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2013 DIGILAW 141 (KAR)

B. Suresh v. State of Karnataka

2013-02-06

ANAND BYRAREDDY

body2013
JUDGMENT : Anand Byrareddy, J: Heard the learned Counsel for the appellant and the learned Government Pleader for the respondent-State. 2. The appellant was the accused, whereby it was alleged in the complaint against him, that the complainant's daughter Amba Rajeshwari, a minor, was enticed by the appellant on the pretext of being in love and promising to marry her, had abducted her from her home at Earanna Camp between the nights of 27th and 28th June 2006, at about 1.00 a.m., and took her to a temple at Dharmasthala and is said to have tied a 'taali' around her neck using a piece of turmeric and thread and making her to believe that he had married her and took her to the house of one Veeresh CW-5, the friend of the appellant at Karatagi Village, and had repeated that he and the daughter of the complainant Amba Rajeshwari were married, and resided there as husband and wife. It is alleged that he had committed rape of Amba Rajeshwari, without her consent. In the meanwhile, the complainant, finding that his daughter was missing from home, after making a futile search for her, had ultimately lodged a missing complaint with the Jurisdictional police on 1.7.2006. It is further alleged that the police traced the accused and the victim at Karatagi bus stand on the very day and they were apprehended and brought to the police station. This quick action on the part of the police was apparently possible because, the father of Amba Rajeshwari having traced the appellant and his daughter at Karatagi, had informed the police of the same while not mentioning this in the complaint, and it is on account of that circumstance that the police were able to secure the presence of the accused and the victim, immediately. Thereafter, a case had been registered against the appellant on the statement of the victim and ultimately, a case for offences punishable under Sections 366A and 376 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC' for brevity), was registered against the appellant. After further proceedings such as the" victim being sent for medical examination and recording of the statements of the several witnesses, the charges against the appellant were framed. The appellant had pleaded not guilty and claimed to be tried and the matter went to trial. After further proceedings such as the" victim being sent for medical examination and recording of the statements of the several witnesses, the charges against the appellant were framed. The appellant had pleaded not guilty and claimed to be tried and the matter went to trial. The prosecution examined PWs 1 to 12 as its witnesses and marked Exhibits P1 to P17, apart from marking Material objects 1 to 3. It was the case of the accused in his statement recorded under Section 313, that he was working as a driver with the father of the victim and that he was employed two months prior to the incident and he was driving the tractor belonging to the complainant. It was his further case that the appellant and the victim had willfully gone away to Dharmasthala and thereafter, stayed at the house of CW-5 and that there was consensual sex between the appellant and Amba Rajeshwari and that, had in fact married her at the temple, as per the wish of the victim herself. However, on the basis of the evidence of the prosecution, the Court below has found the accused to be guilty and has convicted the accused and imposed a punishment of rigorous imprisonment for a period of three years for an offence punishable under Section 366 IPC, and punishment of imprisonment for a period of seven years and a fine of Rs. 5,000/- for the offence punishable under Section 376 IPC. It is that which is under challenge in the present case on hand. 3. The learned Counsel for the appellant, while taking this Court through the evidence and the reasoning of the Court below, would primarily contend that the prosecution having alleged that the Court proceeding on the basis that the victim was a minor and therefore, even if there was consensual sex, it would be characterized as rape in view of the tenor of the relevant provisions of law, has resulted in a miscarriage of justice. The learned Counsel would draw attention to the documents on the basis of which the age of the victim has been accepted as being 16. The learned Counsel would draw attention to the documents on the basis of which the age of the victim has been accepted as being 16. Exhibit P16 is the school leaving certificate issued by the school in which the victim is said to have studied upto the V standard, which records her date of birth as being 1.6.1992 and therefore, as on the date of the incident, it is presumed that she was 16 years old and therefore, a minor. On the other hand, the appellant himself had produced a certificate issued by the school where she had studied from the V standard to VII Standard, though the same was not marked in evidence, indicating her date of birth as 2.5.1989. However, the Court below has ignored the same as it was sought to be produced by the appellant when he was asked whether he had anything to say in his defence and therefore, the same has not been marked in evidence, in support of his defence. The learned Counsel would also take this Court through the evidence of the several witnesses namely, the parents of the victim and the victim herself, to demonstrate that there was no certainly about the exact age of the victim. In the evidence of the complainant, he had mentioned that the girl was aged 13 and in the course of his evidence, the very complainant had said that she was more than 18 years old. Similarly, the mother of the victim had also reiterated that the victim was more than 18 years old. However, there is also the radiological test report