aking appeal against rape conviction, High Court held admission register extract validates age for IPC rape charge but not POCSO Section 6 due to prior JJ Rules. Appeal dismissed, sentence upheld for rape alone.
Appeal dismissed; trial court to execute sentence imposed on accused forthwith.
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 MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945
CRL.A NO. 1209 OF 2018
AGAINST THE JUDGMENT DATED 28.09.2018 IN SC NO.620 OF 2015 OF
ADDITIONAL SESSIONS COURT-I, KASARAGOD.
CRIME NO.500/2015 OF Manjeswar Police Station, Kasargod
APPELLANT/ACCUSED:
MANU @ MANOJ K.,
AGED 24 YEARS
SON OF SADANANDA.K., KODIBAYAL, SC COLONY,
MANJESHWARAM P.O., KASARAGOD DISTRICT.
BY ADV
T.G.RAJENDRAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(INSPECTOR OF POLICE, KUMBLA - CRIME NO.500/15 OF
MANJESHWAR POLICE STATION), REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
KOCHI-682 031.
BY ADVS.
SMT.AMBIKA DEVI S, (SPECIAL GOVERNMENT PLEADER)
SMT.NIMA JACOB (GOVERNMENT PLEADER)
V.A.VINOD.
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 20.06.2023
AND THE COURT ON 20.12.2023,DELIVERED THE FOLLOWING:
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MARY JOSEPH, J.
Dated this the 20th day of December, 2023
JUDGMENT
This appeal is originated from a judgment passed by Additional Court of Sessions-I, Kasaragod (for short, ‘the trial court’) in S.C No.620 of 2015. The trial court found the accused guilty of an offence punishable under Section 376(2)(n) of the Indian Penal Code 1860, (for short, ‘the IPC’), convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of `50,000/- (Rupees fifty thousand only) and also to undergo rigorous imprisonment for two more years in default of payment of fine. The trial court also found the accused guilty of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) and convicted him for the offence, but separate sentence was not awarded under Section 6, invoking
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the jurisdiction conferred on it under Section 42 of the POCSO Act.
appeal memorandum was against the age of the victim at the relevant time of the incident. According to the learned counsel, the victim failed to state the exact date of the incident. She only stated that it was occurred in the month of March, 2015. According to the learned counsel, the mother of the victim when examined as PW10 deposed that the victim failed in several classes. As revealed from the version of PW10 the victim failed in her studies for two years in a School at Kurchippalla, where she studied up to her 4th standard. The victim was shifted to a School at Mannamkuzhi, where she joined at 5th standard and continued up to 7th standard. According to her, the victim failed for two more years during that period of study. According to PW10, the victim was then shifted to a School at Bekur and there also, she failed two more years.
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Crl.Appeal No.1209 of 2018
in proof of the age of the victim at the relevant time of the alleged incident. Thus, the trial court took a view on it’s basis that the victim was aged only 16 years at the relevant time of commission of the offence by the accused on her.
of Kerala [2021 (5) KHC 602] where a Division Bench of this Court held that the certified copy of the extract of the Admission Register falls short of proof of date of birth of the victim, since it was not issued from the school where the victim first attended to. The finding above was arrived at by the Division Bench based on Section 34 of POCSO Act. On the strength of the dictum, it was canvassed by the learned counsel that the trial court went erred and unjustified in taking a view on the basis of Ext.P6, that the victim was a girl aged 16 years at the relevant time of commission of the alleged offence. He urged for reversal of the judgment by which the accused was found guilty for the offences, for that reason.
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prosecution, the incident was allegedly occurred at the residence of one Mrs.Nethravathi, a neighbour of the victim. The victim and the accused used to visit the house of Mrs.Nethravathi, for watching television. The mother of the victim was in the habit of entrusting the custody of her daughter to Mrs.Nethravathi when she goes for attending her job and the younger sister of the victim girl goes for attending her studies.
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with by the Sub Inspector of Police, Traffic Police Station, who was examined as PW11. He was holding additional charge of the Inspector of Police, Kumbla. Further investigation was conducted by the Inspector of Police, Kumbla, who was examined as PW12. He concluded the investigation and filed a Final Report chargesheeting the accused for the offences punishable under Section 376(2)(n) IPC and 5(j)(ii)(l) read with Section 6 of the POCSO Act. The Final Report was taken cognizance of and committed to the court of Sessions, which registered a case on it’s file and lateron made over the case to the trial court for trial. PWs 1 to 12 were examined and Exts.P1 to P12 were marked on the side of the prosecution.
