IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941
CRL.A.No.767 of 2015
AGAINST THE JUDGMENT IN SC 422/2014 of ADDITIONAL DISTRICT
SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN CHILDREN)
DATED 27-06-2015
CRIME NO.636/2013 OF MARADU POLICE STATION, Ernakulam
APPELLANT/ACCUSED NO.1:
REJU,AGED 34 YEARS
S/O.RAMU, PAZHUKATTU NIKARTHIL HOUSE,
NALUKULANGARA.P.O., NEAR KANNATTU KAVALA,
THURAVOOR DESOM, KUTHIYATHODU VILLAGE, CHERTHALA
TALUK, ALAPPUZHA. (IN CUSTODY-CENTRAL PRISON
VIYOOR).
BY ADVS.SRI.MANJU ANTONEY
SRI.ANOOP C.C.
SRI.JOSEPH CHACKO
SRI.R.ANAS MUHAMMED SHAMNAD
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR
OF POLICE, ERANAKULAM TOWN POLICE STATION
CRIME NO.636/13 OF MARADU POLICE STATION)
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, COCHIN-682 031.
BY ADV.SR.PP. SRI.K.B. UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.05.2019, ALONG WITH CRL.A.999/2015, THE COURT ON
17.07.2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.767 999/15
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941
CRL.A.No.999 of 2015
AGAINST THE JUDGMENT IN SC 422/2014 of ADDITIONAL DISTRICT
SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO
ATROCITIES SEXUAL VIOLENCE AGAINST WOMEN CHILDREN)
DATED 27-06-2015
CRIME NO.636/2013 OF MARADU POLICE STATION, Ernakulam
APPELLANT/ACCUSED NO.2:
SALEENA JOSEPH
AGED 42 YEARS
W/O SAKARIYA,PALLIPARAMBU HOUSE,CHETHIKOTTU
KARA,EDAKKATTUVAYAL VILLAGE,NOW RESIDING AT
C/O.HEMALATHA,W/O.PALATTUMURI MADHU,
CHAMBAKKARA DESOM
BY ADV. SRI.MANJU ANTONEY
SRI.ANOOP C.C.
SRI.R.ANAS MOUHAMMED SHAMNAD
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
(CRIME NO.636 OF 2013 OF
MARADU POLICE STATION.
BY ADVS.
SR.PP SRI.K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.05.2019, ALONG WITH CRL.A.767/2015, THE COURT ON
17/7/2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.767 999/15
-:3:-
JUDGMENT
Shaffique, J.
These two appeals are filed by accused 1 and 2 respectively
against the judgment dated 27/6/2015 of the Additional District
and Sessions Court (For the trial of cases relating to Atrocities and
and Sexual Violence against Women and Children). The first
accused had been convicted for offence u/s 376(2)(i)(n) of SectionI.P.C.
and sentenced to undergo rigorous imprisonment for life and a
fine of `10,000/- with default sentence of rigorous imprisonment
for two months, imprisonment for six months u/s 23 of the
Juvenile Justice (Care and SectionProtection of Children) Act, 2000. The
second accused is convicted to undergo rigorous imprisonment
for life and also to pay a fine of `10,000/- u/s 109 r/w 376 (2)(i),
(n) of SectionI.P.C. with default sentence of two months. She is also
sentenced to undergo rigorous imprisonment for 6 months u/s 23
of the Juvenile Justice (Care and SectionProtection of Children) Act, 2000.
2. The victim in the case is the daughter of the 2 nd
accused. While they were residing in a rented building at
Chambakkara Poonithura village, the first accused, who was a co-
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worker of the 2nd accused joined them and started residing
together. Prosecution allege that, during the period from
4/8/2013 to 15/8/2013, the first accused committed rape on the
victim on several occasions at their residence itself. The 2 nd
accused, mother of the victim aided and instigated the first
accused to have sexual intercourse with the victim.
3. The crime came to light when the wife of the first
accused had come to the residence of the 2 nd accused and
created a hue and cry. All of them were summoned to the police
station and while the victim was questioned by the Child Welfare
Committee, the incident of rape came to light. Based on the
same, investigation was conducted. Necessary medical report
was obtained and the first accused was charge-sheeted for
having committed rape and the second accused for abetting the
rape. They were also charged u/s 5(I)(n) r/w 6 of the Protection of
Children from Sexual Offences (POCSO) Act, 2012. Since the
accused pleaded that they were not guilty of the charges levelled
against them, prosecution entered into trial and examined PW1 to
PW15. Exts.P1 to P15 were the documents relied upon and MO1
to MO9 were the material objects that were identified. After
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completing the procedural formalities, the accused were
convicted as stated above.
4. Learned counsel for the appellant/first accused raised
two specific contentions. One is that there was no evidence for
rape as no injury was found on the body of the victim. Secondly,
even assuming there was sexual intercourse, it was only
consensual. Though it is contended by the prosecution that she
was only a minor, aged 15 years, the evidence adduced by the
prosecution is not sufficient to arrive at such a finding and
therefore the court has to proceed on the basis that she was a
major and it was a consensual sexual intercourse. Learned
counsel appearing for the 2nd accused/mother of the victim
argued that there is absolutely no material to indicate that the
mother had abetted the crime. The materials placed on record do
not indicate that the mother had done any wilful act or illegal
omission which prompted the first accused to commit the
aforesaid offence. Learned counsel for A1 and A2 referred to
various judgments which we shall refer later.
