Sanjeeva K. v. State of Kerala

Crl.A. No. 420 of 2021 -:1:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 30[TH] DAY OF MAY 2024 / 9TH JYAISHTA, 1946 ``` ``` CRL.A NO. 420 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 27.04.2021 IN SC NO.504 OF ``` ``` 2016 OF SPECIAL COURT FOR ATTROCITIES AGAINST WOMEN AND ``` ``` CHILDREN (ADDL. SESSIONS COURT-I), KASARAGOD ``` ``` APPELLANT/ACCUSED No.2: ``` ``` SANJEEVA K. AGED 36 YEARS S/O. (LATE) KAVU, R/AT KERA HOUSE, KANYAPPADI, NEERCHAL VILLAGE, KASARAGOD DISTRICT. ``` ``` BY ADV. KODOTH SREEDHARAN ``` ## **`RESPONDENTS/COMPLAINANT :`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031. ``` ``` BY PUBLIC PROSECUTOR, SMT. MAYA M.N. ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.04.2024, THE COURT ON 30.05.2024 DELIVERED THE FOLLOWING: ``` Crl.A. No. 420 of 2021 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 420 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of May, 2024 ## **JUDGMENT** The appeal on hand is directed against the judgment passed by Special Court for Atrocities against Women and Children (Additional Sessions Court-I, Kasaragod) in SC No.504/2016. By the judgment the 2[nd] accused in the case on hand who faced trial for the offence under Section 376(2)(n) of Indian Penal Code, 1860 (for short ‘IPC’) and Section 5(l) read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) was found guilty for both the offences and convicted and sentenced to undergo rigorous imprisonment for a period of twenty years and fine of `1,00,000/- and to undergo rigorous imprisonment for six more months under Section 6 of POCSO Act, in default of payment of fine. 2. Prosecution examined PWs 1 to 15. The minor girl who allegedly was subjected to rape by the accused was examined as Crl.A. No. 420 of 2021 -:3:- PW1. She lodged the First Information Statement marked in evidence as Ext.P1 to set the law in motion with regard to the alleged incident of sexual molestation. Admittedly a statement was also given by her to the Magistrate under Section 164 of the Code of Criminal Procedure,1973 (for short ‘the Cr.P.C.’), which is marked in evidence as Ext.P2. The place of incident was also shown by her to the police, following which the scene mahazar was prepared by the police. She deposed categorically that a relative of the 2[nd] husband of her mother sexually abused her from a place called Mavvar. She had produced her Churidar top and two pants which were marked on the basis of her identification in the court during trial as MO1 series. According to her, she was born on 24.07.2001. 3. The grandmother of PW1 had spoken about the incident to an Anganawadi worker of Kalamakai Anganawadi and she informed that to Smt.Deepa, the counsellor. She was examined by the prosecution as PW2. During the examination, she deposed the above aspects and further more that the police visited the Anganawadi and as requested by them, she accompanied them to the house of CW2 and there, the victim girl Crl.A. No. 420 of 2021 -:4:- stated the incident to the police. According to her, the accused is none other than the husband of the younger sister of the mother of the victim girl, residing in that house. 4. A scene mahazar was prepared by the Investigating Officer. The Civil Police Officer who has accompanied him as driver of the vehicle as examined as PW3. During trial he identified his signature and it was marked in evidence as Ext.P3. The Civil Police Officer of Adhur Circle Office was the driver of the vehicle in which the Investigating Officer travelled to the house of CW2 to visit her. There, he witnessed the handing over of the dresses by the victim girl stating that those were worn by her at the relevant time of the incident in question. Those were seized and a seizure mahazar was prepared, marked in evidence as Ext.P4. A lunki was produced by the accused to the Investigating Officer and it was seized after preparing a seizure mahazar, marked in evidence as Ext.P5. During trial he identified the dresses of the victim and the lunki of the accused, respectively marked as MO1 series and MO2. 5. The Junior Medical consultant of General Hospital, Kasaragod who examined PW1 at General Hospital, Kasaragod on Crl.A. No. 420 of 2021 -:5:- 22.04.2016 was examined as PW5 and the report of examination of the victim girl issued by him was marked in evidence as Ext.P6. 6. The counsellor of Government Vocational Higher Secondary School Karaduka was examined as PW6 and she deposed to have obtained information about the incident in question from PW2, therefore she went to enquire about. PW1 told her that she was sexually assaulted by the husband of the younger sister of her mother several times. Thus she informed the Child Welfare Committee and the District Child Protection Unit. 7. The Headmaster in charge of Karaduka Government Vocational Higher Secondary School was examined as PW7. He produced the extract of the Admission Register maintained at the School, marked in evidence as Ext.P7. The date of birth of PW1 is disclosed from Ext.P7 as 24.07.2001. 