurrence cannot be accepted. The defence case that the prosecutrix was above 16 years of age on the date of the occurrence deserves to be accepted.
It is the firm opinion of this court that in view of the nature of the allegations and counter allegations, the aspersion cast on the veracity of the certificate Ex.P10 and the 33/39 marksheet Ex.P2 by the girl herself while giving statement under section 164 Cr.P.C and as per the requirement of Section 35 of the Evidence Act, proof of the girl's age by producing the original scholar register and the admission form was essential before at any conclusion regarding her age could be arrived at. In view of the proposition of law as propounded by the Apex court in the decisions quoted above, this court is of the opinion that the finding recorded by the trial court regarding the age of the prosecutrix being 13½ years is illegal as the prosecution did not lead appropriate evidence required as per law to prove her age.
Another aspect which is required to be considered is that even if the age of the prosecutrix recorded in the school leaving certificate Ex.P.2 and the marks sheet Ex.P.10 is taken to be correct then what would be its impact on the theory of consent raised by the appellant. It is significant to note that the prosecutrix and the accused after living together at Jaipur for seventeen days at Jaipur, voluntarily appeared before the Police Officer on 22.3.2011. On that day, she stated before the police officer that the relations between herself and the accused were consensual. She refused to go with her parents on which she was sent to the Nari Niketan.
The prosecution thereafter sought her examination under Section 164 Cr.P.C. and she was produced before the learned Magistrate on 28.3.2011. She remained at the Nari Niketan for 34/39 a period of five days before being brought to the Court for being examined under Section 164 Cr.P.C. During this period, she was free from all external influences either of the accused (who was in custody) or of her parents. On her production before the Magistrate, she gave the deposition Ex.P5. Some relevant portions of Ex.P5, which were exhibited and marked as C to D, E to F, G to H, I to J, K to l and M to N at the trial are reproduced hereinbelow:
"पदश0 प 5 "स स ड - म ववश$ल गनद ऊफ0 अमन क वपछल 1½ - 2 वर0 स ज$नत हN तथ$ प $र करत हN।"
"ई स एफ - म अमन स ह# श$द# करन$ च$हत थ । मन 6.3.11 क अमन क फ न कक $ कक तन मझस श$द# नह# क( त म suicide कर लग ।
तथ$ इस ललए म घर स ननकल# हN तथ$ व$पस नह# ज$ऊग ।"
"ज स एच - अमन न कह$ कक त ऐस$ मत करन$, म आ रह$ हN। अमन न आकर मझ कह$ कक त एक ब$र अचछ" तरह स च ल त मन कह$ कक मन स च लल $ ह%, म तर स$थ ह# श$द# करन$ च$हत हN।"
"आई स ज - ज पर म. हम एक धम0श$ल$ म.
रक। ज पर म. ककस मददर म. हमन अपन इचछ$ स श$द# क(। अमन ऊफ0 ववश$ल न श$द# क ललए क ई जबदरसत नह# क(, न ह# घर स भ$गन क ललए क ई जबरदसत क(, म अपन इचछ$ स ह# उसक स$थ ग थ तथ$ इचछ$ स ह# उसक स$थ श$द# क( थ ।"
"क स एल - अमन न मर स$थ मर# मजU स श$द# स पहल एक ब$र तथ$ श$द# क ब$द एक ब$र श$र#ररक सबध बन$ थ। उसन क ई जबरदसत नह# क( थ । उसन सब मर कहन पर ह# कक $ थ$।"
"एम स एन - म%न अमन स कह$ कक 09 अपल क म 18 स$ल क( ह ज$ऊग , इसललए अपन चलकर पललस क स$मन पश ह ज$त ह।"35/39
These portions were put to the prosecutrix in her cross-examination and she candidly admitted to have given such statement to the Magistrate. When being confronted with these portions of her statements Ex.P5, she offered an explanation that the deposition was made by her under the pressure of the accused. The explanation is apparently false.
She also admitted that she wrote the love letters Ex.D12, Ex.D13 & Ex.D14 to the accused but offered an explanation that she had been made to write those letters. However, she conveniently omitted to clarify as to who had made her to write the letters. It is very significant to mention here that the first informant submitted a photograph Ex.P16 while filing the report Ex.P15. In that photograph and the photographs of marriage between the appellant and the prosecutrix, which have been proved as Ex.D7 to D11, notable is a remarkable difference in the physique and appearance of the prosecutrix.
