IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.219/2019 BETWEEN:
Ananda S/o. Kenchappa, Aged about 26 years, R/o. Vaddinahalli Village, Hiremagalagere Post, Harapanahalli Taluk, Davanagere District -583313 …Appellant (By Sri. K.N. Jayaprakash, Advocate) AND The State by Women Police Station, Davanagere, Represented by The State Public Prosecutor, High Court Building, Bengaluru -560001.
(By Sri. Vijayakumar Majage, Addl. SPP) …Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the impugned judgment of conviction and order of sentence dated 16.01.2019 and 17.01.2019 passed by II Additional District and Sessions Judge and Special Judge at Davanagere in S.C.No.108/2017 convicting the appellant/accused for the offence p/u/s 366, 376 of IPC and Section 6 of POCSO Act.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
JUDGMENT The present appeal has been preferred by the appellant/accused challenging the judgment passed by II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.108/2017 dated 16.01.2019 where under the accused/appellant was convicted and sentenced for the offences punishable under Sections 366 and 376 of IPC and under Section 6 of POCSO Act.
2. I have heard the learned counsel for the appellant/accused and learned Additional SPP for the respondent State.
3. Though this case is listed for hearing on Interlocutory Application, with the consent of both the learned counsel appearing for the parties, same is taken up for final disposal.
4. The factual matrix of the case as contended by the complainant is that a kidnap complaint was came to be filed by the father of the victim alleging that he is having 4 female children and his elder daughter is about 16 years and she is missing. She has born on 31.12.2000 and is studying in Municipal College in first PUC. It is further contended that on 14.12.2016 at about 7.00 a.m. he dropped his daughter near college gate and at about 1.00 p.m. she did not come back to the home and wife informed over the phone about non-return of his daughter. Immediately, he came to the college and there he came to know that she has not come to the college. But when enquired with relatives and friends, he came to know that she was talking with the accused over the phone and when he made an enquiry in the village, the accused was also not there in the house and as such he filed the complaint.
5. On the basis of the complaint a case was registered in Crime No. 103/2016 and further investigation was conducted. During the course of investigation accused and victim were apprehended and victim’s statement was recorded and after completing the investigation, charge sheet was filed as against the appellant/accused. The trial Court took cognizance after hearing the case. The charge was read over and explained to the accused. Accused pleaded not guilty he claimed to be tried. As such the trial has been fixed.
6. In order to prove the case of complainant, he got examined 31 witnesses, 29 documents and 11 material objects and also got marked. During the course of cross examination the accused got marked Ex.D1 to D3. Thereafter the statement of the accused was recorded under Section 313 of Cr.P.C.
7. After hearing the public prosecutor and learned counsel for the appellant the impugned judgment of conviction was came to be passed. Challenging the legality and correctness of the said judgment the appellant/accused is before this Court.
8. The main grounds urged by the learned counsel for the appellant/accused is that the impugned judgment of conviction and order of sentence passed by the Court below is erroneous and against the material evidence placed on record. The Court has not properly appreciated the evidence in its right perspective. It is his further submission that earlier to the alleged incident the accused and victim have fallen in love with each other and subsequently with the consent of the victim they got married and thereafter they had physical contact with each other. It is his further submission that under Section 164 statement of the victim was recorded as per Ex.P1. In her deposition she has clearly stated that the victim was acquainted with the accused and as such on 14.12.2016 she had been to the college and from there they had went in a car to Chikkamagalur and they stayed there in a coffee estate and at that time they were having physical contact. She has further deposed that thereafter they came to Bengaluru and there they got married and they were staying in a rented house and at that time they used to have physical contact and on 23.04.2017 police apprehended them back. It is his further submission that the conduct of the victim clearly goes to show that she has attained the age of majority and she has voluntarily given the consent.
