Santoshkumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945 CRL.A NO. 623 OF 2019 ``` ``` CRIME NO.745/2014 OF PARAVUR POLICE STATION, KOLLAM. AGAINST THE JUDGMENT DATED 28.02.2018 IN S.C NO.422/2015 OF IST ADDITIONAL DISTRICT AND SESSIONS COURT, KOLLAM. ``` ## **`- APPELLANT/SOLE ACCUSED:`** ``` SANTHOSHKUMAR S/O RAMESAN, RESIDING AT ISWARYA BHAVAN, POOTHAKKULAM VILLAGE, PARAVUR, KOLLAM DISTRICT BY ADV C.R.JAYAKUMAR ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. ``` ``` ADV. NIMA JACOB (PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2023, THIS COURT ON 14.12.2023 DELIVERED THE FOLLOWING: ``` Crl.A. No.623 of 2019 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No. 623 of 2019 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of December, 2023 ## **JUDGMENT** The appeal on hand is originated from a judgment passed by First Additional District and Sessions Court, Kollam (for short, ‘the trial court ’) in S.C No. 422 of 2015. The appellant is the sole accused in the above case. The offences allegedly committed by him are those punishable under Section 376 of the Indian Penal Code, 1860 (for short, ‘the I.P.C’), Section 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the JJ Act’). 2. The appellant was charged by the trial court for the above offences and was found guilty, convicted and sentenced Crl.A. No.623 of 2019 -:3:- only under Section 6 of the POCSO Act vide judgment passed on 28.02.2018. On default of payment of fine, the appellant was also directed to undergo Simple Imprisonment for three more months. 3. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the accused and the prosecution in accordance with their status before the trial court. 4. As per the case of the prosecution, the accused who is the father of the victim, a minor girl aged 14 years, while residing together at Iswarya Bhavan, Poothakkulam village on a Sunday about two years prior to 27.04.2014 at about 12 noon committed rape on her at the eastern room of the house bearing door No.III/481 of Poothakkulam Panchayath after intimidating her. It was alleged further that the accused had caught the breasts of the victim and at the same bed room two months prior to 27.04.2014 at about 1 o’clock in the night, on many days, stared at her with sexual lust. Crl.A. No.623 of 2019 -:4:- 5. First Information Statement was lodged by the victim and on its basis the law was set in motion by registering a crime. Preliminary investigation was conducted in the crime registered by the Sub Inspector of Police, Paravur. Investigation was completed by the successor in Office of the Sub Inspector of Police, Paravur and on concluding it, a Final Report was laid against the accused, which was taken on its file as S.C No.422 of 2015. 6. The accused entered appearance, following service of process on him from the court. On his appearance, copies of all relevant records were furnished to him. On the basis of those records and after hearing both sides, charge was framed against the accused for offences punishable under Section 376 IPC, Section 5(n) read with Section 6 of the POCSO Act and Section 23 of the JJ Act. Charge was read over and explained to the accused. He pleaded not guilty and thereupon the case was scheduled for trial. Crl.A. No.623 of 2019 -:5:- 7. The accused faced trial. The evidence adduced by the prosecution consists of the oral evidence of PWs 1 to 13 and documentary evidence of Exts.P1 to P13. MO1 was also identified. On closure of the prosecution evidence, the accused was questioned under Section 313 (1)(b) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’). He denied all incriminating circumstances brought against him by the prosecution and raised a plea of total innocence. 8. Written statement was filed by him contending that the property stands in the name of his wife and himself was furnished as security in a Bank for obtaining a loan, that himself and his wife were on dispute with reference to that, that the marriage of a relative of his wife was solemnized at his initiative and that lady committed suicide within a few days of the marriage itself and that for the reasons, the in-laws and the wife of the accused were in inimical terms with him. Crl.A. No.623 of 2019 -:6:- 9. It was further stated that his daughter was in love affair with one Kuttapai and that he warned the boy and beat her for giving a love letter. According to him, those circumstances, led a false case to be foisted against him by his daughter as instigated by his wife and in-laws. According to him, when he was enlarged on bail, his wife had also filed a false case against him before Family Court, Attingal. 10. Both sides were heard on the basis of the evidence adduced by them and ultimately the trial court found no ground to order for his acquittal under Section 232 Cr.P.C. The accused was then called upon to enter on his defence, but he failed to adduce any evidence. The trial court raised the following points for consideration:- “1. Whether the accused being the father of PWI committed penetrative sexual assault on her about 2 years before 27/04/14 at the eastern side room in a cot of house bearing door No.III/481 of Poothakkulam Panchayath at 12 0’ clock in the noon? Crl.A. No.623 of 2019 -:7:- 2. Whether the accused about 2 years prior to 27/04/14 caught hold of her breasts at 1 am one night in the month of February? 