Alex P.V vs State Of Kerala on 13 July, 2021

[Cites 26, Cited by 1]

Kerala High Court

Alex P.V vs State Of Kerala on 13 July, 2021

It is moral depravity of the worst kind when teachers stoop down to the level of lecherous deviants to molest their students. In the case we are dealing with, we have an allegation of a teacher in a Sunday School, where moral and religious education is imparted, having committed repeated rape on his student, a minor child. Worst still, the defence is that it was another teacher in the same Sunday School who committed the atrocious act, who also stands convicted in another proceeding. We can only look up to the Good Lord and lament: 'Heaven forbid'. But in this world, we are called upon to decide, whether the conviction was proper and if we affirm it, as to the correctness of handing down the harshest sentence, the legislature prescribes.

Crl.A.No.416/2016 - 3 -

2. The allegation was of repeated rape and the offences charged were under S.376 (2)(i) & (n) of the Indian Penal Code [for brevity, 'the IPC'], S.5(f) &(l) read with S.6 of the Protection of Children from Sexual Offences Act, 2012 [for brevity, 'the POCSO Act']. The repeated commission of the offence was found against the prosecution. On the single instance, upon which the First Information Statement (FIS) was registered, the accused was found guilty under S.376(2)

(i) of IPC and S.5(f) read with S.6 of the POCSO Act. He was convicted and sentenced to undergo R.I for life for the offences on which conviction was entered under the IPC, which means the remainder of his natural life and a fine of Rs.2 lakh with default sentence. No separate sentence under the POCSO Act was imposed under S.42 of that Act.

3. The prosecution paraded 14 witnesses before the trial Court as PWs.1 to 14, marked 22 documents as Ext. P1 to P22 and produced 4 material objects as MO1 to MO4. DW1 to DW4 were examined on the side of Crl.A.No.416/2016 - 4 - the defence and Ext. D1 & D2 were marked.

Sri.P.Vijayabhanu, learned Senior Counsel, instructed by Smt.Pooja Pankaj argued for the appellant-accused. While Smt.S.Ambika Devi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children] appeared for the State.

4. Sri.P.Vijayabhanu pointed out, it is doubtful that the offence under the POCSO Act would be attracted, because Sunday School is neither an educational or religious institution. In any event, the act complained of had not occurred in the course of the functioning of the accused in the status of a staff of the institution. It is pointed out that Clause (d) &

(e) of Section 5 can only be taken as being applicable, when such acts are committed on an inmate or an inpatient, respectively. The very same interpretation would have to be carried over to sub-clause (f) is the contention. It is pointed out that the daughter and mother have inconsistent statements about the tuition arrangement; how it was initiated and arranged and the Crl.A.No.416/2016 - 5 - subjects it was intended for. In fact, the mother, as spoken of by the other witnesses, on being informed of the alleged incident, which occurred in the course of the tuition, immediately responded that her daughter was not attending any tuition. PW1, the prosecutrix, also has no consistent case and her evidence before Court is full of embellishments of such acts having commenced in the year 2012 itself from the residence of her family, where they were staying earlier, which was not stated to the Doctor or in the FIS. Almost 90% of her evidence has been disbelieved by the trial Court. She is not wholly reliable and is unreliable. There is an allegation of yet another teacher having molested her, which was the allegation, the prosecutrix spoke of to her friend. The prosecution purposefully did not examine that friend; who when examined as DW2, categorically stated that the mother of the prosecutrix had asked her to say the name of the accused rather than that of the other teacher. The judgment in the case registered against that other teacher has been Crl.A.No.416/2016 - 6 - produced to show that the conduct of the prosecutrix is highly suspect. It is urged that though a defence witness; evidence of DW2 cannot be treated as tainted as held in AIR 2002 SC 620 [State of Haryana v Ram Singh]. The incident complained of against the other teacher is earlier to the instant allegation, which would unsettle the corroboration attempted to be offered by the medical evidence in this case. The learned Senior Counsel would also rely on 2021 (3) KLT 205 [Surendran v. State] to question the advisability of accepting the medical evidence regarding the tear in hymen and the entry facilitated of one or two fingers. Last but not least the learned Senior Counsel would question the determination of age by the trial Court. The evidence produced as Ext.P3 is the extract of a School Register, which does not even qualify the test in Jarnail Singh v. State of Haryana [2013) 7 SCC 263]. It is asserted that without proof of age, none of the provisions under which the conviction has been maintained can be upheld.

