Mariappan vs State

A. Selvam, J.—Challenge in this criminal revision case is to the concurrent judgments passed in Sessions Case No. 87 of 2001 by the

Assistant Sessions Court, Kovilaptti and in Criminal Appeal No. 168 of 2005 by the Additional District and Sessions cum Fast Track Court, No.

II, Tuticorin.

The epitome of the prosecution case is that the prosecutrix is a resident of Melapoovani Village and the accused is also a resident of the said

Village. On 05.02.1999 at about 7.00 p.m. the accused has asked the prosecutrix to come to a tank which situates on the eastern side of the said

village and accordingly, she has gone there and both of them have had bill and coo from 7.00 p.m. to 9.30 p.m. and at that time the accused has

given assurance to marry the prosecutrix and both of the them have had carnal copulation and subsequently the accused has refused to marry the

prosecutrix and thereafter a village panchayat has been convened, wherein also the accused has refused to marry the prosecutrix and subsequently

the prosecutrix has given the complaint which has been marked as Ex. P1.

On receipt of Ex. P1, the prosecuting agency has done investigation and after completing the same, laid a final report on the file of the Judicial

Magistrate Court No. I, Kovilpatti. The case has been committed to the Court of Sessions, Tuticorin Division and subsequently transferred to the

file of the trial Court.

On the basis of the alleged culpability of the accused, the trial Court has framed a charge u/s 376 of the Indian Penal Code and the same has

been read over and explained to him. The accused has denied the charges and claimed to be tried.

On the side of the prosecution, PWs. 1 to 11 have been examined and Exs. P1 to P11 and Nos. 1 & 2 have been marked. When the accused

has been questioned u/s 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, he

denied his complicity in the crimes. However no oral and documentary evidence have been let in on the side of the accused.

The trial Court, after assessing both the oral and documentary evidence, has found the accused guilty u/s 376 of the Indian Penal Code and

sentenced him to undergo seven years rigorous imprisonment and also imposed a fine of Rs. 3,000/- with default clause. Against the conviction and

sentence passed by the trial Court, the accused as appellant has preferred Criminal Appeal No. 168 of 2005 on the file of the first appellate Court.

The first appellate Court, after reappraising the evidence available on record, has dismissed the appeal whereby and whereunder confirmed the

conviction and sentence passed by the trial Court in Sessions Case No. 87 of 2001. Against the concurrent judgments, the present criminal

revision case has been filed.

The crux of the prosecution case is that at the time of occurrence i.e., on 05.02.1999 the prosecutrix has not completed 16 years of age and

both the accused and prosecutrix have known each other and both of them are residing in the same village by name Melapoovani. On the date of

occurrence, the accused has directed the prosecutrix to come to a tank which situates on the eastern side of the village and accordingly she has

gone there and both of them have had bill and coo from 7.00 p.m. to 9.30 p.m. and under the guise of marrying the prosecutrix, the accused has

raped her twice.

Before excogitating the argument advanced by the learned Counsel appearing for the revision petitioner/accused, a primordial duty is cast upon

the Court to find out as to whether the prosecution has established the guilt of the accused even without a speck of doubt.

The specific case of the prosecution is that the occurrence has taken place on 05.02.1999. The prosecutrix has been examined as PW1. She

would say in her evidence that she is a resident of Melapoovani Village and the accused is also a resident of the same village and she knows the

accused from her school days. On 05.02.1999 at about 7.00 p.m. the accused has directed her to come to the Tank which situates on the easter

side of the village and accordingly she has gone there and both of them have had bill and coo from 7.30 p.m. to 9.30 p.m. and at that time the

accused has given assurance to marry her and as a sign of overture, both of them have had coition and she has gone to her house at 9.30 p.m. and

the accused has gone to Madras on the date of occurrence itself and he has given assurance to marry her after coming from Madras and she

subsequently told her parents about the occurrence and next day, a panchayat has been convened and in the panchayat the parents of the accused

have participated and the accused has refused to come to panchayat by saying that he is not willing to marry her and the matter has been elongated

for a period of four months and ultimately a final panchayat has been convened, wherein the accused has firmly refused to marry her and the

panchayators have directed her to seek her remedy through Court and subsequent, she lodged the complaint which has been marked as Ex. P1.

PWs. 2 & 3, parents of the prosecutrix, have spoken about the panchayats and one Devendran has been examined as PW4. He has also

clearly stated in his evidence that on several occasions, panchayats have been held and the accused has firmly refused to marry the prosecutrix.

Therefore, it is quite clear that after occurrence, panchayats have been held on several occasions and in which the accused has expressed his firm

refusal. PW7, Doctor has stated in her evidence that she examined the prosecutrix and she found that the hymen of the prosecutrix is absent.

