certain cases to prove the date of birth of a person by virtue of the
provisions of section 35 of the Evidence Act. A reading of section
35 of the Evidence Act indicates that to render a document
admissible under it, three conditions must be satisfied, the first
being 'that the entry that is relied upon must be one in a public or
other official book register or record; the second being 'that it must
be an entry stating a fact in issue or relevant fact;' and the third
being 'that it must have been made by a public servant in discharge
of his official duty or any other person in performance of a duty
specially enjoined by law.' An entry relating to date of birth made
in a school register would be relevant and admissible under
section 35 of the Evidence Act, but, it has been held, that such
entry would not have much evidentiary value to prove the age of
the person in the absence of material on which the age was recorded.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.956 OF 2010
Sandeep Janaji Konde V The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
DATED : 4th AUGUST, 2015
Citation; 2016 ALLMR(CRI)1433
1 This Appeal is directed against the judgment and
order dated 16th November 2010 delivered by the Addl. Sessions
Judge, in Sessions Case No.358 of 2008, convicting the appellant
who was the sole accused in the said case, of an offence
punishable under section 376 of the IPC, and sentencing him to
suffer Rigorous Imprisonment for a period of 10 years, and to pay
a fine of Rs.10,000/, in default to suffer Rigorous Imprisonment
for six months.
2 The facts of the case, as can be seen from the Column
No.16 of the printed prescribed proforma of the police report are
as follows :
That the appellant, during the period of about 5 – 6
months prior to 18th January 2008, had, time to time in the house
of the First Informant, committed rape on the minor daughter of
the First Informant, aged 16 years, by sometimes giving a false
promise of marriage or sometimes by beating, abusing and
threatening her. That, by repeatedly committing forcible sexual
intercourse with the daughter of the First Informant, the
appellant made her pregnant, and the said daughter gave birth to
a dead child. The appellant had thus, committed offences
punishable under section 376 IPC, 323 IPC, 504 IPC and 506 of
the IPC.
3 The prosecution case which could be best gathered
from the testimony of the First Informant Kantabai (PW 2), may be
stated thus :
That Kantabai has four children and the victim “V”
(name not disclosed to prevent disclosure of identity) is the oldest
amongst them. The victim was studying in a school. She was in 8th
standard. The appellant was known to the victim and to the
family of Kantabai. Fasabai – sisterinlaw of Kantabai – from the
physical appearance of the victim, suspected that she was
indulging in sex with someone, and expressed this suspicion
to Kantabai. Kantabai then asked the victim whether she
had any relations with anyone when the victim told her the name
of the appellant. The victim told Kantabai that she used to meet
the appellant, and that the appellant used to come to her and that,
they both were in physical relationship. Kantabai also learnt that
the victim had become pregnant from the appellant. She and her
husband Maruti (PW 3) then took the victim to Junnar Police
Station, but instead of lodging a report with the police, entered
into negotiations with the relatives of the appellant. A meeting
took place in the village when the appellant and his family
members agreed that the appellant would marry the victim. The
date of marriage was also fixed as 11/2/2008. In the meantime,
the victim delivered a female child, but the child was found to be
dead. The father of the appellant thereafter refused to perform the
marriage of the appellant with the victim. Kantabai then went to
the police station and lodged a report against the appellant
alleging commission of the offences punishable under section 376
IPC, 504 IPC, 506 IPC, 420 IPC and 323 of the IPC read with
section 34 of the IPC. In the course of investigation, not only the
appellant, but his family members were also arrested. They were,
however, released under section 169 of the Code of Criminal
Procedure. After completion of investigation, a chargesheet came
to be filed against the appellant who was prosecuted and
convicted, as aforesaid.
