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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.28 OF 2006
Ashok s/o Ramlakshtra Tiwari,
Aged about 27 years,
Resident of CRPF Camp,
Nagpur (In Jail). ……. APPELLANT
…V E R S U S…
The State of Maharashtra,
through P.S.O. Sonegaon,
Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri R.M. Daga, Advocate for Appellant.
Ms. R.V. Kaliya, APP for Respondent/State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: th
15 NOVEMBER, 2017.
ORAL JUDGMENT
1] Exception is taken to judgment and order dated
17.01.2006 in Sessions Trial 126/2005 delivered by the 11 th
Adhoc Additional Sessions Judge, Nagpur, by and under which,
the appellant (hereinafter referred to as “the accused”) is
convicted for offence punishable under section 363 of Indian
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Penal Code (IPC) and is sentenced to suffer rigorous
imprisonment for three years and to payment of fine of Rs.500/-,
and, is further convicted for offence punishable under section 366
of IPC and is sentenced to suffer rigorous imprisonment for five
years and to payment of fine of Rs.1000/-. The accused is
however, acquitted of offence punishable under section 376 of
IPC.
2] Heard Shri R.M. Daga, the learned counsel for the
appellant-accused and Ms. R.V. Kaliya, the learned Additional
Public Prosecutor for the respondent/State.
3] The learned counsel for the accused Shri R.M. Daga
submits that the judgment and order impugned is manifestly
erroneous since the prosecution has failed to prove that the victim
was a minor. The learned counsel would submit that even if the
entire evidence is taken at face value, the prosecution has failed to
establish offence under section 363 or 366 of IPC. In view of the
failure of the prosecution to prove that the victim was a minor,
charge under section 363 of IPC must necessarily fail, is the
submission. The further submission is that since the evidence
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overwhelmingly suggests that the victim voluntarily and of her
own accord joined the company of the accused, it is axiomatic that
the prosecution has not proved offence punishable under section
366 of IPC.
4] Per contra, Ms. Kaliya, the learned A.P.P. supports the
judgment and order impugned and submits that the learned
Sessions Judge has recorded findings which are unexceptionable
on facts in law.
5] The First Information Report is lodged by P.W.1
Prabhakar Rao on 23.08.2004, on the basis of which offence came
to be registered against the accused under section 363 and 366 of
IPC.
6] The gist of the report is that P.W.1 Prabhakar Rao is
the father of the victim then aged 14 to 15 years and studying in
9th standard in Kendriya Vidyalaya, Nagpur. P.W.1 is serving as
Inspector (Ministerial) in C.R.P.F. and is attached to the office of
the Deputy Inspector General of Police, C.R.P.F. since 16.08.2002.
The accused Ashokkumar Tiwari is the son of a colleague one
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Ramlakshtra Tiwari. Ashokkumar was conducting tuition classes
from a rented premise near C.R.P.F. Gate-II and the victim was
one of the students. Ashokumar used to visit the house of the
informant. The victim went missing from the house at 12’o clock
on 15.08.2004. The informant searched for the victim in the
campus and then having come to know that Ashokkumar Tiwari
was also not traceable since the day victim went missing, the
informant suspected that the victim was kidnapped by
Ashokkumar.
7] During the course of investigation PSI Mahadeo
Chavan visited the spot, prepared the spot panchnama in presence
of the witnesses, recorded the statements of witnesses, arrested
the accused and referred him for medical examination. The blood
sample of the victim was collected and seized and she was also
referred for medical examination and radiological test, the school
leaving certificate of the victim was collected and seized and after
completion of the investigation charge-sheet was submitted before
the Judicial Magistrate First Class, Court 9, Nagpur who
committed the proceedings to the Sessions Court.
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8] The learned Sessions Judge framed charge vide Exh.5
under sections 363, 366 and 376 of the Indian Penal Code, the
accused pleaded not guilty and claimed to be tried. The defence is
of total denial, as is obvious from the statement recorded under
section 313 of the Criminal Procedure Code and the trend of
cross-examination.
9] The learned counsel for the accused Shri Daga is that
if the evidence is tested on the anvil of the law declared by the
Apex Court in three judgments (i) Alamelu and another Vs. State
represented by Inspector of Police (2011) 2 SCC 385,
(ii) Mahadeo s/o Kerba Maske Vs. State of Maharashtra and
another, (2013) 14 SCC 637 and (iii) State of M.P. vs. Anoop
Singh (2015) 7 SCC 773. It must be held that the prosecution has
not established that the age of the victim was less than 18 years.
In view of the said submission, I intend to evaluate the evidence
on determination of age of the victim, before I proceed to deal
with the other issues arising for consideration.
