Allahabad High Court
Sanjay vs State Of U.P. on 25 November, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 19.10.2020 Delivered on 25.11.2020 Court No. - 31 Case :- CRIMINAL APPEAL No. - 466 of 2016 Appellant :- Sanjay Respondent :- State of U.P. Counsel for Appellant :- Farhan Alam Osmany,Smriti Counsel for Respondent :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J.
1. This criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as ''Code'), has been preferred by the appellant-Sanjay (hereinafter referred to as ''appellant), against the judgment and order dated 29.03.2016, passed by Additional Sessions Judge/Fast Track Court, Hardoi, in Sessions Trial No.557/2011, arising out of Case Crime No.110/2009 under Sections-363, 366, 376 I.P.C., Police Station-Lonar, District-Hardoi., whereby the appellant has been convicted and sentenced for offence under Section 363 I.P.C. four years rigorous imprisonment and fine of Rs.2000/-, for offence under Section 366 I.P.C. for six years rigorous imprisonment and fine of Rs.3000/- and for offence 376 I.P.C. for eight years rigorous imprisonment and fine of Rs.8000/-. It has been further directed that the appellant has to undergo one month simple imprisonment in default of payment of fine for offence under Section 363 I.P.C., two months simple imprisonment in default of payment of fine for offence under Section 366 I.P.C. and six months simple imprisonment in default of payment of fine for offence under Section 376 I.P.C. with the further direction that the period of detention already undergone in jail by him shall be set off in aforesaid sentences and all the sentences shall run concurrently.
2. The prosecution story, in brief, is that on 17.02.2009 at about 7:00 p.m., the victim (P.W.-3), aged about 14 years daughter of Munnu Lal (P.W.-5), had gone from her house to ease herself towards the field, outskirt of her village. She did not return to her house untill night. Munnu Lal (P.W.-5) tried to search her throughout whole night and came to know that some relatives of his neighbour-Ram Chandra were present in his house to attend the Mundan ceremony of son of Kallu where one Anil and the appellant were also present. Sensing some conspiracy that the victim might be kidnapped by Anil son of Sukh Sagar, resident of Gheda, Police Station-Sahabad, District-Hardoi and the appellant in connivance with Ram Chandra, Karunesh and Kallu, who were his co-villagers, Munnu Lal (P.W.-5) lodged First Information Report (Ext.-Ka-4) at Police Station-Lonar, District-Hardoi at about 20:45 p.m. on 19.02.2009 against Ram Chandra, Karunesh, Kallu and the appellant with the allegation that they might had kidnapped the victim. The aforesaid information was entered in General Diary (Ext.-Ka-11) and on the basis whereof chik report (Ext.-Ka-10) was prepared by S.I. Virendra Kumar Pandey (P.W.-8) and Case Crime No.110/2009 under Sections-363, 366 & 376 I.P.C. was registered against the aforesaid persons including the appellant.
3. Investigation of the case was entrusted to S.I. Rakesh Kumar Pandey (P.W.-6), who visited the place of occurrence and after its inspection, prepared site plan (Ext.-Ka-5) and recorded the statement of the witnesses. During investigation, he recovered the victim on 31.03.2009 and prepared the recovery memo (Ext.-Ka-6). The statement of the victim was also recorded by this witness, who stating her age as 14-15 years old, stated that the appellant had kidnapped and raped her. On the basis of her statement, offence under Section 376 I.P.C. was added during investigation. The victim was sent for medical examination to District Hospital, Hardoi where she was examined by Dr. Rekha Gaur (P.W.-4) on 01.04.2009 with consent of Munnu Lal (P.W.-5).
4. In medico legal examination, it was found by Dr. Rekha Gaur (P.W.-4) that secondary sex characteristics of victim was well developed and no mark of injury was found on her body. In internal examination, the the hymen of the victim was found old, torn and healed. A sample of smear was taken from vagina of the victim and was sent for its examination. For determination of her age, she was referred to X-ray department for x-ray of victim's right elbow, right knee and right wrist which was conducted by Dr. R. K. Karunesh, Radiologist, District-Hardoi and x-ray report (Ext.-ka-3) was prepared. On the basis of x-ray report as well as vaginal smear report, a supplementary medico legal report (Ext.-Ka-2) was prepared by Dr. Rekha Gaur (P.W.-4) and according to her the victim, at the time of occurrence, was aged about 18 years and was habitual to sexual intercourse. According to her neither any spermatozoa nor gonococci was found in victim's vagina and no difinite opinion regarding rape could be given.
