Kerala High Court
Shibu @ Ambili vs State Of Kerala on 13 June, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934
CRL.A.No. 108 of 2007 ( )
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(AGAINST THE JUDGMENT IN SC.139/2003 of ADDL.SESSIONS JUDGE, FAST TRACK
COURT (ADHOC)-IV, TRIVANDRUM, DTD.10.1.2007)
APPELLANT(S)/ACCUSED:
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SHIBU @ AMBILI, S/O.VELUKUTTY,
PUNNAPURA KIZHAKKUMKARA VEEDU, 24/143, CHELLAMKODE
PUVATHOOR, NEDUMANGADU VILLAGE.
BY ADV. SRI.G.SUDHEER KARAKONAM
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY ADV.SRI.P.M.SANEER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-06-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.A.No. 108 of 2007
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Dated this the 13th day of June, 2012
J U D G M E N T
Challenging the conviction and sentence imposed against the appellant under Section 376 of I.P.C., vide judgment dated 10.1.2007 in S.C.No.139 of 2003 of the court of Additional Sessions Judge (Fast Track), Adhoc No.IV, Thiruvananthapuram, the sole accused, who is the appellant herein, preferred this appeal.
2. The prosecution case is that while PW9 was taking water from the well at the eastern side of the courtyard of the house of the sister of the accused, the accused forcibly lifted PW1, who is only at the age of 14> years and took her inside the house and laid her in a cot on the south- western side of the house and committed rape on her and when PW1 attempted to make hue and cry, the accused threatened her that she would be done away if she discloses the fact to anybody. Thus, according to the prosecution, the accused has committed the offences punishable under Sections 376 and 506(1) of I.P.C.
3. Originally, Crime No.18 of 2002 of Palode Police Station CRL.A.NO.108 of 2007 :-2-:
was registered only for the offence under Section 376 of I.P.C. During the course of investigation, according to the Police, it was disclosed that the accused has also committed the offence under Section 506(1) of I.P.C. and therefore, a report was filed in the court to that effect and then added Section 506 of I.P.C. Thus, on completing the investigation, a report was filed in the Judicial First Class Magistrate Court-I, Nedumangad for the offences punishable under Sections 376 and 506 (1) of I.P.C. Subsequently, the learned Magistrate by his proceedings dated 6.11.2002 in C.P.No.145 of 2002 committed the case to the Sessions Court, Thiruvananthapuram, there the case is numbered as S.C.No.139 of 2003 and thereafter, the case was made over to the court of Assistant Sessions Judge, Nedumangad. Thereafter, the case was transferred to the present trial court. Thus, when the accused entered appearance in the trial court, after hearing the accused as well as the prosecution, a formal charge was framed against the accused for the offences under Sections 376 and 506 (1) of I.P.C. and when the charge was read over to the accused, he denied the same and pleaded not guilty. Thereafter, the prosecution adduced its CRL.A.NO.108 of 2007 :-3-:
evidence consisting of oral testimony of Pws.1 to 7 and Exts.P1 to P23 documents. Mos.1 to 5 were also identified and marked as material objects. No evidence either oral or documentary is produced from the side of the defence. The learned Judge of the trial court has finally found that the prosecution has failed to prove the ingredients of the offence under Section 506 of I.P.C. beyond reasonable doubt, but the prosecution has succeeded in establishing that the accused has committed the offence under Section 376 of I.P.C. Consequently, the accused is acquitted under Section 506(1) of I.P.C. whereas he is convicted for the offence under Section 376 of I.P.C. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for seven years with fine of Rs.3000/- and in default on payment of fine, to undergo rigorous imprisonment for a further period of six months. Set off is allowed under Section 428 of Cr.P.C. It is the above finding against the appellant and the order of conviction and sentence for the offence under Section 376 is challenged in this appeal.
CRL.A.NO.108 of 2007 :-4-:
4. I have heard Sri.G.Sudheer, learned counsel for the appellant and Sri.Saneer, learned Public Prosecutor for the State.
