IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 Crl.Rev.Pet.No. 1555 of 2002() ------------------------------------------- CRA.409/2000 of ADDL. SESSONS COURT (ADHOC-II) SC.64/1991 of ADDL.ASSISTANT SESSIONS COURT, KOCHI .................... APPELLANT(S): ACCUSED --------------------------------------- ABDUL AZEEZ, S/O. ABDU, HOUSE NO.111/567, KARIMGAMTHURUTHY PARAMBIL, CHERLAIKADAVU DESAM, MATTANCHERRY. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S): COMPLAINANT ------------------------------------------------ THE STATE OF KERALA, (REPRESENTED BY THE SUB INSPECTOR OF POLICE, FORT KOCHI POLICE STATION) (CRIME NO.66/89 OF FORT KOCHI POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, SESSIONS COURT, ERNAKULAM. PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss N.K.BALAKRISHNAN, J ------------------------------------ Crl.R.P No. 1555 of 2002 ----------------------------------- Dated this the 20th day of August, 2011. O R D E R The revision petitioner was convicted by the Assistant Sessions Judge, Kochi for offences punishable under Sections 363, 376 and 379 IPC and was sentenced to undergo rigorous imprisonment for 7 years for the offence under Section 376 IPC and rigorous imprisonment for two years for the offence under Section 363 IPC and rigorous imprisonment for one year for the offence under Section 379 IPC. His appeal before the Sessions Judge was dismissed. 2. The gist of the prosecution case is as follows: The accused with the intention to have sexual intercourse with the defacto complainant-a girl aged 13½ years kidnapped her from the lawful guardianship of her mother and making her believe that he would marry the -: 2 :- girl he raped her from the lodges at Kozhikode and then at Ooty. The incident took place in October 1989. The further allegation is that the accused committed theft of gold earstud and gimikys of the victim girl weighing half sovereign and thereafter he abandoned the victim-minor girl at Madras. PW1 to PW13 were examined and Exts.P1 to P17 (a) were marked. Besides Mos. 1 to 8 were also identified and marked. DW1 was examined and Exhibits D1, D1(a) D1(b), D2 and D2(a) were marked. 3. Accepting the prosecution case the accused was convicted by the trial court. He preferred appeal before the Sessions Court as Criminal Appeal No.79 of 1992. His appeal was dismissed. He then preferred a revision petition before this Court as Crl. Revision Petition No.991 of 1993. This Court set aside the conviction and sentence and the case was remanded to the lower court for fresh disposal to the limited extent of proving the age of PW1 as on the date of incident. Both sides were given liberty to adduce further evidence in the matter. Thereafter, PW14 was examined -: 3 :- and Exts.P18, P18(a) and P19 were marked. 4. The trial court on a re-consideration of the evidence found the accused guilty of the offences, convicted and sentenced as mentioned above. As stated earlier the learned Additional Sessions Judge, after re-appreciating the evidence concurred with the findings entered by the trial court. 5. The accused contends that the court below failed to scrutinise the evidence properly. The court below failed to give opportunity to recall PW1 for further examination though this Court had given opportunity to both sides to adduce further evidence. This contention is stoutly resisted by the learned Public Prosecutor. The case was remanded to the trial court only for the purpose of proving the age of the victim girl. But the accused, in order to steal a march on the court, wanted to recall PW1 with ulterior motive. That request was rightly disallowed by the trial court. The age was proved by producing other materials for which prosecution relied upon the testimony of -: 4 :- PW18 and the documents Exts.P18, P18(a) and P19. What was meant by this court in its observation was that both sides are at liberty to adduce further evidence. It was not to recall PW1 but to produce any other evidence which may be relevant to decide the issue. 6. When PW1 the victim girl was examined before the court below she was aged 17 years. She was examined before the court on 15.9.1992. The evidence would show that PW1 had studied up to fourth standard in M.A.S.S L.P. School, Mattancherry. Ext.P2 is the certified extract of the admission register maintained in that school which was produced to prove the age of the prosecutrix. Subsequently the original admission register and the application for admission of PW1 filed before the school authorities for getting that girl admitted to school were produced. The incident took place in October 1989. PW8 was the Headmaster of the school who testified before court that based on the entries in the admission register, Ext.P2 was issued by him. It was stated that the admission number of -: 5 :- the student was 6162 which did correspond to the name of victim girl(PW1). As per Ext.P2 the date of birth of PW1 was shown as 27.5.1976. It was noted by the court below that original admission register was taken into custody by the police officer as per Ext.P9 mahazar and PW8 had signed in it. That register was returned to PW8 as it was required for the day to day use in the school. The prosecution has examined PW14 the present Headmistress. The admission register which was seized as per Ext.P9 which was subsequently returned to PW8 was produced by PW14. That register was of the period from 7.6.1978 to 7.6.1982. That register was marked as Ext.P18 and relevant entry pertaining to PW1 shows her date of birth as 27.5.1976. It was marked as Ext.P18(a). Ext.P19 is the application submitted by the guardian of PW1 pertaining to the admission No. 6162 dated 21.5.1981 where the date of birth of PW1 was shown as 27.5.1976. As stated earlier the incident took place in October 1989. Therefore the finding that the victim girl was aged only about 13½ years, as -: 6 :- recorded by the two courts below is found to be well merited. The relevant entry in Ext.P2 which has been further fortified by Ext.P18(a) and P19 and the evidence of PW8 and PW14 would prove that the date of birth of the victim girl was 27.5.1976. 