Reju v. State of Kerala and Saleena Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941** ## **CRL.A.No.767 of 2015** **AGAINST THE JUDGMENT IN SC 422/2014 of ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN) DATED 27-06-2015** **CRIME NO.636/2013 OF MARADU POLICE STATION, Ernakulam** **APPELLANT/ACCUSED NO.1:** **REJU,AGED 34 YEARS S/O.RAMU, PAZHUKATTU NIKARTHIL HOUSE, NALUKULANGARA.P.O., NEAR KANNATTU KAVALA, THURAVOOR DESOM, KUTHIYATHODU VILLAGE, CHERTHALA TALUK, ALAPPUZHA. (IN CUSTODY-CENTRAL PRISON VIYOOR). BY ADVS.SRI.MANJU ANTONEY SRI.ANOOP C.C. SRI.JOSEPH CHACKO SRI.R.ANAS MUHAMMED SHAMNAD RESPONDENT/PROSECUTION/STATE: STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ERANAKULAM TOWN POLICE STATION CRIME NO.636/13 OF MARADU POLICE STATION) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.** **BY ADV.SR.PP. SRI.K.B. UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH CRL.A.999/2015, THE COURT ON 17.07.2019 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.767 & 999/15 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941 CRL.A.No.999 of 2015** **AGAINST THE JUDGMENT IN SC 422/2014 of ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN) DATED 27-06-2015 CRIME NO.636/2013 OF MARADU POLICE STATION, Ernakulam** **APPELLANT/ACCUSED NO.2:** **SALEENA JOSEPH AGED 42 YEARS W/O SAKARIYA,PALLIPARAMBU HOUSE,CHETHIKOTTU KARA,EDAKKATTUVAYAL VILLAGE,NOW RESIDING AT C/O.HEMALATHA,W/O.PALATTUMURI MADHU, CHAMBAKKARA DESOM** **BY ADV. SRI.MANJU ANTONEY SRI.ANOOP C.C. SRI.R.ANAS MOUHAMMED SHAMNAD RESPONDENT/STATE: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.636 OF 2013 OF MARADU POLICE STATION.** **BY ADVS. SR.PP SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH CRL.A.767/2015, THE COURT ON 17/7/2019 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.767 & 999/15 ## -:3:- ## **J U D G M E N T** ## _**Shaffique, J.**_ These two appeals are filed by accused 1 and 2 respectively against the judgment dated 27/6/2015 of the Additional District and Sessions Court (For the trial of cases relating to Atrocities and and Sexual Violence against Women and Children). The first accused had been convicted for offence u/s 376(2)(i)(n) of I.P.C. and sentenced to undergo rigorous imprisonment for life and a fine of `10,000/- with default sentence of rigorous imprisonment for two months, imprisonment for six months u/s 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The second accused is convicted to undergo rigorous imprisonment for life and also to pay a fine of `10,000/- u/s 109 r/w 376 (2)(i), (n) of I.P.C. with default sentence of two months. She is also sentenced to undergo rigorous imprisonment for 6 months u/s 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 2. The victim in the case is the daughter of the 2[nd] accused. While they were residing in a rented building at Chambakkara Poonithura village, the first accused, who was a co- Crl.Appeal Nos.767 & 999/15 -:4:- worker of the 2[nd] accused joined them and started residing together. Prosecution allege that, during the period from 4/8/2013 to 15/8/2013, the first accused committed rape on the victim on several occasions at their residence itself. The 2[nd] accused, mother of the victim aided and instigated the first accused to have sexual intercourse with the victim. 3. The crime came to light when the wife of the first accused had come to the residence of the 2[nd] accused and created a hue and cry. All of them were summoned to the police station and while the victim was questioned by the Child Welfare Committee, the incident of rape came to light. Based on the same, investigation was conducted. Necessary medical report was obtained and the first accused was charge-sheeted for having committed rape and the second accused for abetting the rape. They were also charged u/s 5(I)(n) r/w 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. Since the accused pleaded that they were not guilty of the charges levelled against them, prosecution entered into trial and examined PW1 to PW15. Exts.P1 to P15 were the documents relied upon and MO1 to MO9 were the material objects that were identified. After Crl.Appeal Nos.767 & 999/15 -:5:- completing the procedural formalities, the accused were convicted as stated above. 4. Learned counsel for the appellant/first accused raised two specific contentions. One is that there was no evidence for rape as no injury was found on the body of the victim. Secondly, even assuming there was sexual intercourse, it was only consensual. Though it is contended by the prosecution that she was only a minor, aged 15 years, the evidence adduced by the prosecution is not sufficient to arrive at such a finding and therefore the court has to proceed on the basis that she was a major and it was a consensual sexual intercourse. Learned counsel appearing for the 2[nd] accused/mother of the victim argued that there is absolutely no material to indicate that the mother had abetted the crime. The materials placed on record do not indicate that the mother had done any wilful act or illegal omission which prompted the first accused to commit the aforesaid offence. Learned counsel for A1 and A2 referred to various judgments which we shall refer later. 5. On the other hand, learned Public Prosecutor submitted that the victim was only at the age of 15 and sufficient Crl.Appeal Nos.767 & 999/15 -:6:- evidence had been adduced by the prosecution to prove the said fact. The extract of the school register from the school which she last studied had been produced which would prove her date of birth and it is not even disputed. Therefore this is a case in which a minor was repeatedly raped and the first accused does not deserve any mercy. There is also evidence to prove that the mother had abetted the crime by permitting the first accused to have sexual intercourse with her own daughter, who was only a minor at the relevant time. It is therefore argued that there is absolutely no material to interfere with the judgment of the learned Sessions Court. 