Subhasis Talapatra, J.@mdashThis appeal filed u/s 374(2) of the Cr.P.C. questions the judgment and order dated 04.01.2008 as passed by the Additional Sessions Judge, Kamalpur, North Tripura in case No. S.T. 13 (NT/KMP)/2006 convicting the appellant for commission of offence u/s 376(1) of the IPC and sentencing him to suffer RI for 7(seven) years and to pay a fine of Rs. 2,000/- and in default of pay fine, to suffer further R.I for two months. The essential fact may briefly be introduced at the outset. In the written Ejahar (Exbt.-4) one Ranu Debnath, mother of the prosecutrix complained that while she was enjoying the picnic along with her other friends she went to bring some salt from the appellant''s house. Except the appellant there was none in the house at that point of time and taking the advantage of the situation the appellant hugged the prosecutrix and raped her forcibly. Even thereafter the prosecutrix enjoyed the picnic without flutter, out of fear and shy. Thereafter, the appellant tried to abuse the prosecutrix on promise of marrying her and on several times the appellant enjoyed sex with her in the vacant house. One day the complainant found her daughter in a tense mood, she asked what did happen. The prosecutrix informed her that the appellant was unwilling to marry her and she was being pressurized to abort the pregnancy. It has been stated in the Ejahar that the prosecutrix comes of a very poor family and the local people created pressure upon the complainant to conciliate the matter and threatened them in various ways. Upon this complaint, Ambassa Police Station registered it as the Ambassa P.S. Case No. 32 of 2005 u/s 376/506 of the I.P.C. and the investigation was taken up. On completion of the investigation the charge sheet was filed against the appellant and as the case was exclusively triable by the Court of Sessions the same was committed to the Court of the Additional Sessions Judge, Kamalpur, North Tripura. The Additional Sessions Judge, Kamalpur, North Tripura framed the following charge:
That, you on 14.01.2005 at night at any time and thereafter on several occasions in between 14.01.2005 to May, 2005, at Kulai Colony in your house and in the house of Sri Krishna Debnath under Ambassa Police Station committed rape on Kumari Paramita Debnath, and that you thereby committed an offence punishable u/s 376(1) of Indian Penal Code and within my cognizance.
2. The appellant pleaded not guilty and claimed to be tried. Accordingly the prosecution adduced as many as 12 witnesses and admitted in the evidence some documents (Exbt. 1 to Exbt. 10).
3. The appellant was evidence examined u/s 313 of the Cr.P.C. He stated that he would not adduce any evidence whatsoever. On appreciation of the evidence so led by the prosecution the Additional Sessions Judge, Kamalpur, North Tripura found the appellant guilty for commission of rape punishable u/s 376(1) of the I.P.C. and accordingly, finding of conviction was returned against him with sentence as stated. The Additional Sessions Judge, Kamalpur, North Tripura held at Para-22 of the judgment as under:
22. Lastly, the age of the victim is a crucial and the most vital factor in a case of rape. Sexual intercourse with a woman below the age of 16 (sixteen) years, with or without her consent constitutes the offence of rape. In the case at hand the age of the victim on the day of the first intercourse has been claimed to be below 15 years. The victim as well as her parents (P.Ws. 1 & 3) deposed in that line. A birth certificate (Exbt. 5) has been produced by the prosecution in support of the age of the victim.
