Shivdas Domar Singh v. State of Chhattisgarh

Urmila (PW-3). Prosecutrix (PW-1) lodged First Information Report (Ex.P/1) in Police Station Devbhog, where offence under Sections 363, 366A and 376 IPC was registered. Prosecutrix (PW-1) was sent to Community Health Centre, Devbhog for medical examination. Dr. Aruna Beck (PW-8) examined prosecutrix (PW-1) arid gave her report (Ex.P-9). She opined that prosecutrix (PW-1) was habitual of sexual intercourse. She advised for X-Ray examination for determination of age of prosecutrix (PW-1). She prepared two slides of vaginal swab of prosecutrix (PW-1). The appellant was also sent to Community Health Centre, Chhura for medical examination. Dr. R.S.Paikara (PW-12) examined him and gave his report (Ex.P-15), in which, he found that the appellant was capable of committing sexual intercourse. ^ 1 0' In further investigation, underwear and mark sheet of prosecutrix (PW-1) were seized vide Ex.P-2. Dakhil Kharij Panji and Certificate were seized vide Ex.P-8. The underwear of the appellant was also seized vide Ex.P-7. Seized articles were sent to Forensic Science Laboratory, Raipur for examination. FSL report was received therefrom vide memo dated 30-10-2009 (Ex.-P/21). In FSL report, article A i.e. underwear of prosecutrix (PW-1) and article C i.e.slideof vaginal swab of prosecutrix (PW-1) were stained with human spermatozoa. After completfon of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Devbhog, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by Additional Sessions Judge, Gariyaband, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Manish Sharma and Shri Arvind Singh, learned counsel for the appellant argued that on the date of incident, the age of prosecutrix (PW-1) was above 16 years. The documents produced by the prosecution relating to the age of prosecutrix (PW-1) were not duly proved by it. They further argued that the finding recorded by the trial Court is perverse. Prosecutrix (PW-1) left her home willingly. They further argued that it appears that prosecutrix (PW-1) was a consenting party.

Shri Anand Verma, learned Panel Lawyer State/respondent, supporting the impugned judgment, submitted that ^p\ the conviction and sentence awarded by the learned Additional 4 Sessions Judge do not warrant any interference by this Court.

Having, heard rival contentions of the parties at length, 1 have perused the record of Sessions Trial No.33/2009.

Now, 1 shall examine whether on the date of incident, the age of prosecutrix (PW-1) was below 16 years or not?

Evidence of parents of a victim girl is material for proving her age. In the instant case, at the time of deposition of prosecutrix (PW- 1), her age was mentioned 14 years in her deposition sheet. Mangal Singh (PW-2), who is father of prosecutrix (PW-1) deposed that the age of prosecutrix (PW-1) was 14 years. Ankur RamBaghel (PW-9) deposed that he was posted as officiating Head Master in Govt. Middle School, Diwanmuda from 29-11-2007. He had brought original Dakhil Kharij Register of that school. The said register was maintained since 1-07-2006. At senal number 62 of the register, date of birth of prosecutrix (PW-1) is mentioned as 10-01-1994. He further deposed that on 8-07-2009, he issued a certificate (Ex.P-12) on the basis of Dakhil Kharij Panji. Ceri:ified copy of the Dakhil Kharij Pan//;'sEx.P-11C. •

Ankur Ram Baghel (PW-9), who was an officiating Head Master and who made entry in Dakhil Kharij Panji was examined by the prosecution. Ankur Ram Baghel (PW-9) specifically deposed that the date of birth of prosecutrix (PW-1) was recorded in Dakhil Kharij Panji on the basis of information given by her father Mangal Singh ^, ^' '^. ^.^ '-^^ (PW-2). Mangal Singh (PW-2) deposed that the age of prosecutrix (PW-1) was 14 years.

In Alamelu and another v. State, Represented by Inspector of Police, AIR 2011 SC 715,the Hon'ble Supreme Court observed thus: "38. ..... The transfer certificate has been issued by a Govemment School and has been duly signed by the Headmaster. Therefore, it Would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the 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 date of birth is examined. ....."