4 The prosecution examined 9(nine) witnesses during
the trial. The first witness is the victim herself and the second
witness is the First Informant Kantabai. Maruti – husband of
Kantabai and father of the victim is the third witness. The fourth
witness Pandharinath Lande is the Police Patil of the village in
which the victim and the appellant resided. The fifth witness
Dr.Ganesh Ingawale is the Medical Officer attached to the Rural
Hospital, Junnar, at the material time. He had examined the victim
medically on 21st January 2008. He had also conducted post
mortem examination on the dead body of the female child born to
the victim. The sixth witness Shivram Date was the Head Master of
the New English School in which the victim was studying. He has
been examined to show the date of birth of the victim. The seventh
witness Fasabai, it may be recalled, is the sisterinlaw of Kantabai.
The eighth witness Govind, a Head Constable of Police is the one
who had performed the Inquest Panchnama in respect of the dead
body of the female child born to the victim. The ninth and the last
witness Vilas Jadhav, Assistant Police Inspector who was attached
to Junnar Police Station at the material time, is the Investigating
Officer in the matter.
5 I have heard Mr.D.H. Kumthekar, the learned counsel
for the appellant. I have heard Mr.Deepak Thakre, learned APP
for the State. With their assistance, I have gone through the entire
evidence adduced during the trial. I have also carefully gone
through the impugned judgment.
6 Mr.Kumthekar contended that the conviction of the
appellant, as recorded by the trial court, is patently illegal. He
submitted that it was clear from the prosecution case itself that the
victim was a consenting party to the intercourse that was taking
place between the appellant and the victim over a period of time.
He submitted that simply because the parents of the appellant
refused to have the appellant married to the victim, a false case
alleging rape was registered against the appellant. He also
submitted that though an attempt was made to show that the
victim was below 16 years of age, at the material time, there was
no satisfactory evidence in that regard. He submitted that since
there was no evidence to show that the victim, at the material
time, was below 16 years of age and that since the victim was a
consenting party, there would be no question of the appellant
being guilty of an offence punishable under section 376 of the IPC.
7 Mr.Thakre, learned APP, in the course of arguments,
conceded that the victim was, apparently, a consenting party. He
conceded that the allegation that the appellant had threatened the
victim, and had forced her to have sexual intercourse with him,
was not acceptable in view of the evidence adduced during the
trial, and more particularly, because of the acquittal of the
appellant with respect to the offences punishable under section
323 IPC, 504 IPC and 506 of the IPC. He, however, submitted that
since the age of the victim was less than 16 years at the material
time, the question of her consent was immaterial, and that, the
appellant, therefore, was guilty of rape.
8 Inspite of the concession made by the learned APP
that the evidence did indicate the victim to be a consenting party, I
have examined the evidence with a view to arriving at a finding on
this aspect. Now, in her evidence, the victim has stated that she
knew the appellant and that he had been residing near her house.
That the appellant was taking education in ITI, Manikpur, and that
she got acquainted with the appellant who used to meet her after
the school would be over. The appellant used to tell the victim
that he loved her and enquired whether she too loved him, to
which the victim had replied in negative. That on one occasion,
when the sister of the victim was taken to hospital by the victim’s
father and mother and when there was nobody in the victim’s
house, except the victim, the appellant came there and committed
rape on her. The appellant had given threats to the victim that he
would kill her family members if she disclosed the incident to
anyone. That, thereafter, on 2 to 3 times, the appellant similarly
raped the victim. That the victim then became pregnant which
came within the knowledge of the victim’s mother. The victim has
then stated about a meeting that took place in the village and
about the decision that was arrived at with the aid of the Tanta
Mukti Samiti in the village, whereby it was agreed that the
appellant should marry the victim. The victim also stated that the
date of marriage was fixed as 11/02/2008, but that after the baby
was born dead, the parents of the appellant refused to have the
marriage between the appellant and the victim performed. The
evidence of Kantabai shows that what she learnt from the victim
was that the victim was having physical relations with the
appellant. Kantabai never claimed that the victim had any time told
her that the appellant had kept such physical relations with her
against the wish of the victim, or by threatening her. What Kantabai
claims as having learned from the victim was that the victim was
having physical relations with the appellant and not that the
appellant had committed rape on her.
