IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 867 of 2001() ----------------------------- CRA.178/1999 of ADDL. SESSIONS COURT, ALAPPUZHA SC.116/1997 of PRL. ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S): --------------------- VARUGHESE THOMAS ALIAS MONICHAN, S/O. VARUGHESE, MANGAPPALLY VEETTIL, NEDUMUDY, KUTTANAD, ALAPPUZHA. BY ADV. SRI.CHERIYAN KURUVILLA SRI.V.SATHEESH SRI.S.SANAL KUMAR RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------ THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.R.P No.867 of 2001 ----------------------------------------------- Dated this the 5th August, 2009 ORDER The revision petitioner was charge sheeted for offence under Sections 336, 366A and 376 of Indian Penal Code. After trial, learned Assistant Sessions Judge convicted the accused under Sections 376 and sentenced to undergo rigorous imprisonment for a period of 3 years and he was also ordered to pay or deposit a sum of Rs.20,000/- as compensation to PW1 and in default of payment or deposit, he was ordered to undergo rigorous imprisonment for a period of 2 years. He was acquitted of the offence under Sections 366 and 366-A of IPC. In appeal, Additional Sessions Court dismissed the appeal confirming the sentence. Hence this revision. 2. According to prosecution, PW2 was a student of 10th standard at St.Mary's High School during 1995-96. She was attending tuition classes in a tutorial college. She leaves the house at 7.30 a.m for tuition and thereafter, she goes to the school and comes back in the evening. PW1 is her father. On 11.9.1995, he found that his daughter PW2 did not return in the [Crl.R.P.867/01] 2 evening from the school. On enquiry, it was found that PW2 was enticed and taken away. Therefore, enquiry was made at several places and when PW2 could not be traced out, an F.I Statement was launched before the police. 3. A crime was registered and it was investigated into. It was found that the accused and PW2 were living together in a rented premises in Goa. They were taken back to the house by one of the relatives of PW1 to the house of one Sathyaseelan. The police arrested the accused from the house of Sathyaseelan. Petitioner had taken PW2 to Changanacherry, Ernakulam and from there to Mangalore and to Goa. They stayed in a hotel at Panaji and thereafter in another rented premises at Goa from where PW2 was allegedly raped by the accused. They lived together for about one month and during this period also, PW2 was raped by the accused. 4. To prove the prosecution case, the prosecution examined PWs 1 to 14 and marked Exts.P1 to P20 and MOs 1 to 6. The accused did not adduced any evidence but he denied the allegation of rape etc. According to him, he and PW2 were [Crl.R.P.867/01] 3 in love with each other. PW2's family members had raised protest against their relationship. He was having job in Goa. On 15.10.1995, PW4 and his father-in-law along with two others went to him in a car and he was forcibly taken to the house of one Sathyaseelan. PW2 was also present there at that time. On the next day in the evening PW2's family members came with police and he was arrested. He denied having kidnapped PW2. He also stated that they had not lived together. 5. On an analysis of the evidence adduced in this case, the lower appellate court held that revision petitioner had sexual intercourse with PW2 without the her consent. Various circumstances and evidence were discussed in the judgment to come to the conclusion on consented sexual intercourse by the accused with PW2. The courts below arrived at a conclusion that accused committed offence under Section 376 IPC, since the age of PW2, the alleged victim, was below 15 years at the time of commission of offence and hence consent was not relevant. Even if the act is committed with consent the accused [Crl.R.P.867/01] 4 will be guilty of offence under Section 376 IPC and hence he was convicted under the said section. 6. Heard both sides. Perused records. The age of prosecutrix (PW2) is under serious attack. The prosecution itself produced three sets of evidence which will reveal different dates of birth and age. Ext.P9 is the certificate issued by the Headmaster PW9. The date of birth as per Ext.P9 is dated 10.5.1981. The date of birth entered in Ext.P10 extract of the birth register issued by PW10, the Taluk Panchayat Officer and the date of birth shown therein is 2.10.1980. PW5 is the doctor who examined PW2. As per his evidence, she was aged above 16 years and below 18 years. It was brought out from his evidence that PW2 could be above 17 years on the date of examination of PW2. She was examined on 7.11.1995 by PW5. 7. The evidence relating to age was considered in detail by both the courts below. The lower appellate court held that “on an overall consideration of the available evidence on record it can be safely concluded that the date of birth of PW2 was 2.10.1980, as evidenced by Ext.P10 and corroborated by the [Crl.R.P.867/01] 5 testimony of PWs 1 and 2”. The court observed: “But at the same time at the time when PW2 was admitted to the school the date of birth was reported as if it was 10.5.1981. At any rate PW2 was below 16 years. It is pertinent to note that the parents of PW2 are coolies. Some times, they might have an intention to underage the child at the time when she was admitted to the school”. The lower appellate court also held that the evidence of PW5, the doctor, and Ext.P5 issued by him is only opinion evidence and there is chance for error. 8. According to revision petitioner, there is no satisfactory and convincing evidence regarding the age of PW2 and age is not proved beyond reasonable doubt and the court could not have convicted the accused for offence under Section 376 IPC. There is a clear finding that sexual intercourse was committed with consent of PW2 and therefore if there is no convincing evidence relating to age to show whether PW2 was below 16 years, conviction passed under Section 376 will not be sustainable. On going through the evidence adduced in this case, I find that there is no cogent evidence relating to the age. [Crl.R.P.867/01] 6 9. The date of birth shown in the two documents issued by the Headmaster and the local authority, differs. Ext.P9 shows that it is 10.5.1981 whereas Ext.P10 reveals that it is 2.10.1980. The prosecution still claims that both those dates are in respect of PW2. However, there is no explanation why the date of birth differs. PW1, who is the father of alleged victim, has not explained why different date of births are shown in different certificates. He has not stated the correct date of birth of the child and he said he did not remember the same. He asserted that the child is below 15 years, but in the cross-examination, he stated that he did not remember the date. 10. It was brought out from evidence of the father PW1 that he had not stated the date of birth even to the police or at the time of questioning. He stated that he had procured certain certificates relating to date of birth but such certificate is not before the court. Anyway, based on Ext.P9 and P10 the court cannot come to the conclusion when PW2 was born or confirm her date of birth. Since both those documents relied upon by [Crl.R.P.867/01] 7 the prosecution reveal two date in two different years i.e 1980 and 1981, it will not be possible to make a conclusion regarding date of birth especially in the absence of any explanation for discrepancy. 