5. After her medical examination, on 15.04.2009, the victim was produced before the Magistrate, where her statement under Section 164 of the Code was recorded. During investigation, the appellant surrendered before the concerned Magistrate and after investigation the charge sheet (Ext.-Ka-7) was filed by P.W.-6 only against the appellant under Section 363, 366 and 376 I.P.C. before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Hardoi for trial.
6. The learned trial Court after hearing the counsel for both the parties framed charges for the offence under Sections 363, 366 and 376 I.P.C. against the appellant from which he denied and claimed for trial.
7. The prosecution in order to prove its case, produced Vinod Kumar Dixit (P.W.-1), Sarvesh (P.W.-2), victim (P.W.-3), Dr. Rekha Gaur (P.W.-4), Munnu Lal (P.W.-5) (informant), S.I., Rakesh Kumar Pandey (P.W.-6), Balram Bajpayee (P.W.-7), S.I., Vinod Kumar Pandey (P.W.-8), wherein Vinod Kumar Dixit and Sarvesh (P.W.-2), victim (P.W.-3) and Munnu Lal (P.W.-5) are the witnesses of the facts whereas rest are formal witnesses.
8. After conclusion of the prosecution evidence, the appellant was examined under Section 313 of the Code wherein he denied the prosecution allegations as well as statement of witnesses and stated that he is innocent and has been falsely implicated. In support of his defence, Karunesh (D.W.-1) was examined by the appellant.
9. Learned trial Court after hearing the learned counsel for both the parties and considering the material available on record, convicted and sentenced the appellant as above by the impugned judgment. Aggrieved by the said judgment, the appellant has preferred this appeal.
10. Heard Ms. Smiriti, learned counsel for appellant and Sri Ashok Kumar Singh, learned A.G.A. for the State.
11. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated only on account of suspicion. Learned counsel further submitted that independent witness, Vinod Kumar Dixit (P.W.-1) and Sarvesh (P.W.-2) have not supported the prosecution story and have been declared hostile by the prosecution. Learned counsel further submitted that Munnu Lal (P.W.-5) is not an eye-witness and neither the appellant was arrested nor the victim was recovered in his presence. Learned counsel further submitted that the statement of victim is highly improbable and untrustworthy as her statement is neither supported and corroborated by medical evidence nor by her statement under Section 164 of Code. Learned counsel further submitted that the victim was not recovered from the possession of the appellant and as per recovery memo (Ext.-Ka-6), she was recovered on the information of the Sarvesh (P.W.-2) but he did not support the prosecution case. Learned counsel further submitted that at the time of occurrence, as per medico legal examination report as well as per the statement of victim recorded under Section 164 Cr.P.C., she was aged about more than 18 years but the trial Court without any cogent evidence has convicted the accused-appellant on the ground that the victim, at the time of occurrence, was aged about 14 years. Learned counsel further submitted that the school register, proved by Balram Bajpayee (P.W.-7), in order to prove the age of victim, is highly doubtful and cannot be relied upon. Learned counsel further submitted that the trial Court has failed to consider and appreciate the prosecution evidence in the light of settled principle of criminal jurisprudence. The impugned judgment and order passed by the trial Court is illegal and unjustified which is liable to be set aside and appeal be allowed.