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5. Learned Special Government Pleader on the question of age, points out that there is no challenge to the marking of the document, Ext.P3, nor even a question asked to the Headmistress (HM) as to whether the age stated in the Extract is correct or not. Reliance is placed on Jarnail Singh (supra) and Mahadeo v. State of Maharashtra [(2013) 14 SCC 637]. It is pointed out from S.94 of Juvenile Justice (Care and Protection) Act, 2015 that now there is no mandate of proof by the production of an admission extract from the School first attended. Relying on Ramesh @ Ramesh Kumar v. State, rep. by Inspector of Police [2017 KHC 3314] of the Madras High Court, it is argued that if the dispute was raised, proper proof would have been offered. Lakhi Ram Takbi v. State of Sikkim [2019 KHC 3670] of the Sikkim High Court is pointed out to bring home the principle of 'Ante litem motam' affording acceptability to documents certifying age, as the same was done long before the commission of the crime itself. It is asserted that the Sunday School is an Crl.A.No.416/2016 - 8 - educational institution and those who impart training has the status of a teacher. The accused also in his statement under S.313 admitted, having taught the prosecutrix in the Sunday School. That the act was committed using the influence, a teacher has on a student is quite evident and it attracts the offences under the IPC and the POCSO Act. As to the argument of non- examination of DW2 by the prosecution; it is urged that she was not necessary to unfold the prosecution case. In any event, the allegation of substitution of the accused as the perpetrator of the crime, for another teacher, was never put to the witnesses, who recorded the FIS and registered the FIR. The conviction and sentence have to be upheld, especially taking into account the fact that the legislature in the case of such offences, against children below 16, made amendments to the IPC bringing in more severe punishment in the year 2018.

6. We need not refer to the allegation of repeated rape committed on the prosecutrix, since the Crl.A.No.416/2016 - 9 - said charge was found to be not proved before the trial Court and there is no appeal by the State. We confine to the allegation of an act of molestation committed on 14.12.2013, at the house of the accused, when he had forcible sexual intercourse with his student, who had been to his house for private tuition. The FIS by the prosecutrix was recorded by PW9, a woman CPO. As per the FIS, when PW1 was studying in the 7th Standard, at a PTA meeting, PW2, her Class Teacher, advised her mother to give her private tuition, since she was not doing well in her studies. Her mother then entrusted her tuition with the accused, her Sunday School teacher, who used to summon the student through her mother when he had free time. PW1 commenced tuition from October and often at the time of tuition the children of the accused used to be present and so was the wife of the accused present in the house. On 14.12.2013, when she reached the house of the accused, the family of the accused were not there. The accused invited her with an orange juice and when the tuition Crl.A.No.416/2016 - 10 - was going on, he boxed her left ear without reason. She cried in pain, when he caught her hands in appeasement and took her to the bedroom. There he forcefully removed her dress ignoring her resistance and made her lie on the cot. He removed her undergarments and despite her cries; not to harm her, he lifted her petticoat and raped her. After the act, he asked her not to divulge the incident to anybody and went out. She went to the bathroom and cleaned the 'filth'. She also specified the colour of the dress she wore on that day. When her periods did not come in time, she told her friend, DW2. DW2 talked about the incident, upon which the authorities of the School came to know about this and eventually her mother too.

7. PW1, in her evidence, spoke in tandem with what she stated in the FIS; but made several embellishments. Before Court, PW1 in addition to what was stated in the FIS, alleged that the molestation by the accused commenced in the year 2012 and continued in that year as also in the next. This version of repeated Crl.A.No.416/2016 - 11 - rape as we noticed, was disbelieved by the Court and there is no appeal against that. However, the specific incident that happened on 14.12.2013 was repeated verbatim. She also marked MO1 to MO4 dresses worn by her at that time; later seized by the Police. Nothing comes out of the said MOs, since even according to her, they were washed after the incident and the prosecution too did not pursue any chemical analysis; rightly so. Though PW1 stated her date of birth in the FIS, no such question was put to her while she was examined in Court and contrary to what is stated by the learned Special G.P, she has not specifically stated her date of birth in her chief-examination; the controversy regarding which date we will deal with later.

