Sajeev v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 CRL.A.No. 143 of 2011 ( ) -------------------------- AGAINST THE ORDER/JUDGMENT IN SC 79/2005 of D.C. & SESSIONS COURT,KOLLAM AGAINST THE ORDER/JUDGMENT IN CP 173/2003 of J.M.F.C.II, KOLLAM APPELLANT(S)/1ST ACCUSED: ------------------------- SAJEEV, S/O.THANKAMANI, OARALI BHAVAN, MEENATHCHERRY, SAKTHIKULANGARA VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.VIPIN NARAYAN SRI.M.REVIKRISHNAN RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SMT.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-112015, THE COURT ON 1/3/2016 DELIVERED THE FOLLOWING: ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.A. No. 143 OF 2011** - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of March, 2016 ## **JUDGMENT** The appellant is the first accused in SC No.79/2005 of the Sessions Court, Kollam, who stands convicted for offence punishable under Section 376 IPC and Section 363 IPC. 2. The allegation of the prosecution is that on 4/7/2013, the first accused, with an intention of committing rape of the defacto complainant, a minor victim aged 14 years, abducted her from the lawful custody of the parents. She was taken to Kottayam, where they stayed together and had physical relationship under the guise of undergoing a form of marriage. On the basis of the FIS laid by the mother of the victim, crime was registered and the police started investigation. She was located at Kottayam on 6/7/2003 from where she was taken back to her house and the investigation proceeded. In the course of investigation, it was revealed that the accused 2 to 4 had aided and abetted with the first accused in the commission of offence. The vehicle in which she was abducted was 2 Crl.A.No.143 of 2011 allegedly driven by the 3[rd] accused. Before the court below, all the accused faced trial. The trial court, on an evaluation of the entire evidence, found that the prosecution did not succeed in proving the case as against the accused 2 to 5 and they were acquitted. However, the court held that the offence under Section 376 IPC and Section 363 IPC were proved against the first accused. He was accordingly convicted and sentenced. 3. This is under challenge in this appeal. Heard both sides and examined the records. 4. The prosecution is essentially relying on the oral testimony of PW1, the mother of the victim, and PW2, the victim herself. It is an admitted fact that she was studying in a school during the relevant time and that she had ultimately gone with the accused. 5. PW1, the mother, deposed that the daughter went to the school on 4/7/2003 and thereafter she was missing. On an enquiry, it was revealed that she had eloped with the accused. Thereafter, complaint was laid. She deposed that the daughter was 14 years and was studying in 10[th] Standard in Vimala Hridaya High school. 6. PW2 in her evidence deposed that she knew the accused. On 4/7/2003, she left home and went to Ramankulangara. The first accused came there with a car and both of them sat in the rear seat. 3 Crl.A.No.143 of 2011 3rd accused was driving the vehicle. In the car she was given a sari which she wore, sitting in the car itself. A chain with tali, was tied on her by the accused in the running car. They reached a house at Kottayam in the evening. The person at the house was informed that they were husband and wife and they stayed together for two days as husband and wife and had physical relationship. In the cross examination, she admitted that she was in love with the first accused and had desired to marry and live with him. She admitted that she had co-operated in the physical relationship with him. 7. The medical evidence to substantiate the allegation of rape was let in by the prosecution through the oral testimony of PW2 as well as PW9, the Assistant Surgeon of the Government Hospital. As mentioned above, PW2 had specifically and categorically deposed that she had physical relationship with the accused. In the cross examination also materials were brought out to conclude that her specific allegation was that they had a physical relationship. Though she did not disclose the details of it, it was also not essential from the nature of allegations and in the absence of any challenge of her version.PW9 in her evidence deposed that she issued Ext.P6 after physically examining the victim. It indicated that the victim had evidence of past sex. However, there was no injury or marks of any 4 Crl.A.No.143 of 2011 resistance.This conclusively showed that the allegation of physical relationship was borne by the medical records also. 8. The oral testimony of PW2 as well as the medical records in the form of Ext.P6 and the oral evidence of PW9 indicate that there is sufficient evidence to prove that she had left home voluntarily, stayed with the accused voluntarily and had entered into physical relationship without any resistance. However, the prosecution with this materials tried to prove that it was a case of rape, since the victim was below the consenting age as provided under the statute. 9. To substantiate the allegation, the prosecution relied on the available materials to prove that victim was 14 years during the relevant period. PW1, the mother, in her evidence had stated that the victim was studying in 10[th] standard and was about 14 years of age. PW2 in her evidence deposed that during the relevant period she was studying in 10[th] standard and was aged 14 years and her date of birth was 2/9/1988. PW9, the doctor who had examined her, had assessed her age as 15 years. The documentary proof to substantiate the date of birth was sought to be pressed into service through the oral testimony of PW11 and Ext.P10 extract of the school register. 10. PW11 was the headmistress of Vimala Hridaya High School. Ext.P10 was issued by CW13, the then headmistress. Ext.P10 bears 5 Crl.A.No.143 of 2011 the signature and seal of CW 13. PW11 was not cited as a witness and pursuant to the summons issued to CW13, PW11 voluntarily appeared and she was permitted to be examined, in spite of objections of the learned counsel for the accused. PW11 in her evidence identified the signature of the headmistress who had issued it. As per Ext.P10, the date of birth of the girl was 2/9/1988. Ext.P10 also shows that the certificate was issued after verifying the records.. 