Andhra HC (Pre-Telangana)
K. Laxman Rao vs State Of A.P. on 31 December, 1998
Equivalent citations: 1999(1)ALD543, 1999(1)ALT506, 1999CRILJ1928
Author: Vaman Rao
Bench: Vaman Rao
JUDGMENT
1. This appeal is directed against the judgment of the Special Judge for trial of cases under Scheduled Caste and Scheduled Tribe (Prevention of Attrocities) Act, Mahaboobnagar rendered in SC No.1/ 1991 under which the appellant-accused has been convicted for the offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default of payment of fine to suffer rigorous imprisonment for three months. The appellant has been acquitted of the charge under Section 3(l)(xii) of SC & ST (Prevention of Attrocities) Act, 1989.
2. The facts relating to this appeal may be stated briefly as follows : The victim Chunarker Radha is the daughter of one Mangaiah resident of Chandravalli and she belongs to Scheduled Caste. The accused is a resident of Dhanoor and was a Supervisor-cum-Contractor in M/s. B.C. Shirke and Company Limited, CCC Naspoor. The victim was said to be a minor girl of 14 years. Due to financial problems of the family after the death of her father, she went to CCC Naspoor and worked on daily wages as a cooli under the control of the accused. She stayed with her elder sister at Naspoor during May, 1989 to July, 1989. During this period the accused by virtue of his position as a Supervisor-cum-Contractor who could provide daily work to the victim and to her brother-in-law Jangama Jogaiah established an affair with the victim. It is stated that the accused promised to marry her and provide her with daily work. Thus he persuaded the victim to have sexual intercourse with him. After two months in 1989, the victim returned to her village and stayed with her mother, the accused visited her village frequently and on the pretext of securing work for her stayed in the house of the victim PW1 and continued his sexual relations with her. It is stated that the victim became pregnant. During 1990-91 the victim had taken admission in ZPP Secondary School, Kagaznagar to continue her studies and was admitted in Government Scheduled Caste Girls Hostel, Kagaznagar and was staying in the hostel. During that period she was found to be pregnant. The police Kagaznagar was informed of it. On the complaint of PW1, the victim, the CI of Police registered a case in Cr. No.14/90 under Section 376 IPC, issued FIR and took up investigation. Subsequently, charge-sheet was filed under Section 376 IPC and for an offence under Section 3(1)(xii) of SC & STs. (Prevention of Attrocities) Act, 1989 as the victim belonged to Scheduled Caste.
3. In support of the case of the prosecution, the victim Radha has been examined as PW1, her mother Chunarker Babu has been examined as PW2, the brother-in-law of the victim Jangama Jogaiah has been examined as PW3. Durgam Shivaram, a resident of Chandravalli village to which PWs.1 and 2 belong has been examined as PW4, PVV5, the Head Mistress of Junior College, Kagaznagar where the victim studied has been examined to prove the date of birth certificate of PW1 marked as Ex.P2. PW6 Razia Sulthana is the matron of the Scheduled Caste Hostel where PW1 stayed from 26-7-1990 for a period of six days. PW7 Dr. K. Sankarnarayana examined PW1 and after physical, dental and radiological examination he gave certificate of age of the victim under Ex.P3. The accused denied the allegations against him. On behalf of the accused DW1 has been examined.
4. PWI in her evidence stated that when she was studying 8th class in Vijayanagaram her father expired. She stopped her studies and returned to her native place Chandravalli. Her sister Jangama Kamla and her husband PW3 Jangama Jogaiah were working as labourers in Naspoor area. She also went and joined them to work as a labourer. While she was attending to the work in a stone crushing machine, she got acquainted with the accused who was the Supervisor-cum-Contractor and who used to pay their wages every week. She worked there for two months, during that period, the accused induced her to marry and promised to pay more wages. She agreed to the proposal and they both enjoyed 'sexual happiness' for a period of two months. Thereafter she returned to her native place. The accused used to visit her there also and used to stay for two or three days in their house. According to her she continued her sexual relations with the accused in her house also. The accused continued to visit her house for about an year, thereafter she joined 9th class at ZPP High School, Kagaznagar in the year 1989 and was staying in the hostel. The Warden and staff at the hostel suspected that she was pregnant, they informed the police, Kagaznagar, thereafter she went back to her house. Her evidence is corroborated by the evidence of PW3 the brother-in-law of PWI who deposed that while PWI was living in his house while working as a labourer, the accused after attending the work used to stay in his hut during the nights and that he suspected that the accused had illicit contacts with PW1. Therefore, he sent PWI to her parents. PW2 the mother of PWI seeks to corroborate PWI by saying that the accused used to visit their house now and then and used to stay in their house for a couple of days during his visits. PW4 who is a resident of Chandravalli village also corroborates PW1 that the accused used to visit their village for fetching labourers and during those days, he used to stay in the house of PWs. 1 and 2 for two or three days and used to take meals there. Nothing has been elicited in the cross-examination of these witnesses to discredit their evidence. PW1's candid and frank statement that she was induced by the accused to have sexual relations with him has a ring of truth in it. This evidence establishes beyond reasonable doubt that the accused had sexual intercourse with PWI.
