Kerala High Court
Shivarama A vs The State Of Kerala on 1 June, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl.Appeal No.95 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942
CRL.A.No.95 OF 2018
AGAINST THE JUDGMENT IN SC 607/2014 DATED 09-01-2018 OF
ADDITIONAL SESSIONS JUDGE - I, KASARAGOD
CRIME NO.139/2014 OF VIDYANAGAR POLICE STATION
APPELLANT/ACCUSED :
SHIVARAMA A.
S/O BHASKARAN, AGED 25 YEARS,RESIDING AT PAYOTA,
KALLAKKATTA PO, MADHUR VILLAGE, KASARAGOD DISTRICT.
BY ADVS.
SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT/STATE:
THE STATE OF KERALA
THROUGH THE STATION HOUSE OFFICER, VIDYANAGAR
POLICE STATION, KASARAGOD DISTRICT, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.682 031
R1 BY ADV. SMT.AMBIKA DEVI S., SPL.GP (ATROCITIES
AGAINST WOMEN AND CHILDREN)
OTHER PRESENT:
PUBLIC PROSECUTOR SRI.RAMESH CHAND.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-
2020, THE COURT ON 01-06-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.95 of 2018 2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.95 of 2018
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Dated this the 1st day of June, 2020.
JUDGMENT
The conviction of the appellant and the sentence imposed on him in S.C.No.607 of 2014 on the files of the Additional Sessions Court - I, Kasaragode, are under challenge in this appeal.
2. The appellant is the sole accused in the case. The accusation in the case is that on 14.2.2013 and on several other days, the accused committed rape on the victim girl aged 15 years at her house, and thereby committed the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Sections 5(j)(ii), 5(l) and 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 17 witnesses as PW1 to PW17 and proved 18 documents as Exts.P1 to P18. The prosecution has also caused one of its witnesses to identify the material object, MO1. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial Crl.Appeal No.95 of 2018 3 court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the Headmistress of the School where the victim girl was pursuing her studies. She has proved Ext.P1 extract of the relevant page of the school admission register containing the date of birth of the victim girl. PW2 is an official of the local authority concerned who has proved Ext.P2 birth certificate of the child born to the victim girl. PW3 is the Secretary of the local authority concerned who has proved Ext.P3 certificate of ownership of the house of the victim girl. PW4 is the residential teacher attached to Parappa Mahila Sikshan Kendra, in whose presence, the statement of the victim girl was recorded by the police. PW5 is the Village official concerned who prepared Ext.P4 site sketch. PW6 is the Police Officer who has conducted part of the investigation in the case and filed final report in the matter. PW6 has proved Ext.P5 report filed by him indicating the particulars of the offences committed, Exts.P6 and P7 seizure mahazars, Ext.P8 property list, Ext.P9 forwarding note and Ext.P10 letter from the Director of the Forensic Science Laboratory. PW7 is the witness to Exts.P6 and P7 mahazars. PW8 is the Police Officer, in whose presence the statement of the victim girl was recorded. PW9 is the Police Officer who registered Ext.P11 First Information Report. PW10 is the victim girl. She has proved Ext.P12 First Information Statement. PW11 is a witness to Ext.P13 mahazar. PW12 is the Gynaecologist who has attended the victim girl for her delivery. PW13 was the chairperson of the concerned Child Welfare Committee. PW14 is the Crl.Appeal No.95 of 2018 4 Police Officer who has conducted the investigation in the case at the initial stage. He has proved Ext.P14 arrest memo, Ext.P15 inspection memo and Ext.P16 report forwarding the particulars of the accused. He has also proved Ext.P17 report of examination of the accused. PW15 is the doctor who has taken the blood sample of the accused for DNA test. PW16 is the mother of the victim girl. PW17 is the sister of the victim girl.
5. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and Sections 5(j)(ii), 5(l) and 5(n) read with Section 6 of the POCSO Act. The accused was consequently convicted for the aforesaid offences and sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 376(2)(i) of the IPC. In the light of the provisions contained in Section 42 of the POCSO Act, no separate sentence was imposed on the accused for the offences punishable under the POCSO Act. The accused is aggrieved by the conviction and sentence and hence this appeal.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant contended that the most vital fact that should have been proved by the prosecution in a case of this nature was the age of the victim girl and the same has not been conclusively proved by the prosecution. It was pointed out by the learned counsel that Ext.P1 extract of the relevant page of the admission register maintained at the school where the victim girl was pursuing her studies Crl.Appeal No.95 of 2018 5 cannot be accepted as conclusive proof of the age of the victim girl at the time of the alleged occurrence. According to the learned counsel, documents in the nature of Ext.P1 can be accepted as conclusive proof to establish the age of the person concerned only if the same is supported by the evidence of the person, on whose statement, the entry as to the said date of birth was recorded in the concerned school register. It was the submission of the learned counsel that no such evidence was let in by the prosecution. It was pointed out by the learned counsel that at the same time, the mother of the victim girl has given evidence in the case to the effect that the victim girl was aged 20 years at the time when she delivered the child. It was pointed out that the evidence tendered by the mother of the victim girl would show that the entry relating to the date of birth of the victim girl contained in Ext.P1 extract of the school admission register is incorrect. It was also argued by the learned counsel that the evidence on record, especially the evidence of PW10 would indicate that the relationship between the accused and the victim girl was a consensual one and that if the relationship was consensual, in the absence of any conclusive evidence as to the age of the victim girl, the conviction of the accused and the sentence imposed on him are unsustainable. Lastly, it was contended by the learned counsel that even if it is found by the court that the prosecution has proved the guilt of the accused as alleged, the sentence imposed on him is grossly disproportionate.
8. Per contra, the learned Public Prosecutor, placing reliance on the decision of this court in Crl.Appeal No.1331 of 2018, submitted that Ext.P1 extract of the relevant page of the school admission register Crl.Appeal No.95 of 2018 6 concerning the victim girl conclusively establishes the age of the victim girl and in so far as the said document shows that the victim girl was aged below 16 years at the time of occurrence, the conviction of the appellant and the sentence imposed on him are only to be upheld. The learned Public Prosecutor has also refuted the contention taken by the learned counsel for the appellant that the sexual intercourse the accused had with the victim girl was consensual. It was asserted by the learned Public Prosecutor that the evidence tendered by the victim girl as PW10 would indicate beyond doubt that the accused had sexual intercourse with the victim girl without her consent. The submission of the learned Public Prosecutor was, therefore, that even assuming that the prosecution has not proved the age of the victim girl, in so far as the prosecution has proved that the accused had sexual intercourse with the victim girl without her consent, at any rate, the accused is liable to be convicted under Section 376 of the IPC. As regards the contention relating to the proportionality of the sentence, the learned Public Prosecutor pointed out that the accused has been imposed only the minimum sentence provided for under the statute and therefore, the sentence imposed on the accused is also not liable to be interfered with.
9. Having examined the materials on record and having heard the learned counsel for the parties on either side, the following points are formulated for decision in the matter :
i) Whether the prosecution has conclusively established that the accused had sexual intercourse with the victim girl without her consent?
ii) Whether the prosecution has conclusively established the age of the victim girl?Crl.Appeal No.95 of 2018 7
iii) The relief to which the accused is entitled, if points (i) and
(ii) are answered in favour of the accused.
10. Point (i) : As noted, the victim girl was examined in the proceedings as PW10. She deposed that she was studying in 8 th Standard during 2013; that she was residing along with her mother as also her younger and elder siblings after the death of her father; that the accused who is the son of the elder sister of her mother was residing with her family after the death of her father; that the accused had sexual intercourse with her without her consent on several occasions while they were residing together; that she did not disclose about the same to anyone due to fear and that she became pregnant in the said relationship with the accused and that she delivered the child of the accused during February 2014. The evidence given by the victim girl appears to be natural, consistent and truthful. In cross-examination, PW10 has deposed that she likes the accused and she would like to live with him as husband and wife. It is placing reliance on the said statement of the victim girl that the learned counsel for the appellant submitted that the sexual relationship the accused had with the victim girl was consensual. It is seen that though the victim girl has stated in cross- examination that she likes the accused and she would like to live with him as husband and wife, to a specific question put by the learned counsel for the appellant as to whether she resisted the attempt made by the accused to commit rape, she answered that she has not only resisted the attempt, but also made noises at times. The categoric evidence given by the victim in her chief examination that the accused had sexual intercourse with her without her consent has not been discredited in cross-examination. Merely for the Crl.Appeal No.95 of 2018 8 reason that the victim girl said that she likes the accused, it cannot be inferred that she must have given consent for sexual intercourse, especially when they were not married. It is trite that the consent for sexual intercourse is one that is to be given consciously, freely and voluntarily. That apart, this being a prosecution for the offence punishable under Section 376(2) (i) and (n) of the IPC, in the light of the provision contained in Section 114A of the Indian Evidence Act, insofar as the sexual intercourse by the accused is proved and the victim girl has stated in her evidence before the court that she did not give consent, the court is bound to presume that she did not give consent. Of course the provision aforesaid only provides for an assumption which is rebuttable. There is absolutely no evidence in this case on the side of the accused to prove that the victim girl has consented for the sexual intercourse. In the circumstances, I am constrained to answer the point in favour of the prosecution. Ordered accordingly.
11. Point (ii) : As noted, the charge in the case is that the accused who is a relative of the victim girl has committed rape on the victim girl aged 15 years on several occasions and impregnated her and thereby committed the offences punishable under Section 376 of the IPC and Sections 5(j)(ii), 5(l) and 5(n) read with Section 6 of the POCSO Act. No doubt, in a case of this nature, it is incumbent upon the prosecution to prove that the victim was a child at the time of the alleged occurrences. In order to establish the said fact, the prosecution has caused production of the extract of the relevant page of the school admission register containing the date of birth of the victim girl. Ext.P1 is the said document. Going by Ext.P1, the date of birth of the victim girl is 12.10.1998 and going by the said Crl.Appeal No.95 of 2018 9 date of birth, the victim girl was below the age of 16 years at the time of the alleged occurrences. Placing reliance on the decisions of the Apex Court in Jarnail Singh v. State of Haryana (2013)7 SCC 263 and Mahadeo v. State of Maharashtra (2013)14 SCC 637, as also the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, dealing with the presumption and determination of the age, this Court in Crl.Appeal No.1331 of 2018 held that in the absence of evidence to the contrary, the documents provided for under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 can be accepted as conclusive proof of age of the victim in a proceedings under the POCSO Act. It is placing reliance on the decision of this Court in Crl.Appeal No.1331 of 2018 that the learned Public Prosecutor has asserted that the prosecution has established that the victim girl was a child at the time of the alleged occurrences. As pointed out by the learned counsel for the appellant, the prosecution has examined the mother of the victim girl on its side as PW16 and she has stated in chief examination that the victim girl was aged 20 years at the time when she delivered the child of the accused. Ext.P2 is the birth certificate of the child. The date of birth of the child in terms of the said document is 06.02.2014. As noted, the case of the prosecution is that the accused had raped the victim girl on 14.02.2013 and on several other days. In the absence of any specific evidence tendered by the victim girl as regards the dates on which the accused had sexual intercourse with her other than 14.2.2013, the only inference possible is that the accused might have had sexual intercourse with the victim girl some time during 2013. If the evidence tendered by the mother of the victim girl is accepted as Crl.Appeal No.95 of 2018 10 correct, the victim girl would have been 19 years when she was impregnated. The question is as to whether the evidence tendered by PW16 as regards the age of the victim girl can be accepted in preference to Ext.P1 extract of the school admission register containing the date of birth of the victim. The learned Public Prosecutor contended that the mother of the victim girl has stated a falsehood as regards the date of birth of the victim girl, with a view to save the accused who is none other than the son of her own sister. I would have certainly appreciated this contention, had the evidence tendered by PW16 as regards the age of her daughter was one elicited by the counsel for the accused in cross-examination. On the other hand, the aforesaid evidence was given by PW16 in chief examination, and in the absence of any cross-examination by the Public Prosecutor, according to me, the evidence tendered by the mother of the victim girl in this regard binds the prosecution. PW16 being the mother of the victim girl, she is a person who has direct knowledge about the date of birth of the victim girl and the court is bound to accept the said evidence in preference to Ext.P1. The decision of this court in Crl.Appeal No.1331 of 2018 does not preclude this court from taking such a view as it was clarified by this court in the said decision that the principle laid down therein would apply only in the absence of evidence to the contrary. In short, I am constrained to hold that the prosecution has failed to establish beyond doubt that the victim girl was a child at the time of the alleged occurrences. The point is answered accordingly in favour of the accused.
12. Point (iii) : In the light of the finding on Point (ii), the findings of the court below that the accused is guilty of the offences punishable Crl.Appeal No.95 of 2018 11 under Sections 5(j)(ii), 5(l) and 5(n) read with Section 6 of the POCSO Act and Section 376(2)(i) of the IPC are unsustainable. True, the prosecution has a specific case that the accused had sexual intercourse with the victim girl without her consent on several occasions. Except a solitary statement of the victim girl in chief examination, there is no other material in the case to substantiate the prosecution case that the accused had sexual intercourse with the victim girl on several occasions. Without anything further, I find it difficult to accept the said case of the prosecution, since the victim girl has a specific case that she did not give consent for sexual intercourse with the accused and this court has accepted the said case. In the circumstances, according to me, only the offence punishable under Section 376(1) of the IPC is made out against the accused.
In the result, the appeal is allowed in part and the accused is convicted and sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 376(1) of the IPC. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR, JUDGE tgs