IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 617 of 2000 For Approval and Signature: HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR.JUSTICE SHARAD D.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- RAFIK KHAN ASGARKHAN PATHAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 617 of 2000 MR MJ BUDDHBHATTI for Appellant No. MR JM BUDDHBHATTI for Appellant No. MR MM TIRMIZI for Appellant No. MRS HANSA PUNANI, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA and HON'BLE MR.JUSTICE SHARAD D.DAVE Date of decision: 30/06/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE R.P.DHOLAKIA) The appellant-original accused has preferred this appeal under Sec.374(2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 29-5-2000 passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad City, in Sessions Case No.222 of 1999 whereby he has been sentenced to undergo ten years rigorous imprisonment with a fine of Rs.100/-, in default to undergo further rigorious imprisonment of one month for the offence punishable under Sec.376 of Indian Penal Code. He has further been sentenced to undergo one year rigorous imprisonment for the offence under Sec.342 of IP Code. He has also been sentenced to undergo three years rigorous imprisonment for the offence under Sec.506(2) of IP Code with a token fine of Rs.100/-in default to undergo further one month rigorous imprisonment. The three substantive sentences were ordred to be run concurrently. 2. The case of the prosecution is that the victim was residing in Ramanlal Inamdar's chawl, Amraiwadi, and the appellant-accused was also residing in the same vicinity. On 31-5-1998 between 1315 hours and 1330 hours when the victim was passing near the house-cum-shop of one Firoz, she was asked by the accused to clean the vessels in his house. While she was cleaning the same, the accused closed the door from inside. When she was about to shout, she was threatened by the accused stating that if she shouts, then will meet with the dire consequences. She was asked to remove her clothes from her body and was taken to one inner room where she was raped by the accused. Thereafter, she immediately rushed to her parents who were searching her from nearby and narrated the whole incident. She was taken to the Amraiwadi Police Station by her mother and a complaint was lodged there by the mother which was registered as Amraiwadi Police Station I.C.R.No.393 of 1998 for the offences punishable undr Secs.376, 342 and 506(2) of IPC Code and police started investigation. During the course of investigation, the appellant was arrested. At the end of investigation, charge-sheet was submitted. As the offences were triable only by the Court of Sessions, case was committed by the learned Metropolitan Magistrate to the Court of Sessions at Ahmedabad where it was numbered as Sessions Case No.222 of 1999. The charge was framed against the present appellant-accused on 16-12-1999 by the learned Addl. Sessions Judge. It was read over to the appellant who pleaded not guilty to the charge and claimed to be tried. 3. To prove the guilt against the accused, the prosecution examined 9 witnesses in all and also produced documentary evidence with list Ex.8. On submission of closing purshis by the prosecution, learned Addl. Sessions Judge, Ahmedabad City, recorded further statement of the accused under Sec.313 of Cr.P.C. After hearing the learned advocates appearing for the respective parties, the learned Addl. Sessions Judge, Ahmedabad City, vide judgment and order dated 29-5-2000 passed in Sessions Case No.222 of 1999 convicted the appellant as aforesaid. 4. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction, the appellant preferred this appeal. At the initial stage, appeal was admitted but bail was refused. 5. We have heard learned counsel for the appellant, Mr.J.M.Buddhbhatti and learned Addl. Public Prosecutor for the State, Mrs.H.B.Punani. 6. It is mainly argued by the learned counsel for the appellant that it was a love affair between the victim and the appellant. According to him, age of the victim at the time of incident was not 11 years and 4 months but 17 years to 20 years. In support of that, he has taken us through the medical evidence Ex.33 which is the certificate issued by the doctor on completion of ossification test. According to him, ossification test is a scientific test and in absence of production of School Leaving Certificate on record, said certificate was required to be accepted by the court below as the evidence regarding the age of the victim and ought to have come to the conclusion that the age of the victim at the time of incident was above 16 years. The certificate issued by the Corporation is not a conclusive proof and when an independent person such as a doctor gives his opinion regarding the age of the victim, it can be relied upon. It is further submitted by him that though it is stated by the prosecutrix that there was a nail mark on her body, no such mark was found to have been stated in the certificate issued by the medical officer and since there were no injuries found on the body of either the appellant or the victim, it can be said to be a case of consent. Besides, there are various contradictions which would go in favour of the appellant. Moreover, there were family disputes between the accused and the family of the victim and, therefore, false complaint was filed by the complainant to involve the accused in the crime in question. It is further submitted that the prosecution has not examined material witnesses namely, Firoz, who is the shop owner, father of the victim and neighbours and therefore also, the story of the prosecution cannot be believed. Since the medical evidence and other materials were supporting in favour of the appellant-accused, it is requested that the judgment and order of conviction passed by the learned Addl. City Sessions Judge may be quashed and set aside. 7. Ms.Hansa Punani, learned Addl. Public Prosecutor for the State has supported the well reasoned judgment delivered by the court below on all aspects. It is contended by her that age of the victim at the time of incident was 11 years and 4 months. The medical evidence supports the say of the prosecutrix and not the accused. Moreover, the version of the prosecutrix does not require any corroboration. However, it is supported by the evidence of her mother, medical evidence and also evidence of the employee of the Corporaton who has proved the age of the prosecutrix. Looking to the nature of the offence being heinous one and looking to the fact that the evidence are natural and trustworthy, minor contradiction or discrepancy may not be taken into consideration. Since the judgment and order of conviction is just and proper, it is submitted that the same may not be interfered with. 8. To prove the age of the victim, prosecution has placed reliance on the evidence of mother of the victim. She has been examined by the prosecution as P.W.No.1 at Ex.10 wherein she has deposed that at the time of incident, her daughter was aged about 11 years and 4 months. The victim was also examined as P.W.No.2 at Ex.12. She has categorically deposed that her birth date is 21-1-1987. Her evidence was recorded by the court below after examining the sanctity of her deposition on oath. It was held by the court below that the girl at the time of incident was studing in 6th Standard in Pragati school. The prosecution has produced and relied upon birth registration certificate Ex.26 of the victim issued by the Ahmedabad Municipal Corporation. To prove the same, the prosecution has examined one Samir Bhailalbhai Kothari, employee of the Ahmedabad Municipal Corporation as P.W.No.7 at Ex.24. Through him, prosecution has proved age of the victim on the basis of page No.33 of the birth register. However, nothing has come out from his cross-examination. 