11. It is pertinent to note that Ext.P10 certificate was not seized by the police. There is no seizure mahazar in relation to it. How the above document was produced in court appears to be shrouded in mystery. How the police came in possession and how it reached the court are also not brought on record. PW11 admitted that she had not issued the above certificate. She had also not seen the school record. She did not depose about the actual date of birth of the victim as per the school records. She only deposed that Ext.P10 bears signature of the then headmistress. She admitted that she cannot deny the specific suggestion that the girl had studied in another school and failed and thereafter shifted to the present school. 12. In this regard, the learned counsel for the accused contended that the victim cannot conclusively give evidence regarding her date of birth, since as far as she is concerned it could have been 6 Crl.A.No.143 of 2011 only a hearsay evidence. On the other hand, PW1 stated about her age only and not the date of birth. It was contended by the learned counsel for the prosecution that Ext.P10 is the document admissible in evidence kept in a public office and true extract of the documents kept in the public office and it was corroborated by the competent person, the mother. However, it was contended by the learned counsel for defence that the law, as laid down by the various decisions, consistently held that documentary evidence in the form of public documents evidencing date of birth should be corroborated by evidence of the competent person, either the parents or a person on whose information the entries were made in the school register. It was contended that Ext.P10 was not free from doubt or was convincingly proved. Hence, no volume of evidence can be let in to corroborate a document which could not sustain itself. 13. The principle relating to the proof regarding the age has been dealt with by the Hon'ble Supreme Court in various decisions. Several decisions were relied on by the learned counsel for the accused to contend that a public document in relation to the date of birth is admissible if it satisfies the ingredients of Section 35 of the Indian Evidence Act and if it relates to the fact in issue.The evidentiary value of such documents had been considered by the 7 Crl.A.No.143 of 2011 Supreme Court in a catena of decisions. In the decision in **Birad Mal Singhvi v. Anand Purohit (AIR 1988 Supreme Court 1796)** , the Supreme Court had occasion to deal with probative value of the documents regarding the date of birth. One of the certificate produced to prove the birth date was the certificate issued on the basis of the entries contained in the scholar's register. The Supreme Court held that such documents are relevant and admissible, but such documents have no evidentiary value for the purpose of proof of date of birth unless the vital piece of evidence in the form of evidence of person on whose information the date of birth of the concerned person was recorded in the document was adduced. Parents or near relatives having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. It was held that since the truth of the fact, namely the date of birth of the concerned person was in issue, the mere proof of the documents does not furnish evidence of the truth of the facts or contents of the documents. 14. The Supreme Court held that Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, 8 Crl.A.No.143 of 2011 record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. According to the Apex Court to make a document admissible under Section 35, three conditions are to be satisfied. Firstly, there is an entry 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 the discharge of his official duty or any other person in performance of a duty specially enjoined by law. The court held that the 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 or such document is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. 15. It was further held that in **Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury ( AIR 1941 Cal. 41)** a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show the material on which the entry in the register about the age of the plaintiff was made. The Hon'ble Supreme Court noted that the above principle was followed by 9 Crl.A.No.143 of 2011 almost all the High Courts in the country thereafter. The courts have consistently held that the date of birth mentioned in scholar's 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. This consistent view has been followed in the subsequent decisions of other High Courts. In **Madan Mohan Singh & Ors v. Rajni Kant & Anr.[AIR 2010 Supreme Court 2933]** the Hon'ble Supreme Court cited with approval the earlier decisions in **Ravinder Singh Gorkhi v. State of U.P. [2006 5 SCC 584], Babloo Pasi v. State of Jharkhand & Anr. [ AIR 2009 SC 314) and Ram Suresh Singh v. Prabhat Singh [AIR 2009 SC 2805]** . In all the above decisions it was held that even if entry was made in an official record by the concerned official in discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made. In **Mahadeo, S/o. Kerba Maske v. State of Maharashtra and another [(2013) 14 Supreme Court Cases 637],** it was held that statutory provision in Juvenile Justice (Care and Protection of Children) Rules is also applicable to determine the age of young victim. The principle regarding the age in public document has been confirmed and reiterated by the Supreme Court in the latest decision reported in 10 Crl.A.No.143 of 2011 ## **State of Madhya Pradesh v. Munna @ Shambhoo Nath [2015 KHC 4622]** . 16. By applying the above principle, it is clear that there is no reliable evidence regarding the age of the girl and to prove that she was below 16 years at the time of the incident. Evidently, even if there is material to prove the physical relationship, there is nothing to confirm the age of the girl and to conclude that she was below the age of consenting. Consequently physical relationship, if any, can only be consensual. On that premise, offence under Section 363 IPC cannot also sustain. Ext.P10 cannot be relied on to hold that she was below the age of consenting and to convict the accused. The findings of the court below to the contrary that there was evidence of rape is, hence, not legally sustainable. In the light of the above, conviction cannot be sustained. The accused is entitled for the benefit of doubt. Conviction and sentence passed by the court below cannot be sustained and is liable to be set aside. In the result, appeal is allowed. Conviction and sentence of the court below is set aside. Accused is acquitted. The bail bond executed by the appellant stands discharged. Sd/- ## **SUNIL THOMAS** dpk **Judge** /true copy/PS to Judge 11 Crl.A.No.143 of 2011 dpk