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2014 DIGILAW 449 (CHH)

Dharmesh v. State Of Chhattisgarh

2014-12-05

CHANDRA BHUSHAN BAJPAI

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JUDGMENT CHANDRA BHUSHAN BAJPAI, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 09-05-2002 passed by the Sessions Judge, Raigarh, C.G. in Sessions Trial No. 179 of 2001 whereby and whereunder the learned trial Judge after holding the appellant guilty for committing rape with the prosecutrix (PW-2, name not mentioned) convicted him under Section 376(1) of the Indian Penal Code (for short 'the IPC) and sentenced the appellant rigorous imprisonment for 7 years and fine of Rs. 5000/- in default of payment of fine, to undergo additional rigorous imprisonment for 6 months. 2. The conviction is impugned on the ground that without there being any iota of evidence the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of the prosecution, on 20-02-2001, at about 11.45 a.m., the prosecutrix (PW-2) reached to Police Station Tamnar and lodged a report against the appellant. Police lodged the First Information Report (FIR) by registering the Crime No. 9 of 2001 under Sections 376 and 417 of the IPC. In the said report, the prosecutrix (PW-2) stated that about 2 years ago as the appellant offered her for bad act which was denied by the prosecutrix and thereafter the appellant made promise to keep her. Upon repeated request to visit his house, the prosecutrix (PW-2) visited the house of the appellant where the appellant used to live all alone and there when she went inside the house, after removing the clothes and forcibly falling her down, the appellant committed forcible intercourse even after the protest made by the prosecutrix (PW-2). After this, the appellant promised her for marriage and he committed this act many times. When she became pregnant, she informed this to the appellant for marriage and when the appellant not solemnized marriage, then she intimated the whole incident to her mother and parents and thereafter along with her parents she lodged this report. After registration of the FIR, police started investigation. After obtaining necessary permission, the prosecutrix (PW-2) was sent for medical examination. Doctor Smt. Madhu Dubey (PW-1) examined her and noticed 24 to 26 weeks of pregnancy, no external or internal injury, hymen old torn. As per assessment of the Doctor, the prosecutrix (PW-2) was between the age of 14 to 16 years. After obtaining necessary permission, the prosecutrix (PW-2) was sent for medical examination. Doctor Smt. Madhu Dubey (PW-1) examined her and noticed 24 to 26 weeks of pregnancy, no external or internal injury, hymen old torn. As per assessment of the Doctor, the prosecutrix (PW-2) was between the age of 14 to 16 years. For confirmation she advised for ossification test; she also prepared slide from the vaginal swab of the prosecutrix (PW-2), sealed it and handed over to the concerned Constable for chemical analysis. This Doctor gave her report as Ex.-P/1. On 12-04-2001 Doctor M.D. Joshi (PW-6), after necessary ossification test of the prosecutrix (PW-2), opined that the age of the prosecutrix (PW-2) was 15 to 16 years. He gave his report vide Ex.-P/14 along with X-ray plate (Ex.-P/15). The mark sheet (Ex.-P/9) was seized from the prosecutrix (PW-2) vide seizure memo Ex.-P/8. The spot map was prepared vide Ex.-P/5. The Patwari prepared map vide Ex.-P/6. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The slide prepared were sent for chemical analysis vide memo Ex.-P/17. The appellant was arrested. He was sent for medical examination. Doctor Iqbal Singh (PW-7), after examination, opined that there is no physio clinical evidence to declare the appellant unable to do intercourse. He gave his report vide Ex.-P/16. 4. After completion of the investigation, charge sheet was filed before the Judicial Magistrate First Class, Gharghoda on 29-08-2001, who, in turn, committed the case to the Court of Sessions, Raigarh, the learned Sessions Judge, during the trial, framed charges against the appellant for the offence under Section 376(1) of the IPC. The appellant denied the charges and prayed for trial. 5. During the trial, the prosecution examined 8 witnesses to prove the guilt of the appellant. The appellant was examined under Section 313 of the Code wherein he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. 7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 8. 6. After providing opportunity of hearing to the parties, the learned Sessions Judge convicted and sentenced the appellant as aforementioned. 7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that age of the prosecutrix (PW-2) is core issue in the matter as the appellant was convicted on the ground that the prosecutrix (PW-2) was below the age of 16 years; for other facts, the learned trial Court held that intercourse committed with the promise of marriage and also the element of consent was exist but as she was below the age of 16 years, the appellant was convicted under the scope of provisions of Section 375 description sixthly of the IPC. For proving the age, one mark sheet (Ex.