1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. ** J U D G M E N T ** S.B.CRIMINAL APPEAL NO. 299/1985 (Kamrujma Vs. State) DATE OF ORDER - 04/02/2008 P R E S E N T HON'BLE MR.JUSTICE RAGHUVENDRA S.RATHORE Reportable Mr.Vijyant Nirwan on behalf of Mr.A.K.Gupta, for the accused-appellant. Mr.B.S.Chabba, Public Prosecutor. BY THE COURT: By this appeal, under Section 374(2) Cr.P.C., the accused-appellant has sought to challenge the judgment dated 7.6.85 passed by the learned Sessions Judge, Kota in sessions case no. 206/1984 whereby he has convicted the accused-appellant for the offence under Sec.376 IPC and awarded sentence of seven years' rigorous imprisonment. 2. In short, the facts of the case are that on 11.5.84, a report came to be lodged at P.S. Railway Colony, Kota by one Nandlal, stating therein that in the afternoon of 10.5.84, the accused-appellant committed the offence of rape with his sister Manju. It is stated in the report that when the prosecutrix Manju was 2 playing on 'Chabutra' along with another girl named Guddu, the accused-appellant called her to his house, which is adjacent to her house. It is alleged, that after committing rape, the accused-appellant sent the prosecutrix to her house through the window. As the father of the prosecutrix Manju was not in the town, the instant report came to be lodged by her brother Nandlal. He was also not present in the town on the day of incident. The first informant Nandlal was on duty, as Wireless Operator in police department, at Bundi where a message was sent. He came on the next day and then the report was lodged by him. 3. After registration of the first information report, the investigation commenced and the police collected evidence by preparing the Naksha-Mauka, having the medical examination of prosecutrix, by seizure of number of cloths including the under-garments etc. During the course of investigation, prosecutrix Manju was also medically examined in respect of her age. According to the medical report, the age of the prosecutrix was 15 years. After completion of the investigation, police submitted challan. Thereafter the trial was conducted. During the 3 course of trial, prosecution produced as many as seven witnesses and exhibited seventeen documents, in support of its case. One of the important witness of the prosecution is Dr.Y.K.Sharma (PW-5) who had conducted medical examination of the prosecutrix Manju. After concluding the trial, the learned trial court convicted and sentenced the accused-appellant, as mentioned above. 4. The learned counsel for the accused- appellant has assailed the impugned judgment passed by the trial court on various grounds. He has submitted that from the statement of prosecutrix herself, no offence of rape had been committed in the instant case. He has also submitted that the trial court has not properly considered the age of prosecutrix. In this regard, according to the counsel for the appellant, the trial court has neither properly considered the statement of prosecution witnesses recorded during the trial, nor properly appreciated the other material available on record. He has further submitted that the accused-appellant has been falsely implicated on account of enmity. As a matter of fact, as per the case of the accused-appellant, 4 he was on duty at the relevant time. Much emphasis has been laid by the learned counsel for the accused-appellant on the medical evidence as well as statement of Dr.Y.K.Sharma (PW-5) to show that the alleged offence has not at all been committed. 5. The learned Public Prosecutor, has supported the judgment passed by the court below. He has submitted that the offence has been committed by the accused-appellant on the proseuctix Manju, who was below 16 years' of age. According to the Public Prosecutor, no error has been committed by the court below while awarding conviction and sentence to the accused-appellant. 6. The case of the prosecution, as revealed in the First Information Report, is that the accused-appellant had committed the offence of rape with prosecutrix Manju. On the day of incident i.e. 10.5.84, the prosecutrix along with another girl namely Guddu were playing infront of her house. The accused-appellant then called the prosecutrix to his room and after having sexual intercourse with her, she was sent back through a window. The accused had also then 5 left his room. The instant report was lodged by the brother of the prosecutrix namely Nandlal on the next day i.e. 11.5.84 at 9.00 PM. It is stated that the informant and so also the father of the prosecutrix were not in town on the day of incident. The mother of the prosecutrix namely Smt.Kamla was in the house and the prosecutrix had informed her after the incident. In the meantime, neither the mother of the prosecutrix took any steps to lodge the report nor she took any help from others residing nearby, for taking action. The prosecutrix has herself stated before the trial court that her father had returned home in the evening of the day of incident. The other girl namely Guddu, who was with the prosecutrix just before the incident, has not been produced by the prosecution before the trial court. Similarly, the father of the prosecutrix namely Motilal has also not been produced, who could have been the best witness on many counts, including that of age of the prosecutrix. 