(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) The present appeal is filed by the State of Gujarat being aggrieved by judgement and order dated 4th October 1989 passed by the learned Additional Sessions Judge, Kachchh at Bhuj in Sessions Case No.33 of 1989, whereby the learned Additional Sessions Judge was pleased to acquit all the accused of the charges levelled against them for an offence under sections 366, 363, 376, 354 and 109 of the Indian Penal Code. The case of the prosecution is set out in para 2 of the memo of appeal, which reads as under:
"The prosecution case in short is that on 31.12.1988 at about 7.30 PM accused no.1 went to the house of Alimohmed Kara and told his minor daughter Memuna alias Mumtaz that her mother has felled (sic., fallen) down when she went to gather grass in the field and she could not carry the bundle of the grass and therefore, the said Memuna was called by her mother to carry his (sic., her) bundle of grass and so saying accused no.1, i.e. respondent no.1-Osman Ibrahim Sangar took away the girl Memuna Mumtaz from her house and on the sim of the village, tax was kept ready and accused nos.1, 2 and 3 caught said Mumtaz to sit in the taxi forcibly. The window glasses were closed and taken her to Bombay at the place of Harakchand Lalji Jail, who was belonging to village Nana Bhadia. It is the further prosecution case that the driver and accused no.1-Osman stopped the taxi on the road while going to Bombay and went to bring snacks. Accused no.3 at that time molested the girl by catching hold of her breast and thigh and when the girl said that she will tell about the same to Osmanmama, the appellant no.3 released her from his hands. Accused no.3 also gave threat that if she will inform accused no.1, Osman , accused no.3 will beat her. Thereafter, accused nos.1, 2 and 3 took Bai Memuna to suburb Jogeshwari at Bombay and kept her three days in the house of Harakchand Lalji Jail, who originally belonged to their village. At that place accused no.1 committed rape on Bai Memuna against her will. One, Noormohmed Ismail received information from village Bhadia and Mandvi from his sister's house and brother that Memuna is taken away by accused no.1 by kidnapping her towards Bombay. So he inquired about Bai Memuna and accused no.1 in Bombay and Bai Memuna accused no.1 were found from the house of Harakchand Lalji. Thereafter, Noormohmed kept them in one guest house in Dongri and informed the Police. Thereafter, Noormohmed the maternal uncle of Bai Memuna took accused no.1 and Bai Memuna to Mandvi Police in Kutch and handed over them to Police. On these facts the accused were charged for the above offences."
2. The accused pleaded not guilty to the charges and came to be tried. The prosecution, in order to establish the guilt of the accused, examined witnesses and also relied upon the following documentary as well as oral evidence.
Sl.
No.
Particulars Exh.
No.
01. Deposition of Dr.Shantilal Mali 09
02. Certificate of Memuna 10
03. Certificate of Forensic Laboratory 11
04. Letter of Forensic Laboratory 12
05. Osman's certificate.
06. Deposition of complainant - Ali Mamad Kara 14
07. Deposition of Atmaram Ppatel 15
08. School Leaving Certificate of Memuna 16
09. School Register Entry 17
10. Deposition of Noor Mamad Ismail 19
11. Panchnama explaining the physical condition of Memuna.
12. Panchnama explaining the physical condition of Osman.
13. Deposition of witness Savitaben 22
14. Deposition of Ishak Mamad 23
15. Cloth Panchnama of Memuna 24
16. Cloth Panchnama of accused no.1- Osman 25
17. Deposition of Ramchandra Yadav.
18. Deposition of Memuna 28
19. Photographs 30
20. Photographs 31
21. Deposition of Investigating Officer - Harishankar Shrimali.
22. Complaint 33
3. The learned Additional Sessions Judge, after appreciating the evidence led before him came to the conclusion that the prosecution is not able to establish the age of the prosecutrix to be below 16 years. The learned Additional Sessions Judge was pleased to hold that the prosecution is not able to establish beyond reasonable doubt the charge under section 363, 366 or 376 of the IPC. The learned Additional Sessions Judge also held that the prosecution is not able to establish charge levelled against accused no.3.