which indicates that the age of the victim may be between 16 and 18 years. Having regard to these contradictory and inconsistent claims as to the age of the victim, it cannot be held that the prosecution had proved beyond all reasonable doubt that the victim was a minor and therefore, the seriousness of the offence was of a greater degree even if there was consensual sex between the appellant and the victim and it was the bounden duty of the prosecution to establish this circumstance beyond all reasonable doubt. In the absence of any such accuracy as to the age of the victim, to convict the appellant and to impose the stringent punishment which deprives him of his liberty for seven years, results in miscarriage of justice. In the absence of any such accuracy as to the age of the victim, to convict the appellant and to impose the stringent punishment which deprives him of his liberty for seven years, results in miscarriage of justice. In this regard, the learned Counsel has placed much reliance on several decisions. It is also pointed out that having regard to the fact that the victim had stayed in the house of PW4, without demur or without having raised any complaint or protest, and the fact that in her own evidence, there are no incriminating statements made against the accused appellant of the appellant having used force on her, and having regard to the victim's own statement that she was aged 20 and she had consented to have sex with the appellant, would absolve the appellant of all guilt and also having further admitted to have willfully gone along with the appellant and having stayed with him without any complaint, and in the absence of any allegation of force having been used against her by the appellant, no case could be said to have been made out against the prosecution and hence, the reasoning of the Court below in this regard is completely perverted and results in ignoring glaring circumstances which could not have been accepted. 4. The learned Government Pleader on the other hand, would contend that the school leaving certificate produced at Exhibit P-16, cannot be characterized as a got-up document or a document that can be negated. The document provides complete details of her admission to school and till such time that she left the school in the V Standard. Therefore, this document would clinch the question as to the age of the victim. The inconsistent statements having been elicited from the parents of the victim or the victim herself, cannot override the independent document issued by the school authorities at Exhibit P-16 that records her date of birth, coupled with the radiological report which also indicates that her age was between 16 and 18, would amply establish that the victim was a minor as on the date of the incident. Therefore, the Court below having proceeded on the footing that the victim was a minor as on the date of the incident, the fact that she had willfully accompanied the accused appellant and even had sex with him willfully, would be of no consequence, as the tenor of Sections 366-A and 376 are self-evident and by the very fact that the victim was a minor, the case stands established. There is no denial of the fact that the appellant had taken away the victim to Dharmasthala and stayed at the house of PW -4 overnight and thereafter, were brought to the village by the police. Hence, the case of the prosecution stands established. The inconsistent statements as to the age of the victim by the parents and the victim herself, can be attributed to lengthy cross-examination, resulting in such statements being elicited and no significance can be attached to such admissions by gullible rustics and therefore, the contention of the appellant that the age has not been established with any certainty and that there are no physical signs of force used on the victim, are of little significance. Further, he would place reliance on the decision of this Court reported in the case of Uday Vs. State of Karnataka (ILR 1996 Kar 312), wherein a learned Single Judge of this Court has addressed the aspect as to what amounts to consent or what amounts to there being no consent, and has opined that if it is against the will of the victim, it would amount to the act having been committed without her consent. The contention that Section 375 prescribes the ingredients necessary to constitute an offence of rape, has been indicative in extending the scope of what would amount. to there being no consent, by the learned Single Judge and that has been relied upon to assert that the appellant had induced the victim to believe that he had married her and therefore, forced himself on her and committed rape. Therefore, the same was without her consent and would necessarily bring it within the definition of rape. Hence, would submit that the prosecution has indeed established its case beyond all reasonable doubt. 5. Therefore, the same was without her consent and would necessarily bring it within the definition of rape. Hence, would submit that the prosecution has indeed established its case beyond all reasonable doubt. 