The High Court of Kerala quashed criminal proceedings under Section 376 IPC and POCSO Act. The court held that there was no legally reliable material, specifically a verified birth certificate, to establish the 2nd respondent's age, rendering the evidence insufficient.
Crl.M.C. allowed; all further proceedings in S.C.No.909/2015 quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940
Crl.MC.No. 7889 of 2017
AGAINST THE ORDER/JUDGMENT IN SC 909/2015 of DISTRICT & SESSIONS COURT, KOLLAM
CRIME NO. 1347/2014 OF CHADAYAMANGALAM POLICE STATION, KOLLAM
PETITIONER/ACCUSED:
VISHNU S. AGED 25 YEARS, S/O. SANAL KUMAR, VISHNU BHAVAN, PRAVARAPACHA, NANNIYODE MURI, PALODE, TRIVANDRUM.
BY ADVS.
SRI.G.RANJU MOHAN SMT.M.SANTHI (K/868/2011)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2 SHRUTHI PRASAD, D/O. SHAKUNTHALA, SHAKUNTHALA MANDIRAM, KOTTOORKONAM, KAITHODE MURI, NILAMEL VILLAGE, KOLLAM.
ADDL. MRS. SAKUNTHALA R3 W/O JAYAPRASAD, RESIDING AT SAKUNTHALA MANDIRAM, KOTTOORKONAM, KAITHODE MURI, NILAMEL VILLAGE, KOLLAM (IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 30.01.2018 IN CRL.MA 963/2018)
BY ADV. SMT.CHITHRA CHANDRASEKHARAN
OTHER PRESENT:
T.R RENJITH PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 7889 of 2017
2
O R D E R
The petitioner is the sole accused in Crime No.1347/2014 of Chadayamangalam Police Station, Kollam District for offences punishable under Section 376 IPC and Sections 3 & 4 of Protection of Children from Sexual Offences Act. It was reported by the additional 3rd respondent that her daughter was missing on 25.09.2014. It was understood that the 2nd respondent, who is the daughter of the 3rd respondent had eloped with the petitioner herein. Crime was registered arraying the petitioner herein as the accused. After investigation, final report was filed and the matter is now pending as S.C.No.909/2015 of District and Sessions Court,
Kollam.
2. Petitioner has approached this Court to
quash the criminal proceedings contending that the parties were in love, that the 2nd respondent had attained the age of majority and also that he has
Crl.MC.No. 7889 of 2017
3
married the 2nd respondent evidenced by Annexure A3.
3. Petitioner relied on Annexure A4 affidavit affirmed by the 2nd respondent. 2nd respondent appeared through counsel. 3rd respondent has been served notice but she has not appeared.
4. Heard the learned counsel for the petitioner, learned counsel for the 2nd respondent and the learned Public Prosecutor.
5. It emerges that the 2nd respondent had eloped with the petitioner. They have now married evidenced by Annexure A2. The specific allegation of the prosecution is that the petitioner was only 17½ years old at the time of marriage. Admittedly they got married after the registration of crime. It was pointed out by the learned counsel for the petitioner that the only evidence relied on by the prosecution to establish the date of birth of the 2nd respondent is the oral testimony of CW14, the Headmaster of the school and also the extract of the admission register
Crl.MC.No. 7889 of 2017
4
kept in the school. The Birth Certificate is not produced. The 2nd respondent in her statement has not mentioned anything about the age. On the other hand, the 3rd respondent in her statement has referred to the age as 17½ years though the Birth Certificate is not verified. She has no case that the date of birth was entered in the school register on the basis of any birth certificate or on the basis of information given by her. In other words, the prosecution is exclusively relying on the admission register maintained in the school. The basis for such an entry is not discernible from the materials on record. This Court in Suresh V. State of Kerala (2016 (4) KLT SN 78) had held that school register extract can only have the evidentiary value of a secondary evidence and it cannot be accepted as the primary evidence, unless it is based on the corresponding entries in public documents or the person who conveyed the information regarding the date of birth is examined.
Crl.MC.No. 7889 of 2017
5
6. In the light of the above discussion, it is clear that there is no legally reliable material to establish the age of the victim. Hence, even if the prosecution is successful in establishing the physical relationship, whether the victim was a child can be established is doubtful. It is clear that the victim has now taken a stand that she had voluntarily eloped and the physical relationship, if any, was only consensual. This seems to be established by the subsequent marriage of the parties. Having regard to this, I am inclined to hold that the evidence on record is not sufficient to establish the crime.
Accordingly, Crl.M.C. is allowed quashing all further proceedings in S.C.No.909/2015 of District and Sessions Court, Kollam stand quashed.
Sd/-
SUNIL THOMAS, JUDGE
Crl.MC.No. 7889 of 2017
6
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 1347/2014 OF CHADAYAMANGALAM POLICE STATION. ANNEXURE A2 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED FROM THE TEMPLE DATED 26.06.2015. ANNEXURE A3 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE PANCHAYATH DATED 4.11.2017. ANNEXURE A4 AFFIDAVIT SWORN BY THE 2ND RESPONDENT.
Pn 27/10
2 issues framed by the court
Whether criminal proceedings can be quashed due to insufficient evidence regarding the victim's age.
Whether the prosecution evidence is legally reliable to establish that the victim was a child at the time of alleged offence.
Colour shows how this judgement treated each authority
Suresh V. State of KeralaReferred¶35
Suresh V. State of Kerala (2016 (4) KLT SN 78)
2 provisions across 2 enactments
VISHNU S.
STATE OF KERALA
SHRUTHI PRASAD
SAKUNTHALA
SUNIL THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
