Rajan v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945 CRL.A NO. 474 OF 2020 AGAINST THE JUDGMENT DATED 28.02.2020 IN S.C NO.938/2012 OF ADDITIONAL SESSIONS COURT-I, PATHANAMTHITTA ``` ``` - APPELLANT/ACCUSED: ``` ``` RAJAN, AGED 52 YEARS, S/O. KUNJUPILLAI, MATTUMURUPPEL PUTHEN VEEDU, KILLIKODU, NEDUMON MURI, EZHAMKULAM VILLAGE, PATHANAMTHITTA. BY ADVS.SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM SRI.BINDU SASTHAMANGALAM ``` ## `RESPONDENT/COMPLAINANT:` ``` THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031 (REPRESENTING CIRCLE INPECTOR OF POLICE, ENATHU POLICE STATION, PATHANAMTHITTA DISTRICT) BY SMT.MAYA M.N. (PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.06.2023 AND THE COURT ON 19.06.2023, DELIVERED THE FOLLOWING: ``` Crl.Appeal 474/2020 2 MARY JOSEPH. J. ---------------------Crl.Appeal No.474 of 2020 --------------------------------Dated : 19[th] June, 2023 ## JUDGMENT This appeal is directed against the judgment dated 28.02.2020 of Additional Court of Sessions-I, Pathanamthitta in S.C.No.938/2012. The appellant is the sole accused in the case. Crime was registered against him by Enathu Police Station for offences punishable under Sections 366(A) and 376 of the Indian Penal Code 1860, (for short, ‘the IPC’). Investigation was conducted in the crime and on concluding it, a final report was laid chargesheeting him for the aforesaid offences. The final report was taken on file by Additional Court of Sessions-I, Pathanamthitta (for short ‘the trial court’) and numbered as S.C.No.938/2012. Accused who was on bail appeared before the court on process being served on him and engaged a lawyer of his choice to defend him. 2. After hearing the learned Public Prosecutor, the learned counsel for the defence and upon perusing the relevant documents produced and proposed to be relied on by the prosecution in evidence, charge was framed against the appellant for the Crl.Appeal 474/2020 3 offences. Charge was read over and explained to him. He pleaded not guilty and claimed to be tried. Thus, the trial was commenced. 3. On the side of the prosecution, PWs1 to 13 were examined, Exts.P1 to P15 were marked and MOs 1 to 5 were identified in evidence. On closure of the prosecution evidence, the incriminating circumstances brought on record by the prosecution were put to the accused, while being examined under Section 313(1)(b) Cr.P.C. He denied all those questions and took a stand of total innocence. The learned Public Prosecutor and the learned counsel for the defence were heard under Section 232 Cr.P.C. Grounds having not been made out to record an order of acquittal, the accused was called upon to enter on his defence, but, he did not adduce any evidence. The learned Public Prosecutor and the learned counsel for the defence were heard and the evidence on record were appreciated. The trial court found the accused not guilty of the offence under Section 366(A) IPC, but guilty under Section 376 IPC. Thus, he was acquitted for the offence under Section 366(A) IPC and convicted for the offence under Section 376 IPC. He was sentenced to undergo rigorous imprisonment for seven years and to pay fine of `10,000/- and in default of Crl.Appeal 474/2020 4 payment of fine, to undergo rigorous imprisonment for one more year. Set off for the period from 28.10.2007 to 29.11.2007 and from 25.02.2020 till the date of the judgment, during which he served custody as an under-trial prisoner, were also allowed. 4. Sri.Bindu Sasthamangalam, the learned counsel for the appellant has challenged the impugned judgment mainly for two reasons. According to him, the prosecution failed to prove the age of the victim at the relevant time of the incident. According to him, FIS was lodged at Enathu Police Station by the father of the victim to set the law in motion and as per the version recorded from him, the victim girl was aged 17 years at the relevant time of the incident. During cross examination, PW3 denied having given such a version while lodging the First Information Statement. According to him, he had only given a version that the victim was aged below 16 years at the relevant time. The officer who recorded the First Information Statement of PW4 (victim) was not alive and the person who conducted the investigation being abroad was also not available for examination when the trial was conducted. Accordingly, an officer who is familiar with signatures of those was examined before the trial court as PW11. A specific question with reference to the statement made by PW3 regarding 5 Crl.Appeal 474/2020 the age of the victim in the FIS was put to him and PW11 answered in the affirmative that PW3 had given such a statement to him. According to the learned counsel contradictory versions about the age of the victim had been spoken by PW3 while lodging the FIS and while being examined before the court as a witness. Therefore, the prosecution failed to establish the exact age of the victim at the relevant time of commission of the offence against her. 5. The learned counsel also brought to the notice of the court the discrepancies in the version of the Headmistress of the School, where the child allegedly studied. During examination, the Headmistress as PW12 admitted issuance of a certificate as Ext.P14. But, to a question specifically put to PW12, whether she had recorded the class in which the victim was admitted in the School in Ext.P14, she answered in the negative. According to the learned counsel, PW12 was also cross examined with reference to the change in the house name of the victim shown in Ext.P14 certificate. It is submitted by the learned counsel that the house name shown in the address furnished by the prosecution and that shown in Ext.P14 differs and explanation for that is not forthcoming either from PW3 or PW11. According to her, since Crl.Appeal 474/2020 6 the house name shown in Ext.P14 also differs, it cannot be relied on by the prosecution as proof of age of the victim. 