V. Eswaraiah, J.
1. These Criminal Appeals are filed against common judgment dated 29/12/1995 in S.C.No.83/1995 on the file of the Additional Sessions Judge, Srikakulam. The appellant in Crl.A.No.80/96 is accused No.1 and the appellant in Crl.A.No.92/96 is accused No.2 in S.C.No.83/1995. Accused No.1 is found guilty of the offences under Section 363, 376(2)(a), 419 and 506(2) of IPC. Accused No.2 is found guilty of the offences under Sections 363, 376, 506(2) of IPC. A1 and A2 are sentenced for the offence under Section 363 to suffer Rigorous Imprisonment for 3 years each and to pay a fine of Rs.3,000/-, in default, to suffer Simple Imprisonment for six months. For the offence committed under Section 376(2)(a), A1 is sentenced to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs.8,000/-, in default, to suffer Simple Imprisonment for 2 years and for the offence under Section 419, Simple Imprisonment for one year. Both the accused were sentenced to suffer Simple Imprisonment for the offence under Section 506 (2). A-2 is sentenced to undergo Rigorous Imprisonment for 8 years and to pay a fine of Rs.8,000/-, in default, Simple Imprisonment for 2 years for the offence under Section 376. Being aggrieved by the conviction and the sentences, A1 and A2 filed these two appeals.
2. Brief facts of the case is that A-1 is the Gunman and A-2 is the driver of the car of Smt. K. Pratibha Bharathi, the then Hon'ble Minister. Though the son of Smt.K.Pratibha Bharathi owned the car, she was using it. On 12/01/1995 at about 11.00 p.m. A-1 and A-2 came in the said car to Duppalavalasa Colony, Srikakulam while the prosecutrix - Killi Parvathi (PW-2) and her mother - Killi Shanthamma (PW-1) after answering the calls of the nature they were standing in front of their house, A-1 impersonating himself as Sub Inspector of Police of II Town Police Station, Srikakulam had kidnapped a female minor girl aged about 14 years (PW-2) from the lawful guardianship of her mother (PW-1) and committed criminal intimidation threatening the mother of the minor girl by both the accused (A1 & A2) stating that they would shoot her and she would have to face dire consequences if she reveals their beastly acts to any one. After kidnapping the minor girl, the accused took her in the car without the consent of PWs 1 and 2 and they have asked PW-2 to give her consent for sexual intercourse, but she refused to do so. When she refused to give her consent for sexual inter course, the accused stopped the car near S.M. Puram road and she was taken out of the car and her hands were caught hold by keeping her back side and she was taken beyond the bushes and she was forcibly raped at about 11-30 p.m./12.00 midnight by A-1 and again she was taken in the car to some other place near Polytechnic college and there also she was again raped by A-1 and thereafter by A-2 and again by A-1 and then she was dropped at a distance of her house and went away.
3. PW-1 is the mother of the victim girl. She stated that she is working as agricultural cooli. She is having three children i.e., one daughter and two sons. One son (Killi Ramana) is working in a brandy shop and the other son (Killi Jagan) and her daughter is Killi Parvathi (PW-2). Her daughter was studying in the 7th class in the High School. She stated that on the fateful day her son (Killi Ramana) returned home from Brandy Shop at about 10-30 p.m. and after serving meals to him, she and her daughter together went to road side to answer the calls of the nature and when a car was coming from the back side, they stood up and the car proceeded towards Thotapalem side after crossing them and after going to certain distance it took turn and came to them at that time they were going towards their house, a person was armed with a gun came and caught hold of her daughter and took her daughter forcibly into the car when she questioned, the said person stated that he is the Sub Inspector of Police, II Town P.S and he came to arrest her. When she said that he is not Sub Inspector of Police, II Town P.S, as she knew the Sub Inspector of Police, II Town Police Station, then he threatened her that he would kill her if she goes near him. She immediately called her son stating that somebody was taking away her daughter in a car. She further stated that when the accused were taking away her daughter, she caught the car door tightly, but they pushed her hands back and took away her daughter. Then her son came out and identified the driver of the car who used to visit brandy shop and also identified the car number. Herself and her son ran after the car to some extent and they came back to their house. They called out their neighbours saying that somebody took away her daughter. She along with her son went to the police station and gave a complaint. By the time they returned back to their home, they found PW-2 weeping. On enquiry, she narrated the entire incident to them. In the cross-examination, nothing could be extracted from her contrary to what has been stated in the chief examination. She identified the accused in the identification parade. Her statements were recorded by the Police under Section 161 Cr.P.C. as well as by the Magistrate under Section 164 Cr.P.C.