Exbt. 5 was issued by the Registrar of Birth and Death, Jirania, West Tripura. It revealed that the birth of the victim was registered at S1. No. 390 of the relevant register on 15.06.1990 and the date of birth of the victim has been shown as 30.05.1990. It has further been recorded in Exbt. 5 that the victim was born at Jirania Rural Hospital. Exbt. 5 has also been signed by the Additional District Registrar of Birth and Death, Govt. of Tripura, Sadar, Agartala. It is a public document, issued by the appropriate authority. Until the contrary is proved it must be taken to be a genuine document and it is admissible in evidence. Since the victim was born on 30.05.1990, her age on the day of the first intercourse i.e. 14.01.2005 was 14 years, 7 months and 14 days, which is below 15 years. It was vehemently argued by Ld. defence counsel that the Exbt. 5 is a forged document and it was procured to mislead the Court. Ld. Defence counsel pointed out that the father of the victim deposed on 05.03.2007 that the victim was born after about one year of his marriage while the mother of the victim deposed on the same date that she had been living with her husband at Kulai Colony for the last 19 years, and therefore the age of the victim on the alleged date of first occurrence ought to be more than 16 years. He further pointed out that none of the parents of the victim stated that they lived at Jirania at anytime, and as such the Exbt. 5 issued by the Registrar of Birth and Death, Jirania is a doubtful document. He again pointed out that neither the Birth Certificate was seized by the I.O. nor the victim was produced before the appropriate authority for her ossification test, though advised by the Doctor (P.W. 9) who examined the victim medically. I fail to agree with Ld. Defence counsel. A prosecution case shall not fall for the callousness of the I.O. if the other evidence on record are reliable. In the FIR itself, the age of the victim was stated to be below 15 years. The I.O. ought to have seized the Birth Certificate of the victim during investigation, but in my opinion, the genuinity of the Birth Certificate cannot be doubted simply because it was not seized by the I.O. If the defence was sure that Exbt. 5 is a forged document, it was open to it to call for the Register of Birth and Death from Jirania. Since a public document is created after due deliberation of process of law, it must be take into be genuine until the contrary is proved by cogent evidence. On the other hand, non disclosure of facts relating to delivery of the victim at Jirania Rural Hospital does not create a reasonable doubt regarding the birth of the victim at Jirania Rural Hospital. Moreover, the result of ossification test is not a conclusive proof of the age of a person. Birth certificate issued by the competent authority is a better evidence in comparison to ossification test result. Therefore, non production of the victim for ossification test also does not effect the prosecution case in any way. Considering the evidence on record I am fully satisfied that the victim was below the age of 15 years. On the day of the first intercourse and as such sexual intercourse with her by the accused with her consent also does not help him any way as sexual intercourse with a woman below the age of 16 years is rape.
It would be proper to refer the statement of the prosecutrix as recorded u/s 164 of the Cr.P.C. which was duly admitted in the evidence as Exbt. 6.
4. Mr. R. Dutta, learned counsel appearing for the appellant submitted that from the complaint itself it appears that it is an incident of consensual sex and as there is no element of rape thus the finding of conviction is liable to be interfered with. He submitted further that from the prosecution case it surfaced without any shred of doubt that when the appellant allegedly denied to marry the prosecutrix, the P.W.-1, the mother of the prosecutrix and the prosecutrix started floating the allegation not before that, contending that at the relevant point of time she was caring pregnancy of 5 to 6 months. Mr. R. Dutta, learned counsel appearing for the appellant further submitted that the prosecutrix was sufficiently matured to give consent as she was more than 16 years of age and stated that the Birth Certificate as issued by the Registrar, Births and Deaths cannot be treated as public document within the meaning of Section 74 of the Evidence Act in as much as the said certificate is not framing any record, the acts or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive of any part of India or of the Commonwealth, or of a foreign country; public records kept in any state of private documents.
5. Even the original records were not produced on the basis of which the said certificate was issued. Therefore, no relevance can be attached to the said certificate. Apart that, Mr. R. Dutta, learned counsel appearing for the appellant submitted that even if the entire prosecution is believed it would be apparent that the prosecutrix and the appellant enjoyed the sex on numerous occasion but it has been coloured as the rape. According to Mr. R. Dutta, learned counsel the age of the prosecutrix as has been determined by the Additional Sessions Judge, Kamalpur, North Tripura is absolutely doubtful and is unsustainable in law.
According to Mr. R. Dutta, learned counsel appearing for the appellant was referred a statement of the P.W.-3 made during the cross examination on 05.03.2007 that the victim was born after about one year of his marriage, while mother of the prosecutrix (P.W.-2) stated during her cross-examination on the same day that she had been living with her husband for the last 19 years. He contended that if it was so, the age of the victim on 05.03.2007 ought to be about 18 years and her age on 14.01.2005 was at least 16 years. He again pointed out that though the Doctor (P.W.-9) advised X-Ray of the wrists of the victim to ascertain the age of her, the I.O. (P.W.-12) did not make arrangements for X-Ray of the wrists (Ossification test) of the victim. He further contended that the Instigating Officer did not seize any Birth Certificate of the victim, even though a Birth Certificate (Exbt. 5) was produced at the trial. He insisted that the Investigating Officer did not seize any Birth Certificate as there was none. The Birth Certificate so produced cannot be genuine. From a conjoint reading of the oral testimony of the P.W.-1 & 3 the probable date of the birth of the prosecutrix gets further shrouded with doubt. Thus he contended that by relying Exbt. 5 the Additional Sessions Judge committed serious illegality.