8. PW2 is the Class Teacher, who spoke of DW2 having told her about the sexual assault of PW1 by a Sunday School Teacher. She informed the HM, who summoned PW4, the mother of PW1. The HM also informed the Childline and the Police, who questioned the victim. In cross-examination, PW2 stated that she has Crl.A.No.416/2016 - 12 - not told the Police about DW2 having told her about the assault. It was also explained that since she was proceeding for exam duty, she would not have stated all the facts before the Police. She denied having suggested private tuition for PW1. PW3 is the HM, who deposed that she came to know of the allegations from PW2. She also stated before Court that PW2 had informed her that she was informed of the allegations by DW2. PW2 & PW3 also said that when PW4 was summoned, she had initially denied PW1 being sent for private tuition. She marked Ext.P3 extract of the School Admission Register, which shows the date of birth as 01.06.2001.

9. PW4 is the mother of PW1. She spoke of the school authorities summoning her and informing her of what transpired with her daughter. She asserted that she had admitted to the HM that her daughter is attending private tuition. She spoke of having close acquaintance with the accused, a neighbour earlier and also colleagues at the Sunday School where both of them taught. She spoke of sending her daughter for tuition Crl.A.No.416/2016 - 13 - to the accused. PW5 is the Doctor who examined PW1. She spoke of the history stated by the subject at the time of examination; which referred to the incident that occurred on a second Saturday in December 2013. The narration of the history by PW1 as spoken to PW5 tallies with the FIS. The Doctor also spoke of finding the hymen of PW1, partly torn, the age of which tear could not be specified. PW1 was also stated to be 'liberalized' with sexual contact, which we should understand as 'habituated'; though not in the full sense of the term.

10. PW6 is the HM of the Sunday School wherein the accused was teaching for about eight to ten years. PW1 was a student and PW6 produced the attendance registers of the teachers and the students of the school, two each in number, which were marked as Ext.P6 & P7 and P8 & P9 respectively. He proved Exts.P6(a) and P7(a) portions which showed the attendance marked by the accused. Ext.P8(a),(b)and(c) and Ext.P9(a) attendance marked by PW1 were also marked. PW9 is the Crl.A.No.416/2016 - 14 - woman CPO who took out the statement of PW1 as per the instruction of the Sub Inspector of Police. PW10 Doctor examined the accused and certified his potency. Ext.P13 ownership certificate of the house in the name of the accused, the scene of occurrence, was produced and marked by PW11. PW13 authorized PW9 to take the statement of PW1, on being informed of the commission of the offence through telephone. He registered the FIR, Ext.P16 as per the FIS and sent the victim along with PW9 for medical examination. PW14 is the Investigating Officer.

11. As we observed at the outset, there is no cause for us to dwell upon the repeated sexual assault spoken of by PW1 and PW4 before Court. We are only concerned with the one-act complained, of 14.12.2013. The learned Senior Counsel had attacked the prosecution case pointing out the discrepancies in the evidence of PW1 and PW4 as compared to what was deposed by PW2 and PW3. Both PWs.2 and 3 had said that on informing the mother, PW4, about the allegation of sexual assault on Crl.A.No.416/2016 - 15 - her daughter by a tuition teacher, she denied her daughter being sent for private tuition. PW4 on the other hand asserted that she admitted before the School authorities that her daughter was being given tuition by the accused. Even if the evidence of PW2 and 3 on that aspect is believed, we find it only natural for a mother, informed of a sexual dalliance of her daughter at a tuition class, to be on denial mode, as a knee-jerk reaction. PW2 also denied having ever suggested private tuition for PW1. Whatever that be, PW1 and PW4 had spoken of the tuition being arranged with the accused. At whose behest the victim was sent for private tuition is not very relevant and this contradiction does not vitiate the testimony of the victim and her mother as to the tuition she attended. The discrepancy concerning the subjects as spoken of by PWs.1 and 4 are also not very material since the victim was studying in the 6th standard where the curriculum though subject-specific, could be handled by any knowledgeable person. In this context, we have to also Crl.A.No.416/2016 - 16 - take into account the contention raised by the accused of his educational qualification which is asserted to be only matriculation. Again we stress the standard in which the victim was admitted at the relevant time and it cannot be assumed that private tuition especially for subjects in the Upper Primary classes are rendered only by persons with specific qualifications.

