Kerala High Court
K vs State Of Kerala on 28 February, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938
Crl.Rev.Pet.No. 924 of 2013 ()
-------------------------------
AGAINST THE ORDER/JUDGMENT IN CRA 452/2004 of ADDL.DISTRICT COURT
(ADHOC)-III, THALASSERY DATED 28-02-2013
AGAINST THE ORDER/JUDGMENT IN SC 145/2001 of ADL.SUB COURT,
THALASSERY DATED 09-08-2004
REVISION PETITIONER/APPELLANT/ACCUSED:
--------------------------------------
K.,RAGHAVAN NAMBIAR AGED 50 YEARS
S/O.KRISHNA KURUP,
KARALATH MUZHAKKUNNU AMSOM,
PALA DESOM, THALASSERY TALUK.
BY ADVS. SRI.SHAIJAN C.GEORGE
SMT.S.REKHA KUMARI
SRI.B.M.AJITH
SMT.SAJITHA GEORGE
SRI.K.M.GIRISH KUMAR
RESPONDENT/RESPONDENT/COMPLAINANT:
----------------------------------
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR: SMT. M.G.LISHA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
08.03.2016, THE COURT ON 04.04.2016 PASSED THE FOLLOWING:
SUNIL THOMAS, J.
=================
Crl.R.P.No.924 of 2013
=================
Dated this the 4th day of April, 2016
ORDER
This revision arises from the concurrent finding of guilt of the revision petitioner as the first accused in Crime No.361 of 1998 of Iritty Police Station for offence punishable under Section 376 of the Indian Penal Code.
2. The facts discernible from record reveals a case having a long history. A 14 year old minor girl was employed as a housemaid in the house of the revision petitioner herein, who was a Jail Warden at that point of time. The girl was employed for the previous six years. It is alleged that sometime six months prior to the date of FI statement, the accused had committed rape of the minor girl. She became pregnant and when this was reported to the first accused, he took her to the hospital of the second accused, who was a qualified gynecologist, licensed to perform medical termination of pregnancy and the girl underwent MTP. The girl was discharged after two days. Subsequently, she developed high fever and was again admitted in the hospital. Since, even after prolonged treatment, it did not subside, the Crl.R.P.924/13 2 mother of the de facto complainant got her discharged from the hospital, took her to the Medical College Hospital, Calicut. An FIS was laid on 10.02.2014, but girl died on 14.02.1994. On the basis of the FIS registered, crime No.124 of 1988 was initially registered by the Medical College Police for offences punishable under Sections 313 and 314 of the Indian Penal Code against the first accused alone. It was later transferred and re-registered as Crime No.83 of 1988 of Mattannoor Police Station. Since the incident fell within the jurisdiction of Iritty Police Station, the case was again transferred to Iritty Police Station and registered as Crime No.361 of 1988. Investigation revealed commission of offence punishable under Section 376 IPC which was incorporated.
3. Alleging that victim was aged 16 years, final report was laid against the revision petitioner herein alone as the accused as S.C.No.57 of 1989. While the trial commenced, the mother of the de facto complainant moved the Honourable High Court, alleging that proper investigation was not conducted and pursuant to the direction of this Court, further investigation was ordered. In the meanwhile, the pending proceedings in S.C.No.57 of 1989 was stayed. Thereafter, final report was laid for various offences against the second accused also as Sessions Case No.145 of 2001. Crl.R.P.924/13 3 The Sessions case 57 of 1989 was incorporated in the new case and both the accused faced trial. The first accused was charged with offences punishable under Sections 376, 313, 314 and 315 of the Indian Penal Code. The second accused was charged with offences punishable under Section 313, 314, 315 and 201 IPC. On the side of the prosecution, PWs.1 to 32 were examined and Exs.P1 to P33 were marked. The contradictions were marked as Exts.D1 to D5 and few other documents were marked as Ext.D6 series. Ext.C1 was marked as Court exhibit. On the evaluation of the available materials, the trial court found the first accused guilty of offences punishable under Sections 376, 313, 314, 315 IPC and the second accused guilty of offences punishable under Sections 313, 314 and 315 IPC. Both were convicted for various offences extending upto four years with fine also.