12. Per contra, learned A.G.A., vehemently opposing the submission of learned counsel for the appellant, has submitted that the prosecution story cannot be thrown on the ground that independent witnesses have not supported the prosecution case. Learned A.G.A. further submitted that the victim at the time of occurrence was 14 years old, she has corroborated the prosecution story during trial and there is no contradiction in her statement. Her statement also cannot be discarded only on the ground that no spermatozoa was found during medico legal examination or she was found as habitual to sex. Learned A.G.A. further submitted that as per school register proved by Balram Bajpayee (P.W.-7), her age was about 14 years at the time of occurrence. Learned A.G.A. further submitted that there is no contradiction between the statement of prosecution witnesses and prosecution has succeeded to prove its case beyond reasonable doubt against the appellant. Learned A.G.A. further submitted that the impugned judgment passed by trial Court is well discussed, well reasoned, and it requires no interference and the appeal is liable to be dismissed.
13. I have considered the rival submissions of both the parties and perused the record.
14. Munnu Lal (P.W.-5) (informant) is not eye-witness of the occurrence. Supporting the prosecution case, he has stated that at the time of occurrence, his daughter (victim) aged about 14 years, had gone to ease herself at about 7:00 p.m. and when she did not return till one and half an hour, he made a hectic search but she could not be searched out. He further stated that on the day of occurrence there was Mundan Ceremony of son of Kallu of his village. Stating that the appellant-Sanjay is nephew of Kallu, he further stated that Anil was relative of Kallu and Rajewshwar was his nephew (Bhatija) and at the time of occurrence, they were present at the house of Kallu. He further stated that he came to know that the aforesaid persons managed to enticed away his daughter (victim). He further stated that he had gone to police station to lodge the F.I.R. on the very same day but police had not lodged it and after two days of the occurrence, his information (Ext. Ka-4) was lodged by the police. He further stated that the victim was recovered after one and half month of the occurrence by the police near Sahora culvert and after recovery, the victim was medically examined and her statement was also recorded by the Magistrate. According to him, the victim was handed over to him in compliance of order passed by the Magistrate. He further stated that the victim had studied in Class-V at Primary Pathsala, Vishkula.
15. Munnu Lal (P.W.-5) in his cross examination admitted that the victim had gone alone from her house at the time of occurrence. He further admitted that the statement of victim was recorded before Magistrate after 15 days of the recovery and further stated that he did not know that his daughter had solemnized Court Marriage with the appellant. He further stated that he did not know as to when he had given an application for custody of his daughter. Admitting that after the occurrence, his daughter was married with one Anoop without taking permission from the Court, he further stated that he did not know either whereabout of his daughter or of the said Anoop.
16. Vinod Kumar Dixit (P.W.-1), produced by the prosecution in order to prove that the appellant as well as Kallu, Ram Chandra, Karunesh had enticed away the victim, had denied the prosecution story and stated that he did not know as to whether the appellant and other relatives of Kallu were present in the Mundan Ceremony of Kallu's son. He further stated that he did not know whether the victim was enticed away by the appellant or any other accused persons namely Anil, Ram Chandra, Kallu and Karunesh. This witness was declared hostile by the prosecution and was cross-examined but nothing had been come out in his cross-examination to support the prosecution story.
17. Sarvesh (P.W.-2), uncle of the victim, has also not supported the prosecution story. He was produced by the prosecution to prove the fact that victim's age was 14 years at the time of occurrence, she was enticed away by the appellant and he had rung the appellant to return the victim but this witness did not support the prosecution story and was declared hostile by the prosecution. He was cross-examined at length but in his cross-examination nothing had been come out to support the prosecution version.
18. The appellant has been convicted for the offence under Sections 363, 366, 376 I.P.C. by the trial Court for kidnapping and rape with victim, who according to prosecution, was aged about 14 years at the time of occurrence.
19. Section 361 I.P.C. defines the offence of kidnapping. Section 375 defines offence of rape, Section 363 deals with punishment of kidnapping from lawful guardianship, Section 366 I.P.C. is aggravated form of kidnapping and deals with punishment for offence of kidnapping, abducting or inducing woman to compel her marriage and Section 376 I.P.C. deals with the punishment for the offence of rape. Sections 361, 363, 366, 375 and 376 I.P.C. as it was in the year of 2009 are as under :
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
375. Rape - A man is said to commit rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Explanation -.................
376. (1) Whoever, except in the cases provided for by sub section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to ten years and shall also the liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) whoever, ................