9. It is his further submission that the victim has been examined by the concerned Doctor. He has issued the sexual assault certificate as per Ex.P13. In the said certificate the age determination has been done by adopting the special methods and the age determination was determined in between 18 to 21 years that itself goes to show that victim has attained the age of majority and the said sexual act is a consensual sex. It is his further submission that Ex.P20 clearly goes to show that the investigating officer has requested the City Corporation, Davanagere and City Corporation, Davanagere by its letter dated 14.07.2017 has given the reply that no records are available in respect of victim’s birth on 31.12.2000 and even the letter dated 20.07.2017 issued by the Hospital Authorities also goes to show that no records were available for victim having born in the said hospital on that date. It is his further submission that PW-3 has contended in the cross examination that two children have been born at the hospital and two children have born in the house. In such circumstances, the age determination which clearly established in this case, has not been properly proved by the prosecution.
10. It is his further submission that the victim who has been examined as PW-1 has not supported the case of the prosecution and she has been treated as hostile. Even other material witnesses have also not supported the case of the prosecution, they have been treated as hostile. Only evidence before the Court is official witness, police witness, they are not going to throw any light in this behalf. It is his further submission that PW-18 is the Head Master, he had issued the school certificate as per Ex.P-
15. The said certificate is not proved by any material to show that how the entry has been made and on what basis the entry has been made in this behalf. It is his further submission that in the absence of all these materials the trial Court has wrongly come to a wrong conclusion and convicted the accused in alleged offences. It is his further submission that there is no cogent and acceptable evidence to come to the conclusion that the accused against the will of the victim had a physical contact with her. On these grounds he prayed to allow the appeal and to set aside the order of conviction and sentence and acquit the accused.
11. Per contra, learned Additional Special Public Prosecutor vehemently argued and submitted that the evidence produced clearly goes to show that the victim is 15 years 11 months old and she being a minor, is unable to give consent and even if the consent is given that is not a consent in law. It is his further submission that Doctor who examined the victim has clearly stated that she has been sexually assaulted and even the victim though turned hostile, in her evidence she deposed that there was a physical contact between the victim and the accused and the said fact also not been disputed. When the victim was a minor, though she has supported the case of the prosecution partly, then under such circumstances accused is liable to be convicted. It is his further submission that in the absence of the documents the certificate of birth issued by the school is the best evidence and taking into consideration the said facts and circumstances the trial Court has rightly convicted the accused. It is his further submission that the medical information of the Doctor who conducted the test and deposed that the victim is aged in between 18 to 21 years. It is not binding on the Court that too when there is a cogent evidence produced by the prosecution like that of the mother of the victim and the father of the victim and school certificates. It is his further submission that the prosecution also got produced the records to show that a marriage of the parents of the victim has taken place on 22.2.2000, that itself shows that the victim who is elder daughter of the parents and she was a minor at the time of alleged incident. On these grounds, he prayed to confirm the judgment of the trial Court and to dismiss the appeal.
12. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
13. The prosecution in order to prove him the guilty got examined 31 witnesses. PW1 is the victim, in her evidence she has deposed that accused was also studying in the same school and she used to like him and their love affair continued and the said fact was noticed by her father and abused her and thereafter she joined to Ex Municipal Higher College. It is further deposed that she was studying in PUC Commerce. Thereafter she continued her love with the accused. For having come to know the said fact she discontinued the college because they determined that both can go somewhere and get married. She has further deposed that on 14.12.2016 she and accused went to Chikmagaluru, they stayed there and they came to know that parents are searching for them and they left Chikkamagaluru went to Bengaluru. In Bengaluru they stayed in Mallasandra for five months. When they were staying together they were having physical contact. She has further deposed that on 23.04.2017 police came and brought her back. She has also deposed with regard to the further proceedings taken during the course of investigation. During the course of cross examination she has deposed that she studied in three schools and while transferring from place to place there was a gap of one year and she has not seen the original date of birth record. She has also admitted that she is aged 21 years and other suggestions have been denied.
14. Though this witness has been treated as hostile by prosecution any traverse of physical contact with the accused has been clearly stated by this witness. PW-2 is the father of the victim. He has reiterated what has been stated in the complaint and further deposed that after coming to know that accused and victim have been brought back from Bengaluru and when he asked the victim she told that she has been forcefully sexually assaulted by the accused and they led the marital life. She has further deposed that now she is in State remand home.
