Rajasthan High Court - Jaipur
Ganpat vs State Of Rajasthan Through P P on 8 February, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Criminal Appeal No. 134/2013
Ganpat S/o Late Shri Bhanwar Lal, by caste Khatik R/o Police
Station Ajeetgarh, Tehsil Bheem, District Rajsamand, Presently
residing at Girdhari Pura Kachchi Basti, Police Station Karni Vihar,
Jaipur.
----Accused-Appellant
Versus
State Of Rajasthan Through P P
----Respondent
_____________________________________________________
For Appellant(s) : Mr.Vinay Pal Yadav, for the appellant.
For the State : Mr. Sudesh Kumar Saini Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Judgment
Date of Order :::: 08.02.2017
BY THE COURT:
This criminal appeal under Section 374 Cr.P.C. has been preferred by the accused-appellant against the judgment of conviction and order of sentence dated 30.1.2013 passed by the Special Judge, Women Attrocities Cases, Jaipur Metropolitan, Jaipur in Sessions Case No.34/2011 whereby the learned trial Court convicted the appellant for offence under Section 363 IPC and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- and in default thereof to further undergo rigorous imprisonment for two months, also convicted for offence under Section 366 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- and in default thereof to further undergo rigorous (2 of 11) [CRLA-134/2013] imprisonment for two months, further convicted for offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- and in default thereof to further undergo rigorous imprisonment for three months and also convicted for offence under Section 343 IPC and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.200/- and in default to further suffer rigorous imprisonment for fifteen days. It was further directed that all the substantive sentences would run concurrently.
Brief relevant facts for the disposal of this appeal are that the complainant Shri Bhairu Ram (PW3) father of the prosecutrix on 4.1.2011 lodged a written report (Ex.P14) at Police Station Karni Vihar, Jaipur City (South) with the averment that his daughter aged 15 years without any information went away on 3.1.2011 at about 9.00 a.m. from their house and she could not be found despite search being made by them. It was prayed that necessary steps may be taken in this regard. On the basis of this report Missing Person Report No.1/2011 was registered at 5.20 p.m. on the same day and investigation in the matter commenced.
Before prosecutrix could be traced, on 11.1.2011 second written report (Ex.P1) was lodged by the complainant in the same Police Station with the allegation that one Shri Ganpat son of Shri Bhanwar Lal Khatik, who was running a Juice Shop near his Kirana Shop since last 3-4 months in conspiracy with his family members, has abducted his daughter aged 15 years on 3.1.2011 at about 9.00 a.m. when she was going to her College. It was further averred that the aforesaid fact has been gathered (3 of 11) [CRLA-134/2013] by him from the information provided to him by some persons. On the basis of aforesaid report, FIR No.10/2011 for offences under Sections 363 and 366 IPC was registered and investigation commenced. During the course of investigation prosecutrix was recovered on 26.1.2011 at 10.30 a.m. from Bhiwadi in the company of appellant and her statements under Sections 161 and 164 Cr.P.C. were recorded and she was medically examined. From the further evidence collected during the course of investigation offences under Sections 343 and 376 IPC were also added and after usual investigation charge-sheet for aforesaid offences was filed against the appellant. In order to prove the charges, prosecution produced oral as well as documentary evidence whereas appellant denied the charges levelled against him and the evidence produced on behalf of the prosecution but in defence no evidence was produced. Learned trial Court after hearing both the parties and appreciating and evaluating the evidence made available on record held the appellant guilty and convicted and sentenced him in the manner as already stated. Feeling aggrieved, he is before this Court by way of this criminal appeal.
