Kerala High Court
Suresh Babu vs State Of Kerala on 3 November, 2000
Equivalent citations: 2001(1)ALT(CRI)524, 2001CRILJ1483
ORDER N. Krishnan Nair, J.
1. This revision has been preferred against the judgment dated 26.11.1993 of the Sessions Judge, Kottayam. The revision petitioner is the accused in Sessions Case No. 48/89 of the Assistant Sessions Judge, Kottayam. He was charged with the offences punishable under Ss. 363 and 376 of the Indian Penal Code. After the trial, the learned Assistant Sessions Judge found the accused guilty of the offences and convicted him. He was sentenced to undergo rigorous imprisonment for one year under S. 363 IPC and rigorous imprisonment for four years under S. 376 IPC. The sentences were allowed to run concurrently.
2. Aggrieved by the order of conviction and sentence passed by the Assistant Sessions Judge, the revision petitioner preferred Crl. Appeal No. 50/90 before the Sessions Judge, Kottayam. The appeal was dismissed by the Sessions Judge confirming the conviction and sentence passed by the Assistant Sessions Judge. Hence this revision.
3. The resume of the prosecution case is as follows: PW.2, Sindhu, is the daughter of PW.1, Kumaran who is a retired teacher. The accused was the neighbour of PW.2. PW.2 fell in love with the accused and on the night of 22.8.1988 the accused compelled her to have sexual union with him. On knowing the illicit intimacy of PW.2 with the accused, PW.2 was taken to the house of PW3, the maternal uncle of PW2 in the last week of April, 1989. Even thereafter there had been correspondence between PW.2 and the accused. PW2 had sexual relationship with the accused on several times, as a result of which she became pregnant. The accused persuaded her to come to Kanjirappally to join him. Accordingly on 17.5.89 PW.2 went to Kanjirappally where the accused was waiting for her. The accused took her to Changanacherry and they resided there in the house of a friend of the accused. The accused and PW2 entered into an agreement of marriage and got it registered in the Sub Registrar's Office, Changanacherry. Since PW. 2 was found missing, PW. 1 went to Ranni Police Station and lodged Ext. P1 statement. PW.8, the then Head Constable attached to Ranni Police Station registered Crime No. 122/89 under Ext. P1(a) FIR. On coming to know that the police was in search of PW.2 and the accused, they surrendered before the Sub Inspector of Police, Ranni, on 16.6.1989. The Sub Inspector of Police sent the accused and PW. 2 for medical examination. PW. 4, the Assistant Surgeon attached to the District Hospital, Pathanamthitta, examined PW2 on 16.6.1989 and issued Ext. P7 certificate. PW. 4 also examined the accused and issued Ext. P9 potency certificate. As the offences were committed within the jurisdiction of Kanjirappally Police Station, PW. 9 the Sub Inspector transmitted the records relating to the case to Kanjirappally Police Station, where PW.10 registered crime No. 94/89 of Kanjirappally Police Station for the offences punishable under Ss. 363 and 376 IPC PW. 11, the Assistant Sub Inspector of Police, Kanjirappally, look up the investigation in the case. PW. 12, the Sub Inspector of Police, Kanjirappally, laid the charge before the Judicial Magistrate of Second Class, Kanjirappally, who committed the case to the Court of Sessions. The Sessions Judge made over the case to the Assistant Sessions Judge for trial and disposal.
4. The accused denied the charge. In order to prove its case the prosecution examined PWs. 1 to 12 and marked Exts. P1 to P15. No defence evidence was adduced. Both the Courts below found the accused guilty of offences, convicted him and sentenced him as stated earlier.
5. The learned counsel for the revision petitioner contended that the lower courts have misunderstood and misappreciated the evidence in the case. According to him, the courts below should have held that Ext. P2 has not been properly proved and the entry in the Register of Births and Deaths does not prove that it relates to PW.2. He further contended that the lower court acted upon insufficient material in deciding the most crucial question in the case, namely the age of PW.2. On the other hand the learned Public Prosecutor supported the judgment of the lower court and urged that there is no ground for interference.
