Allowed

Suresh, C.NO.3211, Central Prison, Kannur v. State of Kerala

Kerala HC6 Jan 2016CRL.A/79/2015

Case brief

AI extract

What is this about?

The Kerala High Court allowed a criminal appeal against rape conviction, acquitting the accused. The Court held that lustrous medical evidence negated the allegation of rape and pregnancy. Furthermore, the victim's age below the age of consent could not be established as the school register entry lacked corroboration from parents or informants.

What did the court decide?

Conviction and sentence set aside; accused acquitted; bail bond discharged; released from jail.

Suresh, C.NO.3211, Central Prison, Kannur Vs State… — Criminal Trial and Appeal | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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CRL.A.No. 79 of 2015 () ------------------------

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(AGAINST THE ORDER/JUDGMENT IN SC 102/2014 of D.C. & SESIONS & MACT,KALPETTA DATED 03-09-2014 CRIME NO. 933/2013 OF S.BATTERY POLICE STATION , WAYANAD)

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APPELLANT(S):

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SURESH, S/O KRISHNAN, C.NO.3211, CENTRAL PRISON, KANNUR BY ADVS.SRI.P.B.AJOY SRI.T.M.DOLGOVE

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RESPONDENT(S):

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STATE OF KERALA, INSPECTOR OF POLICE, SUTHANBATHERY POLICE STATION(CR.NO.933/2013)

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R BY PUBLIC PROSECUTOR SMT.M.G.LISHA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-12-2015, THE COURT ON 6/1/2016 DELIVERED THE FOLLOWING:

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SUNIL THOMAS, J.

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- - - - Crl.A. No.79 OF 2015

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- - - - Dated this the 6^th day of January, 2016

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JUDGMENT

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The sole accused, who stands convicted for offence punishable under Section 376(2)(i) IPC in SC No.102/2014 of the Court of Sessions Judge, Kalpetta, is the appellant herein.

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The allegation of the prosecution is that on 29/8/2013 at about 8.30 p.m. the accused, a man of 22 years, had committed rape of a 16 year old girl at a building No.XI/2014 of Noolpuzha Panchayath. It was alleged that consequently she became pregnant and on the basis of a complaint lodged by her, FIS was recorded and crime registered. After investigation, final report was laid for offences punishable under Section 376(2)(i) of IPC and Section 5(j)(ii) of the Protection of Children from Sexual Offences Act,2012.

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The accused pleaded innocence and claimed trial. On the side of the prosecution, the victim was examined as PW1 and sought corroboration from PWs 2 to 9 and documents marked as Exs.P1 to P8. On an evaluation of the entire evidence, the Court below found that the accused was not guilty under Section 5(j)(ii) of Protection of Children from Sexual Offences Act,2012 and acquitted him of that offence.

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However, he was found guilty for offence punishable under Section 376 (2)(i) of IPC. He was sentenced to undergo RI for ten years and to pay a fine of Rs.10,000/- and in default, to undergo RI for three months. He is undergoing sentence and the appeal is preferred from the jail.

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Heard the learned counsel for the appellant and the learned public prosecutor. Examined the records.

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FIS was laid by the girl on 17/10/2013. It was recorded by PW7, who registered the case. In the FIS, it was stated that the victim was in love with the accused for the past two years. About four months prior to her complaint, they had spent one night in a coffee plantation and had physical relationship on the varanda of the nearby Homeo Hospital. She thereafter, missed her menstruation and a relative of her advised that she might have become pregnant. This was conveyed to her mother and thereafter FIS was laid.

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PW1, the victim,deposed that she was studying in 9th Standard and that the incident happened during the previous year. She was studying in a Government High School and was in love with the accused. She stated that she had spent one night with the accused in a coffee estate of one Johny and thereafter they spent the whole night in the premises of the Homeo Hospital. She further stated that the accused had kissed her and had physical relationship once. It was

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committed in the veranda of nearby Homeo hospital.

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The version of PW1 is sought to be corroborated by the testimony of PW2 and PW3. PW2 was her step mother. She had no direct information about the incident. Her evidence revealed only that one night prior to the incident, the victim had not come to the house. The next day morning she reached home and when PW2 enquired, she did not disclose anything and thereafter, went to the school. PW2 had showed the place of incident to the police, based on which the scene mahazar was prepared. PW3 was the Headmistress of the Government school, where the victim girl was studying in the 9th standard. PW3 deposed that the victim had told her that she missed her menstruation and she felt that she might be pregnant. The Headmistress and a teacher took her to the house and conveyed the incident to her step mother.

