Rajasthan High Court - Jaipur
Raju @ Rajkumar vs State Of Rajasthan Through Pp on 11 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 716 / 2016
Raju @ Rajkumar Son of Shri Pramod, by Caste Gaudh, R/o
Luhari, Police Station Kotwali, Dhaulpur. (at Present Confined in
District Jail, Dhaulpur)
----Appellant
Versus
State of Rajasthan Through P.P.
----Respondent
_____________________________________________________ For Appellant(s) : Mr. Ashish Devessar.
For Respondent(s) : Mr. R.R. Gurjar, PP _____________________________________________________ HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Judgment / Order REPORTABLE 11/08/2017
1. This appeal has been preferred on behalf of accused- appellant Raju @ Rajkumar to challenge the judgment dated 27.6.2016 passed by the learned Sessions Judge, Dholpur in Sessions Case No.181/2013. Learned trial court has convicted the accused - Rajkumar for the offences punishable under Sections 363, 366A, 376 IPC as also for the offence punishable under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 ('POCSO Act'). The accused was sentenced for the aforesaid offences in the following manner :-
1. Section 363 IPC For Three years rigorous imprisonment and fine of Rs.1000/- and in default of payment of fine further to undergo one month simple imprisonment.
2. Section 366A IPC For Five years rigorous (2 of 14) [CRLA-716/2016] imprisonment and fine of Rs.3000/- and in default of payment of fine further to undergo three months simple imprisonment.
3. Section 376 IPC For Seven years rigorous imprisonment and fine of Rs.5000/- and in default of payment of fine further to undergo six months simple imprisonment.
4. Section 4 of POCSO Act For Seven years rigorous imprisonment and fine of Rs.5000/- and in default of payment of fine further to undergo six months simple imprisonment.
2. Heard learned counsel appearing for the accused-
appellant as also learned Public Prosecutor. Perused the judgment impugned and material available on record.
3. Briefly stated, the facts of the case are that PW-3 Bhagwan Singh filed a written report Ex.-P/5 on 10.11.2013 at Mahila Police Station, Dholpur stating therein that on 8.11.2013 his niece, aged about 14 years, went to the field adjoining the village to attend natural call in the morning. The accused- Rajkumar, his mother - Sheela, grand-mother and father - Pramod kidnapped his niece with some malafide intention. On tracing, sister-in-law of complainant namely Guddi told him that the girl had gone to attend natural call alongwith mother and grand-mother of the accused and thereafter did not return. Dayashankar also stated to have seen the girl (prosecutrix) going out of the village alongwith Rajkumar, Sheela, Pramod and grand-
(3 of 14) [CRLA-716/2016] mother of Rajkumar. On making inquiry, Sheela and grand-mother of Rajkumar admitted that Rajkumar had taken away niece of the complainant. On the said report, FIR No.275/2013 was lodged for the offences punishable under Sections 363 and 366A IPC. After investigation, charge-sheet came to be filed against Raju @ Rajkumar for the offences under Sections 363, 366A and 376 IPC as also under Section 3/4 of the POCSO Act.
4. During trial, prosecution examined as many as 08 witnesses and produced 14 documents. The accused was examined under Section 313 Cr.P.C., wherein he denied the prosecution evidence. No witness was examined in defence by the accused, but 04 documents were exhibited. After concluding the trial, learned trial court convicted the accused and sentenced him in the manner aforesaid.
5. During arguments, learned counsel for the accused- appellant has stated that learned trial court has wrongly arrived at the conclusion that the prosecutrix was minor in age at the time of alleged incident. Though, learned trial court after critically examining the prosecution evidence, concluded that the prosecutrix was a consenting party in making sexual relation with the accused, but has ignored this aspect on the ground that consent of a minor girl is immaterial. Learned counsel has vehemently argued that the conclusion drawn by the learned trial court in regard to the age of the prosecutrix is absolutely misconceived and in complete ignorance of the relevant evidence. His argument is that the presumption drawn by the learned trial (4 of 14) [CRLA-716/2016] court in view of Section 29 of the POCSO Act is also irrelevant because the prosecutrix was not of minor age.
6. Learned counsel for the accused-appellant has placed reliance on the following judgments to support his argument that the age of the prosecutrix has not been correctly determined by the learned trial court :-
(I)- Birad Mal Singhvi v. Anand Purohit, reported in AIR 1988 SC 1796.
