Jibi v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 CRL.A NO. 362 OF 2018** **CRIME NO.386/2016 OF NORTH PARAVUR POLICE STATION, ERNAKULAM** **AGAINST THE JUDGMENT DATED 06.01.2018 IN SC NO.397 OF 2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM APPELLANTS/FIRST ACCUSED:** **JIBI AGED 29 YEARS** **S/O.BABY, AANATHUPARAMBU HOUSE, KIZHAKKUMPURAM KARA, CHENDAMANGALAM KARA, CHENDAMANGALAM VILLAGE.** **BY ADVS. P.MOHAMED SABAH SAIPOOJA** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADV. SMT.AMBIKA DEVI S, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2024, THE COURT ON 06.03.2024 DELIVERED THE FOLLOWING:** 2 Criminal Appeal No.362 of 2018 ## **P.B.SURESH KUMAR & JOHNSON JOHN, JJ. -----------------------------------------------** ## **Crl.Appeal No.362 of 2018** ## **-----------------------------------------------** ## **Dated this the 6[th] day of March, 2024** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The first among the two accused in S.C.No.397 of 2016 on the files of the Additional Sessions Court, Ernakulam is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Section 376(2)(i) of the Indian Penal Code (IPC) and Section 3(a) read with Section 5(j)(ii) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 2. The victim in the case is allegedly a girl aged 14 years. The second accused in the case is none other than the mother of the victim. The second accused was though charged for the offences punishable under Sections 109 read with 376(i) IPC, Section 212 IPC, Sections 17 read with 5(j)(ii) 3 Criminal Appeal No.362 of 2018 and 6 of the POCSO Act and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, she was acquitted of the charges. 3. The accusation in the case as in the final report is that the first accused who is married to another and has three children, had an illicit relationship with the second accused; that on account of the said illicit relationship, the second accused had to live separately from her husband along with the victim and that while the second accused was living so, on a day during the first week of October 2015, the first accused had sexual intercourse with the victim and impregnated her, with the consent of the second accused and with the knowledge that the victim was a minor. 4. The Special Court took cognizance of the offences alleged in the final report and issued summons to the accused. On the appearance of the accused, after complying with the procedural formalities, charges were framed against the accused, to which they pleaded not guilty. Thereupon, the prosecution examined 19 witnesses as PWs 1 to 19 and proved through them as many as 16 documents as Exts.P1 to P16. On 4 Criminal Appeal No.362 of 2018 the closure of the evidence of the prosecution, when the first accused was questioned under Section 313 of the Code of Criminal Procedure (the Code), the stand taken by him was that the victim wanted to marry him when his wife left his company and the marriage did not take place since his mother did not permit him to marry the victim then. It was also the stand of the first accused that later, the mother of the victim was sent away by the father of the victim from his house and that the first accused had to provide a rented house to the victim and her mother to reside. According to the first accused, that was the only connection he had with the victim and that he did not commit the offences as alleged. It was also the stand of the first accused that the case was filed as he refused to pay Rs.10,00,000/- to the parents of the victim when demanded. 5. Inasmuch as the Special Court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence and in response to the same, the first accused himself gave evidence as DW1 and the mother of the first accused gave evidence as DW2. In addition, the Headmistress of the School where the Criminal Appeal No.362 of 2018 5 victim pursued her studies from third standard onwards was examined as DW3. 6. As DW1, the first accused deposed almost in tune with the statement given by him at the stage of questioning under Section 313 of the Code. However, in crossexamination, the first accused admitted that he had sexual intercourse with the victim on the date alleged in the case. The evidence given by DW2, the mother of the first accused was that it is on account of the relationship the victim had with the first accused, his matrimony failed and that the case was filed since the first accused failed to pay Rs.10,00,000/- demanded by the parents of the victim. 7. On a consideration of the evidence on record, the Special Court found the first accused guilty of the offences referred to above and convicted him. He was, however, imposed a sentence, in the light of Section 42 of the POCSO Act, only for the offence punishable under Section 376(2)(i) IPC and the sentence imposed was imprisonment till the remainder of his life. The first accused is aggrieved by his conviction and sentence. 6 Criminal Appeal No.362 of 2018 8. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 9. The learned counsel for the first accused submitted that the materials on record would indicate beyond doubt that the sexual intercourse, if any, between the first accused and the victim, was consensual and therefore, the crucial point is as to whether the prosecution has established beyond reasonable doubt that the victim was a child when the alleged occurrence took place. It was argued by the learned counsel that the only evidence let in by the prosecution is Ext.P6, the extract of the School Admission Register of the victim. Ext.P6 recites that the date of birth of the victim is 07.08.2001. But, according to the learned counsel, Ext.P6 being one not produced from the School in which the victim first attended for studies, the same is not admissible in evidence, even in accordance with the Juvenile Justice (Care and Protection of Children) Rules, 2007. The argument of the learned counsel for the first accused, in the circumstances, was that inasmuch as there was no satisfactory evidence to prove the age of the victim, the accused is only to be acquitted. It Criminal Appeal No.362 of 2018 7 was also argued by the learned counsel for the first accused alternatively, that the punishment imposed on the first accused is grossly disproportionate. _Per contra_ , the learned Public Prosecutor supported the impugned judgment. 