3. Whether the accused is guilty of the offences punishable u/s 376 IPC and S. 5(n) r/w 6 of POCSO Act and S.23 of Juvenile Justice Act? 4. If so, what is the punishment to be awarded to the accused?” 11. On appreciation of the entire evidence, the trial court found the accused guilty of the offences punishable under Section 5(n) read with Section 6 of the POCSO Act and Section 376 IPC and Section 23 of the JJ Act. The trial court convicted the accused for the above offences but sentenced him only for an offence under Section 6 of the POCSO Act. The trial court directed the accused to undergo Rigorous Imprisonment for 10 years and to pay a fine of `50,000/- and in default of payment of fine to undergo Simple Imprisonment for three more months under Section 6 of the POCSO Act. The power under Section 42 of the POCSO Act was invoked while sentencing the accused only under Section 6 of the POCSO Act. Set off was also allowed for Crl.A. No.623 of 2019 -:8:- the period for which the accused remained as an undertrial prisoner. MO1 being valueless was also directed to be destroyed. 12. Since the victim minor girl was sexually assaulted by her father and her mental condition as well as studies were adversely affected by the acts committed by the accused on her, she was also found by the trial court entitled to get compensation for re-rehabilitation from the Victim Compensation Fund. Thus, the trial court recommended DLSA, Kollam, to compensate her adequately for re-rehabilitation from the Victim Compensation Fund under Section 357 A (3) Cr.P.C. 13. Adv. C.R Jayakumar advanced arguments on behalf of the accused. According to him, the age of the victim is relevant in a case where commission of an offence under the provisions of the POCSO Act are alleged against the accused. According to him, for establishing the age of the victim, the prosecution has relied on the extract of the admission register of PW1 issued by the Headmaster of Poothakkulam Government Higher Crl.A. No.623 of 2019 -:9:- Secondary School and marked in evidence as Ext.P4. The Headmaster deposed as PW5. According to him, Ext.P4 being not an extract of the Admission Register but only a Certificate, where the date of birth of the victim was certified by PW5 on 21.05.2001 cannot be relied on by the prosecution in proof of age of the victim. He has relied on **Sasi Vs. State of Kerala** [2019 KHC 465], **Raghavan K. Vs. State of Kerala** [2021 (6) KHC 553] and **Shaju @ Shaju vs. State of Kerala and Another** [2022 (5) KHC 663] to rest his contentions. 14. According to him, in the decisions cited, it has been held by various courts that a Certificate issued by the Headmaster certifying the age of the victim is not an authentic document of age. According to him, an attested copy of the extract of the Admission Register maintained at the School, where the victim had pursued her education first in point of time alone can be an authentic document which the prosecution could Crl.A. No.623 of 2019 -:10:- rely in proof of age, when an offence under the POCSO Act is allegedly committed by the accused on her. 15. The learned counsel contended vehementally that the prosecution case is a falsely foisted one. The attention of this Court was drawn to the various circumstances, indicative of grudge of the family members towards the accused in view of the cases pending against himself and his wife, who was examined as PW2 in the case. According to him, maintenance case was also filed against the accused by the mother of the victim and that is also pending consideration. 16. The learned counsel has pointed out that one Mrs.Sreekutty, who was a relative of the mother of the victim committed suicide by hanging, after a few days of her marriage itself, conducted at the initiative of the accused. According to the learned counsel, the incident was soon reported to the Police but the crime in question was registered after two years from the date of the incident. According to PW1, primarily an incident of Crl.A. No.623 of 2019 -:11:- sexual assault occurred two years prior to lodging the FIS by PW1 and subsequently another incident occurred two months prior to the reporting. According to him, the minor girl has stated that the information about the incident was spoken by her initially to the sister of her mother, but she was not cited as a witness and examined by the prosecution. According to him, the mother was a crucial witness and non examination of her, has a serious adverse impact on the prosecution case and it is liable to be thrown out for that reason itself. 