6. Before proceeding further, it will be useful to refer to the testimony of witnesses and their role in the prosecution case. 7. PW1 is the care taker of Santhibhavan shelter home where the victim had been lodged. She deposed that the statement of the victim was taken on 19/8/2013 by the Circle Inspector of Police and one woman Sub Inspector of Police at Santhibhavan in her presence. 8. PW2 is the Doctor who had examined the victim. She was a Gynecologist at General Hospital, Ernakulam. She Crl.Appeal Nos.767 & 999/15 -:7:- examined the victim on 19/8/2013 at 3.45 p.m. With reference to the aforesaid crime and the history, she stated that she had sexual intercourse with Reju who was working along with her mother with the consent of her mother from the start of the month itself and it continued till 17[th] every day. PW2 on examination noticed that she was having small abrasions present on the back right side 4-5 days old. No injury was noticed in the genitalia. The hymen was torn with slight bleeding, which may be due to mensuration. The vagina admitted two fingers and vaginal swab and smear were taken for chemical examination. She deposed that there was evidence of penetration and Ext.P1 is the certificate. In cross-examination she stated that even on physical examination, it could be noticed that there was penetration. 9. PW3 is the victim and we shall consider her evidence in due course. 10. PW4 was the Headmistress of St.George High School, Arakunnam since, 2011. On the request of the police, she had given Ext.P4, the certified extract of school admission register of the victim and as per Ext.P4, date of birth is shown as 20/5/1998. She stated that since the girl completed SSLC, she had gone from Crl.Appeal Nos.767 & 999/15 -:8:- the school. 11. PW5 is the Village Officer who had prepared the site plan Ext.P5. 12. PW6 is a witness to recovery of the dress of the first accused and Ext.P6 is the mahazar for the same. 13. PW7 is a neighbour of the accused who deposed that he knew them and they have resided in a building on rent near his house. They were residing together along with the victim. 14. PW8 is the owner of the building which was given to the 2[nd] accused on rent from 4/8/2013 onwards. Though rent deed was to be prepared and she offered to send it, she did not do so. Her son in law had gone to her house for the rent deed and he came back and stated that they were not good people. On 17/8/2013, they heard a commotion which was informed by the people in the locality. When he went there, he saw the accused. Police was also there. Police had taken them. Thereafter they took possession of the building. 15. PW9 is the Doctor who conducted the potency test of the first accused. He deposed that there was nothing to suggest that the first accused was incapable of performing sexual act. Crl.Appeal Nos.767 & 999/15 -:9:- PW10 is a witness to Ext.P8, recovery of the dresses of the victim. 16. PW11 is the Sub Inspector of Police, Women Police Station, Ernakulam on 19/8/2013. She deposed that statement of the victim was taken in her presence by the Circle Inspector of Police while the victim was at Santhibhavan. 17. PW12 was the chairperson of Child Welfare Committee at Ernakulam. The victim was taken to her house by the police officers of Maradu police station. In the presence of female constable, her statement was recorded. Statement is Ext.P2. PW3 the victim has also signed on the same. Along with a letter, she had sent Ext.P2 to the Maradu Police Station. The said letter is Ext.P9. 18. PW15 started investigation which was continued by PW13, since 26/2/2014. The statement of PW3 u/s 164 Cr.P.C was recorded by the Magistrate. PW15 had completed the investigation and laid the final report before Court. 19. PW14 was the Sub Inspector of Police, Maradu on 18/8/2013. On the basis of the report given by the Chairperson of the Child Welfare Committee, he registered Crime No.636/2013. Ext.P10 is the FIR. Crl.Appeal Nos.767 & 999/15 -:10:- 20. PW3, the victim had stated that her date of birth was 20/5/1998. The 2[nd] accused is her mother. She has a sister. Father died when she was one year old. Sister is married away and living with her husband. Since her sister and mother were not in good terms, sister does not come home. Mother is a coolie worker. She studied from Class I to IV at Chethikode L.P. School and from Class V to VII at Angamaly Holy Family High School. At that time, she was residing at Santhibhavan orphanage, Angamaly. Thereafter she had some kidney stone problem and mother took her to Eroor. From Standard VIII to X she studied at St.George School. At that time she was residing along with her mother at Chottanikkara, Kadavanthra, Eroor etc., in rented houses. From August, 2013, they were residing in a rented house at Champakkara. When they started residing there, Reju (A1) who was a co-worker of her mother also started residing with them. She identified A1. They started residing at Champakkara since 3/8/2013. The house at Champakkara had a kitchen and one room. She used to sleep on the floor. At about 10.30 pm on 3/8/2013, while she was about to sleep, the first accused came near her and attempted to catch hold of her. Mother was Crl.Appeal Nos.767 & 999/15 -:11:- intoxicated and was sleeping. She told the first accused that she will inform her mother. At that time, he