BAIL SLIP The petitioner/Accused viz., Ravi, was directed to be released onbail in and by order of this Court dated 16.3.2006 and made in Crl.MP No.1734/2006 in Crl.R.C.No.719/2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19-02-2010 CORAM THE HONOURABLE MR. JUSTICE S. NAGAMUTHU CRIMINAL REVISION CASE NO.719 OF 2004 Ravi S/o. Rama Pillai .. Petitioner/Accused Vs. State by Inspector of Police, Vadaponparapi Police Station, Villupuram District in Cr.No.261 of 1999 .. Respondent/Complainant Revision filed under Sections 397 and 401 Cr.P.C., against the judgment and conviction passed by the Assistant Sessions Judge, Kallakurichi, Villupuram District in S.C.No.160 of 2002 dated 19.3.2003 and confirmed by the Additional District and Sessions Judge (Fast Track Court), Kallakurichi, Villupuram District, in C.A.No.47 of 2003, dated 5.4.2004. For Petitioner : Mr.S.M. Subramaniam For Respondent : Mr.N.R. Elango Addl. Public Prosecutor - - - O R D E R Petitioner is the sole accused in S.C.No.160 of 2002, on the file of the Assistant Sessions Judge, Kallakurichi.. By judgment dated 19.3.2003, the learned Judge convicted the petitioner for offences under Sections 417 and 376 IPC., and sentenced him to undergo rigourous imprisonment for six months under Section 417 IPC and to undergo rigourous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to undergo three months rigourous imprisonment under Section 376 IPC. He was also directed to pay a sum of Rs.1,00,000/- as compensation under Section 357(3) Cr.P.C. Challenging the same, he preferred Criminal Appeal No.47 of 2003. The learned Addl. District Sessions Judge (Fast Track Court), Kallakurichi, by judgment dated 5.4.2004, confirmed the substantive sentence of imprisonment imposed under Sections 417 and 376 IPC., and set aside the imposition of fine of Rs.5,000/-. The learned Judge also reduced the compensation to Rs.40,000/-. Challenging https://hcservices.ecourts.gov.in/hcservices/ the above, the petitioner has come up with this Revision. 2. The case of the prosecution in brief is as follows :- P.W.1 is the victim of the alleged rape. She is residing in Mallapuram village. P.W.2 is her father and P.W.3 is her mother. P.W.4 is the brother of P.W.1. Accused is also a resident of Mallapuram village. P.W.1 was born on 12.2.1984. She was studying in a local school. When she used to go on walk to the school, the accused, on several occasions, intercepted her and expressed his love for her. Though initially P.W.1 was hesitant, later on, on the repeated persuasive love expressed by the accused, she also reciprocated. Thus, both had fallen in love for each other. While so, when she was doing 8th Standard, the accused assured her that he would marry only her. Such kind of assurance was repeatedly given by the accused. By giving such assurance slowly he made sexual advances towards her. Because of the deception played by the accused, under the honest impression that he would marry her, she gave consent for sexual intercourse. Accordingly, she was taken to a sugarcane grove, where the accused for the first time had sexual intercourse with P.W.1. However, the said incident came to the knowledge of her parents. When they met the accused in turn, the accused assured them also that he would marry only P.W.1. Thereafter, P.W.1 started to stay in a hostel. During that period, the accused went to the hostel and told her that he was proceeding to Bangalore and, therefore, she could come and stay for a day and have sexual intercourse. Because P.W.1 was under the continued impression that the accused would marry, she agreed for the same. Thereafter, she was taken to Kanna Naicker Thottam, where the accused had sexual intercourse with her. Kanna Naicker, P.W.6., who incidentally happened to come to the motor- shed in the Thottam, found both P.W.1 and the accused in the shed together. P.W.6 called the accused and thereafter they went to their respective houses in Mallapauram. On the next day, the accused went to Bangalore. After sometime, since P.W.1 did not experience menses in time, she told about the occurrence to her parents. They told P.W.1 that they would make arrangement for the marriage between the accused and P.W.1 as soon as the accused returned from Bangalore. Four months thereafter, the accused returned from Bangalore. When P.W.1 and her father requested him to marry, he declined. Therefore, she proceeded to police station and preferred complaint on 9.10.1999. 3. P.W.8, who was then Inspector of Police at Arakandanallur Police Station, received the said complaint of P.W.1 at 9.00 a.m., on 9.10.1999 and registered a case in Crime No.161/99 under Sections 417 and 376 IPC. Ex.P-1 is the complaint and Ex.P-5 is the First Information Report. Since the Inspector of Police attached to the said police station was on leave, P.W.8 himself took up the case for investigation on the direction of the Deputy Superintendent of Police. On the same day, he examined P.Ws.1 to 4 and 6 and recorded their statements. He arrested the accused at 11.00 a.m. near Mallapuram Bus Stand and then sent him for judicial remand. On the same day he sent P.W.1 for medical examination through Court. https://hcservices.ecourts.gov.in/hcservices/ 4. P.W.9 Dr. Padmini was a Civil Surgeon of Government Hospital, Villupuram. On 10.10.1999 at 10.30 a.m., on the request of the Sub-Inspector of Police, she examined P.W.1. She found that P.W.1 was 5 to 5 ½ months pregnant. From her appearance, she estimated her age at 14. Then she took X-rays and finally opined that P.W.1 was 16 years old. In continuation of the investigation, P.W.8 examined P.W.9 and collected the medical records. He sent the accused also for medical examination through Court. P.W.5 examined him and certified that the accused was capable of performing sex. Ex.P-2 is the Certificate issued by him. P.W.8 examined the said Doctor and collected the medical records. Then, he handed over the investigation to the Inspector of Police attached to the police station. P.W.11, the then Inspector of Police, took up the case for further investigation. On 30.6.2001 he verified the correctness of the investigation and finally laid the charge-sheet. 