Therefore, from the evidence of PW1 couped with the evidence of PW7 and Ex. P4, Accident Registrar, it is easily discernible that the accused

has raped the prosecutrix as alleged on the side of the prosecution.

Now the Court has to analyse the argument advanced by the learned Counsel appearing for the revision petitioner/accused. The learned

Counsel appearing for the revision petitioner/accused has repeatedly contended with great vehemence that the occurrence has taken place on

05.02.1999 and prior to occurrence, both the prosecutrix and accused have loved each other from school days and both of them have decided to

marry and on the date of occurrence, the prosecutrix has completed sixteen years of age and only with her consent, the accused has had coitus

with the prosecutrix and therefore, the accused cannot be held liable u/s 376 of the Indian Penal Code and even assuming without conceding the

fact that the accused has refused to marry the prosecutrix, at the most the Court can punish him u/s 417 of the Indian Penal Code, but the Courts

below without considering the available evidence on record, have erroneously found the accused guilty u/s 376 of the Indian Penal Code and

therefore, the concurrent judgments passed by the Courts below are liable to be interfered with.

Per contra, the learned Government Advocate (criminal side) has also equally contended that the occurrence has taken place on 05.02.1999

and the date of birth of the prosecutrix is 09.01.1984 and on the date of occurrence, the prosecutrix has completed only fifteen years of age and

therefore, as per Clause 6 of Section 375 of the Indian Penal Code the accused has committed offence u/s 376 of the Indian Penal Code and the

Courts below after considering all the relevant records have rightly found the accused guilty under the said Section and therefore, the concurrent

judgments passed by the Courts below are not liable to be interfered with.

Basing upon the divergent submissions made by either counsel, the Court has to analyse as to whether on the date of occurrence the

prosecutrix has attained sixteen years of age or below the same.

As per Clause 6 of Section 375 of the Indian Penal Code, if the prosecutrix is under sixteen years of age, sexual intercourse committed with or

without her permission would clearly amount to rape.

The learned Counsel appearing for the revision petitioner/accused has mainly stressed his argument on the basis of Ex. P7 and also on the basis

of the evidence given by PW9. Ex. P7 is a Radiologist Report, wherein it has been stated that the prosecutrix has attained sixteen years of age and

below seventeen years. The author of Ex. P7 has been examined as PW9. She has also given evidence to that effect. In the instant case, the

School Transfer Certificate of the prosecutrix has been marked as Ex. P3, wherein the date of birth of the prosecutrix has been mentioned as

09.01.1984. The author of Ex. P3 has been examined as PW6. He would say in his evidence that he served as Head Master in Melapoovani

Village School and the Inspector of police has requested him to give Transfer Certificate of prosecutrix and the prosecutrix has studied upto eighth

standard.

The only point that has now winched to the fore at this juncture is as to whether the age of the prosecutrix on the date of occurrence can be

determined as per Ex. P7 or as per Ex. P3.

The learned Counsel appearing for the revision petitioner/accused has drawn the attention of the Court to the following decisions;

(a) The first and foremost decision is reported in 2005 SCC (Criminal) 253 (Deelip Singh @ Dilip Kumar v. State of Bihar) wherein the

concerned School Transfer Certificate of the prosecutrix has been issued by Headmaster of the concerned school after commencement of trial, but

the father of the prosecutrix has not stated any thing about her age and the school certificate has been produced by a clerk in Court and he could

not explain who applied for it and how he came in possession of it. Under the said circumstances, the Honourable Apex Court has held that the

date of birth mentioned in the school certificate cannot be considered as the date of birth of the prosecutrix.

(b) The second decision is reported in 2008 (1) MLJ 818 (Panchapthi v. State rep. by its Inspector of Police, Kanchi Taluk Police Station,

Kancheepuram District), wherein it is stated that if the date of birth is not supported by birth certificate, certainly the certificate issued by the

School Authorities cannot be taken as a conclusive proof. On the contrary, it is the evidence of PW 8 that it is not supported by any materials

including birth certificate. However, positively stated that not only for PW3, it is the practice for the school that such date of births are entered

approximately. This evidence of PW8 has been confirmed by the mother of PW 3 viz., PW2, who, in her evidence has stated that such date of

birth has been given by approximate.

It is an everlasting principle of law that each and every decision should be applied in accordance with the facts and circumstances of particular

case. In the instant case, Ex. P3, School Transfer Certificate has been filed, wherein the date of birth of prosecutrix is mentioned as 09.01.1984.