It was submitted by the learned counsel for the appellant that from the evidence available on record it is clear that much before the said incident prosecutrix and appellant were known to each other as appellant was admittedly running a Juice Shop near and adjacent to the shop of her father and prosecutrix attracted towards appellant and it is prosecutrix who persuaded the appellant to take her with him as she was inclined to marry with him and on the persuasion of prosecutrix herself both of (4 of 11) [CRLA-134/2013] them went away together on 3.1.2011 and entered into wedlock on the same day in a temple and started living as husband and wife at Bhiwadi from where they were recovered on 26.1.2011 as alleged by the prosecution. It was further submitted that even if appellant made physical relations with prosecutrix it was with her consent and will she being his legally married wife and, therefore, no offence of any kind was committed by the appellant more particularly in view of the fact that prosecution failed to prove its claim that at the time of alleged incident prosecutrix was below the age of 16 years and, therefore, her consent is irrelevant. It was submitted that consent and willingness on the part of the prosecutrix to go away with appellant and marry with him and their living together as husband and wife is clear from the fact that she did not resist her taken away by appellant in any manner, she did not make hues and cries, did not try to escape from the company of the appellant and even did not complain to anybody during the period of 23 days in which she lived with the appellant. It was also submitted that the prosecutrix was medically examined on 26.1.2011 by PW7-Dr.Anita Narula and the first version of the incident as told by the prosecutrix herself was recorded by the witness is to the effect that she married with the appellant on 3.1.2011 in a temple and stayed with him for 15 days at Gurgaon. It was asserted by learned counsel for the appellant that Dr. Anita Narula in her examination-in-chief has clearly stated that the version of the incident was recorded by her on Ex.P6 as per the statement made by the prosecutrix before her. According to learned counsel for the appellant as per first version of the (5 of 11) [CRLA-134/2013] incident has recorded by the doctor, no offence can be said to have been committed by the appellant but learned trial Court did not consider this aspect of the matter in a right perspective.
So far as date of birth/age of the prosecutrix is concerned, it was submitted that in order to prove the same prosecution produced only the copy of the certificate (Ex.P9-A) issued by the Board of Secondary Education, Rajasthan but merely because this document was exhibited during the course of trial, it does not mean that the contents of the document are proved and are correct more particularly in view of the fact that scholar register of the school in which the prosecutrix initially took admission, admission form submitted at that time were not produced and also in absence of the source from which the date of birth of the prosecutrix was entered in the scholar register. It was submitted that an entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Evidence Act but the entry regarding age of a person in 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. It was submitted that in the present case parents of the prosecutrix were examined as witness but none of them has stated that he or she got her daughter admitted in the school and it is on the basis of information provided by him or her that date of birth of the prosecutrix was entered in the school register. Inviting attention towards statement of complainant PW3-Bhairulal father of the prosecutrix, it was submitted that he has expressed ignorance about the school and in the year in which prosecutrix (6 of 11) [CRLA-134/2013] took admission in Class-I. He has further admitted that he did not provide copy of admission form and school register to the Investigating Officer. It was also submitted that as per statement of complainant he provided voter list, ration card, I.D., record of hospital and certificate of Municipal Corporation of prosecutrix to Investigating Officer but these documents were not filed alongwith the charge-sheet with the sole purpose to conceal the real date of birth of the prosecutrix. According to learned counsel for the appellant entry of name of prosecutrix in voter list itself shows that her name was entered in it because she was atleast of the age of 18 years when her name was entered in it. It was also submitted that if calculated from the date of birth as entered in Ex.P9-A, prosecutrix passed secondary school examination at the age of 12 years which is not possible in the case of prosecutrix as no evidence is available on record to show that she was extraordinarily brilliant in her studies rather as per her statement she secured only 44.6% marks in Class-X. It was submitted that in absence of prior and chain evidence, it would not be safe to rely upon Ex.P-A to determine the age of the prosecutrix.
In support of his submissions, learned counsel for the appellant relied upon the cases of Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. reported in AIR 1965 SC 282, Sunil Vs. State of Haryana reported in (2010) 1 SCC 742, Mussauddin Ahmed Vs. State of Assam reported in (2009) 14 SCC 541 and Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796.