went away from her. Next day, at about 7.30 a.m, A2 had gone to purchase rice from Kadavanthra. She was watching the television. At that time, first accused came through the front door and locked it from inside and came near her. She got up from the cot. She was forcefully pushed into the cot, he undressed her and he forcefully had sexual intercourse with her. On the same day, he continued having sexual intercourse three times. At about 11.30 a.m., mother came and knocked on the door. There was delay in opening the door as she had to dress herself. Mother looked through the keyhole and saw them. First accused dressed himself and opened the door. By the time she also had dressed herself. When mother came into the house, she cried and told her mother about the incident. Mother did not give any care to the same. Mother told her that the first accused will marry the victim and that he likes her. On the same day evening, A1 and A2 started drinking. After that, mother asked the first accused to lie down with the PW3. Though she opposed, mother insisted and on the said night also, he had sexual intercourse with her. Thereafter, Crl.Appeal Nos.767 & 999/15 -:12:- until 14/8/2013, on several occasions, during day and night, first accused had sexual intercourse with her. On 15/8/2013, mother sent the first accused for work. According to PW3, mother and first accused were living as husband and wife. On 17/8/2013 first accused came by noon. Immediately she called her mother over phone and informed the same. By evening, mother came and asked the first accused why he had not gone for work. He answered that he did not go. On 17/8/2013 at night, the accused did not do anything to her. Next day morning, wife of first accused came and created a commotion. When there was a hue and cry, the people in the locality called the police. Police came and enquired about the incident. Thereafter, PW3, her mother, first accused and his wife were taken to the police station. From the police station, she was taken to the Child Welfare Committee and she had informed Padmaja madam about the incidents, which she recorded. She had signed the same as Ext.P2. Thereafter the police had taken her to Santhibhavan. Next day, her statement was recorded at Santhibhavan. On the same day, she was taken to General Hospital. A lady Doctor had examined her. She had informed to her all the incidents. Next day police Crl.Appeal Nos.767 & 999/15 -:13:- had taken her to her house. She had shown them the place. Her dress were taken and seized by the police. She had informed the colour of the dress the accused was wearing at the relevant time. Police had again questioned her. She was taken to the Magistrate at Aluva. She had given a statement which is marked as Ext.P3. During cross-examination, question was asked whether a person by name Suresh used to come regularly to her house at Champakkara and she answered in the affirmative. She also stated that on some days he used to reside at their house. She knew one Mahesh, who is a friend of the first accused and she liked him. On a particular day, A1 along with Mahesh had come to their house and A1 had asked her mother whether her mother will give PW3 in marriage to Mahesh and on one occasion, Mahesh and her mother had pushed A1 out of the house. She further deposed that at that time, the wife of first accused had come and she started creating a commotion by stating that she is the wife of first accused and thereafter the people started assembling. The suggestion was that, at the instance of Mahesh, she had given a false statement to Padmaja madam which she denied and it is at the instance of Mahesh she had given a statement against Crl.Appeal Nos.767 & 999/15 -:14:- her mother as well which also she denied. According to the defence, the mother never asked first accused to sleep with PW3. One suggestion was whether she had mentioned to Padmaja Madam and the Magistrate that her mother had forced A1 to sleep with PW3. Her answer was that she does not remember. According to the first accused, he did not have any sexual relationship with PW3. 21. S.375 has been substituted by Criminal Law (Amendment) Act, 2013 w.e.f. 3/2/2013. A man is said to commit rape, among other situations, if he penetrates his penis, to any extent, into the vagina of a woman against her will or without her consent, it would come within the definition of rape. Yet another circumstances which will fall under the definition of rape is to commit the aforesaid act with or without the consent of the girl, if she is under 18 years of age. Apparently, this is a case in which the prosecution case is that her date of birth was 20/5/1998 and as on the date of the alleged rape, i.e., on 4/8/2013, she was only 15 years and a few months of age. S. 376 provides for the punishment which is also amended by the Criminal Law (Amendment) Act, 2013 by way of substitution. Two different Crl.Appeal Nos.767 & 999/15 -:15:- punishments are provided, one under sub-section (1) and the other under sub-section (2). Sub-section (1) indicates that whoever commits rape, shall be punished with rigorous imprisonment of either description for a term, which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine. Sub-section (2) of S.376 deals with several other instances and we are concerned with Clauses (i) and (n). Clause (i) relates to the punishment for a person who commits rape on a woman when she is under 16 years of age and clause (n) relates to punishment for commission of rape repeatedly on the same woman. The punishment provided is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life and also be liable to fine. Imprisonment for life is also given the meaning as