REPORTABL E

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1053 OF 2009

Alamelu & Anr.                                                   .. Appellants

VERSUS

State represented by Inspector of Police              ..Respondent

WITH

CRIMINAL APPEAL NO.1063 OF 2009

Sekar & Anr.                                                   .. Appellants

VERSUS

State represented by Inspector of Police              ..Respondent   

WITH

CRIMINAL APPEAL NO.1062 OF 2009

Rangasamy & Anr.                                               .. Appellants

VERSUS

State represented by Inspector of Police              ..Respondent   

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These three appeals  are directed against  the common  

judgment  of  the  High Court  of  Judicature  at  Madras  1

dated 6th February, 2008 in Criminal Appeal Nos. 406  

and  414  of  2000  confirming  the  common  judgment  

passed in S.C. No. 255 of 1997 by the learned Assistant  

Sessions  Judge,  Namakkal     dated  28th April,  2000  

whereby the trial court had convicted and sentenced the  

appellants as under:-

The appellants in Criminal Appeal No. 1053 of 2009 had  

been convicted under Sections 366 and 376 read with  

Section  109  IPC  and  sentenced  to  undergo  rigorous  

imprisonment for ten years and a fine of Rs.500/-, in  

default of payment of fine to further undergo rigorous  

imprisonment for a period of three months.

In Criminal Appeal No. 1063 of 2009, Sekar, appellant  

No.1, had been convicted under Sections 366 and 376  

IPC and sentenced to  undergo rigorous imprisonment  

for  ten  years  and  a  fine  of  Rs.500/-  in  default  of  

payment  of  fine  to  further  undergo  rigorous  

imprisonment for a period of  three months.  Appellant  

No.2  Kandasamy  had  been  convicted  under  Sections  

366 and 376 read with Section 109 IPC and sentenced  

to undergo rigorous imprisonment for ten years and a  

fine of Rs.500/-, in default of payment of fine to further  

undergo  rigorous  imprisonment  for  a  period  of  three  

months.

2

In  Criminal  Appeal  No.1062  of  2009,  both  the  

appellants were convicted under Sections 366 and 376  

read with Section 109 IPC and sentenced to  undergo  

rigorous  imprisonment  for  ten  years  and  a  fine  of  

Rs.500/-  in  default  of  payment  of  fine  to  further  

undergo  rigorous  imprisonment  for  a  period  of  three  

months.

2. Briefly  stated  the  prosecution  story  is  that  PW2  

(hereinafter referred to as the “victim” or “girl” according  

to context) is the daughter of Chinnathambi, (PW1) who  

is a teacher and resident of Nedupatti Village, Namakkal  

District, Tamil Nadu.  The victim had failed in the SSLC  

examination.  Therefore,  she  was  admitted  in  private  

tutorial college called Seran Tutorial College.

3. It is alleged that on 31st July, 1993 at about 3.00 p.m.  

when  she  was  walking  near  Nedupatti  on  the  way  to  her  

house from the local  bus stop,  after  attending her  tutorial  

classes,  Sekar (A1) told her that he loved her and wanted to  

marry  her.  The  victim,  however,  did  not  agree  to  such  

proposal.  Thereafter, a car bearing registration No. TTA 1886  

came near the victim and she was forcibly pushed into the car  

by  Sekar  (A1).  Rangaswami  (A2),  Paramasivam  (A4)  and  

Alamelu (A5) were already inside the car. This incident was  

3

informed to the father (PW1) of the victim by one Sugavanam,  

who had received a call  from Sekar (A1).  The incident was  

confirmed  by  another  person  called  Thangavel  (PW3)  who  

informed PW1 about an hour later.  

4. Since PW1 is a handicapped person and unable to walk, he  

sent his relatives in search of his daughter. According to  

the prosecution case, the car was taken to the residence of  

Selvi,  who  is  the  sister  of  Sekar  (A1)  at  Pudupatti.  

Thereafter, Parmasivam (A4), Alamelu (A5) and Subramani  

(A8) were advising the victim to marry Sekar (A1), however,  

she  refused  to  do  so.  At  that  stage,  Kandasamy  (A7)  

declared that it is not necessary to take the consent of PW2  

and they should just go to the temple in the morning and  

perform the marriage ceremony.

5. The next morning, on 1st August, 1993 at 4 ‘o’ clock, they  

all took the victim to Arapaleeswarar Temple at Kolli Hills.  

On reaching the temple, Sekar (A1) tied the mangalsutra  

on  the  neck  of  the  victim  in  spite  of  her  resistance.  

Thereafter, she was taken to Mullukurichi. She was kept in  

a house and repeatedly raped for three days.  

4

6. On  4th August,  1993,  she  was  taken  by  Sekar  (A1)  to  

Palampatti.  Since  it  was  known  to  Sekar  (A1)  that  the  

police  was  searching  for  the  girl  (PW2),  he  took  her  to  

Thiruverumbur Police Station. He told the police officials  

there  that  they  were  husband  and  wife  and  had  been  

legally married.  

