IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 369 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- ASHOKKUMAR AMRUTLAL PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 369 of 2000 MR RJ GOSWAMI for Petitioner No. 1 MR PR ABICHANDANI, ADDL.PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 29/10/2002 ORAL JUDGEMENT The appellant came to be convicted by Sessions Judge, Mehsana for offences punishable under Sections 363, 366 and 376 of IPC, by judgement and order rendered in Sessions Case No. 14 of 1999, on Feb. 18, 2000. The appellant was ordered to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1,000/for offence punishable under Section 363 of IPC. He was ordered to undergo rigorous imprisonment for a period of 3 years and to pay fine of Rs. 1,000/- for offence punishable under Section 366 of IPC. He was also ordered to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs. 2,000/- for offence punishable under Section 376 of IPC. He was ordered to undergo further imprisonment for a period of one month in the event of default in payment of fine. The sentences were ordered to run concurrently. 2. The facts of the case in brief are that as per the prosecution case, the appellant and one Sitaben Fataji Ramsangji Thakore kidnaped/abducted Ritaben, daughter of Balkar Singh Punjabi from her residence at village Gozaria of Mehsana Dist. It is the case of the prosecution that thereafter he took Rita to field and committed rape on her. It was the case of the prosecution that Sitaben Fatehsinh Thakore played a role in persuading prosecutrix Rita to have relation with the appellant. It is the case of the prosecution that after committing rape on the prosecutrix, the appellant took her from Gozaria to Vedhu in a truck for some distance and thereafter in a jeep. One Virsangji saw the couple and followed them and ultimately when the jeep car stopped, Virsingji came and took out Rita from the jeep car. After reaching home, the prosecutrix disclosed in detail as to what had happened. Relatives had also collected over there. A complaint was lodged by Ritaben before Vasai Police Station on 21st Sept. 1998, on the basis of which offence was registered and case investigated by the police. After examining the evidence collected by itself, the investigating agency came to a conclusion that there was sufficient evidence against the appellant and Sitaben Fatehsinh Thakore and therefore, a charge-sheet came to be filed in the Court of Judicial Magistrate First Class. Learned JMFC inturn committed the case to the Court of Sessions, as the offence was triable exclusively by a Court of Sessions and Sessions Case No. 14 of 1999 came to be registered. 3. Charge against the accused No.1 - appellant was framed at Ex.8 for offences punishable under Sections 363, 366 and 376. Against accused Sitaben Fatehsinh Thakore, charge under Sections 363, 366, 376 read with Section 114, alternatively with Section 107 of IPC was framed. Both the accused persons pleaded not guilty to the charge and claimed to be tried. 4. Considering the evidence led by the prosecution, learned Sessions Judge came to the conclusion that the prosecution could not prove charges against Sitaben Fatehsinh Thakore and recorded acquittal qua her. Learned Sessions Judge however, came to the conclusion that charges for offence punishable under Sections 363, 366 and 376 IPC were proved by the prosecution against the appellant and therefore, recorded conviction and passed sentence as stated above. Against the said judgement and order, present appeal is preferred. 5. Learned Advocate Mr. Goswami appearing for the appellant submitted that the whole case hangs on the question of age of the prosecutrix at the time of the offence. Mr. Goswami submitted that even according to the learned Sessions Judge, the prosecutrix appeared to be a consenting party, but the conviction is recorded because according to learned Sessions Judge, the prosecutrix was below 16 years of age and her consent would have no effect on commission of crime. Mr. Goswami submitted that the appellant would press only that question in this appeal. 6. Learned Advocate Mr. Goswami submitted that the evidence adduced by the prosecution to indicate the age of the prosecutrix is in form of extract of the general register of age maintained by the school where the prosecutrix was studying, and school leaving certificate of the prosecutrix issued by the Nagar Prathmik Sikshan Samiti, Ahmedabad supported by oral evidence of Dineshchandra Dahyabhai Patel, Ex.34, Principal of the School. Mr. Goswami submitted that it is true that the school register and the school leaving certificate indicate that the date of birth of the prosecutrix was July 30, 1985 and therefore on the date of the incident, the age of the prosecutrix would be 13 years one month and 17 days, but no authenticity can be tagged to this evidence, if the settled proposition of law is considered. According to Mr. Goswami, school register and school leaving certificate as proof of age cannot be attributed any evidentiary value, because by virtue of law births and deaths are required to be registered and therefore, there has to be a record of registration of birth, which would be primary evidence of the date of birth of a person. That evidence is not brought on record by the prosecution. Mr. Goswami submitted that besides this, there is evidence of mother of the prosecutrix, Babiben, at Ex. 26, but her verbal say about the age of the prosecutrix is not supported by any legally authenticated evidence. On the contrary, according to Mr. Goswami, in cross-examination the details given by her about her marriage with Balkar Singh and the sequence of events thereafter are considered, it is apparent that she is not telling the truth. Mr. Goswami submitted therefore that there is total absence of evidence to indicate that the prosecutrix was below 16 years of age. Mr. Goswami submitted that the prosecution has not adduced any medical evidence about age of the prosecutrix. The possibility of the prosecutrix being more than 16 years of age cannot be ruled out. This aspect has not been considered by the trial Court. Learned Advocate Mr. Goswami placed reliance on following decisions:- 1. State of Gujarat Vs. Jivanlal Chhotalal Patel - 1985 GLH 388 2. State of Gujarat Vs. Babu alias Roni Manilal - 1987 (1) GLR 590 3. Birad Mal Singhvi Vs. Anand Purohit - AIR 1988 SC 1796. 