Sandeep v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **CRL.A.No.497 OF 2018** **AGAINST THE JUDGMENT IN SC 526/2014 DATED 13-03-2018 OF SPECIAL COURT UNDER POCSO ACT, MANJERI** ## **APPELLANT/ACCUSED:** **SANDEEP** **AGED 32 YEARS, S/O.KUNHAN, PATTATH HOUSE, CHENGOTTOOR P.O., AKKAPARAMBA, KOTTAKKAL, MALAPPURAM DISTRICT.** **BY ADVS. SRI.P.SAMSUDIN SRI.JITHIN LUKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE INSPECTOR OF POLICE, TIRUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1902-2020, THE COURT ON 02-03-2020 DELIVERED THE FOLLOWING:** 2 Crl. Appeal No.497 of 2018 ## **P.B.SURESH KUMAR, J.** **------------------------------------------Criminal Appeal No.497 of 2018 ----------------------------------------------Dated this the 2[nd] day of March, 2020.** ## **J U D G M E N T** This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.526 of 2014 on the files of the Additional Sessions Court-I (Special Court for the trial of offences punishable under the Protection of Children from Sexual Offences Act), Manjeri. 2. The appellant is the sole accused in the case. The accusation against the accused is that on 27.06.2014, he committed penetrative sexual assault on the victim girl aged 17 years at a place near her residence. It is also alleged that thereafter, on 10.07.2014 also, the accused committed penetrative sexual assault on the victim girl at her residence. 3 Crl. Appeal No.497 of 2018 The offences alleged against the appellant are offences punishable under Sections 450 and 376 of the Indian Penal Code (IPC) and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the Act). 3. The crime from which the case arose was one initially registered by the police under Section 57 of the Kerala Police Act on a complaint from the father of the victim girl that the victim girl is missing. Later, it was found that the victim girl had eloped with the accused. The police traced out the victim girl and the accused from Raichur in the State of Karnataka. Thereafter, the Sections under which the case was registered initially were altered to Sections 450 and 376 of IPC and Section 5(l)read with Section 6 of the Act. 4. On the accused pleading not guilty of the charges framed against him, the prosecution examined 10 witnesses as PWs.1 to 10 and proved 17 documents as Exts.P1 to P17. The witnesses examined on the side of the prosecution have also 4 Crl. Appeal No.497 of 2018 identified M.Os.1 to 3 material objects. The accused was thereupon questioned by the court under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence. 5. Among the witnesses examined on the side of the prosecution, PW1 is the Sub Inspector of Police, who has registered the crime. He has proved Ext.P1 First Information Statement given by the father of the victim girl as also Ext.P1(a) First Information Report. PW2 is the victim girl. PW2 has proved Ext.P2 statement given by her before the Magistrate under Section 164 of the Code. PW3 is the Secretary of the Grama Panchayath concerned. PW3 has proved Ext.P3 ownership certificate of the residential house of the victim girl. PW4 is the father of the victim girl. PW5 is the Police Officer who has traced 5 Crl. Appeal No.497 of 2018 out the accused and the victim girl from Raichur. He has also proved Ext.P4 report furnished to the Special Court for altering the particulars of the offences committed by the accused. PW6 is the doctor who has examined the accused and issued Ext.P5 certificate of examination of potency. PW7 is the doctor who has examined the victim girl and issued Ext.P6 report. PW8 is the witness to Ext.P7 Mahazar. PW9 is the Circle Inspector of police who has conducted the investigation in the case. PW9 has proved Ext.P8 scene Mahazar, Ext.P9 report to add the name and address of the victim, Ext.P10 arrest memo, Ext.P11 Inspection memo, Ext.P12 report to add the the name and address of the accused, Ext.P13 Seizure Mahazar, Ext.P14 and Ext.P15 Plans, Ext.P16 property list and Ext.P17 report from the Regional Forensic Science Laboratory. PW10 is the police officer who has taken the statement of the victim girl and sent her to the doctor for examination. 6. On an appreciation of the materials on record, the court below found the accused guilty of offences punishable 6 Crl. Appeal No.497 of 2018 under Sections 450 and 376(1) of the Indian Penal Code and Sections 5(l) read with Section 6 of the Act and convicted him for the said offences and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default to pay fine to undergo imprisonment for a period of one month under Section 450 of the Indian Penal Code and rigorous imprisonment for 10 years and to pay fine of Rs.5000/- in default of payment of fine to undergo imprisonment for five months under Section 5(l) read with Section 6 of the Act. The accused is aggrieved by the conviction and sentence. 7. Heard the learned counsel for the appellant as also the leaned Public Prosecutor. 8. The learned counsel for the appellant contended that the evidence let in by the prosecution do not make out a case either under Sections 450 and 376(1) of the Indian Penal Code or under Sections 5(l) read with Section 6 of the Act. It was specifically contended by the learned counsel that the materials 7 Crl. Appeal No.497 of 2018 on record would indicate beyond doubt that it is a case where the victim girl fell in love with the accused and eloped with him. It was pointed out by the learned counsel that the prosecution has no case that the accused had physical relationship with the victim girl after she left with him and before they were traced out at Raichur. According to the learned counsel, it is thereafter that a case is developed to the effect that before the victim girl had eloped with the accused, the accused had sexual intercourse with the victim girl twice. It was contended by the learned counsel that the materials on record would indicate beyond doubt that the aforesaid is a false case. The learned counsel