6. On the other hand, Mr. A. Ghosh, learned Additional Public Prosecutor while refuting the submission of Mr. R. Dutta, learned counsel appearing for the appellant submitted that the Birth Certificate so issued by the Registrar of Births and Deaths definitely comes within the domain of the public document and within the meaning of Section 74 of the Evidence Act. Moreover, he submitted that the consent becomes irrelevant when it has been proved substantially that the minor prosecutrix was below 15 years at the relevant point of time. Thus the prosecution succeeded to prove that the prosecutrix was raped within the meaning of Section 376(1) of the IPC and as such no interference whatsoever is warranted against the impugned judgment and order.
7. Mr. A. Ghosh, learned Additional Public Prosecutor appearing for the State referred a decision of the apex Court in the
8. In Lekhram (supra) the apex Court held that:
13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the ''gauna'' ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on the aforementioned backdrop. It may he true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.
14. Only because P.W.-3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the queries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.
9. On the other hand, Mr. R. Dutta, learned counsel appearing for the appellant relied on a decision of the apex Court in
3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam. That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused u/s 366, IPC would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.
Mr. R. Dutta, learned counsel appearing for the appellant submitted with reference to the said decision that it would appear from the statement of the prosecutrix made in Court and when her statement u/s 164 of the Cr.P.C. was recorded by the Magistrate that on the first occasion she was raped and she did not cry out as she apprehended that it would be a useless exercise as in the outside the loudspeaker was going on, her cry would not be heard by anyone. This explanation cannot be accepted by any prudent person while the girl was being purportedly raped by the appellant. Apart that, on the future occasion she stated that she was raped but on promise of marriage. When the appellant denied to marry her she informed the matter to her mother. The oral testimony of the prosecutrix would demonstrate a conduct which would definitely be, of a consensual nature. Therefore, it cannot be stated that it was without consent or against her will as provided u/s 375 of the IPC.
10. To elaborate further Mr. R. Dutta, learned counsel appearing for the appellant referred a decision of this Court in
6. The next question which arises for determination is whether the appellant had sexual intercourse with Saraswati Paul without her consent. Saraswati Paul (P.W.2) has herself stated in the FIR that the appellant tempted her to cohabit with him by saying mat he will marry her soon and that during the month of Baisakh he cohabitated with her for three consecutive days. Similarly, in her examination before Court she has stated that the appellant cohabitated with her several times and gave her word that he will marry her. Further, in her cross-examination she has admitted that there are many houses surrounding their house and yet she did not raise any alarm when the appellant forced her to cohabit. She has, however, stated that during the cohabitation the appellant kept his palm on her mouth. But then after cohabitation she did not make any complaint to her parents who came to know about her cohabitation with the appellant only when she became pregnant several months thereafter and she lodged the F.I.R. after a year before the police. Thus, although, she has stated both in the FIR as well as in her examination before the Court that her cohabitation with the appellant was due to force applied by the appellant, from the entirety of the evidence it is apparent that the cohabitation was with her consent. On the evidence on record, therefore, I am of the considered opinion that no offence of rape as defined in Section 375 of IPC read with the second clause thereof is made out against the appellant and the conviction of the appellant u/s 376 of IPC was not warranted.
11. In that case as referred by Mr. R. Dutta, learned counsel appearing for the appellant, the prosecution took the plea that the girl was under age of 16 years. But in that case the Radiologist of G.B.P. Hospital, Agartala had clearly stated that he found the age of the victim girl was between 14-16 years. The Court did not accept the contention of the prosecution that the prosecutrix was below 16 years of age.
