Syed Amjad Ahmed vs State of Andhra Pradesh

The sole accused, on being aggrieved by the judgment of the Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad, dated 11th July, 1990, in Sessions Case No. 191 of 1988, on her file, convicting him for the offences under sections 366A and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of eight years under each count and directing the substantive sentences to run concurrently, has preferred this appeal.

The case of the prosecution is briefly as follows :- P.W. 2 Salma Begum is the daughter of P.W. 1 Jeelani Begum. The father of P.W. 2 is working in Saudi Arabia and she is living with her mother, P.W. 1, and she was in her custody by the date of the incident, i.e., on 18-2-1988. P.W. 2, the victim girl was studying X Class in Hyderabad Model High School in Moghalpura. The accused, who was acquainted with P.W. 2, induced her and took her to Jahanuma on 18-2-1988 and married her. The marriage between P.W. 2 and the accused was performed by P.W. 4 Qhazi Ghouse Mohiuddin, who issued the marriage certificates, Exs. P. 3 and P. 4. After finding that the searchers made by P.W. 1 and P.W. 3 Khaja Hameeduddin for tracing the victim girl P.W. 2 yielded no result, P.W. 1 gave a report to the police on 21-2-1988, which is marked as Ex. P. 1. On the basis of Ex. P. 1 a case was registered in Crime No. 37/88 and F.I.R. Ex. P. 10 was issued. On 24-2-1988 at about 12-00 noon the accused and P.W. 2 surrendered before the Police Station and then P.W. 9 Inspector of Police arrested the accused and recovered P.W. 2 under the cover of a mediators'' report in the presence of witnesses and handed over the girl, P.W. 2 to her mother, P.W. 1.

To prove the charges against the accused, prosecution examined P.Ws. 1 to 10 and got Exs. P. 12 marked. P.W. 2 Salma Begum is the victim girl and P.W. 1 Jeelani Begum is her mother. P.W. 3 Khaja Hameeduddin is the cousin brother of the father of P.W. 2 and according to him, as the father of P.W. 2 is working in Saudi-Arabia he is looking after the welfare of P.Ws. 1 and 2 and on 18-2-1988 when P.W. 1 reported to him that P.W. 2 did not return back from school, he along with P.W. 1 searched for the girl, P.W. 2, and ultimately Ex. P. 1 report was given in the Police Station. P.W. 4 Qhazi Ghouse Mohiuddin is the person who per formed the marriage between P.W. 2 and the accused and gave Exs. P. 3 and P. 4 marriage certificates. P.W. 5 Syed Naseeruddin attested Ex. P. 6 Panchanama drafted for the recovery of P.W. 2 and the two marriage certificates Exs. P. 3 and P. 4. P.W. 6 is the doctor, who, on the requisition given by Chatrinaka Police, examined P.W. 2 and found her hymen torn, and issued Ex. P. 7 certificate. P.W. 7 is the Sub-Inspector of Police who registered a case in Crime No. 37 of 1988 on the basis of Ex. P. 1 report given by P.W. 1 and Ex. P. 10 is the F.I.R. P.W. 9 Inspector of Police investigated into the case and P.W. 8 filed the charge-sheet. P.W. 10 Miss Mahara Ishruth is the Headmistress of Hyderabad Model High School in which P.W. 2 studied up to X Class. According to this witness P.W. 10, the victim girl P.W. 2 was admitted in Hyderabad Model High School on 18-6-1980 in III Class and she studied up to X Class. She has also deposed that at the time of the admission of P.W. 2, her date of birth was registered as 10-6-1973 in the admission register and Ex. P. 2 is the certificate issued by her.

The case of the accused is one of total denial. According to the accused, P.W. 2 fell in love with him and she herself was responsible for the marriage and she voluntarily consented for the marriage and P.W. 4 performed the marriage between him and P.W. 2 as per the caste custom. It is further the case of the accused that P.W. 2 represented to him that she was aged 18 1/2 years at the time of the marriage.