12. Indeed, what was spoken of by PW1 about the repeated sexual assault was disbelieved by the Court. The victim had also not spoken of that at the first instance, which throws suspicion on the later embellishments made in Court. However, for that sole reason, her evidence cannot be discarded in its entirety as unreliable. We believe that there is a fair distance between 'not wholly reliable' and 'unreliable'. To find the witness to be 'unreliable' the Court has to necessarily find the evidence to be fully tainted, artificial, contrived or exaggerated and the witness to be untrustworthy, deceitful, dishonest or undependable. Whereas, if a witness is termed to be Crl.A.No.416/2016 - 17 - 'not wholly reliable', as can be found in the present case, there is no warrant for eschewing the entire evidence. That is the context in which Courts have time and again spoken about 'sifting the chaff and grain'. Such sifting is not on individual predilections but on an appreciation of the entire evidence placed before the Court, including the corroborating materials and the attendant circumstances as borne out from the depositions of the various witnesses and the documents proved.

13. Here, we have the victim at the first instance, speaking about a specific incident in the FIS. The very same recital was made before the Doctor, who physically examined her. These materials, which are first in point and contemporaneous, lend credibility to the deposition of the victim in Court, about the specific solitary instance of sexual molestation. Hence PW1 can only be seen to be a witness who is 'not wholly reliable' but by no stretch can she be categorized as 'unreliable'. So much of the evidence which appears Crl.A.No.416/2016 - 18 - credible and is corroborated has to be accepted. Here we have to keep in mind that the incident alleged is of a sexual assault on a school going girl. It results in alienation from society, placing the victim and her family in a pall of shame; though they are the wronged ones. The apathetic societal inclinations result in those wronged attempting to embellish, to hold their ground and justify their stand while also hoping for retribution. Though the embellishments are disbelieved, we do not find anything to disbelieve PW1 or for that matter PW4, a mother who would not normally press an allegation of rape on her daughter. We have gone through the certified copy of the judgment in another case of sexual molestation on the very same victim, by another teacher from the same Sunday school. We are not called upon to look at the merits of the case and we have not. This was produced only to point out that therein the victim had asked for her mother to be sent out when her S.164 statement was recorded. There is nothing suspicious about that conduct since it is Crl.A.No.416/2016 - 19 - natural that a girl feels reluctant to relate an instance of molestation before her own mother. In the present case too the mother was not present when the statement was recorded under S.164.

14. Further, the revelations did not come voluntarily as an accusation from the victim or at the behest of her mother. The evidence indicates that she divulged the incident to her friend (DW2) who talked about it, which ultimately reached the ears of the school authorities. The incident when brought to the attention of the school authorities, the mother was summoned and so was the complaint raised before the Police and the Child Welfare Bodies. There was no time for deliberation or false accusation to be made by the victim against an unconnected person nor was it a calculated move against the accused. When we are on the allegations against the other teacher of the very same Sunday School, we also have to notice the defence set up through DW-2 of the present allegation having originated about that other teacher. The evidence led, Crl.A.No.416/2016 - 20 - indicate that after the incident of 14.12.2013, the victim missed her periods, which prompted her to confide about the incident to her friend, DW2. In fact, therein there was no allegation of penile penetration or carnal intercourse and the specific complaint was, of that teacher having inserted his finger into the vagina of the victim. This could not have resulted in the victim missing periods; which she would definitely have been aware of.