11. In such circumstances, the conclusion possible is that as per the prosecution case, PW2 was born on two different dates, as revealed from Ext.P9 and P10. The trial court accepted Ext.P9 certificate whereas appellate court accepted Ext.P10 as the document which shows the correct date of birth. Several explanations are given by each court why there is a difference in the date mentioned in Exts.P9 and P10. Even in the absence of PW1, the father giving explanation regarding the discrepancy in the date of birth, the lower appellate made observations to the effect that PW2's parents “might have the intention to underage “ her at the time when she was admitted to the school etc. 12. PW1 himself had no case that at the time when he admitted the child the date of birth was given in such a way to underage the child. The conclusions being arrived at on the [Crl.R.P.867/01] 8 age are on the basis of surmises. In the absence of evidence by PW1 relating to the age the court below ought to have concluded that PW1 would have had intention to underage. Such a finding is unsustainable and not based one evidence. There are various other findings also relating to the evidence on age which are all based on imagination of the court. 13. For example, the lower appellate court observed that evidence of PW1 coupled with Ext.P1 would show that PW2 is the eldest daughter and there is no suggestion to PW1 that PW2 was admitted to the school at an overage. So also there is no suggestion that PW2 had failed in any class. The court proceeded to hold that in such circumstances the only plausible and probable conclusion would be that PW2 was admitted to the school on completion of 5 years and below 6 years and she did not fail in any class. These findings cannot be sustained in the absence of evidence to show that at what age PW2 was admitted in the school and whether it was underage or overage or whether she had failed in any other class or not. 14. The court below ought not to have concluded that [Crl.R.P.867/01] 9 the child would not have failed. It will be perverse to enter a finding especially in the absence of any evidence that the child had not failed. The fact whether a child failed or not does not depend upon absence of suggestions. Such conclusions can be made only on the basis of surmises and conjunctures. There are so many other findings by both the courts below which are not only perverse but based on imaginations. Those findings are entered while considering the evidence relating to the age of PW2. Such findings cannot be sustained. 15. It is also pertinent to note that the extract from the birth register, which is marked as Ext.P10, shows that the address of PW2 is totally different from his permanent address. PW1 or PW2 has no case that at the time of birth of PW2, PW1 was residing in the address shown in Ext.P10. The lower appellate court gave certain reasonings why there should be a change in the address shown in Ext.P10. It is also observed as follows: In the normal course in the practice among the members of the society usually the first confinement would be at the house of the wife and probably at the time when the wife of PW1 was [Crl.R.P.867/01] 10 admitted to the hospital for confinement the address furnished would have been that of the house of the lady. That probabilities and possibilities are wide. 16. None of the witnesses has a case that there is anything in evidence to support the above findings. Those are mere surmises and imaginations of the learned Sessions Judge and conclusions made to this effect are only perverse. 17. Since the court cannot conclude the age of PW2 on the basis of Exts.P9 or P10, the only course left to the court is to look into the medical evidence. PW5 was examined on behalf of the prosecution and the evidence given by the doctor is relied upon by the prosecution. The prosecution has no case that the evidence given by PW5 or his report Ext.P5 cannot be relied upon or those are unacceptable. The evidence of PW5 and Ext.P5, which are relied upon by both sides, ought not to have been rejected without any reason. Both the courts below rejected the evidence stating that it is only opinion evidence. This reason also is improper. Section 45 of the Evidence Act lays down that the opinion of an expert relating to facts when the court has to form an opinion upon a point. Merely because [Crl.R.P.867/01] 11 it is an opinion, the evidence of an expert cannot be rejected since such evidence is admissible under Section 45 of Evidence Act. 18. Taking all these facts into consideration, I find that both the courts below committed an error in rejecting the evidence of Pw5 and Ext.P5 for the sole reason that it is opinion evidence. This is particularly so since prosecution itself relies upon the evidence given by PW5 and Ext.P5. In the absence of anything on record to indicate that doctor could go wrong in assessing the age as above 16 years and below 18 years, that too, based on scientific examination, it will be improper for any court to reject the evidence of a medical expert. Any evidence can be rejected on sound and valid reasons. 19. Considering the above facts, I find that prosecution has not established beyond reasonable doubt that at the time when ape was allegedly committed PW2 was below age of 16 years. The courts below held that the sexual act was committed with consent of PW2. In such circumstances, in the absence of evidence to show that PW2 was below 16 years of [Crl.R.P.867/01] 12 age, Section 376 IPC will not be attracted. In the result, conviction and sentence passed passed against revision petitioner are not sustainable and those are to be set aside. Hence, the following order is passed: i) Conviction and sentence passed against the petitioner under Section 376 IPC are set aside. ii) Petitioner is acquitted of offence under Section 376 IPC, extending benefit of doubt. iii) Petitioner is set at liberty forthwith. Petition is allowed. K.HEMA, JUDGE. Krs.