5. In order to prove the prosecution allegation against the accused, the prosecution mainly depends upon the testimony of the victim PW9 and other documentary evidence. The Police came into the picture when PW9- the victim gave Ext.P7 F.I.statement on 21.1.2002 at 7 a.m. before the S.I. Of Police, Palode Police Station, who is examined as PW13. According to PW9, as per her version in Ext.P7 statement, she had studied up to 8th standard and she was working as maidservant in the house of one Sasi at Thiruvananthapuram. According to her, since her mother was suffering from chest pain, she came and resided along with PW2 her maternal grandmother and her mother PW10. According to PW9, as per her F.I.statement, she was taken to the house of her grandmother by her mother and her stepfather, at Pachamala in Maruthamoodu. According to her, she was taken on 20.1.2002 at 9 a.m. and thereafter, her mother and stepfather went to Kulathoopuzha connected with the marriage of the elder son of her stepfather in his first marriage. Thus, according to the victim, CRL.A.NO.108 of 2007 :-5-:
on the date of the incident, herself and her maternal grandmother alone were there in the house at Pachamala. As per the statement in Ext.P7, she went to the nearby house of one Sindhu, the sister of the accused for taking water at about 3 p.m. and thus, while she was drawing water from the well, the accused caught hold of her and took her inside the house and laid in a cot and committed rape on her. She has stated that while she attempted to cry aloud, the accused closed her mouth with his hands and threatened her to kill if she disclosed the fact to anybody. According to her, after the incident, she went to the house of her grandmother and disclosed the incident to them. Thus, she was taken to the Thycaud Government Hospital at about 9.30 p.m. on that day. According to PW9, she was got examined in the hospital and she was advised to admit her, but she returned to the house as there was nobody in the house along with her grandmother. The house in which the alleged incident had taken place is a thatched house and the house having two rooms.
6. To prove the incident, the prosecution has cited and examined PW1, who is the sister of the mother of the victim. When PW1 was CRL.A.NO.108 of 2007 :-6-:
examined, she had deposed about the arrival of PW9 in their house. According to PW1, on the date of the incident, the victim came to her mother's house crying and when they asked the reason for crying she had stated about the incident to her in terms of what stated in Ext.P7 F.I.statement. According to PW1, her mother is blind and the distance between the house wherein the occurrence had taken place and that of her mother is only five feet. She had also deposed that she is also residing in another house near to the house of her mother. PW1 has also deposed about the medical examination of the victim on that day and also stated that she had also accompanied the victim to the hospital. PW1 has also stated that there are 3-4 houses near to the residence of PW1 and her mother used to take water from the house of one Ramachandran, who is the husband of the sister of the accused. Another witness examined by the prosecution is PW2, who is the maternal grandmother of the victim and according to her, on the date of the incident, the victim went to the house of Ramachandran for taking water and as she did not return, PW2 called her daughter PW1 and then she told that the victim did not come back to CRL.A.NO.108 of 2007 :-7-:
her house. According to PW2, when she called her granddaughter/ the victim, she came there and when she asked her as to where she was, she did not utter anything. PW2 further says that at about 5-6 p.m., on that day, the victim was found sick and fell down and she was taken to the hospital. PW2 has deposed that she is blind and she used to take water from the well in the house of the sister of the accused and when the victim went for taking water, she was laying inside the house. PW3 is a neighbour of the accused and though he had turned hostile towards the prosecution, he had deposed that he knows the accused and the victim and according to him, he came to know about the incident after 3 p.m. on that day. PW3 has also stated about six houses near to the house of the sister of the accused. PW4 is an attestor to Ext.P2 scene mahazar, but he has stated that he was not present at the place of occurrence when Ext.P2 scene mahazar was prepared. According to him, he put his signature from a place at Pachamala wherein his wife's house is situated. PW4 has also admitted his signature in Ext.P3 seizure mahazar for the seizure of the dress items worn by the victim and seized by the Inspecting Officer. PW5 CRL.A.NO.108 of 2007 :-8-:
is another attestor to Ext.P3 seizure mahazar. He has also admitted his signature in Ext.P3. PW6 is the mahazar witness in Ext.P4 which was prepared towards the seizure of the kailimundu worn by the accused at the time of the incident. According to him, he put his signature in Ext.P4 as required by the Police.
7. The then Assistant Surgeon, Government Hospital, Thycaud is examined as PW7 since he is the Doctor who examined the victim on 20.1.2002 on the date of the incident. According to PW7, he had examined the victim at 9.15 p.m. on 20.1.2002 at Government Women and Children Hospital, Thycaud and he issued Ext.P5 wound certificate. According to PW7, he had noted in Ext.P5 wound certificate that Hymen- torn (old), vagina admits 2 fingers, vaginal smear and swab taken and no evidence of external injury. As disclosed by the victim, according to him, he had recorded in Ext.P5, regarding the history of the injured. He had also deposed before the court that it was the victim, who stated about the alleged cause of injury and her age and accordingly, the same is recorded in Ext.P5 wound certificate. PW8 is another Doctor then attached to the CRL.A.NO.108 of 2007 :-9-:
Government Hospital, Palode who was then working as Assistant Surgeon. According to PW8, he had examined the accused and ascertained the potency of the accused and issued Ext.P6 Potency Certificate. According to him, on 25.1.2002, he examined the accused at 10 a.m. and issued Ext.P6.