5. Thus, on the above materials, the trial court framed charges under Sections 417 and 376 IPC. In order to prove the case, the Prosecution examined 11 witnessess and produced 12 documents. P.W.1., the victim girl, has elaborately spoken to about the alleged act of rape committed on her by the accused. P.Ws. 2 to 4 being the family members have spoken to about what they had heard from P.W.1 and also spoken to about the Panchayat and the ultimate refusal of the accused to marry P.W.1. P.W.6 has spoken to about the fact that P.W.1 and the accused were found together in his motor-shed. The other witnesses are official witnesses. When the incriminating evidence available on record were put to the accused under Section 313 Cr.P.C., he had denied the same. According to him, he never committed any sexual intercourse with P.W.1. However, he has not examined any witness. Having considered all the above materials, the trial court found the accused guilty, which was confirmed by the lower appellate court. Against the same, the petitioner has approached this Court. 6. I have heard the learned counsel appearing for the petitioner and the learned Addl. Public Prosecutor appearing for the State and also perused the records. 7. The foremost contention of the learned counsel for the petitioner is that the age of the victim P.W.1 has not been proved beyond reasonable doubt that she was less than 16 years on the date of occurrence. He would submit that the school records, namely, Ex.P-10, cannot be construed to be conclusive proof in respect of the age of P.W.1. Similarly, according to the learned counsel, the evidence of P.W.10 also would not prove the date of birth of P.W.1. He would further submit that the medical evidence in respect of age is always subject to error. Therefore, according to him, two years margin on either side should be given and, if that is given, the age of the P.W.1 would have been more than 16 years on the date of occurrence. He would further submit that in the present case there was a mutual love affair between the accused and P.W.1 as has been spoken to by the witnesses. He would further add that P.W.1 being a fully grownup girl, knowing the consequences, had exchanged sexual pleasure, which can never be termed as rape in terms of https://hcservices.ecourts.gov.in/hcservices/ section 376 IPC. Learned counsel would further submit that the consent given by P.W.1 is free and voluntary and, therefore, even assuming that the accused had sexual intercourse with P.W.1., the said act would not amount to rape. He would further add that the conviction under Section 417 IPC., is also not sustainable inasmuch as absolutely there is no evidence to show deception or fraud played on P.W.1. by the accused. 8. Learned Addl., Public Prosecutor would, however, oppose the Revision in strong terms. According to him, Ex.P-10 school certificate coupled with the evidence of P.W.10 would establish the date of birth of P.W.1 as 12.2.1984 and as on the date of the complaint, namely, 9.10.1999, she had not completed 16 years. Therefore, according to him, assuming that even there was consent given by P.W.1 for sexual intercourse, the same is immaterial. He would further submit that the first act of rape was committed one year before and, on that date, undoubtedly, P.W.1 would have been less than 16 and, therefore, the consent allegedly given by P.W.1 is not a valid consent to exonerate the accused. He would further submit that even the said consent cannot be construed to be a true consent in terms of Section 90 of the Indian Penal Code. He would submit that when there was a false promise of marriage given by the accused and since consent was obtained by making her to believe that such marriage would take place, according to the learned Addl. Public Prosecutor, the consent is not a consent provided in Section 375 IPC. Therefore, the offence would clearly fall under Section 376 IPC. In so far as conviction under Section 417 IPC is concerned, the learned Addl. Public Prosecutor would fairly concede that the accused is entitled for acquittal under this charge since the accused was convicted for a graver offence under Section 376 IPC. He would further add that there is no reason much less any valid reason to disbelieve the evidence of the prosecutrix, namely, P.W.1, whose evidence is duly corroborated by the medical evidence and the evidence of P.Ws. 2 to 4. He would further submit that now P.W.1 has given birth to a child and she has been put in lurch. From all these factual position, the learned Addl. Public Prosecutor would pray for dismissal of the Revision. 