PRADEEP, SUDHEESH KUMAR @ SUDHI, VISHNU.K @ VIMAL, OMANAKUTTAN @ JOHNY v. STATE OF KERALA & OTHERS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940** **(AGAINST THE ORDER/JUDGMENT IN SC 108/2017 of DIST & SESSIONS COURT, ALAPPUZHA CRIME NO. 1395/2014 OF MANNAR POLICE STATION , ALAPPUZHA)** **PETITIONER(S)/ACCUSED A1 TO A4** ## **1 PRADEEP,** **AGED 25 YEARS,S/O.JAYAPRAKASH.M,KUTTIYIL KIZHAKKETHIL,** **MANNAR,KUTTAMPEROOR.P.O,MANNAR VILLAGE,ALAPPUZHA DISTRICT.** ## **2 SUDHEESH KUMAR @ SUDHI,** **AGED 41 YEARS,S/O.GOPALAN,SUDHEESH BHAVANAM, KUTTAMPEROOR MURI,MANNAR VILLAGE,ALAPPUZHA DISTRICT.** ## **3 VISHNU.K @ VIMAL,** **AGED 28 YEARS,S/O.KRISHNANKUTTY,KOVILAKATHU VEEDU, KUTTAMPEROOR MURI,MANNAR VILLAGE,ALAPPUZHA DISTRICT.** ## **4 OMANAKUTTAN @ JOHNY,** **AGED 52 YEARS,S/O.SREEDHARAN NAIR,MANJUVILAYIL, KURATTIKADU MURI,MANNAR VILLAGE,ALAPPUZHA DISTRICT.** **BY ADV.SRI.K.V.ANIL KUMAR** ## **RESPONDENT(S)/STATE & COMPLAINANTS:** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA,ERNAKULAM-682031.** **2. THE SUB INSPECTOR OF POLICE, MANNAR POLICE STATION,ALAPPUZHA DISTRICT-688001.** **3. REJANI.G,** **AGED 21 YEARS,D/O.BHASURA,CEHPPAZHATHIL THARAYIL, MANNAR VILLAGE,KUTTEMPEROOR.P.O,ALAPPUZHA DISTRICT, PIN:689623.** **4. RAJAN, AGED 43 YEARS, S/O. ACHUTHAN, CHEMBILETHU VEEDU, PEROOR MURI, MANNAR VILLAGE, ALAPPUZHA DISTRICT. 688001 (IS IMPLEADED AS ADDL. R4 AS PER ORDER DATED 12/4/2018 IN CRL.M.A. NO.3897/2018 IN CRL.M.C. NO.1907/2018)** **R3,R ADDL.4 BY ADV. SRI.P.V.DILEEP** **R BY PUBLIC PROSECUTOR T.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1907 of 2018 ()** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **ANNEXURE A: A TRUE COPY OF THE FIR IN CRIME NO.1395/2014 OF MANNAR POLICE STATION. ANNEXURE B: A TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 22.04.2015 ISSUED BY THE LOCAL REGISTRAR MANNAR GRAMA PANCHAYATH. ANNEXURE C: AFFIDAVIT OF THE 3RD RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.1907 of 2018** - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of June, 2018 ## **O R D E R** The petitioners herein are arrayed as accused No. 1 to 4 in Crime No.1395/2014 of Mannar police station for offences punishable under sections 120(b), 363, 376,34 IPC & 3 read with section 4 of POCSO Act. 2. The crux of the prosecution allegation is that, on 3/9/2017, the petitioners abducted the third respondent minor girl from the lawful guardianship of her father in a car and took her to a distance place. They allegedly lived together and during the period from 15/9/2014 to 17/9/2014, had physical relationship on various occasions. Pursuant to the crime registered, she was located. After investigation, final report was laid against the petitioners herein for the various offences referred above. 3. Petitioners are facing charge.Petitioners have approached this court contending that, in the meanwhile, relatives intervened and the first petitioner married the third Crl.M.C.No.1907/2018 2 respondent on 21/3/2015 evidenced by Annexure B marriage certificate issued by the Mannar Grama Panchayat. It is stated that, they are now living together as husband and wife and a child was born in the matrimonial relationship. It was hence requested that, the criminal proceedings may be quashed in the light of the settlement. 4. Since the offence involved is under section 376 IPC as well as provisions under the POCSO Act, this court was not inclined to quash the proceedings, since the issue involved larger question of public importance. Hence, the learned counsel for the petitioners chose to argue the case on merits. 