7. In the meantime on 3rd August, 1993, PW-10, the    Sub-

Inspector  of  Police  of  Vennandur  Police  Station  on  the  

basis of the complaint dated 2nd August, 1993 went to the  

place  of  occurrence  and  prepared  observations  mahazar  

(Ex.P8)  and  rough  sketch  (Ex.P7)  and  recorded  the  

statements of the witnesses.  

8. On receipt of a copy of the FIR on 6th August, 1993, the  

Circle Inspector of Rasipuram Circle (PW11) took over the  

investigation.  On  the  basis  of  the  information  gathered,  

PW11 arrested Sekar (A1) and rescued the girl (PW2) from  

door No.86, Thiruverumbur Police colony on 10th August,  

1993.  In  the  presence  of  the  witnesses  PW11 recovered  

mangalasutra, the dresses worn by the accused (A1) and  

the victim under mahazars. He arranged to send the seized  

properties  for  chemical  analysis.  In  the  morning  of  11th  

5

August, 1993,    Sekar (A1) and Thangamani were sent to  

the  local  Magistrate’s  Court.  Thereafter,  he  (A1)  was  

remanded to judicial custody.  

9. At  the  same  time,  the  victim  was  sent  for  a  medical  

examination. PW13 Dr. Manimegalaikumar examined the  

victim on 12th August, 1993 at 2.00 p.m. and recorded her  

findings in report Ex.P13. In the report, she opined that  

age of the victim was between 17 to 19 years. On the other  

hand,  PW8,  Dr.  Gunasekaran,  the Radiologist  had given  

her  age  as  above  17  years  and  below  18  years.  Dr.  

Chidambaram (PW14) examined A1 on 11th August, 1993  

at 8.00 p.m.  In his report (Ex.P15) he stated about the  

potency of A1.  

10.Thereafter, PW12, the successor of PW11, after seizing the  

vehicle  used  for  abduction  and  after  completing  the  

investigation  filed  the  charge  sheet  on  19th June,  1996  

(Ex.P13) against Sekar (A1) for offences punishable under  

Sections 366 and 376 IPC and accused Nos.  2 to  8 for  

offences punishable under Sections 366 and 376 read with  

Section 109 IPC.

6

11. In  order  to  establish its  case,  the prosecution examined  

PWs.1  to  14.  Ex.  P1  to  P16  have  been  marked  besides  

M.O.1  to  11.  No  one  was  examined  on  behalf  of  the  

accused and no documents were produced on their behalf.  

12.When  the  accused  were  questioned  with  regard  to  

incriminating circumstances appearing against them in the  

evidence of witnesses, the accused had denied the same as  

false. Sekar (A1) filed a written statement which reads as  

follows :-

“I am innocent. The charge that I have kidnapped  PW2 and married her and raped her is false. On  my enquiry I came to know that PW1 and his wife  parents of PW2 compelled her to marry her uncle’s  son. But PW2 refused and she had left the house  voluntarily. To suppress the mistake committed by  PW2, at the instance of my enemies after several  days a false case has been filed against me. The  evidence that PW11 arrested me along with PW2  at  Thiruverumbur  Police  colony  is  false.  I  was  staying in my village and they took me from my  house and foisted the case.   PW3 is  the sister’s  son of PW2 and, therefore, he is deposing falsely.  PW4 is the co-brother of PW1 and therefore, he is  giving  evidence  in  support  of  PW1.  PW6  is  the  close relative of PW2 and therefore, is giving false  evidence.”     

13.On consideration of  the oral and documentary evidence,  

the  trial  court  convicted  and  sentenced  the  accused  as  

7

noticed  in  the  opening  paragraph  of  the  judgment.  The  

conviction as well as the sentence have been maintained in  

appeals. Hence the present appeals.

14.We have heard the learned counsel for the parties.

15.The learned counsel  has submitted that the conclusions  

reached by both the Courts are perverse.  According to him  

the inconsistencies and contradictions in the evidence of  

the witnesses which have been ignored by both the courts  

would  destroy  the  very  root  and  foundation  of  the  

prosecution case. The High Court has even failed to take  

note  of  the  plea  raised  by  the  appellant  (A1)  in  the  

statement  under  Section  313  of  the  Criminal  Procedure  

Code.  Learned counsel submitted that this is a clear case  

of  false  implication.    The  prosecution  is  based  on  an  

imaginary  story.   The  witnesses  of  the  prosecution  are  

procured. They are all close relatives of PW1.  He submits  

that non appreciation of the evidence by the Courts below  

has resulted in miscarriage of justice.

16.Elaborating  his  submissions,  the  learned  counsel  then  

submitted  that  the  complaint  was  falsely  lodged  by  the  

8

father (PW1) of the girl (PW2) due to old enmity against A1.  