9 In his evidence, Maruti (PW 3), father of the victim
said that when the fact that the victim was pregnant was revealed,
and when inquiries were made with the victim, the victim had told
him that the appellant had committed rape on her. Maruti stated
that the victim had told him that the appellant had slapped her –
a fact which was never stated by the victim herself. Maruti also
says about learning that the appellant used to visit the house in
the absence of the family members of the victim. He also says
about a decision that the appellant would marry the victim taking
place, and even the date of marriage being fixed as 11/02/2008.
10 Though the victim and Maruti had tried to suggest
that the acts of sexual intercourse committed by the appellant
with the victim were without the consent of the victim, it is not
possible to believe the same. It may be recalled that Kantabai has
never said that the acts of the appellant were against the wishes of
the victim, or that the victim, at any time said to Kantabai that the
appellant had committed rape on her. Obviously, after the
appellant had refused to marry the victim, the relations between
the families of the appellant and the victim became strained and a
police report alleging commission of rape by the appellant came to
be lodged. Evidently, therefore, some statements have been made
by the victim and by Maruti to the effect that the appellant had
committed 'rape' on the victim from time to time by giving threats
to her, but the tenor of their evidence leaves no manner of doubt
that what the victim actually told to her parents and what they
actually learnt was about the physical relations between the
appellant and the victim and not about the appellant having raped
the victim.
11 In this context, the evidence of Pandharinath (PW 4) –
Police Patil is significant. According to him, Maruti had met him
and told him that his (Maruti's) daughter was 'having illicit
relationship with Sandip'. According to Pandharinath, Maruti told
him that a meeting was to be held in the village as the victim had
become pregnant from the appellant. Pandharinath stated that it
was agreed in the meeting that the marriage of the victim was to
be performed with the appellant. In the crossexamination, it was
suggested to him that no such meeting had taken place, and there
was no such proposal of marriage, but this has been denied by this
witness. Even Fasabai (PW 7) speaks of the relationship between
Vijaya and Sandip as an 'affair'. She does not state that she learnt
either from the victim or from her father or mother, that the
appellant had committed rape on her.
12 It is not possible to accept that the victim was forced
by the appellant to keep sexual relations with him. It is clear that
the relations between the victim and the appellant came to light
only because the victim had become pregnant. Even thereafter,
neither the victim nor Kantabai nor Maruti had any objection to
have the victim's marriage performed with the appellant. Rather,
they were insisting on such a marriage and it was only after the
parents of the appellant refused to have such marriage performed
that the complaint came to be lodged. The theory of the victim
that the appellant had threatened that he would kill her parents
and that, therefore, she did not disclose the incident to anyone,
cannot be accepted. The acts of sexual intercourse were taking
place repeatedly within a span of about 5 – 6 months, and the
same would not have been possible without the consent of the
victim.
13 It is in this context that the question of age of the
victim becomes important. It is because if the victim was below 16
years of age, at the material time, then the appellant would be
guilty of rape even if the victim had consented for the acts.
14 Since the prosecution case was that the sexual intercourse
that had been taking place between the appellant and the
victim was against the will of the victim, and without her consent,
the question of the age of the victim was not focused during the
trial. As shall be discussed later, this aspect was dealt with by the
trial court in an evasive manner. In the charge that was framed
against the appellant, the victim has been described as of '16
years.' The relevant head of the charge reads as under :
“That you accused 5 to 6 months prior to
18/1/2008 at about 5.00 p.m and thereafter from
time to time till 18/1/2008 at the house of
complainant Sou.Kantabai Maruti Gaweri, at
village Keli (Gawarwadi), Taluka Junnar, Pune,
committed rape on minor girl Miss.Vijaya Maruti
Gawari, aged 16 years and thereby committed an
offence punishable u/s.376 of the Indian Penal
Code and within my cognizance.”