10. The points that arise for consideration are: (i) whether the prosecution has established the guilt of the appellant as found by the Special Court beyond reasonable doubt and (ii) whether the punishment imposed on the appellant is proportionate to the gravity of the offences found. 11. As pointed out by the learned counsel, the first and foremost aspect to be considered is whether the prosecution has established that the victim was a child at the time of the alleged occurrence. As noted, the only document produced by the prosecution to prove the age of the victim is Ext.P6 extract of the Admission Register of the School where the victim pursued her studies from ninth standard onwards. As per Ext.P6, the date of birth of the victim is 07.08.2001. Going by Ext.P6, during the first week of October 2015, the age of the victim was only 14 years. In the light of the decision of the Apex Court in **Jarnail Singh v. State of Haryana** , (2013) 7 SCC 8 Criminal Appeal No.362 of 2018 263, Ext.P6 extract of the School Admission Register can certainly be accepted as a document to prove the age of the victim in a case of this nature. True, in terms of the Juvenile Justice (Care and Protection of Children) Rules, 2007 framed under the Juvenile Justice (Care and Protection of Children) Act, 2000, what is required is a date of birth certificate from the school first attended by the victim and Ext.P6 is not one issued from the school first attended by the victim. But, the Juvenile Justice (Care and Protection of Children) Act, 2000, is now replaced by Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 94 of the latter statute which governs the field, does not require the date of birth certificate from the school first attended. If that be so, according to us, Ext.P6 can be accepted as sufficient proof of the age of the victim. Even otherwise, at the instance of the first accused, the extract of the record of birth, Ext.D1(b) maintained by the local authority was produced and even going by the said document, the date of birth of the victim is 07.08.2001. The finding of the Special Court that the victim was a child at the time of occurrence is, therefore, in order and we affirm the same. 9 Criminal Appeal No.362 of 2018 12. Now let us consider the question whether the prosecution has established its case that the first accused had sexual intercourse with the victim as alleged by the prosecution. Even though the first accused admitted in his evidence that he had sexual intercourse with the victim, we have perused the evidence tendered by the victim as PW1 as well. PW1 deposed categorically that one day during the first week of October 2015, the first accused came to her house when she was alone and had sexual intercourse with her. The said evidence tendered by the victim, according to us, is sufficient to hold that the first accused had sexual intercourse with the victim who was then a child. In the light of the discussion aforesaid, question (i) is answered in favour of the prosecution. 13. The question remaining to be considered is the question as to the proportionality of the punishment. In the absence of any guidelines operating on the field, the appropriate punishment has to be determined on a consideration of the facts and circumstances of each case. It is settled that the circumstance under which the offence is 10 Criminal Appeal No.362 of 2018 committed, the age of the criminal, the gender of the criminal, the economic conditions and social background of the criminal, the mind set under which the offence is committed, prior criminal record etc. are factors to be taken note of by the Court [See **State of M.P. v. Udham** , (2019) 10 SCC 300]. Even though the materials on record indicate that the sexual act alleged was a consensual act, inasmuch as the victim was a minor at the relevant time, her consent cannot be treated as a mitigating circumstance. But, at the same time, the materials show that victim was in a relationship with the first accused at the relevant time since the wife of the first accused left his company and the victim was residing with her mother in a residential house provided by the first accused himself. The materials also indicate that even though the victim and the first accused decided to marry, the marriage did not take place. The materials further indicate that there was no occasion for the first accused to know that the victim was aged below 16 years. It is also seen that the complaint was filed at the instance of the father of the victim, who settled in the meanwhile, his dispute with the mother of the victim. That apart, as noticed, the first 11 Criminal Appeal No.362 of 2018 accused has three children to be looked after. He was aged only 29 years at the time of occurrence. Having regard to the totality of the facts and circumstances of the case, especially having regard to the plight of the three innocent children of the first accused who are dependent on him, we are of the view that the punishment imposed on the first accused shall be reduced to ten years imprisonment. In the result, the appeal is allowed in part confirming the conviction of the appellant and reducing the sentence to ten years of rigorous imprisonment. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **JOHNSON JOHN, JUDGE.** Mn