Sajeev @ Kunjumon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 12TH DAY OF JULY 2013/21ST ASHADHA, 1935** ## **CRL.A.No. 1871 of 2008 (D)** **--------------------------SC.NO. 1178/2005 OF ADDL.SESSIONS COURT (FAST TRACK -III), THIRUVANANTHAPURAM ------------------------** **APPELLANT/ACCUSED :** **------------------------------------** **SAJEEV @ KUNJUMON, S/O. THULASEEDHARAN, PARANKIMAMVILA PUTHEN VEEDU, VADAKKEVAYAL NAVAIKULAM DESOM, NAVAIKULAM VILLAGE.** **BY ADV. SRI.M.SREEKUMAR** **RESPONDENTS/COMPLAINANT :** **-------------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1871 of 2008 - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of July, 2013. ## JUDGMENT The accused in this case was prosecuted for the offences punishable under Sections 366, 376 and 201 of Indian Penal Code. After trial, he was found guilty of the offence punishable under Section 376 of I.P.C. alone and was acquitted for the offences punishable under Sections 366 and 201 of the Indian Penal Code. Accordingly, he was convicted and sentenced to undergo imprisonment for three years and to pay fine of Rs.1000/-, in default, to undergo imprisonment for six months. 2. P.W.2 is the victim and P.W.1 is her father. At the relevant time, P.W.1 was employed in a cashew factory and his daughter, P.W.2, was studying in the 10[th] standard and she used to go for tuition in a parallel college. As usual, on 4.8.2004, P.W.2 left the house for tuition. She did not return at the usual time and P.W.1 is said to have made enquiries. He Crl.Appeal.1871/2008. 2 could not gather any information about the whereabouts of his daughter and therefore, he laid Ext.P1 first information statement. P.W.12, the Sub Inspector of Police, recorded the same and registered crime as per Ext.P15 FIR. Getting information that the accused and the victim were at Goa, P.W.11, who was in charge of the investigation of the case, had P.W.12 sent to Goa from where he brought down the victim and the accused. The victim was subjected to medical examination by P.W.10, who issued Ext.P8 certificate. P.W.11 had the accused arrested and subjected him to potency test. He recorded the statements of witnesses, completed investigation and laid charge before court. 3. The court, before which final report was laid, took cognizance of the offences and finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Thiruvananthapuram. The said court made over the case to Additional Sessions 3 Crl.Appeal.1871/2008. Court, Fast Track, Thiruvananthapuram for trial and disposal. The latter court, on receipt of records and on appearance of the accused framed charges for the offences punishable under Sections 366, 376 and 201 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 13 and had Exts.P1 to P20 marked. M.O.1 was got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He also stated that he came to know that P.W.2 was missing only when police came to his place and enquired about it. According to him, he used to go for casual labour work passing the house of the victim. They gained acquaintance with each other and that later developed into a love affair. He was given to understand that P.W.2 had crossed the age of 17. The accused would say that thereafter 4 Crl.Appeal.1871/2008. the father of the victim and other relatives came and threatened him with dire consequences. They told that he is not a suitable bide groom for them and cautioned him not to see the girl again. He would say that he had not met the girl thereafter and he had not taken the girl anywhere. On 8.10.2004, he says that the police came to his house and he was taken by the police. The next day he was produced before the office of the Dy.S.P. and he is alleged to have stated that he does not know the whereabouts of the girl and also about the disappearance of the girl. He denied having committed any act as alleged. 4. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. On an appreciation of the evidence in the case, the trial court came to the conclusion that the offence under Section 376 of I.P.C. alone has been made out against the accused and therefore, Crl.Appeal.1871/2008. 5 he was found guilty of the said offence and conviction and sentence as already mentioned followed. 5. The said conviction and sentence are assailed in this appeal. 6. Learned counsel appearing for the appellant disputed the decision regarding the age of the victim on several grounds. It was pointed out that initially the prosecution relied on the certificate issued from the school and was satisfied with the examination of the principal of the school where the victim had studied. After the entire evidence was over, learned counsel pointed out that P.W.1 was recalled and Exts.P19 and P20 were marked to prove the age of the victim which, according to the learned counsel for the appellant, is in violation of Sections 173(2), 207 and 209 of Cr.P.C. and that evidence could not have been looked into at all. Apart from the said fact, learned counsel pointed out that Exts.P19 and P20 have not been properly proved and they Crl.Appeal.1871/2008. 