9. I considered the rival submissions and perused the records very carefully. 10. The first and foremost argument advanced by the learned counsel for the petitioner is in respect of the age. Ex.P-10 Transfer Certificate issued by the Headmaster of the Government Girls High Court at Mallapuram, where P.W.1 was admitted in IX Std. According to the school records, the date of birth of P.W.1 is 12.2.1984. P.W.10 is the Headmaster of the school, who has spoken to about the entries in the school records. Ex.P-10 is the certificate issued by him. It is needless to point out that mere entry in the school records would not go to conclusively prove that the date of birth mentioned in the school certificate is the correct date of birth. Under Section 35 of the Evidence Act, such entry made in the school records by the school authorities is a relevant fact. To that extent, it can be safely concluded that Ex.P-10 is a document admissible in evidence. But, the said https://hcservices.ecourts.gov.in/hcservices/ provision does not contemplate that a presumption is either refutable or conclusive in respect of the correctness of such entries made in the school register. Under illustration (e) to Section 114 of the Evidence Act, the Court may presume that judicial and official acts have been regularly performed. In this case, there shall be a presumption that the entry in the school records in respect of date of birth of P.W.1 was duly made by the school authorities. To put it otherwise, there could be no doubt raised that the school authorities entered a different date of birth as date of birth in the school records than the date of birth supplied to them by the informant. Thus, the presumption is only very limited. What is material is that whether the information furnished to the school authorities in respect of date of birth is correct information or not. 11. Simply because an information furnished by someone else had been duly entered in the school records giving a date of birth at the time of admission of the student, it cannot be presumed that such date of birth is the correct date of birth, unless the informant comes to the court and deposes that it was he who gave such information to the school authorities and unless he establishes that the said information furnished by him was relating to the correct date of birth. To see whether this condition precedent has been satisfied, I have gone through the evidence of P.Ws. 1 to 4. P.Ws 2 and 3 would be the proper witnesses to speak about this information. When P.W.1 was admitted initially in an elementary school at Mallapuram, for the first time the information regarding the date of birth of P.W.1 would have been given either by P.W.2 or by P.W.3 or by some other relative. But, neither P.W.2 nor P.W.3 has spoken to anything about the date of birth of P.W.1 or the information furnished by either of them to the elementary school. In the absence of any evidence, either from P.W.2 or P.W.3 or any other relative regarding the date of birth of P.W.1 while she was admitted initially in the elementary school, it cannot be conclusively held that the date of birth originally entered in the elementary school records of P.W.1 reflects the correct date of birth of P.W.1. P.W.10 speaks about the admission of P.W.1 in the high school in IX Std. It is quite natural that the date of birth as found in the elementary school transfer certificate would have been entered by P.W.10 in the high school register. Therefore, unless it is established that the original entry made in the elementary school register is correct, it cannot be concluded that the entry of date of birth found in the high school register is correct. In this regard I may also refer to a judgment of the Honourable Supreme Court in the STATE OF CHHATTISGARH v. LEKHRAM reported in 2006(2) CRIMES 91(SC), wherein it was observed:- "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 as the same was recorded on the basis of the statement of the mother of the prosecutrix." 12. In the case on hand, as I have already stated, the correctness of the entries regarding the date of birth in Ex.P-10 by P.W.10 has not been established through the evidence of either the parents of P.W.1 or any other relative, who gave the https://hcservices.ecourts.gov.in/hcservices/ information at the time of admission in the elementary school. Thus, Ex.P-10 and the evidence of P.W.10 cannot be relied on to hold that P.W.1 was born on 12.2.1984. 13. Now coming to the medical evidence in this regard, P.W.9 has stated that as on the date of examination, that was on 10.10.1999, P.W.1 was 16 years old. In the Chief Examination she, however, stated that P.W.1 would have been only 14 years of age on the said date. Assuming that her opinion that P.W.1 was 16 years old as on 10.10.1999 is true, since the first act of sexual intercourse was committed on P.W.1 by the accused one year prior to 09.10.1999, there could be no doubt at all that she would have been less than 16 years of age. If this conclusion is safely arrived, then there would be no difficulty in holding that the consent obtained from P.W.1., as claimed by the learned counsel for the petitioner, is immaterial for the purpose of holding the petitioner guilty under Section 376 IPC. As provided in Section 375 IPC., the consent obtained from a girl whose age was less than 16 years is no consent in the eye of law for the purpose of Section 