imprisonment for the remainder of that person's natural life. 22. The first and foremost argument for the learned counsel for the appellant/first accused is that the age of the victim had not been proved. Prosecution examined PW4, the Headmistress of St.George's High School, Arakkunnam school where the victim studied last and an extract of the school Crl.Appeal Nos.767 & 999/15 -:16:- admission register is produced as Ext.P4. The victim was admitted to the school on 25/5/2009 and the date of birth is recorded as 20/5/1998. She studied from Standard VIII to Standard X and she had attended the SSLC examination in March, 2013. In column 5 the school previously attended is shown as Holy Family High School, Angamaly and the transfer certificate produced at the time of admission was TC No.20/2009. It is a document signed with seal of the Headmistress and she had given evidence before Court regarding the date of birth. In fact, there is no effective challenge to the date of birth of the victim. The victim has also stated that her date of birth was 20/5/1998 and there is no cross-examination on the point. Learned counsel for the appellant would however submit that it is for the prosecution to prove the age of the victim by cogent evidence and the extract of the admission register by itself does not amount to proof. First of all, the date of birth was recorded by the school authorities based on a transfer certificate produced by the victim or her parents. But the said transfer certificate is not seen produced. That apart, it is contended that when the trial was conducted as a State Brief, appropriate cross-examination could Crl.Appeal Nos.767 & 999/15 -:17:- not be done and absence of cross-examination by itself should not be taken as a reason for arriving at a finding regarding the age of the victim in the absence of legal proof. 23. Learned counsel placed reliance on the judgment in _**Rajak Mohammed v. State of Himachal Pradesh**_ [(2018) 9 SCC 248]. That was a case in which it was found that the prosecutrix remained in the company of the accused for about 12 days. She was freely moving around with the accused. It was found that in the course of their movement, she would have come across many people at different point of time but she did not complain of any criminal act on the part of the accused. In that case Apex Court observed that she might be a consenting party. Therefore the question whether she was major to give a consent appeared to be the moot point. The prosecution had brought on record the school admission form and the certificate issued by one JBT Teacher of Government School. PW5, the teacher stated that the writings in the school admission form are in her handwriting and the signature is that of the mother of the prosecutrix. In cross-examination, it was stated that the details mentioned in Ext.P5 were obtained from the school leaving Crl.Appeal Nos.767 & 999/15 -:18:- certificate issued by Government Primary School, Tambol and it is based on the said details that the entries were prepared. That was a case in which the mother of the prosecutrix was not examined and the Radiologist working in Civil Hospital opined that the age of the prosecutrix was between 17 to 18 years. It was observed that the correct age of the prosecutrix could not be ascertained and the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. It is taking into account the aforesaid facts that it was held that he prosecution has not succeeding in proving that the prosecutrix was a minor on the date of alleged offence. In _**Rajak Mohammed's case**_ (supra), the document produced was the school admission form and a certificate issued by the teacher. 24. Yet another judgment relied upon is _**Jagtar Singh v. State of Punjab**_ (AIR 1993 SC 2448). In this case the appellant contended that at the time of the incident, he was below 16 years and a school leaving certificate was produced at the time of seeking special leave. It was observed that certificate did not mention the name of the school from which transfer certificate was obtained on the basis of the certificate the appellant was Crl.Appeal Nos.767 & 999/15 -:19:- admitted to the school. It was contended that the date of birth shown in the certificate produced before Court was based on the date mentioned in the transfer certificate. As the name of the school from which the transfer certificate was obtained was absent from the certificate, it was held that no reliance can be placed on the said certificate. 25. Reference is made to the judgment in _**Birad Mal Singhvi v. Anand Purohit**_ [1988 Suppl. SCC 604]. This is a case arising under the Representation of the People Act, 1951. In this case, the Apex Court held that the entry regarding date of birth contained in the school register and the secondary school examination have no probative value, if no person on whose information the date of birth of the candidate was mentioned in the school records was examined the entry contained in the admission form or in the school register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. The date of birth of the candidate as contained in the document must be proved by admissible evidence ie by the evidence of those persons who can vouchsafe Crl.Appeal Nos.767 & 999/15 -:20:- for the truth of the facts in issue. In the absence of any such evidence, the document have no probative value and the date of birth mentioned therein could not be accepted. 