20. The victim (P.W.-3), sole star-witness, has stated that it was Fhalgun month of winter season 2009, when the occurrence took place. She further stated that the appellant-Sanjay used to come her village to meet her maternal kindred (Nanihal). She further stated that the appellant by putting cloth in her mouth forcibly, had taken her away in a jeep to Village-Jhammapurva and thereafter to Sitapur. She further stated that she was beaten by the appellant-Sanjay to solemnize Court Marriage with the appellant. She further stated that the appellant-Sanjay had threatened her that if she did not give statement in his favour, he would kill her and also forcibly commit sexual intercourse with her. She further stated that concerned police had arrested her and brought her to Police Line and kept with lady police. She further stated that at that time the appellant-Sanjay and his family members were meeting her and had not permitted her father to meet her. She further stated that her statement was recorded by the Magistrate and she had stated the fact which was happened with her. She further stated that she had given the statement before the Magistrate under the pressure of the appellant because he had threatened her to give statement in his favour otherwise he would kill her. She further stated that she was given in custody of her father and she had studied upto Class-V in primary school of her village. She further stated that she could not tell as to whether her age, recorded in her school, was true or false. In cross examination, admitting that her Court Marriage was solemnized at Hardoi, she further stated that this Court Marriage was solemnized forcibly by the appellant-Sanjay. She further stated that she had stated before the Marriage Officer that she was marrying with the appellant according to her own free will and also had disclosed her age as 19 years. She further stated that such statement was given under threat of appellant-Sanjay. She further stated that after filing application for Court Marriage, she was carried to Sitapur where she stayed 10-12 days and during this period the appellant-Sanjay used to beat her. She further stated that thereafter she was carried to appellant's village where she resided 8 days and thereafter she was surrendered at Sahabad and was taken away by concerned police. She, in cross-examination, further admitted that her father had got information as she was taken into custody and met with her after 2 days. According to her, her medical examination was conducted at District-Hardoi, at the instance of concerned police but the Medical Officer had not enquired her age. She further stated that she did not know how many days, she stayed at police line in police custody and also she did not know the case, pending against her father at District-Hardoi. During cross-examination, she further admitted that she has been married to one Ashok Kumar Mishra, resident of District-Etah, with the consent of her father. She disowned her statement given before Magistrate under Section 164 of the Code that the appellant was her husband and she was happily residing with him. Upon query made by the trial Court, she again stated that the appellant had carried her away to village-Jhammapurva where brother in-law of appellant resided but she did not know how many females were there. She further stated that she did not talk there to any person and had also not disclosed anything as the appellant had prohibited her. She further stated that when she was carried to Sitapur she stayed at the house of appellant's maternal uncle but she did not disclose anything to appellant's maternal uncle and aunt too. She further stated that at the time of recording her statement before Magistrate, the appellant was not with her and she did not know whether the appellant was arrested by police or not. She further stated that she had given her statement before the Magistrate on oath but she did not disclose any person that she was being forcibly taken away by the appellant.
21. Section 361 read with 363 and Section 366 as well as Section 375 read with 376 prescribe the age of victim for offence of kidnapping as well as rape for certain cases. For offence of kidnapping, if a victim was aged below than 18 years and for offence of rape if a victim was below than 16 years at the time of occurrence, her consent would be treated immaterial. Therefore, it has to be determined whether the prosecution has succeeded to prove the victim of age below 16 years or not.
22. Neither Code nor IPC or POCSO Act 2012 provides procedure for determination of victim's age. Alleged offence was committed on 17.02.2009. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the '2007 Rules') framed under Section 67 of the Juvenile Justice (Care and Protection of Children) Act 2000 provides procedure for determination of juvenile's age. This provision is 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) 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.
(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 of 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."
23. Hon'ble Supreme Court in Jarnail Singh v. State of Haryana (2013) 7 SCC 263, deciding the issue of procedure for determination of age of victim of rape, was of the view that the procedure for determination of juvenile's age as provided in Rule 12 (supra) may be adopted for determination of victim's age. The Supreme Court in Jarnail Singh (supra) has held as under :
"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 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."