375 IPC. 14. Learned counsel for the petitioner would submit that the opinion of a Doctor in respect of the age is always subject to error by two years on either side. Regarding this legal position, there can be no doubt. Assuming that such margin of two years can be given on the higher side of the age spoken to by the Doctor, it could be only said that as on the date of examination she was around 18 years. According to the evidence of P.W.1, the first act of rape was committed one year before, that is to say at that stage she would have been more than 16 years of age. Assuming that this argument of the learned counsel for the petitioner could be accepted, it can be only held that she was more than 16 years of age as on the date of the first act of commission of rape. But, even then, the guilt of the accused under Section 376 IPC cannot be erased for a simple reason that the so called consent obtained in this case is not a consent in the eye of law as required under Section 375 IPC. To come to this conclusion, I would like to state the following reasons: 15. It is the evidence of P.W.1 that when she was doing 8th standard, the accused expressed his love for her. It is also in evidence that initially P.W.1 was not ready to accept the said love. It was only after a long persuasion she also reciprocated her love for the accused. It is not as if immediately after exchange of love, exchange of sexual pleasure had happened. On the first occasion, when the accused expressed his desire for having sexual intercourse, P.W.1 did not agree. She told him that she would give consent for sexual intercourse only after marriage as it was proposed by the accused. The accused in turn made her to believe that he would certainly marry her in future and so she should agree for sexual intercourse. From the categorical evidence of P.W.1., it can be seen that thereafter she agreed for having sexual intercourse with him only because of such promise given by the accused. Then, the accused took her to a nearby sugarcane grove, where he had sexual intercourse. P.W.1 has further stated that, subsequently when she was staying in the school hostel, once again the accused wanted her to give consent for sexual https://hcservices.ecourts.gov.in/hcservices/ intercourse. When she declined once again, he repeatedly promised to marry her. As a matter of fact, according to P.W.1, the accused told that he would not marry anybody else except P.W.1 and further requested her to come with him for one day to have sexual intercourse. It is only on such assurance again she was taken to the motor shed belonging to P.W.6, where the accused had sexual intercourse with her. The evidence of P.W.6 corroborates the evidence of P.W.1 in this regard. According to P.W.6, he found P.W.1 and the accused in the motor shed on the crucial date. On the next day, according to P.W.1, the accused had gone to Bangalore. I find no reason to reject the evidence of P.W.1 in this regard. The fact remains that subsequently he declined to keep up his promise to marry her. It is also not the case of the accused that though initially such promise was given by him honestly but, later on due to some other cause he had to withdraw such promise. The defence of the accused is a total denial inasmuch as according to him there was no such sexual intercourse at all with P.W.1. This defence is obviously a false defence. In a case of this nature, the false plea of the accused is also an incriminating circumstance against the accused. 16. From the above narration of the evidence of P.W.1, it is crystal clear that the consent for sexual intercourse was obtained by the accused only by means of deception. In this regard, a reference may also be made to Section 90 of the Indian Penal Code, which reads as follows :- "90. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;or Consent of insane person.- . . . Consent of child.- . . . (omitted as not necessary)." 17. A plain reading of the above provision would go to show that consent obtained under a misconception of fact is no consent as contemplated in Section 375 IPC. In the case on hand, from the evidence of P.W.1, it is crystal clear that P.W.1 was under the misconception that the accused would marry her. It was only because of the said misconception, she gave consent on two occasions for sexual intercourse. Therefore, the consent given by P.W.1 cannot be termed as a free consent as required under Section 375 IPC to exonerate the accused. In this regard, the learned counsel for the petitioner would rely on a decision of the Honourable Supreme Court in UDAY v. STATE OF KARNATAKA reported in 2003 SCC (Cri) 775, wherein the Honourable Supreme Court has held as follows :- "21.It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be https://hcservices.ecourts.gov.in/hcservices/ given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 18. As held by the Honourable Supreme Court in the said judgment there cannot be any straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. It is ultimately a dispassionate conclusion to be arrived at by the court on various materials placed. At this juncture, yet another judgment of the Honourable Supreme Court in YEDLA SRINIVASA RAO v. STATE OF ANDHRA PRADESH reported in (2006) 11 SCC 615, relied on by the learned Addl. Public Prosecutor, is to be referred to. In paras 16 & 17 of the judgment, the Honourable Supreme Court