PW2  had  only  given  evidence  under  pressure  from  her  

father and her relatives. Learned counsel submitted that  

the prosecution has deliberately suppressed the true story  

which would clearly show that there was no incidence of  

abduction. The girl had run away from home as she was  

being compelled to marry one of her relatives. The entire  

abduction story is due to enmity because of a dispute over  

land.  According  to  the  learned  counsel,  the  prosecution  

has deliberately suppressed the material particulars which  

were  duly  narrated  by  the  prosecution  witnesses  

themselves. There was no question of any forced marriage  

between the victim and Sekar  (A1)  Learned counsel  has  

pointed  out  that  at  the  time  of  the  alleged  marriage,  

according to  the victim (PW2)  and Thangavel  (PW3),  the  

relatives of the victim were present. In their presence, there  

could  be  no  forced  marriage.  He  further  submitted  that  

had it  been a  case  of  abduction PW1,  the father  of  the  

victim,  would  not  have  waited  for  two  days  to  lodge  a  

complaint. Referring to the evidence of PW1, it is pointed  

out that he had stated that there was a panchayat held in  

the house of  the  local  MLA Palaniammal.  It  was on the  

9

direction of the Panchayat that the victim had decided to  

go  with  her  father.  Since  then  she  has  been  with  her  

parents.

17.The learned counsel has further pointed out that if Sekar  

(A1) had taken the victim to the police station, she would  

have  complained.  According  to  the  learned  counsel,  the  

truth of the matter is, which has been admitted by PW1 in  

his evidence, that the mother of the girl did not want her  

daughter to get married to her maternal uncle’s son. The  

entire  story  has been concocted  subsequent  to  the time  

when the panchayat  was held  in the house of  the local  

MLA. At that time, the police was present but PW1 did not  

demand that any one of the accused be arrested. Learned  

counsel submitted that a close scrutiny of evidence of the  

prosecution witnesses would show that deliberate efforts  

have been made to suppress the true version. In any event,  

there is no question of any abduction, forcible marriage or  

rape.

18.The  learned  counsel  for  the  State  submitted  that  the  

prosecution version is consistent. The trial court as well as  

the High Court, upon a thorough scrutiny of the evidence,  

10

have given concurrent conclusions about the abduction as  

well  as  rape.  Learned  counsel  further  submitted  that  

according to the father (PW1), the girl (PW2) was only 15  

years and 2 months old on 31st July, 1993. Therefore, all  

the  accused have rightly  been found to  be  guilty  of  the  

offences  under  Sections  366 and 376 read with  Section  

109 IPC.  He submits that in exercise of the powers under  

Article 136, this Court would normally not interfere with  

the concurrent findings recorded by the Courts below.  He,  

therefore, prayed that the appeal be dismissed.

19.We have considered the submissions made by the learned  

counsel  for  the  parties.   Before  we  embark  upon  an  

examination of the evidence, we may point out that even  

though the powers of this Court under Article 136 of the  

Constitution are very wide,  but in criminal appeals,  this  

Court would not interfere with the concurrent findings of  

facts, save in very exceptional cases.  In an appeal under  

Article  136  of  the  Constitution,  this  Court  does  not  

normally appreciate the evidence by itself and go into the  

question of credibility of witnesses.  The assessment of the  

evidence  by  the  High  Court  is  accepted  as  final  except  

where  the  conclusions  recorded  by  the  High  Court  are  

11

manifestly perverse and unsupportable by the evidence on  

record.  Keeping in view the aforesaid principles, we have  

examined the findings recorded by the Courts below.   

20. In  our  opinion,  there  is  much  substance  in  the  

submissions of the learned counsel for the appellant. The  

trial court as well as the High Court have failed to take into  

consideration  the  inherent  improbabilities  in  the  case  

sought to be projected by the prosecution. In our opinion,  

the  findings  recorded  by  both  the  Courts  below  are  

perverse and unsupportable by the evidence on record.  

21. In our opinion, the prosecution version has been distorted  

from beginning to  the end,  in  an effort  to  suppress  the  

actual  truth.   It  was  the  case  of  the  prosecution  that  

Sugavanam  had  seen  the  victim  being  abducted  

on 31st July, 1993. This fact was brought to the notice of  

the  father  (PW1)  of  the  victim  (PW2)  immediately.  

Sugavanam  had  been  told  about  the  abduction  on  the  

phone by Sekar (A1) himself.  The abduction was further  

confirmed by       Thangavel (PW3) about an hour later.  

According  to  PW1,  he  had  sent  his  relatives,  namely,  

Kuppusami, Athiappan, Velumani and Thangavel (PW3) in  

12

search  of  his  daughter.  But  he  did  not  go  with  them.  

According to this witness, these persons told him that his  

daughter could not be located. Therefore, on 2nd August,  

1993 he lodged a complaint with the police.

22.The subsequent events make the story of abduction wholly  

improbable. Sugavanam, who had informed the father of  

the abduction, was not examined in the Court.  It would be  

rather odd that Sekar would himself inform Sugavanam of  

the  abduction,  if  he  was  responsible  for  the  same.  

Further, PW1 admits that Sekar was not on visiting terms  

with the family of the girl.  There is no previous history of  

any  relationship  between  Sekar  and the  girl.   Even  the  

High  Court  concluded  that  there  was  no  familiarity  

between the two.   There  was no material  placed on the  

record to show that Sekar was involved with the girl.  Even  

in this court, no explanation was offered as to why Sekar  

would  want  to  marry  the  victim;  in  the  absence  of  any  

previous familiarity between the two.