6 could not be relied on for ascertaining the age of the victim. Referring to Ext.P19, it was contended that it is admitted by P.W.1 that it was not obtained by him nor had he applied for the said document and if that be so, he could not prove the same. It is also pointed out that he had stated that at the time when the child was born, he was not in station and that he had come long thereafter and naming ceremony of the child was performed after six months of the birth. If that be so, according to the learned counsel, the certificate which is seen to have been obtained within 20 days of the birth of the child could not have contained the name of the victim. Referring to Ext.P20, it was contended that passport is not an authentic document to prove the age of the victim. 7. Referring to the evidence of P.Ws.11 and 12, it was pointed out that the investigation is far from satisfactory and they never bothered to question Mohanan who is alleged to have accompanied the victim and the accused. It is also Crl.Appeal.1871/2008. 7 pointed out that they had not collected evidence from the places where these persons stayed nor they questioned the persons in the lodge where they had stayed as the case may be. 8. It was also contended that there is no evidence to show that the accused and the victim were located at Goa and there is also no evidence to show that if at all P.W.2 was subjected to sexual intercourse, it was by the accused and these aspects vitiate the findings of the court below. 9. Learned Public Prosecutor pointed out that there is absolutely no merit in any of the contentions. The evidence of P.W.2 is clear to the effect that she had gone voluntarily along with the accused and the accused had taken her to various places and finally to Goa. She would say that the accused had promised her that as and when she attains the required age, the accused will marry her. The evidence of P.W.2 would show that there were sexual intercourse between Crl.Appeal.1871/2008. 8 the two. Except for a vague challenge, there is no specific challenge to the evidence of P.W.2 with regard to the sexual intercourse as spoken to by her in her evidence. 10. Learned Public Prosecutor referring to the evidence of P.W.12 stated that he had categorically stated that as directed by P.W.11, he had gone to Goa and brought down the accused and the victim. There is no reason to disbelieve the contention of P.W.12 in this regard. The evidence of P.W.12 is clear to the effect that the victim and the accused were found in Goa and under his surveillance they were brought before PW.11 who was the investigating officer as per the directions issued from this court. 11. Regarding the age, it is contended by the learned Public Prosecutor that there is absolutely no merit in any of the contentions raised by the learned counsel for the appellant. According to the learned Public Prosecutor there is nothing which prevents the prosecution from adducing further 9 Crl.Appeal.1871/2008. evidence, even after evidence is closed, if it is found that it is necessary in the interests of justice. Power can be located under Section 311 of Cr.P.C. and there is nothing which prohibits, according to the learned Public Prosecutor, either the party or court from having the evidence re-opened. As regards Ext.P19, it is pointed out that it is a public document and the challenge made to its admissibility cannot stand. P.W.1 is admittedly the father of the victim and he is certainly the proper custodian of the document though he may not have applied for the same and it might not have been issued to him as such. It could not be said that the document has not been produced from proper custody. It is also not necessary, according to the learned Public Prosecutor, the register from the local authority needs to be produced to prove the contents of Ext.P19. 12. It is also pointed out by the learned Public Prosecutor that the evidence of the doctor, P.W.10, taken Crl.Appeal.1871/2008. 10 along with Ext.P8 is sufficient to show that P.W.2 was subjected to intercourse and the evidence of P.W.2 is sufficient to show that it was with the accused with whom she had sexual intercourse. Learned Public Prosecutor contended that the lower court has considered the evidence in considerable detail and has come to the conclusion that the offence under Section 376 of I.P.C. is made out since the victim was below the age of 16 at the relevant time. The said finding does not call for any interference. 