Ex. P7 is a radiologist report, wherein it has been stated that the prosecutrix has already completed sixteens years of age and she is below

seventeen years. Of-course it is true that PW2, father of the prosecutrix has stated in his chief examination that he does not know the actual age of

the prosecutrix on the date of occurrence. PW2 is an uneducated witness and probably he might not have known the actual age of the prosecutrix

on the date of occurrence and further no cross-examination has been posed to PW6 (the author of Ex. P3) to the effect that the date of birth

mentioned in Ex. P3 has been given approximately. Therefore, the facts found in the present case are not identical with the facts of the case

mentioned in the decisions referred to supra and under the said circumstances, the dictums given in the said decisions cannot be followed in the

present case.

As adverted to earlier, the learned Counsel appearing for the revision petitioner/accused has mainly advanced his argument on the basis of Ex.

P7, radiologist report. At this juncture, it would be more useful to look into the decision reported in 1984 C L J 1081 (Shanmugham v. State),

wherein a Division Bench of this Court has observed as follows;

Taking up first for consideration, the certificate given by the Radiologist, we find from the certificate that the Radiologist has specifically confined

his opinion to the fusion of the iliac crest. He has also reported that the lower end of radius and the lower end of ulna which fuse at the age of 18

have become fused. Then has referred to the fusion of the iliac crest.

...On that score alone we are not prepared to accept the contention that the appellant would not have completed the age of 18 and would not have

completed the age of 21 on the date of Radiological examination. This is because of the fact that the fusion of bones occurs for different persons at

different times and the variation is due to the multiciplity of causes, such as the health conditions of the family in which the person was born, the

climatic conditions in which he is living, the dietary habits, he is accustomed to, the type of life he is leading etc. Consequently the determination of

age on the basis of radiological examination can only be an approximate factor and it cannot taken as a decisive and incontrovertible feature....

Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful

guiding factor for determining the age of a person, but the evidence is not a conclusive and incontrovertible nature and it is subject to a margin of

error.

(ii) In Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, the Honourable Apex Court has held that one can take

judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

From the close reading of the decisions referred to earlier, it is made clear that age determined in radiological examination is only a guiding

factor and not a conclusive and uncontroverted proof and further it is not an absolute indicator. In short, on the basis of radiological examination,

the correct age of a person cannot be determined and further as per the dictum of the supreme Court, margin of two years can be taken on either

side.

In the case on hand, the prosecution has adduced positive evidence by way of filing Ex. P3, School Transfer Certificate of the prosecutrix

wherein the date of birth of the prosecutrix is mentioned as 09.01.1984 and in order to disprove the date of birth mentioned in Ex. P3, no

acceptable suggestions have been put on the side of the defence and further in Ex. P7 it is mentioned that the prosecutrix has attained sixteen years

of age and below seventeen years, and as per the dictum of the Honourable Apex Court margin of two years can be given on either side.

Therefore, it is quite clear that the Court can very well accept the date of birth mentioned in Ex. P3. The alleged occurrence has taken place on

05.02.1999 and the date of birth of the prosecutrix as per Ex. P3 is 09.01.1984. Therefore, on the date of occurrence, the prosecutrix has not

completed even sixteen years of age and as per Clause 6 of Section 375 of the Indian Penal Code, it is very clear that the accused has committed

offence of rape.

The learned Counsel appearing for the revision petitioner/accused has also made his faint attempt by way of drawing the attention of the Court

to the age mentioned in Ex. P1. Of-course it is true that in Ex. P1, complaint, the age of the prosecutrix has been mentioned as Seventeen. It is an

everlasting principle of law that parties to a proceeding may utter lie, but documents would not. The prosecutrix might have given her age

erroneously as Seventeen in Ex. P1. On that basis, the Court cannot come to a conclusion that the prosecutrix has attained Seventeen years of age

on the date of complaint by way of eschewing Ex. P3. Therefore, the above limb argument advanced by the learned Counsel appearing for the

revision petitioner/accused is of no use.

The Courts below, after having elaborate and threadbare discussion, have rightly come to a conclusion that the accused has committed offence

u/s 376 of the Indian Penal Code.

In view of the foregoing narration of both the factual and legal aspects, this Court has not found even a flimsy ground to make interference with

the well merited judgments passed by the Courts below and consequently, the present criminal revision case deserves dismissal.

In fine, this criminal revision case deserves dismissal and accordingly is dismissed. The conviction and sentence passed in Sessions Case No.

87 of 2001 by the Assistant Sessions Court, Kovilpatti, upheld in Criminal Appeal No. 168 of 2005 by the Additional District and Sessions cum

Fast Track Court No. II, Turicorin are confirmed. If the revision petitioner/accused is not in duress, the trial Court is directed to take suitable steps

so as to immure him in prison to serve out the remaining period of sentence.