Saji @ Basheer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935** ## **CRL.A.No. 1668 of 2003 ( )** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC NO. 210/2002 OF ADDL.DISTRICT & SESSIONS FAST TRACK COURT (ADHOC)-II, KOTTAYAM DATED 30-09-2003** **.....** **APPELLANT(S):ACCUSED:** **----------------------------------------** **SAJI @ BASHEER, S/O.ANTONY, PORUNNAKKOTTU VEEDU, ANJILIMOODU BHAGOM, KARIKKATTOOR KARA, MANIMALA.** **BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE** **RESPONDENT(S):COMPLAINANT:** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MANIMALA.** **BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1668 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of May, 2013. ## **JUDGMENT** The accused in this case was prosecuted for the offence punishable under Section 376 of Indian Penal Code. He was found guilty. Therefore, he was convicted for the said offence and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/with a default sentence of six months' imprisonment. Set off was also allowed. 2. The victim in this case is the daughter of P.Ws. 6 and 7. The victim is no more. The allegation is that on two occasions, that is, on 12.6.2001, while the victim had dismounted from the bus and was on her way to School, she was taken by the accused in an autorickshaw under the pretext that the victim's grandmother was sick and she had to go her home and therefore, she went along with the accused in the autorickshaw. On the way, near a forest, the accused and the victim dismounted from the autorickshaw Crl.Appeal.1668/2003. 2 and then the accused dragged the victim into the forest nearby and the sexual assault was committed. The second incident happened on 11.9.2001 at about 3.30 – 4.30 p.m. While the victim was returning home after school. She was approached by the accused, who wanted her to accompany him, and when the victim resisted, she was threatened that he would give publicity to the earlier incident and forced the victim to have sexual intercourse with him. The victim, unable to bear the trauma, laid Ext.P4 first information statement on 22.9.2001. P.W.8 the Assistant Sub Inspector of Police recorded Ext.P4 first information statement and registered crime as per Ext.P4(a) FIR. Investigation was taken over by P.W.9. He had the victim sent for medical examination. P.W.2 examined the victim and furnished Ext.P2 certificate. P.W.9 prepared Ext. P5 mahazar seizing Mos. 2 to 5 which are the dresses alleged to have been worn by the victim at the relevant time. He recorded the statements of witnesses. He seized the dresses said to have Crl.Appeal.1668/2003. 3 been worn by the accused as per Ext.P7 mahazar. He had Ext.P10 extract of the school admission register relating to the victim obtained. He completed investigation and laid charge before court. 3. The court before which final report was laid took cognizance of the offence. Finding that the case is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kottayam under Section 209 Cr.P.C. The said court made over the case to Additional District and Sessions Court, Fast Track (Adhoc) -II, Kottayam for trial and disposal. 4. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Section 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 9 and had Exts.P1 to P12 marked. M.Os. 1 to 7 were got identified and marked. After the close of the prosecution evidence, Crl.Appeal.1668/2003. 4 the accused was questioned under Section 313 Cr.P.C. wherein he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. 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. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the prosecution has succeeded in establishing the act committed by the accused and accordingly found him guilty. Conviction and sentence as already mentioned followed. 6. The said conviction and sentence are assailed in this appeal. 7. Learned counsel appearing for the appellant contended that in the absence of the evidence of the victim, the case has to necessarily rest upon the other circumstantial evidence and in such a situation, the court has to be extremely careful in appreciating the evidence. Crl.Appeal.1668/2003. 5 Learned counsel went on to point out that the claim of forcible sexual assault is belied by Ext.P2, the certificate issued by P.W.2, which does not disclose any external injuries at all. If one goes by the version given by the victim in Ext.P4, she was dragged into the forest and that should have necessarily left some injuries on her body which is not seen mentioned in Ext.P2. There is no evidence, according to the learned counsel, to show that there was any forcible sexual assault on the victim. The court below, according to the learned counsel, has placed considerable reliance on Ext.P4 and the evidence of the parents of the victim, namely, P.Ws.6 and 7, to come to the conclusion that sexual assault has been committed. Referring to the evidence of P.Ws. 6 and 7, it was contended that they are at best only hearsay evidence and no weight can be given to such evidence. It was highlighted that the second incident had occurred on 11.9.2001 and the narration of the incident to the mother of the victim was only on 20.9.2001 and 6 Crl.Appeal.1668/2003. therefore the principle of res gestae also is not attracted. Since the accused did not have the opportunity to test the veracity of the statements contained in Ext.P1, it is of no evidentiary value except for the purpose of showing that the said document set the law in motion. Therefore, according to the learned counsel, these items of evidence cannot be taken aid of to find the accused guilty. 