26. In _**Brij Mohan v. Priya Brat Narain Sinha**_ (AIR 1965 SC 282), the Apex Court had observed that persons give false age at the time of his admission to a school, so that, later in life, he would have an advantage while seeking public service for which a minimum age for eligibility is often prescribed. This was also a case arising under the Representation of the People Act and the question was relating to the fact whether the entry of date of birth in school admission register can be accepted. 27. A similar proposition had been laid by the Apex Court in _**Umesh Chandra v. State of Rajastan**_ (AIR 1982 SC 1057). In _**Ravinder Singh Gorkhi v. State of UP**_ (AIR 2006 SC 2157), the Apex Court was considering the question regarding determination of the date of birth of a person either in a civil or criminal proceedings. It was held at paragraphs 21, 23 and 37 as under:- _**“21** . Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and_ Crl.Appeal Nos.767 & 999/15 ## -:21:- _circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.”_ _**“23** . Section 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 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.”_ _**“37** . 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_ Crl.Appeal Nos.767 & 999/15 -:22:- _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 minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of the 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.”_ The Apex Court had indicated that the age of a person as recorded in the school register may be used for various purposes, but when in a case where a person is charged for criminal act, the age of the party has to be proved having regard to the provisions of S.35 of the Evidence Act and no different standard can be applied in case of an accused as in case of abduction or rape or similar offence. If on the basis of 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 the accused may unjustly be convicted. S.35 of the Evidence Act reads as under:- Crl.Appeal Nos.767 & 999/15 -:23:- _“_ _**35. Relevancy of entry in public [record or an electronic record] made in performance of duty** .—An entry in any public or other official book, register or record or an electronic record], stating a fact in issue or relevant fact, and made 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 such book, register, or [record or an electronic record] is kept, is itself a relevant fact. “_ It is held that certified copy of the entry in the birth register in discharge of his official duty is admissible u/s 35 of the Act even without examining the official. 28. In _**Ram Deo Chauhan v. State of Assam**_ (AIR 2001 SC 2231), it was held that entry in the school register which is not shown to be maintained by the public servant in the discharge of his official duty or any other competent authority cannot be accepted as positive proof regarding the date of birth. 29. There is yet another circumstance which is required to be considered in the above case. As already stated, there is not much cross-examination regarding the age of the victim. Neither the victim was cross-examined nor there was cross examination of PW4, the Headmistress who produced the extract of admission register. But still, as held by the Apex Court in _**Ravinder Singh**_ Crl.Appeal Nos.767 & 999/15 -:24:- _**Gorkhi**_ (supra), while considering a criminal case, especially a case of rape, age of the prosecutrix is very important and the prosecution is bound to prove the age of the prosecutrix in accordance with law. The question would be, whether a mere production of an extract of school admission register, Ext.P4 and marking it through the Headmistress or the oral evidence of the prosecutrix by herself would render sufficient probative value to prove the age of the victim. 30. The judgment in _**Ravinder Singh Gorkhi**_ (supra) apparently draws a distinction between the standard of proof required in civil litigation and criminal cases. In criminal cases, when the accused had a contention that he had sex with the prosecutrix based on her consent, age is a material fact which requires ample proof. 31. However, it is apposite to take note of the view of the Apex Court after promulgation of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules framed thereunder in In fact, the Apex Court in _**Jarnail Singh v. State of Haryana**_ [(2013) 7 SCC 263] and then in _**Mahadeo v. State of Maharashtra**_ [(2013) 14 SCC 637] had occasion to consider Crl.Appeal Nos.767 & 999/15 -:25:- the relevancy of extract of school records produced in similar cases and has held that the documents which are required to be produced under the provisions of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 can be considered for proving the age of the victim. In fact, under Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the documents required for proving the age of a child/juvenile has been clearly stated which reads as under:- ## _**“94. Presumption and determination of age.**_ _1...._ _2.In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —_ _i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;_ _ii. the birth certificate given by a corporation or a municipal authority or a panchayat;_ iii. _and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:_ _Provided such age determination test conducted on the order of_ Crl.Appeal Nos.767 & 999/15 -:26:- _the Committee or the Board shall be completed within fifteen days from the date of such order.”_ In _**Mahadeo v. State of Maharasthra and another**_ [(2013) 14 SCC 637]. While examining the issue regarding age of the prosecutrix, it was held at paragraph 12 as under:- _**“12.** We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:_ _“_ _**12. (3)** In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining— (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;_ _(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;”_ _Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim_ Crl.Appeal Nos.767 & 999/15 -:27:- _as well.”