(Emphasis supplied)
24. In Rajak Mohammad v. State of Himachal Pradesh 2018 (3) SCC (Cri.) 753 three judges bench of Supreme Court, in case where school certificate regarding age of prosecutrix was found unreliable, considering the medical evidence regarding her age, has held as under;
"6. On the other hand, we have on record the evidence of Dr. Neelam Gupta (P.W.8) a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years.
7. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."
(emphasis supplied)
25. Thus it is clear that for the determination of age of victim, primacy shall be given to Date of Birth (hereinafter referred to as 'DoB') mention in matriculation (or equivalent) certificate, in absence thereof DoB mention in the school first attended by the victim shall be taken into consideration, in absence of both, the entries made by a corporation or a municipal authority or a panchayat regarding DoB shall be taken into account and finally if none of the aforesaid document containing DoB is available, medical evidence regarding age of victim, shall be taken into consideration. It is further clear that neither merely ocular evidence nor any other document shall be considered for determination of age.
26. In this case, the trial Court has held that victim's age was below to 16 years at the time of occurrence by relying on statement of victim, her father (P.W.-5) and Balram Bajpayee (P.W.-7), Head Master of Primary School, while discarding medical evidence produced by the prosecution, the statement of victim under Section 164 of the Code and also the statement of Karunesh (D.W.-1).
27. Now the question arises as to whether the evidence produced before the trial Court by the prosecution regarding the age of the victim is reliable and trustworthy. Admittedly, neither victim had studied upto matriculation nor any matriculation certificate has been filed by the prosecution. Munnu Lal (P.W.-5), in his cross-examination, has stated that victim was aged about 14 years at the time of occurrence and also stated that she had studied upto Class-V in Primary School, Bilkula. This witness has not stated anything regarding month and year when the victim was born. He has not filed any extract of Kutumb Register (Death and Birth Register) maintained at the level of his Village Panchayat/Gaon Sabha. Rakesh Kumar Pandey, Investigating Officer, (P.W.-6) has also not stated in his evidence that as to whether he had made any investigation regarding the certificate of victim's age. He only stated that on the basis of transfer certificate (T.C.) the victim was aged about 14-15 years. In cross-examination, this witness has also admitted that the victim had disclosed her age as 17-18 years at the time of her recovery.
28. Balram Bajpayee (P.W.-7), Head Master of Primary School, Bilkula has filed the photocopy of scholar register (Ext.-Ka-8) and photocopy of second transfer certificate (T.C.) dated 23.03.2009 (Ext.-Ka-9) of the victim. The prosecution had not shown any justification for non-production of first original transfer certificate (T.C.) of victim as well as second transfer certificate of victim issued on 23.03.2009. The photocopy of scholar register (Ext.-Ka-8) proved by this witness (P.W.-7), is very fade and illegible. It contains so many corrections and cutting that entries made therein are illegible. This witness, in cross-examination, has also admitted this fact by stating that there were some cutting in the entry of Sl. No.1181 to 1184 of the photocopy of scholar register and date of birth of victim, written in words, differs from other writing in the register. This witness also stated that he could not disclose who had come with victim for her admission because at that time he was not posted there. Thus on the basis of the aforesaid document, which is not matriculation certificate as well as the statement of Balram Bajpayee (P.W.-7), exact age of victim cannot be determined.
29. In addition to above, the victim (P.W.-3) has also not stated that at the time of occurrence she was below to 16 years. In this regard she has only stated that she had studied upto Class-V in Primary School and according to entries made in school, she was minor but she further stated that she could not state whether the entries were true or false. Thus, the victim herself was not sure whether the entries regarding her age made in scholar register was correct or not. Further she was recovered by police on 31.03.2009 and she was produced on 01.04.2009 for medico legal examination before Dr. Rekha Gaur (P.W.-4), who after medico legal examination has reported that secondary sex characteristics of victim (P.W.-3) were fully developed at the time of examination ; her weight was 43 kg. having 14/14 teeth ; in radiological report her joints of right elbow, knee, wrist were fused and on the basis of said examination, the victim's age was declared at about 18 years at the time of occurrence. In addition to above, her (P.W.-3) statement was recorded before trial Court on 31.10.2013 where she had disclosed her age as 21 years. The occurrence was happened in 2009. It means that again according to this witness, her age was more than 16 years at the time of occurrence. Thus, the prosecution has failed to produce any document as required by 2007, Rules (supra) and also in view of law laid down by Supreme Court in Jarnail Singh (supra) and Rajak Mohammad (supra), to prove the age of victim. In addition to above, the evidence produced by the prosecution as discussed above has also been found unreliable.
