apeal 161.15 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO. 161 OF 2015 [ENTITY] S/o [ENTITY] Kumkar, Aged about 22 years, R/o Pofali,Tq.Umarkhed, District-Yavatmal APPELLANT V E R S U S [ENTITY], Through Police Station Officer, Police Station Pofali, Tq.Umarkhed,District-Yavatmal. RESPONDENT Shri [ENTITY], Senior counsel with Miss [ENTITY] for appellant . Miss [ENTITY],Addl.P.P. for [ENTITY]. CORAM:- V. M. DESHPANDE, J. DATED :- JULY 12,2017 ORAL JUDGMENT
The present appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge,Pusad on 30/12/2014 in [CASE NUMBER] by which the Court below convicted the appellant for the offence punishable under [SECTION] of the [ACT] and directed that he will suffer R.I. for a period of 10 years and to pay fine of Rs. 2,00,000/- and in default to suffer R.I. for one year.
For the conviction under [SECTION] of the [ACT] is concerned, the Court below imposed sentence of R.I. for 6 months and fine of Rs. 50,000/- and in default to suffer R.I. for one month.
2. The prosecution case as it is brought on record during the course of trial is, as under:
[ENTITY] (PW9) was discharging his duty as P.S.O. of P.S.Pofali on 15/7/2012. On the same day, victim (PW1) came to police station alongwith her parents. She lodged complaint. Her complaint was oral one. [ENTITY] (PW9) took down her report as per her say. Her oral report is at Exh.26. On the basis of said report [ENTITY] (PW9) registered an offence bearing [CASE NUMBER] and printed F.I.R. is at Exh.27.
3. As per oral report(Exh.26), the victim was taking her education in 9th Standard at Shiwaji School,Pofali. Appellant is son of [ENTITY] who resides as neighbour of victim. Appellant and victim were acquainted with each a other. When the victim used to cross the house of appellant that time appellant used to pass remarks that she is beautiful and he loves her and he wishes to meet her. As per the report, initially the victim did not pay any heed to the remarks made by the appellant. Thereafter, the appellant gave some chits to her.
Report(Exh.26) further states that thereafter victim also started developing love for appellant. The chits were exchanged in between them. Their love affairs continued for a period of one year.
The report (Exh.26) further states that about 6-7 months of lodging of the report when she was proceeding for answering nature's call appellant came near her and asked her to accompany with him in the house of one [ENTITY] and there he disclosed that she is beautiful and he wants to marry with her and committed sexual intercourse with her. The report (Exh.26) further states that subsequently also the physical relations developed resulting into the pregnancy. When she was conceived the said fact was informed to the appellant that time he refused that she is pregnant from him. He also refused to marry with her and therefore the report was lodged.
4. After registration of the crime investigating officer [ENTITY] (PW9) went to the spot of incident. It was the house of one [ENTITY] who disclosed that he has shifted his house prior to one month and therefore it was unoccupied. Investigating officer (PW9) prepared spot panchnama panchnama(Exh.70).
Thereafter victim was sent for her medical examination under requisition (Exh.71). He also gave a letter (Exh.73) to [ENTITY] in order to ascertain the proof of age. He also recorded the statements of parents of victim and other persons and also [ENTITY].
Victim was referred for her medical examination. Exh.32 is the report of Dr.[ENTITY]. By the said report doctor pointed out that the victim is pregnant. For determining age of victim radiological examination was advised. Exh.32 also shows that victim was habituated to sexual intercourse. She also gave vaginal swab in a sealed condition.
The biological samples brought from medical officer were seized by the investigating officer under seizure memo (Exh.35). In the meanwhile, victim delivered a male child. Therefore, all the relevant documents were called by giving requisition to medical officer by the investigating officer (PW9). The appellant was arrested on 8/5/2013 under arrest panchnama(Exh.77). He was also medically examined.
On 8/5/2013 investigating officer (PW9) sought permission from learned Magistrate for DNA test of accused by moving an application (Exh.78) which was allowed by the learned Magistrate. The investigating officer (PW9) also gave letter to the Director, Forensic Laboratory,Nagpur for supply of DNA kit and one [ENTITY] was assigned duty pass for the same. After the kit was received the appellant, victim and newly born child were brought before medical officer for collection of their blood samples. After completion of other usual investigation final reprot was present in the Court of learned Magistrate.
5. The Magistrate found that the offence is exclusively triable by the Court of Session therefore, he passed the committal order.
6. Appellant was charged for the offence punishable under [SECTION] and [SECTION] of the [ACT] and under [SECTION] of the [ACT].