15. During the course of cross examination, the father of the victim has admitted that on the date of birth they give the name to the newly born child and she was born in the house and he has further deposed that there are no records to show that victim daughter has born on 31.12.2000. Other suggestions have been denied by this witness. PW30, the mother of the victim, also reiterated the evidence of PW2 father and during the course of cross examination she deposed that they have not got registered the date of birth of the victim. She has further deposed that the victim got admitted to the school in Allijva in Davanagere District. Further suggestions which have been made have been denied.
16. PW-4 and 5 are the spot Mahazar Panchas to Ex.P2. They have not supported the case of the prosecution and they have been treated as hostile. PW6, 7, 8 and 9 are also the Mahazar Pancha witnesses they have also not supported the case of the prosecution and they have been treated as hostile. PW-11 is the Head Constable who took the accused to the hospital for medical examination. PW-12 is the Woman Police Constable she is the carrier of the FIR and submitted the same to the jurisdictional Court. PW-13 is also a Woman Police Constable, she carried the articles to FSL and produced them before the Special Authority. PW-14 is also a woman police constable she carried the articles to the Court to include the provisions of Section 363 and 376 of IPC and Section 6 of POCSO Act. PW-15 is also a Woman Police Constable who took the victim to the hospital for medical examination. PW-16 is the Doctor who examined the victim. In her evidence she has deposed that on 23.04.2017 at about 6 p.m. the victim was produced before her and at that time she has been sexually assaulted and she is also told that she was in love with the accused and got married and lived with him. PW16 further deposed that the hymen was ruptured and no signs of injuries were found near her private part. She has further deposed that she has taken the x-ray to assess the age and as per x-ray report the victim was aged in between 18-20 years and also taken dental test that itself also shows that she is aged in between 18-21 years and she has given her opinion as per Ex.P13. This witness has not been cross examined in any manner.
17. PW-17 is the Doctor who examined the accused and has given a report as per Ex.P14. PW-18 is the Head Master that he has deposed that he has issued date of birth certificate as per Ex.P15. Date of birth of the victim is 31.12.2000. During the course of cross examination he has deposed that he has not produced the original date of birth records and other suggestions have been denied. PW-19 is the incharge Deputy Director of the RFSL that he has conducted the scientific test over the articles sent by the Investigating Officer and he has given his opinion as per Ex.P16 and he has opined that he has not found seminal stains on M.O.1, 2, 4 & 8 and he also not found skin tissues in inner garments and fallen hairs have been not found on M.O. 6 & 7. PW-20 is the Head Constable who apprehended the accused and the victim and brought them and produced before the Investigating Officer by giving a report as per Ex.P17. PW-21 is the police inspector who investigated the case and filed the charge sheet against the accused. PW-22 is the head constable who received the complaint as per Ex-P8 and registered the case and issued FIR as per Ex.P11. PW-23 is Woman Assistant Sub Inspector, she has partly investigated the case. PW-43 is a Woman Assistant Sub Inspector she has also partly investigated the case.
18. PW-25 is the photographer during the course of cross examination he deposed that he is the one who converted the video cassette into DVD. PW-26 is also the person who video graphed the marriage of the parents of the victim. PW-27 is the brother of PW-2, the father of the victim, he has also reiterated the evidence of PW2. PW28 is a seizure Mahazar Pancha of the videos and cassettes recorded by PW25 and PW26 as per Ex.P29. PW29 is the Woman Police she also partly investigated the case. PW-30 is the school teacher she also deposed that the date of birth of the victim is 31.12.2000 and during the cross examination she has deposed that she has not seen the records of birth. PW-31 is also another school teacher and she has also deposed that record to the date of birth of the victim is 31.12.2000. During the course of cross examination nothing has been elicited so as to discard the evidence of this witness.
19. I have carefully and cautiously gone through the submissions made by learned counsel for the parties and perused the records.
20. On close reading of the records including the statement of the victim, she has categorically stated that she voluntarily went along with the accused and stayed for a day or so in Chickmagaluru and thereafter, when they came to know that their parents were in search of them, they came and stayed at Bengaluru and during their stay in Bengaluru, they were having physical contact for a period of five months. In order to attract the provisions of Section 363 of IPC, the prosecution has to clearly establish that the victim has been kidnapped from the possession of lawful guardian. But as could be seen from Section 361 of IPC, if anybody takes or entices a minor under the age of 16 years in the case of male and 18 years in case of female, then under such circumstance, the said act is said to be kidnap. The petitioner-accused has been also charged under Section 376 of IPC and Section 6 of the POCSO Act.