23.There is no evidence to prove that the victim was forcibly  

taken in a car.  Neither the owner nor the driver of the car  

has been examined in the Court.  PW3 states that they had  

13

made enquiries  and had been told that  the car  used in  

abduction had gone towards Senthamangalam.  They had  

also hired a car to go after them.  None of these persons  

have been examined.    

24.Proceeding further, we notice that PW1 admits that all the  

relatives mentioned above are very close blood relations. In  

fact, Thangavel (PW3) is the son of his elder sister. In other  

words, PW3 is a cousin of the girl.  Athiappan is the son of  

his coparcener Kailasam. Palanivel is the brother-in-law of  

Murugesan.  Murugesan  is  the  son  of  Kailasam.  

Kuppusamy is the elder brother of  Velumani who is the  

son of his senior coparcener. Kumaravel is the grand son  

of the aunt of Kuppusami. These very close relatives, who  

were  almost  family  members,  had  told  PW1  that  his  

daughter could not be located. But surprisingly, these very  

relatives,  according  to  PW2,  were  present  at  the  temple  

just before the marriage. Although, the victim (PW2) knew  

that if she was in trouble they would come forward to help  

her,  she did not raise any alarm. The presence of  these  

blood relatives is also confirmed by Thangavel (PW3).  He  

stated that even though these relatives were present at the  

marriage,  they  could  not  prevent  the  forced  marriage.  

14

Knowing  fully  well  that  the  victim  (PW2),  was  being  

compelled to marry Sekar (A1), they did not send someone  

to the police station with the necessary complaint.   

25.The  presence  of  the  relatives  at  the  alleged  wedding  is  

confirmed by Thangavel (PW3).   He has stated that they  

could not find the girl (PW2) or Sekar (A1) in Rasipuram.  

But the search party was told on enquiry that Sekar (A1)  

and  the  girl  (PW2)  had  gone  in  a  car  towards  

Santhamangalam.  Therefore,  Thangavel  (PW3)  and  his  

relatives  also  hired  a  car  and  reached  Arapaleeswar  

Temple. But since none of the accused were present, they  

decided to stay the night in the temple itself. He further  

stated that they had suspected that the marriage will take  

place in the morning,  therefore,  they had waited till  the  

morning.  This  witness  also  stated  that  he  informed  his  

uncle about the marriage on 2nd August, 1993.

26.PW1 admits that he had been told that his daughter (PW2)  

had been abducted by Sekar (A1).  The distance between  

the house of Sekar (A1) and the house of PW1 was only one  

kilometer. He also admits that Sekar (A1) is a local boy but  

is  not  related  to  him.  He  had  received  the  information  

15

about the alleged abduction on 31st July, 1993. He did not  

go to the house of Sekar (A1) to complain to his mother. He  

also did not go to the police station. Even the complaint  

with  the  police  was  registered  only  at  6.00  p.m.  on  2nd  

August, 1993. In his cross-examination, he reiterated that  

his  relatives  had  gone  to  the  neighbouring  village  and  

searched but were not able to locate his daughter. From  

the evidence of  this  witness,  it  becomes quite clear that  

there  was  a  dispute  between  the  husband  and wife  i.e.  

mother and father of the victim (PW2) about the proposed  

marriage of the girl.  Chinnathambi (PW1) states that he  

did  not  want  his  daughter  to  get  married at  all  till  she  

completes  higher  studies.  He wanted her to  get  married  

only after she had become a teacher like himself. On the  

other hand, his wife had thought that her daughter (PW2)  

should be married to the son of Kuppusami, her maternal  

uncle’s  son.   The  girl  (PW2)  did  not  want  to  marry  her  

cousin.

27.Taking  the  aforesaid  evidence  into  consideration,  one  

cannot rule out the possibility that the victim girl had run  

away from her  parental  house.  This  is  further  apparent  

from the  statement  of  PW1 himself.  He  had stated  that  

16

soon after the incident a panchayat was held in the house  

of Rasipuram MLA, Palaniammal. At that meeting, his wife  

and his daughter were also present. But, in his anxiety to  

deny that his  daughter had agreed to go back home on  

asking  of  MLA,  he  made  a  very  relevant  disclosure.  He  

stated that “My daughter was asked to  talk with myself  

and wife separately in a room for one hour. After the lapse  

of one hour my daughter told me that she will accompany  

me  and  we  also  brought  her.”  This  statement  itself  is  

indicative of the fact that disappearance of his daughter for  

few  days  may  not  have  been  the  responsibility  of  the  

accused persons. Otherwise, it would not have taken over  

one hour to convince the girl to return home.

