K. Vinod Chandran, J.:— A permanently scarred teen aged-mother and an infant forced into adoption are the net result of the crime, which is the subject matter of the above appeal against conviction and sentence of its perpetrator. The victim and her orphaned child are destined to live with this pall of shame, on this miserable world where lecherous adults prey on innocent children.
2. The accused-appellant was tried and convicted for offences punishable under S.376(2)(h), (i) and (m) and S.506(2) of IPC and S.5(j)(ii), (l), (q) r/w S.6 of the Protection of Children from Sexual Offences Act, 2012. He has been awarded the maximum sentence of imprisonment of life which extends to the reminder of his natural life under the offences alleged under S.376 and an imprisonment of five years under S.506(2) and a fine of Rs. 1 lakh, with a default sentence. By virtue of S. 42 of POCSO Act no separate sentence is awarded under the offences on which he has been convicted under that Act.
3. The allegation against the appellant found against him by the Sessions Court was that he subjected a minor girl of 14 years to repeated rape by reason of which she became pregnant; with which knowledge he continued the atrocities thus attracting the offences alleged against him. The learned Sessions Judge found that the evidence of the witnesses stand unchallenged and the version of the prosecutrix is totally believable. There is no consent on the part of the prosecutrix even remotely suggested, which in any event is immaterial for reason of the age of the prosecutrix who was below 16 years at the time when the offence was committed. The prosecutrix had not immediately spoken of the incident due to the intimidation by the accused and also fear of parental repercussion. There is further scientific evidence by way of the DNA Examination, which scientific evidence proves that the accused is the biological father of the child born to the victim.
4. Sri. Ranjith P. Marar learned Counsel appearing for the accused argued that there was no worthy proof of the victim being a minor below 16 years of age. The certificates produced to prove date of birth do not stand the test of S.76 of the Indian Evidence Act and it cannot even be called a secondary evidence as contemplated in S.63 of the Evidence Act. The learned Counsel relies on 2020 KHC 2271 Reju v. State of Kerala wherein the copy of the extract of the School Register was found to be insufficient. Reliance is also placed on (2016) 16 SCC 483 Rakesh Mohindra v. Anita Beri. It is argued that there is nothing to show that the accused had committed rape on the victim with the knowledge that she is pregnant. For arguments sake, even if the prosecution case of repeated instances of sexual act is believed, it only reveals the consent of the victim; which consent assumes significance for reason of no valid proof of age having been proffered. It is pointed out that the incriminating circumstances of Ext.P14 test result was never put to the accused in the questioning under S. 313. Such evidence has to be totally eschewed going by the dictum in (2009) 6 SCC 595 Ranvir Yadav v. State Of Bihar . and (2015) 1 SCC 496 Nar Singh v. State of Haryana. Last but not the least the learned Counsel would argue for a reduction in sentence especially considering the age of the accused and the fact that there was no violent act complained of by the victim and no injury caused to her. The learned Counsel relies on 2020 KHC 5318 (Chanchal Dev. v. State of Tripura) wherein the imprisonment of life was reduced to RI of ten years considering the fact that the accused is a married man with a family to support and had no criminal antecedents. The learned Counsel also relies on (2013) 11 SCC 382 (Soman v. State Of Kerala .) for mitigation on sentence.
5. Smt. Ambika Devi, Special G.P(Atrocities against Women and Children) at the outset points out that in the year 2018 the provision under S.376 had been amended by the legislature importing more rigour in the punishment especially considering the increasing incidents of such sexual abuse inflicted on children. The sentence of imprisonment, when imposed for life, has been statutorily imposed for the reminder of the natural life of an accused, as a deterrent measure which is the legislative policy making it proportionate to the degenerate crime perpetrated. There can be no mitigation offered by the Courts especially when there is an aggravated penetrative sexual act, as defined in the POCSO Act, committed by the accused. As far as the date of birth is concerned, it is pointed out that there was no objection to the marking of the documents and there was no dispute raised as to the specific date of birth spoken of by the prosecutrix. It is also pointed out that the extract of the School Register indicates it to be that issued by the School of first admission which is admissible without anything further as has been laid down by the Hon'ble Supreme Court in (2013) 7 SCC 263 (Jarnial Singh v. State of Hariyana) and (2013) 14 SCC 637 (Mahadeo v. State Of Maharashtra).
