Allahabad High Court
Akash vs State Of U.P. on 2 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 3645 of 2014 Appellant :- Akash Respondent :- State Of U.P. Counsel for Appellant :- A.K. Sinha Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and order dated 30.06.2014 passed by Sri Abdul Mobin, the then Additional Sessions Judge, Court No. 16, Bulandshahr, in Sessions Trial No. 1285 of 2011 (State vs. Akash), registered as Case Crime No. 940 of 2011, under Sections 363, 366 and 376 I.P.C., P.S. Khurja Nagar, District Bulandshahr, whereby the accused Akash was found guilty under Sections 363, 366 and 376 I.P.C. and was sentenced to seven years rigorous imprisonment along with fine of Rs. 5000/- under Section 376 I.P.C., sentenced to four years rigorous imprisonment along with fine of Rs. 3000/- under Section 366 I.P.C. and sentenced to three years rigorous imprisonment along with fine of Rs. 2000/- under Section 363 I.P.C. with default stipulations.
2. The prosecution story in brief is that a report was lodged by the informant stating that on 01.10.2011 at 10:00 A.M., his minor daughter aged about 14 years was enticed away by Kalpana and Aasma. When he tried to trace his daughter, he could not find her. The wife of the informant went to trace his daughter at the house of Kalpana but she was not found there. Shahid and Chhand told him that they had seen the victim accompanied by Akash, Kalpana and Aasma going towards the bus stand but she could not traced, hence the report was lodged.
3. On the basis of this report, chick report was prepared. Constable Clerk Uma Shankar, PW-3 has proved the chick report as Exhibit Ka-2. This witness scribed the G.D. and proved its copy as Exhibit Ka-3. Dr. Hem Pratima, PW-4 has medically examined the victim. She did not find any internal or external injury on the body of the victim but she found the victim was pregnant of 20 weeks. This witness has proved the medical report as Exhibit Ka-4. She further proved the supplementary report as Exhibit Ka-5. The investigation of the matter was entrusted to PW-5, S.I. Gyaneshwar Bodh. He copied the first information report in the case diary, arrested the accused and recovered the victim on 03.10.2011. He prepared the recovery memo and proved it as Exhibit Ka-6. He copied the recovery memo in the case diary. After that he recorded the statements of the informant, the victim and the accused. On 07.10.2011, he received the medical report of the victim and copied it in the case diary. The statement of the victim was got recorded under Section 164 Cr.P.C. which was also copied in the case diary. The X-ray report, ultrasound report and age determining certificate were also obtained and copied in the case diary. After that the victim was handed over to her parents on 13.10.2011. The statement of Shahid and Chhand were recorded and charge sheet was submitted against the accused which was proved as Exhibit Ka-7
4. The prosecution examined as many as six witnesses to prove its case. PW-1 is Saeed, the informant who proved the first information report as Exhibit Ka-1, PW-2 is the victim. PW-3 is Constable Uma Shankar whose evidence has already been discussed above. PW-4 is Dr. Hem Pratima Sharma and PW-5 is S.I. Gyaneshwar Bodh whose evidence have also been discussed earlier. PW-6 is Akbar Ali who has been produced by the prosecution to prove the age of the prosecutrix. This witness has proved the copy of the T.C. as Exhibit Ka-8 and the copy of S.R. register as Exhibit Ka-9. After this the prosecution evidence was closed.
5. The statement of the accused was recorded under Section 313 Cr.P.C., in which has denied the incident and stated that the victim went on her own accord with him. She was a consenting party to the occurrence. However, the accused did not adduce any evidence in defence.
6. The learned lower court after hearing the counsel for the parties found the accused guilty and sentenced him as aforesaid.
7. Feeling aggrieved, the accused has come up in the appeal.
8. I have heard learned counsel for the parties at length and perusal the original record of the trial court.
9. It has been contended on behalf of the appellant that there is inordinate delay in lodging the first information report, inasmuch as, the occurrence is said to have taken place on 01.10.2011 at about 10:00 A.M., whereas, the report was lodged after 24 hours on 02.10.2011 at about 10:00 A.M. The distance of the police station from the place of occurrence is only two furlongs. Perusal of the report shows, that complainant has mentioned that the witnesses Shahid and Chhand had told them that they had seen the accused appellant taking away the victim towards the bus stand. After this also he tried to trace his daughter but when she could not be traced, he has lodged the first information report. The informant has also stated in his statement that on 01.10.2011, he was told by the witnesses that they had seen the accused persons taking away his daughter. Thus, I do not thing that there is any inordinate delay in lodging the first information report.
10. As far as the the rape of the victim is concerned, Section 375 I.P.C. defines as under:-
"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 on any person in who 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.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
11. Thus, it is settled law that even if consent has been obtained by the accused for sexual intercourse, it will amount to rape, if the victim was incapable of giving a valid consent, as per Section 375 of the I.P.C. Thus, the first thing which is to be borne in mind is that it has to be seen whether the prosecutrix was less than 16 years of age.
12. The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such as provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.
13. Coming to the age of the victim. According to the first information report, the age of the victim on the date of occurrence is mentioned to be 14 years. When the statement of the victim was recorded under Section 164 Cr.P.C. on 07.10.2011, she has stated her age to be 18 years. When her statement was recorded before the court on 07.06.2013, again she stated her age to be 15 years. As regards the age is concerned, the prosecution has produced PW-6 Akbar Ali who has stated that the date of birth of the victim is 25.10.1998. He has proved the transfer certificate as Exhibit Ka-8 and the admission register as Exhibit Ka-9 in which the date of birth of the victim has been mentioned as 25.10.1998.
14. The age of the victim too has to be determined in accordance with the procedure prescribed under Rule 12 of the of the Juvenile Justice (Care and Protection of Children) Act, 2007, which 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 off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
15. As regards the transfer certificate Exhibit Ka-8 is concerned, it does not find place under Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007. As far as Exhibit Ka-9 is concerned which is a copy of the S.R. Register, Akbar Ali, PW-6 has specifically stated that the victim took admission in his school on 07.07.2007. She studied in his institution till Class 2nd. Her name was struck off the roll on 01.07.2009 because of continuous absence from school. She passed only Class 1st and 2nd. Thus, this is entry of the school (other than a play school) first attended.
16. PW-8 Akbar Ali was not cross-examined on the copy of the admission register Exhibit Ka-9, according to which the date of birth of the victim was 25.10.1998. As per the medical report, on 10.10.2011, the victim was aged about 17 years. As per the supplementary report Exhibit Ka-5, she was aged about 17 years in October, 2011. In October, 2011, she was also found five months pregnant. As per school report, she was about 13 years of age at the time of occurrence. Dr. Hem Pratima, PW-4 was not at all cross-examined by the defence on the point of age.
17. Counsel for the appellant has submitted that the copy of the T.C. and school report is not admissible in evidence and as per the ossification age of 17 years, there can be variations of two years either side, hence the victim can be safely presumed to above 16 years of age.
18. PW-6 Akbar Ali has proved school admission register but he was not cross-examined as to who told him the date of birth of the victim.
19. A document is admissible under Section 35 of the Indian Evidence Act, 1872 (hereinafter called as 'Evidence Act') being a public document if prepared by a government official in the exercise of his official duty. However, the question does arise as what is the authenticity of the said entry for the reason that admissibility of a document is one thing and probity of it is different.
20. In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, this Court dealt with a similar contention and held as under:-
"Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil.. . . . . Where a report is given by a responsible officer, which is based on evidence of witnesses and documents and has "a statutory flavour in that it is given not merely by an administrative officer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight. The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little."
21. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar AIR 1970 SC 326; Ram Murti Vs. State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs. Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs. State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.
22. Such entries may be in any public document, i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
23. While dealing with a similar issue in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796, the Hon'ble Apex Court held as under:-
"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 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."
24. A Constitution Bench of the Hon'ble Apex Court, while dealing with a similar issue in Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282, observed as under:-
"The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act."
25. The question, whether the date of birth specified in Exhibit Ka-9 is incorrect, could be put to the witness PW-6, Akbar Ali but it was not put to him, thus, the date of birth depicted in the school record / certificate do not stand belied by the un-impeccable evidence any person and contemporaneous documents. If the entry in respect of age of the victim seeking admission would have been made at the instance of the "Chowkidar" or some other person who accompanied the child having no correct knowledge of the date of birth, it could be ignored. But in this case when there is a specific averment about the date of birth of the victim which has not been challenged by cross-examination, there would be no justifiable reason to disbelieve it. Taking two years margin in the medical report also, the victim was a minor at the date of incident. Since. The incident is said to have taken place on 01.10.2011, thus, the age of consent of the victim at the relevant time was 16 years.
26. The accused in his statement recorded under Section 313 Cr.P.C. has stated that the victim was not enticed by him but the victim had gone on her own accord with him. The statement of the accused can definitely be taken into account as he has tried to explain the circumstances appearing against him. But in AIR 1981 Supreme Court page 361, Harpal Singh and Another vs. State of Himachal Pradesh, the Hon'ble Apex Court has laid down that if no injury is found on the private parts of the victim and she was found to be used to sexual intercourse, this argument will be of no avail to the appellant if once it is proved that the girl was below 16 years of age, because in that case, the question of consent becomes wholly irrelevant.
27. Coming to the incident, Said PW-1 has stated that he was unknown to the fact that when his daughter was recovered, she was four months pregnant. When he returned home with the girl, her wife told her about this fact. Later on, the child was aborted. It is trite law that if the statement of the prosecutrix deposed in the court, is trustworthy, reliable and probable then conviction can be based on the sole testimony of the prosecutrix which will not need any corroboration.
28. PW-2, the victim has stated that the accused took her to Ghaziabad and raped her against her wishes. She has further stated that when the police recovered her, she was pregnant by four months and the father of the child was the accused.
29. Counsel for the appellant has stated that the victim had given her statement under Section 164 Cr.P.C. but when she was examined before the trial court, she resiled from her statement recorded under Section 164 Cr.P.C., hence, the statement under Section 164 Cr.P.C. that was recorded before the trial court is contradictory, hence, the statement of the victim should not be relied upon without corroboration.
30. The arguments advanced on behalf of counsel for the appellant has no legs to stand because the statement of the prosecutrix recorded under Section 164 Cr.P.C. is only a previous statement of the prosecutrix. It is just a corroborative piece of evidence. The victim has admitted in her cross-examination that previously also she had relations with the accused but since the accused threatened her with a knife, she did not disclose the fact to anybody. Another factor which supports the prosecution case is that the victim was arrested with the appellant Akash. The recovery memo of the victim is Exhibit Ka-6 which shows that the victim was recovered with the appellant on 03.10.2011.
31. PW-5 is Gyaneshwar Bodh, S.I. who could not specify the time of arrest of the appellant but I think, it would be immaterial. There is nothing significant in the statement of the other prosecution witnesses.
32. Thus, for the reasons mentioned above, I find that the prosecution has fully proved the charges levelled against the accused and conviction of the accused is based on sufficient evidence on record. The appeal has no force and is liable to be dismissed.
33. Accordingly the appeal is dismissed.
34. The judgment and order of conviction and sentence dated 30.06.2014 passed Additional Sessions Judge, Court No. 16, Bulandshahr, in Sessions Trial No. 1285 of 2011 (State vs. Akash), registered as Case Crime No. 940 of 2011, under Sections 363, 366 and 376 I.P.C., P.S. Khurja Nagar, District Bulandshahr is confirmed.
35. The accused is in jail, he shall serve out the remaining sentence.
36. Let certified copy of this order be transmitted to the trial court for compliance.
Order Date :- 02.02.2016 sailesh