7. During the course of investigation, the police had seized many articles like Towel, cloths, lugra, underwear etc. According to the prosecution, only underwear was having stains of 6 semen. Therefore, the said article was sent to the FSL. The said underwear was undisputedly recovered after four days' of the incident i.e. On 14.5.85. According to the FSL report, no stains of semen were found on any other article recovered by the Investigating Agency, except on the underwear. This creates doubt because it is not unusual to have such stains on the underwear of unmarried person and it was recovered after a long delay. In fact the learned court below had itself held in para no.19 of the judgment that such evidence was not of much value particularly when there was no stains of semen on the cloths of the prosecutrix. Therefore, the contention raised by defense counsel in this respect was rather accepted. 8. It would be relevant to mention here that the learned trial court had also observed that it was not clear from the statement of the prosecutrix herself as to whether semen was ever released during the course of sexual intercourse. Further more, the prosecutrix has on one hand stated that there was penetration, and on the other hand that the accused tried for it. This important fact had been taken note of by the learned trial court and that is why it 7 had put a question to the prosecutrix but she did not reply to it. 9. The learned trial court has also held in para no.21 of the judgment that from the description of the incident as given by the prosecutrix herself in her statement during the course of trial, it is revealed that the accused-appellant had not committed any physical violence to the prosecutrix. Another important finding arrived at by the learned trial court is, on the basis of statement of the prosecutrix herself, that if the prosecutrix was major then it could have been said that the sexual intercourse is possibly with her consent. The finding arrived at by the learned trial court, in para no.21 of the judgment, in this respect is as under: "मंजू ने जो ǒववरण Ǒदया उसके आधार पर यǑद मंजू बािलग होती तो यह कहा जा सकता था Ǒक सàभोग उसकȧ सहमित से हआ है ु |” 10. Now coming to a more important aspect of the matter, that is, about the age of the prosecutrix. After having considered the aforesaid evidence in respect of sexual intercourse, and the finding given by the learned trial court, the only question which 8 remains to be considered is as to whether the prosecution had succeeded in proving that at the time of incident, the prosecution was below 16 years of age. In this regard, the prosecutrix has produced two types of evidence. Firstly, by way of medical examination of the prosecutrix conducted by the medical Jurist namely Dr.Y.K.Sharma (PW-5) and secondly the school record of the prosecutrix, in the form of School Leaving Certificate (Ex.P/16) and an admission form(Ex.P/17) filled in by her father namely Motilal. It may be noted that the defence has also produced a witness in respect of age of the prosecutrix i.e. Babukhan (DW-3), a neighborer who has deposed that the prosecutrix was born in the year 1966. In order to prove the documents of the school record, the prosecution has produced one Sh.Madanlal Verma (PW-7), who is the Asstt. Head Master of Middle School concerned. 11. So far as the documentary evidence from the school record, produced by the prosecution in respect of age of the prosecutrix, is concerned, the prosecution has not produced the father of the prosecutrix who had filled in the admission form before the Head Master who was so posted in 9 the school, at the time of admission of prosecutrix. As regards the School Leaving Certificate, the prosecution witness Madanlal who had produced the same was not posted in that school at the time of admission. Likewise, Sumer Chand, as admitted by Madanlal in his cross-examination, was not the Head Master of the school at the time of admission of prosecutrix. Therefore, the admission form as well as school leaving certificate have no evidentiary value unless the person who has recorded the entry in the school record about the age of the prosecutrix, had come in the witness box and proved the said documents. 12. The law on the point is well settled in the case of Birad Mal Singhvi Vs. Anand Purohit (AIR 1988 SC 1796) that any entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in the school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. Similarly, in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar (AIR 2005 SC 203), the Supreme court has held as under: 10 “8. The question of age of the victim girl is the first and foremost aspect that needs to be considered in the present appeal. On this question, we are unable to concur with the finding of the trial court as affirmed by the High Court. In our view, the finding as reached by the trial court is based on no evidence or evidence which is doubtful. The prosecution wanted to prove her age by filing the school transfer certificate through PW-13. The certificate is Ex.P4. It was purportedly issued by the Headmaster of the Primary/Secondary School, Nawabganj. Her dage of birth, as recorded in the admission register, is stated to be 4.2.1974. The date of admission is mentioned as 22.2.1980 and the date of leaving the school as 31.12.1981. It is mentioned in column 5 that the admission was given on the basis of the declaration of the father i.e. PW-11. By the time she left the school, she passed II Class. The date of issuance