15. In this context, we also have to look at the evidence of DW2. She vouches that she had been told of the incident by the victim and she communicated it to her friends and PW2, who in turn informed the school authorities. PWs.2 and 3 also speaks of the information having been received as passed on first by the victim to DW2. DW2 is not studying in the same Sunday School and it was not even asked to her before Court, whether she had any acquaintance with the accused. On the contrary, in cross-examination, she admitted that she has no acquaintance of either the accused or the other Crl.A.No.416/2016 - 21 - teacher against whom allegations were raised. Her attempt, while speaking for the defence, was to say that it was not the accused but another teacher of the same Sunday School who molested her friend. However, PWs.2 and 3 the class teacher and the HM, who heard it from DW2, neither speak of DW2 having divulged a specific name nor were they cross-examined on this aspect. Tested against the evidence of PW1 & PW4, DW2's statement that PW4, the mother of the victim approached her to change the name of the accused person, fails to impress us. The defence also did not put a question to PW2 as to whether the exact name of the perpetrator was spoken of by DW2; when both the witnesses accept that PW2 was informed of the allegation by DW2. It is not as if we consider a defence witness to be tainted but on a judicious appreciation of the evidence tendered as a whole we find no warrant to find the accused having been wrongly implicated in the crime. DW2's evidence to the extent of the victim having named another person as the rapist, in the totality of the circumstances cannot Crl.A.No.416/2016 - 22 - be believed.

16. The next contention of the accused is that if at all the offence stands proved, it would not fall under S.5(f) of the POCSO Act; since the act complained of is independent of his status as a teacher of the Sunday School and a Sunday School is not an educational institution. We are unable to accept such a contention. What would have been in the contemplation of the legislature was the possibility of unsuspecting children being abused sexually by persons who wield some authority over them, because of a dominant status enjoyed by them 'vis-a-vis' the child. Either because of fear instilled, a sense of awe, pure fascination, simple devotion or the respect commanded; for example, as would a uniformed officer or a teacher evoke. We look at Section 5 and the various clauses. A police officer or a member of the Armed or Security Forces if commits penetrative sexual assault on a child, it is treated as aggravated assault, if it is done within his or the Force's area of jurisdiction, in the course Crl.A.No.416/2016 - 23 - of his duty or even where he is known and identified as a member of a uniformed service [clauses (a) and

(b)]. As far as clause (c) is concerned, a public servant has a duty to the society which he serves, as an employee of the Government. The aggravated nature of the offence committed, hence is not limited to its commission within the jurisdictional area nor is the knowledge of his holding a public post relevant. As far as clause (d) is concerned, when the accused is the management or staff of a Prison or other institution of confinement, the offence should have been committed on an inmate since it is only over an inmate that he wields such authority. Likewise, a Doctor also has a dominant authority over a child in a hospital either as an inpatient or a bystander or visitor. It is only in the specific contextual circumstances that clauses (d) and (e) insists that the offence had to be perpetrated on an inmate or someone in the hospital; which requirement cannot be imported into the other clauses.

Crl.A.No.416/2016 - 24 -

17. We also notice clauses (g) and (h), which speaks of the commission of such an offence by a gang or using a deadly weapon or lethal substances thus instilling a sense of fear and helplessness in the victim. Though there cannot be any parallel drawn; a broad co-relation can be made to a concept, recognized by crime-fighting agencies across the globe, coined with the term 'Stockholm Syndrome'. It speaks of a psychological response by which, hostages or abuse victims develop a bond with their captors or abusers, even while in captivity or being subjected to abuse. Likewise, a child subordinated or subservient to a dominant adult, if sexually molested by that adult, it is an abuse of the position held or authority wielded by that person over the child, which the legislature thought should be severely punished, to enforce deterrence and hence provided as an aggravated offence of sexual assault.