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her, her younger sister was attending the school then and her mother used to go for work leaving her alone at the house. To avoid her loneliness in the house, her parents entrusted her to Mrs.Nethravathi who was their neighbour. According to PW1, she used to visit her house and watched television there. The accused also visited her house for the same purpose. According to her, on a fine day while she was watching television at the house of Mrs.Nethravathi, the accused arrived there and took her to the bedroom and committed rape by penetrating his penis into her vagina. On a promise that he would marry her, he repeated the acts on her, several times. Though she was unable to recollect the exact dates on which the alleged acts were committed on her, she would only say that she was aged 16 years at the relevant time. Since there was a promise from the accused to marry her, she did not divulge the incident to anyone else. On a complaint made about headache, she was taken to a doctor at Kaikamba by her mother. Urine test was advised by the doctor and in the investigation, the victim girl
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was found conceived. The incident alleged was revealed by the victim to her mother who straight away approached Women Cell, Kasaragod alongwith the victim and her statement was recorded there.
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denied by PW2. PW2 was not put a suggestion whether the information regarding the age of the victim was given to her by the victim or her mother. Therefore, there is no clarity regarding the source of information about the age of the victim.
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as a result of. According to PW1, the person who subjected her to sexual intercourse was none other than the accused.
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incident alleged by the prosecution was occurred at the residence of PW6.
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“We have to notice that the offence herein was committed long before the JJ Act, 2015 came into force. As on the date of commission of the offence, Juvenile Justice (Care and Protection of Children) Rules, 2007 under the repealed Act was in force. As per the Rules existing then, inter alia the Birth Certificate of the school first attended was held to be valid proof in Jarnail Singh. In Alex. Vs. State of Kerala it was held that since the POCSO Act does not contain a provision to determine the age of a victim, the proof has necessarily to be in accordance with the rigour of the requirement as insisted by the earlier JJ Act and Rules, which were adopted by the decision in Jernail Singh. The certified copy of the extract of the admission register falls short of proving the date of birth of the victim since it is not one issued by the school first attended.”
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Bench to be a valid document to prove the age of the victim. It was held so by the Apex Court in Jarnail Singh Vs. State of Haryana (2013 KHC 4455).
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imposed for the offence in the year 2015 was rigorous imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life, which means, imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
“ 375. Rape.-- A man is said to commit "rape" if he --
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
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First- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under eighteen years of age.
Seventhly- When she is unable to communicate consent. Explanation 1 .For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2 .Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
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Exception 1 .A medical procedure or intervention shall not constitute rape.
Exception 2 .Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
when the victim is under 18 years of age, even if the offence alleged was committed with or without her consent, the offence would be attracted.
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this Court that the age of the victim being not proved in the manner envisaged under Rule 12 framed under the JJ Act, the accused is not liable to be punished under Section 6 of the POCSO Act. Since the guilt of the accused under Section 376(2)(n) IPC is proved beyond reasonable doubt, the sentence imposed on the accused by the impugned judgment is treated as imposed for that offence alone.
Appeal fails for the reasons and is dismissed. The trial court shall execute the sentence imposed on the accused forthwith.
Sd/- MARY JOSEPH
JJ
3 issues framed by the court
Whether the admission register extract from a non-initial school suffices to prove the victim's age for conviction under Section 376 IPC but not Section 6 POCSO.
Whether the impugned sentence should be upheld as punishment for rape under Section 376(2)(n) IPC when POCSO charges require stricter age proof.
Whether the trial court erred in not directing DNA testing to establish paternity of the child born to the victim.
Colour shows how this judgement treated each authority
Madhu Vs. State of KeralaDistinguished¶36
Madhu Vs. State of Kerala [2021 (5) KHC 602]
Jarnail Singh Vs. State of HaryanaApplied¶79
Jarnail Singh Vs. State of Haryana (2013 KHC 4455)
4 provisions across 3 enactments
Manu @ Manoj K.
State of Kerala
Mary Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court