12. In
21. While observing thus, the learned trial Court has convicted the accused u/s 366 IPC on the sole ground that the victim was a minor below 18 years. Regarding non-consideration of the age of the victim, while convicting the accused u/s 366 IPC, Mr. Chakraborty, learned Counsel appearing for the appellant has placed reliance upon a decision in
In view of the above, the age of the victim becomes more relevant factor. From the oral evidence on record P.W.-6 was studying. In Class-IX at the relevant time. As held by the Apex Court that birth certificate and the school certificate are the best evidence as regards age. But admittedly no birth certificate nor the school certificate or the school register has been produced to show the actual age of P.W.-6. P.W.-6 claimed to be 23 years of age when she deposed before the Court on 10.9.2002. The incident had taken place on 20.8.1997 i.e., about 5 years prior to her deposition before the Court and hence from the oral evidence we find that the victim was 18 years old at the time of the incident. Besides the other witnesses, prosecution also examined the Doctor who held the ossification test and opined that the age of the victim is above 16 years and below 18 years. In the case of
13. The decisions as referred by Mr. R. Dutta, learned counsel appearing for the appellant projected a common aspect that the approximate age as could not be arrived at by the Court the accused were entitled to benefit of doubt.
14. For appreciation of the rival contentions as advanced by the counsel for the parties, it would be proper to appreciate the evidence to the extent as relevant in the extent as precisely laid. From the evidence of the P.W.-9 (Dr. Bappaditya Som), who examined the prosecutrix, it transpires that on 28.05.2005 while he was examined the prosecutrix he found that the breast were found discharging and were enlarged. The size of uterus was about 20 weeks old ruptured. On examination of her private parts the hymen was old ruptured. Urine was tested to determine pregnancy and the result was positive. From the examination it is found that there were signs of previous rupture of hymen and she was pregnant for about 20 to 22 weeks. Ultra Sonography of abdomen was advised to ascertain the duration of pregnancy and X-ray of writs was advised for determination of age. He identified his report (Exbt. 3) and signature and there is no other evidence to dislodge the medical evidence regarding pregnancy, ruptured hymen of the prosecutrix corroborated what the prosecutrix stated in the Court that she was forcibly raped, though she raised alarm but nobody could hear and the accused also asked him not to shout and promised to marry her and subsequently also, the accused cohabited with the appellant in his house on a promise to marry her. She further submitted that when she was 5 months pregnant and the accused (the appellant) refused to marry her, she divulged the occurrence to her parents and there was a meeting and no settlement could be reached. Thereafter, her mother filed the complaint in Ambassa Police Station. She also identified her statement as recorded u/s 164(5) of the Cr.P.C. (Exbt. 2) and confirmed the incident of medical examination by the doctor of Kulai Primary Health Center. She categorically stated that at the time of the incident she was about 15 years age. She also admitted in the cross examination that the appellant was known to her but denied the suggestion that the appellant did not commit rape forcibly or the appellant did not cohabit or made promise of marrying her. When the prosecutrix was categorically asked that her age was more than 15 years at the time of occurrence she denied that suggestion and volunteered by saying ''my age was not even 15 years on that day.''
15. The mother of the prosecutrix also corroborated the prosecutrix stating that the prosecutrix stated her that she was forcibly raped and she disclosed the matter only after she became pregnant when she was enjoying the picnic at the instance of the sister of the appellant, the appellant took the advantage when the prosecutrix went to have bring some salt for purpose of cooking from the house of the appellant and raped her forcibly. She also confirmed that the Pradhan of Panchayat was reported the matter but it could not be sorted out and thereafter the complaint was filed. In the cross-examination she divulged that she was the second wife of the P.W.-3 and they were living at their locality for last 29 years. In the cross-examination she stated that she did not state to the scribe that the prosecutrix did not raise any objection due to fear and shame. Such statements are found available in the F.I.R. She categorically stated in the village meeting where Sandhya Chakraborty, Nabami Hrishidas and ethers were present.
16. The P.W.-3, the father of the prosecutrix namely, Krishna Debnath corroborated the prosecutrix on statement as regards the commission of rape and her being pregnant for about 5 months. He also stated that on the date of his examination the prosecutrix was about 16 years age. It is found from the record that the statement was recorded on 05.03.2007 whereas the occurrence took place on 14.01.2005.
