C.A.No.213 of 2003 The Petitioner / Accused viz. 1) P.Sadasivam and M.Velan were directed to be released on bail in and by the order of this Court dated 26.3.2003 in Crl.M.P.No.1261 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.01.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.213/2003 1.P.Sadasivam 2.M.Velan Appellants/Accused Vs State by Inspector of Police Perambalur Police Station Perambalur Respondent/Complainant (Crl.No.221/96) Prayer:- This Criminal Appeal is filed against the judgement dated 29.1.2003 passed in SC.No.3/97 by the learned Additional Sessions Judge (FTC) Ariyalur, Perambalur, convicting and sentencing the appellants for the offence under Section 366A of IPC to undergo 6 years of Rigorous Imprisonment each and to pay a fine of Rs.5000/- each, in default to undergo 6 months Simple Imprisonment. For Appellants : Mr.M.Nataraj Vallatharasu For Respondent : Mr.Hasan Mohammed Jinnah, APP JUDGEMENT This Criminal Appeal is filed against the judgement dated 29.1.2003 passed in SC.No.3/97 by the learned Additional Sessions Judge (FTC) Ariyalur, Perambalur, convicting and sentencing the appellants for the offence under Section 366A of IPC to undergo 6 years of Rigorous Imprisonment each and to pay a fine of Rs.5000/- each, in default to undergo 6 months Simple Imprisonment. 2. The case of the Prosecution is as follows:- a. PW.1 Ganesan is the father and PW.3 Sundarambal is the mother of the victim girl PW.2 Vanithadevi. The victim girl was studying in XII Standard in the year 1996 in the Ammapalayam High School. On 18.3.1996 at 1.30 p.m. while she was returning from the School to his house after writing the examination along with PW.5 Palthangam, the Appellants/A1 and A2 kidnapped the victim https://hcservices.ecourts.gov.in/hcservices/ girl in a Car driven by PW.4 and went away from the scene of occurrence and thereafter, she was taken to a Hut at Perungalur Village and the accused threatened the victim girl and obtained her signature in blank papers. The Appellants have threatened her to marry the 1st Appellant and tied thali forcibly at Perungalur Temple and on 25.3.1996, had taken her to the Sub Registrar Office at Perungalur and registered the marriage, by compelling and threatening her to put her signature in the records. The Appellants have subjected her to sexual intercourse and caused injuries on her thigh. b. Immediately after seeing the victim being kidnapped by the Appellants, Pw.5 went to the house of the victim girl and informed the same to PW.1, who in turn informed the same to the Head Master of the School, where PW.2 studied and went to the Police Station and gave a complaint Ex.P1. c. PW.7 the Sub Inspector of Police attached to the Perambalur Police Station on receipt of Ex.P1 on 18.3.1996 at 1530 hours registered a case in Cr.No.221/1996 for the offence under Section 366 of IPC and prepared FIR Ex.P3 and sent the same to the concerned court and went to the place of occurrence and prepared a rough sketch Ex.P4 and examined the witnesses Ganesan, Paulthangam and Sundarambal, Rajendiran, Boopalan and recorded their statements and thereafter Pw.8 the Inspector of Police took up the case for further investigation. d. On receipt of requisition Ex.P6 from the court concerned, PW.6 Doctor Ramalingam Radiologist on 17.10.1996 examined Pw.2 and performed radiological test in order to order find out the age of the victim girl and certified in Ex.P2 that she had completed the age of 17 years and below the age of 18 years. e. PW.8 on 28.3.1996 at 5.30 a.m. arrested the accused along with the victim girl and recorded their statements and sent a requisition Ex.P5 to the concerned court to find out the age of the victim girl and examined the Doctor, who examined the victim girl and recorded his statement and after completing investigation, filed a final report against the accused under Section 366 of IPC. 3. The case was taken on file in SC.No.3/97 by the learned Additional Sessions Judge (FTC) Ariyalur, Perambalur and necessary charges were framed under Sections 366A and 376 of IPC. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P7. On side of the defence, three documents (Exs.D1 to D3) were marked. 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. https://hcservices.ecourts.gov.in/hcservices/ 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.M.Nataraj Vallatharasu, the learned counsel for the Appellants has very strenuously assailed the reasons given by the Trial Court for convicting the Appellants under Section 366A of IPC and submitted that from the evidence of the Prosecution witnesses, more particularly of PW.2, the prosecutrix herein who had made substantial embellishments and improvements in her evidence, it would reasonably be inferred that her version is falsehood and concoction. He would submit that she was aged about 18 years at the time of occurrence and having capacity to know the full import of what she was doing, voluntarily went with the Appellants and the circumstances were self revealing that she was not taken forcibly. The learned counsel would submit that the Prosecution had not been able to prove beyond reasonable doubt that the age of the prosecutrix was below 18 years and she did not consent for her going along with the Appellants. His contention is that PW.2 has married him in the temple, registered the marriage before the Registrar and lived together with the 1st Appellant and in such circumstances, it would be deemed that the Prosecution have failed to establish the offence for which the Appellant were charged. 8. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgement of the Trial Court and drew the attention of the court to the evidence of PW.7 the Sub Inspector of Police who recorded the statement of the prosecutrix that the contradictions pointed out by the learned counsel for the Appellant in PW.2 and pw5's evidence were not elicited from his evidence as omission in their evidence. The learned Additional Public Prosecutor would submit that Ex.P7 would undoubtedly prove the age of the prosecutrix who was only 17 years of age at the time of occurrence. 9. In offence of this nature, the Prosecution must prove that a girl below 18 years of age was induced by a person or persons to go from any place with intention that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. So to make out an offence under Section 366A of IPC, it is the duty of the Prosecution to let in evidence with utmost precision regarding the age of the victim and bring out clearly that the girl could not be of the age of eighteen or above. In this case, there is evidence in the nature of identity card issued by the school, where she studied which fact is also admitted by PW.2 that her date of birth is given as 6.2.1978. PW.6 Dr.K.Ramalingam who radiologically examined the girl has given his opinion in his report Ex.P2 that she had completed the age of 17 years and below the age of 18 years. That is, she would be between the age of 17 to 18 years. The Prosecution https://hcservices.ecourts.gov.in/hcservices/ has relied upon the birth certificate Ex.P7 which shows the date of birth as 7.7.1979. Though the names of one Ganesan and Sundarambal had been mentioned as the names of the father and mother, but the name of the child has not been entered in the birth certificate. PW.9, the Head Clerk from the Sub Registrar's Office wherefrom the certificate was issued had stated that there was no requisition to include the name of the child in the said birth certificate. The date of birth is given as 6.2.1978 in the school records and there is no explanation from the Prosecution to the effect that the said entry was made at the instance of the parents of the child in order to give over age to the child so as to put her in the school. 10. It is well established that mere production of a copy of birth entry would not, as a matter of law connect the entry with the person claiming the entry of her own. There is no concrete evidence that the entry in Ex.P7 only related to PW.2. In view of the variance in the date of birth given in the school records by the parents of the prosecutrix, in the absence of explanation forthcoming from PW.1 or PW.3 for the different date of birth given in the school at the time of admission of the girl, it cannot be held that Ex.P7 entry related only to the prosecutrix. The opinion is given by the radiologist on the basis of general body development assessing her age between 17 years and 18 years. When margin of error in such test on the higher side of the age being given, it must be held that the victim could be above 18 years. Therefore, the Prosecution has failed to prove that the victim was below 18 years of age at the time of the occurrence. 11. Now coming to the testimony of the victim, in assessing her evidence, her conduct at the time of alleged incident and immediately after the offence said to have been committed is of great value. According to the Prosecution, she was kidnapped on 18.3.1996 and she was secured on 28.3.1996 that is nearly after 10 days. The evidence led by the Prosecution indicates that she was forcibly thrust into the car by the Appellants, taken to the Perungalur Temple, the 1st Appellant forcibly tied thali, brought her to the Sub Registrar's Office, registered the marriage, kept her in a hut and both the Appellants committed rape on her. Her evidence indicated that she did not raise any alarm when stayed with the Appellants for over 10 days or even try to make an attempt to draw the attention of the relatives or people in the vicinity, wherever she was taken. She has made deliberate embellishments in her evidence for the first time before court and had gone to the extent of saying that they caused injuries on her thigh and further both the Appellants forcibly had sexual intercourse with her. Surprisingly she says that she had not disclosed it to the Doctor at the time of her examination or even to her parents after she was secured. 