21. It is the specific contention of the learned counsel for the appellant-accused that the victim has voluntarily come along with him and they got married and were having physical contact. It is his further contention that the said act is a consensual sex and as per Ex.P-13- Medical Report of the victim and other records, it clearly go to show that the age of the victim is above 18 years and has attained the age of majority and she is able to give consent.
22. But on the contrary, learned Additional Special Public Prosecutor contended that the records produced clearly go to show that the age of the victim girl is 15 years and 11 months. She is less than 18 years and she is not in a position to give consent and even though she has given consent, in law it is no consent.
23. The main question which arises for consideration by this Court is whether the date of birth of the victim i.e., 31.12.2000 is correct or not?
24. I have carefully and cautiously gone through the evidence of the Doctor-PW-16. In her evidence, the Doctor has clearly deposed that as per the dental test, the victim is aged between 18 to 19 years and she has further deposed that she has subsequently taken the x-ray and as per the x-ray report, the age of the victim is 18 to 21 years. In order to prove the age of the victim, the prosecution has got examined the head master of the school as PW-18. In his evidence, PW-18 has deposed that the date of birth of the victim is 31.12.2000 as per Ex.P15. Even PW-30 and 31 are also examined, who are school teachers. They have also substantiated the evidence of PW-18. As per the case of the prosecution, the victim is born on 31.12.2000. But as per Ex.P.20, the letter given by the City Corporation, Davangere dated 14.07.2017, it has clearly been stated that a request was made by the father of the victim to give the birth records the victim dated 31.12.2000, but no such entries are there in the said register. A request was also made to the Hospital to give birth certificate of the victim. But they have also given the report that no such entries are there about the mother of the victim giving birth to the victim. It is the contention of the learned Additional Special Public Prosecutor that the mother of the victim, who has been examined as PW-3, in her evidence, has clearly deposed that she has given birth to two children in the house and two children in the Hospital. PW-2, the father of the victim has clearly stated in his evidence that the victim has been born in the house. Keeping the above said evidence, in order to determine the age of the victim, the best method is that it should be determined by matriculation or equivalent certificate or date of birth certificate from school first attended or birth certificate by Corporation/Municipal authority or Panchayath and in the absence of such documents, medical opinion can be sought for and relied upon.
25. On close reading of the materials, which have been produced, it is seen that neither matriculation or equivalent certificate has been produced nor certificate of date of birth has been produced from the first attended school nor even the birth certificate by the Corporation/Municipal authority or panchayath has been produced. In the absence of such material, the only evidence available before the Court is that of the Doctor, as per Ex.P-13. Though the records go to show that the ossification has not been conducted scientifically but the records disclose that the dental and radiology test have been conducted by the doctor and thereafter, both the doctors have opined that the victim is aged above 18 years. In that light, the contention of learned Additional SPP that the age of the victim is 15 years and 11 months is not acceptable. For the purpose of brevity I quote paragraph Nos.10 to 12, 17-20, 22 of the case of Vishnu alias Undrya vs. State of Maharashtra reported in (2006) 1 SCC 283, which reads as under:
“10. Before us the learned Senior Counsel for the appellant strenuously urged that there are two dates of births of the prosecutrix, one, 29-11-1964 (recorded in the date of birth register of the Greater Bombay Municipal Corporation and register of Kashibai Hospital, Santa Cruz, Bombay, where Pushpa was born); and second, 29-6-1963 (the date of birth recorded in the school-leaving certificate of Khar Upper Municipal School) which have created a doubt and are capable of two opinions, one in favour of the accused and the other against the accused; the one in favour of the accused should be accepted and the accused be acquitted by giving him the benefit of doubt. He further contended that since the sexual intercourse is consensual, therefore, unless it is established that the prosecutrix is below the age of 16 years, the accused is not liable to be punished in view of the definition of “rape” under Section 375 of IPC, namely, clause sixthly. This submission deserves outright rejection.