6. PW1 is the prosecutrix who deposed in consonance with her FI Statement. She was acquainted with the accused, a 56 year old man, from her childhood. She has seen him on many occasions when she goes about her household chores, which include supplying milk to the Society and collecting fodder for cattle. She has also seen him on the way back from school; in the neighbouring fields where he used to graze cattle. The accused was friendly towards her and also used to give her toffee and fruits. In 2013 just before the festival of Onam, while she was returning from school the accused beckoned her from a nearby coffee plantation. She approached him in the hope of getting a toffee, when he asked her for a kiss. She protested and threatened that she would disclose his abominable behaviour to her parents, upon which he threatened that he himself would do so. When she attempted to run away he forcefully caught her and made her lie on the ground after which he removed her pants and committed rape on her. When she threatened to disclose it to her parents he threatened her with death. Twice again she was molested by the accused in a similar manner, but she kept mum since she was afraid of the accused and also feared parental wrath. However, when her periods failed, she approached her mother who took her to an Ayurveda Physician, but the medicines prescribed by him were futile. Then her mother took her to the Government Hospital, Kalpetta where she was advised laboratory tests. With the results of the test, the mother and child approached one Dr. Alice who advised a scan, upon which it was revealed that she was pregnant with a seven month old foetus. The prosecutrix was then taken to a convent at Vythiri wherein her statement was taken by a Woman Civil Police Officer (WCPO) as seen at Ext.P1.
7. Before Court PW1 produced her date of birth certificate issued by the local body (Ext.P2) and specifically deposed on the date of birth, which indicated it to be 21.12.1998. She spoke of the atrocity perpetrated on her by the accused, in tune with the FIS and also spoke of having given birth to a male child who was later given away in adoption. She had consented to sampling of blood from herself and her child, respectively by Ext.P3 and P4. She withstood the cross-examination which pertinently did not touch upon Ext.P2 certificate produced or the date mentioned by her in chief examination. PW2 is a nun attached to the “Adoration Convent” who is also the Counselor of the Government Vocational Higher Secondary School (GVHSS) in which PW1 was a student. She was informed of the pregnancy of PW1 by Dr. Alice, presumably since PW1 was a minor child. She informed the Director CWC on whose instructions PW1 was removed to Holy Infant Mary Convent. On the intimation given to the Police by the Director of CWC, FIS was recorded on 09.03.2014 in the presence of PW2. PW3 is the mother of PW1 who spoke of PW1 having complained to her of having missed her periods, upon which she was first taken to an Ayurvedic Physician and then the Government Hospital. On the pregnancy of the child being detected she spoke of PW1 having spoken of the molestation by the accused. She also confirmed the confinement of PW1 to the Convent; wherein the FIS of PW1 was taken by the Police. PW2 was not cross-examined and there was no relevant cross-examination of PW3.
8. PW4 is the attestor to Ext.P5 scene mahazar prepared by PW12. PW6 is the Special Revenue Inspector who prepared Ext.P7 site plan. PW5 is the Headmistress of the GVHSS in which PW1 was studying. The extract of admission register relating to PW1 was produced and marked as Ext.P6. Ext.P6 specifically indicated that the standard to which PW1 was admitted to the School was the 1 standard. The date of birth as seen in Ext.P6 extract tallied with that spoken of by PW1 and revealed from Ext.P2, which was also specifically deposed by PW5. PW5 was also not cross-examined.