7. The appeal is opposed to by learned Additional Public Prosecutor Mr. P.R. Abichandani. He also agrees with the contention of Mr. Goswami that the case hangs on the question regarding age of the prosecutrix. He submitted that the aspect of involvement of the appellant having intercourse with the prosecutrix stands established by deposition of the prosecutrix and supporting medical evidence as well as report of the FSL. The only question is regarding age of the prosecutrix. 8. Mr. Abichandani submitted that the deposition of the prosecutrix herself and deposition of her mother Babiben both categorically states that the age of the prosecutrix was twelve and a half years at the time of the incident. This aspect emerging from deposition of Babiben has remained unchallenged by the defence. Mr. Abichandani submitted further that if the medical case papers Ex. 21 and medical certificate are seen, they clearly reveal that the age of the prosecutrix at the time of the occurrence was 13 years. This part has also remained unchallenged. Mr. Abichandani submitted that unfortunately, ossification test could not be undertaken for want of electricity. Mr. Abichandani submitted that these medical case papers, medical certificate and depositions of the prosecutrix and her mother Babiben indicate that age of the prosecutrix was twelve and a half years. Besides this Mr. Abichandani submitted that there is extract of general register maintained by the school (Ex. 36), which indicates that the said entry was made on the basis of a guardian certificate when the girl was admitted in Standard I to the school. Mr. Abichandani submitted that this is a register maintained by the school which is run by Nagar Shikshan Samiti, Ahmedabad in ordinary course of business. Mr. Abichandani submitted that around 8 to 9 years back nobody could have anticipated such event and therefore there is no reason to doubt the date of birth of the prosecutrix stated in this certificate. Mr. Abichandani submitted that the judgements rendered by this Court in cases of State of Gujarat Vs. Babu alias Roni Manilal as well as State of Gujarat Vs. Jivanlal Chhotalal Patel were in different set of facts when the evidence regarding first admission of the prosecutrix to the school was not adduced by the prosecution. Mr. Abichandani submitted that the said judgements were rendered in appeals by State against acquittal and therefore observations made therein regarding school leaving certificates would be in set of facts of that case and therefore cannot be applied to the facts of the present case. Mr. Abichandani has placed reliance on decision in Bhoop Ram Vs. State of U.P. (AIR 1989 (SC) 1329) and Umesh Chandra Vs. State of Rajasthan (AIR 1982 (SC) 1057) to support his contention. Mr. Abichandani also relied on decision of Delhi High Court in Kedar Nath Singh Vs. State (1995 Criminal Law Journal 4121) to support his contention that a certificate issued by a Government run school is admissible in evidence. Mr. Abichandani therefore submitted that the conclusion arrived at by the trial Court regarding age is well considered and proper and this Court may not interfere with the said judgement and order and the appeal may therefore be dismissed. 9. The record and proceedings are before this Court and is given a close scrutiny. 9.1 It would be appropriate to place on record at this stage that it was noticed that the accused was not put questions regarding the report of the FSL and Serologist and the incriminating conclusions thereof by the trial Court while questioning him under Section 313 of Cr.P.C. The accused was therefore kept present before this Court during the course of hearing and relevant questions were put to him in Gujarati vernacular by this Court and his answers recorded on 17.10.2002 by this Court in presence of his learned Advocate which is at Ex.68. 9.2 In order that the evidence on record and the contentions raised before this Court can be appreciated in proper perspective, certain facts need to be stated. 9.2.1 Prosecutrix Rita is the child born during the wedlock of Balkar Singh and Babiben. It transpires that they were married and were staying at Ahmedabad. Thereafter, Rita was born. She was admitted in the school at Ahmedabad. Somehow for some reasons, the spouses had a split and Babiben was required to leave the house of Balkar Singh and shift to Gozaria in Mehsana Dist. where she earned her livelihood by labour work. It appears that she was then living with one Rachhodlal Rathod with whom also she had some dispute and had lodged some criminal complaint in past. Around the time when the incident occurred, it transpires that Babiben and Rita were staying together at Gozaria. 9.3 It is true that the question of conviction or acquittal mainly depends on the age aspect of the prosecutrix, as rightly contended by both the sides, but still it would be appropriate if evidence on question of intercourse and consent or otherwise is examined briefly. 