7. In order to bring home the guilt of the appellant the prosecution has examined in all 9 witnesses. After the appreciation of prosecution evidence and its case though the Court below acquitted appellant for the offence punishable under [SECTION] of the [ACT] and under [SECTION] of the [ACT] he was convicted for the offence punishable under [SECTION] and [SECTION] of the [ACT]. Hence, this appeal.
8. I heard Shri [ENTITY], the learned Senior Counsel with Miss [ENTITY] for appellant and Miss [ENTITY], learned Addl.P.P. for [ENTITY]. With their able assistance I have gone through the record and proceedings. It is the submission of the learned Senior Counsel Shri [ENTITY] that the evidence as brought on record by the prosecution clearly shows that there was love affair between appellant and victim. He submitted that the Court below committed mistake in convicting the appellant for the offence punishable under [SECTION] of the [ACT]. He submitted that there is no evidence whatsoever to show that at any point of time the appellant established physical relations with victim by giving a promise that he will marry with her. He invited my attention to the substantial evidence of the victim and pointed out that her evidence is totally silent in respect of the assertion that by giving promise to marry,appellant established sexual relations with her.
It is the further submission of learned Senior counsel that though the prosecution was duty bound to prove the age of the victim below 16 years in order to invite conviction for the offence punishable under [SECTION] of the [ACT] he submitted that the prosecution has utterly failed to prove that the victim was below the age of 16 years and therefore he submitted that the conviction under [SECTION] of the [ACT] is also not sustainable.
9. Per contra, learned Addl.P.P. would submit that if the evidence of the victim is read in correct prospective then when she deposed that appellant said to the victim that he will take full responsibility, that tantamount to promise to marry. She submitted that in view of the extract of admission register(Exh.51) it is clear that the victim was below the age of 16 years and therefore she submitted that appeal be dismissed.
10. The prosecution has placed on record DNA report (Exh.13). The said report shows that the appellant is biological father of child delivered by the prosecutrix. That clearly establishes the fact that there were physical relations in between appellant and the prosecutrix.
11. According to the prosecution the appellant established physical relations with the prosecutrix though she was below the age of extending consent. It is further case of the prosecution that the appellant obtained consent from the prosecutrix on the pretext that he will marry with her.
12. Though the appellant was charged for the offence punishable under [SECTION] of the [ACT] under [SECTION] of the [ACT] for these two charges he is acquitted by the Court below and there is no appeal filed against the said acquittal.
13. Since the appellant is acquitted for the offence punishable under [SECTION] of the [ACT] the prosecution was bound to prove the age of the prosecutrix below the age of 16 years in order to bring home guilt for the offence punishable under [SECTION] of the [ACT] as the offence according to prosecution occurred prior to amendment to [SECTION] of the [ACT]. In order to prove her age the prosecution has relied on evidence of Dr. [ENTITY] (PW5) and evidence of [ENTITY]).
14. As per evidence of Dr.[ENTITY](PW5) X-ray plates of prosecutrix were forwarded to him on 19/7/2012. On examination of said X-ray as per the version of Dr.[ENTITY] the age of the prosecutrix was more than 14 years but less than 16 years.
15. From the evidence of Dr.[ENTITY](PW5) it is clear that X-ray for determining the age of the prosecutrix was not taken by him. Those X-rays were taken by the technician of the X-ray Department on 16/7/2012. The technician who took X-ray is not examined by the prosecution. Further X-ray plates are not placed on record. In fact, Dr.[ENTITY](PW5) has admitted as under:
"I have not brought the X-rays to the Court today. Witness volunteers that the X-rayswere returned to the L.P.C. B.No.521".
Even this lady P.C. to whom X-ray plates were given is not examined.
In view of the aforesaid evidence and in view of the fact that X-ray plates are not available on record much importance cannot be given to the certificate (Exh.48) and evidence of Dr.[ENTITY](PW5) that the age of the prosecutrix was more than 14 years but less than 16 years.
16. The other piece of evidence to determine age is through documentary evidence. [ENTITY]) is examined by the prosecution. This prosecution witness was working as Head Master at Shivaji Vidyalaya,Pophali, Umarkhed since 2008 to 2013. His evidence shows that as per the admission register he informed the police about the date of birth of the prosecutrix. As per the admission register the age the date of birth of prosecutrix is 11/1/1998. His evidence shows that she was admitted in the school in the 5th Standard on 1/7/2008. He proved the extract of register (Exh.51).
This prosecution witness has admitted that entries in Exh.51 are made from the transfer certificate issued by the earlier school. It is also admitted by him that he did not verify the entries of the earlier school are correct or not. Not only that it is his version that there could be error in stating of birth date by the parents while admission.
