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2013 DIGILAW 203 (CHH)

SANJAY KUMAR v. STATE OF M. P. (NOW C. G. )

2013-07-08

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 20th August, 1998 passed by Additional Sessions Judge, Bemetara District Durg in Sessions Trial No. 33/98. By the impugned judgment accused/appellant Sanjay Kumar has been convicted under Section 376(1) IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. The case of the prosecution, in brief, is as under :- House of the appellant was situated adjacent to the house of prosecutrix (PW-1) and the appellant wanted to develop love affair with prosecutrix (PW-1). On 24-11-1997 at about 11.00 pm, the appellant came towards fence (badi) of one Panchu and called prosecutrix (PW-1) giving signal by coughing. Having heard the signal of the appellant, prosecutrix (PW-1) came out from her house and went to the badi of Panchu, where the appellant met her and the appellant caused her to lay down on the ground and committed sexual intercourse with her thrice. Thereafter, prosecutrix (PW-1) returned to her house. On 26-11-1997, at about 11.00 pm, the appellant again called prosecutrix (PW-1) in the badi and kissed prosecutrix (PW-1) and pressed her breasts. At that time, having heard noise of the some persons, prosecutrix (PW-1) ran away towards her home. Her father Nandulal (PW-9) was standing in front of the house. She narrated the incident to her father. Prosecutrix (PW-1) went to Police Chowki, Devkar along with her father and lodged First Information Report (Ex.P-1) in Police Chowki Devkar. Thereafter, it regular First Information Report was recorded in Police Station Saja for offence punishable under Section 376/354 IPC. Prosecutrix (PW-1) was sent to District Hospital, Durg for medical examination vide Ex.-P/5. Doctor Smt. Sushama Sinha (PW-7) examined prosecutrix (PW-1) and gave her report (Ex.-P/15), in which she found that the age of prosecutrix (PW-1) was near about 15 years. Doctor Smt. Sushama Sinha (PW-7) prepared slides of vaginal swab of prosecutrix (PW-1) and handed over them to Constable for their chemical examination. The appellant was also sent to Primary Health Center, Saja for medical examination. Doctor Sunil Singh (PW-6) examined him and gave his report (Ex.-P/13), in which he found that the appellant was capable to perform sexual intercourse. In further investigation, skirt, underwear and mark-sheet of prosecutrix (PW-1) were seized from prosecutrix (PW-1) vide Ex.-P/2. The appellant was also sent to Primary Health Center, Saja for medical examination. Doctor Sunil Singh (PW-6) examined him and gave his report (Ex.-P/13), in which he found that the appellant was capable to perform sexual intercourse. In further investigation, skirt, underwear and mark-sheet of prosecutrix (PW-1) were seized from prosecutrix (PW-1) vide Ex.-P/2. Spot map (Ex.P/3) was prepared by Revenue Inspector Ram Kumar Tiwari (PW-4). Underwear of the appellant was also seized vide Ex.-P/7. Seized articles were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination. Copy of the School Admission Register was obtained from Head Master Marha Ram Sahu (PW-8). After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bemetara, who, in turn, committed the case to the Court of Session, Durg, from where it was received on transfer by Additional Sessions Judge, Bemetara, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. In support of its case, the prosecution has examined prosecutrix (PW-1), Kamla (PW-2), Sandhya (PW-3), Revenue Inspector Ram Kumar Tiwari (PW-4), Assistant Sub-Inspector K.B. Singh (PW-5), Doctor Sunil Singh (PW-6), Doctor Smt. Sushama Sinha (PW-7), Head Master Marha Ram Sahu (PW-8), Nandulal (PW-9, father of the prosecutrix) and Mul Singh (PW-10). The appellant did not examine any witness in his defence. 4. Shri Vishnu Koshta, learned counsel for the appellant argued that on the date of incident, the age of prosecutrix (PW-1) was above 16 years. The documents produced by the prosecution relating to the age of prosecutrix (PW-1) were not duly proved by it. He further argued that looking to the medical evidence and evidence of prosecutrix (PW-1), it is established that prosecutrix (PW-1) was a consenting party to sexual intercourse. Evidence of the prosecutrix (PW-1) does not inspire confidence. The finding of the learned Additional Sessions Judge is liable to be set aside and the appellant is entitled for acquittal. He placed reliance on Ravinder Singh Gorkhi Vs. State of U.P., AIR 2006 SC 2157 and Babloo Pasi Vs. State of Jharkhand & anr., AIR 2009 SC 314 . 5. Shri Ashish Shukla, learned Govt. Advocate appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 6. State of U.P., AIR 2006 SC 2157 and Babloo Pasi Vs. State of Jharkhand & anr., AIR 2009 SC 314 . 5. Shri Ashish Shukla, learned Govt. Advocate appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 6. Having heard rival contentions of learned counsel for both the parties, I have perused record of Sessions Trial No.33/98. 7. Now, I shall examine whether on the date of incident the age of prosecutrix (PW-1) was below 16 years or not? 8. Evidence of parents of a victim girl is material for proving her age. In the instant case, at the time of deposition the age of prosecutrix (PW-1) was mentioned as 15 years. Nandulal (PW-9) deposed that on the date of incident, prosecutrix (PW-1) was studying in Class 8th and at that time the age of prosecutrix (PW-1) was 14 years. Doctor Smt. Sushama Sinha (PW-7), who examined prosecutrix (PW-1), also deposed that the age of prosecutrix (PW-1) was, on the date of examination 15 years. She further deposed that she gave her report (Ex.-P/15). In Ex.-P/15, it is mentioned that the age of prosecutrix (PW-1) was near about 15 years on the date of medical examination. 