8. PW9 is the star witness of the prosecution since she is the victim. During her examination, she has stated that at the time of the incident, she was residing with her maternal grandmother at Pachamala and on the date of the incident, her mother and the stepfather went to Kulathoopuzha for attending a marriage. According to her, the incident was on 20.1.2002. She has also deposed about the circumstances under which she happened to reach in the house of her grandmother. According to PW9, she went to the house of Sindhu, the sister of the accused for taking water and at that time, the accused came from her behind and caught hold of her and physically took her inside the house and committed rape on her. PW9 has also stated that the accused threatened to kill her if she makes hue and cry. According to PW9, she disclosed about the CRL.A.NO.108 of 2007 :-10-:
incident to PW1, her mother's sister and PW2, her maternal grandmother and thereafter, she was taken to the hospital. She had also stated about the medical examination conducted by PW7 on that day. According to PW9, on the next day at about 7 a.m., the Police came to her house and recorded her statement. She identified Mos.1 and 2, the dress worn by her at the time of the incident which was taken into custody by the Police. The F.I.statement given by PW9 is marked as Ext.P7. During the examination of PW9, she had identified MO3 kailimundu worn by the accused at the time of the incident. During the cross-examination, she has admitted that there was only approximately 30 feet distance between the house where the incident has taken place and the house of her grandmother. She had also stated about the presence of the four other houses near the place of occurrence. Though PW9 has deposed that she studied up to 8th standard, she has categorically stated that she did not know her date of birth. Another witness examined by the prosecution is PW10 who is the mother of the victim-PW9. According to her, PW9, the victim born in the year 1987, but she did not know the date of birth of her daughter. According to CRL.A.NO.108 of 2007 :-11-:
PW9, the daughter/the victim studied in the Kurupuzha L.P.school and thereafter, she was admitted in the 5th standard at Peringamala school. According to her, on the date of the incident, herself and her second husband were not available in the locality and they returned on the third day of the incident and then only she came to know the incident. According to PW10, her daughter PW9 told her that the accused has committed rape on her when she went for taking water from the well in the house of the sister of the accused.
9. PW11, the Headmistress of the Government L.P.School, Kurupuzha in the year 2002 was examined and she had stated that as required by the investigating officer, she gave the certificate relating to the admission of the victim in the said school. According to her, the certificate was issued after verifying the admission register. Ext.P8 is the extract of the admission register containing the entry relating to the admission of the victim issued by PW11 and as per Ext.P8, PW9 was admitted in the first standard in that school on 26.5.1992 and the date of birth of the victim was recorded as 13.4.1987. According to PW11, Ext.P8 CRL.A.NO.108 of 2007 :-12-:
was prepared in her own handwriting on the basis of the original admission register kept in the school. Ext.P9 scene plan was got examined through the Village officer who was examined as PW12.
10. It was the S.I.of Police, Palode Police Station, who recorded Ext.P7 F.I.statement of PW9/the victim and when he was examined as PW13, he had deposed about the F.I.statement given by PW9 and also stated that he recorded the statement and on the basis of Ext.P7 F.I.statement, he had registered Ext.P10 F.I.R. PW13 has also stated that she had prepared a body note of the victim and the same is marked as Ext.P11.
11. PW14 is the Superintendent attached to SAT Hospital, Thiruvananthapuram through whom the prosecution has got marked Ext.P12 wound certificate dated 21.1.2002 with respect to the victim issued by one Dr.Anitha, who is cited as CW15. The prosecution has also marked Ext.P13 when PW14 was examined and Ext.P13 is the certificate of chemical analysis obtained after the examination of vaginal swab and smear. According to the prosecution, after registration of the crime, the CRL.A.NO.108 of 2007 :-13-:
victim was again subjected to medical examination and thus, they obtained Ext.P12 wound certificate. PW15 is the Woman Police Constable who took the victim to the SAT Hospital. PW16 is the then Circle Inspector of Police, Palode who undertook the investigation. He prepared Ext.P2 scene mahazar. PW16 has also stated that though the victim has stated about her age as 17 years in the F.I.statement, during the investigation, it is revealed that the victim was only at the age of 14> years at the time of the incident and therefore, a report was filed to that effect showing the age of the victim and the said report is marked as Ext.P14. During the examination of PW16, Ext.P15 arrest memo is also marked through him with respect to the arrest of the accused. According to PW16, the arrest intimation i.e., Ext.P16 was served on the sister of the accused viz., Sindhu. PW16 has also stated about the seizure of kailimundu worn by the accused at the time of the incident as per Ext.P4 seizure mahazar. MO3 is the said kailimundu, which is identified by PW16. He had also stated about the dress items worn by the victim and the accused, which were sent for chemical analysis and obtained a report which is marked as Ext.P19. CRL.A.NO.108 of 2007 :-14-:
PW16 has also filed a report giving the correct name and address of the accused and the same is marked as Ext.P21. To correct the mistake occurred while noting down the name of the house in the scene mahazar, another report was filed which is marked as Ext.P21. PW16 has also stated about furnishing a report to add Section 506(1) of I.P.C. and the said report is marked as Ext.P22. The report was finally laid by PW17 after verification of the records. These are the evidence and materials referred to and relied on by the learned Judge of the trial court in support of its finding and convicting the appellant/accused.
12. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its allegation against the accused beyond reasonable doubt. According to the learned counsel, at the time of the alleged incident, the victim PW9 was a major and even if the incident is admitted as true, the other facts and circumstances and evidence would show that the same has taken place with the consent of the victim since PW9 has no case that she was forcefully subjected to sexual intercourse and the medical evidence does not suggest any forceable CRL.A.NO.108 of 2007 :-15-:
sexual assault on the victim. In order to substantiate the above contention, the learned counsel took me through the deposition of Pws.1,2,9 and 10 and Pws.7 and 8 and also the documents Exts.P5,P7,P12 and P8. Thus, according to the learned counsel, even the documents, which came into existence before the registration of the crime, show that the victim is not a minor. It is also the submission of the learned counsel that the available evidence including the depositions of PW11 and PW10 are not sufficient to prove that the victim was a minor at the time of the alleged incident. On the other hand, materials referred to above would show that even on the date of the alleged incident, the victim is a major. It is the further submission of the learned counsel that the medical evidence consists of the depositions of Pws.7,8 and 14 and the documentary evidence, such as Exts.P5 and P12 wound certificate are not sufficient to hold that the accused committed sexual intercourse forcefully on the victim since there was no mark of resistance or violence. Thus, according to the learned counsel for the appellant, the findings of the court below are factually and legally incorrect and the same is liable to be set aside. In support of the CRL.A.NO.108 of 2007 :-16-:
above contention, the learned counsel placed reliance upon the decision of the Honourable Apex Court reported in Alamelu v. State [AIR 2011 SC 715] and Madan Mohan Singh v. Rajnikant [AIR 2010 SC 2933].
13. On the other hand, the learned Public Prosecutor submitted that the evidence of victim PW9 is free of any infirmities or contradictions and her evidence positively proves that the accused has committed rape on her against her will and without her consent. It is the further submission of the learned counsel that even if the sexual intercourse is admitted as with the consent of the victim, the accused is liable to be convicted for the offence under Section 376 of I.P.C. since the victim was a minor on the date of the incident and therefore, even if the consent is given by the victim, that has no legal sanctity.
14. According to the learned Public Prosecutor, the evidence of the victim alone is sufficient to attract the penal liability and to convict the accused and the deposition of the victim need not be corroborated by any independent evidence. Thus, according to the learned Public Prosecutor, the trial court is fully justified in its finding and convicting the appellant CRL.A.NO.108 of 2007 :-17-:
and no interference is warranted. In support of the above submission, the learned counsel placed reliance upon the decisions reported in Satpal Singh v. State of Haryana [(2010)8 SCC 714] and Vijay v. State of M.P [(2010)8 SCC 191.
15. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor.
I have also perused the judgment of the trial court and scrutinised the evidence and materials on record.
16. In the light of the rival arguments advanced by the counsel for the appellant and the learned Public Prosecutor and in the light of the evidence and materials on record, the issue that emerges for consideration is whether the prosecution has succeeded in establishing that the victim was aged below 16 years at the time of the incident and whether the prosecution has succeeded in proving that the accused has committed rape on PW9, the victim on 20.1.2002 at 3 p.m. at Reshma Bhavan, Pachamala, Maruthummoodu, Kurupuzha Village as alleged and whether the trial court is justified in its finding and convicting the appellant for the offence CRL.A.NO.108 of 2007 :-18-:
under Section 376 of I.P.C.
17. The offence 'rape' is defined under Section 375 of I.P.C. and on a reading of the said definition, in order to attract the said offence, the prosecution has to prove that the accused had sexual intercourse with a woman under any of the six descriptions, but subject to the exception mentioned therein. Having regard to the facts and circumstances involved in the case, according to me, in the present case, the prosecution has to prove that the accused committed sexual intercourse on the victim against her will and without her consent, if the victim is above the age of 16 years. In short, the prosecution has to prove that the accused has committed sexual intercourse on the victim who is a minor and in case, if the victim is above 16 years against her will and without her consent. Having regard to the facts and circumstances involved in the case and considering the above question, according to me, it is proper to proceed first to decide whether the prosecution has succeeded in proving that the victim was below the age of 16 as on the date of the incident as alleged by them in the charge. In this case, before proceeding to the factual inputs on record, it is beneficial CRL.A.NO.108 of 2007 :-19-:
to consider the authorities on the field. In the decision reported in Alamelu v. State [AIR 2011 SC 715], the Apex Court has held as follows:-
"............................The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. We may notice here that PW1 was examined in the Court on 9th August, 1999. In his evidence, he made no reference to the transfer certificate (Ext.P16). He did not mention her age or date of birth. PW2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 of Cr.P.C. seeking permission to produce the transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April, 2000. The transfer certificate was marked as Ext.P16 at that stage, i.e., 26th April, 2000. The judgment was delivered on 28th April, 2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ext.P16 issued by the School and accordingly, her date of birth noticed as 15th June, 1977. He also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the CRL.A.NO.108 of 2007 :-20-:
truth of the facts stated in the transfer certificate."