8. A certificate of ownership of the building where the incident was allegedly occurred was procured from the Secretary of Karaduka Grama Panchayat. He was examined as PW8 and Crl.A. No. 420 of 2021 -:6:- the certificate, marked in evidence as Ext.P8. As per Ext.P8, one Mrs.Savithri was the owner of the building. 9. The Special Village Officer of Adhur Village Office was caused to prepare a site plan which was marked in evidence as Ext.P9. 10. The counsel of District Child Protection Unit examined as PW10 deposed that the victim was visited by him after getting the information about the incident in question from PW6. She enquired about the incident and gave her counselling. A report of enquiry was given by her to the Child Welfare Committee, Kasaragod. The accused was medically examined to ascertain his potency and a report was issued, where it was reported after examining him that nothing suggestive of his incapacity to perform sexual acts was found. The report is marked in evidence as Ext.P10. 11. The statement of PW1 was recorded by the Sub Inspector of Vanitha Cell, Kasaragod from her house on 22.04.2016 in the presence of her grandmother as well as PW2 and produced the same before the SHO, Aadhur, who registered the crime. He was examined as PW14 and the FIS and the FIR Crl.A. No. 420 of 2021 -:7:- marked in evidence respectively as Exts.P1 and P12. The case was investigated by the Circle Inspector of Adhur Police Station. Accused No.2 surrendered and was obtained in police custody and his dress was seized. The investigation was completed by PW13 and a chargesheet was laid against the accused before the court. 12. On completion of the prosecution evidence the accused was questioned under Section 313 (1) (b) Cr.P.C. with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all questions put to him and filed a written statement under Section 313 (5) Cr.P.C. Where the case in question was contended as a foisted one as well as outcome of an afterthought, in view of the delay occurred in setting the law in motion. A plea of _Alibi,_ was also taken. The accused did not avail the opportunity granted to him to adduce evidence. 13. The trial Judge upon appreciation of the entire evidence and evaluation of the arguments advanced by the learned Public Prosecutor and defence counsel, arrived at a finding of guilt of the accused under Section 5 read with Section 6 of the POCSO Crl.A. No. 420 of 2021 -:8:- Act and Section 376 (2) (n) IPC. The accused was therefore convicted and sentenced to undergo rigorous imprisonment for 20 years, to pay a fine of 1,00,000/- and to undergo rigorous imprisonment for six months, in default of payment of fine under Section 6 of the POCSO Act. The fine on realisation was ordered to be paid to the victim as compensation under Section 357 Cr.P.C. Set off for the period already undergone in custody was also allowed. 14. Sri.Kodoth Sreedharan filed the appeal on hand on behalf of the accused. According to him, the judgment suffers for illegality, impropriety and infirmity. He centered his arguments mainly on two points. The argument firstly raised was that the prosecution thoroughly failed to prove the age of the victim girl and thereby her minority at the relevant time of commission of the offences. According to him, the oral evidence of PW7 and Ext.A7 marked through him, in no way helped the prosecution to establish that the victim girl was a minor at the relevant time of commission of the offence. **Jarnail Singh V. State of Hariyana [(2013) 7 SCC 263]** and **Surendran M @ Kalyani Surendran** [2021 (3) KLT 205] were also relied on to Crl.A. No. 420 of 2021 -:9:- rest his contention. The argument advanced with specific reference to Ext.A7 that it was not the extract of the Admission Register maintained and issued from the school where the victim studied firstly for education. The argument secondly advanced was with regard to the contradictions in the version of PW1 herself about the incident and therefore, uncreditworthiness of her version. According to him the FIS was lodged belatedly and the delay was also not explained by her during examination as PW1 as well as by the investigating officer examined as PW13 or PW14. According to him the unexplained delay would go to show that time was consumed by PW1 in concocting the case. The learned counsel thus canvassed to reverse the finding of guilt of the accused, orders of conviction and sentence and thereby to acquit the accused. 15. The argument advanced on failure of the prosecution to prove the age of minority of the victim was dealt with in the backdrop of the oral evidence of PW7, Ext.P7 and the decisions on which reliance was placed by the learned counsel for the appellant. Crl.A. No. 420 of 2021 -:10:- 16. Ext.P7 is the extract of the Admission Register procured by the prosecution from Government Vocational Higher Secondary School, Karaduka through PW7. Ext.P7 was deposed as issued by him and according to him the date of birth of the victim was reported there as 24.07.2001. But, during cross examination, he failed to state the school in which PW1 studied prior to her admission, wherefrom Ext.P7 was drawn and issued and also about the person who brought her for admission there. It was stated by PW1 that she had her primary education upto 5[th] standard from Poongad Government School and the studies there was discontinued due to the death of her maternal grandfather. She also did not say, who made her to admit in Karaduka Government Vocational Higher Secondary School. 