_ Similar view was taken in In fact, the Apex Court in _**State of Madhya Pradesh v. Anoop Singh**_ (Crl.Appeal No.442/2010). 32. Of course in this case, when A2 was questioned u/s 313 Cr.P.C, she did not dispute the age of the victim. But though it is pointed out by the learned counsel for appellant/2[nd] accused that a complex question was put to the witness, which she answered in the affirmative, we do not think it to be of such a complex nature which could confuse the accused. The question and the answer reads as under: “Q: 2011 മുതൽ തതാൻ ആരക്കുനന്നം St.George H.S ൽ Headmistress ആണണെനന്നം, Police ആവശശ്യണപ്പെട്ട പ്രകതാരന്നം school 3-)o School Admission ൽ പഠഠിചഠിരുന സതാകഠിയുണടെ Register ണന്റെ പകർപ്െ ഹതാജരതാകഠി ണകതാടുത്തുണവനന്നം അതതാണ Ext.P4 എനന്നം അതപ്പ് പ്രകതാരന്നം അവളുണടെ ജനനതതീയതഠി 20/9/98 4-)o ; ആണണെനന്നം സതാകഠി പറയുന A: ശരഠിയതാണ.” The question was concerning the contents of a document produced by the Headmistress. 33. Of course, when incriminating evidence against the Crl.Appeal Nos.767 & 999/15 -:28:- accused are put to them during 313 examination, each and every incriminating circumstance has to be separately questioned. When a complex question with reference to two or three incriminating evidence are asked, it may create a doubt in the mind of the accused as some part of the answer may be in the affirmative and the other part may have to be denied. The position of law is well settled as pointed out by the learned counsel for appellant in _**State of Kerala v. Rasheed**_ (2017 (3) KLJ 138), _**State of U.P. v. Lakhmi**_ (AIR 1998 SC 1007), _**Sajeev v. State of Kerala**_ (2015 KHC 987) and _**Kajal v. State of Kerala**_ (2015 (1) KLT 908). But, the affirmative answer of the accused in the present case cannot be regarded as an answer to a complex question. 34. In any case, Ext.P4 is not an official record. It is a record maintained by a private school. Even in Ext.P4, it is stated that the entry in the school register was prepared based on the entry in the transfer certificate. The transfer certificate has not been produced. Even if Ext.P4 is not treated as evidence, PW3, the victim, in her oral deposition had also stated that her date of birth was 20/5/1998. In a criminal case where age of prosecutrix Crl.Appeal Nos.767 & 999/15 -:29:- has to be proved by the prosecution, necessarily, evidence should be adduced either as provided u/s 35 of the Evidence Act or any of the documents specified in terms of the Juvenile Justice (Care and Protection of Children) Act. It is the duty of the prosecution to adduce substantive evidence to prove the age of the victim. An extract of an admission register of a private school in which the victim studied for a few years does not come under any of the categories mentioned u/s 35 or 12(3) of the 2007 Rules of J.J Act. In _**Mahadeo's case**_ (supra), the school leaving certificate issued by the school where the prosecutrix did her 5[th] standard was produced and the document was proved by the Headmistress of the school. That apart, the transfer certificate as well as the admission form maintained in the primary school where the prosecutrix had her initial education was also produced, which confirmed the date of birth. The Apex Court found that the aforesaid evidence was sufficient to prove that the age of prosecutrix was below 18 years. 35. In the case on hand, when there is no substantial challenge to the evidence adduced by prosecution in the form of oral testimony of the prosecutrix, we do not find any good ground Crl.Appeal Nos.767 & 999/15 -:30:- to interfere with the said finding of fact by the Court below, regarding age of the victim. That apart, A2 mother of the victim has admitted during 313 examination that the date of birth of the victim is 20/9/1998, which is also an additional circumstance to prove the age of the victim. 36. As already stated, the statute had undergone a change. Even assuming that the victim was above the age of 18 years, whether there was consent or not from the girl who was subjected to rape is a matter to be considered taking into account the entire facts and circumstances of the case. Learned counsel for the first accused/appellant would submit that the allegation was that the girl was raped from 4/8/2013 till 15/8/2013. She never had a case that she was illegally detained by any of them. She only made complaint to her mother who pacified her by stating that the first accused will marry her. She has a sister but no attempt had been made by her to inform her sister or to escape from the said place. It was a line of buildings and none of the neighbours had heard any hue and cry from the victim as her complaint was that she was raped day and night. Therefore, according to the learned counsel, it was a consensual sexual activity and there Crl.Appeal Nos.767 & 999/15 -:31:- is absolutely no material to arrive at a conclusion that she had not given any consent. It is further argued that PW3 has no case that she was threatened by any person and she remained at her home. The scene mahazar which was prepared by the Investigating Officer Ext.P8 would prove that the back door of the room was not having any lock and was not solid. There were immediate neighbours being a line building and no attempt was made by the victim to save herself through that door or to inform the neighbours about the criminal act of the first accused. 37. Reference is made by the learned counsel for the appellant in _**Vimal Suresh Kamble v. Chaluverapinake Apal**_ _**S.P**_ [(2003) 3 SCC 175). That was a case in which the Apex Court observed that if the prosecutrix had raised an alarm, it would have been heard by many persons who would have come to her rescue and it was surprising that no one heard the cries of the appellant when she was raped. In _**Dilip v. State of M.P.