Chandran vs State Of Kerala

[Cites 24, Cited by 0]

Kerala High Court

Chandran vs State Of Kerala

Bench: P.Bhavadasan

       

  

  

 
 
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

             THE HONOURABLE MR.JUSTICE P.BHAVADASAN

     WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935

                   CRL.A.No. 438 of 2006 ( )
                   --------------------------

AGAINST THE JUDGMENT DATED 15.2.2006 IN SC.673/2002 of SPL.JUDGE
                   COURT, THIRUVANANTHAPURAM
         (CRIME NO.87/2001 OF VIZHINJAM POLICE STATION)

APPELLANT/ACCUSED::
--------------------

       CHANDRAN, S/O.JAMES,
       HOUSE NO.31, KIDANGAL COLONY, PUNNAKULAM
       KOTTUKAL DESOM AND VILLAGE, THIRUVANANTHAPURAM.

       BY ADV. SRI.BLAZE K.JOSE

RESPONDENT/COMPLAINANT::
------------------------

       STATE OF KERALA
       REPRESENTED BY THE COMMISSIONER OF POLICE
       FORT SUB DIVISION, THIRUVANANTHAPURAM
       REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

       BY PUBLIC PROSECUTOR SRI.ROY THOMAS


       THIS CRIMINAL APPEAL  HAVING BEEN FINALLY HEARD  ON
 03-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:



                    P. BHAVADASAN, J.
                - - - - - - - - - - - - - - - - - - - - - -
                Crl.Appeal. No. 438 of 2006
                - - - - - - - - - - - - - - - - - - - - - -
            Dated this the 3rd day of April, 2013.

                           JUDGMENT

The accused was prosecuted for the offences punishable under Sections 366A and 376 of Indian Penal Code and also for the offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He was found guilty on all counts. Therefore, he was convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- with a default sentence of rigorous imprisonment for three years for the offence under Section 376 of I.P.C. and also sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5000/- with a default sentence of rigorous imprisonment for six months for the offence under Section 366A of I.P.C. The accused was also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5000/- with a default sentence of rigorous imprisonment for six Crl.Appeal.438/2006.

months for the offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Substantive sentences were directed to run concurrently. Set off as per law was allowed.

2. P.W.2 is the victim in this case and P.Ws.1 and 3 are her parents. P.Ws.1 and 3 have two children among whom P.W.2 is their elder daughter. P.W.1 is a casual labourer. P.W.2 is a diabetic. On 17.4.2001, P.W.1 as usual went for work and was engaged in the house of one Bhaskaran. The children were at home. When he returned at 6 p.m., P.W.3 told him that their daughter P.W.2 was missing. He enquired with his son about the same. His son replied that he had gone to play at 2.30 p.m. and when he returned at 3.30 p.m. he found his sister missing. The parents of the victim noticed that a few dresses belonging to P.W.2 were also missing. They made frantic search for her. They could not trace her out and therefore Ext.P1 complaint was laid before the police on 24.4.2001. P.W.20 Crl.Appeal.438/2006.

recorded the same and registered crime as per Ext.P1(a) under the caption 'man missing'. P.W.20 got information that P.W.2 was residing with the accused in a rented house at a place called Manakkala. He along with the parents of the victim and a woman police constable went to the place and located P.W.2 and the accused. On questioning P.W.2, P.W.20 came to the conclusion that P.W.2 had been abducted and raped and therefore filed Ext.P13 report incorporating Sections 366A and 376 and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. P.W.2 was sent for medical examination. P.W.19, the doctor concerned examined P.W.2 on 30.4.2001 and issued Ext.P11 certificate. The samples taken by him during examination of the victim were sent for chemical analysis and he obtained Ext.P12 report. In the meanwhile, investigation was taken over by P.W.21. He prepared Ext.P3 scene mahazar and had M.Os. 1 and 3 seized. M.O.2 mat was seized as per Ext.P15 mahazar. He had the Crl.Appeal.438/2006.

potency test of the accused conducted and obtained the necessary certificate. It was revealed on questioning the victim that a gold chain belonging to her was pledged and the relevant document is Ext.P17. In order to prove the age of the victim at the relevant time, P.W.21 had obtained Ext.P7 certificate from P.W.15 and he recorded the statements of witnesses. His successor-in-interest had completed the investigation and laid charge before court.

3. JFCM-II, Neyyattinkara took cognizance of the offence and finding that the offences are exclusively triable by a court of Sessions committed the case to Sessions court (Special Court) at Thiruvananthapuram. The said court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 366A and 376 of I.P.C. and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He pleaded not guilty to the charge and claimed to be tried. The prosecution therefore had P.Ws. 1 to 22 examined and Crl.Appeal.438/2006.

had Exts.P1 to P19 marked. During the examination of the prosecution witnesses, the defence had Exts.D1 to D4 marked. M.Os. 1 to 5 were got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C., in which he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. It appears that he claimed that during the period when the girl was found missing, he was employed elsewhere and one day he went home and he heard a quarrel in the house of the victim. He returned to his place of employment and a few days thereafter he was nabbed by the police. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He however chose to adduce no evidence.

4. The court below on an appreciation of the evidence in the case found that the accused had induced the girl to go along with him and subjected her to forced sexual Crl.Appeal.438/2006.

intercourse and also that the victim was below the age of 16 at the relevant time. Consequently, the accused was found guilty on all counts and conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

5. Learned counsel appearing for the appellant assailed the finding of the court below on several grounds. Learned counsel went on to point out that the evidence regarding sexual assault is confined to the testimony of P.W.2, the victim. It was pointed out that her claim at time of giving evidence is belied by Ext.D1 document, the complaint which is filed before the Women's Commission which is admitted to be in the handwriting of P.W.2. In the said document, there is no complaint to the Commission that the victim had been ravished. It is also contended that the evidence discloses that the victim had taken her dress along with her and that would indicate that she had voluntarily gone along with the accused and there was no Crl.Appeal.438/2006.

abduction or kidnapping as alleged by the prosecution. She resided with the accused on her own volition at several places and the evidence of P.W.19, the doctor, who had examined P.W.2 taken along with Exts.P11 and P12 will clearly show that the claim of rape is not substantiated. No external injuries are noticed by the doctor while examining the victim and the victim had no case while giving the cause of injury to the doctor she had stated that she had been raped by the accused. Therefore, if at all there was any sexual contact between the accused and the victim, it was with the consent of the victim.

6. Learned counsel also assailed the finding of the lower court that the girl was aged below 16 years at the relevant time. It was pointed out that the said finding has been entered into on the basis of the evidence given by P.W.15, the Headmaster of the School where the victim is alleged to have been studying last and Ext.P7 certificate said to have been issued by P.W.15. It was pointed out by Crl.Appeal.438/2006.

the learned counsel that Ext.P7 is not an extract of the school admission register and it is only a certificate issued by P.W.15 and it is insufficient to bring the document within the ambit of Section 35 of the Indian Evidence Act. The evidence of P.W.15 also shows that she had come to the school of which P.W.15 was the Headmaster from another School and the entry in the school register, on the basis of which Ext.P7 was issued, was on the basis of the Transfer Certificate issued from the first school where the victim had undergone studies. According to the learned counsel, it was the admission register extract from the first school in which the victim had first studied that had to be produced and also that the person who gave information regarding the date of birth on the basis of which the entry was made in the first school ought to have been examined. At any rate, according to the learned counsel, Ext.P7 is insufficient to prove the age of the victim. In support of this proposition, learned counsel relied on the decision reported in Jagtar Crl.Appeal.438/2006.

Singh v. State of Punjab (AIR 1993 SC 2448), Ravinder Singh Gorkhi v. State of U.P. (AIR 2006 SC 2157), Vishnu v. State of Maharashtra (AIR 2006 SC 508) and Sunil v. State of Haryana ((2010) 1 SCC (Cri.) 910).

7. When the proof regarding the age of the victim at the relevant time is totally insufficient, and it does not conclusively show that the victim was below the age of 16, going by the evidence on record, it is clear that any sexual contact was with the consent of the victim and there is nothing to show that the victim was below the age of 16 at the relevant time, in which case, the question of kidnapping does not also arise for consideration. The above vital aspects, according to the learned counsel, have been omitted to be noticed by the court below and that has resulted in an erroneous decision.

8. Learned Public Prosecutor on the other hand very vehemently supported the finding of the court below. It was pointed out by him that the criticism levelled by the Crl.Appeal.438/2006.

learned counsel for the appellant had no basis or foundation. A reading of the evidence of P.W.2 would show that the accused had induced her to go along with him by the threat of self annihilation by the accused. Therefore, it appears that she had not voluntarily gone along with the accused. The evidence of P.W.19 taken along with Ext.P11 is sufficient, according to the learned Public Prosecutor to show that the victim was subjected to sexual intercourse. The evidence of P.W.2 will clearly show that the sexual intercourse was against the will of the victim and at any rate, since the victim is below the age of 16 at the relevant time, the question of consent is irrelevant. Learned Public Prosecutor very vehemently argued that Ext.P7 is sufficient to prove the age of the victim and for the above proposition, he relied on the decisions reported in Arjun Singh v. State of Himachal Pradesh ((2009) 4 SCC 18), State of Chhatisgarh v. Lekhram ((2006) 5 SCC 736), State of Maharashtra v. Gajanan ((2008) 8 SCC 38) and Crl.Appeal.438/2006.

Raju v. State of Kerala (2013 (1) KHC 718).

9. Learned Public Prosecutor went on to point out that even assuming that the offence of rape is not made out, for a moment conceding that the age of the victim was above 16 and was with her consent, the act of the accused cannot escape from falling within the ambit of Section 366A of I.P.C. Therefore, the finding that he has committed the offence under Section 366A need not be interfered with. For the above proposition, learned Public Prosecutor relied on the decision reported in Sannaia Subba Rao v. State of A.P. ( 2008 AIR SCW 6014).

10. In reply to the argument based on Section 366A of I.P.C., learned counsel appearing for the accused pointed out that by no stretch of imagination Section 366A of I.P.C. can be attracted to the facts of this case. A plain reading of Section 366A, according to the learned counsel, will clearly show that it deals with procuration of a girl by a person for sexual intercourse for another person. In the Crl.Appeal.438/2006.

case on hand going by the prosecution allegation, there is no case that the petitioner had procured, assuming that the victim is a minor, for sexual intercourse by somebody else. Learned counsel pointed out that the allegation against the accused is that he had induced the girl to go along with him and had subjected her to sexual intercourse. Since the age of the victim is not proved and is not shown to be below the age of 18, the question kidnapping or abduction also does not arise. In short, learned counsel pointed out that none of the offences is made out by the evidence on record and the claim of the learned Public Prosecutor that at any rate, the offence under Section 366A of I.P.C. is attracted has no legal basis.

11. After having heard learned counsel for the appellant and the learned Public Prosecutor, it appears that the issues that actually arise for consideration are:

(i) Was there forced sexual intercourse by the accused on P.W.2?

Crl.Appeal.438/2006.

(ii) Is it proved by the prosecution that the age of P.W.2 was below 16 years as on the date of commission of offence?

(iii) What, if any, is the offence committed? and

(iv) Do the sentence call for any interference?

12. As regards the question whether there was forced sexual intercourse or not, the court below seems to have relied on the version given by P.W.2 that she was raped. But, on going through the judgment of the lower court, it is seen that not much significance was given to this statement because the court below, on the basis of appreciation of the evidence, had come to the conclusion that the victim was below the age of 16 as on the date of commission of the offence. Therefore, the court below thought it was unnecessary to give importance or significance to the question of consent. Crl.Appeal.438/2006.

13. Before this court, the age of the victim is seriously challenged and it is contended that the conclusion drawn by the court below is erroneous and contrary to law.

14. It will be useful to recollect the prosecution case. The victim, P.W.2, had left her house on 17.4.2001. Her father, on 24.4.2001 laid complaint and a crime was registered under the caption 'man missing'. On getting information about the whereabouts of the girl, the police officer concerned went along with the parents and took the girl and the accused into custody.

15. P.W.2 is the victim in this case. She would say that on 17.4.2001 in the afternoon while she was all alone at home, the accused is alleged to have come to the house and asked her to take some of her clothes to leave the place. P.W.2 says that she did accordingly. At about 3 p.m., the accused is alleged to have come again. Going by the evidence of P.W.2 she would say that she said that if she had went along with him, her parents would scold her, Crl.Appeal.438/2006.

the accused is alleged to have told her that if she did not go along with him, he would commit suicide. Then P.W.2 is said to have gone along with the accused. They went to Balaramapuram and then reached Manakkala. They then went to the house of P.W.4 and there the accused told P.W.4 that P.W.2 was his wife and they had got married recently. They were given a room in the house of P.W.4. Going by the evidence of P.W.2, they stayed there for five days. By 21.4.2004. going by the evidence of P.W.2, the accused had expended the entire amount which he had with him and therefore P.W.2 gave her gold ornaments for pledging and getting amounts for meeting the expenses. On 21.4.2001, it is alleged that they shifted their residence to a rented house. They stayed there till 30.4.2001. It will be useful to extract the statement of P.W.2 regarding the sexual intercourse in her own words, which reads as follows:

"

Crl.Appeal.438/2006.

(In both these houses, the accused had raped me.) P.W.2 would then say that on 30.4.2001, the accused asked her to telephone her mother and inform about her whereabouts. Therefore, she telephoned to a neighbouring house and conveyed the information as to where they were. In cross examination, she was confronted with Ext.D1 document which is a complaint seems to have been laid by P.W.2 before the Women's Commission. She admitted that it was written by her and the contents are true.

16. The evidence of P.W.19, the doctor, and Ext.P11 would clearly show that the victim had sexual intercourse. Going by the evidence of P.W.19, at the time of examination, the age of the victim was given as 15 years. The evidence of P.W.19 is to the effect that the victim had given the history that she had sexual intercourse with the accused person. There is nothing in the evidence of P.W.19 to show that at the time of giving history to P.W.19 or Crl.Appeal.438/2006.

during her examination the victim, had a case that she was subjected to forceful sexual intercourse by the accused. There were no injuries on the body of the victim. It is also seen from the evidence of P.W.19 that the victim had no complaint of pain on any part of her body.

17. The trial court relied on the solitary statement extracted above to come to the conclusion that P.W.2 has been raped. It is extremely difficult to accept the said view. Nowhere in her evidence, P.W.2 has stated that when the accused had sexual intercourse with her, she attempted to resist his move or that she had expressed her unwillingness to have sexual intercourse. It is here that the history given to the doctor, namely, P.W.19, assumes importance and also the entries in Ext.P11. Before the doctor, P.W.2 had no case that she had been raped. In fact, the evidence of P.W.19 would indicate that it was a voluntary act by P.W.2. The same is the position with regard to the entry in Ext.P11 also. It is here one has to Crl.Appeal.438/2006.

notice Ext.D1 document which is admitted by P.W.2 as a complaint written by her to the Women's commission. In the said document, the main complaint is against one Thulsi, who she alleges is engaged in luring girls and offering them for prostitution and her case is that she was made to go along with the accused by the said person. But it is significant to notice that nowhere in Ext.D1 there is any complaint against the accused of having compelled to have sexual intercourse with him or that the accused had raped her. Ext.D1 is dated 31.5.2001, i.e., after P.W.2 was located by the police officer in pursuance to the complaint laid by her father. It is therefore not possible to accept the finding of the court below that merely because the victim has stated that she was raped, it follows that there was forced sexual intercourse against the will of the victim and overpowering her resistance.

18. The court below has found that the victim is below the age of 16. In Ext.P1 which is the first information Crl.Appeal.438/2006.

statement given by P.W.1, the father of the victim, the age is shown as 17. The evidence of P.W.19, the doctor, shows that the age was stated to be 15. The prosecution has produced Ext.P7 which shows that the date of birth of the victim is 31.5.1985 and it is said to have been issued by P.W.15.

19. Most of the arguments centered around the admissibility and acceptability of Ext.P7 and whether the evidence of P.W.15 is sufficient to prove the date of birth of the victim. It will be useful here to refer to the decisions relied on by both sides.

20. In the decision reported in Jagtar Singh v. State of Punjab (AIR 1993 SC 2448), it was held as follows:

"However, mysteriously, the certificate does not mention the name of the school from which the transfer was obtained and on the basis of which certificate the appellant was admitted to the school. It is not disputed that the date of birth Crl.Appeal.438/2006.

which is given in the certificate produced in this Court is based on the date mentioned in the transfer certificate, since the name of the school from which the transfer certificate is obtained itself is absent from this certificate, no reliance can be placed on the said certificate."

21. In the decision reported in Vishnu v. State of Maharashtra (AIR 2006 SC 508) it was held as follows:

"In the present case, the father and the mother categorically stated that prosecutrix was below 16 years of age which is supported by the unimpeachable documents, viz., Birth register of Municipal Corporation and register of Hospital where prosecutrix was born. These are the statements of facts. If the statements of facts are pitted against the so-called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. Therefore, the ossification test Crl.Appeal.438/2006.

cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by father and mother supported by unimpeachable documents."

22. In the decisions reported in Ravinder Singh Gorkhi v. State of U.P. (AIR 2006 SC 2157), after referring to the decisions reported in Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796), Sushil Kumar v. Rakesh Kumar ((2003) 8 SCC 673), Updesh Kumar v. Prithvi Singh ((2001) 2 SCC 524), Ramdeo Chauhan alias Raj Nath v. State of Assam ((2001) 5 SCC 714), Umesh Chandra v. State of Rajasthan (AIR 1982 SC 1057), and Bhoop Ram v. State of U.P. (AIR 1989 SC 1329), it was held as follows:

"37. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission, for obtaining an appointment; for contesting election; registration of marriage; Crl.Appeal.438/2006.

obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of the Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.

38. We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a Crl.Appeal.438/2006.

statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstance of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure."

23. In the decision reported in Sunil v. State of Haryana ((2010) 1 SCC (Cri.) 910) it was held as follows:

"25. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on Crl.Appeal.438/2006.

12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced."

24. In the decision reported in State of Maharashtra v. Gajanan ((2008) 8 SCC 38) it was held as follows:

"12. Undisputedly, the school records revealed the date of birth of the victim to be 4.6.1976. This was the position as indicated in the school leaving certificate (Exh.25) and the school register. The High Court noted that in the school register the date of birth was indicated to be 4.6.1976. It also noticed that the father of the Crl.Appeal.438/2006.

victim stated that the girl was 14 years old. The High Court held that the correct date of birth is not recorded and only the school leaving certificate indicated that the date of birth of the victim was 4.6.1976. The evidence of the witnesses indicated that the entry was made on the basis of the horoscope. The High Court held that since the horoscope was not produced the prosecution has failed to establish its case. No reason has been indicated by the High Court to discard the documentary evidence produced i.e. school leaving certificate and the school register.

13. The Headmaster of the school also deposed and produced the records before the trial Court. The High Court held that the entry in the school register was not in the handwriting of the Headmaster and he could not have deposed about the date of birth. There was no basis for the High Court to conclude that the entry cannot be taken to be above suspicion. On the basis of the evidence of the Headmaster and the original school leaving certificate and the school register which were produced the High Court came to abrupt conclusion that normally for various Crl.Appeal.438/2006.

reasons the guardians to understate the age of their children at the time of admission in the school. There was no material or basis for coming to this conclusion. The High Court in the absence of any evidence to the contrary should not have come to hold that the date of birth of the prosecutrix was not established and the school leaving certificate and the school register are not conclusive."

25. In the decision reported in State of Chhatisgarh v. Lekhram ((2006) 5 SCC 736), it was held as follows:

"12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW-5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. Father of the prosecutrix also deposed to the said effect. Crl.Appeal.438/2006.

13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the 'gauna' ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix."

26. In the decision reported in Arjun Singh v. State of H.P. ((2009) 4 SCC 18) it was held as follows:

"10. In State of Chhattisgarh v. Lekhram it was held that :

The register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of Section 35 of Crl.Appeal.438/2006.

the Indian Evidence Act, 1872. It may be true that an entry in the school register is not conclusive but it has evidentiary value."

27. In the decision reported in Raju v. State of Kerala (2013 (1) KHC 718 (DB) it was held as follows:

"23. according to the learned counsel the admission register from the school could have been produced to prove the age of the victim. But the testimony of P.W.9 would reveal that she had issued Ext.P6 certificate based on the entries in the school admission register. She further added that the entires in the admission register were carried down from the T.C. Produced by the parents of P.W.1 at the time of admission. Evidently and admittedly too, P.W.9 is the headmistress of an upper primary school. It was after obtaining T.C. From a lower primary school that P.W.1 was admitted to the upper primary school. The entries in the admission register of the upper primary school were made on the basis of the entries in the said admission register that P.W.9 has issued the certificate. We see no reason to discredit either the testimony of P.W.9 or Crl.Appeal.438/2006.

Ext.P6 issued by her. P.W.9 by issuing Ext.P6 was performing an official act. Official acts are presumed to be done properly unless proved otherwise. We notice that there is absolutely no challenge regarding the genuineness of Ext.P6 in the cross examination of P.W.9."

28. The principle that could be discerned from the above decisions is that the determination of the age of the victim depends upon the facts and circumstances of each case. The evidence produced by the prosecution will have to be considered in the light of the other circumstances and other items of evidence available in the case and with regard to the authenticity of the document based on which the age is sought to be established by the prosecution. While the extract from the school register is admissible in evidence, there are certain conditions under which it could be conclusively taken as evidence regarding the age of the person concerned. In Law of Evidence by Sir Crl.Appeal.438/2006.

John Woodroffe and Symed Amir Ali, 17th Edition Vol.2 at page 2099 it is stated as follows:

"An entry relating to date of birth made in the school register is relevant and admissible under s. 35 of the Evidence act, but entry regarding the age of a person in a school register is not of much evidentiary value to prove the age of a person in the absence of material on which the age of was recorded. An entry in a school register is not of much evidentiary value, when there is no evidence to show on what materials the entry in the register about the age of the scholar was made.

The date of birth mentioned in the scholar's register of a school has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. Much reliance cannot be placed on entries in the school admission registers which are not proved to have been made on the basis of the statement made by a person eg, the father of the boy, who knew the date of his birth. Since the name of the school from which the transfer Crl.Appeal.438/2006.

certificate is obtained itself is absent from the certificate no reliance can be placed on the said certificate for determining the age of the accused."

29. If the extract of the school admission register is produced and it is proved in accordance with law by examining the person who issued the same and also by producing the register and also by examining the person who gave the date of birth when the ward was admitted, then it becomes an item of evidence which can be accepted as a conclusive evidence regarding the date of birth of the person concerned. More authentic is the entry in the register kept by the local authorities with regard to the date of birth and death of any person concerned.

30. Normally, the law accepts the entries in school records are proof of age, but the extract of the school admission register of the school where the ward was first admitted should be produced and proved. It is very Crl.Appeal.438/2006.

seldom that the court accepts the extract of the school admission register where the ward had studied subsequently and the entries in that register is based on the entries in the transfer certificate issued from the school. In such circumstances, as could be seen from the decisions cited above, on facts it can be seen that there were other items of evidence to prove the date of birth of the victim. That would either be the oral evidence furnished by the person who gave information about the date of birth or the parents of the victim or through medical evidence in support of the age of the victim concerned.

31. Bearing the above principles in mind, an evaluation of the evidence in the case is to be made to determine whether the age of the victim has been established. Ext.P7 is the document based on which the court below came to the conclusion that the date of birth of the victim is 31.5.1975 and at the relevant time the victim was below the age of 16. It seems to have been issued by Crl.Appeal.438/2006.

P.W.15. Ext.P7 is styled as a certificate and is not the extract of the school admission register. P.W.15 who issued the same would say that it was on the basis of the school register that the certificate was issued. But it is significant to notice that the register as such was not produced. P.W.15 in cross examination admitted that P.W.2 had come to his school from another school and that the date of birth mentioned in Ext.P7 is the date of birth which was entered in the school register on the basis of the transfer certificate issued from the earlier school. In the decision reported in Raju's case (supra) it is true that it was held that such a certificate is sufficient to prove the age of the victim. But that was a case where there was no challenge regarding the age of the victim unlike in the case on hand. In the case on hand, the date of birth of the victim is seriously disputed. Apart from the above fact, in the case on hand, the register based on which Ext.P7 is said to have been issued is also not produced apart from other infirmities already made Crl.Appeal.438/2006.

mention of.

32. The evidence of P.W.3, the mother of the victim is to the effect that she is not able to remember the date of birth of the victim. However, she would say that P.W.2 was born in SAT Hospital. P.W.1 is the father of the victim. He in chief examination would say that at the time of the incident his daughter was 16 years of age. He too would say that he is not able to remember the date of birth of the victim.

33. In all cases where the extract of the school admission register was accepted as evidence of the date of birth of the person concerned, it would be seen that there are other supporting evidence with regard to the same, either medical evidence or the evidence of the parents or somebody who had given the details regarding the person concerned based on which the entries were made in the school admission register. In the case on hand, not only that the register as such has not been produced, the Crl.Appeal.438/2006.

evidence of P.Ws.1 and 3 are also inconsistent regarding the age of the victim and going by Ext.P1 First Information Statement where her age is shown as 17 years.

34. Much significance is seen attached to the age of the victim in the case on hand. It may be recollected here that the court below was mainly persuaded to take the view that P.W.2 has been raped on the basis that she was below the age of 16. Of course, the court below has placed reliance on the stray statement of the victim which has been extracted above. If as a matter of fact, the age of the victim is not proved beyond reasonable doubt, then it could not be said that the evidence of rape is made out. It is difficult to accept the view of the lower court that Ext.P7 read along with the evidence of P.W.15 is sufficient to prove the age of the victim. The infirmities pointed out in the evidence of P.W.15 so also the other items of evidence adduced by the prosecution makes it hazardous to enter a finding that the victim was below the age of 16 as on the date of commission Crl.Appeal.438/2006.

of the offence. It has necessarily to be held that the prosecution has failed to establish that the age of the victim was below 16 years as on the date of commission of the offence.

35. If that be so, the solitary stray statement made by P.W.2 regarding the sexual contact by itself may not be sufficient to come to the conclusion that the rape has been committed on P.W.2, especially when read along with the evidence of P.W.19 and entries in Ext.P11.

36. In the light of the above fact, the finding of the court below that offence under Section 376 of I.P.C. has been established cannot be accepted.

37. The court below has also found that the accused is guilty of the offence under Section 366A of I.P.C. Section 366A reads as follows:

"366A. Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from anyplace or to do any act with intent that such Crl.Appeal.438/2006.

girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

Section 366A of I.P.C. on a plain reading contemplates a position where one person induces a minor girl below the age of 18 to go from one place to another or to do any act which he known will result in the victim being seduced or subjected to illicit intercourse by another person. In the case on hand, there is no allegation that the accused in this case had induced the victim to go from one place to another knowing that she will be forced or seduced to have illicit intercourse with another person. The allegations in the case on hand is that he had kidnapped or abducted P.W.2 and subjected her to sexual assault.

38. Learned Public Prosecutor placed considerable reliance on the decision reported in Sannaia Subba Rao v. State of A.P. (AIR 2008 SCW 6014) wherein Crl.Appeal.438/2006.

it was held as follows:

"50. Section 366A IPC also envisages an act of kidnapping of a minor girl out of the lawful guardianship with the intention of committing a sexual intercourse which is of a higher degree than that of an offence under section 363 IPC.

............ ...........

53. In the case of Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC 560], this Court after relying upon the decision of this Court in Lakhijit Singh v. State of Punjab [1994 Supp. (1) SCC

173)] and the case of Shamnsaheb M. Multtani v.

State of Karnataka [(2001)2 SCC 577] held that if the offence committed is clearly covered and have the ingredients, of a minor offence, in that event, the Court is empowered to convict the person under minor offence by invoking the provisions of Section 222 of the Code."

39. Learned counsel appearing for the appellant on the other hand relied on the decision reported in Iqbal v. State of Kerala ((2007) 12 SCC 724) wherein it was held as follows:

Crl.Appeal.438/2006.

"9. The residual question is of applicability of Section 366A IPC. In order to attract Section 366A IPC, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.

10. In the instant case, the admitted case of the prosecution is that girl had left in the company of the accused of her own will and that she was not forced to sexual intercourse with any person other than the accused. The admitted case is that she had sexual intercourse with the accused for which, considering her age, conviction under Section 376, IPC has been maintained. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366A has no application."

Crl.Appeal.438/2006.

On a plain reading of Section 366A, it does not contemplate any kidnapping or abduction, but it only deals with a situation where a minor girl who is below the age of 18 who is induced to go from one place to another. The scope and ambit of Section 366A has been elaborately considered in the decision referred to by the learned counsel for the appellant and which is extracted above. Further, the facts of the case relied on by the learned counsel for the appellant differs from the facts and circumstances in the present case.

40. In the case on hand, it has already been found that the prosecution has failed to establish that the age of the victim was below 16 on the date of commission of the offence. It has already been found that there is nothing to show that sexual intercourse which is said to have taken place was against the will or consent of P.W.2. The evidence in this regard has already been discussed. In the light of the above finding, it is difficult to uphold the Crl.Appeal.438/2006.

conviction and sentence passed by the court below.

The result is that this appeal is allowed, the conviction and sentence passed by the court below are set aside and it is held that the prosecution had failed to prove the case against the accused beyond reasonable doubt. The accused stands acquitted of the offences under Sections 376 and 366A of I.P.C.and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. His bail bond shall stand cancelled and he is set at liberty. If he had paid the fine amount, the same shall be refunded to him.

P. BHAVADASAN, JUDGE sb.

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