17. According to the learned counsel, if the offences alleged were actually committed on her, she would have divulged that to anyone immediately after the incident itself. According to him, the victim would have recollected the date of the incident in view of the mental trauma caused by the incident of the nature. But while lodging the FIS and while deposing before the court, PW1 failed to mention the date on which she was subjected to the alleged incident by the accused. Crl.A. No.623 of 2019 -:12:- 18. It was contended by the learned counsel that as per the prosecution case itself, the 1[st] incident of sexual assault, was occurred two years prior to the filing of the complaint. Therefore, there is likelihood for the date of incident to be recollected. According to him, PW1 is highly unfortunate to have such an incident happened to her at her tender age, that too from her father itself, and therefore, there is every reason for her to keep the date of the incident in memory. In the case on hand, PW1 failed to state either the date of the first or the second incident and therefore, the allegations raised by her against the accused can only be taken as devoid of truth. 19. The learned counsel has stated furthermore that though it was stated by PW1 during examination that the incident was occurred on a Sunday during Christmas season, that turned an embellishment, since it was not found in the statement recorded from her by the Investigating Officer under Crl.A. No.623 of 2019 -:13:- Section 161 Cr.P.C. According to him, PW1 has stated so solely to cause the alleged offences to be attracted against the accused. 20. The learned counsel has relied on the form of examination and Report of the victim of rape marked in evidence as Ext.P7 to submit that the results of local examination of pubic region, perineum, thigh, vulva, hymen, fourchette and posterior commisure and the hymen were reported normal. The vagina was found as admitting one finger. According to him, the above findings resulted from the medical examination being contradictory, Ext.P7 is only liable to be discarded and the benefit of the discrepancy needs to be given to the accused. 21. The learned Public Prosecutor submitted on the contrary that since an offence under Section 23 of the JJ Act was charged against the accused, Ext.P4 being a Certificate as contemplated by the JJ Act can be relied on by the prosecution, in a case coming within the purview of the POCSO Act. According to her, Ext.P4 was marked in evidence without any Crl.A. No.623 of 2019 -:14:- objection being raised against by the accused and therefore, it can be relied on by the prosecution as proof of the age of the victim. 22. The learned Public Prosecutor has pointed out further that at the relevant time of the alleged incident, instances were not existing indicative of enemity among PW2 and her relatives with the accused. The learned Public Prosecutor contended on the basis of the deposition of PW2 that cases have been filed against him only after getting enlarged on bail and therefore, it cannot be said that out of grudge towards the accused, a false case was foisted against him. 23. According to the learned Public Prosecutor, in the above context, the defence cannot be heard to contend that the case on hand is the result of some grudge maintained by PW1, her mother and relative to the accused. The learned Public Prosecutor has also drawn the attention of this Court to Ext.P7 and contended that in the report of examination, hymen was Crl.A. No.623 of 2019 -:15:- certified as ‘not normal’ as submitted by the learned counsel for the accused but as ‘torned’. 24. This Court has gone through the depositions of PWs 1 and 2. PW1 is none other than the victim and she has deposed on the particulars of the incident, where she was molested by her father. According to her, at the relevant time, her mother had gone to learn tailoring. According to her, the incident was not informed to anyone immediately in view of the threat extended by the accused to kill her if the information given is divulged to anyone. PW1 deposed categorically about all aspects of the offence committed by the accused on her. As per the prosecution, the victim was aged only 10 years at the relevant time when the alleged act was committed on her. First Information Statement was lodged by her before the Police to set the law in motion, immediately on reporting about the offence committed by the accused on her. According to her, at the time of the incident, her mother was not in the house. Her father was Crl.A. No.623 of 2019 -:16:- a drunkard, and he used to quarrel after consumption of liquor. PW2 has only hearsay information from PW1 about the incident. Therefore, the only oral evidence relevant in the case is that of PW1. As already stated, PW1 deposed categorically about the incident. The reason for the delayed setting of the law in motion was also spoken by her as the threat from the accused. 25. True that PW1 failed to state the date on which two incidents have been taken place, but have stated the approximate time at which the incidents were occurred. The victim was aged only ten years at the relevant time. A child of that age may not remember the exact date on which the incident was happened. In the case on hand, as per the version of PW1, the incident was occurred two years prior to the lodging of the FIS and two months prior thereto. The accused was also medically examined and his capability to perform sexual intercourse has been found in the affirmative. Crl.A. No.623 of 2019 -:17:- 26. In Ext.P7, hymen was reported as torn and vagina admits one finger. Therefore, the version of PW1 gained support of the medical examination. Though the accused has attempted to bring in evidence about the affair of the victim with one Mr.Kuttapai, she denied the same. There is absolutely no evidence to establish that the victim girl was having relationship with any other person. When the minor girl says that her father had committed sexual assault on her, the same is only to be believed. 