-P/9) was seized by the Investigating Officer from the prosecutrix (PW-2) through seizure memo Ex.-P/8. The prosecution failed to prove the age by further investigation from the concerned school by seizure of the necessary register. The prosecution also not made witness any teacher who either issued the said mark sheet or recorded the date of birth of the prosecutrix (PW-2). Simply by filing this mark sheet (Ex.-P/9), the date of birth of the prosecutrix (PW-2) is not suo moto proved. Learned counsel for the appellant relied on the matter of Alamelu and Another vs. State represented by Inspector of Police, (2011) 2 SCC 385 along with two other criminal appeals wherein Hon'ble the Supreme Court held that 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. Learned counsel relied on para 42 and 43 of the above cited judgment which are as under:-- 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 Supp SCC 604 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. 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, 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." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal, (2003) 8 SCC 745 where this Court observed as follows:-- "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'." Learned counsel for the appellant submits that as the person who issued the mark sheet or made entry in the school register is not made witness or adduced by the prosecution, the Ex.-P/9 has no value for assessment of the age of the prosecutrix (PW-2). Learned counsel for the appellant further submitted that as per the ossification test (Ex.-P/14), the prosecutrix (PW-2) was, after necessary test, opined to be between the age of 15 to 16 years; as the present ossification test conducted after about 2 years, then the age of the prosecutrix (PW-2) as per the prosecution and assessed by the trial Court was below 16 years at the time of incident i.e. 2 years ago from 20-02-2001. For this the learned counsel placed reliance on the matter of Dethari vs. State of Chhattisgarh, 2007 (2) CGLJ 496 along with two other criminal appeals wherein this Court held at para 7 that:-- "7. So far as the age of prosecutrix is concerned, the father of the prosecutrix namely Damodar (P.W.4) has stated that the prosecutrix was aged about 15 years on the date of incident. In his cross examination in para 11 he had admitted that the date of birth of the prosecutrix was noted by the Kotwar but it is not with him and he cannot tell the actual date of birth of his daughter, but it may in the year 1982. He has also stated that at the time of her admission to the School, he had not taken birth certificate from Kotwar. He has further stated that he cannot tell as to what was the age of prosecutrix at the time of her admission to school. The outcome of his evidence is that he is unable to tell her actual date of birth or her age on the date of incident. Another evidence of age is the Ossification test report given by Dr. M.D. Joshi (P.W.12). According to him, the prosecutrix was in between 15 to 16 years on the date of incident. This witness has also admitted in his cross examination that the margin of error in such age, determined by the Ossification test, may be 3 years. Except this, there is no evidence pertaining to the age of the prosecutrix in this case. In Modi's Medical jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be upto three years on either side. Apart from this, a Photostat copy of the School Certificate was produced by the prosecution in which the date of birth of the prosecutrix was recorded as 20.4.1982, but this document was not proved on record. It is important to' mention that even the Headmaster of the school was not cited as a witness in the case and was never called by the prosecution to prove the alleged document by comparing the same with the original or with the records on which it was issued." Learned counsel for the appellant also placed reliance on the case of Sushil Lohar vs. State of Chhattisgarh, 2013 (1) CGLJ 347 wherein Bench of this Court observed that though in the school register her date of birth is recorded as 24-06-1996 but there is no source for recording, also the age was recorded in the school on the basis of assumption, along with other facts and circumstances the Court held that the conviction is not proper. Learned counsel for the appellant further placed reliance on the case of Mukesh Kumar vs. State of Chhattisgarh, 2007(3) CGLJ 41 wherein Bench of this Court held that mother and father had not given correct date of birth about the entries in the school register the basis of such entry has not been brought on record and such entry would not be of much value. According to ossification test report the prosecutrix was aged about 15 years, it came that she was between 