9. In Alamelu and another Vs. State, Represented by Inspector of Police AIR 2011 SC 715 , the Hon'ble Supreme Court observed thus: "38. .......... 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 Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the 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 date of birth is examined. ........" 10. In State of Chhattisgarh Vs. Lekhram (2006) 5 SCC 736 , the Hon'ble Supreme Court observed thus: "A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. ........" 10. In State of Chhattisgarh Vs. Lekhram (2006) 5 SCC 736 , the Hon'ble Supreme Court observed thus: "A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix." 11. In Shekara Vs. State of Karnataka (2009) 14 SCC 76 , the Hon'ble Supreme Court observed as follows: "6. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster or the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P-10(a) as the relevant entry on the basis of which Ext. P-9 was issued." 12. In Arjun Singh Vs. State of H.P., 2009 Cri.L.J. 1332 (SC), the Hon'ble Supreme Court observed as follows: "7. In State of Chhattisgarh v. Lekhram [ 2006(5) SCC 736 ] it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). It may be true that the entry of the school register is not conclusive but it has evidentiary value." 13. It may be true that the entry of the school register is not conclusive but it has evidentiary value." 13. In the instant case, Marha Ram Sahu (PW-8) who was Head Master of the school and who made entry in Dakhil Kharij Panji was examined by the prosecution. Marha Ram Sahu (PW-8) deposed that he was posted as Head Master from July, 84 in Girls' Primary School, Devkar. He further deposed that he had given a true copy of the Dakhil Kharij Register of the Girls' Primary School, Devkar. He further deposed that in the said register at serial No. 126 the date of birth of prosecutrix (PW-1) is mentioned as 07-10-1982. Its original is Ex.-P/17 and copy is Ex.-P/17C. Looking to the evidence of Marha Ram Sahu (PW-8) and Ex.-P/17C, it appears that the date of birth of prosecutrix (PW-1) is 07-10-1982. 14. Doctor Smt. Sushama Sinha (PW-7) deposed that she examined prosecutrix (PW-1) and gave her report (Ex.-P/15). She further deposed that on examination she found that prosecutrix had 28 teeth, 14 in each jaw. According to opinion of Doctor Smt. Sushama Sinha (PW-7) the age of prosecutrix (PW-1) was 15 years on the date of her examination. 15. Nandulal (PW-9, father of the prosecutrix) in paragraph 5 of his cross-examination specifically deposed that he had admitted prosecutrix (PW-1) in the school. He further deposed that he gave paper regarding the date of birth of prosecutrix (PW-1). Marha Ram Sahu (PW-8) deposed that the date of birth of prosecutrix (PW-1) was stated by her father Nandulal (PW-9). He further deposed that Nandulal (PW-9) told him that the date of birth of prosecutrix (PW-1) was 07-10-1982. In Ex.-P/17, father of prosecutrix (Nandulal (PW-9)) certified that the date of birth of prosecutrix (PW-1) is 07-10-1982. In Ex.P/17C in column no.9, it is mentioned that:–– ^^eSa izekf.kr djrk gw¡ fd esjh iq=h yhyk dqekjh dh tUe frfFk 7&10&82 lkr vDVwcj lu~ mUuhl lkS C;klh dh gSA** 16. In the instant case, looking to the evidence of Marha Ram Sahu (PW-8), Nandulal (PW-9) and Doctor Smt. Sushama Sinha (PW-7) and Ex.P/17C, it appears that the date of birth of prosecutrix (PW-1) is 07-10-1982. The date of birth of prosecutrix (PW-1) is 07-10-1982 and the date of incident is 24-11-1997, thus, the age of prosecutrix (PW-1) was 15 years, 1 month and 17 days on the date of incident. The date of birth of prosecutrix (PW-1) is 07-10-1982 and the date of incident is 24-11-1997, thus, the age of prosecutrix (PW-1) was 15 years, 1 month and 17 days on the date of incident. Therefore, it reveals that prosecutrix (PW-1) was below 16 years of age on the date of incident. 17. Now, I shall examine whether offence under Section 376 IPC is made out against the appellant or not. 18. Prosecutrix (PW-1) deposed that on November 1997 at about 11.00 pm, she was sleeping along with her father and sisters, the appellant came towards badi and called her by giving signal by coughing. Having heard of his signal, she came out from her house, then the appellant caught her and caused her to fall down and removed her clothes and inserted his penis into vagina of prosecutrix (PW-1) and committed sexual intercourse. The appellant committed sexual intercourse with her thrice. She further deposed that the letters D1 to D3 were written by her. It is also true that she sent the letters to the appellant. It is also true that in photograph (Ex.-D/4) she is present along with the appellant. 19. Nandulal (PW-9) deposed that prosecutrix (PW-1) did not disclose regarding rape to him. Prosecutrix (PW-1) deposed that when the appellant committed sexual intercourse with her, she was lying. She further deposed that she did not disclose the incident to her family members. She further deposed that the appellant also wrote a letter to her. She further deposed that there was love affair between them. 20. Looking to the evidence of prosecutrix (PW-1), Ex.-D1 to D3 and D4, it is established that sexual intercourse was committed with prosecutrix (PW-1) with her consent. Therefore, she was a consenting party to sexual intercourse but the age of prosecutrix (PW-1) was below 16 years on the date of incident, hence her consent was of no consequence and was immaterial. 21. For the foregoing reasons, I do not find any infirmity in the finding recorded by the learned Additional Sessions Judge and also see no reason to interference with the quantum of punishment, therefore, the appeal fails and is accordingly dismissed. The appellant is on bail. He shall surrender before the trial Court to serve the remaining part of sentence, if any. Copy of this judgment be sent to the concerned Court for information and compliance. Appeal Dismissed.