27. Though PW1 was cross examined elaborately, apart from some minor discrepancies, the prosecution failed to bring anything liable to disbelieve her. Credibility was maintained all throughout her examination. The medical examination fully supports her case. Hymen was reported as torn and it otherwise is an improbability in the case of a minor, aged only ten years. There is probability for the hymen to be ruptured, in case the minor was an active participant in sports or other jobs of Crl.A. No.623 of 2019 -:18:- hazardous nature. In the case on hand, the defence failed to establish anything of that kind. Therefore, the trial court is justified in relying on the version of PW1 to take a view that the accused has committed sexual intercourse on her and finding him guilty for the offences. 28. The contention furthermore raised by the learned counsel for the appellant regarding the age of the victim is equally important in the case on hand. The learned counsel contended that Ext.P4 is not an authentic document to prove the date of birth and age of the victim in a case of the nature. It is true that under Section 94 of JJ Act, a Certificate of the nature is a relevant document in proof of age and can be relied on by the prosecution. 29. Paragraph 8 of **Sasi** supra was relied on by the learned counsel to rest his argument which reads:- “8. The prosecution contended that the victim girl was under 12 years of age at the time of commission of the crime on her. The learned counsel for the appellant submitted that the prosecution failed to prove the age of Crl.A. No.623 of 2019 -:19:- the girl to be 12 years or below at the time of the alleged incidents. The prosecution did not produce the extract of the birth register or the extract of the school admission register or any other similar document to prove the age of the victim. What was produced and exhibited was a certificate issued by PW5 who was the headmistress of the school where the victim was a pupil at the time of investigation of the case. The certificate was marked as Ext P2. PW5 prepared and signed Ext P2 and gave it to the investigating officer. The same can be treated only as a statement of PW5 given to the investigating officer under S.161 of Cr.P.C, although signed. Ext P2 is therefore hit by S.162 of Cr.P.C and is not admissible in evidence. It is liable to be discarded.” 30. In paragraph 8 of the dictum the contention raised by the learned counsel for the accused was incorporated by the court and it has nothing to do with the finding of the court. The court has held in the case on the basis of the deposition of the mother of the victim examined as PW2 that she had spoken the date of birth of her child as 29.06.1999 and therefore, she being the mother having direct knowledge about the date on which her daughter was born and it being not a matter of challenge during Crl.A. No.623 of 2019 -:20:- cross examination, the court held, that can be relied on by the prosecution to establish the age of the victim. 31. In **Raghavan** supra, it was held by a Division Bench of this Court that fresh provisions incorporated in the JJ Act cannot be availed of to determine the age of the victim under the POCSO Act. Paragraphs 16 and 17 of the judgment is very relevant in the context and is extracted :- “16. In Parag Bhati (Juvenile) it was held that the principle of benevolent legislation attached to the JJ Act would apply only when the accused is held to be a juvenile on the basis of at least prima facie evidence. That was a case in which the date of birth recorded in School Certificates were held to be doubtful and the claim of juvenility of the accused was rejected by all the Courts including the Hon'ble Supreme Court. Their Lordships also cautioned against taking a casual or cavalier approach in deciding whether an accused is a juvenile or not, especially when the plea is 'more in the nature of a shield to dodge or dupe the arms of law' (sic). Sanjeev Kumar Gupta (supra) rejected the claim of juvenility despite the matriculation certificate establishing that the accused was a minor. The Hon'ble Supreme Court looked at the date of birth entered in the school first attended, which tallied with the voluntary disclosure made by the accused for the Crl.A. No.623 of 2019 -:21:- purpose of obtaining Aadhaar Card and Driving License, to reject the claim of juvenility. None of these decisions are applicable in determining the age of a victim under the POCSO Act. The benefit conferred on an accused in a statute cannot be imported into another statute so as to prejudice the accused in a prosecution under the other statute. 