30. So for as the consideration of medical opinion regarding the age of victim at the time of occurrence is concerned, in view of law laid down by the Supreme Court in Jarnail Singh (supra) if the prosecution fails to prove her age by a document as required in sub rule (i), (ii) and (iii) of aforesaid Rule 12, medical evidence shall be relied upon as last option to determine her age.
31. According to Dr. Rekha Gaur (P.W.-4) victims' age, at the time of examination, was at about 18 years. It is also pertinent to note that opinion regarding age of any person, based on medical and radiological evidence can not be treated accurate and exact. Such determination of age by medical expert may vary in view of race, gender, geographical area, nutritional status and other factors like colour of pubic and armpit hair, development of sexual characteristics and other changes in the body of the victim. Such variation may be of one or two year of either side.
32. Supreme Court in Jaya Mala v. Home Secretary J & K and Ors. AIR 1982 SC 1297 has held as under:
"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
33. Dr. Rekha Gaur (P.W.-4) on the basis of radiological examination of the victim (P.W.-3) as well as development of her sexual characteristics, had found the age of victim as 18 years. From the perusal of statement of this witness as well as medico legal examination report (Ext.-Ka-1), it transpires that Munnu Lal (P.W.-5) was also present at the time of medico legal examination of the victim and he had given consent for such examination. In addition to above, the victim in her statement under Section 164 of the Code, recorded by the Judicial Magistrate, has specifically stated that at the time of occurrence her father, Munnu Lal (P.W.-5) had disclosed last year her age as 18 years and age mentioned by her father (P.W.-5) in F.I.R. as 14 years was false.
34. The victim (P.W.-3) in her cross-examination has stated that she had given statement before Magistrate under pressure of appellant-Sanjay. The statement of the victim in this regard is not reliable because she was recovered on 31.03.2009 and was produced for medico legal examination on 01.04.2009 in presence of her father (P.W.-5). Her statement under Section 164 of the Code was recorded after 15 days i.e. 15.04.2009 and during this period, she was in police custody. The prosecution has not produced any reliable evidence as to whether she was threatened during police custody by the appellant-Sanjay, to give statement in his favour. Thus, in view of above discussion, I am of the considered view that victim's age at the time of the occurrence was more than eighteen years and the finding of trial court that victim was below than sixteen years is not in accordance with law laid down by the Supreme Court in Jarnail Singh (supra) Razak Mohammad (supra) and Jaya Mala (supra).
35. It is settled principle of law that in the matter of sexual offence only on the account of minor contradictions in prosecution evidence, non examination of independent witnesses, the prosecution case can not be disbelieved and prosecution can succeed only on the testimony of victim, if her statement is unblemished and reliable. In this regard, to prove its case, the prosecution had produced Vinod Kumar Dixit (P.W.-1), Sarvesh (P.W.-2), Victim (P.W.-3) and Munnu Lal (P.W.-5). Vinod Kumar Dixit (P.W.-1) and Sarvesh (P.W.-2) had not supported the prosecution story. Sarvesh (P.W.-2) is uncle of victim. According to prosecution at the information and instance of this witness, the victim was recovered on 31.03.2009 when she was sitting alone at culvert nearby Sahora Village but this witness had not supported the prosecution story. Munnu Lal (P.W.-5) is not an eye-witness. He has also not stated as to who had seen that the victim was being kidnapped and informed him whereupon he had lodged F.I.R. (Ext.-Ka-4). Thus it has to be seen whether the statement of victim (P.W.-3) is reliable or not.
