Murugan @ Settu vs State Of Tamil Nadu

Murugan @ Settu ...Appellant

Versus

State of Tamil Nadu ...Respondent

WITH

CRIMINAL APPEAL NO. 456 of 2004

Ramalingam @ Ramu ...Appellant

Versus

State of Tamil Nadu ...Respondent

AND

CRIMINAL APPEAL NO. 457 of 2004

Siva S/o Annappan ...Appellant

Versus

State Rep. by Inspector of Police, ...Respondent

Tamil Nadu

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. All the three appeals have been preferred against the common

judgment and order dated 14.7.2003 passed by the High Court of

Judicature at Madras in Criminal Appeal Nos. 981 and 986 of 2002,

by which the High Court had disposed of the said appeals preferred

by the appellants against the judgment and order of the trial court

dated 24.6.2002, in Sessions Case No. 30 of 2000, by which

appellant Murugan @ Settu (A.1) had been convicted under Sections

366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to

as `IPC') and awarded the sentence of rigorous imprisonment for 3

and 7 years on those counts respectively. Other appellants stood

convicted under Sections 366 r/w 109 IPC and were sentenced for 3

years rigorous imprisonment.

2. FACTS :

(A) The prosecution case reveals that on 11.2.1998 at 9.00 A.M.,

Murugan @ Settu (A.1) with an intention to marry the minor girl

Shankari (PW.4), aged 14 years studying in 8th standard, kidnapped

her from S.S.K.V. School, Kancheepuram, by stating that her

mother, Parimala (PW.15) was seriously ill and had been admitted to

hospital. Shankari (PW.4) took permission to leave the school from

her teacher, Rajeshwari (PW.5) and also informed about the said fact

to her classmate P. Megala (PW.6).

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(B) Shankari (PW.4) was taken by A.1 in an auto bearing No. TN

21 B 6582 to Kamatchi Amman Temple, where Shiva (A.2) also

came and both of them took Shankari (PW.4) to Orikai road stating

that they were going to the hospital.

(C) On being questioned by Shankari (PW.4), she was threatened

by A.1 and A.2 that if she made noise they would spoil her life. She

was taken to the house of Smt. Logammal (PW.7), the grand-mother

of A.2 at Kaliampoondi, at about 1.00 P.M. They stayed there at

night. On 12.2.1998, M.P. Ekambaram (PW.1), father of Shankari

(PW.4) lodged an FIR in Crime No. 209 of 1998 that his daughter

had gone to attend the school on 11.2.1998 and did not return. Thus,

she was missing.

(D) On the same day, i.e. 12.2.1998, Ramalingam @ Ramu (A.3)

came from Kancheepuram. All the accused compelled Shankari

(PW.4) to get married with A.1 and, accordingly, A.1 tied `Thali' in

Shankari's neck. A.1 and A.3 took Shankari (PW.4) to Bangalore

leaving A.2 at Vellore. They went to New Lingapuram, Bangalore,

to the house of Rajeshwari (PW.9), sister of A.3 and stayed there

upto 24.2.1998. During this period, A.1 raped the prosecutrix

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Shankari (PW.4) many times. They reached Chennai and stayed in

the house of Vijayalakshmi (PW.12).

(E) As there had been an FIR in respect to the fact that Shankari

(PW.4) had been missing, Pugazhendhi (PW.19), Inspector of Police,

Kanchi Taluk Police Station after receiving the information that A.1

and prosecutrix Shankari (PW.4) would appear before the court at

Kancheepuram reached there, and made a written application before

the Judicial Magistrate, Kancheepuram for sending A.1 and Shankari

(PW.4) for medical examination. The application was accepted.

(F) Dr. Parasakthi (PW.18) examined Shankari (PW.4) and issued

a medical certificate, Ex.P-10 to the effect that she had been sexually

assaulted. Dr. K. Gururaj (PW.20) examined A.1 on 26.3.1998 and

issued certificate Exs.P-14 and P-15 to the effect that he was not

impotent. He also examined Shankari (PW.4) and issued certificates

including Ex.P-16 giving his opinion that she was about 18 years of

age.

(G) After completing the investigation, charge sheet was

submitted. Subsequently, the trial court framed the charges against

A.1 under Sections 366 and 376 IPC and so far as A.2 and A.3 were

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concerned, they were charged under Sections 366 r/w 109 IPC and

Sections 376 r/w 109 IPC. As all the three appellants denied the

charges and claimed trial, they were proceeded with trial.

(H) In support of its case, the prosecution examined 21 witnesses

and 12 documents were exhibited and marked. Five properties were

also marked. In defence, the appellants examined a photographer as

DW.1. Three documents i.e. D1 to D3 were also exhibited and

marked. After concluding the trial, the Sessions Court convicted all

the appellants and imposed punishment as aforesaid.