16 to 18 years on the basis of evidence adduced by the prosecution, the learned Court held that offence under Section 376 IPC was not made out. As per the Modi's medical jurisprudence too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual cases even of the same provinces owing to the eccentricities of development. It is further stated that recent work has shown that range of error may be upto 3 years on either side. It is further stated that recent work has shown that range of error may be upto 3 years on either side. On the basis of entire submission, the learned counsel argued that as there is error in the assessment for 3 years on either side, it may not be held safely that the prosecutrix was under the age of 16 at the time of incident. Therefore, the benefit must go to the appellant since it is not proved beyond doubt. So far as the other ingredients of Section 376(1) of the IPC is concerned, as admitted by the prosecutrix (PW-2) she herself visited the house of the appellant and thereafter the incident happened. The entire description made by the prosecutrix (PW-2) at her para 1 of examination-in-chief goes to show that she was a consenting party and this continued for about 2 years until she got pregnant with pregnancy of 24 to 26 weeks, it goes to show that she was a consenting party. She also admitted at para 8 that whenever she used to visit the appellant's house she used to go as per her wish. It is also argued that as per the FIR (Ex.-P/3) itself, the appellant was living outside the village all alone in the house, though the appellant was having other house inside the village; the prosecutrix (PW-2) right from her first visit, used to visit the house of the appellant situated at outside of the village and the appellant was only living person in that house, this also goes to show that she was a consenting party. Even on entire cross-examination, the conduct, as surfaced, goes to show that she was a consenting party. Learned counsel for the appellant further submitted that the prosecutrix (PW-2) only proved the mark sheet (Ex.-P/9) by deposing that the same was seized from her, but this itself not proves the contents of the same. The prosecutrix (PW-2) stated in para 5 of her examination-in-chief that she is not knowing her date of birth. In her entire statement, she never deposed her date of birth or her age at the time of incident from day one. The prosecutrix (PW-2) stated in para 5 of her examination-in-chief that she is not knowing her date of birth. In her entire statement, she never deposed her date of birth or her age at the time of incident from day one. Father of the prosecutrix (PW-2), namely, Subhash (PW-3) also simply deposed that the age of her daughter was about 15 years, but in the cross-examination, he was unable to state that how many years ago he admitted the prosecutrix (PW-2) in the school; he further deposed in para 3 that at the time of admission in the school, he had stated the age of her daughter approximately and when he went to admit her daughter in school he had not stated the date of birth of the prosecutrix (PW-2). Mother of the prosecutrix was not examined; even there is no specific evidence regarding the date of birth in the knowledge of the prosecutrix (PW-2) and her father. As such, the prosecutrix (PW-2) was below the age of 16 years is not proved beyond the probable doubts, also on the other hand, it is proved that she was a consenting party, therefore, no offence is made out under Section376(1) of the IPC, hence, the appeal may be allowed and the appellant may be acquitted from the charges. 9. Per contra, learned counsel for the State/respondent opposed the argument advanced on behalf of the appellant and supported the judgment of conviction and order of sentence passed by the trial Court and would submit that judgment of the trial Court is well founded; there was no consent for the intercourse; the prosecutrix (PW-2) was below the age of 16 years at the time of incident as per the ossification test and also as per the mark sheet (Ex.-P/9); the father also orally stated the age as 15 years. The prosecutrix (PW-2) was not of the age where she could consent for the act. Hence, the trial Court has rightly convicted and sentenced the appellant and the appeal may be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the prosecution before the trial Court. 11. In the present case, the trial Court accepted the element of consent and convicted the appellant as the prosecutrix (PW-2) was below the age of 16 years at the time of incident. 10. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the prosecution before the trial Court. 