After careful appreciation of the evidence, both oral and documentary, adduced in the case, the learned Additional Chief Metropolitan Magistrate found that the age of P.W. 2 by the date of incident was 14 years 8 months and that she was taken away from the lawful custody of her mother, P.W. 1 and that the accused had committed rape on her. The learned Metropolitan Magistrate has also extracted some portions of the deposition of P.W. 2, recorded in Telugu, in support of her finding that there as inducement by the accused and taking away of the minor girl P.W. 2 and committing rape on her.

The first and foremost thing which has to be considered in cases of this nature where young and unmarried school going girl was taken away by the accused and rape was committed on her, is the age of the victim girl at the time of committing the offence. Generally in cases, of this type the accused always comes forward with a plea that the girl has made a representation to him that she has completed 18 years of age and on the other hand the prosecution asserts that the girl was below 16 years of age. So, the crucial documents that can be considered are the date of birth in any public document given anterior to the date of offence or extracts from the register of Births and Deaths maintained by the Municipal Offices or the school records. Generally at the time when students are admitted into schools, particularly in cities like Hyderabad, one cannot except that their parents will give wrong age. At the time of admission into schools, one cannot except that the girl will be kidnapped or raped at a future date. So the date of birth given at the time of admission into schools will have a material bearing. The anxiety of the parents while admitting their children in schools is always to give correct age. P.W. 2 was studying X Class in Hyderabad Model High School on the date of offence. Generally the age group of X Class students will be 15 years or 16 years as the education system in Andhra Pradesh is that after the completion of 5th year the children will be admitted in the first class. Now a days as advanced coaching centres are there, the children are being admitted into schools even before completion of 5th year. However, the uniform age that can be taken for admission is 5th year and by the time they study X Class they will be 15 to 16 years of age. P.W. 10 the Headmistress of the Hyderabad Model High School is working in the school since June 1980. She is a disinterested witness. She was examined to speak about the admission of P.W. 2 in the school and also about the date of birth recorded in the admission register. She deposed that she has admitted P.W. 2 on 18-6-1980 in Hyderabad Model High School and her date of birth was registered as 10-6-1973, that P.W. 2 was admitted in third class and she studied up to X Class. That means, P.W. 2 was aged about seven years by the date of admission. The general practice, as already stated, is that after five years children will be admitted in first class and if we adopt this method the age of P.W. 2 at the time of the admission in Hyderabad Model High School was 7 years. It cannot be expected that the parents want to gain something by reducing the age or enhancing the age. According to P.W. 10, P.W. 2 studied X Class and Ex. P. 2 is the certificate issued by her. The evidence of P.W. 10 shows that she produced the original admission register containing the date of birth of P.W. 2 before the lower Court and the same was verified in open court. Ex. P. 2 is the certificate issued by P.W. 10 and it was compared with the original admission register brought by the witness in open court and found the contents in Ex. P. 2 to be correct. According to the evidence of P.W. 10 and Ex. P. 2 certificate given by her, the date of birth of P.W. 2 is 10-6-1973. P.W. 10 has admitted in her cross-examination that the columns mentioned in the admission register were filled basing on the information given by the student in the application form. P.W. 10 also states that the admission form will be supported by the date of progress report issued by a recognised school along with date of birth certificate. Ex. P. 11 is the admission form of P.W. 2 and Ex. P. 12 is the progress card given by recognised school. She has also admitted that Exs. P. 11 and P. 12 are not supported by the Birth Register extract given by the Municipal authority. Thus, the evidence of P.W. 10 shows that on 18-6-1980 Ex. P. 11 admission application form was filled in giving the date of birth as 10-6-1973. Exs. P. 11 and P. 12 support that version. Of course, no extracts from the municipal records has been filed. P.W. 1 is the mother of P.W. 2 and she studied up to 4th or 5th class. She stated in her cross-examination that she is not having any birth record of her daughter. According to P.W. 1, at the time of incident P.W. 2 was aged about 15 years, and she did not inform the birth of P.W. 2 to the Registrar of Births and Deaths. P.W. 1 denied the suggestion that the age of P.W. 2 at the time of offence was 21 years as mentioned in the marriage certificates Exs. P. 3 and P. 4.