Whereas in Ex.P16 the girl appears to be of a very tender age but in the photographs of marriage, she appears to be fairly mature. In the love letter Ex.D12 she demanded a mobile sim from the accused so that she could call him. The language, which has been written by the prosecutrix in these letters reflects her deep rooted infatuation with the accused. It no where appears from a reading of the love letters Ex.D12, Ex.D13 & Ex.D14 that anybody forced or pressurized her to write the letters. Significant is the fact that when the 36/39 prosecutrix was examined under Section 164 Cr.P.C. she disclosed her age to be 17 years. During her cross-
examination, she admitted that while leaving her father's house, she informed the accused that she was more than 17 years of age and that she would be completing 18 years on 9.4.2011. She carried with her the family ration card as a proof of her age. Therefore, two possible scenarios arise on the horizon; firstly that the prosecutrix was definitely above 16 years of age on the date she eloped with the appellant and secondly, even if she was below 16 years, then too, she misled the accused to believe that her age was above 16 years by giving him a false information. The conduct of the prosecutrix in taking cash, ornaments and the family Ration Card while departing from her father's house clearly shows that the prosecutrix in a determined fashion planned and designed the affairs in such a way that the accused would be convinced to agree and oblige her in achieving the objective of elopement at any cost. He was in no position to entertain any doubt that the information given by the prosecutrix about her age was untrue. The admitted potions of the statement of the prosecutrix Ex.P5 recorded by the learned Magistrate under Section 164 Cr.P.C on 28.3.2011, which have been reproduced above lead to an irrefutable conclusion that it was the prosecutrix who virtually forced the accused to go with her and then married him at Jaipur. The accused even tried to 37/39 parry her advances and tried to convince her not to take the hasty step but she remained adamant and even threatened that she would commit suicide if her demand was not acceded to.
The trial Judge in para 25 of the judgment observed that the prosecutrix eloped with the appellant once before the incident at hand. He rightly concluded that the statement of the prosecutrix recorded under Section 164 Cr.P.C. i.e. Ex.P5 was voluntary and was not rendered ed under pressure as alleged by her in the court. As this Court has held the age of the prosecutrix to be above 16 years, it would necessarily follow in view of this finding and the finding recorded by the learned trial Judge in para 25 of the judgment, which has been referred to above, that the relations between the prosecutrix and the accused appellant were consensual and resultantly, his conviction for the offence under Section 376 I.P.C. is liable to be set aside.
Since the prosecutrix was below eighteen years of age, the question regarding the offence of kidnapping still remains to be answered. As has been observed above and as held by the learned trial Judge also, the statement of the prosecutrix Ex.P5 deposed under section 164 Cr.P.C to the Magistrate has been held to be voluntary. In the said statement, the prosecutrix clearly stated that it is she who forced the accused to go with her rather than the other way 38/39 round. In view of the aforesaid factual scenario, the accused can also not be held guilty of having kidnapped the prosecutrix from the lawful guardianship of her father because it is not a case of the accused taking away the prosecutrix from the guardianship of her father but rather it is the other way round. As has been observed above, the accused was himself was a young boy of 18½ years on the date of the occurrence and in all probability, he fell for the assurance given by the prosecutrix that she was about to complete 18 years of age. The Ration Card Ex.D15, wherein the age of the prosecutrix was mentioned as 6 years in the year 2001 was sufficient to convince the young boy that he was going away with a girl mature enough to understand the implications of her actions. Thus there was no mensrea in his action of going away with the prosecutrix, marrying her and having physical relations.
Therefore, the conviction of the appellant for the offences under Section 363, 366 and 376 I.P.C. as recorded by the learned trial Judge can not be sustained and is liable to be set aside.
The upshot of the above discussion is that the appeal deserves to be accepted and is hereby allowed. The judgment dated 28.1.2012 passed by the learned Additional Sessions Judge (Fast Track) No.1, Jodhpur Metro in Sessions Case No.50/2011, whereby the appellant was convicted and 39/39 sentenced for the aforesaid offences is set aside. The appellant is acquitted of all the charges. He is in custody, he shall be at liberty forthwith if not wanted in any other case.
(SANDEEP MEHTA), J.
/tarun/