4. Both accused carried it in appeal as Crl.Appeal.No.452 of 2004 and 453 of 2004. The appeals were heard by the Court of Session, which on a re-appreciation of the entire evidence found the second accused not guilty for offences and acquitted. The first accused was found guilty of offence punishable under Section 376IPC alone and was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, Crl.R.P.924/13 4 thereby confirming the finding of the trial court to that extent. He was acquitted of other offences alleged against him.
5. Contending that both the Courts have concurrently went wrong in holding him guilty under Section 376 IPC, the first accused has preferred this revision.
6. Heard and examined the records.
7. Before evaluating the available materials within the ambit of revisional powers of this Court, it is essential to analyze all admitted facts or facts which are not essentially in dispute or proved beyond doubt. It is admitted that the girl was employed in the house of the first accused as a housemaid, after she completed her third standard. She was employed there for about six years. It is also proved that she became pregnant and was taken to the hospital of the second accused wherein, she underwent MTP on 09.01.1988. She was discharged on 11.01.1998. Thereafter, she developed high fever and was admitted in the hospital of the second accused again on 24.01.1988. She was got discharged at the instance of the mother of the victim on 09.02.1988 and was taken to the Medical College Hospital, Calicut. FI statement was laid by her on 10.02.2014 and she died on 14.02.2014. The cause of her death as revealed from Ext.P31 Post Mortem Certificate Crl.R.P.924/13 5 performed by PW26, Forensic Surgeon, is that it was a case of death due to pneumonia and septicaemia. This is corroborated by Ext.P32 Inquest report also.
8. Even though there was an allegation that the first accused had caused medical termination of pregnancy against the victim's consent and without having regard to the psychological and physical well being of the girl and that he abetted the second accused to conduct MTP and thereby he faced the charges under various sections, none of this would survive in the light of the finding of the appellate court acquitting the second accused of all charges and the first accused of all charges, except one under Section 376IPC. Hence, the narrow compass of present evaluation is confined to whether the finding of the court below that the revision petitioner herein had committed rape of the girl is legally sustainable or whether the Courts have gone committed grave irregularity or went wrong materially and substantially.
9. The prosecution claimed that the victim was aged 14 years. However, in Ext.P19 FIR, the age of the girl was recorded as 19 years. All medical records kept by the second accused show that she was aged 20 years. Initially, the prosecution proceeded on the basis that girl was aged 16 years. Only at the time when Crl.R.P.924/13 6 the further investigation was ordered, the prosecution set up a case that she was aged 14 years. The history records are disputed on an allegation that it was collusively prepared to get over the liability of the crime and the date of birth and age were passed on by the first accused. Another material that has been brought on record is the postmortem certificate. In Ext.P31 postmortem certificate, PW26 had assessed the age of the girl as 16 to 18 years. Suffice to say that there are divergent materials on record regarding the age.
10. Ext.P24 was the evidence which was relied on heavily by the prosecution to confirm that the girl was less than 16 years at the time of the incident. The above document was the school admission extract proved through PW11, the Head Mistress who had issued the extract. The school admission register was not produced. It appears that it was seized by the police and later released on bond, but no attempt was made by the prosecution to produce the school admission register. Ext.P24 shows that the date of birth of the girl recorded was 20.04.1973. Relying on this, both the Courts concurrently held that the girl was around 14 years at the time of commission of the offence. It was admitted by PW11 that the entries in the school register were not made by her. Crl.R.P.924/13 7 She further admitted that the date of birth as seen in the school register is based on the information given by the person who conveyed it, without any further counter verification. In other words, except that the date of birth of the girl recorded as 20.04.1973, PW11 could not assert its correctness.