has attempted to substantiate the said case by pointing out that it is a case where the statement of the victim girl was taken under Section 164 of the Code and the victim girl has not disclosed about the alleged physical relationship with the accused in the said statement. The learned counsel has also contended that the evidence tendered by PW2, the victim girl, as regards the physical relationship with the accused, if at all believed, would 8 Crl. Appeal No.497 of 2018 only indicate that it was consensual sex. According to the learned counsel, even if the evidence tendered by PW2 is found to be believable, the same would make out the offences only if it is established that the victim girl was a minor at the time of the alleged occurrences. It was pointed out by the learned counsel that the materials on record do not indicate that the victim was a minor at the time of the alleged occurrences. It was specifically contended by the learned counsel that no evidence, whatsoever, was let in by the prosecution to prove the age of the victim girl. It is stated that the only evidence tendered in order to prove the age of the victim girl is the evidence of the victim girl herself, which could only be a hearsay. It was argued by the learned counsel that the point relating to the age of the victim girl was answered by the court below in favour of the prosecution, placing reliance on the statements given by the accused under Section 313 of the Code and the same can never be treated as evidence and there cannot be any conviction solely based on the statement given under Section 313 of the Code. 9 Crl. Appeal No.497 of 2018 9. Per contra, the learned Public Prosecutor submitted that it is a case where the victim herself has deposed about her date of birth, and there was no cross examination as regards the said part of the deposition of the victim. It was pointed out by the learned Public Prosecutor that going by the date of birth spoken to by the victim girl, it can be seen that the victim girl was a minor at the time of the alleged occurrences. It was also pointed out by the learned Public Prosecutor that PW4, the father of the victim girl has also given evidence to the effect that the victim girl was aged only 16 years at the time of the alleged occurrences and even the said evidence was not challenged in cross examination by the accused. The learned Public Prosecutor has also placed reliance on the statement given by the accused under Section 313 of the Code as regards the evidence tendered by the victim girl as to her date of birth to bring home the point that the prosecution has proved the age of the victim girl beyond doubt . 10. In the light of the submissions made by the 10 Crl. Appeal No.497 of 2018 learned counsel for the parties on either side, the following points arise for consideration: 1) Whether the prosecution has proved its case that the accused had physical relationship with the victim girl on 27.06.2014 as also on 10.07.2014 as alleged. 2) Whether the prosecution has proved its case that the victim girl was a minor on the dates of the alleged occurrences namely 27.06.2014 and 10.07.2014. 11. The points:- It has come out in evidence that it is a case where the victim girl fell in love with the accused who belongs to a different community and when the family of the victim girl objected to the relationship, she eloped with the accused. It has also come out that a few days later, the police traced out the victim girl and produced her before the Jurisdictional Magistrate and she then expressed her desire to go with her parents and accordingly she was sent by the Jurisdictional Magistrate with her father. It has also come out that 11 Crl. Appeal No.497 of 2018 it is thereafter that the particulars of the offences alleged at the time of registering the crime were altered to Sections 450 read with 376(1) of the IPC and Section 5(l) read with Section 6 of the Act. The evidence let in by the prosecution to prove the guilt of the accused has to be appreciated in the above background. 12. In order to prove the alleged occurrences dated 27.06.2014 and 10.07.2014, the prosecution rely on the evidence of the victim girl as PW2, as also the evidence of PW7, the doctor who has examined the victim girl. In the evidence tendered by the victim girl, she has stated that she fell in love with the accused and she left with him as her family objected their relationship. In her evidence, she has stated about the physical relationship she had with the accused on the alleged dates as well. The question is as to whether the said version of the victim girl could be believed. First of all, in Ext.P2 statement given by the victim girl before the Magistrate under Section 164 of the Code which was proved by her, she did not say anything about the alleged physical relationship with the accused. Further, in 12 Crl. Appeal No.497 of 2018 cross examination, PW2 has conceded that she was compelled by her family to break up the relationship with the accused. The omission on the part of the victim girl to divulge anything about the alleged physical relationship with the accused to the Magistrate, according to me, creates a strong suspicion as to the reliability of the evidence tendered by the victim girl. When the victim girl was questioned in her cross examination about this fatal omission, she pleaded ignorance of the same. True, PW7 doctor has opined that on examination of the victim girl, she has found evidence of past vaginal penetration. In Ext.P6 report, the doctor has also stated that the hymen of the victim girl was found torn. Merely for the reason that the hymen was found torn, it cannot be concluded that the victim girl must have had physical relationship. Similarly, merely for the reason that PW7 found evidence of past vaginal penetration on examination of the victim girl, it cannot be said that the accused has committed penetrative sexual assault on her, in the absence of any convincing