11. In the present case, the trial Court accepted the element of consent and convicted the appellant as the prosecutrix (PW-2) was below the age of 16 years at the time of incident. In the present case, no Kotwari entries regarding the birth were collected or seized during the investigation. As the prosecutrix (PW-2) and her family belong to the same village and in the village the birth and death is recorded by Kotwar as per rules and same is maintained before the Registrar, death and birth. Why the Kotwari entries were not adduced in the evidence by the prosecution, no reason is assigned. The mark sheet seized from the prosecutrix (PW-2) and the same was exhibited at the time of evidence but by simply exhibiting, contents of the mark sheet is not proved automatically. For the same either the prosecutrix (PW-2) has to tell her date of birth or the concerned teacher who was maintaining the necessary school register in which the date of birth of the prosecutrix (PW-2) was written has to be seized during the investigation; it was the duty of the prosecution to make those teachers witnesses and prove the contents of the mark sheet or the date of birth of the prosecutrix (PW-2) ought to have been proved by proving proper maintained school register in which the entries for the date of birth is mentioned. By not collecting the above mentioned evidence and not adducing the concerned witnesses goes to show that on the basis of cited case law Alamelu and Another vs. State represented by Inspector of Police, (2011) 2 SCC 385 (supra), in the considered view of this Court, simply by saying that the said mark sheet is seized which is Ex.-P/9, the entries regarding the date of birth will not prove automatically. So far as Ex.-P/9 is concerned, it is of no use for the prosecution for proving the date of birth of the prosecutrix (PW-2) in absence of any proof as required abovementioned. 12. So far as Ex.-P/9 is concerned, it is of no use for the prosecution for proving the date of birth of the prosecutrix (PW-2) in absence of any proof as required abovementioned. 12. So far as the ossification test is concerned, about after 2 years of the incident, after lodging of the FIR, the ossification test was conducted wherein Doctor M.D. Joshi (PW-6) opined that on the basis of ossification the age of the prosecutrix (PW-2) is between 15 to 16 years; he gave his report vide Ex.-P/14. X-ray plate is Ex.-P/15. Though this witness denied that there may be scope of error for 2 to 3 years but as per case law cited above [Dethari vs. State of Chhattisgarh, "too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be upto three years on either side", if this be taken as true, then in the absence of circumstances and the facts, it would not be safe to hold that the prosecutrix (PW-2) was under the age of 16 years at the time of incident. The benefit of age should be given to the appellant for the same coupled with the fact that in the entire examination there is element of consent right from the day one as to why the prosecutrix (PW-2) of herself visited the house of the appellant which was situated outside the village and no family member of the appellant was living in the said house along with him and this description the prosecutrix (PW-2) gave herself in the first information report. Even on perusal of the entire evidence, it goes to show the prosecutrix (PW-2) was a consenting party and the appellant was convicted as she was held to be below the age of 16 years by the trial Court. 13. Even on perusal of the entire evidence, it goes to show the prosecutrix (PW-2) was a consenting party and the appellant was convicted as she was held to be below the age of 16 years by the trial Court. 13. Upon minute examination of the evidence, this Court is of the | considered view that the prosecution failed to prove beyond all reasonable doubts that the prosecutrix (PW-2) was below the age of 16 years at the time of commission of crime for the first time; if the same is not proved beyond doubts then the benefit must go to the appellant and upon minute examination of her statement made before the court and the finding as held to some extent by the trial Court would show that she was a consenting party. So far as the promise of marriage is concerned, it may not work right from the first incident when she herself visited the house of the appellant when there was no one, in absence of any threat and inducement, it would not be safe to hold that for those long two years the promise for marriage had been given and the same had been accepted till she became pregnant with pregnancy of 24 to 26 weeks and also nobody in the family observed these major changes in the prosecutrix (PW-2) after being pregnant. 14. Consequently, in the considered view of this Court, judgment of conviction and order of sentence passed by the trial Court against the appellant require interference. Therefore, the appeal filed by the appellant is hereby allowed and the appellant is acquitted from the charges framed against him under Section 376(1) of the IPC. The fine amount, if deposited, shall be refunded. 15. The appellant is reported to be on bail. He be set at liberty forthwith. His bail shall continue for a further period of 6 months as per requirement of Section 437-A of the Code. Appeal Allowed.