In State of Chhattisgarh v. Lekhram, (2006) 5 SCC 736, the Hon'ble Supreme Court observed thus: "A register maintained in a school evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of is admissible in births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Suchevidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix. "

6 In Shekara v. State of Karnataka, (2009) 14 SCC 76, Hon'ble Supreme Court observed as follows: "6. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross- examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster of the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P- 10(a) as the relevant entry on the basis of which Ext. P-9 was issued. "

In Arjun Singh v. State of H.P., 2009 Cri.L.J.1332 (SC), the Hon'ble Supreme Court observed as follows: "7. In State of Chhattisgarh v. Lekhram [2006(5) SCC 736] it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short 'Evidence It may be true that the entry of the school register is not conclusive Act'). but it has evidentiary value. "

In the instant case, Mangal Singh (PW-2) father of prosecutrix specifically deposed that the age of prosecutrix (PW-1) was 14 years. Ankur Ram Baghel (PW-9) specifically deposed that '.~,\ i"i '<" •si'. f. ,.^ w ^ .^."^Bi^1 ,-^ '-'^sss's-s' <2^ the date of birth of prosecutrix (PW-1) was recorded in Dakhil Kharij Panji on the basis of information given by her father Mangal Singh (PW-2). Prosecutrix (PW-1) also deposed that on the date of incident, she was 14 years of age. Doctor Aruna Beck (PW-8) also mentioned the age of prosecutrix (PW-1) in Ex.-P/9 as 14 years.

Prosecutrix (PW-1), Mangal Singh (PW-2) and Dr. Aruna Beck (PW-8) were not cross examined regarding the age of prosecutrix (PW-1). No Singte question was put by the defence to above witnesses. Therefore, is established from the evidence that the date of birth of prosecutrix (PW-1) is 10-01-1994. The date of incident was 31-05-2009. It reveals that the age of prosecutrix (PW- 1) was below 16 years on the date of incident.

Now, l shall examine whether offence under Section 376(1) IPC is made out against the appellant or oot?

Prosecutrix (PW-1) deposed that on the date of incident, she had gone to hand-pump for taking water. The appellant came there, took prosecutrix (PW-1) to Orissa on a motor-cycle and kept her ^ there in a house. She furi:her deposed that the appellant committed sexual intercourse with her without her consent. The appellarit kept her for about 20 days and CQmmitted sexual intercourse with her continuously.

Looking to the statement of prosecutrix (PW-1), it appears that the appellant committed sexual intercourse withprosecutrix (PW-1) with her consent, therefore, she was a consenting party to sexual intercourse, but she was below 16 years of age on the date of occurrence, hence, her consent was of no consequence and was immaterial.

Looking to the evjdehce of prosecutrix (PW-1), it appears that after being allured, she had gone along with the appellant and was living with him. The appellant took prosecutrix (PW-1) from her lawful guardian and prosecutrix (PW-1) left her parental home being completely allured or influenced by the appeilant.

For the foregoing reasons, l do not find any infirmity in the findings recorded by the learned Additional Sessions Judge.

Learned counsel for the appellant argued that the appellant is a poor person and the offence was committed on 31-05-2009. The appellant is in jail since 25-06-2009 and has suffered jail sentence for about 3 years and 10 months. Therefore, the jail sentence awarded to him may be restricted to the period already served by him. 3, ^ t^.'t,

tn State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770, r§4 the Hon'ble Supreme Court observed thus: lesser than the minimum "21. Awarding punishment prescribed under Section 376 IPC is an exception to the general rule. Exception clause is to be invoked only in conditions exceptional circumstances where incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded.

The natural presumption in law is that but for the the enacting part of the section would have proviso, included the subject-matter of the proviso; the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided. Proviso is used to remove special cases from the general enactment and provide for them separately. Proviso may change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable.

Thus, the law on the issue can be summarised to effect punishment should always proportionate/commensurate to the gravity of offence. Religions, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has punishment after mitigating considering aggravating factors decide circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. "

22. In the instant case, learned Additional Sessions Judge has sentenced the appellant with rigorous imprisonment for 10 years for the offence under Sections 366 and 376(1) IPC. Looking to the evidence of prosecutrix (PW-1), it appears that prosecutrix (PW-1) -c 4: had willingly accompanied the appellant and on the date of incident, 10 she was below 16years of age. For offence u/s 376(1) IPC, the minimum prescribed sentence is 7 years.

23. Looking to the facts and circumstances of the case, the jail sentence awarded by the learned Additional Sessions Judge for the offence under Sections 366 and 376(1) IPC is harsh. l am of the view that ends of justice would be served if the appellant sentenced with rigorous imprisonment for 7 years only.

Inthe result, the appeal is partly allowed. The conviction of the appellant under Sections 363, 366 and 376(1) IPC is affirmed. The sentence awarded to the appellant under Section 363 IPC is upheld. However, the sentence of rigorous imprisonment for 10 years awarded to him for offence under Sections 366 and 376(1) IPC is reduced to 7 years only for each. The sentence of fine awarded by the learned Additional Sessions Judge for the offence under Sections 363, 366 and 376(1) IPC is also affirmed. The jail sentences shall run concurrently. The appellant is entitled for set off under Section 428 Cr.P.C. ^ - - s^a1 SA'- _ ^at^a »m ^A^^^