MURUGAN @ SETTUversusSTATE OF TAMIL NADU

                    (2011] 5 S.C.R. 1189


                   MURUGAN @ SETTU                                 A
                               v.
                  STATE OF TAMIL NADU
             (Criminal Appeal No. 455 of 2004)
                        MAY 06, 2011
                                                                   B
    [P. SATHASIVAM AND DR. B. S. CHAUHAN, JJ.]

     Penal Code, 1860- ss. 366, 376 ands. 363 rlw s. 109-
Punishment for kidnapping and rape - A 1 allegedly
kidnapped PW 4, compelled her to marry him and raped her           C
- A2 and A3 were allegedly involved in compelling PW 4 to
get married to A 1 - Concurrent findings by the courts below
that PW 4 was.
                 minor on the date of the incident - Trial
                                                        '
                                                           court
convicted A 1 u/ss. 366 and 376 and sentenced him to
rigorous imprisonment for 3 and 7 years; and A2 and A3 u/s.        D
3661109 and sentenced them to 3 years rigorous
imprisonment each - High Court upheld conviction and
sentence of A 1, however, modified that of A2 and A3 to s. 3631
109 and sentenced them to two years imprisonment each -
Plea of appellants (A 1, A2 and A3) before Supreme Court that      E
PW 4 was major at the relevant time and that she married A 1
voluntarily and not under compulsion - On appeal, held:
School certificate issued by the Headmaster on basis of the
entry made in the school register corroborates the contents
of the birth certificate issued by Municipality that prosecutrix   F
was minor on the date of the incident - Thus, no other issue
required to be considered - Order of conviction and sentence
passed by the High Court does not call for interference -
Evidence Act, 1872 - s. 35

     According to the prosecution, appellant (A1) G
kidnapped PW-4, compelled her to marry him and raped
her. A2 and A3 were allegedly involved in compelling PW-
4 to get married with the appellant. The trial court holding

                             1189                                  H
    1190    SUPREME COURT REPORTS               [2011] 5 S.C.R.


A that PW-4 was minor on the date of the incident, convicted
  the appellant under Sections 366 and 376 IPC and
  awarded the sentence of rigorous imprisonment for 3 and
  7 years; and A2 and A3 under Sections 366/109 IPC and
  were sentenced for 3 years rigorous imprisonment each.
B The High Court upheld the order of conviction and
  sentence of A 1. The conviction of A2 and A3 under
  Sections 366/109 IPC was modified to one under Sections
  363/109 IPC and imposed punishment of two years each.
  Therefore, the appellants filed the instant appeals.
c       Dismissing the appeals, the Court

       HELD: 1. Documents made ante /item motam can be
  relied upon safely, when such documents are admissible
  under Section 35 of the Evidence Act, 1872. [Para 11]
D [1199-D-E]

         Umesh Chandra v. State of Rajasthan AIR 1982 SC
    1057; State of Bihar and Ors. v. Sri Radha Krishna Singh and
    Ors. AIR 1983 SC 684 - relied on.

E     Mohd. lkram Hussain v. State of U.P. and Ors. AIR 1964
  SC 1625; Madan Mohan Singh and Ors. v. Rajni Kant and
  Anr. AIR 2010 SC 2933; Brij Mohan Singh v. Priya Brat
  Narain Sinha and Ors. AIR 1965 SC 282; Birad Mal Singhvi
  v. Anand Purohit AIR 1988 SC 1796; Updesh Kumar and
F Ors. v. Prithvi Singh and 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 - referred to.

G      2.1. PW-1, father of the prosecutrix (PW-4) in his
  examination-in-chief did not say anything about the age
  of the prosecutrix. Thus, the defence did not cross-
  examine him on this i~sue. However, no suggestion were
  put to him by the defence that the prosecutrix was major
H and had developed a liking/love affair with A.1 and had
  MURUGAN@ SETTU v. STATE OF TAMIL NADU 1191


voluntarily gone with him. PW-15, mother of the A
prosecutrix had deposed .that the date of birth of the
prosecutrix was 30.3.1984. At the relevant time, the
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 B
of the prosecutrix was denied. She also denied that she
was deposing falsely. PW-11, Head Mistress of the
School proved the certificate and stated that in the school
register the date of birth of the prosecutrix had been
recorded as 30.3.1984. [Paras 5 and 7] [1196-0-E; 1197- c
F-H; 1198-A-B]

     2.2. It is evident from a letter written by the
prosecutrix to the police officer that she 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         0
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       E
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. [Para 9]
 [1198-F-G]
                                                                 F
     2.3. 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                G
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               H
    1192    SUPREME COURT REPORTS                [2011] 5 S.C.R.