(emphasis supplied) Similarly, in another decision reported in Satpal Singh v. State of Haryana [2010 (8) SCC 714] , in paragraph 22 it was held as follows:-
"22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar, AIR 1970 SC 326; Ram Murti v. State of Haryana, AIR 1970 SC 1029; Dayaram and Ors. v. Dawalatshah and Anr., AIR 1971 SC 681; Harpal Singh and Anr. v. State of Himachal Pradesh, AIR 1981 SC 361; Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 : (AIR 2006 SC 2157 : 2006 AIR SCW 2648); Babloo Pasi v. State of Jharkhand and Anr. (2008) 13 SCC 133 : (AIR 2009 SC 314); Desh Raj v. Bodh Raj, AIR 2008 SC 632 : (2007 AIR SCW 7702); and Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh and Anr. (2009) 6 SCC 681 : (AIR 2009 SC 2805 : 2009 AIR SCW 4261). In these cases, it has been held that even if the entry was made in an official record by the concerned official in the 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 and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.
Such entries may be in any public document, i.e. school register, voters list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram Hussain v. The State of U.P. and Ors., AIR 1964 SC 1625; and Santenu Mitra v. State of West Bengal, AIR 1999 SC 1587 : (1998 AIR SCW 4099)."
(emphasis supplied) CRL.A.NO.108 of 2007 :-21-:
It is also held in paragraph 24 of the very same decision as follows:-
"24. While dealing with a similar issue in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, this Court held as under :-
"15. "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one 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 discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
(emphasis supplied) It is also held in paragraph 26 of the very same decision, as follows:-
"26. In Vishnu v. State of Maharashtra (2006) 1 SCC 283 :
(AIR 2006 SC 508 : 2005 AIR SCW 6149), while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc., the entry in the school register is to be discarded." (emphasis supplied) CRL.A.NO.108 of 2007 :-22-:
After considering the various decisions cited and discussed therein, Their Lordships has held in paragraph 28 and 29 of the above decision as follows:-
"28. Thus, the law on the issue can be summerised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the Court/Authority to examine its probative value. The authenticity of the entry would depend as on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/ certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.
29. In case, the issue is examined in the light of the aforesaid settled legal proposition, there is nothing on record to corroborate the date of birth of the prosecutrix recorded in the School Register. It is not possible to ascertain as to who was the person who had given her date of birth as 13.02.1975 at the time of initial admission in the primary school. More so, it cannot be ascertained as who was the person who had recorded her date of birth in the Primary School Register. More so, the entry in respect of the date of birth of the prosecutrix in the Primary School Register has not been produced and proved before the Trial Court. Thus, in view of the above, it cannot be held with certainty that the prosecutrix was a major. Be that as it may, the issue of majority becomes irrelevant if the prosecution successfully establishes that it was not a consent case."
(underline supplied) Be that as it may, the issue of majority becomes irrelevant if the prosecution successfully establishes that it was not a consent case. CRL.A.NO.108 of 2007 :-23-:
Thus, in short, though the entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Evidence Act, the entry regarding the age of the person in a school register has not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. Now, let us proceed to examine the available evidence on record to find out whether the prosecution has succeeded in establishing beyond reasonable doubt that the victim was minor on the date of the incident.