(II)- Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr., reported in AIR 2004 SC 175.
(III)- Ravinder Singh Gorkhi v. State of U.P., reported in AIR 2006 SC 2157.
(IV)- Alamelu and Anr. v. State, Represented by Inspector of Police, reported in AIR 2011 SC 715.
(V)- Jeev Rakhan v. State of M.P., reported in 2004 CRI.L.J. 2359.
7. Per contra, learned Public Prosecutor has submitted that learned trial court has correctly come to the conclusion that the prosecutrix was minor in age at the time the alleged incident took place. He has stated that learned trial court has elaborately discussed the evidence and mentioned the grounds on which it has arrived at its conclusion. There is no illegality in the conclusion drawn by the learned trial court. He has also submitted that in such situation, consent of the prosecutrix is of no consequence. Learned trial court has correctly held the accused liable for the offence under Section 376 IPC as also under Section 3/4 of the (5 of 14) [CRLA-716/2016] POCSO Act. In view of the above, he submits that the appeal does not deserve to be allowed.
8. I have critically examined the judgment impugned in light of the arguments advanced by the rival sides and also on the basis of material available on record.
9. Learned trial court has based its conclusion regarding age of the prosecutrix on the evidence given by the prosecutrix (PW-1), her mother Guddi (PW-2), father - Bhagwan Singh (PW-
3). PW-1 stated her age to be 14 years, while disclosing her date of birth as 12.3.1999. The alleged incident took place on 8.11.2013. Learned trial court has thus inferred that the age of the prosecutrix has been correctly stated by her as 14 years. It has also been stated by learned trial court that the prosecutrix has stated this age in police statement Ex.-D/2 as also in the statement recorded under Section 164 Cr.P.C. Ex.-P/4. It has also been observed by learned trial court that the defence counsel has himself put the suggestion to the prosecutrix in her cross- examination that she had correctly deposed her statement in Ex.- D/1 and Ex.-P/4. On the basis of this suggestion of the defence counsel, learned trial court has concluded that the defence is also agreed to the fact that the age of the prosecutrix was 14 years.
10. I am not convincing with the reasoning given by the learned trial court in this regard. As per the provisions contained in Section 162 Cr.P.C. any part of the statement of the prosecution witness given in the course of investigation, may be used, with the permission of the court, by the prosecution to contradict such witnesses in the manner provided by Section 145 of the Indian (6 of 14) [CRLA-716/2016] Evidence Act. Section 162 specifically restricts the use of previous statement of the witness to the extent permissible under proviso to Section 162. It is important to note that no such permission was obtained by the prosecution to use the previous statement of the prosecutrix to contradict her. Further, the defence side has also not put any suggestion to the prosecutrix PW-1 in respect of her statements Ex.-D/1 and Ex.-P/4 with regard to disclosure about her age. The defence side has not drawn attention of the prosecutrix to the specific part of her statement in which the fact of her age was stated by her, to contradict her on that aspect as required in Section 145 of the Indian Evidence Act. In view of this, the manner in which the learned trial court has drawn its conclusion on the basis of admission allegedly made by the prosecutrix in Ex.-D/1 and Ex.-P/4 is not found in consonance with the provisions of Section 162 Cr.P.C. and Section 145 of the Indian Evidence Act.
11. On considering the evidence given by mother of the prosecutrix PW-2 Guddi and her father PW-3 Bhagwan Singh, it is found that both of them have admitted that their marriage took place about 25-26 years ago. They have stated that the prosecutrix was born after 5-6 years of their marriage. In view of it, age of the prosecutrix comes to be about 20 years. This plea was also raised by learned counsel for the accused before the learned trial court. But it was discarded on the premise that PW-2 is an illiterate lady, coming from a rural background. It was also mentioned that her statement was made purely on estimation, but in my view, the reason assigned by the learned trial court does (7 of 14) [CRLA-716/2016] not appear convincing in view of the fact that both the parents of prosecutrix have averred the same statement. The statement of PW-2 cannot be brushed aside on the ground that she is an illiterate lady. Further, when her statements get corroborated by her husband, there was no convincing reason for the trial court to ignore it. It has been held by the Hon'ble Supreme Court in the judgments relied upon by learned counsel for the appellant as referred above that parents are the best witnesses to depose about the age of their daughter. Since the statements of parents, PW-2 and PW-3, are contrary to the remaining evidence produced by the prosecution, such evidence cannot be relied and credence is to be given to the evidence of parents. On this ground, the prosecutrix cannot be considered to be of minor age at the relevant point of time.