5. On the other hand, learned Public Prosecutor
submitted that the victim was only at the age of 15 and sufficient
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evidence had been adduced by the prosecution to prove the said
fact. The extract of the school register from the school which she
last studied had been produced which would prove her date of
birth and it is not even disputed. Therefore this is a case in which
a minor was repeatedly raped and the first accused does not
deserve any mercy. There is also evidence to prove that the
mother had abetted the crime by permitting the first accused to
have sexual intercourse with her own daughter, who was only a
minor at the relevant time. It is therefore argued that there is
absolutely no material to interfere with the judgment of the
learned Sessions Court.
6. Before proceeding further, it will be useful to refer to
the testimony of witnesses and their role in the prosecution case.
7. PW1 is the care taker of Santhibhavan shelter home
where the victim had been lodged. She deposed that the
statement of the victim was taken on 19/8/2013 by the Circle
Inspector of Police and one woman Sub Inspector of Police at
Santhibhavan in her presence.
8. PW2 is the Doctor who had examined the victim. She
was a Gynecologist at General Hospital, Ernakulam. She
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examined the victim on 19/8/2013 at 3.45 p.m. With reference to
the aforesaid crime and the history, she stated that she had
sexual intercourse with Reju who was working along with her
mother with the consent of her mother from the start of the
month itself and it continued till 17 th every day. PW2 on
examination noticed that she was having small abrasions present
on the back right side 4-5 days old. No injury was noticed in the
genitalia. The hymen was torn with slight bleeding, which may be
due to mensuration. The vagina admitted two fingers and vaginal
swab and smear were taken for chemical examination. She
deposed that there was evidence of penetration and Ext.P1 is the
certificate. In cross-examination she stated that even on physical
examination, it could be noticed that there was penetration.
9. PW3 is the victim and we shall consider her evidence
in due course.
10. PW4 was the Headmistress of St.George High School,
Arakunnam since, 2011. On the request of the police, she had
given Ext.P4, the certified extract of school admission register of
the victim and as per Ext.P4, date of birth is shown as 20/5/1998.
She stated that since the girl completed SSLC, she had gone from
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the school.
11. PW5 is the Village Officer who had prepared the site
plan Ext.P5.
12. PW6 is a witness to recovery of the dress of the first
accused and Ext.P6 is the mahazar for the same.
13. PW7 is a neighbour of the accused who deposed that
he knew them and they have resided in a building on rent near
his house. They were residing together along with the victim.
14. PW8 is the owner of the building which was given to
the 2nd accused on rent from 4/8/2013 onwards. Though rent
deed was to be prepared and she offered to send it, she did not
do so. Her son in law had gone to her house for the rent deed and
he came back and stated that they were not good people. On
17/8/2013, they heard a commotion which was informed by the
people in the locality. When he went there, he saw the accused.
Police was also there. Police had taken them. Thereafter they took
possession of the building.
15. PW9 is the Doctor who conducted the potency test of
the first accused. He deposed that there was nothing to suggest
that the first accused was incapable of performing sexual act.
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PW10 is a witness to Ext.P8, recovery of the dresses of the victim.
16. PW11 is the Sub Inspector of Police, Women Police
Station, Ernakulam on 19/8/2013. She deposed that statement of
the victim was taken in her presence by the Circle Inspector of
Police while the victim was at Santhibhavan.
17. PW12 was the chairperson of Child Welfare Committee
at Ernakulam. The victim was taken to her house by the police
officers of Maradu police station. In the presence of female
constable, her statement was recorded. Statement is Ext.P2. PW3
the victim has also signed on the same. Along with a letter, she
had sent Ext.P2 to the Maradu Police Station. The said letter is
Ext.P9.
18. PW15 started investigation which was continued by
PW13, since 26/2/2014. The statement of PW3 u/s 164 SectionCr.P.C was
recorded by the Magistrate. PW15 had completed the
investigation and laid the final report before Court.
19. PW14 was the Sub Inspector of Police, Maradu on
18/8/2013. On the basis of the report given by the Chairperson of
the Child Welfare Committee, he registered Crime No.636/2013.
Ext.P10 is the FIR.
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20. PW3, the victim had stated that her date of birth was
20/5/1998. The 2nd accused is her mother. She has a sister. Father
died when she was one year old. Sister is married away and living
with her husband. Since her sister and mother were not in good
terms, sister does not come home. Mother is a coolie worker. She
studied from Class I to IV at Chethikode L.P. School and from Class
V to VII at Angamaly Holy Family High School. At that time, she
was residing at Santhibhavan orphanage, Angamaly. Thereafter
she had some kidney stone problem and mother took her to
Eroor. From Standard VIII to X she studied at St.George School. At
that time she was residing along with her mother at
Chottanikkara, Kadavanthra, Eroor etc., in rented houses. From
August, 2013, they were residing in a rented house at
Champakkara. When they started residing there, Reju (A1) who
was a co-worker of her mother also started residing with them.