P.W. 2 is the victim girl and she has stated that Ex. P. 2 is the conduct certificate issued by the Headmistress in which her date of birth was mentioned. P.W. 6 the doctor has stated in his cross-examination that in column No. 8 of Ex. P. 7 certificate issued by him, P.W. 2 gage her age as 17 years. The doctor has admitted in his cross-examination that the information mentioned in Ex. P. 7 was not given by the patient and that no mention was made in Ex. P. 7 that the information mentioned in Ex. P. 7 was not given by the patient and that he has taken the signature of the patient in Ex. P. 7. P.W. 8 the Inspector of Police, who filed the charge sheet, has stated in his cross-examination that in Ex. P. 7 it was mentioned that the victim girl was aged about 18 years. P.W. 9, the Inspector of Police, who investigated into the case, has stated that as per the certificate her age was about 18 years. The age mentioned in any certificates issued subsequent to the date of incident cannot be given due weight unless they are brought from the public custody. The very fact that in the certificates Exs. P. 3 and P. 4 and the affidavits the age of P.W. 2 is given as 21 years and in Section 313, Cr.P.C. statement the accused has stated that P.W. 2 represented to him that she was aged 18 1/2 years, shows that these documents were prepared in a planned manner to induce others to believe that P.W. 2 was a major and that she has got capacity to marry and that she was not below 18 years or at least 16 years. Men may lie but the circumstances themselves will establish about the falsity of the version given by the accused. The evidence of the doctor is only opinion evidence and it cannot override the documentary evidence which has come into existence long prior to the date of incident. Even in the year 1980 P.W. 1 never expected that her daughter P.W. 2 would be eloped or kidnapped. So the date of birth given at the earliest point of time i.e., at the time of admission of P.W. 2, by her parents, which is uninflucened by any circumstances can be taken into account without any hesitation. The only document that can be given due weight in the circumstances is only the school record. Many people are not reporting the birth of their children to the Registrar of Births and Deaths of the concerned Municipal/Panchayat authorities. The non-production of an extract from the Municipal authority is not fatal when there is other convincing evidence like school record. P.W. 1 has categorically stated that she has not reported the birth of P.W. 2 to the Municipal authorities. On the basis of the reasonable explanation given by P.W. 1 and in the light of the evidence of P.W. 10 the Headmistress of the school, who is a disinterested witness, I find that the date of birth given in the school record has to be given preference as against the interested or self-serving documents prepared subsequent to the date of offence. The medical evidence in this case can also be excluded as it is only an opinion evidence. The date of birth of P.W. 2 as given in Ex. P. 2 school certificate 10-6-1973 and the date of offence in this case is 18-2-1988. That means, by the date of offence, the victim girl P.W. 2 was aged 14 years 8 months, i.e., P.W. 2 was below 15 years of age by the date of offence. The learned trial Judge has also observed in her judgment that even by the date of examination P.W. 2, even to the naked eye looks very young and not that of the age of 18 years, but that itself is not sufficient. In this case the oral evidence of P.W. 1 the mother of P.W. 2, and P.W. 10 the Headmistress, coupled with the certificate Ex. P. 2 supports the theory of the prosecution that P.W. 2 was below 15 years of age as on the date of offence and excludes the medical evidence and also the entries in the affidavits and the marriage certificates Ex. P. 3 and P. 4. In view of the above discussion, I hold that P.W. 2 was aged below 15 years as on the date of offence.