9. PW7 is the WCPO who recorded Ext.P1 FIS and PW8 registered Ext.P1(a) FIR. PW9 is another WCPO who accompanied the Investigating Officer when the scene mahazar was prepared. PW10 is the Inspector of Police who commenced the investigation and arrested the accused as per Ext.P8 arrest memo. The accused was also subjected to a potency test the certificate of which was marked as Ext.P9; which proved him to be capable of the sexual act complained of. PW11 was the Inspector of Police who applied to the Court for the purpose of examining the blood samples of the victim, the accused and the child. The blood samples were taken by PW13 who was a Junior Consultant in the Taluk Head Quarters Hospital, Vythiri; as per the requisition of PW10. She also spoke of having taken the consent of the respective persons before the samples were collected; which after collection was certified as Ext.P3, P4 and P17 respectively; of the victim, the child and the accused. Forwarding notes were prepared and samples were sent to the Regional Chemical Examiner to the Government at Calicut marked as Exts.P18 to P20. In cross-examination she asserted that the purpose of sampling was intimated to the accused though the same was not recorded in the certificate. PW11 marked Ext.P14 report of the Forensic Science Laboratory which found that the accused is the biological father of the child born to the victim.
10. We are first concerned with the question of whether the date of birth of the prosecutrix has been proved before the Trial Court. Before we look at the evidence led, we look at the decisions cited. Reju was a case in which the extract of the admission register produced for proving the age of the victim was found to be not an official record being one maintained by a private school; wherein the recital was as to the entries having been made on the basis of the entries in a Transfer Certificate, which was not produced before Court. In the present case, the extract produced was of a Government School and the details enumerated clearly indicates that the School is that which was first attended by the victim; which has been held to be sufficient proof for determining the age of a child who is a victim of a crime; by the Hon'ble Supreme Court in Jarnail Singh and Mahadeo; drawing support from the Juvenile Justice (Care and Protection of Children) Rules 2007. Rule 12 of the said rule specify under sub-rule (3)(a)(ii) that the date of birth certificate from the school (other than a play school) first attended as sufficient evidence to determine the age of a child in conflict with law. The learned Counsel for the appellant has a contention that the Rules of 2007 are no more in force. We see from the Juvenile Justice (Care and Protection) Act, 2015 that the determination of age is as per S.94(2) which is as below:
“S.94(2) : In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining:—
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a Corporation or a Municipal Authority or a Panchayat;
(iii) and only in the absence of (I) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”
11. There is no requirement of the certificate being from the School first attended. However, since the Hon'ble Supreme Court has specifically referred to the Rules of 2007 and imported the same procedure in the case of minor victims, we would think that the said rigour has to be applied in cases where the determination of age of a minor victim arises; so as to not prejudice the accused. Ext.P6 is from the School first attended and hence is sufficient proof of the age of the child which puts her at below 16 years as on the dates of the alleged incidents.
12. To dispel the looming clouds and for future guidance, we need to address the arguments with respect to the attested copy of the certificate issued by the local body. Ext.P2, we find is an attested true photostat copy of a certificate issued by the Registrar of Births and Deaths, Thamarassery Grama Panchayath. S.76 of the Evidence Act provides for certified copies of public documents, which type of documents find definition in S.74. The ‘Register’ of Births and Deaths is a public document as contemplated in S.74, the certified copy of which, spoken of in S.76, is the one issued by the Registrar, on application made before him. However, Ext.P6 is a photocopy of that certificate which is attested as a true copy by a Gazetted Officer of the State which does not satisfy the definition of a certified copy of a public document, as contemplated under S.76. In this context we notice that the primary evidence as contemplated under S.62 would be the ‘Register’ itself and the secondary evidence as spoken of in S.63 inter alia includes certified copies given under the provision therein after contained. Clause (e), of S.65 which lists out the contingencies in which secondary evidence relating to documents may be given, speaks of the contingency:“when the original is a public document within the meaning of S.74”. Hence a Certificate of birth issued by the Registrar, showing the details of the entry in the Register, is secondary evidence acceptable on record. We reiterate, for the purpose of date of birth the Register of Births and Deaths maintained by the Registrar, under the Registration of Births and Deaths Act, 1969, who is also the Secretary of the Local Body, is a public document which is the primary evidence. The certificate of birth which certifies the information as revealed from the original record of birth as available in the Register would be the secondary evidence permissible under S.65 of the Evidence Act. The photocopy of such a certificate, attested as a true copy, even by a Gazetted Officer, does not satisfy the requirement of S.65 and cannot be deemed to be secondary evidence. Ext.P2 cannot hence form valid proof for the age of the accused. We say this only so as to provide guidance in future cases and also to answer the contentions specifically raised by the learned Counsel. We also notice that the mother of the prosecutrix was examined as PW3, to whom a question could have been put as to the date of birth of her daughter which could have avoided any further controversy. This, surprisingly was not done and the Court too remained a mute spectator. However, these aspects have no bearing insofar as the issue of proof of date of birth raised in the present case, for the following reasons.