4. The victim girl was examined as PW-2. After preliminary examination about the capability of understanding and giving answers by the learned Magistrate, her evidence was recorded. She spoke so meticulously stating that at the relevant time she was studying 8th class in Gurukula Pathasala. On the fateful day i.e., on 12/01/1995 at about 11.00 p.m. herself and her mother went out to answer the calls of nature. By noticing the white car, which was coming from the town side, PW-2 and her mother stood up on the road. The car crossed them and proceeded to some distance, returned back to them. Immediately two persons got down from the car (she identified the said two persons in the open court as A-1 and A2) and pushed her into the car when she was standing by the side of the car and when her mother resisted, A-1 stated that he is the Sub Inspector of Police, II Town Police Station and when her mother said that he was not the Sub Inspector of Police as she knew the Sub Inspector of Police, II Town P.S., then A-1 pointed the gun to her mother and threatened to fire if she says anything against them and A-1 folded the hands of her mother and pushed her and took PW-2 in the car towards S.M.Puram road. When the accused asked her to give consent for sexual intercourse, she refused for the same. Then the accused stopped the car and took her forcibly to the vacant place and A-2 driver of the car folded her hands by keeping back and A-2 torn her night gown and removed her cut drawer and despite her resistance, A-1 fell on her and had sexual intercourse forcibly. Again they took the victim girl in the car towards Srikakulam side and when two duty constables tried to stop the car at S.M.Puram road, but without stopping the car, the accused drove the car in a high speed and stopped at Polytechnic college ground and A-1 and A-2 enjoyed her forcibly without her consent and thereafter she was dropped at a distance of her house and threatened her not to disclose to anybody. When she came back to her house, no one was there. At about 7.30 a.m. her mother and brother returned home. On their enquiry, she told them that A-1 and A-2 raped her forcibly. Then PW-1, PW-2, and PW-3 went to the Police Station and reported the same to the Sub Inspector of Police. Sub Inspector of Police recorded her statement and obtained her signature, which is marked as Ex.P-2. M.O.1 is her cut drawer, M.O.2 is her lower langa (petticoat), M.O.3 is her nightgown, and M.O.4 is her bra. Circle Inspector of Police has enquired about the incident and she has shown the scene of offence and broken bangle pieces were recovered in the presence of two mediators at S.M.Puram road, which are marked as M.O.5. and also broken 4 sky blue bangles recovered at Polytechnic College ground, which are marked as M.O.6. The Magistrate also recorded her statement under Section 164 Cr.P.C. She was cross-examined at length, but nothing could be elicited contrary to what has been stated by her in the chief examination.
5. PW-3 is the brother of the prosecutrix - victim girl. He corroborated the evidence of his sister (PW-2) and his mother (PW-1). PW-4 is the neighbour who is said to have come out of the house when PW-2 was forcibly taken. His evidence is corroborated to some extent to show that he had heard the cries of PW-1 on 12/01/1995. When PW-2 was taken by the accused, his son (PW-5) informed him the same. PW-5 is the son of PW-4 stated that on the date of the incident he heard the cries and came out of the house and witnessed a white car plying towards Srikakulam side. PW-4 and two others PW-1 and PW-3 said to have present on the road after the incident. Defence counsel cross-examined PW-5. PW-6 and PW-7 are the police constables who are on the patrolling duty and they saw a white car at S.M.Puram junction in the midnight of 12/01/1995 and when they tried to stop the car, it was driven at a high speed and they noted the car number. PW-8 who is said to have drafted the complaint, in the cross-examination, has stated that he has drafted the complaint in the name of PW-1 at about 06-00 a.m. on 13/01/1995 and he does not know either PW-1, her daughter (PW-2) or her sons previously. PW-9 is a panch witness for seizure of the car. PW-10 is a panch witness for the mediator's report where the articles i.e., bangles were seized from the scene of offence. He turned hostile. PW-11 is the owner of the car i.e., son of the Hon'ble Minister - Smt. Prathibha Bharathi, stated that his mother was using the car. PW-12 is