(emphasis supplied)
15 The age of a person is to be proved like any other
thing. The date of birth of a person is expected to be known to his
or her parents. The date of birth of a person can be given by those
who had witnessed the birth of the said person. In this case,
Kantabai (PW 2) and Maruti (PW 3) who are the mother and
father of the victim were expected to give her date of birth, but
surprisingly, none of them has given it. None of them was
questioned during their examinationinchief about the date of
birth of the victim. None of them has, therefore, stated directly or
indirectly that the victim was below 16 years of age at the material
time. On the contrary, Maruti has stated that, that the victim 'was
aged 16 years at the time of the incident' in his examinationinchief
itself. The police report also referred to the victim as of '16
years', and it has already been observed earlier that even the
charge framed against the appellant proceeded on that basis.
When the victim is referred to as of 16 years, it must be taken as
she having completed 16 years of age, and in any case, 'of 16
years' cannot be construed as equivalent to 'below 16 years'. Even
the trial Judge was apparently alive to this aspect, as can be seen
from the points for determination framed by him in which (point
no.1) he described the prosecutrix/victim as 'aged less than 16
years'. The learned Judge who had, in the charge framed against
the appellant, had described the victim as 'aged 16 years', perhaps
felt the necessity of referring to her as 'aged less than 16 years'
because he could see the difficulties in accepting that the victim
was not a consenting party to the acts of intercourse. He,
however, did not amend the charge accordingly.
16 Anyway, without going into the question of prejudice
being caused to the appellant by there being no mention in the
charge about the victim being of less than 16 years, what was the
evidence regarding the age of the victim, may be examined. It has
been observed earlier that her date of birth was not given by
Kantabai or Maruti. It is quite interesting to note that her date of
birth was given by the victim herself. The very first sentence in the
notes of her evidence in examinationinchief reads as :
“my birth has taken place on 11th December 1992”
Now, obviously, a person cannot have the memory as to when he
or she was born. Such a fact cannot be said to be within the
personal knowledge of the person making such a claim. A person
may believe in what he would learn from his parents and other
older relatives who would know of his date of birth. When the
date of birth of the victim was got to be ascertained not from her
father or mother who both were examined as witness, but from
the victim herself, such an attempt to 'prove' the age of the victim,
needs to be disapproved. Anyway, reliance has been placed on the
School Leaving Certificate issued by New English School, Aptale,
Junnar in which the victim had been studying. This certificate
was tendered in evidence (Exhibit28). In this certificate, the age
of the victim has been mentioned as '11/12/1992'. This certificate
also shows that the victim was studying in the 9th standard, and
that her name was removed from the rolls on account of her
continuous absence. This certificate (Exhibit28) was produced
before the Court by Shivram Date (PW6) – Head Master of the
said New English School. His evidence shows that he knew the
procedure of admission in the school, and that for taking
admission in the school, one has to bring the School Leaving
Certificate. His evidence also shows that the school had received
one letter from Junnar Police Station regarding the date of birth of
the victim and the school had then supplied the copy of the School
Leaving Certificate to the police. The School Leaving Certificate
has not been signed by this witness, and according to him, it bears
the signature of the former Head Master of the said School. In the
crossexamination, it is revealed that the victim had taken
admission in the said School on 9th June 2005, and that her name
had been entered in the School records after she had brought the
earlier School Leaving Certificate. In the crossexamination, this
witness admitted that the entries relating to the victim in the
General Register of New English School were not made 'during his
period'.
17 In this case, the ossification test which is considered
as quite reliable and which is usually done to ascertain the age of a
person, was not performed. Therefore, a conclusion about the age
of the victim is expected to be arrived at on the basis of the
victim's own statement about her date of birth and from the
School Leaving Certificate (Exhibit28).
