High Court
Case Details
Crl.A. 205/2011 BEFORE THE HON’BLE MR.JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (CAV)
Legal Reasoning
(cid:28)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 cont ents. Its execution has not been proved by admissible evidence, that is, by the ’evidence of those persons who can vouchsafe for the truth of the facts in issue ’. (cid:29) In this case the transfer certificate was neither exhibited nor proved. The le arned Trial Court did not call any witness under Section 311 IPC to prove the do cument. The authenticity of the document is doubtful as because it was issued or procured after the incident and it was not exhibited. The conviction of the acc used on the basis of unexhibited document cannot be sustained. The findings of d octor on the basis of radiological examination with regard to the age of the vic tim was not taken into account by the learned Trial Court. No reason has been as signed why the finding of the doctor could not be considered while the doctor’s findings were not subjected to any cross-examination. As stated by the victim, t he accused had sexual intercourse several times with her. He had induced her to cohabit with him by giving her money. She did not disclose about the cohabitatio n to her parents. They came to know only after her pregnancy of several months. Then also the actual date or probable date of incident was not stated by the vic tim that is why in the FIR it has been stated that she has been carrying pregnan cy of 5 months, whereas she was carrying pregnancy of 8 months. [14] [15] [16] The accused is acquitted and set at liberty forthwith. Return the LCR along with the copy of this judgment.
Arguments
Heard Mr. A Chamuah, learned counsel for the appellant. Also heard Mr. B By delivering the judgment in Sessions Case No. 72 (JJ) of 2008, the learned Ass istant Sessions Judge at Jorhat has convicted the accused appellant under Sectio n 376 IPC and sentenced him thereby to undergo RI for 7 years and also to pay a fine of Rs. 2000/-, in default SI for 2 months. [2] .J. Dutta, learned Addl. Public Prosecutor, Assam. [3] The FIR in this case was lodged on 25.03.2008 for the incident which occ urred as per the FIR on 27.11.2007 at about 8 A.M.. It is alleged in the FIR tha t the accused came to the house of the victim while she was alone in the house o n the pretext of collecting milk and then committed rape on her. The victim was then only 13 years old child. She was induced by the accused by offering money. She did not disclose the incident to anybody and she became pregnant. When her m other noticed that her menstruation cycle has stopped, insisted by her mother sh e disclosed that it was the accused who committed rape on her. The mother of the victim P.W. 3 immediately took the victim for medical examination. The doctor w ho examined the victim confirmed that she is pregnant. Thereafter P.W.3 reported the matter to her husband. There was a meeting in the village wherein the accus ed confessed that he was indulged in sexual activities with the victim. When the victim was carrying pregnancy of 5 months as per the FIR was lodged. On complet ion of investigation police submitted the charge-sheet under Section 376 IPC aga inst the accused. [4] ction 376 IPC and claimed to be tried. [5] Altogether 5 witnesses were examined by the prosecution in support of it s case. The accused in his statement recorded under Section 313 Cr.P.C. denied t he allegation leveled against him. He, however, did not adduce any defence evide nce. [6] The accused pleaded not guilty to the charge framed against him under Se P.W.2 Doctor Bonomala Bezbarua examined the victim on 25.03.2008 and her findings are as follows: (cid:28)i) Height-137 cm, Weight, 35 kg. Build-Average. ii) Breast-developed, Teeth-14/ 13. iii) Axillary & Pubic hair- developed, LMP-July, 07. iv) Abdomen- Nosigns of violence seen. v) Uterus - 32 weeks, FHS + R/U. vi) Vaginal examination- No signs of violence seen. vii) Hymen torn admits 2 fingers. viii) Vaginal smear (Laboratory No.26) shows no spermatozoa. ix) U.S.G. - advised (report not received. x) X-Ray- A.P and lateral view of left wrist and elbow joints (H-80) shows ossif ication is completed in the bones around the left elbow joint. Epiphysis of lowe r end of left radius is not united with metaphysic. (cid:29) In the opinion of the doctor considering the radiological and laboratory findings, the age of the victim was above 16 years and below 18 years. She was carrying 32 weeks’ pregnancy at the time of examination. [7] As per the FIR the incident of rape occurred on 27.11.2007. The FIR was lodged on 25.03.2008. If the incident had occurred on 27.11.2007 at the time of examination of the victim by the doctor, she must have carried the pregnancy of 4 months, whereas the medical report shows that she was carrying pregnancy of 32 weeks i.e. 8 months. The victim was examined as P.W.1 and stated that at the time of the inci [8] dent she was a student of Class-VIII and her age was about 13 years. According t o her statement the accused regularly used to visit her house to collect milk, a s he deals with the business of milk. On the date of the incident she was alone in the house. The accused came and taking advantage of her loneliness committed rape on her. She deposed that the accused threatened her and out of