12. Learned trial court has also based its conclusion on certificate Ex.-P/10 issued by the Head Master, Government Secondary School, Luhari (Dholpur). In the aforesaid certificate date of birth of the prosecutrix has been stated to be 12.3.1999 as per the school record.
13. Learned counsel for the accused-appellant has strenuously argued that this certificate Ex.-P/10 cannot relied in view of the provisions contained in Sections 35, 61 & 62 of the Indian Evidence Act ('the Act'). His submission is that as per Section 61 of the Act, the contents of the documents may be proved either by primary or by secondary evidence. He submits that Ex.-P/10 cannot be considered as primary evidence in view of the fact mentioned therein that the date of birth is stated to be (8 of 14) [CRLA-716/2016] 12.3.1999 on the basis of school record. No such school record has been produced in prosecution evidence, which in fact, was primary evidence. His next limb of argument is that the secondary evidence can be produced only in the situation provided under Section 65 of the Act, but no such case was established by the prosecution for using the secondary evidence as a proof of date of birth of the prosecutrix. Section 64 of the Act makes it imperative that the documents must be proved by primary evidence except in the cases provided in Section 65. On perusal of the material available on record, I feel no hesitation in agreeing with the arguments advanced by the learned counsel that Ex.-/10 cannot be relied on in regard to age of prosecutrix. The admission form of the prosecutrix which is usually filled by the parents or guardian of the student has not been produced in the prosecution evidence. That document could have been treated as primary evidence. No question has been put to the mother and father of the prosecutrix PW-2 and PW-3 respectively, with regard to the admission of the prosecutrix in the said school and about disclosing her date of birth in the school record. Even the Head Master of the school, who has issued certificate Ex.-P/10 has not been examined. Only PW-8 Prabhu Dayal, who had been investigating officer of the case has tendered the certificate Ex.-P/10 into evidence. He has also admitted in the cross-examination that the admission form and the Scholar register of the school were not obtained by him during investigation. He has also admitted that the statement of the person issuing Ex.-P/10 was not recorded. In view of the above, (9 of 14) [CRLA-716/2016] no reliance can be placed on Ex.-P/10 in respect of the date of birth of the prosecutrix.
14. In this regard, it will be appropriate to look into the judgments relied upon by learned counsel for the accused- appellant, which clearly fortify my view. In Birad Mal Singhvi v. Anand Purohit (supra), the Hon'ble Supreme Court held as under :-
"14. ................................................................................................ The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. ................................................................................................
15. ............................................................................................. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, specially enjoined by the law of the country, is itself the relevant fact. 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 the material on which the age was recorded.
............................................................................................................ "
15. In Ravinder Singh Gerkhi v. State of U.P. (supra), the Hon'ble Supreme Court observed as under :-
"17. The school leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1.8.1967 and his name was struck off from the (10 of 14) [CRLA-716/2016] roll of the institution on 6.5.1972. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Head Master that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced."
16. In Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. (supra), the Hon'ble Supreme Court has observed as follows :-
"16. ................................................................................................ The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. ..................................................................................................."
17. Relying upon Birad Mal Singhvi v. Anand Purohit (supra), the Hon'ble Supreme Court has held in Babloo Pasi v. State of Jharkhand and Anr., reported in (2008) 13 SCC 133 at para 28 as follows :-
"28. 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 Act but the entry regarding 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 the material on which the age was recorded."
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18. In Jeev Rakhan v. State of M.P. (supra),the Hon'ble Supreme Court observed as follows :-
"12. Dalbir Prasad (PW-5) who is the Head Master of the school and who had issued certificate Ex.P/3, has categorically stated that on the basis of the school record, he has given the certificate. Thus, one can safely say that Ex. P/3 is not a primary evidence because, it has been prepared on the basis of some other document. It has been admitted by this witness that admission form of the prosecutrix was submitted in the school which bears the date of birth of the prosecutrix. According to me the admission form on the basis of which certificate Ex. P/3 is prepared is primary evidence which has not been produced in the Court. As the primary evidence has not been produced in the Court, Ex. P/3 which is a certificate and is prepared on the basis of some other document, has no evidentiary value in the eyes of law and thus, the prosecution can not take any advantage of this document which according to me is inadmissible in evidence. There is nothing on record so as to indicate that the primary evidence was lost and if that be the position, secondary evidence is not permissible."