**_ (AIR 2001 SC 3049), the Apex Court observed that when the prosecutrix was around 16 years of age, she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance. If the prosecutrix had raised a Crl.Appeal Nos.767 & 999/15 -:32:- hue and cry, to the extent she could and if none was attracted to the place of incident, it would have been a different issue. But there is absolutely nothing to indicate that she had raised her voice during the said incident. In yet another case, Punjab and Haryana High Court in _**Dishant v. State of Punjab**_ (2016 Crl.L.J. 4384) also held that when the victim did not raise any alarm nor called out for any help, it would show that she was a consenting party especially when she has no case that any threat had been extended to her. The Rajastan High Court in _**Manna v. State of Rajasthan**_ (2001 Crl.L.J.3496) held that when there is evidence to show that the prosecutrix remained in the company of the accused for more than 7 days, and the medical evidence clearly disclose that she did not receive any injury, it has to be presumed that she did not put up any resistance at the time when she was being sexually assaulted. She did not make any hue and cry which also show that she was a consenting party from the very beginning to the end. The Delhi High Court in _**Chander Bahadur v. State**_ (1997 Criminal L.J. 2195) held that if the prosecutrix has raised an alarm, the same would have been heard by a large number of persons especially during morning hours at about 9 Crl.Appeal Nos.767 & 999/15 -:33:- am., and there is no evidence to prove that any such attempt had been made by the prosecutrix. It would indicate that there was no force used for commission of the crime. A similar view had been taken by the Madhya Pradesh High Court in _**Shivnath Ram Rajwar v. State of M.P.**_ (2016 Criminal L.J.4704). The argument of the learned counsel for appellant is that the prosecutrix had virtually consented to the sexual act, but later when she found that he was married, she started showing resistance and that was the reason why she had made a complaint. 38. In the evidence of PW3, the prosecutrix, she had categorically stated that the first accused had sexual intercourse with her without her consent. She deposed that she was forcefully laid into the bed, her dresses were removed and he entered into a sexual intercourse with her. As rightly contended by the learned counsel for appellant/first accused, nowhere in her evidence she stated that she had made any hue and cry. She cried only when her mother came and found her naked. Thereafter, according to her, though she opposed, mother permitted the accused to lie with her and the sexual intercourse continued till 14/8/2013. Primarily, though the prosecutrix says that she had not given any Crl.Appeal Nos.767 & 999/15 -:34:- consent, nowhere she has stated that she complained or she had tried to object to the sexual act committed by the first accused or that she was under any threat. But since we have already held that the age of the victim was only 15 years and she was a minor at the relevant time and that she had conceded to a consensual sexual intercourse does not matter at all. As even consensual sex with reference to a minor below the age of 18 amounts to rape. 39. The argument raised by the 2[nd] accused/appellant, who is the mother of the victim, is that she had not abetted the crime. She had been made an accused in the case on the ground that she had abetted the crime. She permitted the first accused to have sexual intercourse with her minor daughter. In order to prove abetment, prosecution relies on the oral testimony of PW3 alone. Though her mother was there and she had complained to her mother, her mother's attitude was different. Her mother told her that the appellant/first accused will marry her and mother even asked the first accused to lay with her. Abetment is defined u/s S.107 of the I.P.C. and S.109 provides for the punishment. The abettor is bound to be punished for the punishment provided Crl.Appeal Nos.767 & 999/15 -:35:- ## for the offence itself. Sections 107 and 109 read as under:- _“_ _**107. Abetment of a thing** .—A person abets the doing of a thing, who—_ _First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or_ _Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing._ _Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing._ _Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”_ _“_ _**109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.** —Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the_ Crl.Appeal Nos.767 & 999/15 -:36:- _offence._ _Explanation.—An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment._ 40. Learned counsel for the appellant had placed reliance upon several judgments in order to emphasise the point that a case of abetment is not made out in the case on hand. He relied upon the following judgments:- (i) _**Ramaji Bisi v. State of Orissa**_ (2017 KHC 4820). (ii) _**Sanju Alias Sanjay Singh Sengar v. State of M.P.**_ [(2002) 5 SCC 371] (iii) _**Kishangiri Mangalgiri Goswami v. State of Gujarat**_ [(2009) 4 SCC 52] (iv) _**Hanmant Ramhari Ghodake and Others v. State of Maharashtra**_ (2003 KHC 2897). We do not think it necessary to highlight on the judgments that had been relied upon. The word 'abet' means assistance, cooperation and encouragement and includes wrongful purpose. In _Corpus Juris Secundum_ , the meaning of word 'abet' is as follows:- _“'To abet' has been defined as meaning to aid; to assist or to give aid; to command, to procure, or to counsel; to_ Crl.Appeal Nos.767 & 999/15 -:37:- _countenance; to encourage, counsel, induce, or assist; to encourage or to set another on to commit.”