18. At the outset, it is to be noted that in Ext.P7 F.I.statement, the victim has voluntarily stated that her age on the date of the F.I.statement is 17 years. While the victim furnishing the details to PW7, the Doctor who examined on the date of the incident, she has disclosed to PW7 that on the date of the incident, she was at the age of 16 years. The victim stated about her age as 17 years on the above two occasions before the registration of the crime and the commencement of the investigation. In this juncture, it is relevant to note that after the registration of the crime, the victim was got examined by CW 15, who issued Ext.P12 certificate CRL.A.NO.108 of 2007 :-24-:
dated 21.1.2002, which was marked through PW14. In Ext.P12 wound certificate also, the age of the victim is shown as 17. According to the learned counsel for the appellant, after the registration of the crime and when the further statement of the victim was recorded, she has stated to the Police that her age was 17 years on the date of the incident. The Police came with a case that the victim was only 14> years of age only subsequently as per Ext.P14 report. Thus, in order to prove the above alleged age of the victim, the prosecution very much placed reliance upon the evidence of the victim who is examined as PW9 and her mother PW10 and also the evidence of PW11, the Headmistress of Government L.P.S. and also heavily relied upon Ext.P8 admission register extract. In this juncture, it is relevant to note that though in Ext.P8, the date of birth of the victim is shown as 13.4.1987, neither the victim/PW9 nor her mother PW10 approved the correctness of that entry in Ext.P8. Both Pws.9 and 10 deposed positively before the court that they do not know the date of birth of PW9, the victim. It is in this juncture, Ext.P8 certificate and the deposition of PW11 require close scrutiny. PW11, during her examination CRL.A.NO.108 of 2007 :-25-:
has admitted that Ext.P8 is prepared by her on verification of the school records. She had also deposed that one student viz., Salini had studied in Government L.P.School, Kurupuzha. According to PW11, as per the record, it was the mother of the victim enrolled the student. During the cross-examination, PW11 has admitted that the original of the admission register was not brought and also stated that the date of birth is recorded on the basis of the entry in the admission register. She had admitted that the date of birth in the admission register was not entered by herself and she is not in a position to state as to who made those entries. During the cross-examination, PW11 was asked as follows:-
"
? (Q).
. .( A)"
PW11 has also stated that the distance between the location of the school and the house mentioned in the address of the student has a distance of 8 kms. and the same is a forest area. In this juncture, it is also relevant to note the answer given by PW11 for the particular question. It was put to PW11 as follows:-
CRL.A.NO.108 of 2007 :-26-:
" 7-8
? (Q).
. ( A).
During the re-examination, PW11 has stated that she had prepared Ext.P8 after verification of the admission register wherein the date of birth is entered by the Headmaster of the school and the same was duly and properly entered. So the evidence of PW11, according to me, is not sufficient to hold that the date of birth of the victim shown in Ext.P8 is correct and true since the evidence of PW11 is not satisfactory, when examined the same in the light of the test laid down by the Honourable Apex Court in the decision reported in Satpal Singh's case (2010)8 SCC
714. Now let us examine the evidence of PW10, the mother of the victim.
According to her, though she had claimed that the victim was born in the year 1987, she is not remembering the English Calendar month. But, she is sure that the victim was born in the month of Chingam of the Malayalam era. During the cross-examination, PW10 has stated as follows:-
" (Q). .
50 (A). 18 .
. 23
. .
CRL.A.NO.108 of 2007
:-27-:
(Q),
4 1 /2 ( A ).
? (Q3) 3 .
4 = ."
From the deposition of PW10, it can be seen that on the date of her deposition, she was at the age of 50 and her marriage was on her 18th years of age and she had given birth to her son during the age of 23 years. She has also stated that when she was at the age of 27=, gave birth to the victim PW9. If that be so, at the time when PW10 was giving evidence, the victim was at the age of 22 years. Therefore, on the date of the incident, i.e., 4 years back from the date of giving deposition by PW10, the age of the victim was only 18 years, Thus, the above evidence of PW10 positively reduces and diminishes the probative value of Ext.P8 certificate brought by PW11. Thus, it can be seen that when PW9 is not aware of her date of birth and not prepared to approve the correctness of the date of birth shown in Ext.P8, the facts narrated by PW10 positively shows that on the date of the incident, the victim was at the age of 18 years.
19. In this juncture, it is relevant to note that the victim belongs to Scheduled Caste/Scheduled Tribe and as admitted by PW11, at the time CRL.A.NO.108 of 2007 :-28-:
when PW9/the victim was admitted in the school, they were residing in a house at the forest area and therefore, it cannot be ruled out, especially when the date of birth shown in Ext.P8 is not supported by any authentic document, and the indirect admission of PW11 about usual practice of enrolling students for education at the age of 7 to 8 years, the defence version that the victim was admitted in the school at the age of 7 to 8.
20. In this juncture, it also relevant to note that as I indicated earlier, the prosecution materials viz., Exts.P7,P5 and P6 certificates, which were in existence even before the commencement of the investigation, the stand of the victim was that she was at the age of 16 or 17 at the time of the incident. The said fact regarding the age was voluntarily supplied by PW9/ the victim and the same appears to be correct in view of the deposition of PW10, as I indicated earlier. In this juncture, it is also relevant to note that the prosecution agency did not take any effective steps to collect scientific evidence or material especially, when in the earliest documents of the prosecution i.e., Exts.P7,P5 and P6, the victim herself admitted that her age is 16 or 17 and Ext.P8 document and CRL.A.NO.108 of 2007 :-29-:
the statement of PW11 are not sufficient to prove the age of the victim beyond reasonable doubt. In the light of the above facts and circumstances and the discussion, according to me, the prosecution has miserably failed to prove its allegation that the victim was below the age of 16 on the date of the alleged incident.