13. As we earlier indicated PW1 in addition to producing and marking Ext.P2 certificate, specifically spoke of her date of birth. There was no objection raised as against the date or the marking of the document. Even in Reju the Division Bench of this Court, while not relying on the extract of the Admission Register, all the same accepted the fact that the prosecutrix therein was a minor on the basis of the unchallenged oral testimony of the prosecutrix and her mother. In the present case both Ext.P2 and P6 were marked without any objection. Ext.P6 is also an extract of the admission register maintained by a Government School. The witnesses, who produced the documents, being respectively PW1 and PW5, in their oral testimony spoke of the specific date which was left unchallenged by the accused in cross-examination. PW6, going by the declaration in Jarnail Singh and Mahadeo (both-supra), being the date of birth certificate from the school first attended, can be taken as valid proof for determining the age of the victim of the instant crime. We garner further support from (2011) 2 KLT SN 112 (C. No. 134) (SC) Murugan v. State of Tamil Nadu:
“11. Documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Indian Evidence Act, 1872. (Vide : Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 : AIR 1982 SC 1057; and State of Bihar v. Sri. Radha Krishna Singh, (1983) 3 SCC 118 : AIR 1983 SC 684)”.
14. The entries revealed in Ext. P6 were made much before the criminal prosecution commenced and there is no challenge to the date, raised by the defence in cross-examination. We find the victim to be a minor child at the time when the offence was committed; specifically below 16 years of age.
15. The evidence of the prosecutrix has been detailed by us which indicate the circumstances under which the molestation was carried out. The testimony of the witnesses corroborate the various circumstances and we do not find any inconsistency inuring to the benefit of the accused. In addition we have to notice that the DNA test as revealed from Ext.P14 clinches the aspect of guilt on the accused. The blood samples were taken with the consent of the parties after taking permission from the Court. This has been deposed to by the witnesses arrayed on behalf of the prosecution as we noticed in the previous paragraphs. The result of examination as available in Ext.P4 reads thus : “In the absence of identical twins, the alleged father Rajan is the biological father of the Child B/o xxxx” (sic).
16. The learned Counsel for the appellant had a contention, with support from precedents, that such an incriminating material was not put to the accused under S.313. At the outset we cannot but observe that the impregnation of the victim by the accused is further revealed from the DNA test carried on which confirms the child born, to be of the accused. However this fact has not been put to the accused in the questioning under S.313. Ranvir Yadav (supra) dealt with a crime wherein number of persons were shot dead and the dead bodies were decapitated and maimed before being thrown into a river. The questions asked under S.313 were specifically extracted, which were vague and general. It is in the context of no incriminating material having been put to the accused that the appeal was allowed, acquitting the accused. Nar Singh (supra) again spoke of the procedural safeguard prescribed for an accused under S.313 and emphasized the duty imposed on the Court to question the accused properly and fairly so as to bring home the exact case he will have to meet. Their Lordships went on to hold that the non compliance of mandatory provisions under S.313 is an error committed by the trial court and it has to be corrected and rectified in appeal. Such an omission however was held to be one not vitiated ipso facto and the accused has to demonstrate the prejudice caused as also the miscarriage of justice sustained on account of the omission.