28.The testimony of PW1 in fact makes it further clear that  

the  whole  prosecution  version  has  been  concocted  to  

falsely implicate the accused. This witness had admitted  

that the police had arrived on 3rd August,  1993.  During  

that time, Sekar (A1) was also present but no demand was  

made  for  his  arrest  at  all.  He  also  stated  that  all  the  

accused were also present, he did not ask for the arrest of  

those accused also. No complaint was made to the police at  

17

that stage that any of the accused persons were involved in  

any  incident  of  abduction.  In  fact  he  made  another  

startling disclosure where he states that “till date I am not  

aware as to what happened to Thangamani. On 3rd August,  

1993 either myself or any other witness had not furnished  

any  information  against  the  accused  to  the  police.”  

According to this witness, the victim, has been with her  

family  since 3rd August,  1993.  He went on to state  that  

after  3rd August,  1993 the police  did not undertake any  

further enquiry.

29.Even the testimony given by PW2 also seems to be wholly  

unreliable and contrary to the evidence of PW1.  According  

to her, she was walking towards her house and she was  

being followed by Sekar (A1).  He had told her that he liked  

her and wanted to marry her. She simply told him to go  

away and continued to walk towards the house. There was  

a  car  parked  near  the  house  of  Sekar’s  mother’s  elder  

sister.  She  then  narrates  the  story  as  to  how  she  was  

pushed into the car. She stated that she had dropped her  

books on the road but,  surprisingly though the car was  

parked in front of Sekar’s aunt’s house, no one found the  

books.  

18

30.She  then  states  that  when  she  was  being  taken  to  the  

temple,  she  saw  some  known  persons  standing  at  a  

distance. But she did not yell  out for help. According to  

her, Sekar (A1) had raped her on three consecutive days,  

i.e., 1st, 2nd and 3rd of August at Mullukurichi.  On 4th of  

August  she  was  taken  to  Palampatti.  However,  on  5th  

August, 1993 when Sekar (A1) received the news that the  

police was looking for her, she was taken to Tiruchy police  

station.  There  he  had  told  the  police  that  they  were  

married. She again did not complain; nor did seek help to  

be  returned  home.  Thereafter,  on  10th August,  1993  

Rasipuram  Circle  Inspector  (PW11)  had  arrived  and  

arrested Sekar (A1). It was only after that she was left with  

her parents.  On the other hand, as noticed earlier, father  

states that she has been at home with her parents since 3rd  

August, 1993.  This in our opinion leads to an inescapable  

conclusion that the versions of the father and the girl are  

in sharp contrast, if not contradictory to each other.  

31.She had further stated that during the night                of  

10th August, 1993, she had narrated the entire sequence of  

events  to  the  police.  The  police  had  also  given  her  

19

alternative  clothing  to  wear  and  taken  her  clothes  in  

possession. According to the victim herself, even after she  

was recovered on the 10th August, 1993, she did not go to  

the house of her parents, instead she went to the house of  

her  senior  paternal  uncle  situated  at  Thengalpalayam.  

Therefore, it becomes increasingly difficult to place reliance  

on any one of the prosecution witnesses.

32.Talking  about  her  alleged  forced  stay  in  the  house  at  

Pudupatti, again she was unable to state whether it was  

thatched house or terraced house. She was also unable to  

state as to whether the door of the room in which she was  

kept could be locked only from outside or from inside. In  

the same breath, she says that she remained in the room  

by locking it from inside. But again she changed her mind  

and said that the door was not locked but it was closed.  

She talks of one Rangasamy being present. But then she  

says that there were two individuals by that name, one old  

and  one  young.  But  she  did  not  give  any  of  their  

particulars to the police, as the police did not ask for them.  

Yet she claims that both the Rangasamy had taken her to  

the temple. But then she says to the police that only one  

Rangasamy took her.

20

33.Now  coming  to  the  marriage,  she  reiterates  that  some  

known persons were present at the temple but on seeing  

them  she  did  not  raise  any  alarm.  She  admits  that  

Kuppusami,  Velumani,  Athiappan,  Thangavel  and  

Palaniammal are her close relatives. She also admits that if  

she had told them that she was in trouble they would have  

helped her. But she did not complain to her relatives. This  

would be wholly unnatural behaviour from a girl who had  

been  abducted  and  was  being  compelled  to  marry  

someone, she did not want to marry.

34.The scene after the alleged marriage is equally blurred. The  

girl denies ever going to the house of MLA on 3rd August,  

1993.  She was not  aware that any panchayat  had been  

held in his house on that day. She also states that she did  

not go to the house of her father on 3rd August, 1993. She  

further denies that she had ever narrated the events that  

had occurred between 31st July, 1993 to 10th August, 1993  

to her parents.

35. In our opinion, the trial court as well as the High Court  

had  failed  to  bestow  proper  attention  on  the  inherent  

improbabilities  contained  in  the  evidence  of  the  prime  

21

witnesses of the prosecution. Both the courts below had  

failed to notice that the prosecution did not even care to  

produce any witness from the temple where the marriage  

has been allegedly solemnized. No cogent reason has been  

given as to why the ‘Pujari’  of the Temple or some other  

office bearer could not have been summoned.   

36. In our opinion, the entire story about the abduction by car  

and the forced marriage seems to have been concocted to  

falsely  implicate  all  the accused under Section 366 IPC.  