11. The question whether the date of birth of the prosecutrix is 2-11-1964 or 29-6-1963 is no more in controversy.
12. The date of birth of the prosecutrix, as of 29-11-1964, has been recorded concurrently by both the trial court and the High Court on consideration of the evidence of PW 1 Pandurang, father of the prosecutrix and PW 13 Vimal, mother of the prosecutrix, corroborated by the age of the prosecutrix recorded in the date of birth register of the Greater Bombay Municipal Corporation and the register of Kashibai Hospital, Santa Cruz, where the prosecutrix was born. The evidence of PW 1 and PW 13, father and mother of the prosecutrix supported by contemporaneous documents/registers produced by the prosecution like date of birth register in the Greater Bombay Municipal Corporation and the date of birth register in the hospital where the prosecutrix was born and the evidence of the doctor clearly establish that the prosecutrix was born on 29- 11-1964. Therefore, this question need not detain us any longer in view of the observations of this Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat where this Court held at AIR p.755, para 5: (SCC p. 222, para 5) "[A] concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) that the finding is based on no evidence or (2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded."
xxxx 17. PW 1 Pandurang is the father of the prosecutrix. He has stated that his daughter Puspha (prosecutrix) was born on 29-11-1964. He has also stated that Pushpa was born at Kashibai Hospital, Santa Cruz, Bombay. This witness was subjected to lengthy cross-examination but his statement that the prosecutrix was born on 29-11-1964 remained unimpeached. In fact, in the cross-examination, this witness clarified that the date of birth given in the school was incorrect and he further clarified that the correct date of birth of Pushpa is 29-11-1964. It is a common knowledge that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. Therefore, we do not see any infirmity in the statement of the witness, who is the father of the prosecutrix, stating that the prosecutrix was born on 29-11-1964.
18. PW 13, Vimal is the mother of the prosecutrix. She has also stated that her daughter, Pushpa (the prosecutrix) was born in Kashibai Hospital, Santa Cruz, Bombay on 29-11-1964. To prove this, the prosecution has examined Dr. Shashikant Awasare, who is one of the proprietors of Dr. Kashibai Nursing Home, Santacruz (West), Mumbai. He has produced the registers for the year 1964. He has also produced the entry at Sr. No. 293, Ext. 18. The entry shows that Vimal, PW 13 gave birth to a female child on 29-11-1964. The prosecution has also produced a Certificate of Birth Registry of Municipal Corporation of Greater Bombay which shows the registration of a female child of Pandurang PW 1 and Vimal PW 13 and the date of birth is shown as 29-11-1964. To prove this the prosecution has produced on record the birth register Book No. 24 of Municipal Corporation of Greater Bombay showing entries 4-11-1964 to 5-2-1965. The entry at Sr. No. 542 dated 16-1-1965 is in respect of the birth of the female child to Vimal and the birth date is shown as 29-11-1964. These two unimpeachable documents clearly corroborate the statements of PW 1 and PW 13 in all material particulars that the prosecutrix was born on 29-11-1964. Men may lie but the documents do not. These two unimpeachable documents clearly establish the fact that PW 4, Pushpa was born on 29- 11-1964. Therefore, she was below 16 years of age on 10-7-1980 and her consent, if any, is immaterial under clause sixthly of the definition of “rape” under Section 375 IPC.
19. Mr. Lalit referred us to the evidence of Dr. Bhimrao, PW 10. Dr. Bhimrao was the medical officer, Police Hospital Nagpada, before whom the prosecutrix was produced on 3.11.1980 for medical examination. According to him, she had fourteen teeth (7/7) in the upper jaw and thirteen teeth in the lower jaw. The doctor opined, among others, that her hymen showed old healed tears at 3-9 O'clock position. For the determination of the age of the prosecutrix, PW 10.
- Dr. Bhimrao has stated as under:
"I X-rayed for ossification test. I took her X-rays of wrist, elbows and shoulder joint. Elbow joint is united which unite at the age of 13/14 years. The wrist joint is united which unites at the age of 16/17 yrs. The shoulder joint is united which unites at the age of 18 years. From physical findings and ossification test and secondary sex characteristics, I am of the opinion that the age of the girl Pushpa was 18-19 years with error of margin 6 months on either side. From the finding of internal examination of external genitals I am of the opinion that the said girl was subjected to sexual intercourse. Notes of examination prepared by me. It bears my signature and also of Dr. Gawane."
20. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the medical officer is really of an advisory character and not binding on the witness of fact.
xxxx 22. In the case of determination of the date of birth of the child, the best evidence is of the father and the mother. In the present case, the father and the mother, PW 1 and PW-13 categorically stated that PW 4 the prosecutrix was born on 29-11-1964, which is supported by the unimpeachable documents, as referred to above in all material particulars. These are the statements of facts. If the statements of facts are pitted against the so- called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by PW 1 and PW 13, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In the present case, as already noted, the parents had admitted to have given an incorrect date of birth of their daughter, presumably with a view to make up the age to secure admission in the school. Apart from this, as noticed earlier, the school certificate collected by PW 15 S.I. Bagal was not an authenticated document. No body was produced to prove the date of birth recorded in the school certificate. The date of birth recorded in the school certificate as 29-6-1963 is, therefore, belied by the unimpeachable evidence of PWs.- 1 & 13 and contemporaneous documents like date of birth register of Greater Bombay Municipal Corporation and the register of the Nursing Home where the prosecutrix was born and proved by Dr. Shashikant Awasare, as noted above.”
In the case of Mahadeo vs. State of Maharashtra and Another reported in (2013) 14 SCC 637 at paragraph Nos.12 and 13, it has been held as under:
“12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
“12. (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, by 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 Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.”
13. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.”
26. This Court is conscious of the fact that the documents produced are as stated, then under such circumstances, the certificate by the doctor can be accepted and the age of the victim can be determined. When no concrete evidence has been produced as stated in the decision quoted supra, then under such circumstance, documents produced at Exs.P-15, 27 and 28 are not just and reliable documents. In absence of any such material, it cannot be held that the victim was minor at the time of alleged incident not competent to give consent . It is the specific case of the accused-petitioner that she has attained the age of majority and voluntarily she has come along with him and got married and thereafter, had physical contact. This contention is also substantiated by the evidence of PW1 both in Section 164 of Cr.P.C. statement, which has been marked as Ex.P1 and even in her evidence. Looking from any angle, when the evidence produced by the prosecution to determine the age of the victim does not satisfy this Court that she was a minor at the time of the alleged incident and when the documents itself goes to show that they have tried to ascertain the date of birth from the corporation and from the hospital but no documents have been secured, then under such circumstance, the prosecution ought to have produced the date of birth given at the time of first admission to the school as held in the decision quoted supra. In the absence of that, this Court is not going to accept the contention of learned Additional SPP. When victim is said to have attained the age of majority and she is above 18 years then under such circumstance, the contention of the accused that it is a consensual sex can be accepted. Even the evidence and other materials go to show that there was no resistance from the side of the victim and even the said act supports the evidence of doctor, wherein she has clearly stated that there were no injuries found over the body of the victim and even the FSL Report at Ex.P-16 also supports the case of the accused.
27. In the light of the discussion held by me above, I am of the considered opinion that the trial court without properly appreciating the date of birth issue has wrongly gone to the other side and has wrongly convicted the accused. In the present case on hand, the determination of the age of the victim is a crucial aspect that is not properly and legally established by the prosecution as per the guidelines issued by the Hon’ble Supreme Court. The appellant has made out a case to interfere with the judgment of the court below.
I have carefully and cautiously gone through the judgment of trial Court. Though the trial Court has discussed the age aspect, it has ignored and has come to a wrong conclusion and wrongly convicted the accused. Hence, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment passed by the II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.108/2017 dated 16.01.2019 is set-aside and the accused is acquitted of all the charged leveled against him.
(iii) The trial Court is directed to refund the fine amount to the accused, if he has deposited already, on proper identification and acknowledgment. Bail bonds executed by accused and sureties stand cancelled.
The application I.A.No.2/2019 is disposed of with liberty to the accused to file an appropriate application before the concerned Court.
Sd/-
JUDGE BVK/DN