9.4 Prosecutrix Ritaben is examined at Ex.14. After putting certain questions, the trial Court was satisfied that the prosecutrix understood the seriousness of oath and therefore oath was administered on her. She says that she is 13 years of age. The incident had occurred about 11 months back when they were staying at Gozaria. She states that she does not remember her birth-date, but when the incident occurred she was twelve and a half years of age. She states that she had studied upto IVth standard and she was lastly studying at Ahmedabad in Municipal School No.4. She states that her father is a drunkard and mentally a little off the balance. She stays with her mother and brother. 9.5 She states that on the date of the incident, she was playing near the Railway station at around 10.00 AM with her brother and two/three other boys. She stays that accused No.1 beckoned her. He lured her of getting married and took her towards Charadu in one field. She states that there was standing crop of Jawar in the field. She states that he opened her trousers and did what ought not to have been done and when she states that she feels shy of saying as to what had happened and that she would write it her own, the Court gave her a paper and pencil. She described the act in her own words. That writing is Ex.15. Ex.15 states that after beckoning the accused lured her of marrying her after going to Bombay. She therefore accompanied him. He took her to the field towards Cheradu and committed rape on her. She states that her mouth was gagged with a handkerchief. She describes the actual act by saying that her pant was opened, undergarment removed and thereafter rape was committed. She states that thereafter she was taken to Gozaria Chokdi wherefrom Virsinhji brought her back. 9.6 Going back to her deposition, she understands what is rape. She describes the actual act of penetration as rape. She states that she was wearing a jeans at the time of the incident, which was stained with blood. She had bleeding from vagina. She identified her cloth before the Court. She states that she was examined by a lady doctor and a male doctor. She states that she had given history to the doctor which was recorded by him as stated by her. 9.7 Ritaben was cross-examined at length and she admits that she knew appellant about two months prior to the incident and they used to meet each other and exchange letters. She denied the suggestion that they had gone to movies together. About certain omissions and suggestions put to her, she denied particularly regarding appellant beckoning her and her going to him. A detailed cross-examination is made on the question of actual inter-course to suggest that the incident may not have occurred in the manner in which it is stated by the prosecutrix unless she was a consenting party. 9.8 Babiben - mother of the prosecutrix is examined at Ex. 26. She states that when Rita came back, her clothes were blood stained. She identifies her cloth. She states that Rita did not initially say anything as to who was responsible for her condition. It is only after 2 or 3 days that she revealed name of the appellant and therefore they decided to lodge the complaint. She states that she was formerly staying at Maninagar where Rita was born. 9.9 The Doctor who examined the prosecutrix is examined at Ex.18. Dr. Bhogilal Keshavlal Patel says that he had examined the prosecutrix on 22nd Sept. 1998. In the history, Ritaben had stated that she had gone with Ashokkumar on Sept. 16, 1998 to the field; that they had an intercourse; the intercourse was once; that she had left at about 10 'O Clock and returned about 2'O Clock in the afternoon and thereafter they had not met. 9.10 Doctor Bhogilal Patel states that the patient had changed cloth and had taken a bath. There were no external injuries on body. The breasts were developed and there was presence of pubic hair and auxiliary hair. There were no stains, no injury and no swelling on vulva. The hymen was ruptured (old), no recent tear, no swelling, no hematoma. Doctor stated that vagina admitted two fingers with slight pain, and no spermatozoa seen on vaginal smear. In the opinion of the Doctor the prosecutrix cannot be considered as most habitual to inter-course. 9.11 The FSL report is at Ex.56. The Serology Report is at Ex.57. If Exhibits 56 and 57 are read together, they clearly indicate that the semen of the accused was of "B" group, the pants worn by the prosecutrix carried stains of blood and semen of "B" and "O" specific group. Likewise, the underwear of the prosecutrix also carried stains of "B" and "O" specific group. The underwear of the accused had stains of semen of "B" group. The blood group of the prosecutrix is "O". 10. The above circumstances taken collectively would clearly indicate that there was an act of coitus between the appellant and the prosecutrix on the day of the incident. As a result of the said coitus, the clothes of the prosecutrix were stained with semen of the appellant and blood of the prosecutrix herself. She was not used to intercourse, but at the same the possibility of her being a consenting party cannot be ruled out for the reason that she has not sustained any external injury. Apart from this, she has stated before the doctor that she 'went' with the accused appellant to the field and there 'they had intercourse'. She does not say that she was raped over there or that it was against her will or forced intercourse. The possibility of her being a consenting party therefore cannot be ruled out. 11. Now, the question therefore that remains to be considered by this Court is whether her consent would make any difference so far as offence of rape is concerned and for that purpose, age of the prosecutrix would be a relevant factor. 