Case Note & Summary
The appeal arose from the judgment of the Additional Sessions Judge, Pune, in Sessions Case No. 410 of 2010, convicting the appellant/accused no.1 under Sections 376, 366A and 506(2) of the Indian Penal Code and sentencing him to rigorous imprisonment. The prosecution case was that on 11th February 2010, near Shivaji Nagar Railway Station, Pune, the prosecutrix, a minor girl, was kidnapped by the appellant and co-accused and subsequently raped by the appellant while the others kept watch. After the incident, she ran away naked and was helped by passers-by. The FIR was lodged and investigation led to the seizure of incriminating articles and medical examination of the prosecutrix. The appellant challenged the conviction on grounds of inconsistencies in the prosecutrix’s statements, lack of external injuries, improbability of the incident at a public place, and non-seizure of the clothes allegedly provided by witnesses. The State supported the conviction. The High Court, before delving into the main charges, examined the threshold issue of the prosecutrix’s age, as minority would make consent irrelevant. The court noted that the prosecutrix and her mother, both rustic labourers, had given her date of birth as 19th November 1995, while the school record showed 19th October 1995. The court held that oral evidence of age was unreliable and relied on documentary evidence—the school leaving certificate and the birth certificate from Sassoon Hospital, a public hospital—produced by PW4, the Head Mistress. Applying Section 35 of the Indian Evidence Act, 1872, the court observed that entries in public records made in the performance of official duty are relevant and entitled to great weight. It declared the discrepancy in the month of birth immaterial and accepted the school record as proof that the prosecutrix was born in October 1995, making her below 16 years at the time of the incident. The excerpt from the judgment ends mid-analysis and does not contain the final order on the appeal.
Headnote
A) Criminal Law - Rape/Sexual Offences - Proof of Age of Prosecutrix - Indian Evidence Act, 1872, Section 35 - The prosecutrix's age was disputed; oral testimony of the prosecutrix and her mother regarding date of birth was found to be incorrect in month but the court relied on school records and birth certificate from public hospital to establish age below 16 years. Held that documentary evidence under Section 35 of the Evidence Act is reliable and minor discrepancy in month of birth is immaterial (Paras 5-6).
Issue of Consideration
Whether the conviction under Sections 376, 366A and 506(2) of the Indian Penal Code was sustainable upon reappreciation of evidence, particularly with regard to the age of the prosecutrix and the credibility of her testimony.
Law Points
- Proof of age of prosecutrix in sexual offences
- admissibility and reliability of documentary evidence under Section 35 of Evidence Act
- evaluation of oral testimony of rustic witnesses
- minor discrepancies in date of birth not fatal to prosecution case
Case Details
2017 LawText (BOM) (08) 83
Criminal Appeal No.44 of 2012
Ms. Nasreen Ayubi, Ms. Pallavi N. Dabholkar
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Nature of Litigation
Criminal appeal against conviction and sentence
Remedy Sought
Appellant seeks to set aside the judgment and order of the trial court convicting him under Sections 376, 366A, and 506(2) IPC
Filing Reason
Aggrieved by the trial court's conviction and sentence, the appellant filed the appeal
Previous Decisions
The learned Additional Sessions Judge, Pune, in Sessions Case No.410 of 2010, convicted the appellant/accused no.1 under Sections 376, 366A, and 506(2) IPC and sentenced him to rigorous imprisonment; co-accused no.2 was convicted under Section 366A IPC; accused no.3 was acquitted
Issues
Whether the prosecution proved beyond reasonable doubt that the appellant committed rape on the prosecutrix who was a minor below 16 years of age
Whether the evidence of the prosecutrix was credible and consistent, and whether the conviction could be based on her testimony
Whether the appellant was entitled to benefit of doubt due to discrepancies in the prosecutrix's statements and lack of corroboration
Submissions/Arguments
Appellant's counsel argued that the prosecutrix was not truthful; she had given inconsistent history to the doctor; she was habitual to sexual intercourse; her claim of running naked was improbable; the spot was public place; no external injuries sustained; clothes provided by witnesses were not seized
The prosecution (State) supported the trial court's judgment and argued that the conviction was justified
Ratio Decidendi
Entry in public record made in performance of duty regarding date of birth is relevant and admissible under Section 35 of the Indian Evidence Act, 1872, and can be relied upon to prove the age of the prosecutrix despite minor discrepancies in oral evidence.
Judgment Excerpts
The prosecutrix... was having rustic background and she used to work as labourer with a caterer.
When compared with contemporaneous documentary evidence, it is seen that the prosecutrix was born in the year 1995 itself and she as well as her mother had just incorrectly stated the month of her birth.
Section 35 of the Evidence Act deals with relevancy of entry in public record made in performance of duty. ... This section is based upon the principle that the law reposes confidence in public officers entrusted with public duties.
PW4 Jayashree Lembhe, Head Mistress, shows that entry of date of birth of the prosecutrix was made in the official record maintained by the Municipal School on the basis of birth certificate issued by Sassoon Hospital, Pune, a government hospital.
Procedural History
On 11th February 2010, the incident occurred near Shivaji Nagar Railway Station, Pune. The prosecutrix lodged an FIR at Shivaji Nagar Police Station, which was recorded by PW11 A.P.I. Milind Chavan. Investigation followed, including spot panchnama on 12th February 2010 and seizure of articles. Medical examination of the prosecutrix was conducted at Sassoon Hospital, and ossification test performed. After investigation, charge-sheet was filed against three accused persons. The case was committed to Sessions Court as Sessions Case No. 410 of 2010. The trial court framed charges under Sections 376, 366A read with 34, and 506(2) read with 34 IPC. The trial court convicted the appellant/accused no.1 on 28th November 2011 and sentenced him. The appellant filed Criminal Appeal No.44 of 2012 before the Bombay High Court. The High Court heard the appeal and delivered oral judgment on 7th and 8th August 2017. The final outcome of the appeal is not provided in the extracted text.
Acts & Sections
- Indian Penal Code, 1860: Sections 376, 366A, 506(2), 34
- Indian Evidence Act, 1872: Section 35
