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2012 DIGILAW 1523 (MAD)

Kamaraj v. Manikam

2012-03-27

S.PALANIVELU

body2012
Judgment :- 1. The appeal is preferred against the conviction of the appellant/A1 under Section 366 (A), 368 and 376 I.P.C. and sentenced him to undergo Rigorous imprisonment of 7 years for each offence and to pay a fine of Rs.1000/-each in default to undergo 3 months simple imprisonment by the learned Additional Sessions Judge, Dharmapuri, in S.C.No.28 of 1994 dated 30.12.2003 . 2. The following is the brief account of prosecution case: 2. (a) P.W.3 is daughter of P.W.1. Her date of Birth is 12.4.1976 as per the Transfer Certificate issued by the Head Master P.W.5 in the Government Higher Secondary School, Menasi, Dharmapuri District. At the outset P.W.1 lodged a complaint with the Paappireddipatti Police Station on 16.7.1991 and the same was received and a receipt in Ex.P.1 was given to him. However, the police did not take any action upon the complaint. Hence, P.W.1 filed private complaint before the Court narrating about the occurrence and other matters. Ex.P.2 is the complaint preferred by P.W.1 before the Judicial Magistrate No.2, Dharmapuri, which was taken on file and the same was referred to Sessions Court for trial. 2. (b) In Ex.P.2, P.W.1 has alleged that he has got minor daughter by name Kavitha whose date of birth is 12.4.1976, that after completed her 10th standard she is in his custody, that all the accused conspired and told lies to her daughter and kidnapped her on 12.7.1991 at about 3.00 p.m. from his lawful guardianship and she was detained in a house at Kadathur, that all the accused compelled her to marry first accused and threatened her and on 14.7.91 at about 9.00 a.m. at Kadathur Vinayagar Temple she was married to first accused by force. Further, they brought her along with the first accused and subjected her to illegal intercourse with first accused. They also harassed her by detaining illegally in the house. After two days she escaped from the clutches of accused and returned to her father's house. On 16.7.1991 P.W.1 lodged a complaint with Paappireddipatti police station, but they delayed the matter without any reason. The offences committed by the accused are punishable under section 143, 346, 363, 365, 366, 368 I.P.C. 2. (c) On perusal of the records the learned Additional Sessions Judge, Dharmapuri, framed charges against the accused under Section 366, 366, and 368 I.P.C. 2. The offences committed by the accused are punishable under section 143, 346, 363, 365, 366, 368 I.P.C. 2. (c) On perusal of the records the learned Additional Sessions Judge, Dharmapuri, framed charges against the accused under Section 366, 366, and 368 I.P.C. 2. (d) P.W.6 Doctor attached to the Primary Health Centre, Mangalore, examined the victim girl and issued Ex.P.9 certificate stating that the person would have had intercourse previously. P.W.5 Head Master, Government Higher Secondary School, Menasi issued P.W.8 Transfer Certificate to P.W.3 stating that her date of birth is 12.04.1976. 3. After the examination of prosecution witnesses, accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances for which they denied the complicity. Neither any witnesses were examined nor any documents were produced on the side of accused. The Trial Court, after analyzing the evidence on record, convicted and handed down the sentences on the appellant/accused 1 as stated above and acquitted all the other accused. 4. Point for consideration: The point for consideration in this appeal is, "whether the prosecution has established the charges framed against the accused beyond all reasonable doubt?" Point: 5. The learned counsel Mr.J. Nandagopal appearing for the appellant would contend that in as much as the transfer certificate containing the date of birth of the victim girl has not been proved as per law; it does not comply with the statutory requirements of Section 35 of the Evidence Act, that the inconsistencies available in the evidence of P.W.3 would show that the alleged kidnapping by the accused and compelling her for marriage to the appellant are telltale affairs, that medical evidence of this case in no way support the version of P.W.3 which could not be stated to have been corroborated with the evidence of P.W.3, that the Court below has not appreciated the oral and documentary piece of evidence in a proper perspective and that if this is court scrutinised the evidence on record, it could be seen that the case of the complaint is false and the appellant is entitled for acquittal. 6. 6. Contending on the other side of the coin, Mr.S.S.Jayakumar, learned counsel appearing for the respondent/complaint would contend that as per Section35 of the Evidence Act, entries available in Ex.P.8 have been proved and hence it could be seen that the victim was below the age of 15 years at the time of occurrence and hence, the appellant has to be dealt with the offences under section 366(A), 368 and 376 I.P.C. and that the evidence of doctor is duly corroborated with the evidence of P.W.3, that there is no contra evidence forthcoming from the side of appellant, that there are no well grounds in favour of the appellant to interfere with the judgment and conviction of the lower court and hence the same may be confirmed. 