She identified A1. They started residing at Champakkara since
3/8/2013. The house at Champakkara had a kitchen and one
room. She used to sleep on the floor. At about 10.30 pm on
3/8/2013, while she was about to sleep, the first accused came
near her and attempted to catch hold of her. Mother was
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intoxicated and was sleeping. She told the first accused that she
will inform her mother. At that time, he went away from her. Next
day, at about 7.30 a.m, A2 had gone to purchase rice from
Kadavanthra. She was watching the television. At that time, first
accused came through the front door and locked it from inside
and came near her. She got up from the cot. She was forcefully
pushed into the cot, he undressed her and he forcefully had
sexual intercourse with her. On the same day, he continued
having sexual intercourse three times. At about 11.30 a.m.,
mother came and knocked on the door. There was delay in
opening the door as she had to dress herself. Mother looked
through the keyhole and saw them. First accused dressed himself
and opened the door. By the time she also had dressed herself.
When mother came into the house, she cried and told her mother
about the incident. Mother did not give any care to the same.
Mother told her that the first accused will marry the victim and
that he likes her. On the same day evening, A1 and A2 started
drinking. After that, mother asked the first accused to lie down
with the PW3. Though she opposed, mother insisted and on the
said night also, he had sexual intercourse with her. Thereafter,
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until 14/8/2013, on several occasions, during day and night, first
accused had sexual intercourse with her. On 15/8/2013, mother
sent the first accused for work. According to PW3, mother and
first accused were living as husband and wife. On 17/8/2013 first
accused came by noon. Immediately she called her mother over
phone and informed the same. By evening, mother came and
asked the first accused why he had not gone for work. He
answered that he did not go. On 17/8/2013 at night, the accused
did not do anything to her. Next day morning, wife of first
accused came and created a commotion. When there was a hue
and cry, the people in the locality called the police. Police came
and enquired about the incident. Thereafter, PW3, her mother,
first accused and his wife were taken to the police station. From
the police station, she was taken to the Child Welfare Committee
and she had informed Padmaja madam about the incidents,
which she recorded. She had signed the same as Ext.P2.
Thereafter the police had taken her to Santhibhavan. Next day,
her statement was recorded at Santhibhavan. On the same day,
she was taken to General Hospital. A lady Doctor had examined
her. She had informed to her all the incidents. Next day police
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had taken her to her house. She had shown them the place. Her
dress were taken and seized by the police. She had informed the
colour of the dress the accused was wearing at the relevant
time. Police had again questioned her. She was taken to the
Magistrate at Aluva. She had given a statement which is marked
as Ext.P3. During cross-examination, question was asked whether
a person by name Suresh used to come regularly to her house at
Champakkara and she answered in the affirmative. She also
stated that on some days he used to reside at their house. She
knew one Mahesh, who is a friend of the first accused and she
liked him. On a particular day, A1 along with Mahesh had come to
their house and A1 had asked her mother whether her mother will
give PW3 in marriage to Mahesh and on one occasion, Mahesh
and her mother had pushed A1 out of the house. She further
deposed that at that time, the wife of first accused had come and
she started creating a commotion by stating that she is the wife
of first accused and thereafter the people started assembling.
The suggestion was that, at the instance of Mahesh, she had
given a false statement to Padmaja madam which she denied and
it is at the instance of Mahesh she had given a statement against
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her mother as well which also she denied. According to the
defence, the mother never asked first accused to sleep with PW3.
One suggestion was whether she had mentioned to Padmaja
Madam and the Magistrate that her mother had forced A1 to
sleep with PW3. Her answer was that she does not remember.
According to the first accused, he did not have any sexual
relationship with PW3.
21. S.375 has been substituted by SectionCriminal Law
(Amendment) Act, 2013 w.e.f. 3/2/2013. A man is said to commit
rape, among other situations, if he penetrates his penis, to any
extent, into the vagina of a woman against her will or without her
consent, it would come within the definition of rape. Yet another
circumstances which will fall under the definition of rape is to
commit the aforesaid act with or without the consent of the girl, if
she is under 18 years of age. Apparently, this is a case in which
the prosecution case is that her date of birth was 20/5/1998 and
as on the date of the alleged rape, i.e., on 4/8/2013, she was only
15 years and a few months of age. S. 376 provides for the
punishment which is also amended by the SectionCriminal Law
(Amendment) Act, 2013 by way of substitution. Two different
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punishments are provided, one under sub-section (1) and the
other under sub-section (2). Sub-section (1) indicates that
whoever commits rape, shall be punished with rigorous
imprisonment of either description for a term, which shall not be
less than 7 years, but which may extend to imprisonment for life,
and shall also be liable to fine. Sub-section (2) of S.376 deals with
several other instances and we are concerned with Clauses (i)
and (n). Clause (i) relates to the punishment for a person who
commits rape on a woman when she is under 16 years of age and
clause (n) relates to punishment for commission of rape
repeatedly on the same woman. The punishment provided is
rigorous imprisonment for a term which shall not be less than 10
years, but which may extend to imprisonment for life and also be
liable to fine. Imprisonment for life is also given the meaning as
imprisonment for the remainder of that person’s natural life.
