apeal28.06.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.28 OF 2006
Ashok s/o Ramlakshtra Tiwari,
Aged about 27 years,
Resident of CRPF Camp,
Nagpur (In Jail). ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Sonegaon,
Nagpur. ....... RESPONDENT
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Shri R.M. Daga, Advocate for Appellant.
Ms. R.V. Kaliya, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
15 NOVEMBER, 2017.
ORAL JUDGMENT
1] Exception is taken to judgment and order dated
17.01.2006 in Sessions Trial 126/2005 delivered by the 11 th Adhoc Additional Sessions Judge, Nagpur, by and under which, the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 363 of Indian ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 2 Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.500/-, and, is further convicted for offence punishable under section 366 of IPC and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.1000/-. The accused is however, acquitted of offence punishable under section 376 of IPC.
2] Heard Shri R.M. Daga, the learned counsel for the appellant-accused and Ms. R.V. Kaliya, the learned Additional Public Prosecutor for the respondent/State. 3] The learned counsel for the accused Shri R.M. Daga submits that the judgment and order impugned is manifestly erroneous since the prosecution has failed to prove that the victim was a minor. The learned counsel would submit that even if the entire evidence is taken at face value, the prosecution has failed to establish offence under section 363 or 366 of IPC. In view of the failure of the prosecution to prove that the victim was a minor, charge under section 363 of IPC must necessarily fail, is the submission. The further submission is that since the evidence ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 3 overwhelmingly suggests that the victim voluntarily and of her own accord joined the company of the accused, it is axiomatic that the prosecution has not proved offence punishable under section 366 of IPC.
4] Per contra, Ms. Kaliya, the learned A.P.P. supports the judgment and order impugned and submits that the learned Sessions Judge has recorded findings which are unexceptionable on facts in law.
5] The First Information Report is lodged by P.W.1 Prabhakar Rao on 23.08.2004, on the basis of which offence came to be registered against the accused under section 363 and 366 of IPC.
6] The gist of the report is that P.W.1 Prabhakar Rao is the father of the victim then aged 14 to 15 years and studying in 9th standard in Kendriya Vidyalaya, Nagpur. P.W.1 is serving as Inspector (Ministerial) in C.R.P.F. and is attached to the office of the Deputy Inspector General of Police, C.R.P.F. since 16.08.2002. The accused Ashokkumar Tiwari is the son of a colleague one ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 4 Ramlakshtra Tiwari. Ashokkumar was conducting tuition classes from a rented premise near C.R.P.F. Gate-II and the victim was one of the students. Ashokumar used to visit the house of the informant. The victim went missing from the house at 12'o clock on 15.08.2004. The informant searched for the victim in the campus and then having come to know that Ashokkumar Tiwari was also not traceable since the day victim went missing, the informant suspected that the victim was kidnapped by Ashokkumar.
7] During the course of investigation PSI Mahadeo Chavan visited the spot, prepared the spot panchnama in presence of the witnesses, recorded the statements of witnesses, arrested the accused and referred him for medical examination. The blood sample of the victim was collected and seized and she was also referred for medical examination and radiological test, the school leaving certificate of the victim was collected and seized and after completion of the investigation charge-sheet was submitted before the Judicial Magistrate First Class, Court 9, Nagpur who committed the proceedings to the Sessions Court. ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 5 8] The learned Sessions Judge framed charge vide Exh.5 under sections 363, 366 and 376 of the Indian Penal Code, the accused pleaded not guilty and claimed to be tried. The defence is of total denial, as is obvious from the statement recorded under section 313 of the Criminal Procedure Code and the trend of cross-examination.