In the cross examination, he denied the suggestions as advanced by the defence. On re-examination he submitted that he produced the Birth Certificate of the prosecutrix in the Court (Exbt. 5) and he denied that the Birth Certificate as procured is by influencing the authority. It is found from the Birth Certificate that it was issued on 14.05.2007 by the Chief Registrar u/s 12 of the Registration of Births and Deaths Act, 1969.
17. The P.W.-4 namely, Sushil Debnath (uncle of the prosecutrix) confirmed the episode of rape as heard from the P.W.-3.
18. The P.W.-5 namely Smt. Sandhya Chakraborty confirmed that there was a meeting in which the prosecutrix told that she was impregnated by the appellant. She denied all the suggestions as advanced by the defence.
19. The P.W.-6 namely, Krianbal Debnath was tendered.
20. The P.W.-7 namely, Smt. Pritilata Chakraborty did not state anything of much relevance.
21. The P.W.-8 namely, Smt. Nabami Hrishidas deposed that the P.W.-1 stated her that the prosecutrix was pregnant for about 5 months and the prosecutrix was impregnated by the appellant. She confirmed of the meeting that was held. She further stated that the meeting suggested the P.W.-1 to take shelter of law.
22. The scribe, namely, Bidhubhusan Sharma (P.W. 10) stated that what he had written in the complaint, he wrote the same as per the dictation of the P.W.-1. However, he confirmed that the P.W.-1 stated him that the prosecutrix could not cry out of shame and fear (that part has been marked as Exbt. A).
23. The Judicial Magistrate, namely Sri. V.P. Debbarma who recorded the statement of the prosecutrix u/s 164(5) of the Cr.P.C. as the P.W.-11 he stated that the prosecutrix was produced before him and on prayer the Investigation Officer he recorded her statement and on completion of the recording of her statement he read out the entire text to the prosecutrix who having been satisfied that the same has been written as per her statement signed over the statement. He identified the statement as Exbt. 6 and the signature of the witness as Exbt. 6/1.
In the statement as recorded by the P.W. 11 it is found that:
On the day of Paush Sankranti appertaining to this year my brother and I had gone to the house of Sajit Debnath, S/o. Sunil Debnath of our locality in order to enjoy picnic after dusk. Then at the time of cooking having found no salt I went to their room for taking salt. Then none were in their room except Sajit. While I was searching salt then Sajit had hugged me. Even I had shouted but none heard that sound because of singing which was with high volume in the outside. At that time Sajit had raped me forcibly. After the said incident he used to come at my home in absence of other people very often and raped me forcibly again and again. While I raised shout he pressed my mouth and he promised me to marry (me) properly and he used to allure me.
Some days later of it one day all on a sudden he told me that he will not marry me. Hearing it I have stated entire incident to my parents. While my parents informed the entire matter to his parents then they abused us.
Now I am pregnant for five months made by Sajit.
24. The P.W.-12, the Investigating Officer narrated how he conducted the investigation and prepared the site map with index, examined the witnesses, collected the medical examination report, how he produced the prosecutrix for medical examination and how he collected the medial examination report and he further stated that after finding a prima-facie case having surfaced on completion of the investigation he filed the charge sheet No. 27 dated 21.08.2005 under Sections 376/506 of the IPC.
However, in the cross examination he stated that he did not send the victim for ossification test. He denied that his investigation was perfunctory.
25. On scrutiny of Exbt. 5 it appears that the prosecutrix was born on 30.05.1990 in the Jirania Rural Hospital and her birth was registered on 15.06.1990 by the Chief Registrar, Births and Deaths though the certificate was collected on 14.05.2007. As it appears from the evidence as set out by the defence that it was a consensual sex and as such it cannot come within the meaning as provided u/s 375 of the I.P.C. in as much as the evidence relating to the age of the Prosecutrix is not only inadequate but also inadmissible in evidence.
26. The apex Court in
Section 6 of the Evidence Act has an exception to the general rule whereunder, hearsay evidence becomes admissible. But as for bringing such hearsay evidence with the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter.