22. The first and foremost argument for the learned
counsel for the appellant/first accused is that the age of the
victim had not been proved. Prosecution examined PW4, the
Headmistress of St.George’s High School, Arakkunnam school
where the victim studied last and an extract of the school
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admission register is produced as Ext.P4. The victim was
admitted to the school on 25/5/2009 and the date of birth is
recorded as 20/5/1998. She studied from Standard VIII to
Standard X and she had attended the SSLC examination in March,
2013. In column 5 the school previously attended is shown as
Holy Family High School, Angamaly and the transfer certificate
produced at the time of admission was TC No.20/2009. It is a
document signed with seal of the Headmistress and she had
given evidence before Court regarding the date of birth. In fact,
there is no effective challenge to the date of birth of the victim.
The victim has also stated that her date of birth was 20/5/1998
and there is no cross-examination on the point. Learned counsel
for the appellant would however submit that it is for the
prosecution to prove the age of the victim by cogent evidence
and the extract of the admission register by itself does not
amount to proof. First of all, the date of birth was recorded by the
school authorities based on a transfer certificate produced by the
victim or her parents. But the said transfer certificate is not seen
produced. That apart, it is contended that when the trial was
conducted as a State Brief, appropriate cross-examination could
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not be done and absence of cross-examination by itself should
not be taken as a reason for arriving at a finding regarding the
age of the victim in the absence of legal proof.
23. Learned counsel placed reliance on the judgment in
SectionRajak Mohammed v. State of Himachal Pradesh [(2018) 9
SCC 248]. That was a case in which it was found that the
prosecutrix remained in the company of the accused for about 12
days. She was freely moving around with the accused. It was
found that in the course of their movement, she would have
come across many people at different point of time but she did
not complain of any criminal act on the part of the accused. In
that case Apex Court observed that she might be a consenting
party. Therefore the question whether she was major to give a
consent appeared to be the moot point. The prosecution had
brought on record the school admission form and the certificate
issued by one JBT Teacher of Government School. PW5, the
teacher stated that the writings in the school admission form are
in her handwriting and the signature is that of the mother of the
prosecutrix. In cross-examination, it was stated that the details
mentioned in Ext.P5 were obtained from the school leaving
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certificate issued by Government Primary School, Tambol and it is
based on the said details that the entries were prepared. That
was a case in which the mother of the prosecutrix was not
examined and the Radiologist working in Civil Hospital opined
that the age of the prosecutrix was between 17 to 18 years. It
was observed that the correct age of the prosecutrix could not be
ascertained and the radiological examination leaves room for
ample doubt with regard to the correct age of the prosecutrix. It
is taking into account the aforesaid facts that it was held that he
prosecution has not succeeding in proving that the prosecutrix
was a minor on the date of alleged offence. In Rajak
Mohammed’s case (supra), the document produced was the
school admission form and a certificate issued by the teacher.
24. Yet another judgment relied upon is SectionJagtar Singh v.
State of Punjab (AIR 1993 SC 2448). In this case the appellant
contended that at the time of the incident, he was below 16 years
and a school leaving certificate was produced at the time of
seeking special leave. It was observed that certificate did not
mention the name of the school from which transfer certificate
was obtained on the basis of the certificate the appellant was
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admitted to the school. It was contended that the date of birth
shown in the certificate produced before Court was based on the
date mentioned in the transfer certificate. As the name of the
school from which the transfer certificate was obtained was
absent from the certificate, it was held that no reliance can be
placed on the said certificate.
25. Reference is made to the judgment in SectionBirad Mal
Singhvi v. Anand Purohit [1988 Suppl. SCC 604]. This is a case
arising under the SectionRepresentation of the People Act, 1951. In this
case, the Apex Court held that the entry regarding date of birth
contained in the school register and the secondary school
examination have no probative value, if no person on whose
information the date of birth of the candidate was mentioned in
the school records was examined the entry contained in the
admission form or in the school register must be shown to be
made on the basis of 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
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for the truth of the facts in issue. In the absence of any such
evidence, the document have no probative value and the date of
birth mentioned therein could not be accepted.
26. SectionIn Brij Mohan v. Priya Brat Narain Sinha (AIR 1965
SC 282), the Apex Court had observed that persons give false age
at the time of his admission to a school, so that, later in life, he
would have an advantage while seeking public service for which
a minimum age for eligibility is often prescribed. This was also a
case arising under the SectionRepresentation of the People Act and the
question was relating to the fact whether the entry of date of
birth in school admission register can be accepted.
27. A similar proposition had been laid by the Apex Court
in Umesh Chandra v. State of Rajastan (AIR 1982 SC 1057).
SectionIn Ravinder Singh Gorkhi v. State of UP (AIR 2006 SC 2157),
the Apex Court was considering the question regarding
determination of the date of birth of a person either in a civil or
criminal proceedings. It was held at paragraphs 21, 23 and 37
as under:-
“21. Determination of the date of birth of a person before a
court of law, whether in a civil proceeding or a criminal
proceeding, would depend upon the facts and
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circumstances of each case. Such a date of birth has to be
determined on the basis of the materials on records. It will
be a matter of appreciation of evidence adduced by the
parties. Different standards having regard to the provision
of Section 35 of the Evidence Act cannot be applied in a
civil case or a criminal case.”