5. It is apparent that the accused had sexual intercourse with PW 1 with her consent. Her statement that the accused promised her to marry appears quite improbable and there is no material to show that consent was the result of promise of marriage by accused. Whatever may be other considerations which weighed with PWI, the fact remains that she was a consenting party to the sexual intercourse by the accused.
6. To bring home the charge under Section 376 IPC, the prosecution relies on the fact that PWI was below 16 years of age at the time of alleged offence and even if the sexual intercourse is with her consent, it satisfies the definition of rape within the meaning of Section 375 IPC.
Thus the crucial question in this case is :
Whether at the relevant time PWI was under 16 years of age ?
Rape is defined in Section 375 of Indian Penal Code.
"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 : Firstly: Against her will Secondly: Without her consent Thirdly: x x x x x Fourthly: xx x x x Fifthly: x x x xx Sixthly: With or without her consent, when she is under sixteen years of age."
Where the victim is not below 16 years of age, the prosecution is required to prove that the sexual intercourse by the accused was against the will or without the consent of the victim. Thus absence of will or consent is essential ingredient for proving the offence of rape. But where the victim is below 16 years of age, notwithstanding such consent, sexual intercourse constitutes the offence of rape for the reason that the victim is under 16 years of age. Thus for constituting the offence under Section 375 of IPC, the fact of age of the victim being under 16 years of age is an essential ingredient.
7. It is therefore obvious that the fact of the victim being under 16 years of age has to be proved with the same standard of proof as is required for proving any other ingredient of the offence.
The question for consideration in this case is:
Whether the prosecution has succeeded in proving that the victim was under 16 years of age?
8. In this regard, the prosecution relies on the evidence of certificate of date of birth of PW1, Ex.P2 issued by PW5 Head-Mistress of Government Junior College, Kagaznagar. Under Section 35 of the Evidence Act an entry in any public or other official book, register or record, stating a fact, in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. A register pertaining to admission of students in a school which is maintained under certain rules (Rule 43 of A.P. (Integrated) Educational Rules requires that all elementary schools should maintain a Register of Admission and Withdrawal of Pupils in the form provided under Appendix 2) may be considered a public document within the meaning of Section 74 of the Evidence Act, 1872 and it can be proved by secondary evidence by production of certificate extract of if as held in Ajjarapu Subbarao v. Pulla Venkata Ramana Rao, . This is so because clause (e) of Section 65 of the Evidence Act specifically provides that secondary evidence may be given of the existing condition or contents of a document when the original is a public document within the meaning of Section 74 of the Evidence Act. But Section 65 of the Evidence Act lays down an embargo that in respect of a public document covered under clause (e) of the said section, no other kind of secondary evidence is admissible except certified copy of the document. It may be mentioned here that Ex.P2 relied upon in this case does not purport to be a true extract or copy from the original register duly certified by the Head of the School concerned. But it is a certificate issued by the Head Mistress purporting to be based on school records. It does not disclose as to on what school records it is based and at any rate it does not mention that it is based on entries in the Admission and Withdrawal of Pupils Register. Thus, Ex.P2 does not satisfy the requirement of being a certified copy of School Admission Register in which the relevant entry as to the date of birth of PW1 was entered, as such it cannot be said to be admissible in evidence in view of the prohibition contained under Section 65(e) of the Evidence Act.
9. Even assuming that Ex.P2 may be construed as a document based on the entries in School Register and as such it is admissible in evidence, the date of birth mentioned therein cannot be relied upon implicity.
10. II is pertinent to mention here that PW1 was not admitted in Kagaznagar ZPP Girls Secondary School for the first time from where Ex.P2 has been issued. According to PWl's own version and as stated by the Head Mistress (PW5) PW1 was admitted in Vijayanagaram High School and she took admission in Kagaznagar on transfer from the previous school. Thus, the original entry as to the date of birth based on the application for admission would be found in the Admission Register at Vijianagaram. No extract from that Register has been produced.
11. In this case, the mother of PW1 who has been examined as PW2 does not even whisper about the age of PW1. He neither gives the age of PW1 nor stated anything about his furnishing the date of birth of PW1 to the school authorities at Vijayanagaram where PW1 was admitted for the first time in the school. No other witness has given any evidence as to the age of PW1. In the case of Brij Mohan Vs. State, , the Supreme Court observed as follows :
"In actual life ii often happens that persons give false age of the boy at the time of his admission to a school so that in later life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of the fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above move."