10] Concededly, the ossification test or the radiological
examination (Exh.41 and 42) opine that the radiological age of
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the victim is 16 years 1 year.
11] P.W.14 Shankar Pandurang Ingle, who is examined to
prove the date of birth recorded in the Kendriya Vidyalaya School
states that the date of birth of the victim which is recorded in the
admission register is 01.06.1990. P.W.14 has proved the extract of
admission register Exh.48. However, P.W.14 states that the entry
was taken on the basis of the school leaving certificate issued by
the earlier school.
P.W.15 Smt. Indu Suresh Khairnar, the Principal of
Kendriya Vidyalaya, C.R.P.F., Nagpur is examined to prove the
certificate Exh.50 issued by her recording the date of birth of the
victim as 01.06.1990. In the cross-examination, it is elicited from
the said witness thus:
Today, I have not brought the original birth
certificate or the xerox copy of original birth certificate
of Jayalaxmi issued by the local authority. It is the
practice followed by our school while giving admission
to the students that on the basis of the Transfer
Certificate of the student issued by the concerned
school, we used to admit the student in our school.
Whenever, the student intents to take admission in 1 st
standard, we used to obtain or collect birth certificate
of such student. It is true that I had no occasion to see
the Original birth certificate of the student Jayalaxmi.
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It is true that against the scoring of the date of birth in
the document (Exh.51), I have not put my initials or
the signature. It is true that I had not demanded the
xerox copy or the original birth certificate of student
Jayalaxmi, when the parents of Jayalaxmi submitted
admission application in our school. It is not true to
say that the girl Jayalaxmi failed twicely in 8 th
standard.
12] In Alamelu and another Vs. State represented by
Inspector of Police reported in (2011) 2 SCC 385 the Hon’ble Apex
Court enunciates the law thus:
39. We will first take up the issue with regard to the
age of the girl. The High Court has based its conclusion
on the transfer certificate, Ext. P-16 and the certificate
issued by PW 8 Dr. Gunasekaran, Radiologist, Ext. P-4
and Ext. P-5″.
40. Undoubtedly, the transfer certificate, Ext. P-16
indicates that the girl’s date of birth was 15-6-1997.
Therefore, even according to the aforesaid certificate,
she would be above 16 years of age (16 years 1 month
and 16 days) on the date of the alleged incident i.e.
31-7-1993. The transfer certificate has been issued by a
government school and has been duly signed by the
Headmaster. Therefore, it would be admissible in
evidence under Section 35 of the Evidence Act, 1872.
However, the admissibility of such a document would
be of not much evidentiary value to prove the age of the
girl in absence of the material on the basis of which the
age was recorded. The date of birth mentioned in the
transfer certificate would have no evidentiary value
unless the person, who made the entry or who gave the::: Uploaded on – 16/11/2017 18/11/2017 01:42:35 :::
apeal28.06.J.odt 8date of birth is examined.
41. We may notice here that PW 1 was examined in
the court on 9-8-1999. In his evidence, he made no
reference to the transfer certificate (Ext. P-16). He did
not mention the girl’s age or date of birth. PW 2 was
also examined on 9-8-1999. She had also made no
reference either to her age or to the transfer certificate.
It appears from the record that a petition was filed by
the complainant under Section 311 CrPC seeking
permission to produce the transfer certificate and to
recall PW 2. This petition was allowed. She was
actually recalled and her examination was continued
on 26-4-2000. The transfer certificate was marked as
Ext. P-16 at that stage i.e. 26-4-2000. The judgment
was delivered on 28-4-2000. In her cross-examination,
she had merely stated that she had signed on the
transfer certificate, Ext. P-16 issued by the school and
accordingly her date of birth was noticed as 15-6-1977.
She also stated that the certificate has been signed
signed by the father as well as the Headmaster. But the
Headmaster has not been examined. Therefore, in our
opinion, there was no reliable evidence to vouchsafe for
the truth of the facts stated in the transfer certificate.
42. Considering the manner in which the facts
recorded in a document may be proved, this Court in
Birad Mal Singhvi v. Anand Purohit observed as
follows: (SCC pp. 618-19, para 14)“14. … The date of birth mentioned in the
scholars’ register has no evidentiary value unless the
person who made the entry or who gave the date of
birth is examined. … Merely because the documents
Exts. 8, 9, 10, 11 and 12 were proved, it does not mean
that the contents of documents were also proved.
Mere proof of the documents Exts. 8, 9, 10, 11 and 12
would not tantamount to proof of all the contents or
the correctness of date of birth stated in the documents.