evidence as to the alleged physical relationship the 13 Crl. Appeal No.497 of 2018 accused had with the victim girl. In other words, according to me, the evidence tendered by the victim girl and the doctor as PW2 and PW7 would not establish that the accused had physical relationship with the victim girl. 13. Be that as it may, even assuming that the evidence tendered by PW2 that the accused had physical relationship with her on 27.06.2014 and 10.07.2014 is reliable, the said evidence would not indicate that the physical relationship spoken to by the victim girl was against her will or without her consent. The evidence would only indicate that the physical relationship was consensual. Even if the relationship was consensual, the accused is guilty of the offences alleged, if it is established that the victim girl was a minor at the time of the occurrences. That brings us to the question as to whether the prosecution has established that the victim girl was a minor at the time of the alleged occurrences. 14. In order to prove the age of the victim girl, the 14 Crl. Appeal No.497 of 2018 prosecution relies on the oral testimony of the victim girl as regards her date of birth. It is said that there is a golden thread which runs through the provisions of the Evidence Act relating to admissibility of evidence, and the same is the best evidence rule. The said rule compels a person adducing evidence to prove a fact to produce the best evidence available. In other words, in a case where the best evidence is not adduced, the court is not obliged to accept the fact as proved. In **Mahadeo v. State of Maharashtra** , (2013) 14 SCC 637, it was held by the Apex Court that the procedure prescribed for ascertainment of the age of the juvenile can be followed by the courts for the purpose of ascertaining the age of the victim as well. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which was in force at the time when the alleged occurrences took place, provided that the age of the child has to be proved by producing the matriculation or equivalent certificates, if available, and in the absence whereof; by producing the date of birth certificate from the school first attended by the child, and in the absence 15 Crl. Appeal No.497 of 2018 whereof, the birth certificate given by the competent authority. In terms of the said Rules, if all the aforesaid documents are absent, the age has to be proved by medical evidence. It has been held by the Apex Court in a long line of decisions that even an entry in a public or other official book, register or record containing the date of birth would not be sufficient to prove the date of birth of a person unless the same is corroborated by the evidence of the person on whose information the entry was made [See **Madan Mohan Singh and Ors** v. **Rajni Kant and Anr** , AIR 2010 SC 2933]. 15. Reverting to the facts, the prosecution has not produced any of the three documents provided for under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which was in force at the time when the alleged occurrences took place. The prosecution has also not produced any other document to prove the age of the victim girl. The prosecution has also not examined the parents of the victim girl to prove the age of the victim girl. Instead, the prosecution has 16 Crl. Appeal No.497 of 2018 chosen to place reliance on the oral testimony of the victim girl that she was born on 06.01.1998, to prove the age of the victim girl. The said evidence, according to me, is only a hearsay and the same was not sufficient to establish the age of the victim girl. 16. The learned Public Prosecutor has strenuously argued that the evidence tendered by the victim girl as regards her date of birth has not been cross examined by the accused and that he is therefore, precluded from contending that the prosecution has not proved the age or date of birth of the victim girl. There is no merit in this contention. Insofar as the evidence tendered by the prosecution in this regard is only a hearsay, it is irrelevant as to whether the accused had cross examined the witness as regards that part of the evidence. Placing reliance on the evidence tendered by PW4, the father of the victim girl that the victim girl was born during 1998, the learned Public Prosecutor has also contended that the said evidence is sufficient to establish the age of the victim girl. I do not agree. The evidence tendered by PW4 in this regard reads thus: 17 Crl. Appeal No.497 of 2018 “സസഭവകകലസ PW2 നന 16 വയസകണന. 1998 ലആണനജനനസഎന ” തതകനന . The said evidence would indicate that even the father of the victim girl is not sure as to the date of birth or year of birth of the victim girl. It is unsafe to place reliance on the evidence of the aforesaid nature to find the guilt of the accused in a case of the present nature. The said argument of the learned Public Prosecutor is also therefore only to be rejected. Lastly, the learned Public Prosecutor contended that the accused has not disputed the correctness of the evidence tendered by the victim girl as regards her date of birth, in his statement under Section 313 of the Code and that therefore, the accused is precluded from contending that the prosecution has not proved the age of the victim girl. I find no merit in this contention as well, for, the statement under Section 313 of the Code is not a substantive piece of evidence, on the basis of which a person could be convicted [See **Raj Kumar Singh v. State of Rajasthan** , (2013) 5 SCC 722]. 18 Crl. Appeal No.497 of 2018 17. In short, I am constrained to hold that the prosecution has not established the age of the victim girl satisfactorily. In other words, it cannot be held that the prosecution has established the guilt of the accused. 18. In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him by the Court of Session are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration. **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** PV