17. No doubt Exh.51 shows the date of birth, however the transfer certificate on the basis of which entry in Exh.51 is taken is not placed on record.
18. It would be useful to refer paragraph no.15 of the authoritative pronouncement of the Hon'ble Apex Court in the case of Birad Mal Singhvi vs Anand Purohit,reported in AIR 1988 SC page 1796. It is quoted as under:
" The High Court held that in view of the entries contained in the Ex.8,9,10,11 and 12 proved by [ENTITY] PW3 and [ENTITY] PW5, the date of birth of [ENTITY] and [ENTITY] was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. [SECTION] of the [ACT] lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under [SECTION], three conditions must be satisfied, first,entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact;and thirdly, it must be 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 the school register is relevant and admissible under [SECTION] of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In [PRECEDENT] a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about th age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the Court, see [PRECEDENT] Ram and others vs Presiding Officer, Labour Court, North Bihar,Muzzafarpur and others[1966] Patna 459: Ghanchi Vora Samsuddish Isabhai vs [ENTITY] [ENTITY]] Gujarat 178 and [ENTITY] and another vs [ENTITY] another,[1971] J & K 62. In addition to these decisions the High Courts of Allahabad,Bombay have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholors register or secondary school certificate has no probative value unless either th parents are examined or the person on whose information the entry may have bee made, is examined , see Jagdamba Prasad vs Sri Jagannath Prasad and others, 42ELR465:[ENTITY] vs [ENTITY] and another, 31 ELR 401 and Krishna Rao Maharu Patil vs Onkar Narayan Wagh,14ELR 386."
19. Also I would like to refer para no.38 of the authoritative pronouncement. Of [ENTITY] and another vs [ENTITY],reported in [CASE NUMBER] page 715.
"38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr.[ENTITY], Radiologist,Exh.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16indicates that the girl's date of birth was 15th June,1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age(16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July,1993. 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] of the [ACT]. However, the admissibility of such a document would be of not much 23 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 have no evidentiary value unless the person, who made th entry or who gave the date of birth is examined. We may notice here that PW1 was examined in the Court on 9th August,1999. In his evidence, he made no reference to the transfer certificate (Ex.P16). He did not mention her age or date of birth. PW2 was also examined on 9th August,1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under [SECTION] of [ACT] seeking permission to produce th transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April,2000. The transfer certificate was marked as Ex.P16at that stage, i.e. 26th April,2000. The judgment was delivered on 28th April,2000. In her cross- examination, she had merely stated that she had signed on the transfer certificate, Ex.P16 issued by the School and accordingly her date of birth noticed as 15th June,1977. She also stated that the certificate has been 24 signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate."
20. From the aforesaid, it is clear that though transfer certificated is admissible under [SECTION] of the [ACT], the admissibility of the said document would be no much evidentiary value to prove the age of the girl since there is no material available on record on what basis date of birth was recorded. In the present case, the prosecution has not examined any person from earlier school who has taken entry or who has given the date of birth certificate of the prosecutrix. Since Exh.51 is not a primary document, in my view the prosecution has failed to prove the date of birth of the prosecutrix beyond reasonable doubt.
21. According to prosecution the appellant has given promise and thereafter obtained her consent.
22. Though in the F.I.R. it is stated by the prosecutrix that the appellant made a promise of marriage ,however her substantial evidence is silent in respect of promise of marriage. F.I.R. is not a substantive piece of evidence. What prosecutrix has stated in her evidence is that he will take her full responsibility. The responsibility can be of different types. However, in th absence of specific evidence one cannot deduce inference for the said word " responsibility" that there was promise from the appellant that he will marry with the prosecutrix. The F.I.R. itself shows that she was in deeply love with the appellant. In that view the law laid down by Hon'ble Apex Court in Uday vs [ENTITY] of Karnataka,AIR 2003 SC1639 is aptly applicable. Over all evidence as brought on record by the prosecution in my view does not show that there was any promise of marriage by the appellant. On the contrary, even as per the prosecutrix herself there was love affair between her and the appellant ultimately ,it resulted into the physical contact between them.
23. On the reappreciation of the entire prosecution case I am of the view that the appellant cannot be convicted. Hence, I pass the following order.
ORDER I) The appeal is allowed. II) The judgment and order of conviction passed by learned
Additional Sessions Judge,Pusad in [CASE NUMBER], dated 30/12/2014 is hereby quashed and set aside. III) The appellant is acquitted under [SECTION] and [SECTION] of the [ACT].
IV) The appellant is in jail. He be set at liberty forthwith if not required in any other case or crime.
JUDGE [ENTITY]