“23. Section 35 of the Evidence Act would be attracted
both in civil and criminal proceedings. SectionThe 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 ordinary course of business by a public
servant in the discharge of his official duty, or by any other
person in 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.”
“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
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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 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 SectionArticle 21 of the Constitution,
as in that case the accused may unjustly be convicted.”
The Apex Court had indicated that the age of a person as
recorded in the school register may be used for various purposes,
but when in a case where a person is charged for criminal act, the
age of the party has to be proved having regard to the provisions
of S.35 of the Evidence Act and no different standard can be
applied in case of an accused as in case of abduction or rape or
similar offence. If on the basis of 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
SectionArticle 21 of the Constitution, as the accused may unjustly be
convicted. S.35 of the Evidence Act reads as under:-
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“35. Relevancy of entry in public [record or an
electronic record] made in performance of duty.–An
entry in any public or other official book, register or record
or an electronic record], stating a fact in issue or relevant
fact, and made by a public servant in the discharge of his
official duty, or by any other person in performance of a duty
specially enjoined by the law of the country in which such
book, register, or [record or an electronic record] is kept, is
itself a relevant fact. ”
It is held that certified copy of the entry in the birth register in
discharge of his official duty is admissible u/s 35 of the Act even
without examining the official.
28. SectionIn Ram Deo Chauhan v. State of Assam (AIR 2001
SC 2231), it was held that entry in the school register which is not
shown to be maintained by the public servant in the discharge of
his official duty or any other competent authority cannot be
accepted as positive proof regarding the date of birth.
29. There is yet another circumstance which is required to
be considered in the above case. As already stated, there is not
much cross-examination regarding the age of the victim. Neither
the victim was cross-examined nor there was cross examination
of PW4, the Headmistress who produced the extract of admission
register. But still, as held by the Apex Court in Ravinder Singh
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Gorkhi (supra), while considering a criminal case, especially a
case of rape, age of the prosecutrix is very important and the
prosecution is bound to prove the age of the prosecutrix in
accordance with law. The question would be, whether a mere
production of an extract of school admission register, Ext.P4 and
marking it through the Headmistress or the oral evidence of the
prosecutrix by herself would render sufficient probative value to
prove the age of the victim.
30. The judgment in Ravinder Singh Gorkhi (supra)
apparently draws a distinction between the standard of proof
required in civil litigation and criminal cases. In criminal cases,
when the accused had a contention that he had sex with the
prosecutrix based on her consent, age is a material fact which
requires ample proof.
31. However, it is apposite to take note of the view of the
Apex Court after promulgation of the Juvenile Justice (Care and
SectionProtection of Children) Act, 2000 and the Rules framed
thereunder in In fact, the Apex Court in SectionJarnail Singh v. State
of Haryana [(2013) 7 SCC 263] and then in SectionMahadeo v. State
of Maharashtra [(2013) 14 SCC 637] had occasion to consider
Crl.Appeal Nos.767 999/15
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the relevancy of extract of school records produced in similar
cases and has held that the documents which are required to be
produced under the provisions of Rule 12(3) of the Juvenile
Justice (Care and Protection of Children) Rules, 2007 can be
considered for proving the age of the victim. In fact, under
Section 94(2) of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2015, the documents required for proving the age
of a child/juvenile has been clearly stated which reads as under:-
“94. Presumption and determination of age.
1….
2.In case, the Committee or the Board has reasonable grounds
for doubt regarding whether the person brought before it is a
child or not, the Committee or the Board, as the case may be,
shall undertake the process of age determination, by seeking
evidence by obtaining —
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;
ii. the birth certificate given by a corporation or a municipal
authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board:
Provided such age determination test conducted on the order of
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the Committee or the Board shall be completed within fifteen
days from the date of such order.”
SectionIn Mahadeo v. State of Maharasthra and another [(2013) 14
SCC 637]. While examining the issue regarding age of the
prosecutrix, it was held at paragraph 12 as under:-
“12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice (Care
and Protection of Children) Rules, 2007, where under Rule
12, the procedure to be followed in determining the age of
a juvenile has been set out. We can usefully refer to the
said provision in this context, inasmuch as under Rule
12(3) of the said Rules, it is stated that:
“12. (3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, by the Committee by seeking evidence by obtaining–
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than
a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;”
Under Rule 12(3)(b), it is specifically provided that only in
the absence of alternative methods described under Rules
12(3)(a)(i) to (iii), the medical opinion can be sought for.
In the light of such a statutory rule prevailing for
ascertainment of the age of a juvenile, in our considered
opinion, the same yardstick can be rightly followed by the
courts for the purpose of ascertaining the age of a victim
Crl.Appeal Nos.767 999/15
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as well.”
Similar view was taken in In fact, the Apex Court in SectionState of
Madhya Pradesh v. Anoop Singh (Crl.Appeal No.442/2010).
32. Of course in this case, when A2 was questioned u/s
313 SectionCr.P.C, she did not dispute the age of the victim. But though
it is pointed out by the learned counsel for appellant/2 nd accused
that a complex question was put to the witness, which she
answered in the affirmative, we do not think it to be of such a
complex nature which could confuse the accused. The question
and the answer reads as under:
“Q: 2011 മുതൽ തതാൻ ആരക്കുനന്നം St.George H.S ൽ
Headmistress ആണണെനന്നം, Police ആവശശ്യണപ്പെട്ട പ്രകതാരന്നം
school ൽ പഠഠിചഠിരുന 3-)o സതാകഠിയുണടെ School Admission
Register ണന്റെ പകർപ്പെപ്പ് ഹതാജരതാകഠി ണകതാടുത്തുണവനന്നം അതതാണ
Ext.P4 എനന്നം അതപ്പ് പ്രകതാരന്നം അവളുണടെ ജനനതതീയതഠി 20/9/98
ആണണെനന്നം 4-)o സതാകഠി പറയുന;
A: ശരഠിയതാണ.”
The question was concerning the contents of a document
produced by the Headmistress.
33. Of course, when incriminating evidence against the
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accused are put to them during 313 examination, each and every
incriminating circumstance has to be separately questioned.
When a complex question with reference to two or three
incriminating evidence are asked, it may create a doubt in the
mind of the accused as some part of the answer may be in the
affirmative and the other part may have to be denied. The
position of law is well settled as pointed out by the learned
counsel for appellant in SectionState of Kerala v. Rasheed (2017 (3)
KLJ 138), SectionState of U.P. v. Lakhmi (AIR 1998 SC 1007), SectionSajeev
v. State of Kerala (2015 KHC 987) and Kajal v. State of
Kerala (2015 (1) KLT 908). But, the affirmative answer of the
accused in the present case cannot be regarded as an answer to
a complex question.
34. In any case, Ext.P4 is not an official record. It is a
record maintained by a private school. Even in Ext.P4, it is stated
that the entry in the school register was prepared based on the
entry in the transfer certificate. The transfer certificate has not
been produced. Even if Ext.P4 is not treated as evidence, PW3,
the victim, in her oral deposition had also stated that her date of
birth was 20/5/1998. In a criminal case where age of prosecutrix
Crl.Appeal Nos.767 999/15
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has to be proved by the prosecution, necessarily, evidence
should be adduced either as provided u/s 35 of the SectionEvidence Act
or any of the documents specified in terms of the Juvenile Justice
(Care and SectionProtection of Children) Act. It is the duty of the
prosecution to adduce substantive evidence to prove the age of
the victim. An extract of an admission register of a private school
in which the victim studied for a few years does not come under
any of the categories mentioned u/s 35 or 12(3) of the 2007 Rules
of J.J Act. In Mahadeo’s case (supra), the school leaving
certificate issued by the school where the prosecutrix did her 5 th
standard was produced and the document was proved by the
Headmistress of the school. That apart, the transfer certificate as
well as the admission form maintained in the primary school
where the prosecutrix had her initial education was also
produced, which confirmed the date of birth. The Apex Court
found that the aforesaid evidence was sufficient to prove that the
age of prosecutrix was below 18 years.
35. In the case on hand, when there is no substantial
challenge to the evidence adduced by prosecution in the form of
oral testimony of the prosecutrix, we do not find any good ground
Crl.Appeal Nos.767 999/15
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to interfere with the said finding of fact by the Court below,
regarding age of the victim. That apart, A2 mother of the victim
has admitted during 313 examination that the date of birth of the
victim is 20/9/1998, which is also an additional circumstance to
prove the age of the victim.
36. As already stated, the statute had undergone a change.
Even assuming that the victim was above the age of 18 years,
whether there was consent or not from the girl who was subjected
to rape is a matter to be considered taking into account the
entire facts and circumstances of the case. Learned counsel for
the first accused/appellant would submit that the allegation was
that the girl was raped from 4/8/2013 till 15/8/2013. She never had
a case that she was illegally detained by any of them. She only
made complaint to her mother who pacified her by stating that
the first accused will marry her. She has a sister but no attempt
had been made by her to inform her sister or to escape from the
said place. It was a line of buildings and none of the neighbours
had heard any hue and cry from the victim as her complaint was
that she was raped day and night. Therefore, according to the
learned counsel, it was a consensual sexual activity and there
Crl.Appeal Nos.767 999/15
-:31:-
is absolutely no material to arrive at a conclusion that she
had not given any consent. It is further argued that PW3 has no
case that she was threatened by any person and she remained at
her home. The scene mahazar which was prepared by the
Investigating Officer Ext.P8 would prove that the back door of the
room was not having any lock and was not solid. There were
immediate neighbours being a line building and no attempt was
made by the victim to save herself through that door or to inform
the neighbours about the criminal act of the first accused.
37. Reference is made by the learned counsel for the
appellant in SectionVimal Suresh Kamble v. Chaluverapinake Apal
S.P [(2003) 3 SCC 175). That was a case in which the Apex Court
observed that if the prosecutrix had raised an alarm, it would
have been heard by many persons who would have come to her
rescue and it was surprising that no one heard the cries of the
appellant when she was raped. SectionIn Dilip v. State of M.P. (AIR
2001 SC 3049), the Apex Court observed that when the
prosecutrix was around 16 years of age, she was not just a child
who would have surrendered herself to a forced sexual assault
without offering any resistance. If the prosecutrix had raised a
Crl.Appeal Nos.767 999/15
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hue and cry, to the extent she could and if none was attracted to
the place of incident, it would have been a different issue. But
there is absolutely nothing to indicate that she had raised her
voice during the said incident. In yet another case, Punjab and
Haryana High Court in SectionDishant v. State of Punjab (2016 Crl.L.J.