There is no reliable evidence to support the conviction of  

Sekar, or the accused relatives of Sekar, for the offence of  

abduction under Section 366 IPC. Possibility  can not be  

ruled out of the father, PW1 suspecting that his daughter  

was romantically involved with Sekar.  Therefore, when she  

disappeared  from  home,  Sekar  was  presumed  to  be  

responsible  for  it.   Hence  the  false  story  of  abduction.  

Even  in  the  face  of  the  wholly  unreliable  evidence,  as  

noticed  above,  both  the  Courts  have  convicted  all  the  

accused under Section 366 and 376 IPC.  The High Court,  

in our opinion, committed a grave error in confirming the  

conviction  of  the  accused/appellants  under  Section  366  

IPC.  

22

37.We may now take up the issue of Sekar’s conviction under  

Section 376 IPC. Whilst upholding the conviction of Sekar  

under Section 376 IPC, the High Court has held that the  

girl  would not have voluntarily gone with Sekar.   It  has  

also been held that she was not a major at the relevant  

time.  In our opinion, both the conclusions recorded by the  

High Court are contrary to the evidence on record.   

38.We will first take up the issue with regard to the age of the  

girl.   The  High  Court  has  based  its  conclusion  on  the  

transfer  certificate,  Ex.P16 and  the  certificate  issued  by  

PW8  Dr.  Gunasekaran,  Radiologist,  Ex.P4  and  Ex.P5.  

Undoubtedly, the transfer certificate, Ex.P16 indicates that  

the girl’s  date of  birth was 15th June,  1977.   Therefore,  

even according to the aforesaid certificate,  she would be  

above 16 years of age (16 years 1 month and 16 days) on  

the date of the alleged incident, i.e., 31st July, 1993. The  

transfer  certificate  has  been  issued  by  a  Government  

School  and  has  been  duly  signed  by  the  Headmaster.  

Therefore,  it  would  be  admissible  in  evidence  under  

Section  35  of  the  Indian  Evidence  Act.   However,  the  

admissibility of such a document would be of  not much  

23

evidentiary value to prove the age of the girl in the absence  

of the material on the basis of which the age was recorded.  

The  date  of  birth  mentioned  in  the  transfer  certificate  

would have no evidentiary value unless the person, who  

made the entry or who gave the date of birth is examined.  

We may notice here that PW1 was examined in the Court  

on 9th August, 1999.  In his evidence, he made no reference  

to the transfer certificate (Ex.P16).  He did not mention her  

age  or  date  of  birth.   PW2  was  also  examined  on  9th  

August, 1999.  She had also made no reference either to  

her age or to the transfer certificate.  It appears from the  

record that a petition was filed by the complainant under  

Section  311  Cr.P.C.  seeking  permission  to  produce  the  

transfer certificate and to recall  PW2.  This petition was  

allowed.  She was actually recalled and her examination  

was continued on 26th April, 2000.  The transfer certificate  

was marked as Ex.P16 at that stage, i.e., 26th April, 2000.  

The judgment was delivered on 28th April,  2000.  In her  

cross-examination,  she  had  merely  stated  that  she  had  

signed  on  the  transfer  certificate,  Ex.P16  issued  by  the  

School and accordingly her date of  birth noticed as 15th  

June, 1977.  She also stated that the certificate has been  

24

signed by the father as well as the Headmaster.  But the  

Headmaster  has  not  been  examined.   Therefore,  in  our  

opinion, there was no reliable evidence to vouchsafe for the  

truth of the facts stated in the transfer certificate.   

39.Considering the manner in which the facts recorded in a  

document may be proved, this Court in the case of  Birad  

Mal Singhvi Vs.  Anand Purohit  1  , observed as follows:-

“The  date  of  birth  mentioned  in  the  scholars’   register has no evidentiary value unless the person  who made the entry or who gave the date of birth   is examined………………………………………………… ………………………………………………………………. Merely because the documents Exs. 8, 9, 10, 11,  and 12 were  proved,  it  does  not  mean that  the  contents  of  documents  were  also  proved.  Mere  proof of the documents Exs. 8, 9, 10, 11 and 12  would not tantamount to proof of all the contents  or the correctness of  date of  birth stated in the  documents.  Since  the truth  of  the  fact,  namely,  the  date  of  birth  of  Hukmi  Chand  and  Suraj  Prakash  Joshi  was  in  issue,  mere  proof  of  the  documents  as  produced  by  the  aforesaid  two  witnesses does not furnish evidence of the truth of  the facts or contents of the documents.  The truth   or otherwise of the facts in issue, namely, the date   of birth of the two candidates as mentioned in the   documents could be proved by admissible evidence  i.e.  by  the  evidence  of  those  persons  who  could  vouchsafe  for  the  truth  of  the  facts  in  issue. No  evidence of  any such kind was produced by the  respondent to prove the truth of the facts, namely,  the  date  of  birth of  Hukmi Chand and of  Suraj  Prakash Joshi.  In  the circumstances the dates  of   birth  as  mentioned  in  the  aforesaid  documents   

1 1988 (Supp) SCC 604

25

have no probative value and the dates of birth as  mentioned therein could not be accepted.”