of the certificate was 7.1.1991 i.e. after the trial commenced. No explanation is forthcoming as to why the Investigation Officer did not obtain the certificate in the course of investigation and why the certificate was not produced by the father of the girl (PW11). Apparently, the age was given on the basis of the declaration made by the father. If so, the father was the best witness to speak about her age. However, he did not say a word about her age.” 13. In the case of Ravinder Singh Gorkhi Vs. State of U.P. (AIR 2006 SC 2157), the Apex Court has reiterated the principle that the school Leaving Certificate which was not issued by the 11 person who was in the school at the time when person was admitted therein, cannot be relied upon. 14. This principle was initially laid down by the Apex Court in the case of Ram Murti Vs. State of Haryana (AIR 1970 SC 1029) wherein it was held that unproved and unexhibited school certificate cannot be relied upon. 15. Now coming to the medical evidence on record (Ex.P8), and the statement of Medical Jurist Dr.Y.K.Sharma (PW-5), the age of the prosecutrix is said to be 15 years. The Medical Jurist has himself deposed that there may be a difference of six months in the opinion given by him. Therefore, according to the Medical Jurist, age of the prosecutrix is fifteen and half years. 16. In the present where the prosecution has failed to prove the School record in respect of the age of prosecutrix, the only evidence left is that of Medical Officer PW-5 who has also deposed the age to be fifteen and half years. Therefore the defence is entitled to rely on the higher side of the age given by the doctor. In 12 the case of Deelip Singh @ Dilip Kumar (supra), the Apex Court in para 11 has held that when the School Leaving Certificate is to be excluded from the consideration and the court is left with evidence of the Medical Officer, then the defence is entitled to rely on higher side of the age given by doctor. In the case of Dayachand Vs. Sahib Singh and another (AIR 1991 SC 930), the Supreme Court has laid down that: “the tendency of many to have lesser age recorded in school is well known and, therefore, the date of birth being recorded as 1.1.1973 in the other school, can be easily appreciated out cannot be accepted, because the same is clearly in conflict with the medical evidence.” 17. After taking into consideration the afore- mentioned material facts of the prosecution case, and the manner in which the alleged incident had taken place, particularly the description given by the prosecutrix herself, in my view the probabilities factor operate against the prosecutrix. In the case of present nature where the incident has taken place during the day; the prosecutrix went to the room of the accused-appellant merely on his call; thereafter the sexual intercourse had been done by the accused-appellant, a detail narration of which 13 has been given by the prosecutrix herself before the trial court; her going away from the place of incident through the window; the report not being lodged promptly, and the explanation for delay sought to be given by the prosecution side, is in contradiction to the statement of prosecutrix herself; evidence on record in respect of age of prosecutrix etc., it is difficult to rely upon the prosecution case and same cannot be said to be proved beyond reasonable doubt. In the fact situation, the benefit deserves to be given to the accused- appellant. 18. It would be relevant to note the observation made by the Apex Court, in a case having quite similar facts, Dilip and another Vs. State of M.P. (AIR 2001 SC 3049), which are as under: “14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing truthfulness of the explanation offered by the prosecutrix that because of 14 being over-awed by the two accused persons she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m. in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story is not only not corroborated by the medical evidence, is rather belied thereby. The presence of blood-stains is not confirmed by forensic science laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix as given in the court. The learned counsel for the State relied on Section 114A of the Evidence Act, 1872 which provides that 15 in a trial on a charge under Section 276(2)(g) of IPC on the prosecutrix stating that she was not a consenting party, the court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not misunderstood as recording a finding that the prosecutrix was a willing party to sexual intercourse by the accused persons. The court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of forensic science laboratory. The defense has given suggestion in cross-examination for false implication of the accused persons which however have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of 16 the correctness of story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed.” 19. For the aforesaid reasons, this appeal deserves to be allowed. The accused appellant is entitled for benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt in respect of alleged offence. The prosecution has also failed to prove that prosecutrix was below 16 years of age, at the time of incident. 20. In the result, the appeal is allowed. The accused-appellant is acquitted of all the charges leveled against him. He is on bail and his bail bonds stand discharged. (RAGHUVENDRA S.RATHORE),J. Sandeep/-