18 A School Leaving Certificate would be admissible in
certain cases to prove the date of birth of a person by virtue of the
provisions of section 35 of the Evidence Act. A reading of section
35 of the Evidence Act indicates that to render a document
admissible under it, three conditions must be satisfied, the first
being 'that the entry that is relied upon must be one in a public or
other official book register or record; the second being 'that it must
be an entry stating a fact in issue or relevant fact;' and the third
being 'that it must have been made by a public servant in discharge
of his official duty or any other person in performance of a duty
specially enjoined by law.' An entry relating to date of birth made
in a school register would be relevant and admissible under
section 35 of the Evidence Act, but, it has been held, that such
entry would not have much evidentiary value to prove the age of
the person in the absence of material on which the age was recorded.
19 In this case, the entries in the school register were not
at all produced. Indeed, whether the conditions to render a
document admissible under section 35 of the Evidence Act had
been satisfied in the case is doubtful, but assuming that the
required conditions were satisfied, still, it was essential that the
register containing the relevant entries ought to have been produced
before the Court. What has been produced is a certificate said to
have been written on the basis of the entries made in the relevant
school register. Now, this certificate has not been issued by
Shivram Date (PW 6), and had been signed by the 'previous Head
Master'. It was not even signed in the presence of Shivram Date.
He even does not state that he was conversant with the signature
of the 'former Head Master.' He does not even give his name.
There is, therefore, nothing to show that the School Leaving
Certificate (Exhibit28) contains an accurate record of the entries
in the General Register maintained by the said New English
School, even if the question of the weight to be attached to such
entries in the absence of knowledge of the source of these entries,
is kept aside. No person who has copied the entries in the General
Register maintained by the school in the School Leaving Certificate
(Exhibit28), has been examined.
20 Even if it is presumed that the School Leaving
Certificate contains an accurate record of the entries made in the
General Register maintained by the New English School, it would
be dangerous to come to the conclusion about the date of birth of
the victim solely on that basis. What was important was the date
of her birth mentioned in the School Leaving Certificate issued by
the victim's earlier school. At the time of entering the date of birth
in a School register, information about the same is given generally
by someone – generally the parents of the child – and it is the
knowledge of the person who gives that information is the basis of
the entry. Here, when neither the father nor the mother gives the
date of birth of the victim, and none of them is even asked about the
date of birth , it would be dangerous to conclude that the date of
birth of the victim mentioned therein, must be the correct date.
Whether the date of birth was satisfactorily proved would – like
any other fact – need determination on consideration of all the
relevant aspects of the matter. It is a cardinal principle of the rules
of evidence that the best evidence such as the nature of the case
would permit, must be given in all the cases. There could have been
better evidence about the date of birth of the victim. The
Investigating Officer could have easily procured the birth
certificate, or other more satisfactory evidence regarding the date
of birth of the victim when the age of the victim was the crucial
factor in determining the guilt of the appellant. There is also no
justification for not doing the ossification test. The Investigating
Officer had the audacity to reply – when questioned in that regard
in the crossexamination – that he did not do so because 'he did
not feel it necessary'. It was suggested to him that actually he had
sent the victim for medical examination, but since he received a
certificate showing that she was aged more than 16 years, he did
not produce it. This suggestion has been denied by him, and this
aspect of the matter may be left at that, but the fact remains that
no efforts to collect satisfactory evidence about the date of birth of
the victim, were made. This was perhaps due to the fact that the
case that was sought to be made out was of repeated sexual intercourse
against the will and without the consent of the victim, in
which case the question of age would not have been decisive.
21 I am unable to hold that, that the age of victim was
below 16 years of age at the material time, was satisfactorily
established in this case. In the light of the aforesaid weaknesses,
in the evidence of this aspect, there arises a reasonable doubt
about the age of the victim. At the cost of repetition, it must be
held that when her own father says that she was at the material
time 'of 16 years' does not give her date of birth; and the police
report also refers to the victim as 'of 16 years', and when the court
also understood the case put forth by the prosecution to be that
the victim was 'aged 16 years' – as is evident from the charge
framed, it would not be safe to conclude that she was certainly
below 16 years of age at the material time.
