Arun Kumar H. vs State of Karnataka

A.S. Pachhapure, J.—The conviction and sentence ordered by the trial Court for the offence under Sections 366 and 376 IPC is challenged in this appeal.

The facts reveal that the victim-P.W. 7 was missing on 06.08.2011 after she attended the school and after receiving this information from the school students, her uncle-P.W. 1 approached the Police and submitted his complaint-Ex. P1 and it came to be registered in Crime No. 180/2011 for the offence punishable under Sections 366 and 376 IPC. When both the victim and the appellant were in a hotel room at Shivamogga, they were traced and were apprehended. The enquiry disclosed that the appellant kidnapped the victim, took her to Bengaluru, then to Hassana and after staying for 3 days in Hassana, they went to Shivamogga and stayed in a hotel. In the course of the investigation, statement of the victim was recorded. She complained use of force by the appellant to accompany him. She was examined by the doctor. It is stated that the appellant had the sexual intercourse with her. She was stated to be less than 16 years of age. In the course of the investigation, she was examined by the doctor-P.W. 8. Certificate-Ex. P7 was obtained. The appellant was arrested and he was examined by the doctor-P.W. 9. After recording the statement of the witnesses, opinion of the experts were obtained. Transfer certificate was secured from the school authorities and on completion of investigation, a charge sheet was laid against the appellant for the charge under Sections 366 and 376 IPC.

On behalf of the prosecution, P.Ws. 1 to 19 were examined and Exs. P1 to 17 were marked along with M.Os. 1 and 2. After recording the statement of the appellant under Section 313 Cr.P.C., as there was no defence evidence, the trial Court heard learned Government Advocate and on appreciation of the evidence on record, convicted the appellant for the charge under Section 366 and 376 IPC and ordered him to undergo rigorous imprisonment for 7 years and to pay a fine for both the offences. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned counsel for the appellant and also leaded High Court Government Pleader.

The point that arises for my consideration is;

Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court for the offence punishable under Sections 366 and 376 IPC? 5. Learned counsel for the appellant submits that the evidence of the prosecution is insufficient to prove that an act of forcible sexual intercourse on the victim. She submits that the conduct of the victim is sufficient to conclude that she voluntarily accompanied the appellant. She also submits that the age of the victim was more than 16 years. The trial Court has not considered/the medical evidence and relied upon the evidence of Ex. P14-school certificate, which is unacceptable in law. She submits that when the victim was more than 16 years and there is consensual sexual intercourse, no offence is committed in law. Therefore, she has sought for setting aside the conviction and sentence.

On the other hand, learned High Court Government Pleader supports the Judgment and Order and submits that the victim was less than 16 years and the conviction ordered by the trial Court is just and proper. He submits that the transfer certificate could be accepted as evidence in preference to the medical evidence.

The scrutiny of the evidence of the victim and other witnesses examined by the prosecution would clearly reveal that it is on 06.08.2011 at 11.30 a.m., the victim and the appellant left Hesaraghatta village, their native place, to Bengaluru, thereafter they went to Hassana, they stayed there in a hotel for 3 days, thereafter they went to Shivamogga and while they were in a hotel from 10.08.2011 to 12.08.2011, they were traced by the relatives and the police. The conduct of the victim that she accompanied the appellant, they traveled in a bus all along Hesaraghatta-Bengaluru-Hassana and then to Shivamogga and if she was really taken by the appellant by use of force, there was ample opportunity for her to complain the public and also the other passengers in the bus. Therefore, this conduct on the part of the victim would clearly indicate that she voluntarily accompanied the appellant to all the places. The theory put-forth by the prosecution that force was used to take the victim from her native place cannot be accepted.

After the victim was taken to custody on 12.08.2005, she was examined by the doctor-P.W. 8 and certificate-Ex. P7 was issued. The medical evidence clearly reveals that the hymen was not intact and she used to have a sexual intercourse. That apart, in her evidence she stated having sexual intercourse at the instance of the appellant. This version put-forth in the evidence of the victim and the material placed on record would clearly reveal that there was an act of sexual intercourse between the appellant and the victim.

So far as the age of the victim is concerned, the prosecution has examined P.W. 19-M. Vijayalakshmi, Headmistress of the school. She has issued the transfer certificate-Ex. P14 and it reveals that the victim was born on 26.09.1995. As per this certificate, the victim was aged 15 years and approximately 10 months as on the date of the incident. She had not completed 16 years of age.

Now, so far as admissibility of the transfer certificate at Ex. P14 is concerned, learned counsel submits that the entry made in the school record is on the basis of the information given by the parents and in the absence of other material on record, the certificate cannot be accepted as the proof of her age. It is relevant to note that the birth date in the register maintained has come into existence at the time when there was no controversy with regard to the age of the victim. All along when she was in the school, her date of birth was mentioned as 26.09.1995. When there was no controversy at all, the register having come into existence at that point of time is a relevant document under the Evidence Act. When the relevant document is produced before the Court, there is no reason to reject such document. It is made available by the prosecution in proof of age of the victim.