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Evidence of PW1s to 3 indicates that the allegation of rape is sought to be established through the sole testimony of PW1. On material aspects touching upon the essential allegation, there is no corroboration on any aspect from the evidence of PWs 2 and PW3. It is consistent and settled law that the sole testimony of the prosecutrix can be relied on and be the basis for conviction if it consistent,free from embellishment and does not give rise to any suspicious circumstance.

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However, a minimum corroboration on the essential aspect, is sought as a matter of prudence. A perusal of the evidence of PW1 clearly shows that it is very brief and cryptic. The only evidence tendered by her touching upon the allegation of rape is that the accused had kissed her and that they had physical relationship. Normally, when a girl states that she had a physical relationship with another person, it need not call for the detailed testimony of all the acts committed by them. However, in the nature of evidence tendered in this case especially on the basis of the corroboration sought by the prosecution from other evidence, the lack of details regarding what exactly was the act committed by the accused, assumes significance. She did not explain as to what she intended by saying that there was physical relationship. She has not disclosed whether there was penetration, either complete or partial. Normally such a description may not be very essential, if the details are patent from the medical records.

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The medical evidence tendered by the prosecution is in the form of oral testimony of PW4, the assistant Surgeon of the Community Health Care, Meenangadi and Ext.P4 certificate issued by her. A perusal of Ext.P4 shows that, the victim had approached PW4 with a complaint of assault by one Suresh, who is accused herein. She stated that she was pregnant. Ext.P4 however, reveals that urine test

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was negative. PW4 in the physical examination of the victim, could not find out any physical injuries. Her hymen was intact. The doctor in her evidence confirmed that the urine test for pregnancy was negative. The prosecution has no case that she became pregnant or that at any point of time thereafter she had delivered a child. PW4 also did not say that there was evidence of sexual relationship. There was also no indication that she was accustomed to sex or that there was any indication that she had history of physical relationship which may fall within the statutory definition of Section 376 IPC. The evidence of PW4 coupled with Ext.P4 clearly indicates that the version of PW1, that she was raped or that atleast she had a physical relationship with the accused, does not get its support from the medical evidence. In the chief examination of PW4 also not even a suggestion was put to the doctor that with the above physical examination report on record, still there the possibility of rape or physical relationship. In other words, the prosecution did not even attempt to prove with this medical record that hymen remaining intact, still physical relationship was possible. It is in this background that the lack of details of alleged physical relationship as deposed by PW1 assumes significance.

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The court below proceeded to hold that even with this medical records, penetration was possible, to bring it within the ambit of

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statutory rape. The trial court held that In text of “Medical Jurisprudence and Toxicology” 21st Edition of Modi at page 369, it was held that to constitute the offence of rape it was not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. It was further recorded that partial penetration of the penis or even an attempt to penetration is quite sufficient for the purpose of law. However, it was quite possible to legally commit the offence of rape without producing any injury to the genitals or leaving any other mark. In such a case medical officer should mention the negative acts in his report, but should not give his opinion that no rape has been committed. Rape is a crime and not a medical condition. The court below relied on the decision of the Supreme Court in Madan Gopal Kakkad v Naval Dubey,[1992 SCC (Crl.) 598] wherein the above observation of Modi was relied on by the Hon'ble Supreme Court on the strength of Parikh's Text Book of “Medial Jurisprudence and Toxicology”. In that text, it was held that sexual intercourse may indicate the slightest degree of penetration. It was held that it was quite possible to commit legally the offence of rape without causing any injury to the genitals. This conclusion appears to be faulty, since the specific case of victim was that she was raped and thereby became pregnant, and when medical records negatived both,

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the court could not have gone further to hold that a partial penetration may be possible, when even the victim did not have such a case.

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In this regard, the court below considered the question whether if the medical evidence did not indicate any mark of rape and did not substantiate the allegation of prosecution, still it was possible to hold that rape was committed. The court below considered the question whether even if accused take shelter under the doctrine of consent, the physical relationship is again rape since the prosecutrix was below the age of giving valid consent, which was 16 years. The court below arrived at this conclusion on the basis of her birth date as evidenced from Ext.P3 certificate issued by the school authorities.

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Ext.P3 is the certificate which was the extract of the school register. It was marked through PW3. PW1 in her evidence had stated that her date of birth was 8/5/1998. Evidently, she cannot have direct information about her own date of birth. PW2, being the step mother, had no idea regarding the date of birth of PW1. PW3, the Headmistress, in her evidence deposed that Ext.P3 was issued by her with reference to the school register. Ext.P3 states that as per the school records, her birth date was 8/5/1998. The evidence of PW3 further shows that the victim girl had studied in another school before shifting to the present school. Evidently, the entry in the school register was based on an

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information carried from another school. There was no supporting evidence to corroborate the truth of the entry.