19. On carefully going through the principles laid down by the Hon'ble Supreme Court in the above stated judgments, it clearly comes out that the evidence produced by the prosecution in regard to age of the prosecutrix is neither legally admissible nor reliable. School Certificate Ex.-P/10 cannot be considered a primary evidence in the absence of the admission form and scholar register of the school. Not examining the Head Master, who has issued Ex.-P/10 is also serious lacuna. Thus, the reliance which has been placed by the learned trial court on Ex.-P/10 is not convincing and cannot be sustained.
20. It is also important to note that the investigating officer has admitted that no other inquiry was made by him regarding age of the prosecutrix except the school certificate. Learned counsel for the appellant has drawn attention of the Court to Section 27 of the POCSO Act. The relevant part of this Section is reproduced below :-
(12 of 14) [CRLA-716/2016] "27. Medical examination of a child.- (1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Code of Criminal Procedure, 1973.
(2)- In case the victim is a girl child, the medical examination shall be conducted by a woman doctor. (3)- ............................................................................................. (4)- .........................................................................................."
21. Section 164A of Cr.P.C. also mandates the medical examination of the victim of rape. But it is shocking to note that despite these mandatory provisions, medical examination of the prosecutrix with regard to her age was not conducted. Thus, the prosecution has committed a serious lapse in not obtaining the evidence in respect of age of the prosecutrix as required under Section 27 of the POCSO Act.
22. Learned trial court has given credence to the certificate Ex.-P/10 on the basis of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 ('the Rules of 2007'). Learned counsel for the accused has argued that the provisions contained in these Rules are not relevant for determination of age of victim of rape. On bare perusal of sub-rule (3) of Rule 12 of the Rules of 2007, it is found that it is applicable in respect of a child or juvenile in conflict with law and not to the victim of any offence. Thus, I find my self in agreement with the arguments advanced by learned counsel for the accused. So on this count also, the conclusion drawn by learned trial court on the basis of Rule 12(3) of the Rules of 2007 does not appear to be in compliance of the relevant laws.
(13 of 14) [CRLA-716/2016]
23. Learned trial court has not considered the judgment referred by learned counsel for the accused Sunil v. State of Haryana, reported in 2010 Cr.L.R. (SC) 68 on the ground that the prosecutrix studied only for 100 days in the school, so the school certificate was not relied upon in the facts and circumstances of that case. But the reason assigned by learned trial court appears to be ill-founded. Likewise, judgment referred by the defence side Pradeep Kumar v. State of Rajasthan, reported in 2007(3) RCC 953 (Raj.) was also not considered by the learned trial court on the ground that the incident took place prior to coming into force the Rules of 2007. This reason is also not found convincing as the Rules of 2007 are not at all applicable in determining the age of the victim of rape.
24. In view of the above discussion, the prosecutrix is not found proved to be a child as defined in Section 2(d) of the POCSO Act. Thus, the presumption drawn by the learned trial court as per Section 29 of the POCSO Act is not legally sustainable as it applies only when the offence is committed against a child.
25. Learned trial court has itself observed that looking to the statements of the prosecutrix, there is no hesitation to state that the prosecutrix was a consenting party in respect of the sexual intercourse. But on the ground that consent of a minor girl is of no consequence, the Court has convicted the accused for the offences under Section 376 IPC and Section 3/4 of the POCSO Act. But after having concluded that the prosecution has failed to prove that the prosecutrix was minor in age, basis of convicting the accused persons for the aforesaid offences is clearly washed away.
(14 of 14) [CRLA-716/2016] Further, the learned trial court has convicted the accused for the offences under Sections 363 and 366A of IPC. Basic ingredients of these offences are also the minority of the victim. So no ground remains to uphold the conviction for these offences also, as the prosecutrix is found to be of major age.
26. In light of the above, the conviction recorded by the learned trial court against the accused-appellant for the offences under Sections 363, 366A and 376 IPC and under Section 3/4 of the POCSO Act cannot be sustained as the prosecutrix is not found proved to be minor in age. Further, she had been a consenting party in the sexual intercourse with the accused.
27. In the result, the appeal preferred by the accused- appellant is allowed and the judgment dated 27.6.2016 passed by the learned trial court is quashed and set-aside.
(DEEPAK MAHESHWARI)J. Rm/-