Since the truth of the fact, namely, the date of birth of
Hukmi Chand and Suraj Prakash Joshi was in issue,::: Uploaded on – 16/11/2017 18/11/2017 01:42:35 :::
apeal28.06.J.odt 9mere proof of the documents as produced by the
aforesaid two witnesses does not furnish evidence of the
truth of the facts or contents of the documents.
The truth or otherwise of the facts in issue, namely, the
date of birth of the two candidates as mentioned in the
documents could be proved by admissible evidence i.e.
by the evidence of those persons who could vouchsafe
for the truth of the facts in issue. No evidence of any
such kind was produced by the respondent to prove the
truth of the facts, namely, the date of birth of Hukmi
Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in the
aforesaid documents have no probative value and the
dates of birth as mentioned therein could not be
accepted.” (emphasis supplied)
43. The same proposition of law is reiterated by this
Court in Narbada Devi Gupta v. Birendra Kumar
Jaiswal where this Court observed as follows:
(SCC p 751, para 16)“16. … The legal position is not in dispute that
mere production and marking of a document as
exhibit by the court cannot be held to be a due proof of
its contents. Its execution has to be proved by
admissible evidence, that is, by the evidence of those
persons who can vouchsafe for the truth of the facts in
issue’.”
44. In our opinion, the aforesaid burden of proof
has not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate
cannot be relied upon to definitely fix the age of the
girl.
45. In fixing the age of the girl as below 18 years,
the High Court relied solely on the certificate issued by
PW 8 Dr. Gunasekaran. However, the High Court failed
to notice that in his evidence before the court, PW 8,::: Uploaded on – 16/11/2017 18/11/2017 01:42:35 :::
apeal28.06.J.odt 10the X-ray expert had clearly stated in the
cross-examination that on the basis of the medical
evidence, generally, the age of an individual could be
fixed approximately. He had also stated that it is likely
that the age may vary from individual to individual.
The doctor had also stated that in view of the possible
variations in age, the certificate mentioned the possible
age between one specific age to another specific age.
On the basis of the above, it would not be possible to
give a firm opinion that the girl was definitely below 18
years of age.
46. In addition, the High Court failed to consider
the expert evidence given by PW 13 Dr.
Manimegalaikumar, who had medically examined the
victim. In his cross-examination, he had clearly stated
that a medical examination would only point out the
age approximately with a variation of two years. He
had stated in this case, the age of the girl could be from
17 to 19 years. This margin of error in age has been
judicially recognised by this Court in Jaya Mala v.
Govt. of J K. In the aforesaid judgment, it is observed
as follows: (SCC p. 541, para 9)“9. … However, it is notorious and one can take
judicial notice that the margin of error in age
ascertained by radiological examination is two years on
either side.”
Equally relevant are the observations of the Apex
Court in State of M.P. vs. Anoop Singh (2015) 7 SCC 773 in
paragraphs 14, 15 and 16, which read thus:
14. This Court in Mahadeo v. State of Maharashtra has
held that Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007, is applicable in::: Uploaded on – 16/11/2017 18/11/2017 01:42:35 :::
apeal28.06.J.odt 11determining the age of the victim of rape. Rule 12 (3)
reads as under:
“12 (3) In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board or,
as the case may be, the Committee by seeking evidence
by obtaining–
(a)(i) the matriculation or equivalent certificate,
if available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which
will declare the age of the juvenile or child. In case
exact assessment of the age cannot be done, the Court
or the Board or, as the case may be, the Committee, for
the reasons to be recored by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year.
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.”
15. This Court further held in para 12 of Mahadeo as
under: (SCC p. 641)“12. … Under Rule 12(3)(b), it is specifically
provided that only in the absence of alternative
methods described under Rule 12(3)(a)(i) to (iii), the::: Uploaded on – 16/11/2017 18/11/2017 01:42:35 :::
apeal28.06.J.odt 12medical opinion can be sought for. In the light of such a
statutory rule prevailing for ascertainment of the age of
the juvenile in our considered opinion, the same
yardstick can be rightly followed by the courts for the
purpose of ascertaining the age of a victim as well.”
(emphasis supplied)
This Court therefore relied on the certificates issued by
the school in determining the age of the prosecutrix.
In para 13, this Court observed: (Mahadeo case, SCC p.
641)
“13. In light of our above reasoning, in the case
on hand, there were certificates issued by the school in
which the prosecutrix did her Vth standard and in the
school leaving certificate issud by the school under Ex.
54, the date of birth of the prosecutrix has been clearly
noted as 20-5-1990, and this document was also
proved by PW 11. Apart from that the transfer
certificate as well as the admission form maintained by
the Primary School, Latur, where the prosecutrix had
her initial education, also confirmed the date of birth
as 20-5-1990. The reliance placed upon the said
evidence by the courts below to arrive at the age of the
prosecutrix to hold that the prosecutrix was below 18
years of age at the time of the occurrence was perfectly
justified and we do not find any grounds to interfere
with the same.”