The same proposition of law is reiterated by this Court in the  

case of  Narbada Devi Gupta Vs.  Birendra Kumar Jaiswal  2  ,  

where this Court observed as follows:-

“The  legal  position  is  not  in  dispute  that  mere  production and marking of a document as exhibit  by the court cannot be held to be a due proof of its  contents.  Its  execution  has  to  be  proved  by  admissible  evidence,  that is,  by the “evidence of  those persons who can vouchsafe for the truth of  the facts in issue”.”

40. In our opinion, the aforesaid burden of proof has not been  

discharged by the prosecution.   The father says nothing  

about  the  transfer  certificate  in  his  evidence.   The  

Headmaster has not been examined at all.  Therefore, the  

entry in the transfer certificate can not be relied upon to  

definitely fix the age of the girl.   

41. In fixing the age of the girl  as below 18 years, the High  

Court  relied  solely  on  the  certificate  issued  by  PW8  

Dr. Gunasekaran.  However, the High Court failed to notice  

that  in  his  evidence  before  the  Court,  PW8,  the  X-ray  

Expert had clearly stated in the cross-examination that on  

the basis of the medical evidence, generally, the age of an  

2 (2003) 8 SCC 745

26

individual  could  be  fixed  approximately.  He  had  also  

stated  that  it  is  likely  that  the  age  may  vary  from  

individual to individual.  The doctor had also stated that  

in  view  of  the  possible  variations  in  age,  the  certificate  

mentioned  the  possible  age  between  one  specific  age  to  

another specific age.  On the basis of the above, it would  

not  be  possible  to  give  a  firm opinion that  the girl  was  

definitely  below 18 years  of  age.   In  addition,  the  High  

Court failed to consider the expert evidence given by PW13  

Dr. Manimegalaikumar, who had medically examined the  

victim.   In  his  cross-examination,  he  had  clearly  stated  

that a medical examination would only point out the age  

approximately with a variation of two years.  He had stated  

that in this case, the age of the girl could be from 17 to 19  

years.   This  margin  of  error  in  age  has  been  judicially  

recognized  by  this  Court  in  the  case  of  Jaya  Mala Vs.  

Home Secretary, Government of Jammu & Kashmir &  

Ors.  3  ,  In the aforesaid judgment, it is observed as follows:-

“……However,  it  is  notorious  and  one  can  take  judicial  notice  that  the  margin  of  error  in  age  ascertained  by  radiological  examination  is  two  years on either side.”

3 (1982) 2 SCC 538

27

42.We are of the opinion, in the facts of this case, the age of  

the  girl  could  not  have  been  fixed  on  the  basis  of  the  

transfer  certificate.   There  was  no  reliable  evidence  to  

vouchsafe the correctness of the date of birth as recorded  

in the transfer certificate.   The expert evidence does not  

rule out the possibility of the girl being a major.  In our  

opinion, the prosecution has failed to prove that the girl  

was a minor, at the relevant date.    

43.We may further notice that even with reference to   Section  

35 of the Indian Evidence Act, a public document has to be  

tested by applying the same standard in civil  as well  as  

criminal  proceedings.   In  this  context,  it  would  be  

appropriate to notice the observations made by this Court  

in the case of Ravinder Singh Gorkhi Vs.  State of U.P.  4    

held as follows:-

“The  age  of  a  person  as  recorded  in  the  school  register  or  otherwise  may  be  used  for  various  purposes,  namely,  for  obtaining  admission;  for  obtaining an appointment; for contesting election;  registration of marriage; obtaining a separate unit  under the ceiling laws; and even for the purpose of  litigating  before  a  civil  forum  e.g.  necessity  of  being represented in a court of law by a guardian  or  where  a  suit  is  filed  on the  ground that  the  plaintiff  being a minor he was not  appropriately  represented therein  or  any transaction made on  his behalf was void as he was a minor. A court of  law for  the  purpose  of  determining  the  age  of  a  

4 (2006) 5 SCC 584

28

party to the lis, having regard to the provisions of   Section 35 of the Evidence Act will  have to  apply   the same standard.  No different standard can be  applied  in  case  of  an  accused  as  in  a  case  of   abduction  or  rape,  or  similar  offence  where  the   victim  or  the  prosecutrix  although  might  have  consented with the accused, if on the basis of the   entries  made  in  the  register  maintained  by  the   school,  a  judgment  of  conviction  is  recorded,  the   accused  would  be  deprived  of  his  constitutional   right under Article 21 of the Constitution, as in that   case the accused may unjustly be convicted.”

44. In such circumstances, we are constrained to hold that the  

High Court without examining the factual and legal issues  

has unnecessarily rushed to the conclusion that the girl  

was a minor at the time of the alleged abduction.  There is  

no satisfactory evidence to indicate that she was a minor.