27. Since after the revelation, the P.W.-1 reported the matter to the P.W.-5, 7 & 8, therefore, those witnesses cannot be disbelieved. What they stated about the revelation of the incidence and the pregnancy.
28. In
9. Section 375 IPC defines rape as follows: Section 375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under sixteen years of age.
Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
10. Clause. Sixthly--''with or without her consent, when she is under sixteen years of age'' assumes importance where a victim girl is under sixteen years of age. The prosecutrix is an illiterate and rustic young woman. She does not seem to have had formal education and, therefore, mere is no school certificate available on record. In the FIR, the age of the prosecutrix has been stated to be 13 years. In her statement recorded u/s 164, Code of Criminal Procedure, the prosecutrix stated that her age was 13 years. P.W.-1, who is elder brother of the prosecutrix, in his deposition also stated that the age of the prosecutrix was 13 years at the relevant time. However, the doctor-P.W.-5 on the basis of her X-ray as well as physical examination opined that the prosecutrix was 17 years of age. The trial Court on consideration of the entire evidence recorded a categorical finding that the prosecutrix was about 17 1/2 years of age at the time of occurrence. This is what the trial Court said:
According to the complainant Rampal, P.W.-2 was aged 13 years at the time of the occurrence, but during the cross-examination, the complainant has stated in para 7 of her cross examination that he was aged about 24 years and P.W.-2 was younger to him by 8-9 years. Thus, the age of the prosecutrix, according to the statement of the complainant appearing in para 7 of his cross examination, comes to about 15 or 16 years. P.W.-2, the prosecutrix, gave her age as 13 years at the time of the occurrence. According to the supplementary report, Ext. Ka. 12 on record, prepared by Lady Dr. Shakuntala Reddy, P.W. 5, P.W.-2 was aged about 17 years. During the cross-examination, Lady Dr. Shakuntala Reddy, P.W. 5, has stated in para 9 of cross-examination that there could be a difference of 6 months both ways in the age of P.W.-2. Thus P.W.-2 can be said to be aged 17 1/2 years at the time of the occurrence.
11. We find ourselves in agreement with the view of the trial Court regarding the age of the prosecutrix. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by P.W.-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in
Additionally, merely because the doctor''s evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years'' age has to be added to the upper age-limit is without any foundation.
12. Learned Counsel for the Respondent relied upon a decision of this Court in the case of
29. So far the age of the prosecutrix is concerned, the P.W.-1 & 3 are the best witnesses to say about the age of the prosecutrix and they have in unison stated that at the time of rape the prosecutrix was about 15 years of age and in the First Information Report (Exbt.-4) the P.W.-1 categorically stated that her age was below 15 years. Apart that, Exbt. 5 is a public document within the meaning of Section 74 of the Evidence Act. As such the finding of the trial Court as excerpted from the Paragraph-22 of the impugned judgment and order cannot be held suffering from any infirmity. The prosecution is not barred by any law barred from producing any public document in the proceeding with leave of the Court. It appears from the records that the Court granted leave for production of Exbt. 5 and the appellant for such production cannot be held to have suffered any prejudice. Even by Question No. 10 the trial Court had asked for response of the appellant what the P.W.-3 had stated about procuring and on producing of the Birth Certificate. He identified the same and marked as Exbt. 5. The answer that was available from the appellant that the entire story was concocted and the P.W.-1 filed a false case against him. In view of this, this Court is not inclined to interfere with the finding of conviction as returned by the trial Court in as much as the element of ''consent'' has become absolutely irrelevant in view of the finding as regards the age of the prosecutrix as returned by the trial Court and affirmed by this Court. Before parting, it is required to be observed that the trial Court had asked the questions while examining the appellant u/s 313 of the Cr.P.C. in a composite manner stuffing many materials from the oral testimonies or the documents so admitted in the evidence or framing the question on the statements of several witnesses together. This practice is wholly warranted in view of Section 313 of the Cr.P.C. It must stop, it impedes the fair trial procedure. This Court has meticulously scrutinized the evidence and is of the view that for such unacceptable exercise, no prejudice whatsoever in the context has been caused to the appellant. Thus this appeal fails and accordingly the same is dismissed.
Send down the LCRs forthwith.