P.W. 4 is Khazi, he deposed that on 18-2-1988 he performed the marriage of P.W. 2 and the accused and that he issued the marriage certificates, Exs. P. 3 and P. 4. He has stated that he enquired the accused and P.W. 2 about their parents and they replied that they were not present and witnesses were present. According to P.W. 4, two persons on behalf of P.W. 2 produced the affidavit of P.W. 2 he has admitted that he does not know the age of P.W. 2. This witness has stated in his cross-examination that as per Muslim law attaining of puberty will be above 15 years and the bride will be treated as major consent and she can perform the marriage without the consent of her parents. According to him, the age of P.W. 2 mentioned in Ex. P. 5 affidavit is 21 years and the same was mentioned in the marriage certificates. The conduct of P.W. 4 in performing the marriage of P.W. 2 and the accused under these circumstances is deprecated, P.W. 4 being an experienced Khazi ought not to have performed the marriage of the accused and P.W. 2 in the absence of their parents. Though the age given in the affidavits was 21 years she was actually below 15 years of age. P.W. 4 ought to have made enquiries and ought not to have hurriedly performed the marriage. According to him as per Muslim law after attaining 15 years the bride will be treated as a major. But in this case there is evidence the P.W. 2 was aged below 15 years as on the date of her marriage with the accused and so without the consent of the parents of P.W. 2, the marriage cannot be performed.

Now, coming to the main part of the offence committed by the accused, the evidence of P.W. 2 who is the victim girl has to be scrutinised. P.W. 2 has stated in her evidence that she was studying X Class in Hyderabad Model High School in Moghalpura, that she used to go to the school in a rickshaw, that now and then she used to go in a bus, that the accused was acquainted to her two months prior to the incident, that the accused now and then used to stop the rickshaw in which she was going and used to talk with her and harass her, that he told her that his monthly income is Rs. 10,000/- and he got lands in Mahabubnagar District and he has got own house in Chawani of Hyderabad, that after telling her that he had got all those things he forced her to marry him and she warned him not to tell such words, that the accused said that he will marry her at any cost and he forced her, that after some days he forced her to marry her and that he threatened her to spoil her reputation. P.W. 2 further deposed that on 18-2-1988 when she was going in the school bus, the accused also entered into the same bus and came to her and forced her to get down from the bus at Laldarwaja, that the accused threatened her to make some disturbance if she does not get down, that she was forced to get down from the bus and thereafter she was forced to sit in an auto and she was taken to Darushafa and there he locked her in a room. This part of the evidence has been challenged by the learned counsel for the accused stating that if really such a situation has taken place P.W. 2 would have raised hue and cry which would have been attracted several persons. It must be remembered that P.W. 2 has not attained complete maturity of mind. She was only 15 years by that time studying X Class and the accused was threatening P.W. 2 at the cost of spoiling her reputation. In those circumstances we can expect that she dared not to raise an alarm except surrendering herself to the accused. If it is a case of a new person without any prior acquaintance approaching her and asking to get down from the bus, then the conduct of the girl not raising hue and cry would be suspicious. But that is not the case here. P.W. 2 has prior acquaintance with the accused. He is also threatening her to spoil her reputation. Under these circumstances, we cannot expect a sensitive girl, aged about 15 years to raise hue and cry when the accused asked her to get down from the bus. So not raising an alarm at the time when the accused forced her to get down from the bus or at the when she was locked in a room is not a circumstance that can be taken in favour of the accused that P.W. 2 voluntarily went along with the accused with a view to marry him. If she voluntarily went along with the accused, there is no necessity of putting her in a room and locking the room. This circumstance also speaks against the accused.