7. It was argued by the learned counsel for the accused, relying upon the evidence given by DW1, the Secretary of Mohiyudhim Jamaat Mosque as per which marriage of PW1 and accused was stated to have been registered as evidenced by Ext.D1(a) that PW1 was aged 18 years. Ext.D1(b) is the photo copy of the relevant register of batch No.818. The accused wanted to rely upon the age mentioned in Ext.D1 (b) as 18 years to contend that the prosecution version with regard to the age of PW1 is untrue. No sanctity can be given to the entry in such registers maintained at the time of marriage especially because the Jamaat President or Secretary will never show the age of the girl as below 18 years since the law prohibits marriage of a girl below 18 years. Therefore, there is every -: 7 :- reason for the persons concerned to show the age as 18. There is no case for the accused that any birth extract or birth certificate was produced to show that the age of the girl was above 18 years. The trial court on both occasions found that the documents relied upon by the accused does not inspire confidence since that document came into existence long after the incident. The incontrovertible evidence that could be obtained from Ext.P2, P18(a) and Ext.P19 and disinterested testimonies of PW8 and PW14 who were maintaining the registers in the usual course of their official duties, can safely be acted upon by the court. The courts below rightly placed implicit reliance on those documents. The contention that the age of the girl was 18 and not 13 ½ years in such circumstance has to be brushed aside. Both courts have given valid reasons to reject Ext.D1 and D2 which came into existence long after the dispute surfaced. 8. It was contended by the defence that the entry relating to the date of birth found in Ext.P2, Ext.P18(a) and -: 8 :- 19 cannot be relied upon since father and mother of the girl was not examined. Her mother cited as a witness was not examined as she was reported to be abroad. Relating to the non examination of the father it was contended by the prosecution that father of PW1 had deserted PW1's mother years back and they were staying separately and that was why her father was not cited as a witness. Here, the difference in age is not one or two months. During the relevant period, during the time of incident, PW1 was aged only 13½ years ie; 2½ years less than 16. Since the school admission register was maintained by the school authorities as enjoined upon by them by the rules relating to the same and since the entries were made at an undisputed point of time, in the absence of any other evidence the courts below were perfectly justified in placing reliance on the same. It was not disputed that PW1 was admitted to the school from where Ext.P2 was issued and Ext.P18 was produced. 9. It was sworn by PW1 that the accused made her believe that he will marry her and by so inducing her, the -: 9 :- accused took her out of the lawful custody of her mother at about 7.P.M on 12.10.89. The girl who was only about 13½ years, was lured by the dishonest inducement made by the accused and she believed his words and went along with the accused. It was stated that she had acquaintance with the accused prior to the incident. It was stated by her that she was at first taken to a lodge by name “Select lodge”, at Kozhikode. They stayed there for 2 days and therefore she was taken to a lodge at Ooty and they stayed there. From there she was taken to Madras where she was abandoned by the accused. It was stated by her that during these days the accused had sexual intercourse with her. Obtaining consent by deceitful means is not a consent at all. There must be free and voluntary consent made by the prosecutrix. That free and voluntary consent is absent here. Since the girl was aged only 13 ½ years taking her out of the lawful guardianship of her mother would certainly attract the offence of kidnapping. Though PW1 was subjected to piercing cross examination, her evidence that -: 10 :- she was raped by the accused remained unshaken. The learned Public Prosecutor would also point out that the evidence given by PW1 that when she was examined on 15.9.1992 she was aged only 17 years was not challenged by the defence. The incident took place about three years prior to that date. If so, she must have been only about 14 years as on the date of the incident. Therefore, that also would support the prosecution that she was aged far below 16 years when she was raped by the accused. 10. The courts below were perfectly justified in finding the accused guilty of the offence punishable under Section 376 IPC. The evidence would show that the accused took or enticed PW1 who was under 18 years of age from the lawful guardianship of her mother, without the consent of the mother and as such the accused is proved to have committed the offence of kidnapping from a lawful guardianship and as such the conviction of the accused for the offence under Section 363 is also well merited. 11. The evidence would show that the accused -: 11 :- committed theft of gold ear studs and jimkies of PW1. The evidence given by PW1 on that point was also accepted by the learned Assistant Sessions Judge for valid reasons. The learned Sessions Judge in appeal made a resurvey of the evidence and concurred with the finding entered by the trial judge on that point as well. I find no reason to interfere with that finding. As such the conviction of the petitioner/accused for the offences punishable under Secs.366, 376 and 379 IPC is only to be confirmed. 12. The learned counsel for the accused would submit that the incident took place several years back and that the petitioner is residing with his family members and that his daughter is aged about 20 years and so leniency may be shown in the matter of sentence. It is further submitted by the learned counsel that the prosecutrix is no more. The learned Public Prosecutor would strongly resist the prayer for leniency sought for. It is submitted that the prosecutrix was in fact driven to prostitution as she was abandoned by the accused after she was used by him and because there -: 12 :- was nobody to look after her and presumably because of the deceases she must have contacted she happened to die and so accused can not take advantage of it. What ever that be, I find no adequate and special reason to impose a sentence of imprisonment for a term of less than 7 years. It was a case where a girl, aged only about 131/2 years was taken to several lodges and raped by accused and later he abandoned her at Madras, that too, after committing theft of her gold ornaments as well. Hence the accused deserves no leniency. In the result, this Crl.R.P. is dismissed confirming the conviction and sentence passed against the accused/revision petitioner. The learned Assistant Sessions Judge will take immediate steps to execute the sentence. N.K.BALAKRISHNAN, JUDGE. mns