5. It is an admitted fact that, the parties were in love and have married. They are leading happy married life. It was contended that, in the above circumstances, law demands for giving quietus to the criminal proceedings. Continuance of the criminal proceedings will be against the interest of the entire family, it was contended. Learned counsel for the petitioners contended that, there is absolutely no evidence to prove that any of the provision of the law was violated. It was contended by the learned counsel for the petitioners that, though the medical records indicated past physical relationship, there is no cogent evidence to show that the 3[rd] respondent herein had not attained the age of majority as on the date of their eloping. According to the learned counsel for the Crl.M.C.No.1907/2018 3 petitioners, prosecution alleged that the third respondent was born on 23/12/1996. She was examined before the doctor on 20/9/2014. The medical evidence coupled with the oral statement of the victims indicated that the parties were living together for a quite some time and had physical relationship. Hence, it was contended that, there are some evidence to show that they had physical relationship. But, there is no reliable cogent evidence to show that, as on that date, the third respondent has not attained the age of majority. 6. Learned counsel for the petitioners had invited my attention to the version of CW2, the Principal of the college wherein, the third respondent was studying. Case diary includes a certificate issued by the Principal of the Government Higher Secondary School, Budhanoor, certifying that third respondent was a student of Humanities batch in that school during the academic year 2014 - 2015 and as per the school admission register, her date of birth was 23/12/1996. According to that version, she will attain the age of majority only on 22/12/2014. However learned counsel for the petitioners vehemently challenged the credibility of the above above certificate. It was the contended by the learned counsel for the petitioners that, it was only an extract of the admission register kept in the school. It was also contended that, it may appear that the third respondent studied in that school during the academic year 2014 - 2015 and there is nothing on record to show that she Crl.M.C.No.1907/2018 4 was studying in that school during her high school period and primary school period. Hence, it was contended that, even the admission register, entries could have been one carried forward from the basic documents which have not been produced by the prosecution. Learned counsel for the petitioners relied on the decision of this court in **Suresh v. State of Kerala (2016 (2) KLD 810)** , wherein this court, relying on the various other Supreme Court decisions, held that the date of birth mentioned in the school register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. Learned counsel for the petitioners referring to the versions of the various witness submitted that, none of the witnesses have given statement that, they have given the necessary details of date of birth to the school authorities. Relying on that, learned counsel contended that in the above circumstances, the school extracts certificate has no probative value at all. 7. I find merits in the above contentions of the learned counsel for the petitioners. It seems that, there is absolutely no material to convincingly show the actual date of birth of the third respondent. This assumes significance since even at the time of her interception by the police, she seems to have been short of three months, if reckoned from the date of birth, alleged by the prosecution. Crl.M.C.No.1907/2018 5 Evidently, the date of birth of the third respondent is not sought to be established by reliable evidence. 8. Having regard the above facts, heavy burden is imposed on the prosecution to show by definite cogent evidence that the third respondent had not attained the age of majority as on the date of physical relationship. That being so, I am inclined to hold that, no purpose will be served by prosecuting the petitioners herein. Hence, the Crl.M.C.is liable to be allowed and I do so. Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to Annexure-A FIR in Crime No.1395/2014 of Mannar Police station now pending as SC No. 108/2017 of the District and Sessions Court, Alappuzha stands quashed. ## **Sd/-** ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. 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