16. In the present case, we have before us two
documents which support the case of the prosecutrix
that she was below 16 years of age at the time the
incident took place. These documents can be used for
ascertaining the age of the prosecutrix as per Rule
12(3)(b). The difference of two days in the dates, in
our considered view, is immaterial and just on this
minor discrepancy, the evidence in the form of Exts. P-5
and P-6 cannot be discarded. Therefore, the trial court
was correct in relying on the documents.
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13] Concededly, the entries in the school record which
are produced and proved do not pertain to the school in which the
victim is first admitted. P.W.14 and P.W.15 admit that the entries
in the school record have been taken on the basis of the school
leaving certificate issued by the school earlier attended by the
victim. In the teeth of the settled position of law, it must be held
that the prosecution has not proved that the victim was aged less
than 18 years as on the day of the incident. Be it noted, that the
radiological test opine the age of the victim to be 16 1 year.
In Jaya Mala vs. Home Secretary, Government of Jammu Kashmir
and others, AIR 1982 SC, 1297 it is held thus:
“In view of the provisions of Section 45 of the Evidence
Act, opinion of doctor as to age of a person.
Radiological test, margin error in age ascertained by
radiological examination is two years on either side”.
14] The victim, who is examined as P.W.2, states that she
was beaten by her father when she returned home after attending
the 15th August programme in school. She went to the accused
and disclosed that she was beaten by her father and was told that
the victim should accompany his friend Vinay Pande, is the
deposition. The victim then states that she accompanied Vinay
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Pande who left her in one Restaurant and at 02:00 p.m. the
accused arrived along with one Kaushal Mishra. The accused put
the fear of the father in the mind of the victim and offered that he
would take the victim with him. The victim and the accused
boarded an auto-rickshaw, proceeded to the bus stand, went to
Pandhurna and stayed in a lodge for a day. The accused and the
victim had sexual intercourse in the said lodge. The accused and
the victim then took a train from Pandhurna intending to go to
Delhi. In the meanwhile the victim fell ill and both the victim and
the accused disboarded at Beena Railway Station. The accused
took the victim to a Doctor who treated the victim and prescribed
medicines. The victim and the accused halted in a lodge at Beena
and again had sexual intercourse. The victim and the accused then
proceeded to Delhi, however, again disboarded at Jhansi, stayed
in a lodge at Jhansi, where again both engaged in sexual
intercourse. The victim and the accused then travelled to Delhi
on 19.08.2004 and stayed with the family of one Suresh Kumar.
The accused came to know that a report was lodged by the father
of the victim and asked the victim where they she wants to go.
The accused left the victim at the house of her maternal aunt at
Vijaywada. However, from the house of the maternal aunt the
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victim was taken to lodge at Vijaywada where the accused again
established sexual relationship. The victim has then deposed the
events leading to the victim going back to the house of the father
and the police inquiry.
Even de hors what is elicited in the searching
cross-examination, the version of the victim overwhelmingly is
suggestive of a consensual sexual relationship. The victim admits
to be love with the accused and having written a letter to the
accused, the contents of which reveal deep and intense feelings
for the accused.
15] In view of the failure of the prosecution to prove that
the victim was less than 18 years of age, the ingredients of section
361 which defines kidnapping from lawful guardianship are not
established. It is axiomatic, that the conviction of the accused
under section 363 of IPC must necessarily be set aside. It may be
useful to refer to the following observation of the Apex Court in
the State of Karnataka vs. Sureshbabu Puk Raj Porral, 1994 Cr.L.J.
1216
“When age of victim is doubtful, then question of taking
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apeal28.06.J.odt 16her away from lawful guardianship does not arise.
More so, when victim herself deposed that she went
with accused voluntarily. However, the second
requirement that taking or enticing away a minor out
of the keeping of the lawful guardianship is an essential
ingredient of the offence of kidnapping”.
16] On a holistic appreciation of evidence on record, I am
of the opinion, that the victim, who is not proved to be less than
18 years of age, left the house of her father willingly and of her
own accord and joined the company of the accused. The accused
and the victim travelled to many destinations together and the
conduct of the victim is not suggestive of she being an unwilling
partner in the relationship. The conviction of the accused under
section 366 of IPC is equally indefensible.
17] The judgment and order impugned is set aside.
18] The accused is acquitted of offence punishable under
section 363 and 366 of the Indian Penal Code.
19] The bail bond stands discharged.
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20] The fine paid by the accused, if any, be refunded.
The appeal is allowed.
JUDGE
NSN
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