8. Learned counsel then went on to point out that the court below has placed considerable reliance on Ext.P10 document to come to the conclusion that on the relevant date the age of the victim was below 16. Assailing the said finding, learned counsel pointed out that apart from the fact that the said document has not been proved in accordance with law, it is significant to notice, according to the learned counsel, that these documents were not put to the accused while questioning under Section 313 Cr.P.C. and there is a serious legal lacuna which affects the conviction and sentence. In support of the contention that Ext.P10 has not Crl.Appeal.1668/2003. 7 been proved in accordance with law, learned counsel relied on the decisions reported in **Sreedevi Amma v. Jayalakshmi** (1998(1) K.L.T. 197), **Subhash Maruti Vasare v. State of Maharashtra** ((2006) 10 SCC 631) and **J. Yashoda v. K. Shobha Rani** ((2007) 5 SCC 730). According to the learned counsel, even assuming that there was sexual contact between the two, there is nothing to show that either it was forcible sexual assault or that the victim was below the age of 16 at the relevant time. These vital aspects have been omitted to be noticed by the court below and that vitiates the conviction and sentence. 9. Learned Public Prosecutor very vehemently attempted to support the finding of the court below. Learned Public Prosecutor went on to point out that Ext.P4 cannot be brushed aside and that constitutes a valid item of evidence which shows that the victim was sexually assaulted against her will and consent. The said document is produced during the evidence of P.W.8, Assistant Sub 8 Crl.Appeal.1668/2003. Inspector, who had recorded the same. The parents of the victim, according to the learned Public Prosecutor, P.Ws. 6 and 7, have also stated that their daughter, who is no more, told about the violation of her body committed by the accused and their evidence supports the prosecution version. Relying on Ext.P10 and the evidence of P.W.9, it was contended that no objection was taken at the time of marking Ext.P10 and it is too late in the day for the appellant to say that the document cannot be looked into for want of proper proof. The court below has considered the evidence in considerable detail and has come to the conclusion that the offence has been made out. The findings are essentially based on the evidence on record, and there is nothing to show that those findings are either perverse or contrary to the evidence on record. Learned Public Prosecutor went on to point out that even if this court feels that a different view is possible, it may not be a Crl.Appeal.1668/2003. 9 ground to interfere with the conviction and sentence passed by the court below. 10. Unfortunately, the victim was no more at the time of trial. Therefore, we do not have the facility of having first hand information about the incident. Ext.P4 is the FIS said to have been laid by the victim. That piece of document can be used only for corroborating or contradicting the author of the statement. Since the author of the statement is not available, its evidentiary value is not much. But it may be treated as a document which set the law in motion. 11. Even assuming that the victim of assault is not alive as on the date of trial, that does not mean that the accused is entitled to claim that there is nothing to show that the assault has infact been committed. The court below has placed considerable reliance on the evidence of P.Ws.6 and 7, so also the evidence of P.W.2, the doctor and so also Ext.P10. Crl.Appeal.1668/2003. 10 12. One may recollect here that the two incidents which are said to have occurred are on 12.6.2001 and 11.9.2001. On 12.6.2001, the prosecution case is that, after the victim had dismounted from the bus while she was on her way to school, the accused came there in an autorickshaw and told her that her grandmother was seriously ill and her mother asked him to take her home. The victim went along with him and then the accused sexually assaulted her. On the second occasion, that is, on 11.9.2001, while the victim was returning home after school hours, it is claimed that the accused asked her to go along with him and threatening her with dire consequences if she refused to go along with him, compelled her to go along with him and committed the act. 13. Even going by the evidence of P.Ws.6 and 7, the incident was divulged to them only on 22.9.2001. It need not be emphasized that that their evidence is hearsay evidence. Considering the proximity of time at which the Crl.Appeal.1668/2003. 11 incident was revealed to P.Ws.6 and 7, it could not be said that their evidence falls within the ambit of res gestea also. 14. Coming to the evidence of P.W.2, the doctor, who examined the victim, of course the doctor's evidence shows that there was indication of vaginal penetration. But Ext.P2 as well as the evidence of P.W.2 show that the doctor was unable to notice any external injuries on the body of the victim. 