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2001 DIGILAW 1821 (RAJ)

State of Rajasthan v. Rajendra @ Bhunda Ram

2001-11-21

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the State of Rajasthan against the judgment and order dated 31.1.1994 passed by the Learned Additional Sessions Judge, Sojat, Dist. Pali in Sessions Case No. 46/93 by which the learned Additional Sessions Judge acquitted the accused-respondent for offence u/ss. 363, 366 & 376 IPC. 2. This appeal arises in the following circumstances (i) On 3.7.1993 PW-1 Bhika Ram lodged a written report Ex.P/1 with the police station Sojat City stating that on 30.6.1993, his daughter PW-8 Pushpa (hereinafter referred tows the prosecutrix) went to market for the purpose of bringing vegetable, but she did not return. Later on he made search of PW-8 Pushpa and thereafter he came to know that the accused-respondent had taken her with him for the purpose of marrying her. It is further stated in the report that Sampatraj PW-3 had seen both PW-8 Pushpa and accused-respondent going in a bus from the bus stand Sojat. 3. On this report, police chalked out regular FIR Ex.P/2 and started investigation. 4. On 30.7.1993 PW-8 Pushpa was got recovered through Fard Ex.P/3. She was got medically examined by PW-6 Dr. Anusuya and her medical examination report is Ex.P/8 where the age of prosecutrix was determined between 14 to 16 years. A school certificate Ex.P/9 was also produced by the prosecution in which the date of birth of the prosecutrix was mentioned as 6.5.1976 and that certificate was issued by the Principal Government Girls Sr. Secondary School, Sojat. 5. That after usual investigation, the police submitted challan against the accused-respondent in the Court of Magistrate from where the case was committed to the Court of Additional Sessions Judge, Sojat. 6. On 26.11.1993 the learned Additional Sessions Judge framed charges for offence u/ss. 363, 366 & 376 IPC against the accused-respondent who pleaded not guilty and claimed trial. 7. During trial, as many as 9 witnesses have been produced on behalf of the prosecution and statement of accused-respondent was recorded u/s. 313 Cr.P.C. and no witnesses was examined in defence. 8. After conclusion of the trial, the learned trial Judge acquitted the accused-respondent for offence u/ss. 7. During trial, as many as 9 witnesses have been produced on behalf of the prosecution and statement of accused-respondent was recorded u/s. 313 Cr.P.C. and no witnesses was examined in defence. 8. After conclusion of the trial, the learned trial Judge acquitted the accused-respondent for offence u/ss. 363, 366 & 376 IPC through his judgment and order dated 31.1.1994 inter alia holding : (i) That the age of prosecutrix might be below 18 years, but she was above 16 years of age and she was consenting party with accused-respondent in going with him. (ii) That the learned Additional Sessions Judge did not place reliance on school certificate Ex.P/9 as the same was not proved by the school authorities. 9. Aggrieved from the said judgment and order dated 31.1.1994 this appeal has been filed by the State of Rajasthan. 10. In this appeal, the main contention raised by the learned counsel for the State is that reliance should have been placed on school certificate Ex.P/9 and from that certificate, on the date of occurrence, the age of prosecutrix was below 16 years of age and, therefore, even if there is consent on her part, that becomes immaterial one and, therefore, the findings of learned Additional Sessions Judge by which he acquitted the accused-respondents are erroneous one and they should be set aside and this State appeal should be allowed. 11. On the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Judge are based on correct appreciation of evidence and the same do not call for interference by this Court. 12. I have heard both and perused the record. 13. So far as medical evidence pertaining to age of PW-8 Pushpa is concerned, the same is found in the statement of PW-6 Dr. Anusuya and PW-7 Dr. Tej Singh Ujjwal. Both clinically examined PW-8 Pushpa and gave certificate Ex.P/8 and in that certificate the age of PW- 8 Pushpa was determined by both the doctors between 14 to 16 years. 14. PW-6 Dr. Anusuya in her statement has stated that the age which has been mentioned in the certificate Ex.P/8 is estimated age and that cannot be conclusive proof of her age. She has further stated that there can be margin of two years on either side. Similar is the statement of PW-7 Dr. Tejsingh Ujjwal. 15. 14. PW-6 Dr. Anusuya in her statement has stated that the age which has been mentioned in the certificate Ex.P/8 is estimated age and that cannot be conclusive proof of her age. She has further stated that there can be margin of two years on either side. Similar is the statement of PW-7 Dr. Tejsingh Ujjwal. 15. Thus from the statements of both the doctors PW-6 Dr. Anusuya and PW-7 Dr. Tejsingh Ujjwal, the age which has been mentioned in the certificate cannot be final age of the prosecutrix PW-8 Pushpa. 16. For the purpose of determination of age, conclusive evidence may be birth certificate and same has not been produced in this case. 17. In the present case, the learned Additional Sessions Judge has not placed reliance on the school certificate Ex.P/9 which has been issued by the Principal, Government Girls Sr. Secondary School, Sojat in which the date of birth of PW-8 Pushpa has been mentioned as 6.5.1976. 