17. In the present case we notice that the learned Sessions Judge has extracted Ext.P14 in its entirety and found it to be relevant to find the accused guilty. But the said incriminating material has not been put to the accused under S.313; we regret to say, rank negligence of the Court. However, but for raising the issue, no prejudice as such was argued by the learned Counsel. We also understand his helplessness, especially when the marking of the test report by PW11 went unchallenged. The sampling, on consent of the accused was not disputed and the consequences of the sampling, informed to the accused, as spoken of by the Doctor, that too in cross-examination, eschews any prejudice occasioned on the accused. There is no illegality in relying on the said document and the result therein, as an additional circumstance against the accused. There is no ground of prejudice validly argued by the accused. We find the said omission to be not relevant especially in the context of the report as such having not been challenged on any ground of prejudice by the appellant-accused. We deem it fit to rely on the scientific evidence as an additional material, as has been done by the learned Sessions Judge; to confirm the conviction of the accused.
18. We are not impressed by the arguments raised by the learned Counsel for the appellant in mitigation of the sentence to be awarded for the crime. The High Court of Tripura in Chanchal Deb (supra) was considering a case in which the victim was of unsound mind and the rape had resulted in pregnancy. We, with due respect, are not persuaded to adopt a similar course here. The Hon'ble Supreme Court in Soman (supra) found that there are no legislative or judicial guidelines in the matter of imposing punishments but factors like proportionality, deterrence, rehabilitation, seriousness of the crime etc. can be taken into account in exercising discretion while sentencing. Therein the crime of manufacture and sale of spurious liquor led to death, maiming and sickness of many. The following were held to be the guiding principles:
“26. Punishment should acknowledge the sanctity of human life. We fully agree.
27. From the above, one may conclude that : 27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor”.
19. Judged on the above principles, the instant case of the accused falls completely short of any mitigation. The crime, as we observed at the outset, leaves a permanent scar on the victim for reason of the blatant abuse she was subjected to, by a person of her father's age; or even of a grandfather. The child born to the victim is exposed to the vagaries of life without his biological parents. The age of the accused, contrary to the argument of the learned Counsel, commends us to treat the accused with more rigour and absolutely no sympathy. The aspect of proportionality weighs in favour of the victim and her orphaned child, especially considering the nature of the crime, the likes of which require maximum deterrent punishment. The consequences which resulted from the crime as stated by us, do not persuade us to view the crime lightly or the accused with compassion. The argument of the victim having not been subjected to a violent act or any physical injury, we reject with the disdain it deserves. In fact causing grievous bodily harm, maiming or disfiguring or endangering the life of a woman, while committing rape, is a distinct offence under S.376(2)(m) punishable separately with rigorous imprisonment as in the case of the other offences under clauses (a) to (l) and (n) of S.376(2). The absence of such an act commends no mitigation. The violence to a minor child when she is impregnated by an adult, four times her age, is inconceivable, inexpressible and inexplicable. The injuries in such crimes often are not to the body but to the mind. The act of passion for the accused ends up as an act of revulsion for the victim; the scars of which no physician can cure nor passing years erase. There is also the sense of loss in having been forced to give the child in adoption, for whatever reason and the crime committed on the infant, who came unsolicited into this cruel world. We find no reason to offer mitigation insofar as the sentence is concerned.
20. On one aspect we are with the appellant which does not really inure to the benefit of the appellant. S.376(2)(h) speaks of rape on a woman knowing her to be pregnant. The incidents of abuse which led to the pregnancy of PW1 even as per her deposition happened first in 2013 prior to Onam and twice later with two days intervening. Though she was impregnated in one of such incidents it cannot be said that the accused had knowledge of the pregnancy when he repeated the abuse. We do not find any reason to convict the accused under S.376(2)(h) IPC and Section S.5(j)(ii)(q). However S. 376 (2)(i) & (l) as also 506(2) of the IPC and S.5(j)(ii), (l) r/w S.6 of the POCSO Act stand attracted and the conviction on those counts stands confirmed and the sentences too are affirmed in appeal.
21. We partly allow the appeal, but the same has no consequence insofar as the sentence of imprisonment awarded is confirmed in toto, on the offences in which the accused has been found guilty.
Comments