4. Learned Additional Public Prosecutor (APP) Mr.Pujari strenuously tried to convince this Court that the learned Additional Sessions Judge has committed error in not relying upon the case of the prosecution, more particularly, birth certificate, exh.16, which was produced, exhibited and proved by examining the Headmaster of the School. The learned APP submitted that the learned Additional Sessions Judge ought to have appreciated that the certificate was produced from lawful custody. The Headmaster was examined to prove that document and on the basis of that, the learned Additional Sessions Judge ought to have appreciated that the prosecution is able to prove the date of birth of the prosecutrix to be 1st May 1973 and if that would have been accepted, on the date of the incident, viz. 31st December 1988, the prosecutrix-Memuna Alias Mumtaz was below 16 years of age and the accused ought to have been convicted for an offence under section 376 of the IPC. The learned APP also submitted that the learned Additional Sessions Judge has given undue weightage to non examination of mother of the prosecutrix and the so called discrepancies about the age of mother of the prosecutrix, age of father of the prosecutrix at the time of their marriage and number of children born out of their wedlock. The learned APP also submitted that the learned Additional Sessions Judge has grossly erred in not believing the case of the prosecution when the prosecution was able to lead evidence establishing the charge against the accused without getting the main string interrupted.
5. For accused no.1, learned advocate Ms.Lopa Bhatt for Mr.A.D. Desai appears; for accused no.2, learned advocate Mr.Pratik B. Barot appears; and for accused no.3, learned advocate Mr.Suresh M. Shah appears, all of whom have supported the judgement of the learned Additional Sessions Judge and submitted that the learned Additional Sessions Judge has rightly relied upon the decision of this Court as well as the Hon'ble the Apex Court in the matter of assessing the age of prosecutrix.
Learned advocate for respondent no.1 vehemently submitted that the learned Additional Sessions Judge has rightly relied upon decision of this Court in the matter of State of Gujarat Vs. Jivanlal Chhotalal Patel, reported in 1985 GLH 388, wherein Division Bench of this Court has observed that it is on account of indifferent investigation that the prosecution failed to establish the age of the prosecutrix and consequently it failed to bring to book the person, who could have been punished if the investigating agency had put in little more conscious efforts.
For ready perusal the observations made by the Division Bench of this Court as back as on 13th June 1980, i.e. by now more than three decades old, are reproduced only with a view to see that the person in-charge of the affairs takes care of these observations and see that the investigating agency is sensitised to get the guilty people punished.
" .. .. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made thereunder it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school. That person is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular dated on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come."
In the present case when the school certificate was already on record and the same was proved by examining the Headmaster of the school, the only thing which was required to be done was to examine the mother of the prosecutrix, who had gone to the school to admit her daughter. If this would have been done then prosecution could have established the age of the prosecutrix.
Rule 130 of the Bombay Primary Education Rules, 1949 provides for age certificate. The same reads as under:
"130.
Age certificate, - Every child seeking admission for the first time into an approved school shall produce a certificate of age signed by its parent. In the case of illiterate parents, the certificates shall bear their thumb impression attested by a literate person other than a teacher of the school to which the child seeks admission. The date of birth given in this certificate shall be entered in the school (General) Register. .. .."
6. In the present case, the school certificate, exh.16 is produced and the same is taken into consideration by the learned Judge in detail in para 10 of the judgement. The learned Additional Sessions Judge has recorded that there is a discrepancy with regard to place of birth of the prosecutrix, though it is deposed by father of the prosecutrix that she was born at Mandvi, in school certificate her place of birth is mentioned to be 'Nana Bhadia'. The learned Additional Sessions Judge has considered the aspect of some of the columns being blank in the said certificate, which is effectively brought on record in the cross examination of the Headmaster. In the cross examination of PW-3, Exh.15, Atmaram Mohandas Patel, Head Teacher of Nana Bhadia Panchayat Prathamik School has stated that columns no.11, 12, 13 and 14 are blank in the school register. Taking into consideration the fact that there is a discrepancy in the matter of place of birth of the prosecutrix, taking into consideration the fact that there are certain columns which are kept blank and taking into consideration the fact that the mother of the prosecutrix though available she is not examined, and last but not the least the prosecution has not deemed it proper to get the girl examined by a medical expert to establish her age, the Court is of the opinion that the prosecution is not able to prove that the prosecutrix was minor on the date of the incident.