45.The High Court concluded that even if one was to exclude  

the evidence given by PW3, the conviction for abduction  

and rape by Sekar could be recorded on the sole evidence  

of  PW2.  Undoubtedly,  the testimony of  victim of  sexual  

assault stands at par with testimony of an injured witness,  

and is entitled to great weight. Therefore, corroboration for  

the  testimony of  the  victim would  not  be  insisted  upon  

provided  the  evidence  does  not  suffer  from  any  basic  

infirmities  and  the  probability  factors  do  not  render  it  

unworthy  of  credence.   This  Court  in  Rameshwar Vs.  

29

State of Rajasthan  5   declared that corroboration is not the  

sine  qua  non  for  a  conviction  in  a  rape  case.   In  the  

aforesaid  case,  Vivian  Bose,  J.  speaking  for  the  Court  

observed as follows:-

“The  rule,  which  according  to  the  cases  has  hardened into one of law, is not that corroboration  is essential before there can be a conviction but  that the necessity of corroboration, as a matter of  prudence, except where the circumstances make it  safe to dispense with it,  must be present to the  mind of the judge, … The only rule of law is that  this rule of prudence must be present to the mind  of the judge or the jury as the case may be and be  understood  and  appreciated  by  him  or  them.  There  is  no rule  of  practice  that  there  must,  in  every  case,  be  corroboration  before  a  conviction  can be allowed to stand.”  

The aforesaid proposition of law has been reiterated by this  

Court  in  numerous  judgments  subsequently.  These  

observations leave no manner of doubt that a conviction can  

be recorded on the sole, uncorroborated testimony of a victim  

provided  it  does  not  suffer  from  any  basic  infirmities  or  

improbabilities which render it unworthy of credence.

46. In our opinion, the evidence of PW2 does not satisfy the  

aforesaid test.  The High Court erroneously concluded that  

the girl had not willingly gone with Sekar. The conclusion  

5 (1952) SCR 377

30

could only be recorded by ignoring the entire evidence with  

regard  to  the  conduct  of  the  girl  from  the  time  of  the  

alleged abduction till the time of the alleged recovery. We  

have noticed earlier that she did not make any complaint  

on so many occasions when she had the opportunity to do  

so.  We may, however, notice that even after the alleged  

marriage, the girl continued to be a willing partner in the  

entire episode.  Even if the prosecution version is accepted  

in  its  totality,  it  would  be  established  that  the  girl  was  

staying  with  Sekar  (A1)  from  31st July,  1993  till  10th  

August, 1993.  Even PW5, Thiru Thirunavukarasu stated  

that Sekar (A1) had brought the girl with him to his house  

and told him that he had married her.  They had come to  

see Trichy and requested a house to stay.  This witness  

categorically stated that he thought that they were newly  

married couple.  He had made them stay in door no. 86 of  

the Police Colony, which was under his responsibility.  On  

10th August, 1993, the police inspector, who arrived there  

at 10.00 p.m. told this witness that       Sekar (A1) had  

married the girl by threatening her and “spoiled her”.  The  

girl, according to the prosecution, was recovered from the  

aforesaid premises.  Therefore, for six days, this girl was  

31

staying with Sekar (A1).   She did not raise any protest.  

She did not even complain to this  witness or any other  

residents in the locality. Her behavior of not complaining to  

anybody at any of the stages after being allegedly abducted  

would be wholly unnatural.   Earlier also, she had many  

opportunities to complain or to run away, but she made no  

such effort.  It is noteworthy that she made no protest on  

seeing some known persons near the car, after her alleged  

abduction.   She  did  not  make  any  complaint  at  the  

residence of Selvi, sister of Sekar (A1) at Pudupatti.  Again,  

there was no complaint  on seeing her relatives allegedly  

assembled at the temple.  Her relatives apparently took no  

steps  at  the  time  when  mangalsutra  was  forcibly  tied  

around her neck by Sekar (A1).  No one sent for police help  

even though a car was available.  She made no complaint  

when  she  was  taken  to  the  house  of  PW5,  Thiru  

Thirunavukarasu and stayed at  his  place.   Again,  there  

was  no  protest  when  Sekar  (A1)  took  her  to  the  police  

station on 5th day of the alleged abduction and told at the  

Tiruchi Police Station that they had already been married.  

The above behaviour would not be natural for a girl who  

had been compelled to marry and subjected to illicit sexual  

32

intercourse.

47. In view of the aforesaid, we are of the considered opinion  

that the prosecution has failed to prove beyond reasonable  

doubt any of the offences with which the appellants had  

been charged. It appears that the entire prosecution story  

has  been  concocted  for  reasons  best  known  to  the  

prosecution.  

48. In  our  opinion,  the  conclusions  recorded  by  both  the  

courts  below  are  wholly  perverse.  The  appellants  are  

clearly entitled to the benefit of doubt. In view of the above,  

the appeals are allowed. All the appellants are acquitted.  

They are directed to be released forthwith.     

……………………………..J.                          [B.Sudershan Reddy]

…...…………………………..J.               [Surinder Singh Nijjar]

New Delhi January 18, 2011.           

33