fear she di d not report the incident to anybody. After that incident also whenever the accu sed find her alone in the house, he did sexual intercourse with her, for at leas t 4 to 5 occasions. But she did not report the incident to anybody. When her men struation cycle was stopped, her mother enquired and she was slapped by her moth er. She was insisted to disclose the incident to her mother, but she reported th e incident to her sister-in-law, Lilimai Pathak, who reported the matter to her mother. At that time she was carrying pregnancy of 5 months. When her father cam e to know about the incident, he brought the accused to his house. According to her the accused confessed before her father, Gaonburha and others were called an d the accused confessed before the Gaonburha and others also. Then her mother lo dged the FIR. Her statement was recorded under Section 164 Cr.P.C. and she exhib ited that statement as Exbt-1 wherein she stated that she was paid by the accuse d after sexual intercourse. According to her she delivered a girl child, however , she died after 12 days of her birth. In her cross-examination she admitted tha t she did not produce any document to prove her age. [9] P.W.3 is the mother of the victim. She deposed that the age of the victi m at the time of incident was 14 years. When she noticed that Menstrual cycle of her daughter has stopped, she asked her the reason, but the victim kept mum. Th en she slapped her and thereafter the victim informed the incident of rape to he r sister-in-law Lilaimai Pathak. The victim disclosed that she was induced by th e accused for sexual intercourse. She was also threatened by the accused not to disclose the incident. Thereafter, the mother of the victim took her to the doct or who confirmed that the victim was carrying pregnancy of 5 months. The mother reported the matter to her husband. The accused was brought to their home, who c onfessed in presence of the villagers that he committed rape and then she lodged the FIR. [10] As discussed earlier, there is no explanation of discrepancy in the evid ence of P.W.1 & 2 and the medical report. As per medical report the victim was c arrying pregnancy of 8 months, whereas the victim and her mother stated that she was carrying pregnancy of 5 months. If the date of occurrence 27.11.2007 is tak en into account, at the time of lodging the FIR she must have been carrying the pregnancy of 4 months. Therefore, it is not believable that the accused committe d rape on her on 27.11.2007 for the first time and not earlier. From the evidenc e of victim, it appears that she was induced as well as paid by the accused for having sex with him. She stated that she was 13 years of age at the relevant tim e, whereas her mother stated that she was 14 years of age. On the other hand, th e medical report shows that she had completed 16 years of age. [11] It is submitted by the learned Additional Public Prosecutor that origina l evidence of the prosecutrix should not be suspected and should be believed. In the cited case of Raju and Other vs. the State of Madhya Pradesh, reported in (2008) 15 SCC 133, it is stated as follows: (cid:28) & &. 11. It cannot be lost sight of that rape causes the greatest distress an d humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particular ly where a large number of accused are involved. It must, further, be borne in m ind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a l ie as to the actual assailants, but there is no presumption or any basis for ass uming that the statement of such a witness is always correct or without any embe llishment or exaggeration. (cid:29) [12] In the case of rape the prosecution has to establish that the man has se xual intercourse with the women without her consent or with a woman less than 16 years of age with or without her consent. The prosecution if can establish beyo nd reasonable doubt that the accused have sexual intercourse with the woman who was not above 16 years of age, consent of the woman would be immaterial. [13] Here in this case although P.W.1 & 3 has stated that the victim was belo w the age of 16 years but they did not produce any document in support of the ag e of the victim. The victim at the relevant time was a student of class VIII. A Transfer School Living Certificate was submitted before the learned Trial Court during the course of the argument. The learned Trial Court took notice of the ce rtificate and on the basis of unexhibited certificate, victim was considered bel ow 16 years of age. In the case Alamelu and Another vs. State reported in (2011) 2 SCC 385, it was held that the age of the girl could not have been fixed on t he basis of transfer certificate. There was no reliable evidence to vouchsafe th e correctness of date of birth as recorded in the transfer certificate. The expe rt evidence does not rule out the possibility of the girl being a major. In the case of Birad Mal Singhvi vs. Anand Purohit reported in 1988 SCC 604 it w as observed (cid:28)The date of birth mentioned in the scholars’ register has no eviden tiary value unless the person who made the entry or who gave the date of birth i s examined. (cid:29) Similarly, in Narbada Devi Gupta vs. Birendra Kumar Jaiswal reported in (2003) 8 SCC 745 it was held:
Decision
In view of above the impugned judgment is hereby set aside and quashed.