17. In **Jarnail Singh** supra relied on by the learned counsel for the appellant, it was held by the Apex Court:- “Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and Crl.A. No. 420 of 2021 -:11:- appropriate to apply Rule 12 of the 2007 Rules, to determine - the age of the prosecutrix VW PW6. The manner of determining the age conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. ” (emphasis supplied) Crl.A. No. 420 of 2021 -:12:- ## 18. In **Surendran M @ Kalyani Surendran** [2021 (3) KLT ## 205] a Division Bench of this Court held: “ True, the certificate cannot be accepted without further proof, but the mother of the victim PW-2 spoke in tandem with the certificate. In cross examination PW-2 first stated that the date of birth as given at the school was not the actual date. But to a suggestion that the date of birth as seen from the Admission Register is false, she replied that the date of birth is 25/06/1997; which is the date seen in the certificate. She had also deposed that the child was taken for admission to the School by herself and her husband. In the totality of the circumstances we are of the opinion that the mother’s evidence as corroborated by Exhibit P18 Certificate can be accepted and the victim found to be a minor at the relevant time.” ## 19. In **Alex P.V** . **V** . **State of Kerala [2021 KHC 405]** supra relied on by the learned counsel for the appellant, it was held by a Division Bench of this Court: “ Here, the mother was examined as PW4, who was not asked the date of birth of the victim, in chiefexamination. We also reject the contention of the Senior GP that if the accused had questioned the document and raised a dispute, definitely the prosecution would have produced a valid birth certificate. The accused has no obligation to so invite the prosecution to establish the date of birth of the victim. It is the prosecution’s bounden duty to establish every material fact and circumstance before the Trial Court. Crl.A. No. 420 of 2021 ## -:13:- In the above case, no such valid proof was offered and although the young victim was studying in a school, we are unable to find her age to be below 16 or even below 18; for reason of no valid proof offered. It is the failure of the prosecution and they cannot cover themselves up by alleging that the accused never raised a dispute”. The decisions above, insist for the evidence of a person who has direct knowledge of the fact in issue or the person who passed the information about the date of birth to the authorities of the School so as to enter it in the Register maintained, as proof of the age of the victim. The mother was examined in both cases and her version was relied on as proof of the age of the victim. 20. In the case on hand, the commission of the alleged offence was on November, 2015. At the relevant time Juvenile Justice (Care and Protection of Children) Act, 2002 and Juvenile Justice (Care and Protection of Children) Rules, 2007 were in prevalence and the age of the victim has to be determined as directed by Rule 12 of the Rules 2007. In **Jibi v. State of Kerala** in Crl.A.No.362 of 2018, the alleged date of occurrence was October, 2015. Juvenile Justice (Care and Protection of Crl.A. No. 420 of 2021 ## -:14:- Children) Act, 2000 was re-enacted and it paved way for reenacting Juvenile Justice (Care and Protection of Children) Act, 2015, and it came into force on 15.01.2016. Since the incident in the case on hand was occurred in the month of November, 2015, when the Juvenile Justice (Care and Protection of Children) Act, 2000 was in prevalence, the directions in Rule 12 of Rules 2007 framed thereunder have to be followed for proving the age of the victim at the relevant time of commission of the alleged offence. Rule 12 is extracted hereunder for easy reference : ## “ **12. Procedure to be followed in determination of Age.** ― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (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, the Committee by seeking evidence by obtaining – Crl.A. No. 420 of 2021 -:15:- (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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. Crl.A. No. 420 of 2021 -:16:- (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 21. As held by the Apex Court in **Jarnail Singh** supra, when the proof under 1[st] and 2[nd] options of Rule 12 was not available, then the court has to look on the 3[rd] option ie., to rely on the extract of the admission register of the school where the victim was admitted for education, first in point of time. 22. In **Jarnail Singh** supra, the Hon’ble Supreme Court after drawing support from Juvenile Justice (Care and