6. The definite case of the prosecution is that PW.2, Sindhu, was aged below 16 years and the accused took her without the consent of the guardian and committed rape of her. The case set up by the defence is that PW.2 was not below 16 years and it was PW. 2, who compelled the accused to take her with him and permit her to reside with him as his wife. It was due to the compulsion of PW. 2 that the accused look her to the house of his friend and thereafter entered into a marriage agreement.
7. The important question arising for consideration in this case is whether the prosecution has succeeded in proving beyond shadow of doubt that PW. 2 was below the age of 16 years at the relevant time. According to the prosecution, PW. 2 was born on 16.11.1973 and she was aged below 16 years at the time of the occurrence. The prosecution mainly relies on the evidence of PW.1, PW.4 and Exts. P2 and P8. Ext. P2 in the entry in the birth and death register relating to a female child born to K.G. Kumaran and Ponnamma at T.M.M. Hospital, Mannamaruthi. As per Ext. P2, the date of birth of the child is 16.11.1973. PW.1 has deposed that K.G. Kumaran referred to in Ext.P2 is himself, Ponnamma is his wife and the female child referred to therein is PW. 2. The contention of the accused is that the entry in the register of births and deaths evidenced by Ext. P2 does not show that it relates to PW.2. It is further contended that Ext. P2 relates to the younger sister of PW.2. The question is whether Ext. P2 could be relied upon to hold that PW. 2 was below 16 years at the time of the occurrence. No doubt the entry regarding the date of birth in the register of births and deaths is admissible in evidence under S. 35 of the Evidence Act. But, as has been held by this Court in Govinda Pillai Sukumara Pillai v. Lekshmi Amma Kochappi Amma (1957 KLT 804) that it is not safe to accept a mere entry in the birth register as proof of the age of the child concerned without some evidence or admission of the parties about the identity of the parents and the child mentioned in the register. In State K Kumruddin (AIR 1956 Nagpur 74) it has been held that the mere entry in the register of births and deaths to the effect that a child was born to a person without any statement as to the identity of the child is not sufficient to prove the birth of a particular person. The identity of that person has to be fully established by other evidence. No doubt in this case PW. 1, the father of PW.2, has deposed that Ext. P2 entry relates to PW.2. If the evidence of PW. 1 is accepted it has to be held that the date of birth of PW.2 is 16.11.1973 as noted in Ext. P2. According to the learned Sessions Judge, PW.1, being the father of PW.2 is the most competent witness to speak about the date of birth of his daughter. No doubt, the father of a child is a competent witness to swear about the age of his child. But here is a father (PW.1) who cannot give a consistent version regarding the age of his daughter. Though he would say that Ext. P2 entry showing the date of birth as 16.11.1973 relates to PW.2, he has no hesitation to swear before the court that he has given 16.4.1974 as the date of birth of PW. 2 at the time of admission in the school. That apart he had to admit in cross examination that he does not know the exact date of birth of PW. 2. Thus the evidence of PW.1 is utterly unreliable and hopelessly contradictory. Therefore it is not safe to place any reliance on the evidence of PW. 2 to connect PW. 2 with Ext. P2 entry. It is also relevant to note that admittedly PW. 1 was not the person who gave the information relating to the date of birth for entering in the births and deaths register of the Panchayat. Neither the person who gave the information nor the person who made the entry was examined in this case. If we examine the evidence of PW. 5 it could be seen that he had prepared Ext. P2 on the basis of the births and deaths register maintained in the office of Ranni Pazhavangadi Panchayat. As stated earlier the evidence of PW. 1 is unreliable. In the absence of reliable evidence connecting PW. 2 with Ext. P2 entry it is difficult to hold that PW. 2 was born on 16.11.73. All that it can be said is that the prosecution has proved that a female child was born to PW. 1 and his wife on 16.11.1973. But this is not sufficient to establish that the child was PW. 2. As already noticed PW. 1 has stated that he has given the date of birth of PW.2 as 16.4.1974 at the time of admission in the school. If that be so, the prosecution should have produced the copy of the school admission register since the accused had taken a specific contention that Ext. P2 entry does not relate to PW. 2. The non production of the copy of the school admission register also caste doubt on the veracity of the prosecution case. It is true that the entries in the birth register has to be preferred to the entries in the admission register maintained in the school. But in the absence of evidence about the identity of the child mentioned in the birth register, the entries in school admission register could be relied upon to prove the age.