21. In the light of the above finding, the next question to be considered is whether the prosecution has succeeded in establishing a case that the accused has committed rape on the victim against her will and without her consent. To consider the above question, we have to again examine the evidence of the victim PW9 and the medical evidence and other evidence relied on by the prosecution. In this juncture, it is beneficial to recollect the discussion of this Court in the foregone discussion with respect to the age of the victim. When PW9 gave Ext.P7 F.I.statement, she had claimed that she was at the age of 17 on the date of the incident. In Ext.P5 wound certificate also, she volunteered to disclose that her age was 16 years. After the registration of the crime, when PW15 has taken the victim to CW15, the age of the victim is shown as 17. I have CRL.A.NO.108 of 2007 :-30-:
already found that in the light of the deposition of PW10, the mother of the victim, the age of the victim on the date of the incident would have been
18 years and the prosecution has miserably failed to prove positively the age of the victim as 16 years. Under the above factual background, we have to examine the deposition of PW9. When PW9 gave history of the incident to PW7, she had stated as follows:-
" 3 Shibu ."
This is the first opportunity for the victim to say about the incident to a third person other than her relatives viz., Pws.1 and 2. Thus, while giving those details, PW9 has no case that she was forcefully removed to the place of occurrence and committed rape on her forcefully. The details noted in Ext.P5 wound certificate by PW7 after examining the body of PW9 shows that there is no symptom of force exerted on PW9 and any forceful sexual interaction. According to PW7, no injury or mark of violence is seen anywhere in the body of the victim including on her private parts. PW7 has also deposed that he had not noticed the evidence of sexual intercourse in Ext.P5. During the cross-examination, PW7 has CRL.A.NO.108 of 2007 :-31-:
also stated " I have examined the body and private parts of the victim with the help of staff nurse Vijayalekshmi and Dr.Michael. In the case of forcible intercourse, there is possibility of injury in the private parts. (Q) Yes(A)." It is relevant to note that in Ext.P12 wound certificate also, it is specifically noted that no injuries or nail marks anywhere on the body. It was also noticed that there was no local injury. In this juncture, it is pertinent to note that Ext.P12 wound certificate is prepared on the basis of the body examination of PW9, after registration of the crime and when the victim was taken to the S.A.T. Hospital by the Police. So it was up to the Police to get proper examination and treatment of the victim and to bring the exact facts, even if there is any mistake or omission on the part of PW7 who examined the victim on the first occasion. But, in the present case, the wound certificates Exts.P5 and P12 on all vital aspects are same and there is no contradiction. The age of the victim in Ext.P12 is shown as 17. Thus, the medical evidence involved in this case does not suggest any forceful intercourse on the victim.
22. It is pertinent to note that when PW9 was examined, she had CRL.A.NO.108 of 2007 :-32-:
deposed making several improvements from her Ext.P7 F.I.Statement. Though in Exts.P5 and P12, the version of PW9 is recorded that "
." When Ext.P7 F.I.statement was given, it is
recorded that
"
.
."
(emphasis supplied)
But when she was examined in the court, she had stated that "
.
."
(emphasis supplied) During the chief examination, a leading question was put to PW9, which read, as follows:-
" ( Q ) ( A )" According to PW9, as the accused asked her to go after wearing
underwear and also stated that the accused threatened her that if she discloses the same to anybody, she would be finished. Thus, according to her, after having worn the underwear, she went to the house of the CRL.A.NO.108 of 2007 :-33-:
grandmother. She has stated in chief examination that " .
."
During the cross-examination, the accused has succeeded in bringing out in evidence that there were seven houses in the location and there were four houses near the house of the accused and her grandmother. He had also stated that there were houses opposite side of the road and there were people residing there. She has also admitted that the Police had questioned 2 to 3 occasions and during the cross, when a question was put to her as to whether she had stated before the Police that at that time, the age was 17 years, but she deposed before the court that she is not remembering it. She has also stated that on her lips, there was injury and blood. But, she has stated that she had forgotten to state about those aspects to the Police as well as to the Doctor. She has also stated before the court that she has not stated before the Police that she was dragged to the place of occurrence.