_ 41. In the case on hand, apparently, the mother permitted the first accused to have sexual intercourse with her minor daughter as she did not make any complaint after having known that her minor daughter was sexually abused by the first accused. Whereas, the evidence indicates that she permitted the first accused to have more sexual activity with her daughter and every incident of sexual intercourse happened in their house itself, which clearly indicates that her mother aided and abetted her minor daughter to be sexually abused. S.107 also uses the word “illegal omission”. The omission would be illegal when the accused omits to do an act which he or she was required under the law to be done. Mother of a minor is under duty to protect her from any offence being committed on the minor. When the mother fails to act in accordance with law, or fails to protect her child from being sexually abused, and permits the said crime to be committed, it amounts to illegal omission as well. Having known about the rape in the first instance itself, it was the obligation of the mother to ensure that the incident is reported to the police or competent authorities, and even if the matter is not Crl.Appeal Nos.767 & 999/15 -:38:- reported, she should have ensured that the offence is not repeated. Therefore, we have no hesitation to hold that 2[nd] accused was responsible for abetting the crime. 42. It was further contented that even assuming that there was any material to arrive at a conclusion that mother was responsible for the alleged sexual act by the first accused, still, the principle of proportionality of the punishment ought to be considered. He placed reliance upon the following judgments:- (i) _**Prem Chand v. State of Haryana**_ (AIR 1989 SC 937) (ii) _**Phul Singh v. State of Haryana**_ [(1979) 4 SCC 413] - (iii) _**State of Chhattisgarh v. Derha**_ [(2004) 9 SCC 699] - (iv) _**Lambodar alias Parmeshwar Chandra v. State of Chhattisgarh**_ (2007 KHC 6437) - (v) _**Ruli Ram v. State of Haryana**_ [(2002) 7 SCC 691] - (vi) _**Priya Patel v. State of M.P**_ [(2006) 6 SCC 263] - (vii) _**Bhaiyyan v. State of Rajasthan**_ (2007 KHC 6707) - (viii) _**Yadu Kumar Patel v. State of Chhattisgarh**_ (2007 KHC 6476) (ix) _**Ajay Harijan and Others v. State of Rajasthan**_ (2007 KHC 6394) Crl.Appeal Nos.767 & 999/15 ## -:39:- ## (x) _**Lehna v. State of Haryana**_ [(2002) 3 SCC 76] 43. All these cases relate to decisions prior to the 2013 amendment to Sections 375 and 376 of I.P.C. and may not have application to the facts of the case. 44. Now coming to the punishment to be imposed, the punishment for rape coming u/s 376(2)(i) and (n) would be for rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to fine. In this case, the Court below has granted maximum sentence to both the accused. We have already taken note of the argument of the learned counsel for appellants that no attempt had been made by the victim to create any hue and cry and according to her, she was sexually abused on every day from 4/8/2013 to 15/8/2013. We have also observed that to prove the age of the victim, substantive evidence in the form of birth certificate or any of the documents mentioned by the Apex Court in _**Jarnail Singh**_ (supra) had not been produced. Still, we have arrived at a conclusion of the uncontroverted oral testimony of PW3 and PW5. Still, our mind lingers on the fact that no complaint had been raised by the victim at any point of time and Crl.Appeal Nos.767 & 999/15 -:40:- she does not have a case that she was ever threatened by accused 1 or 2. Therefore, it is possible that there might be an element of consensus especially when we look at the evidence of PW3 as a whole. She even deposed that her mother told that A1 will marry the victim. The complaint came to light when wife of A1 came to their house and created a hue and cry. It is at that stage that police took all of them to the police station and thereafter the rape incident got revealed. Taking into consideration all these facts, we are of the view that while upholding the conviction, the punishment to the accused can be interfered in the following manner:- The appeals are therefore partly allowed as under:- (i) Crl.Appeal No.767/15:- The sentence of the first accused for imprisonment for life shall stand set aside and the accused shall be punished with rigorous imprisonment for a period of 10 years and to pay a fine of `10,000/- (Rupees Ten thousand only) and in default of paying the said amount, he shall suffer rigorous imprisonment for a further period of two months. He shall also suffer imprisonment for 6 months for committing the offence u/s 23 of the Juvenile Justice (Care and Protection of Crl.Appeal Nos.767 & 999/15 ## -:41:- Children) Act, 2000. (ii) Crl.Appeal No.999/15:- The sentence of rigorous imprisonment for life imposed on the second accused is hereby set aside and the 2[nd] accused shall be sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/(Rupees Ten thousand only) and in default of paying the said amount, she shall suffer rigorous imprisonment for a further period of two months. She shall also suffer imprisonment for 6 months for committing the offence u/s 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. (iii) The sentence against both the accused shall run concurrently, and set off shall be allowed under Section 428 of Cr.P.C. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/N.ANIL KUMAR** Rp //True Copy// PS to Judge **JUDGE**