6. According to the learned counsel, as per the version of a relative of the accused examined as PW1, the accused alongwith the girl arrived at her house situated at Aanadu in Thiruvananthapuram District and the girl was introduced to her as the wife of the accused. According to her, they stayed together in her house, but she did not re-collect the number of days they stayed there, together. During cross examination her stand was that she cannot also identify her. 7. According to PW2, the sister of PW1, she was residing near to PW1’s house. According to her she had seen the accused and the victim at the time when they were staying together for about 7 to 8 days. According to her, the victim was introduced as the wife of the accused. She also identified the victim in the court as the one who accompanied the accused and stayed there together. According to the learned counsel, PW2 failed to identify the victim, though stated categorically that the accused came to her house with a girl and stayed there. But, the victim was identified by PW1, a neighbour of PW2. According to the learned counsel, the witnesses PW1 and PW2 did not corroborate in their 7 Crl.Appeal 474/2020 versions with that of PW4 in material aspects of the case and therefore, the prosecution cannot be said to have proved its case beyond reasonable doubt. The father of the victim was examined as PW3. He gave a version that his daughter was found missing in the house when he returned after his work. He made enquiries, but the girl could not be located and therefore, he lodged FIS before Enath Police Station on 14.10.2007. The Police traced her out after 13 days. PW3 denied to have given a statement while lodging FIS that his daughter was aged 17 years at the relevant time of the incident. 8. The victim was examined by Dr.Sreedevi Antharjanam, the then Senior Consultant of Government Hospital, Adoor who also reported her findings in Ext.P5. She was examined as PW8. It is found certified in Ext.P5 that the victim was subjected to sexual intercourse based on her finding of vaginal penetration in her medical examination of the victim. She did not notice general and genital injuries during examination of the victim. It was found reported in Ext.P5 that the vagina admits one finger and the hymen, torn. She deposed that swab and pubic hair of the victim were collected for chemical examination. While being examined as PW8 she has spoken that there was clear evidence of sexual Crl.Appeal 474/2020 8 act/penetration. It was brought out by the learned counsel for the defence during cross examination of PW8 that the tear of hymen can be healed within 6 to 8 days. 9. According to PW4, she left her house and volunteered to go with the accused. According to her, they proceeded to a place called Parakodu at 11 a.m and stayed at the residence of a relative of the accused at Vamanapuram on that day. Thereafter, they went to the house of a friend of the accused at Kuttapuzha and stayed there for two days. They also went to the house of the accused at Kilikode. The above version of PW4 did not find corroboration in the versions of PW1 and PW2. According to her, she had physical relationship with the accused during the days of their staying together in the aforesaid houses. According to PW4, the accused subjected her to physical relationship based on a promise to marry her. 10. PW4 had given evidence that she was aged only 16 years in the year 2007 when the incident was occurred and her date of birth is 05.01.1992. The incident was on 13.10.2007 and repeated also on the succeeding days. If that be the case, the victim girl can be taken as aged only 15 years and 9 months at the relevant time of the incident. According to PW12, she could Crl.Appeal 474/2020 9 not recollect the class to which the victim girl was admitted in the School. Ext.P1 was lodged by the father of the victim to set the law in motion and as PW3 he had categorically stated that 'ബീനക 17 വയസ് പ്രായം വരും'. But, in cross examination, he denied to have lodged such a statement. It appears from the above stand of PW3 that the exact age of the victim at the relevant time of the incident was not known to him. According to PW3, the victim girl surrendered before the police station and was obtained in his custody after 13 days of lodging of Ext.P1. 11. According to PW12, the Admission Register of Thumpamon Higher Secondary School was verified by her and based on the information gathered, a certificate was issued which is Ext.P14. As per Ext.P14, the victim was born on 05.01.1992. According to her, the admission number of the victim is 4899 and the name of her father is Gopi. It was brought out during cross examination that, case with reference to which Ext.P12 was issued and the year in which the victim was admitted in the school are not known to her. According to her the house name shown in the Admission Register is ‘Ooralimal purath Vadakkethil’. 12. Ext.P14 according to PW12 is nothing but a certificate issued based on the records available in her office and it was Crl.Appeal 474/2020 10 issued on the request of the Circle Inspector of Police. PW12 failed to state about the records perused while issuing Ext.P14. It was not even stated in Ext.P14 that it was issued for the purpose of Crime No.128/2007 of Enath Police Station, Pathanamthitta District. Moreover, in the address of PW4 available in the records of the prosecution case, the house name was shown as ‘Palavila House’ and not ‘Ooralimal purath Vadkkethil’. 