Thus the evidence as to the date of birth based on school records cannot be implicitly believed unless it is corroborated by other evidence on record for ascertaining the age for the purpose of fastening criminal liability for the offence of rape as defined under Section 375 of IPC. Thus, in this case a certified extract from the original register of admissions at Vijayanagaram has not been produced. Even the certified extract from the admission register in the school at Kagaznagar where PW1 subsequently studied has not been produced. What is produced is a mere certificate issued by the Head-Mistress purporting to be based on 'school records'. The possibility of mistake in transferring the entry or in mentioning the date of birth in the certificate purporting to be based on the entries cannot be over-looked. It is the school admission register which can be considered as a public document and it is the authenticated true extracts of such a register which is really admissible in evidence. A mere certificate from the Head-Master as to the age of a student purporting to be based on the 'school records', does not satisfy the requirement of Section 35 of the Evidence Act. Thus, taking the totality of the circumstances, the age of PW1 cannot be determined for the purpose of this case on the basis of Ex.P2 in which her date of birth was mentioned as 8-7-1976. If this date of birth is taken to be true, then obviously PW1 was less than 16 years of age as on the date of alleged sexual intercourse by the accused. But the age of PWI cannot be determined on the basis of date of birth as mentioned in Ex.P2.
12. Thus the evidence of age based on school records cannot be accepted particularly so as it is in conflict with the medical evidence as to the age of PW1. It is necessary to examine medical evidence in this case. The age of the prosecutrix on the basis of the dental and ossification tests has to be determined where school certificate cannot be accepted and there is no oral evidence as to the age. In such a case, the opinion of radiologist by allowing certain margins can be accepted. Such a view has been taken by the Delhi High Court in the case of Kanchan Dass v. State, 1991 Crl. LJ 2036. PW7 Dr. K. Shankara Narayuna has examined PW1 and based on physical, dental and radiological examination opined that the age of PW1 was "about 15 to 17 years". Ex.P3 is the certificate issued by him. In his cross-examination, he has stated about X-ray photographs for determination of the age which arc Ex.P4 in respect of hip joint, Ex.P5 shoulder joint, Ex.P6 elbow joint, Ex.P7 in respect of writ joint. The findings recorded in his certificate Ex.P3 are not seriously challenged in the cross-examination of this witness except eliciting that these X-rays were not taken by him personally, obviously it is the radiologist or technician who takes the X-rays. A bald suggestion was made that PW7 has not examined PW1 at all which he denied. It is true that medical evidence in respect of age cannot be exact and the determination of age is with reference to certain lower and higher margins. In this case, PW7 stated that the age of PW1 was between 15 to 17 years. At the lowest it could be 15 years and at the highest it could be 17 years. As held by the Delhi High Court in Kanchan Dass v. State (supra) the benefit of outer margin must be given to the accused. Based on this, the age of PWI must be held to be 17 years as on the date of her examination by PW7. She was examined on 6-8-1990. Thus, the age of PW1 can be taken as 17 years as on 6-8-1990.
13. In this case, there is no definite evidence as to on what date the accused had sexual intercourse with PW1 for the first time. PWI has vaguely stated that after returning from Vijayanagaram school, she lived in the house of PW3 for two months in the year 1989. It is pertinent to mention that during this period of her stay with PW3 she had sexual intercourse with the accused for the first time. There is no evidence as to which are the two months in 1989 when PWI lived with PW3. As gathered from the evidence of the Head Mi stress-PW5, PW1 was issued transfer certificate at Vijayanagaram on 22-6-1989. She might have come to live with PW3 in all probability only after this date. For holding that the accused had sexual intercourse with PW1 when she was under 16 years of age, the prosecution must prove by clinching evidence that the first sexual intercourse by the accused with PW1 took place before 6-8-1990. There is no specific evidence as on what date PW1 returned from Vijayanagaram and on what date she joined the company in the collieries where the accused was Supervisor-cum-Contractor and started living in the house of PW3. PW1, PW3 or any other prosecution witness has not deposed on this aspect. There is no specific evidence given by PW1 as to how many days after she came into contact with the accused her sexual affair started. In the absence of specific evidence in this regard, it is not possible to hold that the accused started sexual intercourse with PW1 when she was under 16 years of age. Under the circumstances, the accused is entitled to the benefit of doubt.
14. It is necessary to point out that even the determination of the age of PW1 at 17 years based on medical evidence cannot be considered as exact to a day. There is a possibility of a margin of a few days or a week or two on either side. In the absence of any evidence that the alleged sexual intercourse by the accused with the victim occurred on a particular date, it is obligatory on the prosecution to show that the sexual intercourse occurred during a period some time prior to the date of her attaining the age of 16 years as arrived at on the basis of medical evidence so that sufficient margin is given to take care of in exact nature of determination of age on the basis of medical evidence.
15. While there is ample evidence to show that the accused had sexual intercourse with PW1 repeatedly over a period which resulted in pregnancy of PW1, the prosecution has not succeeded in proving that the accused had sexual intercourse with PW1 when she was under 16 years of age.
16. In the result, the appeal is allowed and the appellant/accused is found not guilty for the offence under Section 376 IPC and conviction recorded and sentence imposed on the accused for the said offence are set aside and fine amount if paid shall be refunded. The bail bonds of the accused shall stand discharged.