(I) Being aggrieved, all the three appellants preferred Criminal

Appeals before the High Court which have been disposed of by the

common judgment and order impugned herein with certain

modifications in the conviction and sentence so far as A.2 and A.3

are concerned. It set aside their conviction under Sections 366 r/w

109 IPC and convicted them under Sections 363 r/w 109 IPC and

imposed punishment of two years. Hence, these appeals.

3. Shri G. Sivabalamurugan, learned counsel appearing for the

appellants, has challenged the concurrent findings recorded by the

courts below mainly on the grounds that the courts failed to

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appreciate that Shankari (PW.4) had gone voluntarily with A.1 as she

was in love with him and wanted to marry him and not under

compulsion of any one else. A.2 and A.3 had played no role in their

affair or marriage. All independent witnesses i.e. Smt. Logammal

(PW.7); Rajeshwari (PW.9) and Vijayalakshmi (PW.12) turned

hostile. Shankari (PW.4) was major as opined by Dr. K. Gururaj

(PW.20) who issued certificate to the effect that she was about 18

years of age. The courts erred in placing reliance upon the birth

certificate of Shankari (PW.4) either given by the Municipality or by

the School on the basis of the School Register. In the birth certificate

issued by the Municipality, the name of the prosecutrix was not

mentioned. Neither M.P. Ekambaram (PW.1), father nor Parimala

(PW.15), mother of the prosecutrix, was able to state the correct age

and they were not sure about the date of birth and age of Shankari

(PW.4). In such a fact-situation, conviction of the appellants is liable

to be set aside.

4. On the other hand, Shri S. Thananjayan, learned counsel

appearing for the State has vehemently opposed the appeals

contending that there are concurrent findings of fact recorded by the

courts below, particularly on the most material issue i.e. regarding

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the age of the prosecutrix Shankari (PW.4), to the effect that she

was minor. The school register and birth certificate issued by the

Municipality are admissible pieces of evidence under the Indian

Evidence Act, 1872 and have rightly been relied upon. In case the

finding on the issue of age of the prosecutrix is not disturbed, the

question of entertaining any other issue does not arise. The appeals

are devoid of any merit and are liable to be dismissed.

5. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

We are in full agreement with the learned counsel appearing

for the State that in case the finding recorded by the courts below on

minority of the prosecutrix remains undisturbed, no other issue is

required to be examined.

6. Age as per the documents :

I. Relevant part of the FIR lodged by M.P. Ekambaram (PW.1)

father of the prosecutrix reads as under:

"My daughter's name is Shankari, aged about

14 years and studying in 8th Std. at S.S.K.V. School.

She went on 11.2.1998 at 9 A.M. and did not return

home. I came to know that she is missing."

7 II. Relevant part of the certificate of birth issued by the

Department of Public Health, under Section 17 of the Registration of

Birth and Deaths Act, 1969, issued by the Commissioner,

Kancheepuram Municipality reads as under:

Name -..............

Date of Birth - 30.3.1984

Date of Registration -5.4.1984

Sex - Female

Registration No. - 140

Name of father - M.P. Ekambaram

Name of Mother - Parimala

III. The date of birth certificate issued by the Head Master,

S.S.K.V. Higher Secondary School, Kancheepuram reads as under:

"Certified that E. Shankari D/o M.P.

Ekambaram was a student of this school in Eighth Std.

during 1997-98 and her date of birth as per our school

record (Admn.No.13714 (n.c.) is 30.3.1984 (Thirtieth

March Nineteen Eighty Four)."

IV. Dr. K. Gururaj (PW.20) examined prosecutrix Shankari

(PW.4) and on the basis of Radiological Test Report (Ex.P.16)

opined that she was aged about 18 years.

7. Evidence of the witnesses in respect of age :

I. M.P. Ekambaram (PW.1) in his examination-in-chief does not

say anything about the age of the prosecutrix. Thus, the defence did

not cross-examine him on this issue. However, no suggestion had

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been put to him by the defence that she was major and had developed

a liking/love affair with A.1 and had voluntarily gone with him.

II. Parimala (PW.15), mother of the prosecutrix had deposed that

the date of birth of the prosecutrix was 30.3.1984. At the relevant

time, prosecutirix was studying in 8th standard and was 14 years of

age. Suggestion put to her that she was deposing about the age of

her younger daughter and not of Shankari (PW.4) was denied. She

also denied that she was deposing falsely.

III. Mrs. Gayathri (PW.11), Head Mistress, SSKV School, proved

the certificate and stated that in the school register the date of birth of

Shankari (PW.4) had been recorded as 30.3.1984.

8. The defence has placed reliance on Ex. D-1, a letter written by

the prosecutrix to the police officer which reads:

"I am in love with Murugan for the past 1 =

years. My school age is 15 years. My hospital age is

17 years. My father and mother would go by caste. I

talked with him without knowledge of my father and

mother. When my parents came to know about our

affair they tortured me for 4 months. My lover told me

that he was going to die by consuming `poison'. I

insisted that if I live, I can live with him otherwise I

will die. He did not take me out. I only took him out. I

am requesting the police and my relatives to put us

together, otherwise if they try to separate us, my

parents and police would be responsible.

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Sd/- Shankari"

9. It is evident from the aforesaid documents that prosecutrix

Shankari (PW.4) had developed a love affair with A.1, but

there is nothing on record on the basis of which she had

written that her hospital age was 17 years. No reliance can

be placed on such a letter in view of the certificates issued by

the Municipality and the School. It is a matter of common

knowledge that the birth certificate issued by the

Municipality generally does not contain the name of the

child, for the reason, that it is recorded on the basis of the

information furnished either by the hospital or parents just

after the birth of the child and by that time the child is not

named.

10. In Mohd. Ikram Hussain v. State of U.P. & Ors., AIR 1964 SC

1625, this Court had an occasion to examine a similar issue and

held as under:

"In the present case Kaniz Fatima was stated to be

under the age of 18. There were two certified copies

from school registers which showed that on June 20,

1960 she was under 17 years of age. There was also

the affidavit of the father stating the date of her birth

and the statement of Kaniz Fatima to the police with

regard to her own age. These amounted to evidence

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under the Indian Evidence Act and the entries in the

school registers were made ante litem motam. As

against this the learned Judges apparently held that

Kaniz Fatima was over 18 years of age. They relied

upon what was said to have been mentioned in a report

of the Doctor who examined Kaniz Fatima,.....The

High Court thus reached the conclusion about the

majority without any evidence before it in support of it

and in the face of direct evidence against it."

11. Documents made ante litem motam can be relied upon safely,

when such documents are admissible under Section 35 of the Indian

Evidence Act, 1872. (Vide: Umesh Chandra v. State of

Rajasthan, AIR 1982 SC 1057; and State of Bihar & Ors. v. Sri

Radha Krishna Singh & Ors., AIR 1983 SC 684).

12. This Court in Madan Mohan Singh & Ors. v. Rajni Kant &

Anr., AIR 2010 SC 2933, considered a large number of judgments

including : Brij Mohan Singh v. Priya Brat Narain Sinha & Ors.

AIR 1965 SC 282; Birad Mal Singhvi v. Anand Purohit AIR 1988

SC 1796; Updesh Kumar & Ors. v. Prithvi Singh & Ors., AIR

2001 SC 703; State of Punjab v. Mohinder Singh, AIR 2005 SC

1868; Vishnu @ Undrya v. State of Maharashtra, AIR 2006 SC

508; Satpal Singh v. State of Haryana (2010) 8 SCC 714, and

came to the conclusion that while considering such an issue and

documents admissible under Section 35 of the Evidence Act, the

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court has a right to examine the probative value of the contents of the

document. Authenticity of entries may also depend on whose

information such entry stood recorded and what was his source of

information, meaning thereby, that such document may also require

corroboration in some cases.

13. In the instant case, in the birth certificate issued by the

Municipality, the birth was shown to be as on 30.3.1984;

registration was made on 5.4.1984; registration number has also been

shown; and names of the parents and their address have correctly

been mentioned. Thus, there is no reason to doubt the veracity of the

said certificate. More so, the school certificate has been issued by the

Head Master on the basis of the entry made in the school register

which corroborates the contents of the certificate of birth issued by

the Municipality. Both these entries in the school register as well, as

in the Municipality came much before the criminal prosecution

started and those entries stand fully supported and corroborated by

the evidence of Parimala (PW.15), the mother of the prosecutrix.

She had been cross examined at length but nothing could be elicited

to doubt her testimony. The defence put a suggestion to her that she

was talking about the age of her younger daughter and not of

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Shankari (PW.4), which she flatly denied. Her deposition remained

un-shaken and is fully reliable.

14. In view of the above, we do not see any reason to hold that

prosecutrix, Shankari (PW.4) was major on the date of incident and

in view thereof, no other issue is required to be considered. We also

see no reason to interfere with the quantum of punishment in either

of these appeals. Thus, appeals fail and are accordingly dismissed.

15. The appellants are on bail. Their bail bonds are cancelled.

Appellants must surrender within 30 days from today to serve the

remaining part of the sentences, failing which the Chief Judicial

Magistrate, Kancheepuram, Tamil Nadu, shall apprehend the

appellants and send them to jail. Copy of the judgment and order be

sent to the court concerned for information and compliance.

..................................J.

(P. SATHASIVAM)

..................................J.

New Delhi, (Dr. B.S. CHAUHAN)

May 6, 2011

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