15. As already stated, the victim was not available at the time of trial. One may recall the first incident which had occurred on 12.6.2001. The case is that on that day, the accused made the victim to believe that her grandmother was ill and she was to be taken home and then took her in an autorickshaw to the place. Surprisingly enough, it is seen that on the way, the autorickshaw stopped and both of them dismounted from the autorickshaw. It is not possible to understand what made the victim to dismount from the autorickshaw when she was 12 Crl.Appeal.1668/2003. aware that she had not reached her home. There is no case for the prosecution, as could be seen from Ext.P4, that she was forced to get out of the autorickshaw. The version in Ext.P4 would indicate that she had voluntarily come out of the autorickshaw. It is taking aid of this fact that the defence contends that if at all any physical contact was occurred, it was a consensual act. Whatever that be, there is some evidence to show that there has been sexual contact and there has been vaginal penetration. 16. The prosecution relied on the age of the victim to contend for the position that even assuming that there was consent, since the victim was below the age of 16 at the relevant time, consent has no relevance. This is the main plank of their contention. The court below accepted the evidence of P.W.9, took aid of Ext.P10 and came to the conclusion that as claimed by the prosecution, the victim was below the age of 16 at the relevant time. Crl.Appeal.1668/2003. 13 17. The question is whether, the said finding can be accepted. 18. Ext.P10 which is marked through P.W.9 is only the extract of the school admission register from the school where the victim is alleged to have been studying at the relevant time. That shows that her date of birth was 21.1.1986. 19. It is significant to notice that neither the author of Ext.P10 is examined nor was there any attempt to get down the register on the basis of which Ext.P10 was drawn up. 20. The contention by the learned Public Prosecutor that since no objection is taken at the time of admission of the document, the defence cannot now contend that it cannot be looked into cannot be accepted. It is one thing to say that the document is admitted and it is another thing to say that the document is proved. Merely 14 Crl.Appeal.1668/2003. because a document is admitted in evidence, it does not mean that it has been proved in accordance with law. 21. A perusal of Ext.P10 shows that the school from which it was issued is not the first school attended by the victim. She has come by way of transfer to the said school. Apart from the fact that none from the school which issued Ext.P10 has been examined, it is also significant to notice that neither of the parents of the victim, i.e., P.Ws.6 and 7 speak anything about the date of birth of the victim. It must also be noticed that in all the documents produced by the prosecution and marked in evidence, the age is shown as 16 years. As to how the age is to be proved has been considered by this court in an unreported decision in Crl.Appeal No.438 of 2006 disposed of by judgment dated 3.4.2013. In that decision, this court elaborately considered the various decisions and has come to the conclusion that unless there is supporting evidence, mere entry in a school Crl.Appeal.1668/2003. 15 admission register by itself is not sufficient to come to a conclusion regarding the date of birth of the victim. 22. Learned counsel for the appellant may be justified in her submission that Ext.P10 can be treated as only secondary evidence since the register on the basis of which the entry has been made has not been produced. But that issue need not detain much long. It is true that Ext.P10 has been marked. Except for Ext.P10, there is no other evidence regarding the age of the victim at the relevant time. Even though Ext.P10 was got marked through P.W.9, certainly he was not competent to prove the said document. The contents of the document remain unproved. The view of the court below that since Ext.P10 has not been challenged by the accused, it can be relied on does not appear to be correct. Initially, it has to be seen whether the document has been properly proved. It has already been found that it has not been proved as is required under law. Crl.Appeal.1668/2003. 16 23. There is yet another significant aspect. The court below has placed implicit faith and reliance on Ext.P10 to come to the conclusion that the age of the victim was below 16 years at the relevant time. Surprisingly enough the said item of evidence has not been put to the accused while he was questioned under Section 313 Cr.P.C. and his explanation was not sought for. It is well settled by now that an item of evidence, on which reliance is placed by the prosecution, unless it is put to the accused and his explanation is sought for, cannot be relied on by the court to pass a conviction. On this ground also, Ext.P10 cannot be accepted as proof of the age of the victim. 24. Thus, it could be seen that none of the grounds relied on by the court below can be justified on the evidence on record to come the conclusion that the allegation against the accused has been proved beyond reasonable doubt. This court is unable to sustain the Crl.Appeal.1668/2003. 17 conviction and sentence passed by the court below for the reasons already made mention of. In the result, this appeal is allowed, the conviction and sentence passed by the court below are set aside and it is held that the accused is not guilty of the offence under Section 376 of the I.P.C. and he stands acquitted of the said offence. If he has paid the fine amount, the same shall be refunded to him. Bail bond, if any, executed shall stand cancelled and he is set at liberty. P. BHAVADASAN, JUDGE sb.