17. We bow to the proposition in Jarnail Singh and Mahadeo that the certificate from a school first attended as provided for in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 would suffice. But we caution ourselves from stretching the dictum and diluting the rigour provided by the Hon'ble Supreme Court, in excess of the declaration made by the Apex Court, by making acceptable the certificate of extract of the admission register from a school, which is not the one first attended. We cannot import the provisions of the beneficial legislation; the JJ Act of 2015, aimed at conferring every benefit on the juvenile accused, to the POCSO Act for determination of the age of the victim; which in effect may prejudice the accused prosecuted under the POCSO Act. Hence, it was held that the rigour of the certificate from the school first attended as declared by the Hon'ble Supreme Court has to survive repeal of the Rules of 2007 and the fresh provisions, incorporated in the JJ Act, 2015 cannot be availed of to determine the age of the victim under the POCSO Act. We do not find any reason to take a different view from the earlier decisions.” (emphasis supplied) Crl.A. No.623 of 2019 -:22:- ## 32. In **Shaju @ shaju** supra it was held by a Division Bench of this Court as follows:- “13. The date of birth proof produced unfortunately does not stand legal scrutiny since Ext. P6 produced by the Head Mistress (PW10) of the School in which the victim was studiying, is just a certificate and not the extract of the register. Rajan, Alex and Raghavan (all supra) held that but for a certificate from school first attended as provided for in Jarnail Singh v. State of Haryana, 2013 (7) SCC 263 no other certificate can be accepted for the purpose of proving date of birth; which has to be in accordance with the Evidence Act. The register maintained in the school is not a public document and the certificate issued by the Headmistress cannot be considered to be a secondary evidence. We hence find that there is no proof of age as established by the prosecution” (emphasis supplied) 33. In the case on hand, the document relied on by the prosecution to prove age is nothing but Ext.P4. It is only a Certificate issued by the Headmistress of the School and not the extract of the Admission Register from the School, wherein the victim had firstly attended the education. Therefore, the dictum Crl.A. No.623 of 2019 -:23:- in **Shaju @ shaju** supra, constrains this Court to take a view that the prosecution failed to prove the age of the victim under the POCSO Act. Proof of age under the POCSO Act has to be as per the requirements of the POCSO Act as held by the Division Bench in **Shaju @ shaju** supra. Therefore, there is every reason for setting aside the judgment by which the accused stood convicted for the offence under Section 6 of the POCSO Act. There is every reason to maintain the finding of guilt of the accused under Section 23 of the JJ Act as well as Section 376 IPC. Minor girl when examined as PW1 has deposed categorically that she was aged only ten years at the relevant time of the incident. The accused stood convicted for the offence under Section 376 IPC as well as an offence under Section 6 of the POCSO Act. Invoking Section 42 of the POCSO Act, the trial court imposed punishment on the accused only for the offence under Section 6 of the POCSO Act, it being the maximum punishment that can be imposed on the accused. Crl.A. No.623 of 2019 -:24:- 34. Undoubtedly the prosecution failed to prove the age of the victim as per the requirements under Section 6 of the POCSO Act and therefore, the finding of guilt of the accused and the order of conviction passed against him under Section 6 of the POCSO Act are liable to be reversed. The accused also stood convicted for an offence under Section 376 IPC and therefore this Court is inclined to award the sentence liable to be granted under that offence. 35. In the result, the appeal is allowed. The finding of guilt of the accused under Section 6 of the POCSO Act and the order of conviction passed against the accused thereunder are reversed. The finding of the trial court to the extent that the accused is guilty for the offences under Section 23 of the JJ Act and Section 376 IPC and the order of conviction passed against the accused are maintained. 36. Though the accused was found guilty and convicted and sentenced for all offences, punishment was imposed only under Crl.A. No.623 of 2019 -:25:- Section 6 of the POCSO Act, it being the major punishment, invoking Section 42 of that Act. The punishment imposed is maintained as punishment under Section 376 IPC. Therefore the appellant is convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `50,000/- for the offence under Section 376 IPC and to undergo simple imprisonment for six months for the offence under Section 23 of JJ Act. Substantive sentences imposed shall run concurrently. The appellant shall also undergo simple imprisonment for three more months in case of default of payment of fine. Set off is also allowed for the period for which the appellant was in custody as an undertrial prisoner. Other directions imposed by the trial court are also maintained. The fine amount on deposit, shall be defrayed to the victim as compensation under Section 375(1(b) Cr.P.C. Crl.Appeal is allowed accordingly. Sd/- ## **MARY JOSEPH,** **JUDGE.** JJ