7. As far as the oral evidence on record as to the allegation of kidnapping of P.W.3, the evidence of P.W.2 and P.W.4 independent witness are available. P.W.2 says that he happened to see P.W.3 with all the accused boarding a bus by name Senthil Murugan, that since he saw P.W.3 without her parents, informed P.W.1 about what he saw in the bus stand. In the cross examination he would say that he saw daughter of P.W.1 boarding the bus and that it is false to state that he is giving false evidence. 8. P.W.4 was brought to box to say about the marriage of the appellant with P.W.3. He would say that on the date of marriage, he went to Kadathur to purchase cow. At about 9.30 a.m. after getting down the bus while he was going to pass urine he happened to see both the appellant and P.W.3 ready for marriage, that the thali was given to the appellant by the Prohidar, he got it and tied around the neck of Kavitha and that the bride was seen sadly. In the cross examination, he would say that after the marriage he saw the appellant only in the Court at the time of his examination. 9. In the cross examination, he would say that after the marriage he saw the appellant only in the Court at the time of his examination. 9. P.W.3 would depose about her kidnapping by stating in her chief examination that she was forcefully kidnapped on 12.7.1991 at about 3.00 p.m. by the accused and on 14.7.1991 at about 9.00 a.m. in Kadathur Vinayagar Temple she was compelled to marry the first accused, that Ex.P.4 to P.7 photographs were taken on the occasion of marriage, that first accused at about 9.00 p.m. forcibly had intercourse with her, when she was crying she was assaulted by the first accused and was detained in the house. Even then the first accused was having sexual intercourse with her and after two weeks she escaped and came to her father's house. In the cross examination she says that earlier to the occurrence she was not known to first accused, that for about 10 days, the first accused was having intercourse with her by force, that on 12.7.1991 all the accused came to her house and took her to bus stand, that there was no betrothal between her and first accused for the marriage. 10. While referring to the above said parts of oral evidence, the learned counsel for the appellant would say that from the oral testimony of P.W.3, it would show that she has not raised alarm at the time of alleged kidnapping by the accused that she has also not stated that at any point of time she has not attempted to escape from the accused and that even without attempting to escape it can be seen that she has consented for the occurrence. 11. Per contra, the learned counsel for the respondent would say that the evidence on record from P.Ws.2, 3 and 4 are enough to conclude that the accused kidnapped her. P.W.2 and 4 are independent witnesses and while their oral testimony are subjected to a careful scrutiny gives the light that truth is available in their versions. Their evidence are natural and convincing. They support the evidence of P.W.3 as to the allegation of kidnapping. 12. Adverting to the above facts and evidence with regard to the age of P.W.3, the evidence of P.W.5, the Head Master of Government Higher Secondary School, Menasi is available along with Ex.P.8 Transfer Certificate of P.W.3 containing her date of birth as 12.4.1976. They support the evidence of P.W.3 as to the allegation of kidnapping. 12. Adverting to the above facts and evidence with regard to the age of P.W.3, the evidence of P.W.5, the Head Master of Government Higher Secondary School, Menasi is available along with Ex.P.8 Transfer Certificate of P.W.3 containing her date of birth as 12.4.1976. Much was said about the legal validity and evidential value of Ex.P.8. The learned counsel for the appellant would contend that even if the transfer certificate is treated to be a public document, since the complaint has not shown any material to show from which the date of birth has entered into the school register, as per settled law, it cannot be acted upon. 13. In support of his contention he placed much reliance upon a decision of Supreme Court in AIR 2006 SC 2157 (1) [Ravinder Sing Gorkhi v. State of U.P.]. In the said decision Their Lordships have referred to earlier decisions of the Supreme Court, among which the decision reported in 1988 Supp. SCC 604 [Biral Mal Singhvi v. Anand Purohit] is important. Wherein the Supreme Court has gone deep into the subject and dealt with the probative value of entries made in the school register as to the date of birth of a student. Their Lordships have also referred various High Court's decisions and held that to enlighten the date of birth of a person, the entry relating to the age of a person in a school register is relevant and admissible under Section 35 of the Evidence Act, but the entry regarding the age of the person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. The following is the final conclusion in the judgment . "As discussed earlier these documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value" 14. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value" 14. It is no doubt true, that Ex.P.8 duly satisfy all the statutory requirements as contained in Section 35 of the Evidence Act. But as per law laid down by the Apex Court, the person who supplied information to the superior authorities as to the date of birth has to brought before the Court and examined to explain and to prove the entries available in the school records. 