5. By way of reply, the learned Counsel for the appellant would point out that the mere production of Exhibit P-16 and the reliance placed on the date of birth shown in the said document, cannot be the sole basis on which the age of the victim could be accepted. She would draw attention to several decided cases where the school certificate being used as proof of age, has entailed the examination of the school authorities and being further corroborated by other evidence. In the instant case, on the other hand, instead of there being corroboration of the age as reflected in Exhibit P-16, what is to be found are inconsistent statements and inconsistent evidence. Insofar as the radiological test report is concerned, the same cannot again be relied upon to hold that the victim was a minor when the report itself indicates that the victim could be aged between 16 to 18 years and it is to be presumed that the authority would have erred on the side of the lesser age of the victim and if 18 was the age also according to the report, it cannot with any degree of certainty, be concluded that the victim was 16 years old or less then 18. She would also submit that it was necessary to establish the basis on which the date of birth was entered in the school records, whether it was at the instance of the parents of the victim, or her guardian and the basis on which the date was mentioned to the school authorities. There is no effort made by the prosecution in that direction and therefore, the document being accepted as the gospel truth as to the age of the victim, would be to the disadvantage and prejudice of the appellant which would result in a gross miscarriage of justice. There is no effort made by the prosecution in that direction and therefore, the document being accepted as the gospel truth as to the age of the victim, would be to the disadvantage and prejudice of the appellant which would result in a gross miscarriage of justice. Insofar as the contention that the victim having been led to believe that she was married to the appellant and therefore, the appellant having had sex with her on that pretext, constituting an offence of rape as there was sex without her consent, as sought to be contended by the learned Government Pleader, would at best give rise to an offence punishable under Section 493 and would not amount to rape. With due respect to the opinion expressed by the learned Single Judge, the learned Counsel for the appellant would contend that Section 375 prescribes the ingredients of the offence constituting rape when it could be said to be without consent. In the absence of any such indication of the circumstance where the victim is misled to believe that she is married to the appellant and succumbs to having sex with the accused, it could not be said to be without consent with reference to Section 375 and it would be a case under Section 493 in respect of which there is no charge or accusation. Hence, the attempt on the part of the learned Government Pleader to hold that even if the victim was a major, the appellant having had sex with the victim in the belief that he had married her and therefore, there being no consent, is not tenable, applying the scope of Section 376 read with Section 375 and would hence submit that it cannot be said that the prosecution had made out a case beyond all reasonable doubt. 6. In the light of the above rival contentions and the material on record, and the reasoning of the Court below, the point for consideration is, whether the prosecution had established its case beyond all reasonable doubt, primarily as to whether the victim was a minor, in which event, proceeding on the basis that there was consensual sex between the appellant and the victim and that she had willfully gone along with the appellant, the law would presume that there was commission of rape, notwithstanding that there was such consensus. Therefore, it is crucial to address the material on record and the law as to whether the prosecution had established that the victim was a minor on the date of the incident, beyond all reasonable doubt. For otherwise, the sequence of events would indicate that there was consensus in the victim having gone along with the appellant and having stayed with him for several days in Dharmasthala and other places. In this regard, material evidence produced by the prosecution to establish the age of the victim is Exhibit P-16, apart from the Radiological Test report. The evidence of the victim - complainant and the mother of the victim, as already noticed, is inconsistent with the claim of the prosecution that the victim was a minor. Insofar as Exhibit P-16 is concerned, it is indeed a certificate issued by the Mandal Educational Officer, Mandal Parishad, Ainaville, recording the date of birth of the victim as 1.6.1992. The name of the victim's father is indicated, as also the name of a local guardian who is shown as Ayyala Satyanarayana. She has left the school on 28.06.2002. She is said to have admitted in that school on 24.07.2001. Apparently, she had studied in the II and III Standard in the school, left the school on 3.7.2001 and again rejoined on 24.07.2001 and studied the IV Standard and left school on 28.06.2002. She has left the school on 28.06.2002. She is said to have admitted in that school on 24.07.2001. Apparently, she had studied in the II and III Standard in the school, left the school on 3.7.2001 and again rejoined on 24.07.2001 and studied the IV Standard and left school on 28.06.2002. There is no witness examined to speak of the basis on which the date of birth was entered in the school register, whether it was a date furnished by the parents of the victim or her guardian or if the basis of such entry in the school records was a certificate issued by the Municipal Authorities at the time of her birth or the hospital or maternity home where she was born, in the absence of which, to place reliance on the date of birth entered in the school register maintained in a village school and to hold against the appellant, in the face of inconsistent evidence as to the date of birth or the age of the victim as stated by the several witnesses and in the face of a certificate that was sought to be produced by the appellant himself, said to have been issued by a school where she studied from V Standard to VII Standard on a piece of white paper, which though has not been marked in evidence, notwithstanding may not be fair to the appellant insofar as the radiological test report, on the basis of which it is also sought to be contended that the victim may have been a minor, cannot with any degree of certainty establish the age of the girl. As seen from the opinion expressed in Modi's Medical Jurisprudence and Toxicology 24th Edition, 2012, ossification of bones is helpful for determining age until ossification is completed, for skiagraphy has now made it possible to determine even in living persons, the extent of ossification, and the union of epiphysis in bones. Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India, it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphysis for the whole of India. Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India, it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphysis for the whole of India. However, from investigations carried out in certain provinces, it has been concluded that the age at which the union of epiphysis takes place in Indians, particularly of persons belonging to Bengal, Punjab and South India, is about two to three years in advance of the age incidence in Europeans, and that the epiphyseal union occurs in females somewhat earlier than in males. Further it is noted that in ascertaining the age of young persons, radiograms of several main joints of the upper or the lower extremity of one or both sides of the body should be taken, and an opinion should be given according to the table that is also set out in the text. However, it must be remembered that too much reliance should not be placed on the table as it merely indicates an average and is likely to vary in individual cases even of the same province, owing to the eccentricities of development. That according to Dr. H.S. Mehta, from puberty to the consolidation of skeleton (about 18 years in girls and about 20-21 years in boys), a fairly close estimate within a margin of two years may be made, mainly on the progress of the epiphyseal union (ossification test)'. In the instant case, the Medical Practitioner who has spoken to the radiological test report, has ambiguously stated the age to be 20 in his cross-examination, though has stated in his examination-in-chief, on the basis of the radiological test report that it was 17 to 18 years. Therefore, the Court placing reliance only on the school certificate, while ignoring the inconsistent claims as to the age of the victim, and to convict the appellant on the basis of that age, may not be tenable. Insofar as the contention of the learned Government Pleader that the decision of this Court in ILR 1996 Kar 312 would render the act of the appellant in having had sex with the victim even if she was major, as being one without her consent and therefore, falling within the definition of rape, is not evident from the ingredients of Section 375. The above decision has been reversed by the Apex Court in the case of Uday Vs. State of Karnataka ( (2003) 4 SCC 46 ). It is extensively spelt out by the Supreme Court therein as to how "consent" could be imputed. The said decision would clearly support the case of the appellant. In any event, Section 375 is reproduced herein for ready reference: "375- 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 or any person in whom 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.]" It would require the appellant to have committed the crime against the will of the victim or without her consent. On both these counts, it cannot be said that the prosecution has been able to establish the same. Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]" It would require the appellant to have committed the crime against the will of the victim or without her consent. On both these counts, it cannot be said that the prosecution has been able to establish the same. The further contention that the appellant having induced the victim to believe that he had married her and then to force himself on her, would amount to the crime of rape, as it is without her consent, is actually seeking to make out a case of an offence punishable under Section 493 and reliance sought to be placed on the decision reported is not tenable, as the said decision does not refer to the offence punishable under Section 493 to conclude that a person being misled into believing that she is married and to have sex, would amount to rape, as it is without her consent, is wholly untenable. The same cannot be accepted. 7. In the series of decisions referred to by the learned Counsel for the appellant, it is evident that the school certificate produced in each of those cases to assert the date of birth of the victim has been followed through by tendering evidence in support of the same either by the author of such certificates or other evidence, to establish that the date mentioned therein had been supplied by the witnesses concerned. There is no such exercise carried out in the present case on hand. On the other hand, the parents of the victim having made inconsistent statements, would not support the date of birth mentioned in the certificate. Accordingly, it cannot be said that the prosecution has established a case of abduction and rape, beyond all reasonable doubt. Insofar as the case sought to be pleaded in the alternative by the prosecution to the effect that there may be an offence punishable under Section 493, cannot also be sustained, as there was no such charge or complaint nor did the complainant support any such theory in her evidence. Therefore, there is no hesitation in holding that the Court below was not justified in finding a case for the prosecution in the light of the above discrepancies. Accordingly, the appeal is allowed. The judgment of the Court below is set-aside. The appellant is acquitted. Therefore, there is no hesitation in holding that the Court below was not justified in finding a case for the prosecution in the light of the above discrepancies. Accordingly, the appeal is allowed. The judgment of the Court below is set-aside. The appellant is acquitted. The fine amount if any deposited by the appellant, shall be refunded.