13. This is a case where the court below has found that P.W.2 who is the victim had voluntarily gone along with the accused and therefore, the offence under Section 366 of I.P.C. cannot stand. However, the court below found that since the victim was below the age of 16, even assuming that sexual intercourse was voluntary and with consent, that cannot save the accused because of the statutory provision. Crl.Appeal.1871/2008. 11 14. Ext.P1 first information statement was laid by P.W.1, the father of the victim, who found his daughter missing on 4.8.2004. The evidence of P.W.12 would indicate that they came to know that the victim and the accused were in Goa and as deputed by P.W.11 he had gone to Goa. The father of the victim, namely, P.W.1 too had gone along with him. He deposed before court that it was he who had brought down the victim and the accused and produced before P.W.11 who was the investigating order as per the orders of this court. 15. P.W.11, the Deputy Superintendent of Police, who was in charge of the investigation confirms the above statement of P.W.12. He had in no less terms stated that after coming to know the whereabouts of the victim, he had sent P.W.12 and P.W.12 had brought the victim and the accused and they were produced before him. Therefore, the contention Crl.Appeal.1871/2008. 12 that there is no evidence to show that the victim and the accused were in Goa does not merit consideration at all. 16. The main contention taken is regarding the age of the victim. According to the appellant, the age of the victim is not properly proved. The prosecution would rely on the marking of Exts.P19 and P20 though they have also produced Ext.P11 which is the certificate issued from the school where the victim had studied at the relevant time. It is true that Exts.P19 and P20 were marked after P.W.1 was recalled. 17. It is this, which is taken serious objection to by the learned counsel for the appellant. It was contended that this is in violation of Section 173(2), 207 and 209 of Cr.P.C. A perusal of these provisions do not indicate that there is any fetter on the court to allow any witness to be recalled or any further evidence is to be adduced if it is felt that it is necessary in the interests of justice. This is clear from Section 311 of Cr.P.C., which reads as follows: Crl.Appeal.1871/2008. 13 “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” All that Section 173(2) Cr.P.C. says is regarding the filing of report. Sections 207 and 209 deals with handing over of the materials relied on by the prosecution to the accused. Those provisions were taken aid of to show that either the prosecution or the defence is precluded from recalling a witness for adducing fresh evidence after the trial is completed even if it is found necessary to do so. The contention based on Sections 173, 207 and 209 cannot stand. Crl.Appeal.1871/2008. 14 18. What now remains to be considered is the acceptability of Exts.P19 and P20 produced to prove the age of the victim. The admissibility is challenged on the ground that it is not produced from proper custody and also that it is not proved as is required under law. 19. Both the contentions are without merits. Ext.P19 the birth certificate was produced by the father of the victim, namely, P.W.1, who is the proper custodian of the document even though he might not have applied for the same and had not received it from the office concerned. He being the father of the victim should normally be in custody of such a document and production by him cannot be found fault with. It is not as if there was no attempt from the part of the prosecution to have the original of the register also produced before court. They had summoned P.W.13 who had appeared before court and pointed out that the register was in such a condition that it could not be produced in court. So, this is Crl.Appeal.1871/2008. 15 not a case where the prosecution had withheld vital evidence. They have attempted to get the register of births produced before court. Under those circumstances, it cannot be said that Ext. P19 could not be relied on. 20. Another ground of attack is that Ext.P19 is only secondary evidence and no grounds had been made out to prove secondary evidence. The said contention too is without basis. Admittedly P.W.13 was cited to produce the original register. Going by Section 17(2) of the Registration of Birth and Deaths Act, 1969 the extract of the register maintained by the local authority is admissible in evidence for proving the birth of the person concerned. In the light of the statutory provision also, the contention has to fail. 21. A vague contention is raised that Ext.P19 does not relate to the victim for the reason that P.W.1 had deposed that the child was named long after the birth and if that be so, on 31.10.1988, when the child was only three weeks old, the Crl.Appeal.1871/2008. 