That apart, Rule 12 of the juvenile Justice (Care and Protection of Children) Rules [hereinafter referred to as "the Rules" for short] prescribes procedure to be followed in determination of age. Sub-Rule (3)(a) of the said Rules is extracted hereunder for the sake of convenience:

"(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 certificates, 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;

Under the aforesaid rule, whenever a question arises with regard to determination of age of a juvenile or a person, who is conflict with law, it is the matriculation certificate or equivalent certificate which would be accepted as evidence by the Committee in enquiry. Alternatively, the date of birth certificate is issued by the school authority, a third party. The Birth certificate given by a Corporation or a Municipal authority or a Panchayat and clause (b) states that in the absence of other clause (i), (ii) or (iii) of clause (a) of the aforesaid Rules, it is the medical opinion, which is to be taken into consideration. The law has given utmost importance to transfer certificate or school certificate relating to the date of birth of a person and there is no impediment in law to accept such certificates as proof of the age. Therefore, I am of the opinion that though the doctor, who examined the victim has assessed her age in between 16-17 years, it is purely an opinion evidence and an approximate age and it is not accurate when Ex. P16 transfer certificate gives the date of birth and exact age of the victim. In the circumstances, I do not think that the medical evidence, which will be of any help to the appellant and in that view of the matter, I am of the opinion that when the victim was aged 15 years and 10 months as on the date of the offence, she was less than 16 years of age and she has no maturity of mind and to protect the interest of such persons, a provision has been made under Section 376 IPC and consent has no relevance in case where the victim is less than 16 years of age. Therefore, there is ample material on record to establish that the appellant committed an offence under Section 376 IPC.

The scrutiny of the evidence of P.W. 7-victim does not reveal any material to establish that she was compelled to marry. Therefore, Section 366 IPC is not applicable. Anyhow, it is relevant to note that she was minor and under Section 363 IPC., if a minor is enticed or taken by a person without the consent of the parents, the provision of Section 363 IPC is attracted. As the victim was less than 16 years of age, taking such victim without the consent of the guardian attracts the provisions of Section 363 IPC. Therefore, the material placed on record is sufficient to convict the appellant for the offence under Section 363 IPC. For the offence under Section 366 IPC., the appellant is entitled to an order of acquittal.

P.W. 1 is the uncle of the victim, who filed the missing complaint and also the complaint for the offence punishable under Section 366 IPC. P.Ws. 2 and 3 are the attesting witnesses to the spot-mahazar-Ex. P2. P.W. 4 is the hotel Manager in whose hotel, the victim and the accused were stayed. He supports the case of the prosecution. P.W. 5 is the room boy and he has also supported the case of the prosecution. P.W. 6 is the father of the victim. P.W. 7 is the victim. P.W. 8 is the doctor, who examined the victim, whereas P.W. 9 is the forensic expert, who examined M.Os. 1 and 2 and issued certificate-Ex. P8. P.W. 10 apprehended accused No. 1. Accused No. 2, a juvenile was apprehended by P.W. 11.

P.W. 12 is the woman constable, who took the victim to the hospital for examination. P.W. 13 is the Supervisor of the lodge, who has not supported the case of the prosecution. P.W. 8 is the doctor, who examined the appellant and issued the potential certificate. P.W. 15 is the police constable, who carried the articles to the FSL. P.W. 16 is the PSI. P.W. 14 and 18 are the Investigating Officers and P.W. 19 is the School Principal, who has issued the certificate-Ex. P14. The scrutiny of the material placed on record reveals ample material for the offence under Sections 363 and 376 IPC.

The trial Court awarded rigorous imprisonment for 7 years. But, anyhow, reliance is placed on the decision of the Apex Court reported in 2011 AIR SCW 6821 [Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi)]; wherein the victim voluntarily accompanied the accused though less than 16 years of age, the sentence was modified from 7 years to 5 years. The relevant portion of the Judgment is extracted hereunder:

"23. The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit case to reduce the sentence further in a proved case of rape of a minor." Taking into consideration the aforesaid principle laid-down in the facts and circumstances of that case, it is very much applicable to the facts on hand. Therefore, the sentence has to be modified to 5 years.

Consequently, the appeal is allowed in part. The conviction of the appellant for the charge under Section 366 IPC is set aside. He is acquitted of the said charge. The conviction of the appellant for the offence under Section 376 IPC is confirmed, the sentence is modified. The appellant is ordered to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000-00, in default to undergo simple imprisonment for 3 months. For the offence under Section 363 IPC., he is ordered to undergo one year imprisonment and to pay a fine of Rs. 1,000-00, in default to undergo simple imprisonment for one month. Both the sentences shall run concurrently. The appellant is entitled to set off under Section 428 Cr.P.C.