18. PW-9 Jethu Dan (10) has stated that he brought the certificate Ex.P/9 from the school and produced along with the challan. There is no dispute in this case that neither Principal nor the person who issued the certificate has been examined by the prosecution. 19. The question that arises for consideration is whether reliance can be placed on school certificate Ex.P/9 or not especially when none from the school side has been produced or examined. 20. The Hon'ble Supreme Court in a case Ram Murti v. State of Haryana, reported in AIR 1970 SC 1029 has held that approved and unexhibited school certificate cannot be treated as evidence of age. Similar view was taken by Delhi High Court in a case Chidda Ram v. State, reported in 1992 Cr.L.J. 4073 . 21. Andhra Pradesh High Court in a case Kondapalli Laxman v. State of A.P., reported in 1999 Cr.L.J. 1928 has held that the certificate of head-mistress as to the age based on school certificate could not be believed to determine the age in absence of any corroborative evidence and further it was held by that High Court that medical report if stating the age between 15 to 17 years, benefit of outer margin should be given to the accused. Kolkata High Court in case Sudhamay Nath v. State of West Bengal, reported in 1999 (4) Crime 202 has held that in a case of rape charge, where there is no other evidence or no trust-worthy evidence as to the age of girl and medical opinion records her age between 17 & 19 years, it will be unsafe to convict the accused where sexual intercourse was done by consent of the girl. 22. Thus, in the present case, since Ex.P/9 has not been proved by the prosecution as should have been proved, therefore, the learned Additional Sessions Judge had rightly placed no reliance on the certificate Ex.P/9. If the certificate Ex.P/9 is excluded, then before this Court, there is medical evidence in which the age of PW-8 Pushpa has been mentioned between 14 to 16 years and margin of error in the age is 2 years on either side and thus, from this point of view, PW-8 Pushpa might be above 16 years of age on the date of occurrence. 23. So far as oral evidence is concerned, both PW-1 Bhika Ram and PW-2 Kamla who are father and mother of PW-8 Pushpa have clearly admitted in their statements that they cannot say the specific date on which PW-8 Pushpa was born. In these circumstances, such oral evidence would not be helpful to the prosecution. 24. For the reasons mentioned above, the findings of learned Additional Sessions Judge that on the date of occurrence, the prosecutrix PW- 8 Pushpa might be near about 18 years of age appear to be correct one as they are based on correct appreciation of evidence. 25. So far as point that it is a case of consent is concerned, from the prosecution evidence, this fact is well proved. PW-8 Bhika Ram father of the prosecutrix has clearly admitted that when PW-8 Pushpa was recovered the accused-respondent was with her and accused-respondent used to visit his home frequently. Thus intimacy between PW-8 Pushpa and accused-respondent is well established. Similar is the statement of PW-2 Kamla, who is mother of the prosecutrix. 26. PW-3 Sampat Raj is another witness who saw PW-8 Pushpa and accused-respondent both sitting in a bus meaning thereby that PW-8 Pushpa was sitting with her own accord with the accused-respondent in the bus. 27. Thus intimacy between PW-8 Pushpa and accused-respondent is well established. Similar is the statement of PW-2 Kamla, who is mother of the prosecutrix. 26. PW-3 Sampat Raj is another witness who saw PW-8 Pushpa and accused-respondent both sitting in a bus meaning thereby that PW-8 Pushpa was sitting with her own accord with the accused-respondent in the bus. 27. PW-8 Pushpa is the prosecutrix, who has admitted that accused-respondent used to come to her house and she was not compelled to go with him, but she accompanied him placing conviction on him and she remained in the company of the accused-respondents at Jodhpur and Falna. She further admitted that she has written some love letters to the accused-respondents. Therefore, it is a case of consent. 28. The position of law with respect of hearing appeal against acquittal has been made clearly by the Hon'ble Supreme Court in so many statements and for that the important judgment of Ajit Samant v. State of Karnataka, reported in AIR 1997 SC 3251 may be referred to. 29. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted. 30. In my considered opinion, the judgment of the learned Additional Sessions Judge is based on correct appreciation of evidence and the reasons which has been assigned by the learned Trial Judge are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds. 31. Since the learned Additional Sessions Judge has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Judge as to the credibility of the witnesses must be respected. 31. Since the learned Additional Sessions Judge has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Judge as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Judge as the trial Judge had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.For the reasons mentioned above, the present State appeal is dismissed after confirming the judgment and order dated 31.1.1994 passed by the learned Additional Sessions Judge, Sojat.Appeal dismissed. *******