The second part of the case, according to P.W. 2 is that she was confined in a room and thereafter some papers were brought and she was asked to sign on the papers and when she refused to sign, the accused threatened to kill her and her mother and then she signed the papers even without reading the same. P.W. 2 further deposed that after seeing her signature on the papers, the accused raped her forcibly, and that the accused married her against her will. This supports the natural conduct of a lady that even though she was confined in a room she does not allow the accused to have intercourse with her and only after beating threatening and after the marriage, the accused raped her. P.W. 2 in her cross-examination has admitted that her age was shown as 21 years in the marriage certificates but she has stated that she did not give that age. From the evidence of P.W. 2 it is very clear that though she was aged 15 years she was forced to subscribe her signature in the affidavits showing her age as 21 years to facilitate the accused to marry her and under the guise of marriage to have sexual intercourse. The conduct of the accused in not making any attempt to send word to the parents or guardian of P.W. 2 conveying their intention to marry and forcing P.W. 2 to get down from the bus while she was going to school and also getting documents fixing her age as 21 years though she was aged below 15 years, points out the guilty mind of the accused to commit rape rather than proving his innocence. The conduct of the accused right from the beginning teasing the girl and threatening her and forcibly taking documents and marrying her and having sexual intercourse, all points out the helpless nature of the victim girl, under which she was yielded to the accused. In cases like this the cumulative effect of all the circumstances has to be taken into account and not an isolated circumstance. Admittedly, the father of the girl was in South-Arabian country. The accused being a major might have conceived an evil idea of knocking away the properties of P.W. 1 by marrying P.W. 2. P.W. 2 stated in her evidence that there was no love affair between her and the accused. The tactics played by the accused in having obtained the affidavit from P.W. 2 and marrying her is a sure indication of the guilty mind of the accused in taking away P.W. 2 from the lawful custody of her mother P.W. 1 and committing rape on her. As already stated, P.W. 2 was aged only 14 years 8 months as on the date of offence, that is, below 15 years of age and her consent, even if it is there, for commission of rape cannot be taken as a valid consent in the eye of law. Under these circumstances, the reasoning given by the trial Judge for convicting the accused for offences under Sections 366A and 376, I.P.C. is correct and does not call for interference.

Mr. C. Padmanabha Reddy, learned counsel for the accused, relying upon the decision of the Supreme Court reported in S. Varadarajan Vs. State of Madras, , has argued that P.W. 2 was aged about 18 years by the date of the offence and she herself was responsible for going away along with the accused as she has not raised any hue and cry and so the reasoning given in the above cited case of the Supreme Court will apply on all fours. In the case of the Supreme Court, cited by the learned counsel for the accused, the victim girl was a college going girl who had attained the age of discretion, though a minor and was on the verge of attaining majority. She herself took the lead. She telephone to the accused to meet her at a certain place and went there to meet the accused and finding him waiting with his car got into that car of her own accord and the accused took her to various places and ultimately they got an agreement to marry registered in the Sub-Registrar''s Office. It was held in that case that there was no suggestion that all this was done by force or blandishment or anything like that of the accused in this case. In the case on hand the victim girl, P.W. 2 was a young girl of below 15 years of age, studying X Class and there is evidence that she was forced to get down from the bus and also the accused threatened her at the cost of her life and also the life of her mother to sign the affidavits and married her against her will and committed rape on her. The medical evidence also establishes that she had intercourse.

Section 366A of the Indian Penal Code deals with procuration of minor girls from one part of India to another part. This section requires two things, viz., (1) inducing a girl under eighteen years to go from any place or to do an act and (2) intention or knowledge that such girl will be forced or seduced to illicit intercourse with a person. An offence under this section is one of inducement with a particular object. u/s 375 Clause (6) a man is said to have committed rape if he had sexual intercourse with a woman with or without her consent when she is under sixteen years of age. In this case it is clearly established that P.W. 2 is below 15 years of age by the date of offence. If both the boy and the girl, before the marriage, apprised their respective parents about their connections and about their intention to marry, the appreciation or consideration of evidence would be different. Keeping the parents of the girl, who was minor, in dark and taking her away and marrying her and committing rape is a serious matter where even the explanation given by the accused cannot be accepted.

On a careful analysis of the evidence, both oral and documentary, available on record, I am satisfied that the prosecution has proved its case against the accused for offences under sections 366A and 376 of the Indian Penal Code and that the learned Metropolitan Magistrate is perfectly right in convicting the accused for the said offences. As regards the sentence, I feel that a sentence of rigorous imprisonment for a period of five years, besides confirming the fine imposed by the trial Court would meet the ends of justice.

In the result, the conviction of the appellant-accused for the offences under sections 366A and 376 of the Indian Penal Code is confirmed but the sentence of rigorous imprisonment for a period of eight years, under each count, imposed by the trial Court, is seduced to 5 (five) years. The substantive sentences shall run concurrently. The sentence of fine awarded by the trial court is, however, maintained.

Subject to the above modification with regard to the sentence of imprisonment, the criminal appeal is dismissed.

Order accordingly.