On the other hand, learned Public Prosecutor submitted (7 of 11) [CRLA-134/2013] that as per marks sheet Ex.P9-A issued by Board of Secondary Education, Rajasthan date of birth of prosecutrix is 13.2.1996 and at the time of alleged incident she was below the age of 16 years and even if for the sake of arguments it is admitted that she was a consenting party even then as per Section 375 IPC the consent of a minor girl being of no relevance, the appellant has rightly been convicted for all the offences for which he was charged.
In the facts and circumstances of the present case, the foremost question which is to be considered and decided by this Court is about age of the prosecutrix at the time of the incident. In order to prove the date of birth the only evidence produced and relied by the prosecution is marks-sheet/certificate (Ex.P9-A) issued by Board of Secondary Education, Rajasthan according to which the date of birth of prosecutrix is 13.2.1996. If this Court finds that this document is relevant to prove the age of prosecutrix then it can rely upon it even if no other evidence was produced by prosecution in this regard. For this the observation made by Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Haryana reported in (2013) 7 SCC 363 becomes relevant. In this case Hon'ble Court has followed the procedure provided under Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for the purpose of determination of age of a child victim and held that matriculation or equivalent certificate of a child is conclusive proof of the age. It was held that "Even though Rule 12 is strictly applicable only to determine the age of child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for (8 of 11) [CRLA-134/2013] determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference insofar 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. 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 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 (9 of 11) [CRLA-134/2013] 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, it is clear that if matriculation or any other equivalent certificate of the victim child is available, the same is conclusive and final to prove his or her age and no other evidence is required to be produced. In the present case, as the prosecution has able to produce certificate /marks-sheet issued by the Board of Secondary Education, Rajasthan of the prosecutrix according to which she passed her secondary school examination in the year 2008 and her date of birth is recorded as 13.2.1996 in it the, same is to be held to be conclusive so far her date of birth is concerned and it cannot be said that it is not relevant and sufficient in absence of the admission form or register of the school in which she was first admitted or the source from which her date of birth was entered in it. In view of the above, prosecutrix was also not required to medically examined for her age determination. Once it is found that prosecutrix was below the age of 16 years at the time of the alleged incident then as per provision of Section 375 IPC her consent or willingness is of no substance and relevance.
From the evidence available on record it is clear that the prosecutrix was taken away by the appellant on 3.1.2011 from the legal custody of her guardians without their knowledge and consent with the sole intention to marry with her and to have illicit sexual (10 of 11) [CRLA-134/2013] intercourse with her and appellant had intercourse with the prosecutrix more than once during the period in which they were residing together at more than one place. Prosecutrix (PW4) in her statement before the Court has fully supported the prosecution case and nothing has come in her cross-examination so as to doubt her version of the incident and she is a wholly reliable witness. There are no material improvements, contradictions, inconsistencies, deficiencies or omissions in her Court statement in comparison to her previous statements recorded under Sections 161 and 164 Cr.P.C. Although, she in her statement under Section 164 Cr.P.C. has not in so many words stated that appellant committed rape upon her or had sexual intercourse without her consent or against her will but stated that "x.kir us esjs lkFk tcjnLrh dh rFkk /kedh nh" which in the opinion of this Court does not carry any other meaning except that rape was committed by appellant upon her without her consent and against her will.
So far as the alleged first version of the incident relied by the appellant as recorded by PW7-Dr.Anita Narula at the time of examination of prosecutrix is concerned, the same is of no help to the appellant as there was no occasion for the witness to record such statement and she was having no right and authority to record such statement, more particularly in view of the fact that prosecutrix in her cross-examination has denied that she made such a statement to the Doctor. It is to be noted that no suggestion was made to the prosecutrix that she and appellant entered into wedlock in a temple and they lived together as husband and wife. Otherwise also, merely (11 of 11) [CRLA-134/2013] because of marriage in a temple prosecutrix cannot be treated to be legally married wife of the appellant giving him a right to have sexual intercourse with her as a right.
In view of the above, there is no merit in the appeal and the same is liable to be dismissed.
Consequently, the appeal being meritless is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL)J. teekam Reserved judgment