the Sub Inspector of Reserved Police. He has stated that A-1 was deputed as a gunman to the then Hon'ble Minister. PW-13 is the Head Master of T.P.M. School where PW-2 studied at the relevant time. He has issued the date of birth certificate of PW-2 as recorded in the admission register as 10/07/1981. The certificate was handed over to the police when they came to the school. The said certificate was marked as Ex.P-26. PW-14 is the Government Doctor who examined A-1 and A-2 and stated that they are capable of committing rape and he collected specimen and marked the Forensic Lab Report and wound certificate. PW-15 is the doctor who examined the victim girl and she stated that there is a fresh injury to the posterior part of vagina. She stated that when the victim girl was tested, two fingers were admitted in the vagina since there is a fresh injury to the posterior part of the vagina because of sexual inter-course by A-1 and A-2 for four times on that night, and therefore, it cannot be said that she had past sexual inter course. PW-17 is the District Munsif who recorded statements of PW-1, PW-2 and PW-3, which are marked as Ex.P-12, P-13 and P-14 and also conducted identification parade. PW-18 is the Sub Inspector of Police stated that on 13/01/1995 at about 5.00 a.m. PW-1, PW-3 and one Killi Jagan came to the Police Station lodged a complaint stating that after answering the calls of the nature by PW-1 and PW-2 while they were returning home, two persons came in a white car bearing No.AEW-232 and one among them was armed with a gun impersonating himself as Sub Inspector of Police, II Town Police Station, forcibly took PW-2 threatening PW-1. Accordingly he registered a case in Crime No.5/1995 and issued F.I.R. at about 5-00 a.m. on the same day. PW-1 left the Police Station at about 06-30 a.m. On the complaint, he went to the scene of offence and by the time he came back to the police Station he saw PWs 1 and 2 and he recorded the statement of PW-2 about the offence committed by the accused and the manner in which she was raped by the said two persons by taking away in the car against her consent and then the section was altered to that of Section 363, 419, 506 (2) and 376(2) IPC. PW-19 is the Inspector of Police under whose supervision the investigation was done and he himself recorded the statements of PW-1, PW-2 and PW-3 under Section 161 Cr.P.C. He conducted panchanama at the scene of offence in the presence of mediators and arrested the accused on 13/01/1995.
6. On the oral and documentary evidence i.e.. Witnesses of PW-1 to 20, documents Ex._P-1 to 26 and the material objects M.O.1 to 11 and nil oral evidence for the defence and a document was marked as D-1 i.e., the relevant portion of the contradiction in 161 statement of PW-1, the learned Additional Assistant Sessions Judge found the accused guilty of the offences and imposed sentences as narrated above.
7. It is the argument of the learned counsel appearing for the accused that as per the doctor certificate who examined the victim girl - PW-2 issued wound certificate (Ex.P-8) the age of the victim girl is mentioned as 16 years and there were no external injuries either on the body of the accused persons or on the body of the victim girl, therefore, it cannot be said that she did not give consent for sexual inter course. It is submitted that according to the evidence of PW-1, she and her daughter are living in the prostitution, and therefore, her evidence is not trustworthy. It is stated that PW-1 herself sent PW-2 with consent along with the accused in a car for sexual inter course. But thereafter with mala fide intention created a false story. It is stated that the physical appearance of the victim girl is deceitful that she is not below 16 years of age and from the whole of the evidence it is presumable that she had given her consent for sexual inter course as there is no wound or scratches or any markings of resistance. Since A-1 was having gun in his hands, it cannot be said that he has forcibly kidnapped PW-2 from the lawful possession of PW-1. Because of the publicity about the incident, they have concocted a false story though PW-2 was a consenting party and it cannot be said that PW-2 was raped forcibly without her consent.
8. One of the question that arises for consideration in these two appeals is whether the victim girl was below 16 years of age and whether the sexual inter course by the accused on the PW-2 is proved and the said inter course was without consent of PW-2.