Protection of Children) Rules, 2007 held that the extract of the admission register from the school which was first attended to by the victim is a sufficient proof for determining the age of a child who was a victim of a crime involving sexual assault. Crl.A. No. 420 of 2021 -:17:- 23. In the case on hand, the extract of the admission register maintained in a school where the victim joined in the 6[th] standard to continue her studies is marked in evidence by the prosecution as Ext.P7. Regarding the person who supplied the information to the school authorities about her date of birth so as to cause the entry in the Admission Register, evidence is not forthcoming. As revealed from the prosecution case, the mother of the victim abandoned her. She was not made a witness by the prosecution. The Headmaster examined as PW7 also did not say anything about the person who approached the school to admit the girl and who supplied the information about the date of birth of the victim to him. Therefore, Ext.P7 cannot be relied on as the proof of date of birth of the victim. Thus, the prosecution is thoroughly failed to prove the age of the victim and also the guilt of the accused under Section 5 read with Section 6 of the POCSO Act. 24. Accused faced trial for an offence charged against him under Section 376 (2)(n) IPC, which reads:- **“376. Punishment for rape.** —(1) xxxxxxx. (2) Whoever,— xxxxxxxx Crl.A. No. 420 of 2021 ## -:18:- (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. “ 25. An allegation was also raised by the learned counsel for the accused that the oral evidence of the prosecutrix in the case on hand is not liable to be believed in view of the unexplained delay occurred in lodging the FIS and setting of law in motion. On a scrutiny of the evidence of PW1, there is every reason that convinces this Court to take a view that PW1 is a reliable witness and what have been spoken by her is only truth. The lengthy cross examination of PW1 by the defence did not bring in anything to view her version with suspicion. All aspects of the case of sexual molestation by the accused have been spoken by her precisely and her version is only to be accepted. True that delay was occurred in lodging the FIS and thereby setting the law in motion. It has been settled by the Apex Court that the delay in cases of the nature is immaterial and the evidence of the prosecutrix, if not controverted or defeated by the defence in material aspects during cross examination, can be Crl.A. No. 420 of 2021 -:19:- relied on safely by the court to arrive at a finding of guilt of the accused for the offences. The trial court after thorough scrutiny found the version of PW1 credible and thus arrived at the finding that he is guilty of the offence under Section 376(2)(n) IPC and convicted and sentenced him **.** Therefore, the finding of guilt of the accused for the above offence and the order of conviction followed it deserve to be confirmed and this Court do so. 26. As already stated, the trial court found the accused guilty of the offence under Section 5 of the Act and convicted and sentenced him under Section 6 of the Act, solely upon an erroneous appreciation of the evidence. The trial court also found the accused guilty of the offence under Section 376(2)(n) IPC. Punishment was imposed only for the offence under Section 5 read with Section 6 of POCSO Act by invoking the jurisdiction under Section 42 POCSO Act, it being an offence inviting the major punishment. 27. Since this Court has found the accused not guilty for the offence under Section 5 POCSO Act, the finding arrived at by the trial court in that regard and the orders of conviction and sentence passed are only liable to be reversed and this Court do Crl.A. No. 420 of 2021 -:20:- so. The finding of guilt of the accused under Section 376(2)(n) IPC is upheld. 28. The learned counsel for the appellant, as a last resort sought for modification of the sentence imposed. As far as the sentence is concerned, it is found that the trial court has imposed the maximum punishment prescribed under Section 376(2)(n) IPC. The minimum punishment prescribed is imprisonment for 10 years and the maximum is imprisonment for life, which means imprisonment for a term of the natural life of a man and fine. It appears that the provision imposing punishment provides for exercising the discretion by the Court in the matter. It was brought to notice that the accused has four children. Taking into account of that aspect and the authority conferred on the court to exercise discretion in the matter, this Court finds it expedient in the interest of justice to modify the sentence. Minimum punishment liable to be imposed being 10 years, while confirming the finding of guilt of the accused under Section 376(2)(n) IPC, this Court is inclined to modify the sentence by imposing the minimum, i.e. rigorous imprisonment for 10 years. The Crl.A. No. 420 of 2021 -:21:- imposition of fine amount is maintained and the default sentence is modified to one year. Appeal is allowed in part accordingly. Sd/- **MARY JOSEPH JUDGE** ttb