22 Since the victim appeared to be a consenting party to
the acts of sexual intercourse, it was absolutely essential to prove
the age of the victim as 'less than 16 years' by satisfactory evidence
and beyond reasonable doubt. Since the same has not been done,
it is not possible to hold that the appellant had committed rape on
the victim.
23 The judgment delivered by the learned Addl. Sessions
Judge makes a curious reading in this regard. The defence did
canvass before him that, that the age of the victim was less than
16 years, had not been satisfactorily established. The learned
Judge in that regard, observed that the concerned Head Master
'had duly proved the School Leaving Certificate by identifying the
signature of the earlier Head Master'. Now, this statement
appearing in the judgment is wrong and improper for atleast two
reasons. In the first place, Shri Date (PW 6) has nowhere stated
that he identified the signature of the former Head Master. What he
said is that the certificate bears the signature of the former Head
Master which was certainly not equivalent to saying that he
identifies the signature. This was particularly so because he did
not even name that Head Master, or that he knew him; and did not
state that he was acquainted with his handwriting or signature.
Secondly, and more importantly, the learned Judge did not realize
that what was to be proved was not the School Leaving Certificate,
but what was to be proved was the date of birth of the victim. The
entries in the General Register maintained by the School would be
circumstantial evidence of the date of birth and a certificate issued
on the basis of the said entries would be the secondary evidence of
the entries. Therefore, what the learned Judge should have
considered was whether 'the date of birth of the victim as
mentioned in the register was correct', (and that too if he was
satisfied that the School Leaving Certificate reproduced the entry
in the register correctly and truly) and not whether 'the School
Leaving Certificate had been proved'. It was the correctness of the
entry which had been made, that was necessary to be ascertained.
The learned Judge observed that 'the defence had not brought any
record or material to show that the School Leaving Certificate was
a fabricated document', or that 'Shivram Date was not a reliable
witness', which observations are patently improper and uncalled
for. Regarding the observation about reliability of Shivram Date,
Shivram Date was not the one who had the knowledge about the
date of birth of the victim, or even the knowledge as to, on the
basis of what record it had been entered. The question of his
reliability, therefore, did not arise at all. He never took the
responsibility of claiming that the victim's date of birth was really
'11/12/1992'.
24 The learned Judge has resorted to somewhat
fallacious reasoning. When the defence attempted to focus on the
victim being a consenting party, the learned Judge avoided to form
a conclusive opinion in that regard by saying that anyway the
victim was below 16 years of age, and therefore, the question of
consent was not conclusive or relevant. When the defence
attempted to focus on the victim's age not having been
satisfactorily proved, the learned Judge avoided going deeper into
that too, by saying that the case being not of consent, the age of the
victim did not matter.
25 In my opinion, since the victim appeared to be a
consenting party to the acts of sexual intercourse between her
and the appellant, it was necessary for the prosecution to establish
by satisfactory evidence, that her age at the material time was less
than 16 years, if the charge against the appellant was to succeed.
Since the evidence of the age of the victim was not satisfactory,
and since satisfactory evidence which could have been obtained
was not obtained, it would be dangerous to hold that the victim
was certainly below 16 years of age when the acts of sexual intercourse
between her and the appellant took place.
26 The appellant, therefore, should have been given the
benefit of doubt that arises about the age of the victim, and should
have been acquitted.
27 The Appeal is allowed.
28 The impugned judgment and order is set aside.
29 The appellant is acquitted.
30 He be set at liberty forthwith, unless required to be
detained in connection with some other case.
31 Fine, if paid, be refunded to the appellant.
Appeal is disposed of in the aforesaid terms.
(ABHAY M.THIPSAY, J)
No comments:
Post a Comment