13. It has been held in **Ravinder Singh Gorkhi vs. State of U.P** [2006 KHC 834 (SC)] that extract of the admission register of the school where the victim was admitted for her education if certified by the Head Mistress of the School, form a reliable evidence of age proof of the victim in a case coming within the purview of POCSO Act, 2012. ## The Apex Court has held in **Ravinder Singh Gorkhi** supra “23. S.35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a Crl.Appeal 474/2020 11 document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.” In the above case, the court has also relied on the dictum of the Apex Court in **Birad Mal Singhvi v. Anand Purohit** (1988 Supp SCC 604) which is extracted hereunder: "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.". 14. Therefore, this Court has no hesitation to hold that Ext.P14, which even failed to state particularly the source of information of PW12 to certify the date of birth therein, cannot be relied on as an authentic document in proof of age. Moreover, Crl.Appeal 474/2020 12 PW12 was helpless to answer the query put by the counsel for the accused to her regarding the year of the victim’s admission in the School. Therefore, Ext.P14 issued by PW12 cannot form an authentic document to prove the age of the victim. The version of PW12 is also liable to be thrown aside as incredible, for the reasons. 15. The mother of the victim was no more and therefore, the apt person to speak about the age of the victim at the relevant time of the incident is none other than PW3, who is her father and natural guardian. Though he denied to have given in Ext.P1 statement that his daughter was aged 17 years as on date of incident, the prosecution has proved through PW11 that PW3 had spoken so. Moreover Ext.P1 being the version furnished first in point of time to set the law in motion, it cannot be said to be an embellished version. Moreover, the first informant had also every opportunity to have it read prior to signing it. In fact PW3 has recorded in Ext.P1 that he had read it and affixed his signature thereunder. Therefore, if a mistake had crept into, he could have corrected it then and there. 16. The date of birth must have been entered in the records of the school at the instance of PW3, the only natural Crl.Appeal 474/2020 13 guardian surviving in the case of PW4. Convincing and reliable evidence have not been brought on record by the prosecution to establish the exact age of the victim at the relevant time. Witnesses examined by the prosecution have spoken to have no idea about the exact age of the victim. 17. When PW3 himself is doubtful about the age of the victim as on the date of the incident, when PW12 also failed to state about the source of her information to certify the date of birth of the victim in Ext.P14, when PW12 was unable to say the class in which PW4 was firstly admitted in the School and when PW11 failed to procure an authentic document in proof of date of birth of the victim girl, the prosecution can only be said to have failed in discharging its burden of proving that the accused has committed the offence on PW4 at her age of minority. 18. As already discussed with, the medical evidence is sufficient and satisfactory to draw a conclusion that the victim was subjected to rape. The medical examination of the accused also resulted in issuance of Ext.P5 which convincingly establish that the accused has the capacity for sexual intercourse. Oral evidence tendered by PW1 can be relied on by the prosecution to establish its case that the accused has committed sexual intercourse on her. Crl.Appeal 474/2020 14 19. But, the prosecution has thoroughly failed to convincingly establish that PW4 was at her age of minority at the relevant time of the incident. Therefore, the act stood established cannot be treated as an offence coming within the purview of rape as defined under Section 375 IPC, so as to convict and sentence him under Section 376 IPC. 20. Reliable evidence was not adduced by the prosecution to establish the exact age of PW4. PW4 has spoken that from day one of her staying together with the accused, the latter had sexual intercourse with her on a promise to marry her. 21. According to PW2, the accused and PW4 stayed at PW1’s house 7 to 8 days happily and from there, she surrendered before the court. According to PW1 and PW2, PW4 was introduced to them by the accused as his wife. PW1 failed to identify PW4 whereas, PW2 did. Chemical examination revealed presence of spermatozoa in the dress of PW4. According to PW8 in the medical examination of PW4, injuries were also noted at the genital area of PW4. But, there was no case for PW4 that the accused committed sexual intercourse on her against her will or consent. According to her, the accused obtained her consent for the commission of the Crl.Appeal 474/2020 15 sexual act and repeated it several times, on his promise to marry her. Consent is irrelevant and immaterial in the matter of proof of the alleged offence, only when it was established by the prosecution that the victim girl was minor at the relevant time. In the case on hand, the prosecution was thoroughly failed to prove the date of birth as well as the age of the victim at the relevant time of commission of the alleged offence. For the reason itself the guilt of the accused under Section 375 IPC cannot be claimed by the prosecution to have established beyond reasonable doubt. Criminal Appeal succeeds for the reasons and is allowed. The judgment under challenge is reversed and the accused is acquitted for the offence under Section 376 IPC. He shall be set at liberty forthwith if his presence in custody is not required in any other case. Sd/MARY JOSEPH, JUDGE Mrcs