15. The learned counsel for the respondent placed reliance upon a decision of the Supreme Court in 1982 (2) SCC 538 [Jaya Mala v. Home Secretary, Govt of Jammu and Kashmir and others] wherein it is held that the margin of error in age of a person is ascertained by radiological examination is two years on either side had been/has to be considered. 16. As far as the proof under Section 35 is concerned, Section 35 requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relvant fact (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country, and (iv) all persons concerned indisputably must have an access thereto. 17. Following the principles laid down by the Honourable Supreme Court it is to be observed that whether the entries in Ex.P.8 Transfer Certificate have been proved as per law. P.W.5 in his cross examination would say that the Date of Birth could be entered in the school register on the basis of the entries made in the certificates issued by the elementary school authorities, that for the entries made in Ex.P.6, certificate from elementary school was obtained and the same is in his office and that was not produced and that he could not speak personally whether the date of birth is a correct one. In order to prove the entries in the school register the law requires the evidence of individual who supplied the information to the superior authorities as to the date of birth. In order to prove the entries in the school register the law requires the evidence of individual who supplied the information to the superior authorities as to the date of birth. In this case neither affidavit regarding the entry of the date of birth of P.W.3 made by the superior authority has been produced nor he was examined as to the entries in the birth register. In the above said circumstances, it can not be stated that Ex.P.8 has been proved as expected by law. So the date of birth as mentioned in Ex.P.8 could not be treated to be the Date of Birth of P.W.3. In this context it has to be observed that the date of birth of P.W.3 has not been established. It is also not shown whether she was major or minor at the time of occurrence. 18. Coming to the facts with regard to the forcible sexual intercourse allegedly had by the appellant with P.W.3, her evidence is more pertinent. In unequivocal terms, she has stated in her chief examination that the first accused forcibly had sexual intercourse, that she also made her protest by weeping, but she was beaten up by the first accused and she was locked inside the house. It is also in her evidence that for about 10 days he was having sexual intercourse with her without her consent. A part of her oral evidence which shows that she was not subjected to sexual intercourse by the first accused on the date of kidnapping but on the next day after marriage would indicate that the appellant was not a person who had a mental intention to have forcible intercourse or to rape P.W.3. On a harmonious reading of the evidence of P.W.3 would show that she was forced to have intercourse with the appellant by him. 19. Ex.P.9 is the medical certificate issued by the doctor P.W.6 wherein it is stated that hymen was not intact, vagina admits one finger easily, hymen torn, edges healed well, uterus was in normal size. The doctor did not see any external injury on the foreign parts of the victim. It was informed to the doctor by P.W.3 that she was raped by a known person on 12.7.1991 at 9.00 p.m. at his relative's house at Kadathur. She is of the opinion that the victim girl would have had intercourse previously. The doctor did not see any external injury on the foreign parts of the victim. It was informed to the doctor by P.W.3 that she was raped by a known person on 12.7.1991 at 9.00 p.m. at his relative's house at Kadathur. She is of the opinion that the victim girl would have had intercourse previously. The offence took place 10 days from 12.7.1991. As per P.W.3 she was examined by the doctor after six months later i.e., on 28.2.92. Hence, it is stated that there might be no occasion to find even a healed scar or nail marks on the body of the victim girl. 20. Regarding the medical evidence, the learned counsel for the respondent would contend that inasmuch as the oral account of P.W.3 as to the forcible intercourse, she had with the appellant has been duly corroborated by medical evidence, the appellant has to be found guilty under Section 376 I.P.C., that even if the age of the victim girl as found in Ex.P.8 has not taken into consideration, the evidence of the victim girl as to the forcible sexual intercourse without her consent has been proved, that no corroboration is legally needed to place reliance upon the prosecutrix, that it is well settled law that in the absence of external injuries on the parts of victim it can not be concluded that there was no rape. To support his contention he garnered support from various decisions of the Honourable Supreme Court. In AIR 1983 SC 753 [Bharwada Bhoginbhai Hirijibhai v. State of Gujarat] the Supreme Court has discussed about the requirement of corroboration of evidence in rape cases. Following are the relevant portions in the judgment. "It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, inRameshwarv. The State of Rajasthan, (1952) e SCR 377 at p.386 : ( AIR 1952 SC 54 at pg.57) has declared that corroboration is not the sine que-non for a conviction in a rape case. This Court, inRameshwarv. The State of Rajasthan, (1952) e SCR 377 at p.386 : ( AIR 1952 SC 54 at pg.57) has declared that corroboration is not the sine que-non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court- "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge ....... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 21. The Supreme Court has formulated principles as to the circumstances under which the Court can place reliance upon the evidence of the victim girl. It is the view of the supreme Court that if the evidence of the victim girl is natural and convincing, the Court has to take it for consideration and corroboration may not be necessary. 22. In AIR 2004 SC 1290 [State of Punjab v. Ramdev Singh] the Honourable Supreme Court after referring to various earlier decisions of the Supreme Court has concluded that the absence of the injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of crime. The following is the operative portion of the judgment: "14. ... ... ... The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of crime. The following is the operative portion of the judgment: "14. ... ... ... The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case." The above said passage is from a decision of the Supreme Codurt in 2000(3) Supreme 70 [State of Rajasthan v. Noore Khan]. 23. In 2011 (10) SCC 192 [Mohd. Imran Khan v. State Government (NCT of Delhi)] the Supreme Court has laid down the principles for the appreciation of evidence of a victim girl in a rape case. The following are the relevant portions: "23. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248 ; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 ). 24. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. 25. The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The court may convict the accused on the sole testimony of the prosecutrix. 25. The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393 , wherein this Court observed that (SCC p.395 para 8) "8. ... ... ... the courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her." 24. While the principles set out in the decision of Supreme Court are followed, it has to be necessarily observed that if the Court finds the evidence of victim girl is natural and convincing, it can be acted upon even without corroboration. As far as the facts of the present case are concerned, the evidence of doctor goes to the effect that P.W.3 might have had intercourse on previous occasions. Even though she was examined by the doctor after 7 months and evidence is available that she had intercourse and the features found in her private parts would also indicate the same view. It is to be noted that there is no suggestion to P.W.3 on behalf of the appellant that she was not having sexual intercourse with some other person during the relevant period. However, the question was through doctor who says that there is a chance for her to have sexual intercourse with other person. But the appropriate witness for the question to be asked is P.W.3. Neither to P.W.1 or to P.W.3, questions were asked whether P.W.3 was having sexual connection with somebody else. In this circumstances, the necessary corollary would be that even though the age of the prosecutrix has not been proved, sufficient proof is available to find the appellant guilty under Sections 368 and 376 I.P.C. Hence, he has to be sentenced under this section. In this circumstances, the necessary corollary would be that even though the age of the prosecutrix has not been proved, sufficient proof is available to find the appellant guilty under Sections 368 and 376 I.P.C. Hence, he has to be sentenced under this section. He is not liable to be punished under Section 366(A) I.P.C. since no offence is made out. But under Section 368 and 376 I.P.C. he is found guilty of the offences. 25. The learned counsel for the appellant would submit that both P.W.3 and the appellant married different persons and they are leading their life separately with their children who are of the age of 16 years and above. The occurrence took place 21 years back. Considering the above said circumstances as special reasons, this Court is of the view that ends of justice will be met if a sentence of 4 years of rigorous imprisonment which is below seven years being imposed upon the appellant. This point is answered accordingly. 26. In the result, the appeal is allowed in part, setting aside the conviction and sentence under Section 366(A) I.P.C. and confirming the conviction under Section 368 and 376 I.P.C. and the sentences imposed therefor. Under these provisions the appellant is convicted and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs.1000/- each in default to undergo 3 months simple imprisonment each. The sentences are ordered to run concurrently. The period of custody already undergone by the appellant shall be set off from the substantial sentence. The disposal of the case property shall be as per the direction of the trial Court. The trial Court is directed to take steps to secure the Appellant/1st accused to serve the remaining period of sentence.