7. The learned Additional Public Prosecutor did appeal to this Court by saying that once the document is produced from the lawful custody of the authority (the school in this case) and once the Headmaster is examined to prove that document, the learned Additional Sessions Judge ought to have accepted the contents thereof and should have held that the prosecution was able to establish the date of birth of the prosecutrix. In support of his submission he submitted that not accepting the date of birth of the prosecutrix as mentioned in the school certificate amounts to attributing that the mother or any other person, who admitted the child in the school gave a wrong date of birth at the time of admitting the child in the school with a view to see that in the event any such unfortunate event takes place, the accused can be got punished on the basis of such date of birth.
Though the submission is appealing, the law as on date is that in criminal cases it is the duty of the prosecution to 'establish the guilt of the accused' in accordance with law. It is the settled position of law that while a document is proved, the contents of the document requires to be proved as per the procedure laid down by law. In the matter of age of the prosecutrix, there are judgements of this Court as well as that of the Hon'ble the Apex Court that the prosecution has to establish the age beyond reasonable doubt to prove the guilt in the matter of offence under section 363, 366 or 376 of the IPC. It is only on account of indifferent approach of the investigating agency/ investigating officer that a guilty persons is able to escape. Therefore, in the considered opinion of this Court what is required is the persons in power - in-charge of the affairs of the investigation and the prosecution shall see to it that a circular is issued to all the investigating officers prescribing detailed and foolproof procedure to be followed in the matter of bringing on record the required evidence to establish the date of birth of the prosecutrix. If this care is taken, it will result into not allowing the guilty people to go scot free.
8. The learned advocate for accused no.1 invited attention of the Court to decision of this Court in the matter of Rameshbhai Pushkardas Shrma Vs. State of Gujarat reported in 1989 (2) GLH (U.J.) 8, wherein Division Bench of this Court had to observe that in view of the medical opinion, it can be said that the prosecution has failed to prove beyond reasonable doubt that the prosecutrix was below the age of 16 years. The Division Bench has observed that the prosecution did not examine the doctor - radiologist. The Division Bench has further observed that the prosecution rest contented by relying upon the School Leaving Certificate of the prosecutrix, which is produced at exh.16, wherein date of birth of the prosecutrix is mentioned as 01.05.1973. For proving this certificate, the prosecution relied upon the evidence of the father of the prosecutrix, but then father of the prosecutrix, in his cross examination, had admitted that the birth of the prosecutrix was not registered and he was not having anything in writing with regard to the birth date of the prosecutrix. He had not gone to the school for giving birth date of his daughter. Again this is indicative of the fact that if the prosecuting agency was vigilant enough it could have examined the person, who had gone to the school to prove the birth date of the prosecutrix. If that person would have been examined, the date of birth of the prosecutrix could have been proved. It is only due to the failure on the part of the prosecuting agency in bringing the required evidence on record that the person, facing charge for a serious offence gets benefit of doubt and goes scot free.
9. In the result, the Court finding itself to be in helpless condition due to indifferent and ineffective investigation has to dismiss the Appeal. The judgement and order dated 4th October 1989 rendered by the learned Additional Sessions Judge, Kachchh at Bhuj in Sessions Case No.33 of 1989 is upheld. The Criminal Appeal is dismissed. Bail bonds are cancelled.
(RAVI R. TRIPATHI, J.) (G.B.
SHAH, J.) karim Top