36. The victim (P.W.-3) has admitted that her court marriage was solemnized in District-Hardoi with the appellant-Sanjay and at that time she had disclosed her age as 19 years. Although, she stated that the court marriage was solemnized under threat of appellant-Sanjay but prosecution has not produced any document as the said marriage has been annulled and cancelled till date. The victim (P.W.-3) in her statement under Section 164 of the Code has specifically stated that the appellant-Sanjay was her husband and she had gone with the appellant with her own free will and consent to Kanpur and had resided there one month as husband and wife. She further stated that since her father (P.W.-5) was against her marriage with the appellant, she had eloped with the appellant-Sanjay and entered into marriage in temple at Kanpur on next day. The aforesaid statement under Section 164 of the Code recorded by the Magistrate was put before the victim in her cross-examination by the defence but she could not place any reliable explanation/justification as to why the said statement was not true.
37. In medico legal examination conducted just after one day of recovery of victim, according to Dr. Rekha Gaur (P.W.-4) neither any mark of injury was found on the body nor on the genital part of the victim. According to this witness (P.W.-4) hymen of the victim was old torn and healed ; no spermatozoa and gonococci were found ; the victim was habitual to sexual intercourse and no opinion regarding rape could be given. Thus prosecution case is also not supported by the medical evidence rather it is based only on the ocular testimony of victim.
38. Supreme Court in Santosh Prasad @ Santosh Kumar v. State of Bihar AIR 2020 SC 985 while allowing the appeal against conviction in a case based on the solitary evidence of prosecutrix, expressing its opinion regarding nature and quality of solitary evidence of victim as well as scope of false implication of accused in sexual offences, has held as under :
"5.2. From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.
5.3. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.
5.4. Before considering the evidence of the prosecutrix, the decisions of this Court in the cases of Raju (AIR 2009 SC 858) (supra) and Rai Sandeep @ Deepu, (AIR 2012 SC 3157) relied upon by he learned Advocate appearing on behalf of the appellant-accused, are required to be referred to and considered.
5.4.1. In the case of Raju (AIR 2009 SC 858, Para 9) (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:
"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] : (AIR 1996 SC 1393) to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is s extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
5.4.2. In the case of Rai Sandeep alias Deepu (AIR 2012 SC 3157, Para 15) (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under:
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
5.4.3. In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130 : (AIR 2011 SC 2877), it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality."
5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?
(Emphasis supplied)
39. Thus in the light of above discussion, it is clear that the sole testimony of victim (P.W.-3), is contradictory to her statement under Section 164 of the Code and also to the medico legal evidence. She was more than eighteen years at the time of occurrence, the independent witness (P.W.-1) as well as her own uncle (P.W.-2) have not supported the prosecution story. The prosecution evidence regarding her age proved by Balram Bajpayee (P.W.-7) is also not reliable and trustworthy. The statement of victim (P.W.-3) in the light of law laid down by Hon'ble Supreme Court in Santosh Kumar Prasad (supra) is neither trustworthy nor unblemished nor is of sterling quality. The prosecution has produced manufactured and concocted evidence.
40. Trial Court has not properly discussed the prosecution evidence. Prosecution has miserably failed to prove its case beyond reasonable doubt that appellant had kidnapped with intent to compel the victim for marriage and committed rape with her. The impugned judgment and order passed by trial Court is liable to be set aside and the appellant is entitled to be acquitted.
41. I am, therefore, unable to uphold the conviction and sentence of the appellant. The impugned judgment and order passed by the Trial Court is accordingly set aside. The appellant-Sanjay is acquitted. Consequently appeal is allowed.
42. The appellant-Sanjay is in jail. He is directed to be released forthwith unless wanted in any other case.
43. Keeping in view the provision of Section 437-A of the Code, appellant is hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, appellant on receipt of notice thereof, shall appear before Hon'ble Supreme Court.
44. A copy of this judgment along with lower court record be sent to Trial Court by FAX for immediate compliance.
Order Date :- 25.11.2020.
Mahesh