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The principle relating to the proof regarding the age has been dealt with by the Hon'ble Supreme Court in various decisions. Several decisions were relied on by the learned counsel for the accused to contend that a public document in relation to the date of birth is admissible if it satisfied the ingredients of Section 35 of the Indian Evidence Act and if it relates to the fact in issue.The evidentiary value of such documents had been considered by the Supreme Court in a catena of decisions. In the decision in Birad Mal Singhvi v. Anand Purohit (AIR 1988 Supreme Court 1796) , the Supreme Court had occasion to deal with probative value of the documents regarding the date of birth. One of the certificate produced to prove the birth date was the certificate issued on the basis of the entries contained in the scholar's register. The Supreme Court held that such a documents are relevant and admissible, but such documents have no evidentiary value for the purpose of proof of date of birth unless the vital piece of evidence in the form of evidence of person on whose information the date of birth of the concerned person was recorded in the document was adduced. Parents or near relatives having special knowledge are the best persons to depose about the date of birth of a person. If entry

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regarding date of birth in the scholar's register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. It was held that since the truth of the fact, namely the date of birth of the concerned person was in issue, the mere proof of the documents does not furnish evidence of the truth of the facts or contents of the documents

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The Supreme Court held that Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. According to the Apex Court, to make a document admissible under Section 35, three conditions are to be satisfied. Firstly, there is an entry in a public or other official book, register or record. Secondly, it must be an entry stating a fact in issue or relevant fact and thirdly it must be made by a public servant in the discharge of his official duty or any other person in performance of a duty specially enjoined by law. The court held that the entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register or such document is of not much evidentiary value to prove the age of the person in the absence of

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material on which the age was recorded.

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It was further held that in Raja Janaki Nath Roy v.

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Jyotish Chandra Acharya Chowdhury ( AIR 1941 Cal. 41) a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show the material on which the entry in the register about the age of the plaintiff was made. The Hon'ble Supreme Court noted that the above principle was followed by almost all the High Courts in the country thereafter. The courts have consistently held that the date of birth mentioned in scholar's register of secondary school Certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. This consistent view has been followed in the subsequent decisions of other High Courts . In Madan

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Mohan Singh & Ors v. Rajni Kant & Anr.[AIR 2010 Supreme

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Court 2933] the Hon'ble Supreme Court cited with approval the earlier decisions in Ravinder Singh Gorkhi v. State of U.P. [2006 5 SCC 584], Babloo Pasi v. State of Jharkhand & Anr. [ AIR 2009 SC 314) and Ram Suresh Singh v. Prabhat Singh [AIR 2009 SC 2805]. In all the above decisions it was held that even if entry was made in an official record by the concerned official in discharge of his official duty, it may have

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weight but still may require corroboration by the person on whose information the entry has been made. In Mahadeo, S/o. Kerba

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Maske v. State of Maharashtra and another [(2013) 14

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Supreme Court Cases 637], it was held that statutory provision in Juvenile Justice (Care and Protection of Children) Rules is also applicable to determine the age of young victim. The principle regarding the age in public document has been confirmed and reiterated by the Supreme Court in the latest decision reported in

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State of Madhya Pradesh v. Munna @ Shambhoo Nath [2015 KHC 4622] .

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By applying the above principle, it is clear that there is no reliable evidence regarding the age of the girl. Ext.P3, though admissible, contents of it has not been specifically proved. Evidently, it can be confirmed that even if there is material to prove the physical relationship, there is nothing to confirm the age of the girl that she was below the age of consenting. The findings of the court below to the contrary is, hence, not legally sustainable. In the light of the above, conviction cannot be sustained. The accused is entitled for the benefit of doubt. Conviction and sentence passed by the court below cannot be sustained and is liable to be set aside.

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In the result, the appeal is allowed. The conviction is set aside

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and the accused is given the benefit of doubt. He is acquitted. He shall be released from the jail if his further continued presence is not required in any other case. Bail bond executed by him stands discharged.

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Sd/-

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SUNIL THOMAS, Judge.

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dpk

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/true copy/ PS to Judge.

Suresh, C.NO.3211, Central Prison, Kannur v. State of Kerala

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Suresh, C.NO.3211, Central Prison, Kannur v. State of Kerala

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