12. As regards age, there is evidence of the prosecutrix who states in her deposition that when the incident occurred, she was twelve and a half years age. Her age is reported to be 13 years when the evidence was recorded. Apart from this, the mother of the prosecutrix Babiben in her deposition stated that at the time of the incident, Rita was twelve and a half years old. This aspect is not challenged during cross-examination. 13. There is evidence in form of the medical case paper Ex. 21 and medical certificate Ex. 23, which also indicates the age of the prosecutrix to be 13 years. 13.1 The above basis of evidence are more or less dependent on the verbal version that is given by the witnesses, namely Rita and her mother Babiben. The ossification test could not be performed on the prosecutrix for want of electricity. 13.2 So far as documentary evidence is concerned, the birth of the prosecutrix does not appear to have been registered as can be seen from the deposition of Babiben. She does not say so in clear terms, but she says that Rita was born at Ahmedabad while they were staying at Maninagar in the house of one Dherasariya Brahmin. She states that she had fallen ill at that time and therefore, she does not know whether Rita's birth was registered at Ghodasar Panchayat or not. 14. The Court has therefore to examine other evidence led by the prosecution in form of the general register maintained by the school where prosecutrix was studying and the school leaving certificate of the prosecutrix. The general register is produced at Ex. 36 through deposition of Dinesh D. Patel, Ex.34, who was the Principal of the school. He had brought the original register to the Court at the time when he deposed before the Court and states that in the register, date of birth of the prosecutrix is indicated to be July 30, 1985. He says that he is working in the school as Principal since 1996, prior to him Rubinaben was the Principal and from her he had taken the charge. He recognises the hand-writing of Rubinaben and says that Entry No. 4391 relating to Ritaben Balkar Singh Jat is in her hands. He says that in column No. 17, the remarks are entered into by him. According to him, the school can be said to be a Government school. It transpires from his deposition that the extract of the general register Ex. 36 was produced on record and exhibited by consent of parties. The witness also proves the school leaving certificate Ex.37. The witness states that the contents of the register and the certificate are correct. he states that Ex. 37 was issued by him to Babiben. 14.1 During cross-examination, he says that when a guardian brings his ward for admission, a form is required to be filled-in by the guardian. That form is meant for the school and is a permanent record. He says that he does not know who had brought Rita for being admitted to the school. He says that the guardian form contains details of name, address etc. of the guardian. 14.2 A scrutiny of Ex.36 - the copy of entry No. 4391 of the general register, indicates that Rita was admitted to school on June 27, 1991. Column No. 7 indicates that guardian Certificate No. 87 was the basis for the entries. The said entry indicates that date of birth of Rita was July 30, 1985. The last column indicates that the name of the prosecutrix Rita was removed because of continued absence. Ex. 37 is the school leaving certificate which also indicates that she was admitted to school on June 27, 1991, that her name is recorded at entry No. 4391 of the general register and that her date of birth is July 30, 1985. 14.3 It is contended that the guardian form is not produced by the prosecution, but it has to be noted that during cross-examination though several questions were put to the witness in this regard, the witness was not called upon to produce the same. 14.4 It has to be therefore seen that the entry in the general register Ex. 36 is produced on record and that entry was made in year 1991 in ordinary course of business of the school, which indicated that this was the first entry of the prosecutrix to the school, the entry was made on the basis of a guardian certificate No. 87 and therefore there is no reason to doubt the correctness of the entry regarding date of birth of the prosecutrix. Nobody could have anticipated this type of an incident at that stage while making such an entry. It is a record of the school maintained in ordinary course of business. 14.5 Differently put, the evidence of the school register, school leaving certificate and the Principal of the school supports the say of Babiben regarding age of the prosecutrix being less than 16 years in any eventuality. The say of Babiben that prosecutrix was aged twelve and a half years at the time of the incident has not been challenged during cross-examination. It was contended that the details given by Babiben in cross-examination regarding her marriage with Balkar Singh and birth of Rita do not coincide with the age of the prosecutrix as indicated by the date of birth in the school register. In paragraph 4, Babiben has stated that she was married with Balkar Singh about 18 - 19 years prior to her deposition. Rita was born after about 10-12 years of marriage and when she married, she was aged about 13-14 years. She stayed with her parents for about 2 years and went to the house of Balkar Singh thereafter, and after going to the house of