9. The main argument advanced on behalf of the appellant-accused before the court below as well as this Court is that no School Leaving Certificate is produced by the prosecution and, therefore, birth registration certificate produced and proved by the prosecution is required to be believed. It appears that same has been properly dealt with by the court below. Over and above, the birth registration certificate issued by the Corporation is the primary evidence and it reflects from the evidence of the employee of the Corporation who has been examined at Ex.24 that said birth entry has been made on the basis of information received by the corporation from the concerned hospital. It means that it is a basic information which has been received by the corporation through proper channel and, therefore, it cannot be said to be an insufficient proof to prove the age of the victim. When a child is admitted in a school, parents of the child usually submit Vali Form on the basis of congent evidence on record which will be either the certificate from the hospital where the child is born or the birth registration certificate. When the original evidence which has been produced by the official of the Corporation and proved by him is there on record, there is no reason to dischard the said evidence. Whereas the appellant has mainly relied upon the certificate Ex.33 i.e. ossification test. But as per the settled principles of law, the certificate issued by the doctor conducting the ossificication test is not to be treated as a scientific proof which can surpass the actual evidence which are on record wherein also, there can be a variation of two years. Moreover, medical examination of the victim also supports the say of the prosecution regarding her age which reflets from the certificate of the victim Ex.30 which has been propery dealt with by the court below. In these circumstances, we have no hesitatiion in accepting the finding arrived at by the court below that age of the victim at the time of incident was 11 years and 4 months and in any circumstances of the matter, she was below 16 years. Once it is established that she was below 16 years at the time of incident, then the question of consent does not arise at all. In view of the aforesaid, case of the prosecution falls under Sec.375(6) of IP Code. 10. As far as the incident is concerned, it has been categorically deposed by the prosecutrix in detail in her oral evidence that she knows the appellant as he is the brother of her friend. It is also stated by her that when she was passing through the house of Firoz, the appellant called her to clean vessels and when she was cleaning the vessels, he closed the door from inside. When she was about to shout, she was threatened with a knife. Thereafter, she was taken to sofa set and asked to remove her clothes. On refusal to do so, she was again threatened and hence, she removed her clothes. She was taken on the cot and he also removed his clothes and he had a sexual intercourse with her against her will. However, nothing has come out from her cross-examination. Her version is supported by the evidence of the complainant-mother as the incident was narrated to her mother, who immediately lodged the complaint Ex.11. Medical evidence also supports the case of the prosecution. It has been categorically opined by Dr.H.F.Patel, the Medical Officer of the Civil Hospital, Ahmedabad, in the medical certificate Ex.21 that "hymen is congested, recent tear at 7.0 O' clock". The said doctor who has been examined by the prosecution as P.W.No.6 at Ex.20 has written in the case papers that "I had stated that hymen was conjested, recent tear at 7.00 position. I say that it is a sign of physical intercourse." In his cross-examination, specific question was asked by the learned counsel for the appellant-accused which reads as under: "Can you say Dr. that there was complete sexual intercourse?". Said query was answered by the doctor as under: "I say that there was sexual intercourse". In view of the above, merely there were no external marks of injury on the body of the prosecutrix, it does not mean that incident in question has not taken place. At the most it can be said that she could not resist the accused from committing the crime or has been overpowered by the accused. In these circumstances, the query raised by the learned counsel for the appellant that there were no mark of injury on the body of the victim does not in any help the appellant-accused. Facts remain that incident in question has taken place and prosecution was able to establish the case against the appellant-accused beyond reasonable doubt. In this regard, prosecution has mainly placed reliance upon the evidence of prosecutrix. It is trustworthy and there is no reason to disbelieve the same. Over and above, the evidence of mother of the victim, who is the complainant, the evidence of official from the Corporation and also the medical evidence prove the guilt against the appellant-accused beyond reasonable doubt considering the age of the victim at the time of incident to be 11 years and 4 months. Therefore, question of consent or love affair does not come in the way of the prosecution. In these circumstances, the findings recorded by the court below are just and proper which do not require any interference by this Court. Having regard to the magnanimity of the offence committed by the accused on a minor girl, we are also not eager to reduce the sentence awarded by the learned Addl. Sessions Judge. In view of the aforesaid, this appeal is required to be dismissed. 11. On reading the impugned judgment, we have come across at various places the learned Addl. Sessions Judge referring the name of the victim which is otherwise not necessary even as per the law laid down by the Apex Court and a gross negligence has been shown by the learned Addl. Sessions Judge. We hope that such type of mistakes will not be repeated in future. Hence, office is directed to send a copy of this judgment to the Principal Judge, City Civil & Sessions Court, Ahmedabad, for handing over the same to the concerned learned Judge. 12 In view of the above, appeal is required to be dismissed and is accordingly dismissed. (R.P.DHOLAKIA,J.) (SHARAD D.DAVE,J.) radhan/