She has categorically stated that there was an injury on her leg and blood came out from that injury and fallen on the floor. She had further stated that about this injury, no statement was given to the Police as well as the CRL.A.NO.108 of 2007 :-34-:
Doctor. Thus, during the cross-examination PW9 has stated several facts as improvement which is not stated in any of her statement before the Police. During the cross-examination, Ext.D1 was marked from the side of the defence which is a contradiction. In the Police Statement, she had stated as "
." But, she denied to have given such a statement. The facts involved in Ext.D1 positively prove towards the conduct and approach of the victim, connected with the incident and if the incident was not with her consent and willingness, such a conduct is not expected. Though the defence has raised an objection in putting a particular question during the re-examination, the trial court permitted to put the question and thus, she has stated "
. ." But, there is no such deposition during her chief examination. Thus, going by the
deposition of PW9, especially in the light of the substantial improvement, it can be seen that her evidence is not inspiring and sufficient to come to a conclusion that the accused has committed the forceable intercourse on CRL.A.NO.108 of 2007 :-35-:
her, against her will or without her consent. All necessary elements to show forceful sexual acts are brought on as a result of leading question and subsequently, during the re-examination and also by way of substantial improvements.
23. As rightly pointed out by the learned counsel for the appellant, the first opportunity for the victim to say about the incident has got when she reached before PW2, who was anxious about her. But, in the chief examination itself, PW2 has stated that " .
. .
. .
. ."
But, PW9 says that when she reached in front of PW2, she had disclosed the incident to PW2. But the evidence of PW2 does not support the above version of PW9. The evidence of PW2 positively proves that though the victim was questioned as to where she was, according to PW2, she kept silent. The said facts are sufficient to hold that the victim was suppressing material facts before the court and she had a tendency to suppress what happened in the house of the sister of the accused when she went for taken CRL.A.NO.108 of 2007 :-36-:
water. In this juncture, it is also relevant to note that PW9 has no case that she came out of the house by crying. But, PW1 says that PW9 came out of the house by crying. On a close scrutiny of the evidence of PWs.1,2 and 9, it can be seen that their evidence are not so safe to act upon.
24. While appreciating the evidence of PW9, it has to be noted that even according to her, there were several houses adjacent to the house of the sister of the accused where the alleged incident had taken place and none of them cited and examined from the side of the prosecution. It is also relevant to note that even if it is admitted for the sake of argument that the victim was below the age of 16, she could have raised possible defence against the attack of the accused even she could have physically defended the accused. But, there is no such mark of resistance. The explanation offered by PW9 for not resorting to any such act is not acceptable. It is also relevant to note that she could have cried aloud and made alarm, but in that case also, the explanation is not convincing. In the light of the facts deposed before the court as well as before the Police, regarding the overt act of the accused, it can be seen that the victim has CRL.A.NO.108 of 2007 :-37-:
got ample opportunity to cry aloud or to call the neighbours for her rescue. It is also relevant to note that from the improvement made by PW9, during her examination in the court, it can be seen that she had deposed before the court in such a passion to canvass the conviction against the accused and many of the depositions made by way of improvement are conspicuously absent in her statement before the Police. It is also relevant to note that the learned counsel for the appellant has pointed out that even after the incident, she had taken a bath and cleaned the dress and thereafter, she went to the house of her grandmother. But the said fact stated in the Police Statement had been denied as evidenced by Ext.D1. The said contradiction further shows that much reliance cannot be placed in her deposition. It is also relevant to note that even according to her, as per the Police Statement, she has not sustained any injury during the alleged incident. But during her examination, the victim has stated several things regarding the injury and also the dragging etc. But, no injury is brought to the notice of PW7 when the victim was examined. So substantial improvements made by the victim show that she was not telling true affairs CRL.A.NO.108 of 2007 :-38-:
before the court and has a tendency to say falsehood. Thus, the evidence of PW9/the victim and the medical evidence are not sufficient or supported the case of the prosecution that the accused has committed forceable sexual intercourse on the victim.
25. In the light of the above facts and evidence and materials referred to above, according to me, the prosecution has miserably failed to prove beyond reasonable doubt that the accused committed forceful intercourse on the victim against her will and without her consent. Thus, considering the entire evidence and materials on record and the facts and circumstances involved in the case, especially in the light of the above discussion, I am of the view that the learned Judge of the trial court is not justified in his finding and convicting the appellant/accused for the offence under Section 376 of I.P.C. since the prosecution has miserably failed to prove the above allegation and the offence under Section 376 of I.P.C. against the appellant beyond reasonable doubt and I am unable to approve the conviction recorded by the learned Judge against the appellant and accordingly, the same is set aside.
CRL.A.NO.108 of 2007 :-39-:
In the result, this appeal is allowed setting aside the judgment dated 10.1.2007 in S.C.No.139/2003 of the court of Additional Sessions Judge, Fast Track Court (ADHOC) No.IV, Thiruvananthapuram and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by the appellant shall stand cancelled and he is set at liberty.
V.K.MOHANAN, Judge MBS/ CRL.A.NO.108 of 2007 :-40-:
V.K.MOHANAN, J.
CRL.A.No. OF 2003 JUDGMENT Dated:.2012 CRL.A.NO.108 of 2007 :-41-: