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Reju vs State Of Kerala on 17 July, 2019

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.
Crl.Appeal Nos.767 999/15

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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
Crl.Appeal Nos.767 999/15

-:24:-

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

-:25:-

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
Crl.Appeal Nos.767 999/15

-:26:-

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

-:27:-

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
Crl.Appeal Nos.767 999/15

-:28:-

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

-:29:-

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

-:30:-

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

-:32:-

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

-:34:-

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

-:35:-

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
Crl.Appeal Nos.767 999/15

-:37:-

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

-:41:-

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

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