A   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 PW.15,
    the mother of the prosecutrix. She had been cross
s   examined at length but nothing could be elicited to doubt
    her testimony. Her deposition remained un-shaken and
    is fully reliable. [Para 13) [1200-B-E]

         2.4 There is no reason to hold that the prosecutrix
    was major on the date of incident and in view thereof, no
c   other issue is required to be considered. There is no
    reason to interfere with the quantum of punishment in
    either of these appeals. [Para 14) [1200-F]
                       Case Law Reference:
D       AIR 1964 SC 1625          Referred to.         Para 10
        AIR 1982 SC 1057          Relied on.           Para 11
        AIR 1983 SC 684           Relied on.           Para 11
E       AIR 2010 SC 2933          Referred to.         Para 12
        AIR 1965 SC 282           Referred to.         Para 12
        AIR 1988 SC 1796          Referred to.         Para 12
        AIR 2001 SC 703           Referred to.         Para 12
F
        AIR 2005 SC 1868          Referred to.         Para 12
        AIR 2006 SC 508           Referred to.         Para 12
        (2010) 8 sec 714          Referred to.         Para 12
G
        CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No. 455 of 2004.
      From the Judgment & Order dated 14.7.2003 of the High
  Court of Judicature at Madras in Criminal Appeal No. 981 of
H 2002.
  MURUGAN@ SETTU v. STATE OF TAMIL NADU                   1193


                            WITH                                   A
Crl. A.Nos. 456 & 457 of 2004.
    G. Sivabalamurugan, Anis Mohd, L.K. Pandey, Rakesh K.
Sharma, S. Thananjayan for the appearing parties.
    The Judgment of the Court was delivered by                     B

     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          c
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
                                                                   0
(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.
                                                                   E
    2.FACTS :
      (A) The prosecution case reveals that on 11.2.1998 at 9.00
AM., 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               F
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 al~o informed about the said facfto her classmate
P. Megala (P'f'.6).                                                G
     (B) Shan~ari (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.
                                                                   H
    1194    SUPREME COURT REPORTS                [2011) 5 S.C.R.


A      (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.
B 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 @
C 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
D 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 Vijayalakshmi (PW.12).
       (E) As there had been an FIR in respect to the fact that
E 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,
F 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
G 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.
H       (G) After completing the investigation, charge sheet was
  MURUGAN @ SETTU v. STATE OF TAMIL NADU                     1195
          [DR. B. S. CHAUHAN, J.]

submitted. Subsequently, the trial court framed the charges           A
against A.1 under Sections 366 and 376 IPC and so far as A.2
and A.3 were 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.                                                 B
     (H) In support of its case, the prosecution examined 21
witnesses and 12 documents were exhibited and marked. Five
propeities 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,     C
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                D
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.                                          E
     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 appreciate that Shankari (PW.4) had gone voluntarily with A.1
                                                                      F
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        G
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.               H
    1196     SUPREME COURT REPORTS                   [2011] 5 S.C.R.


A   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.
B       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 the age of the prosecutrix Shankari (PW.4), to the
C 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
D 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.

E        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.
                I
        6. Age as per the documents :
F
        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
G        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
H Registration of Birth and Deaths Act, 1969, issued by the
  MURUGAN@ SETTU v. STATE OF TAMIL NADU                      1197
         [DR. B. S. CHAUHAN, J.]

Commissioner, Kancheepuram Municipality reads as under:               A
    Name                            ............. .
    Date of Birth                 - 30.3.1984
    Date of Registration          -5.4.1984
                                                                      B
    Sex                           - Female
    Registration No.              - 140
    Name of father                - M.P. Ekambaram
    Name of Mother                 - Parimala                         c
    Ill. The date of birth certificate issued by the Head Master,
S.S.K.V. Higher Secondary Sctiool, Kancheepuram reads as
under:
         "Certified that E. Shankari D/o M.P. Ekambaram               D
    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          E
(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             F
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 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.                                            G
     II. Parimala (PW.15), mother of the pro~ec~trix 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           H
    1198    SUPREME COURT REPORTS                   [2011) 5 S.C.R.


A   deposing about the age of her younger daughter and not of
    ~hankari (PW.4) was denied. She also denied that she was
    deposing falsely.
      Ill. Mrs. Gayathri (PW.11), Head Mistress, SSKV School,
  proved the certificate and stated that in the school register the
B date of birth of Shankari (PVl/.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:
C             "I am in love with Murugan for the past 1 Y:i 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
D       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
E       and police would be responsible.
                                                      Sd/- Shankari"
       9. It is evident from the aforesaid documents that
  prosecutrix Shankari (PW.4) had developed a love affair with
F 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,
G 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. lkram Hussain v. State of U.P. & Ors., AIR
H 1964 SC 1625, this Court had an occasion to examine a similar
  MURUGAN @ SETTU v. STATE OF TAMIL NADU                  1199
          [DR. B. S. CHAUHAN, J.]

issue and held as under:                                           A
    "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      8
    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
    /item motam. As against this the learned Judges
    apparently held that Kaniz Fatima was over 18 years of         C
    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."          D
     11. Documents made ante /item 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         E
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 F
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; Satpa/ Singh v. State of G
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
                                                                   H
    1200     SUPREME COURT REPORTS                     [2011] 5 S.C.R.


A   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;
B   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
C   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
D   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.
E   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
F   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
G to serve the remaining part of the sentences, failing which the
  Chief Judicial Magistra1e, 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 complian_ce.

H N.J.                                            Appeals dismissed.