9. In this case Ex.P-26 is a letter dated 17/01/1995 issued by the Head Master of T.P.M. High School, Srikakulam with regard to date of birth of Killi Parvathi (PW-2) wherein it is stated that she has studied upto 7th Class in the said school and as per the entry in the admission Register vide admission No.276/91-92 her date of birth is 10/07/1981. The said letter (Ex.P-26) was issued with reference to the letter dated 17/01/1995 of the Sub Inspector of Police. Issuance of the letter was also confirmed by the Head Master (PW-13) of the said school who worked at the relevant time. As against the said school record with regard to date of birth, there is no other documentary evidence to show that her date of birth was not 10/07/1981. Ex.P-8 is only a wound certificate issued by the doctor (PW-15). This certificate is not relating to the age but while giving wound certificate it was mentioned her age as 16 years as per the opinion of the doctor but it is not a Radiologist's opinion or given on any examination in a scientific method. Therefore, as against the documentary evidence, Ex.P-26, the opinion of the doctor who has casually stated the age of the victim girl 16 years cannot be prevailed or relied upon.
10. In support of the prosecution's case, the Public Prosecutor relied on the decision of the this Court in SYED AJMAD AHMED V. STATE OF A.P. (1) and also Apex Court in UPDESH KUMAR V. PRITHVI SINGH : [2001]1SCR454 wherein it has been stated that the entry in the school certificate is an official record and it is documentary evidence and the doctor's certificate is only opinion evidence. In this case, there is no certificate issued by any Radiologist certifying the age of the victim girl and age mentioned in the wound certificate is a mere opinion of the doctor, and therefore, it cannot prevail over the official record i.e., the documentary evidence of a school certificate. As per the school certificate, she was aged 13 years 6 months 2 days as on 12/01/1995 i.e., the date of the offence. Even according to the wound certificate, the victim girl is not the above 16 years of age. Therefore, there is a clear-cut evidence to show that the victim girl is below 16 years of age as on the date of the offence. Under Section 376, whoever commits rape, punishable with imprisonment for a term of not less than 7 years and with a fine.
11. Rape is defined under Section 375 IPC. A man is said to commit ' rape', except in case hereinafter excepted, as sexual intercourse with a woman under circumstances falling under any of the six following description:
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 hut.
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.'
The description No.6, if the man has sexual intercourse with a woman when she is under 16 years of age, it is a rape even if the sexual intercourse is with her consent. In the instant case, the victim girl (PW-2) is under the age of 16 years, and therefore, even assuming that she gave her consent, it is a rape as per description No.6 of Section 375 IPC. As per Section 376(2)(a)(i), if the rape is committed by a police officer within the limits of the police station to which he is appointed; shall be punished with Rigorous Imprisonment of minimum of 10 years.
12. Under Section 114A of the Indian Evidence Act, in a prosecution for rape, under Section 376(2) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and if that woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Therefore, there is no evidence to show that the minor girl consented and she has stated before the Court stating that she has been raped without her consent and against her will.
13. As per Section 376 IPC, even if she gave her consent, sexual intercourse committed by the accused is a rape as she is below 16 years of age. Therefore, I do not see any merits in the contentions of the learned counsel for the defence.
14. It is appropriate to quote the judgment of the Apex Court written by the then Hon'ble Sri Justice V.R. Krishna Iyer in RAFIQ V. STATE OF U.P (2), which is as follows:
'The escalation of such crimes has reached proportions to a degree that exposes the pretensions of the nation's spiritual leadership and celluloid censorship, put to shame our ancient cultural heritage and humane claims and betrays a vulgar masculine outrage on human rights of which woman's personal dignity is a sacred component.'
In support of the prosecution, the Public Prosecutor also cited the case in STATE OF HIMACHAL PRADESH V. GIAN CHAND (3) in which it is held that if there are no injuries and if there is a delay in filing FIR, it cannot be said that the rape has not been committed if the child was subjected to rape by the accused. In this case, her hands were folded to her back as stated by PW-2 and she was raped thrice by A-1 against her will and consent and once by A-2 without her will and consent, and therefore, it cannot be said that she was not raped.
15. The learned Sessions Judge elaborately discussed the evidences available on record and on the facts and circumstances of the case, he found accused No.1 guilty for the offences under Sections 419, 376(2)(a), 363 and 306(2) IPC and accused No.2 is found guilty for the offences under Section 376, 363 and 306(2) IPC and accordingly they are sentenced with appropriate punishments. I do not see any merits in these two appeals and they are accordingly dismissed.