12. PW.2 has clearly admitted that she has not disclosed material part of her evidence in her statement to the investigating officer at the time of the investigation. The said omission has been clearly elicited from PW.2's evidence and therefore, it is not necessary to again elicit those omissions from the investigating https://hcservices.ecourts.gov.in/hcservices/ officer. However, the defence counsel had taken pain to elicit those omissions in the evidence of PW.8, the Inspector of Police. 13. The learned counsel for the Appellants drew the attention of this court to the decision of the Karnataka High Court rendered in the case of Manohar Vs. State of Karnataka [1997- Crl.LJ-398], wherein it has been held that even if such contradictions were not elicited in evidence through the relevant witnesses, it was always open to the court to look at the case diary to find out contradictions though not elicited in evidence. In the instant case, the omissions and contradictions have been clearly elicited from PW.2, when she was confronted with her statements made to the investigating officer. 14. The Honourable Supreme Court in the case of Yudhishtir Vs. State of MP [1971-SCC-Cri-684] has held that a particular fact deposed by the witnesses if did not find mention both in the FIR and in the statements recorded under Sections 161 of Code of Criminal Procedure, it is an improvement and it cannot be considered. In the present case, the evidence given by PW.2 before the court was substantially in variance with the version given by her in the statement given to the Police at the earliest occasion and she had considerably improved her version. The omissions in the statement of PW.2 to the police are of a very serious nature making her evidence before the court false and unacceptable. 15. It is no doubt true that the evidence of a victim of this nature of cases must receive the same weight as attached to an injured in case of physical violence. However, the court must also be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If for some reason the court is hesitant to place implicit reliance on the testimony of the victim, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. 16. In this case, there is absolutely no medical evidence even to suggest that there was some sexual assault or sexual act on the victim. She has not been examined by any Doctor and no explanation is forthcoming for the lapse committed by the investigating officer in that regard. 17. It is also pointed out by the learned counsel for the Appellants that the conviction of the 1st Appellant under Section 366A of IPC cannot be sustained, as it is not the case of the Prosecution that the accused had kidnapped the victim to make her to suffer sexual intercourse with anybody else. The said arguments of the learned counsel merit consideration as in order to constitute an offence under Section 366A of IPC, it is required to prove that the victim girl was induced to go from any place or to do any act with the intention or knowledge that such minor may be forced or seduced to illicit intercourse with another person. In this case, it could be inferred from the evidence that the victim had left the place with the Appellants, willingly married the 1st https://hcservices.ecourts.gov.in/hcservices/ Appellant and stayed with him for about 10 days without any protest and on such inference of facts, it cannot be said that the accused had kidnapped the victim with an intention to seduce her to illicit sexual intercourse with some other person. 18. Considering the entire facts and circumstances of the case, I am of the clear opinion that the appraisal of the evidence by the Trial Court suffers from material irregularity and is based on inadmissible evidence solely based on conjectures and surmises which warrants interference by this court in this Criminal Appeal. 19. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the Appellants in SC.No.3/1997 are set aside and the Appellants are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail by this court. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid is ordered to be refunded to them. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1. THE ADDITIONAL SESSIONS JUDGE (FTC) ARIYALUR, PERAMBALUR DISTRICT 2. -Do-Thro THE PRINCIPAL SESSIONS JUDGE,PERAMBALUR 3. THE PUBLIC PROSECUTOR HIGH COURT,MADRAS 4. THE JUDICIAL MAGISTRATE PERAMBALUR,PERAMBALUR DISTRICT 5. -Do-Thro THE CHIEF JUDICIAL MAGISTRATE PERAMBALUR 6. THE SUPERINTENDENT CENTRAL PRISON,TRICHY 7. THE INSPECTOR OF POLCIE PERAMBALUR POLICE STATION,PERAMBALUR 8. THE SECTION OFFICER CRIMINAL SECTION,HIGH COURT,MADRAS Crl.A.No.213/2003 BV(CO) sra 08.02.2010 https://hcservices.ecourts.gov.in/hcservices/