18. Clause (f) of S.5, speaks about the management or staff of a religious or educational Crl.A.No.416/2016 - 25 - institution and the commission of an offence of penetrative sexual assault on a child in that institution. This need not be necessarily within such an institution. It only requires the assault to be committed on a child in that institution, which means admitted to that institution and not residing in or within that institution. A teacher has a special status in every community and is venerated by not only those presently tutored but also the past students. At an impressionable age, it is only natural that the teacher has sway over his student, as we noticed, for reasons of fear instilled, awe evoked or fascination, affection, respect or devotion. A teacher with that sole status holds a position of authority and influence over his student. The commission of an offence of sexual molestation by such a person on his student, a child, is what is intended to be punished by the above provision as an aggravated offence. There is no warrant to interpret the said clause as restricting it to only instances of such commission of offence when the Crl.A.No.416/2016 - 26 - perpetrator is engaged in the act of teaching or it is occasioned within the institution to which the child is admitted. Also, a Sunday School though does not deal with a normal curriculum, still is concerned with moulding the character of a student by imparting moral lessons and religious training. It is definitely an educational institution. The accused was in the status of her teacher in the Sunday School and was also taking private tuition for her, of subjects in the regular curriculum. It is the status of a teacher or a staff of the school in which the student was admitted that is germane to attract the provision, to term the offence as an aggravated one. The teacher-student relationship originated from the Sunday School. In addition to the offence committed, there is the aspect of it having been committed by a person with authority over the victim; which authority is coupled with a responsibility. This requires the offence to be treated as of a more grievous nature and hence it is categorized as an aggravated offence. The accused is a Crl.A.No.416/2016 - 27 - teacher and the victim a student of the Sunday School, as spoken of by PW6, the HM and evidenced by the attendance registers of the staff (Exts.P6&7) and that of the students (Exts.P8&9). We reject the argument raised against the offences charged under the POCSO Act, on the above two counts. The fact that the offence was committed when the accused, a Sunday School teacher, was holding private tuition will not take the offence out of S.5(f) of the POCSO Act.

19. The next contention is concerning the date of birth. The extract of the Admission Register from the School which was first attended by the victim; has been held to be sufficient proof for determining the age of a child who is a victim of a crime; by the Hon'ble Supreme Court in Jarnail Singh and Mahadeo (both supra); drawing support from the Juvenile Justice (Care and Protection of Children) Rules 2007. Rule 12 of the said rules specify under sub-rule (3)(a)(ii) that the date of birth certificate from the school (other than a play school) first attended is sufficient Crl.A.No.416/2016 - 28 - evidence to determine the age of a child in conflict with law. Rules of 2007 are no more in force and we see from the Juvenile Justice (Care and Protection) Act, 2015 that the determination of age is as per S.94(2) in which clause (i) provides so:

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

20. Though under the Act of 2015, there is no requirement of the certificate to be from the School first attended, the Hon'ble Supreme Court has specifically referred to the Rules of 2007 and imported the same procedure in the case of minor victims as in the case of minor children in conflict with law. A Division Bench of this Court in Crl.Appeal No.50 of 2017 [Rajan K.C. v. State of Kerala] after referring to the Rules of 2007 and the Act of 2015, held: " we would think that the said rigour (in the Rules of 2007) has to be applied in cases where the determination of Crl.A.No.416/2016 - 29 - the age of a minor victim arises; so as to not prejudice the accused" (sic). The rigour noticed is of the requirement of the extract of the School Register to be from the school first attended. The Act of 2015 is one intended for the protection of the juveniles in conflict with law, just as the criminal justice system ensures no prejudice being caused to the accused. The rigorous requirement made by the Hon'ble Supreme Court, while importing the requirement of the Rules of 2007, specifically of the date of birth of even a victim being determined with the certificate from the school first attended has to survive the repeal of the Rules of 2007 and we cannot be diluting the requirement. This also is in consonance with the principle of 'ante litem motam'.

21. Ravinder Singh Gorkhi v. State of U.P (AIR 2006 SC 2157) held so, on S.35 of the Indian Evidence Act (para 25), the evidence of an HM based on the school register (Para 33 to 35) and the evidentiary value of an extract of the school register in the Crl.A.No.416/2016 - 30 - absence of the evidence of the person who supplied the information to be included in the register (Para 37); extracted herein below:

"23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder:

(i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country, and (iv) all persons concerned indisputably must have an access thereto.

xxx xxx xxx

33. The deposition of the Headmaster of the school in this case did not satisfy the requirements of the law laid down in the aforementioned decisions.

34. Mr.Mishra, however, relied upon Umesh Chandra v. State of Rajasthan [(1982) 2 SCC Crl.A.No.416/2016 - 31 - 202]. Therein a register maintained by a public school of repute had been produced. This Court relied thereupon, opining that Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a public school maintains a register in ordinary course of business, the same would be admissible in evidence.