9] The learned counsel for the accused Shri Daga is that if the evidence is tested on the anvil of the law declared by the Apex Court in three judgments (i) Alamelu and another Vs. State represented by Inspector of Police (2011) 2 SCC 385,
(ii) Mahadeo s/o Kerba Maske Vs. State of Maharashtra and another, (2013) 14 SCC 637 and (iii) State of M.P. vs. Anoop Singh (2015) 7 SCC 773. It must be held that the prosecution has not established that the age of the victim was less than 18 years. In view of the said submission, I intend to evaluate the evidence on determination of age of the victim, before I proceed to deal with the other issues arising for consideration. 10] Concededly, the ossification test or the radiological examination (Exh.41 and 42) opine that the radiological age of ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 6 the victim is 16 years 1 year.
11] P.W.14 Shankar Pandurang Ingle, who is examined to prove the date of birth recorded in the Kendriya Vidyalaya School states that the date of birth of the victim which is recorded in the admission register is 01.06.1990. P.W.14 has proved the extract of admission register Exh.48. However, P.W.14 states that the entry was taken on the basis of the school leaving certificate issued by the earlier school.
P.W.15 Smt. Indu Suresh Khairnar, the Principal of Kendriya Vidyalaya, C.R.P.F., Nagpur is examined to prove the certificate Exh.50 issued by her recording the date of birth of the victim as 01.06.1990. In the cross-examination, it is elicited from the said witness thus:
Today, I have not brought the original birth certificate or the xerox copy of original birth certificate of Jayalaxmi issued by the local authority. It is the practice followed by our school while giving admission to the students that on the basis of the Transfer Certificate of the student issued by the concerned school, we used to admit the student in our school. Whenever, the student intents to take admission in 1 st standard, we used to obtain or collect birth certificate of such student. It is true that I had no occasion to see the Original birth certificate of the student Jayalaxmi.::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 7
It is true that against the scoring of the date of birth in the document (Exh.51), I have not put my initials or the signature. It is true that I had not demanded the xerox copy or the original birth certificate of student Jayalaxmi, when the parents of Jayalaxmi submitted admission application in our school. It is not true to say that the girl Jayalaxmi failed twicely in 8 th standard.
12] In Alamelu and another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 the Hon'ble Apex Court enunciates the law thus:
39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext. P-16 and the certificate issued by PW 8 Dr. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5".
40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1997. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 8 date of birth is examined.
41. We may notice here that PW 1 was examined in the court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. She was actually recalled and her examination was continued on 26-4-2000. The transfer certificate was marked as Ext. P-16 at that stage i.e. 26-4-2000. The judgment was delivered on 28-4-2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6-1977. She also stated that the certificate has been signed signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.
42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi v. Anand Purohit observed as follows: (SCC pp. 618-19, para 14) "14. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ... Merely because the documents Exts. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 9 mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted." (emphasis supplied)
43. The same proposition of law is reiterated by this Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal where this Court observed as follows: (SCC p 751, para 16) "16. ... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue'."
44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate cannot be relied upon to definitely fix the age of the girl.
45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW 8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the court, PW 8, ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 10 the X-ray expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.
46. In addition, the High Court failed to consider the expert evidence given by PW 13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognised by this Court in Jaya Mala v. Govt. of J & K. In the aforesaid judgment, it is observed as follows: (SCC p. 541, para 9) "9. ... 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."
Equally relevant are the observations of the Apex Court in State of M.P. vs. Anoop Singh (2015) 7 SCC 773 in paragraphs 14, 15 and 16, which read thus:
14. This Court in Mahadeo v. State of Maharashtra has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 11 determining the age of the victim of rape. Rule 12 (3) reads as under:
"12 (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 certificate, 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 recored 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."
15. This Court further held in para 12 of Mahadeo as under: (SCC p. 641) "12. ... Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 12 medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well."
(emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In para 13, this Court observed: (Mahadeo case, SCC p.
641) "13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issud by the school under Ex. 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any grounds to interfere with the same."
16. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P-5 and P-6 cannot be discarded. Therefore, the trial court was correct in relying on the documents.::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 13
13] Concededly, the entries in the school record which are produced and proved do not pertain to the school in which the victim is first admitted. P.W.14 and P.W.15 admit that the entries in the school record have been taken on the basis of the school leaving certificate issued by the school earlier attended by the victim. In the teeth of the settled position of law, it must be held that the prosecution has not proved that the victim was aged less than 18 years as on the day of the incident. Be it noted, that the radiological test opine the age of the victim to be 16 1 year. In Jaya Mala vs. Home Secretary, Government of Jammu & Kashmir and others, AIR 1982 SC, 1297 it is held thus:
"In view of the provisions of Section 45 of the Evidence Act, opinion of doctor as to age of a person. Radiological test, margin error in age ascertained by radiological examination is two years on either side".
14] The victim, who is examined as P.W.2, states that she was beaten by her father when she returned home after attending the 15th August programme in school. She went to the accused and disclosed that she was beaten by her father and was told that the victim should accompany his friend Vinay Pande, is the deposition. The victim then states that she accompanied Vinay ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 14 Pande who left her in one Restaurant and at 02:00 p.m. the accused arrived along with one Kaushal Mishra. The accused put the fear of the father in the mind of the victim and offered that he would take the victim with him. The victim and the accused boarded an auto-rickshaw, proceeded to the bus stand, went to Pandhurna and stayed in a lodge for a day. The accused and the victim had sexual intercourse in the said lodge. The accused and the victim then took a train from Pandhurna intending to go to Delhi. In the meanwhile the victim fell ill and both the victim and the accused disboarded at Beena Railway Station. The accused took the victim to a Doctor who treated the victim and prescribed medicines. The victim and the accused halted in a lodge at Beena and again had sexual intercourse. The victim and the accused then proceeded to Delhi, however, again disboarded at Jhansi, stayed in a lodge at Jhansi, where again both engaged in sexual intercourse. The victim and the accused then travelled to Delhi on 19.08.2004 and stayed with the family of one Suresh Kumar. The accused came to know that a report was lodged by the father of the victim and asked the victim where they she wants to go. The accused left the victim at the house of her maternal aunt at Vijaywada. However, from the house of the maternal aunt the ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 15 victim was taken to lodge at Vijaywada where the accused again established sexual relationship. The victim has then deposed the events leading to the victim going back to the house of the father and the police inquiry.
Even de hors what is elicited in the searching cross-examination, the version of the victim overwhelmingly is suggestive of a consensual sexual relationship. The victim admits to be love with the accused and having written a letter to the accused, the contents of which reveal deep and intense feelings for the accused.
15] In view of the failure of the prosecution to prove that the victim was less than 18 years of age, the ingredients of section 361 which defines kidnapping from lawful guardianship are not established. It is axiomatic, that the conviction of the accused under section 363 of IPC must necessarily be set aside. It may be useful to refer to the following observation of the Apex Court in the State of Karnataka vs. Sureshbabu Puk Raj Porral, 1994 Cr.L.J. 1216
"When age of victim is doubtful, then question of taking ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 16 her away from lawful guardianship does not arise. More so, when victim herself deposed that she went with accused voluntarily. However, the second requirement that taking or enticing away a minor out of the keeping of the lawful guardianship is an essential ingredient of the offence of kidnapping".
16] On a holistic appreciation of evidence on record, I am of the opinion, that the victim, who is not proved to be less than 18 years of age, left the house of her father willingly and of her own accord and joined the company of the accused. The accused and the victim travelled to many destinations together and the conduct of the victim is not suggestive of she being an unwilling partner in the relationship. The conviction of the accused under section 366 of IPC is equally indefensible.
17] The judgment and order impugned is set aside. 18] The accused is acquitted of offence punishable under section 363 and 366 of the Indian Penal Code.
19] The bail bond stands discharged. ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 ::: apeal28.06.J.odt 17 20] The fine paid by the accused, if any, be refunded. The appeal is allowed. JUDGE NSN ::: Uploaded on - 16/11/2017 ::: Downloaded on - 18/11/2017 01:42:35 :::