16 name of the child could not have appeared in the certificate. A vague statement from the testimony of P.W.1 cannot be picked out of context and given undue importance to doubt the genuineness of Ext.P19. There is no case for the defence that it relates to another child of P.W.1. Apart from the above fact, it is also necessary to indicate that P.Ws.1 and 2 have categorically stated that the date of birth of P.W.2 is 8.10.1988. 22. In the light of proof of age as per Ext.P19, it may not be strictly necessary to consider the acceptability of Ext.P20 and Ext.P11. Ext.P11 is the certificate issued from the school which may not be as such sufficient to prove the age. But that cannot be the position with respect to the passport which is a statutory document and that shows the date of birth of the victim as 8.10.1988. The contention on those grounds will necessarily have to fail. Crl.Appeal.1871/2008. 17 23. It was then contended that there was no evidence to show that it was the accused who had sexual intercourse with the victim. 24. The above contention lacks any merit whatsoever. The evidence of P.W.2 is clear to the above aspect. She in no less terms says about the circumstances under which she had gone along with the accused and the places where they had stayed. It is significant to notice that the victim went along with the accused on 4.8.2004 and they could be located only on 8.10.2004 at Goa. P.W.2 has categorically stated in her evidence that at several places they have stayed together they had physical contact. 25. That P.W.2 was subjected to sexual intercourse is evident from the testimony of P.W.10, the doctor, who had examined P.W.2 on 9.10.2008. Ext.P8, the certificate prepared by her, discloses what she had noted on examination of the victim. Ext.P9 is the chemical analysis report which shows Crl.Appeal.1871/2008. 18 the presence of semen and spermatozoa. In the light of the fact that both P.W.2 and the accused were located at Goa and the evidence of P.W.2 to the effect that she had sexual intercourse with the accused taken along with the chemical analysis report, there is clear evidence to show that it was the accused who had sexual intercourse with the victim. 26. Learned counsel appearing for the appellant placed reliance on the decision reported in State of Karnataka v. Sureshbabu Puk Raj Porral (AIR 1994 SC 966) and pointed out that in the light of the said decision conviction and sentence cannot stand. That was a case where there was considerable suspicion regarding the age of the victim and in that circumstance, it was held that it could not conclusively be said that offence under Section 376 I.P.C. has been made out. It is also found that the victim had voluntarily gone along with the accused in that case. To that extent there may be similarity. But the similarity ends there. In the case on hand, 19 Crl.Appeal.1871/2008. there is clear and clinching evidence regarding the age of the victim and date of birth of the victim is clearly proved as 8.10.1988. 27. One cannot omit to notice the statement given by the accused at the time of questioning under Section 313 Cr.P.C. He totally denied the incident and even the fact that he had gone along with the victim. In the light of the evidence of P.Ws.1, 2, 11 and 12 which shows that both P.W.2 and the accused were located at Goa and were brought down from Goa, the claim of the accused that he was always at home is clearly unsustainable. 28. It was the above facts which had made the court below to come to the conclusion that the offence under Section 376 I.P.C has been made out. Since the age of the victim is established to be below 16 years at the relevant time, the question of consent does not arise for consideration at all. The court below was perfectly justified in coming to the 20 Crl.Appeal.1871/2008. conclusion that the offence under Section 376 I.P.C. has been made out and the conviction has only to stand. 29. What now remains to be considered is the question of sentence. The trial court was extremely considerate in this regard and had only awarded imprisonment for three years and fine of Rs.1000/-. Considering the stand taken by the accused at the time of questioning under Section 313 Cr.P.C., it is felt that no further leniency need be shown in this regard. The sentence also does not call for interference. In the result, this appeal is without merits and it is only to be dismissed. I do so confirming the conviction and sentence passed by the trial court. P. BHAVADASAN, JUDGE sb.