4384) also held that when the victim did not raise any alarm nor
called out for any help, it would show that she was a consenting
party especially when she has no case that any threat had been
extended to her. The Rajastan High Court in SectionManna v. State of
Rajasthan (2001 Crl.L.J.3496) held that when there is evidence
to show that the prosecutrix remained in the company of the
accused for more than 7 days, and the medical evidence clearly
disclose that she did not receive any injury, it has to be presumed
that she did not put up any resistance at the time when she was
being sexually assaulted. She did not make any hue and cry
which also show that she was a consenting party from the very
beginning to the end. The Delhi High Court in SectionChander Bahadur
v. State (1997 Criminal L.J. 2195) held that if the prosecutrix has
raised an alarm, the same would have been heard by a large
number of persons especially during morning hours at about 9
Crl.Appeal Nos.767 999/15
-:33:-
am., and there is no evidence to prove that any such attempt had
been made by the prosecutrix. It would indicate that there was no
force used for commission of the crime. A similar view had been
taken by the Madhya Pradesh High Court in SectionShivnath Ram
Rajwar v. State of M.P. (2016 Criminal L.J.4704). The argument
of the learned counsel for appellant is that the prosecutrix had
virtually consented to the sexual act, but later when she found
that he was married, she started showing resistance and that was
the reason why she had made a complaint.
38. In the evidence of PW3, the prosecutrix, she had
categorically stated that the first accused had sexual intercourse
with her without her consent. She deposed that she was forcefully
laid into the bed, her dresses were removed and he entered into
a sexual intercourse with her. As rightly contended by the learned
counsel for appellant/first accused, nowhere in her evidence she
stated that she had made any hue and cry. She cried only when
her mother came and found her naked. Thereafter, according to
her, though she opposed, mother permitted the accused to lie
with her and the sexual intercourse continued till 14/8/2013.
Primarily, though the prosecutrix says that she had not given any
Crl.Appeal Nos.767 999/15
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consent, nowhere she has stated that she complained or she had
tried to object to the sexual act committed by the first accused or
that she was under any threat. But since we have already held
that the age of the victim was only 15 years and she was a minor
at the relevant time and that she had conceded to a consensual
sexual intercourse does not matter at all. As even consensual
sex with reference to a minor below the age of 18 amounts to
rape.
39. The argument raised by the 2 nd accused/appellant,
who is the mother of the victim, is that she had not abetted the
crime. She had been made an accused in the case on the ground
that she had abetted the crime. She permitted the first accused
to have sexual intercourse with her minor daughter. In order to
prove abetment, prosecution relies on the oral testimony of PW3
alone. Though her mother was there and she had complained to
her mother, her mother’s attitude was different. Her mother told
her that the appellant/first accused will marry her and mother
even asked the first accused to lay with her. Abetment is defined
u/s S.107 of the SectionI.P.C. and S.109 provides for the punishment.
The abettor is bound to be punished for the punishment provided
Crl.Appeal Nos.767 999/15
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for the offence itself. Sections 107 and Section109 read as under:-
“107. Abetment of a thing.–A person abets the
doing of a thing, who–
First – Instigates any person to do that thing; or
Secondly – Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance
of that conspiracy, and in order to the doing of that
thing; or
Thirdly – Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the
doing of that thing.
Explanation 2.–Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
thereby facilitate the commission thereof, is said to
aid the doing of that act.”
“109. Punishment of abetment if the act
abetted is committed in consequence and
where no express provision is made for its
punishment.–Whoever abets any offence shall, if
the act abetted is committed in consequence of the
abetment, and no express provision is made by this
Code for the punishment of such abetment, be
punished with the punishment provided for the
Crl.Appeal Nos.767 999/15-:36:-
offence.
Explanation.–An act or offence is said to be
committed in consequence of abetment, when it is
committed in consequence of the instigation, or in
pursuance of the conspiracy, or with the aid which
constitutes the abetment.
40. Learned counsel for the appellant had placed reliance
upon several judgments in order to emphasise the point that a
case of abetment is not made out in the case on hand. He relied
upon the following judgments:-
(i) SectionRamaji Bisi v. State of Orissa (2017 KHC 4820).
(ii) Sanju Alias Sanjay Singh Sengar v. State of M.P.
[(2002) 5 SCC 371]
(iii) SectionKishangiri Mangalgiri Goswami v. State of Gujarat
[(2009) 4 SCC 52]
(iv) SectionHanmant Ramhari Ghodake and Others v. State of
Maharashtra (2003 KHC 2897).
We do not think it necessary to highlight on the judgments that
had been relied upon. The word ‘abet’ means assistance, co-
operation and encouragement and includes wrongful purpose. In
Corpus Juris Secundum, the meaning of word ‘abet’ is as follows:-
“‘To abet’ has been defined as meaning to aid; to assist
or to give aid; to command, to procure, or to counsel; to
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countenance; to encourage, counsel, induce, or assist;
to encourage or to set another on to commit.”