35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.

xxx xxx xxx

37. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission, for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of Crl.A.No.416/2016 - 32 - determining the age of a party to the lis, having regard to the provisions of the Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted". It was also held: "We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted." (sic-para:38)

22. On the above finding it has to be held that Ext.P3, extract of the Admission Register of the School, which was not the first school attended by the student, cannot be accepted as valid proof of age. We do not agree with the contention of the learned Special G.P that there was no challenge made in the Crl.A.No.416/2016 - 33 - cross-examination of the HM, PW3, and she was not even questioned as to the correctness of the date. The HM cannot be questioned on the correctness of the date since she has no personal knowledge of the date of birth of the victim. She can only vouch for the entry in the Register which would have been entered therein on the information supplied by either the guardian or the parents. The Register maintained by the School is not a public document. Ramesh @ Ramesh Kumar was a case in which the father of the victim had spoken of the age of the victim. Here, the mother was examined as PW4, who was not asked the date of birth of the victim, in chief-examination. We also reject the contention of the Senior GP that if the accused had questioned the document and raised a dispute, definitely the prosecution would have produced a valid birth certificate. The accused has no obligation to so invite the prosecution to establish the date of birth of the victim. It is the prosecution's bounden duty to establish every material fact and circumstance before Crl.A.No.416/2016 - 34 - the trial Court. In the above case, no such valid proof was offered and although the young victim was studying in a school, we are unable to find her age to be below 16 or even below 18; for reason of no valid proof offered. It is the failure of the prosecution and they cannot cover themselves up by alleging that the accused never raised a dispute. There is no significance in the mere marking of the document, since its probative value has to be established, which has to be by primary evidence, such as direct oral evidence (s.60 of IE Act) or documentary evidence (S.62 of IE Act) or secondary evidence in the form recognised by law (S.63 & 65 of the IE Act). If the document produced by the prosecution is not a public document or a certified copy of it, at least there should be oral evidence by a competent person.

23. Birad Mal Singhvi v. Anand Purohit [1988 Suppl. SCC 604] arose under the Representation of the People Act, 1951. It was held that the entry regarding date of birth contained in the school register and the Crl.A.No.416/2016 - 35 - secondary school examination has no probative value if no person on whose information the date of birth of the candidate was entered in the school records was examined. The entry contained in the admission form or the school register must be shown to be made based on the information given by the parents or a person having special knowledge about the date of birth of the person concerned. The date of birth of the candidate as contained in the document must be proved by admissible evidence ie: by the evidence of those persons who can vouchsafe the truth of the facts in issue. In the absence of any such evidence, the document has no probative value and the date of birth mentioned therein cannot be accepted. Hence, it can always be proved by the person who has direct knowledge of the fact in issue and who has, in the present case, passed on such information to be entered in the School Register. We reiterate, the mother was examined, but this crucial fact was not elicited. We find the document Ext.P3 and mere statement of HM, PW3, to be insufficient proof Crl.A.No.416/2016 - 36 - insofar as the date of birth of the victim is concerned.

24. On the reasoning above, we have to find the evidence of PW1, the prosecutrix, regarding the incident of a rape committed on 14.12.2013, by the accused to be convincing and credible. The incident had reached the ears of the school authorities through the friend, to whom she talked about it. The said fact has been spoken of by PW2 (Class Teacher) and PW3 (HM). Though DW2, the friend to whom PW1 confided, deposed that the allegation was made against another teacher, we have disbelieved that part of her evidence, since it was not spoken of by the Class Teacher(PW2) to whom DW2 conveyed the information. The prosecution has not produced any valid proof of age and we hold the same to have been not established before Court. In such circumstances, we find the accused not guilty of the charges levelled against him under S. 376(2)(i) IPC, treating the victim to be below 16 years and S.5(f) of the POCSO Act, treating the victim to be a child under Crl.A.No.416/2016 - 37 - 18 years of age. However, the allegation of rape having been found, the accused has to be convicted under Section 376(1) IPC, which is a lesser offence with lesser severity of sentence, which is permissible. We, hence, convict the accused under Section 376(1) IPC and impose the punishment of imprisonment for life.

The appeal stands partly allowed.

Sd/-

K. VINOD CHANDRAN, JUDGE Sd/-

ZIYAD RAHMAN A.A., JUDGE vku/jma/sp.

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