8. Another item of evidence relied on by the prosecution to prove the age of PW.2 is Ext. P8 report. PW. 4 has sworn that on the basis of his examination as evidenced by Ext. P8 report the age of PW. 2 is above 14 years and below 16 years. PW. 4 has reached this conclusion on the basis of the physical examination and radiological examination. I see considerable force in the contention of the learned counsel for the accused that the opinion given on the basis of an examination as conducted by PW. 4 can have a margin of error on either side upto a period of two years and therefore it is not safe to rely on Ext. P8 report to hold that the age of PW. 2 is below 16 years. In this connection it is relevant to note the following observation of the Supreme Court in Jaya Mala v. Home Secretary (AIR 1982 SC 1297):
"However it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is 2 years on either side".
Thus the evidence adduced in this case is not sufficient to prove the age of PW.2 conclusively. The benefit of doubt could go only to the accused. It follows that prosecution has failed to prove that PW.2 was below 16 years at the time of the occurrence.
9. Since the prosecution has failed to prove beyond reasonable doubt that PW. 2 was below 16 years, clause 6 of S. 375 of IPC is not attracted. It is true that there is evidence in this case to show that the accused had sexual intercourse with PW. 2 on several occasions. It is in evidence that they entered into an agreement of marriage and lived together as husband and wife. Exts. P3 and P5 letters would show that the accused had sexual intercourse with PW. 2 with her consent. Therefore, it cannot be said that the accused is guilty of the offence punishable under S. 376 of the IPC.
10. The prosecution has also a case that the accused kidnapped PW. 2 from the house of PW. 3 without the consent of PW. 1 or PW3. It is gatherable from the evidence that PW.2 was in love with the accused. Admittedly at the time of the alleged kidnapping PW.2 was residing the house of PW.3. It was PW.2 who informed the accused that she had shifted her residence to the house of PW.3. On 17.5.1989 PW. 2 reached Kanjirappally and joined the accused. PW.2 and the accused went to Changanacherry and stayed in the house of one Joy, a friend of the accused. On 20.5.1989 they went to the Sub Registrar's Office and entered into Ext. P4 agreement of marriage and thereafter they were living together as husband and wife. It is gatherable from one of the letters written by PW. 2 to the accused that the accused had an idea to go abroad but at the instance of PW.2 he dropped the idea. Under these circumstances it is very difficult to hold that the accused forcibly took her from the house of PW.3. In Varadarajan v. State of Madras (AIR 1965 SC 942) a college going girl, who was a minor, telephoned the accused and met him and thereafter went to the Sub Registrar's Office for registering marriage agreement. The Supreme Court held that the fact of her accompanying the accused is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. The Supreme Court found that she had willingly accompanied him and he is not guilty of taking away the girl out of the keeping of her father. In this connection it is also relevant to note the decision of this Court in State of Kerala v. Rajayyan (1995 (2) KLT 357). In that case a minor girl on her own volition left her home and joined the accused to get the marriage registered. It was held that the ingredients of Ss. 361 and 366-A are not at all attracted.
11. On a careful consideration of the evidence I find that PW. 2 left her home on her own accord and joined the accused to get the marriage registered. Therefore, the accused cannot be said to have taken or enticed her.
In the result, the conviction and sentence passed against the accused is set aside and he is found not guilty of the offences under Ss. 363 and 376 of the IPC and he is acquitted. This revision is thus allowed.