41. In the case on hand, apparently, the mother permitted
the first accused to have sexual intercourse with her minor
daughter as she did not make any complaint after having known
that her minor daughter was sexually abused by the first
accused. Whereas, the evidence indicates that she permitted the
first accused to have more sexual activity with her daughter and
every incident of sexual intercourse happened in their house
itself, which clearly indicates that her mother aided and abetted
her minor daughter to be sexually abused. S.107 also uses the
word “illegal omission”. The omission would be illegal when the
accused omits to do an act which he or she was required under
the law to be done. Mother of a minor is under duty to protect
her from any offence being committed on the minor. When the
mother fails to act in accordance with law, or fails to protect her
child from being sexually abused, and permits the said crime to
be committed, it amounts to illegal omission as well. Having
known about the rape in the first instance itself, it was the
obligation of the mother to ensure that the incident is reported to
the police or competent authorities, and even if the matter is not
Crl.Appeal Nos.767 999/15
-:38:-
reported, she should have ensured that the offence is not
repeated. Therefore, we have no hesitation to hold that 2 nd
accused was responsible for abetting the crime.
42. It was further contented that even assuming that there
was any material to arrive at a conclusion that mother was
responsible for the alleged sexual act by the first accused, still,
the principle of proportionality of the punishment ought to be
considered. He placed reliance upon the following judgments:-
(i) SectionPrem Chand v. State of Haryana (AIR 1989 SC 937)
(ii) SectionPhul Singh v. State of Haryana [(1979) 4 SCC 413]
(iii) SectionState of Chhattisgarh v. Derha [(2004) 9 SCC 699]
(iv) Lambodar alias SectionParmeshwar Chandra v. State of
Chhattisgarh (2007 KHC 6437)
(v) SectionRuli Ram v. State of Haryana [(2002) 7 SCC 691]
(vi) SectionPriya Patel v. State of M.P [(2006) 6 SCC 263]
(vii) SectionBhaiyyan v. State of Rajasthan (2007 KHC 6707)
(viii) SectionYadu Kumar Patel v. State of Chhattisgarh (2007 KHC
6476)
(ix) SectionAjay Harijan and Others v. State of Rajasthan (2007
KHC 6394)
Crl.Appeal Nos.767 999/15
-:39:-
(x) SectionLehna v. State of Haryana [(2002) 3 SCC 76]
43. All these cases relate to decisions prior to the 2013
amendment to Sections 375 and Section376 of I.P.C. and may not have
application to the facts of the case.
44. Now coming to the punishment to be imposed, the
punishment for rape coming u/s 376(2)(i) and (n) would be for
rigorous imprisonment for a term which shall not be less than 10
years, but which may extend to imprisonment for life and shall
also be liable to fine. In this case, the Court below has granted
maximum sentence to both the accused. We have already taken
note of the argument of the learned counsel for appellants that
no attempt had been made by the victim to create any hue and
cry and according to her, she was sexually abused on every day
from 4/8/2013 to 15/8/2013. We have also observed that to
prove the age of the victim, substantive evidence in the form of
birth certificate or any of the documents mentioned by the Apex
Court in Jarnail Singh (supra) had not been produced. Still, we
have arrived at a conclusion of the uncontroverted oral testimony
of PW3 and PW5. Still, our mind lingers on the fact that no
complaint had been raised by the victim at any point of time and
Crl.Appeal Nos.767 999/15
-:40:-
she does not have a case that she was ever threatened by
accused 1 or 2. Therefore, it is possible that there might be an
element of consensus especially when we look at the evidence of
PW3 as a whole. She even deposed that her mother told that A1
will marry the victim. The complaint came to light when wife of
A1 came to their house and created a hue and cry. It is at that
stage that police took all of them to the police station and
thereafter the rape incident got revealed. Taking into
consideration all these facts, we are of the view that while
upholding the conviction, the punishment to the accused can be
interfered in the following manner:-
The appeals are therefore partly allowed as under:-
(i) Crl.Appeal No.767/15:- The sentence of the first
accused for imprisonment for life shall stand set aside and the
accused shall be punished with rigorous imprisonment for a
period of 10 years and to pay a fine of `10,000/- (Rupees Ten
thousand only) and in default of paying the said amount, he shall
suffer rigorous imprisonment for a further period of two months.
He shall also suffer imprisonment for 6 months for committing
the offence u/s 23 of the Juvenile Justice (Care and Protection of
Crl.Appeal Nos.767 999/15
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SectionChildren) Act, 2000.
(ii) Crl.Appeal No.999/15:- The sentence of rigorous
imprisonment for life imposed on the second accused is hereby
set aside and the 2nd accused shall be sentenced to undergo
rigorous imprisonment for 7 years and to pay a fine of `10,000/-
(Rupees Ten thousand only) and in default of paying the said
amount, she shall suffer rigorous imprisonment for a further
period of two months. She shall also suffer imprisonment for 6
months for committing the offence u/s 23 of the Juvenile Justice
(Care and SectionProtection of Children) Act, 2000.
(iii) The sentence against both the accused shall run
concurrently, and set off shall be allowed under Section 428 of
Cr.P.C.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
N.ANIL KUMAR
Rp //True Copy// JUDGE
PS to Judge