11. PW3 is the mother of the victim. She deposed that the girl was aged 14 years. She was unable to mention the actual date of birth. The lengthy cross examination indicates that she being a rustic lady, could not give the precise details of the age, month and various other arithmetical factors. She admitted that the date of birth of the girl was conveyed to the panchayath. However, the birth register of the panchayath is not forthcoming. She admitted that no other document to prove the date of birth of the girl was available. However, she hastened to add that horoscope was prepared. This is also not produced. Even though, she vaguely stated that the date of birth of the girl was conveyed at the time of admission, she has not assert as to who had conveyed the date of birth of the girl. However, both the Courts relied exclusively on Ext.P24 and concluded that it can be relied as a reliable piece of evidence.
Crl.R.P.924/13 8
12. However, the probative value of birth register alone has been dealt with by the Honourable Supreme Court in a catena of decisions. Several decisions are available to show that a public document in relation to the date of birth is admissible, if it satisfies the ingredients of Section 35 of the Indian Evidence Act and if it relates to the fact in issue. In Birad Mal Singhvi v. Anand Purohit (AIR 1988 Supreme Court 1796), the Supreme Court had occasion to deal with evidentiary value of the document regarding the date of birth. One of the certificate produced to prove the birth date was the certificate issued on the basis of the entries contained in the scholar's register. The Supreme Court held that such documents are relevant and admissible, but such documents have no evidentiary value for the purpose of proof of date of birth, unless the vital piece of evidence in the form of evidence of person on whose information the date of birth of the concerned person was recorded in the document was adduced. Parents or near relatives having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. It Crl.R.P.924/13 9 was held that since the truth of the fact, namely the date of birth of the concerned person was in issue, the mere proof of the documents does not furnish evidence of the truth of the facts or contents of the documents.
13. The Supreme Court held that Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. According to the Apex Court, to make a document admissible under Section 35, three conditions are to be satisfied. Firstly, there is an entry in a public or other official book, register or record. Secondly, it must be an entry stating a fact in issue or relevant fact and thirdly it must be made by a public servant in the discharge of his official duty or any other person in performance of a duty specially enjoined by law. The court held that the entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register or such document is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. Crl.R.P.924/13 10
14. It was further held that in Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury ( AIR 1941 Cal. 41) a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show the material on which the entry in the register about the age of the plaintiff was made. The Hon'ble Supreme Court noted that the above principle was followed by almost all the High Courts in the country thereafter. The courts have consistently held that the date of birth mentioned in scholar's register of secondary school Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. This consistent view has been followed in the subsequent decisions of other High Courts. In Madan Mohan Singh & Ors v. Rajni Kant & Anr.[AIR 2010 Supreme Court 2933] the Hon'ble Supreme Court cited with approval the earlier decisions in Ravinder Singh Gorkhi v. State of U.P. [2006 5 SCC 584], Babloo Pasi v. State of Jharkhand & Anr. [ AIR 2009 SC 314) and Ram Suresh Singh v. Prabhat Singh [AIR 2009 SC 2805]. In all the above decisions it was held that even if Crl.R.P.924/13 11 entry was made in an official record by the concerned official in discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made. In Mahadeo, S/o. Kerba Maske v. State of Maharashtra and another [(2013) 14 Supreme Court Cases 637], it was held that statutory provision in Juvenile Justice (Care and Protection of Children) Rules is also applicable to determine the age of young victim. The principle regarding the age in public document has been confirmed and reiterated by the Supreme Court in the latest decision reported in State of Madhya Pradesh v. Munna @ Shambhoo Nath [2015 KHC 4622].
15. Hence, the settled legal position is that date of birth in the school register is not the conclusive proof and it has to be corroborated by the testimony of the person, who is conversant with the actual date of birth or on whose version, the date of birth is forthcoming. In this case, though mother was examined, she did not mention about the date of birth, or that she had given the date of birth at the time of admission. Hence, finding of the court below that Ext.P24 can be relied on solely for the purpose of concluding Crl.R.P.924/13 12 the date of birth of the girl and consequently that she was aged 14 years during the date of incident is not legally sustainable. Evidently, there is no material to show that the date of birth of the girl or that she was aged less than the consenting age, at the time of the incident.
16. The next question is whether the revision petitioner has committed rape of the girl. The prosecution heavily relied on Ext.P19(a), FI statement recorded by the police to bring home guilt and to canvass the position that it amounted to a dying declaration. In the FI statement, there is a version that about six months prior to the incident, she was taken by the revision petitioner to a room on the first floor and they had physical relationship. The statement of the girl was recorded by PW27, police constable. Her uncle has signed it as a witness. Though, he was examined as a witness, the above version and its correctness were not proved through him.
17. It is also pertinent to note that there is no certification of the doctor or much less evidence ofany other witness to the effect that the girl was physically and psychologically in a fit condition to give a true and correct statement. Hence, the attending circumstances will have also to be analyzed. It is an Crl.R.P.924/13 13 admitted case of the prosecution that she was admitted in the hospital of the second accused with high fever. She was shifted from that hospital against medical advice, on the insistence of the mother and the locals. Ext.P11 temperature chart kept in the hospital shows that during the period of that admission, her temperature varied, lowest during the period was 100 degree centigrade. This shows that the victim had high temperature. PW1, doctor of the hospital had stated that patient with high fever may be in a semiconscious stage. So, there are materials to show that the girl was physically not in a fit position. It is also seen that Tracheotomy was also done and the neck was perforated. This also indicate that she was being fed through the perforation and it cast some doubt on the physical capacity to give full statement.
18. There is absolutely nothing to show that with all the above physical conditions, the girl had anticipated death. None of the witnesses have spoken to that. The Honourable Supreme Court in Mohan Lal and Ors. v. State of Haryana ((2007)9 SCC 151), P. Mani v. State of Tamil Nadu (AIR 2006 SC 1319) have held that dying declaration can be relied on provided it inspires confidence to base conviction without further corroboration. A high degree of reliability is expected from such a Crl.R.P.924/13 14 statement. Having regard to the above legal position, it is clear that correctly both the Courts have concurrently rejected the plea that Ext.P19(a) can be treated as a dying declaration. However, both courts have also stated that it does not mean that the above statement is not without any evidentiary value, but it can be of some use to the prosecution.
19. The lower appellate court, after having concurred with the finding of the court below, regarding the unreliability of dying declaration, proceeded to hold that there was no direct evidence to show that the revision petitioner herein had committed rape of the girl. In the course of the discussion, the Court held that there are seven circumstances to strongly suspect that the petitioner had committed rape of the girl. It further proceeded to rely on Ext.P33, which was an attendance register kept in the Sub Jail to prove that on all the relevant dates, including the dates when the girl was admitted in the hospital, the revision petitioner was on leave. The Court concluded on the basis of the seven circumstances, coupled with Ext.P33 that there are strong circumstances to come to the conclusion that the petitioner herein was taking active role in taking the girl to the hospital, to undergo MTP, to get her discharged and to take her to his own house. The Crl.R.P.924/13 15 Court held that the very fact that the girl was taken back by the revision petitioner after the first discharge strongly indicates that he wanted to suppress the medical termination of pregnancy and to keep the entire things under carpet. These facts cumulatively prompted both the Courts to conclude that the revision petitioner had committed rape.
20. In the course of the above conclusion, it appears that both courts committed a common error. The crucial issue that arose was not whether the petitioner herein had taken an active role in the MTP, but whether, he had in fact committed rape of the girl. The question whether he had taken her to the hospital, taken a lead role in conducting the MTP and whether, he was even on leave on these days are all ancillary points, which coupled with other facts may establish the guilt. The court below did not sieve the evidence to find whether there was any direct or indirect evidence to show that the revision petitioner had committed rape of the girl.
21. Secondly, all the circumstances relied on by the court below may not lead to a conclusion that the revision petitioner herein had taken an active role in the MTP and the related aspects and even those circumstances, relied on by the court below are Crl.R.P.924/13 16 inferences which are mere possibilities and answerable with counter possibilities also.
22. As mentioned above, the crucial question is whether the allegation of rape is sustainable against the revision petitioner herein. In Ext.P19(a), she has specifically stated that the incident happened about six months back. The exact date is not mentioned. She had stated that the revision petitioner and one Chandran had "physical relationship" with her. There was no attempt by the prosecution to find out as to who was this Chandran. He did not face trial also. His identity has also not been disclosed throughout the proceeding. No explanation, much less, a vague suggestion, was given by the prosecution regarding the identity of the said Chandran. However, a vague explanation was given by few witnesses that it was only a fictitious person. Then the crucial question that arises was why the name of one Chandran was also mentioned by the girl. The prosecution did not offer any explanation to this. On the other hand, PW3 had stated that the victim was afraid of the revision petitioner herein and hence, she wanted to implicate Chandran. This is not believable since the FIS was recorded much after the MTP was done and even after the second admission in the hospital. It appears that by that time, the Crl.R.P.924/13 17 local persons had intervened and she was discharged from the hospital of the second accused and was seem to be in the company of the mother, sister and brother. Local persons had also intervened. She had also disclosed the name of the petitioner herein along with Chandran. This clearly shows that since she has disclosed the name of the revision petitioner, there was no reason for her to be afraid of the revision petitioner and still why Chandran was also attributed with the rape, looms large as a doubt.
23. Several questions were put in the course of cross examination to identify this Chandran. Suggestions were made to PW1 that there were several Chandran in the locality and who used to come to the house of PW1 mother, who admittedly was involved in the illicit arrack trade. It is true that few uncharitable aspersions were also cast with respect to this aspect which was rightly rejected by the court below. However, prosecution thoroughly failed in confirming that Chandran never existed and to offer a plausible reason for her attributing the liability to Chandran also. This is also appreciable in the background that the victim was not in her full physical and mental capacity at the time of recording the statement.
Crl.R.P.924/13 18
24. The specific case suggested by the victim was that she was raped six months prior to the incident. However, the hospital records reveal that she was four months pregnant. Though, hospital records were challenged by the accused and even by the mother of the victim, still, it is a piece of material relied by the prosecution, which shows that it does not tally with the case suggested by the prosecution.
25. It is also pertinent to note that in Ext.P16(a) FIS, the girl did not say that rape was committed on her. She only suggested that she had "physical relationship" with the accused and one Chandran. No element of threat or force was spoken by the victim. It is true that the question whether the consent was obtained either fraudulently or by threat or by force would have been irrelevant, had there been materials to show that the girl was below the age of consenting. In the absence of any such materials, the question of consent becomes relevant and significant.
26. In the above circumstances, the only material to prove the allegation of rape is the oral testimony of PW3, the mother, the sister of the victim PW15 and the brother examined as PW16, on the basis of information conveyed to them by the victim. According to PW16, the victim had informed her that accused had Crl.R.P.924/13 19 made her pregnant. PW15 also stated that victim had conveyed the same information to her also. These are the materials relied on by the prosecution to show that he was responsible for the rape. However, these being indirect evidence, further corroboration will have to be searched for. This has to be appreciated in the background of oral testimony of PW3, who, though attributed the cause to the revision petitioner herein, her version is not free from embellishment, omissions and contradictions. It appears that several contradictions of her with respect to the version given by her to the police were brought on record. It has also come out in evidence that though the prosecution has a case that the entire acts including the MTP were done by the revision petitioner, there are materials to show that the mother and other family members were involved and they were aware of the MTP and hospital admission.
27. Though the court below held that revision petitioner herein had taken active role in taking the girl to the hospital, undergo MTP and thereafter, taking the girl to home to conclude that he was taking undue interest in the case of girl, there are certain other facts pointing to other possibilities. In fact, PWs.3 and 13 in their evidence had deposed that the wife of the revision Crl.R.P.924/13 20 petitioner herein had taken the girl to the hospital initially. PW3 had stated that on second occasion, when she was informed about the admission in the hospital and the physical condition of the girl, she herself had taken her to the hospital of the second accused. She further admitted that the fever did not subside. She further deposed that she had enquired with the doctor as to whether she had to shift the victim to other hospital, whereupon she was informed that other hospitals were also providing the same treatment. Thereafter, she informed the local people and got her shifted to the Medical College hospital. These show that from the initial period onwards, PW3 was also involved in taking the girl to the hospital.
28. Even regarding the time when PW3 came to know about MTP, there seems to be divergent version of PW3 herself. At one point of time, she deposed that when she went to the hospital, she found that MTP had already been performed. In the course of further cross examination, she deposed that at the first time of admission, she had gone there to meet the girl and understood that she was pregnant. It was later, that the MTP was done. The evaluation of her version indicates that either she was in the know of entire incident from the time of initial admission or Crl.R.P.924/13 21 even before the MTP was performed or that she was giving highly contrary versions regarding the entire incident. It is pertinent to note that there is a document purported to be a consent letter bearing the signature of the victim, PW3 and another person consenting to the MTP. Of course, it is a highly disputed document which the court below did not completely rely on. However, the fact remains that the mother was in the hospital. This militates against the finding of the court below that revision petitioner was actively involved in taking the girl to the hospital, conducting MTP and again taking back the girl to home. The version of Pws.3 and 15 clearly shows that on both occasions of admission in the hospital, they had gone to the hospital.
29. Another vital factor is that though PW3 asserted that after putting up the girl in the house of the revision petitioner herein, she was never let to come home and she always visited the girl at the house of revision petitioner and further that after the MTP, she was never taken home. There is one version of PW15 which contradicts her. PW15 in her version had admitted that on one occasion, the girl was brought home. This was not spoken by PW3. These facts lead to a conclusion that the version of PW3 is not free from doubt and that materials indicate that revision Crl.R.P.924/13 22 petitioner alone was not actively taking part. It is also pertinent to note that it is true that after the MTP, the girl was taken to the hospital of revision petitioner. Of course, there is nothing to show that he had enquired about the person responsible for the incident and that, he did not leave her to go to her home. This has to be appreciated in the background that the girl was working in the house of the revision petitioner for past six years. Had the girl been send home, he would be accused of having thrown out the girl after becoming pregnant and performing MTP. Of course, there are several strong reasons to doubt the role of revision petitioner herein and to hold that the accused might have committed rape. Suspicion, however strong itself, may not be a substitute for legal evidence. The Honourable Supreme Court in several cases including the one decision cited at the bar Kali Ram v. State of Himachal Pradesh (AIR 1873 SC 2773) has held that to hold a person guilty, there must be evidence to establish strong guilt to the hilt and not mere suspicion.
30. Having regard to these facts, I feel that the evidence before the court below was not sufficient enough to lead to the sole irresistible conclusion that the revision petitioner herein had committed rape of the girl. Hence, the conclusion arrived at by the Crl.R.P.924/13 23 court below on the basis of the inferences was not legally sustainable and could not have been arrived at. It is a material irregularity affecting the substratum of the case. Hence, the findings of the courts below are liable to be set aside and conviction set aside.
The revision is allowed. Conviction against the revision petitioner is set aside. Accused is acquitted. The bail bond executed by him shall stand discharged.
Sd/-
SUNIL THOMAS Judge Sbna/ True Copy P A to Judge Crl.R.P.924/13 24 The following corrections are effected in the final order dated 04/04/2016 in Crl.R.P. 924/2013 as per order dated 02/06/2016 in Crl.M.A.No.3041/2016 in Crl.R.P. 924/2013.
1. The dates "10.02.2014 and 14.02.1994 occurring in the 3rd line at page 2 are corrected as "10.02.1988 and 14.02.1988".
2. The dates "10.02.2014 and 14.02.2014" occurring in the penultimate line at page 4 are corrected as "10.02.1988 and 14.02.1988".
3. The figure '1873' occurring in the 16th line at page 22 is corrected and substituted as '1973'.
Sd/-
Registrar (Judicial)