REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 455 of 2004

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.”

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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 ½  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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