Murugan @ Settu Vs. State
of Tamil Nadu
Ramalingam @ Ramu Vs.
State of Tamil
Siva S/o Annappan Vs.
State Rep. by Inspector of Police Tamil Nadu
J U D G M E N T
Dr. B.S. CHAUHAN, J.
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.
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).
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
Shankari (PW.4) many times. They reached Chennai and stayed in the house of
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
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 4concerned,
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.
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 5appreciate 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.
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 6the 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.
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.
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." 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 - ParimalaIII. 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.
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 8been 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.
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
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.
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 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
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).
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 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.
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 Shankari (PW.4), which
she flatly denied. Her deposition remained un-shaken and is fully reliable.
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
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.
(Dr. B.S. CHAUHAN)