Alex P.V vs State Of Kerala
2021 Latest Caselaw 14378 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                               &
          THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
    TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                     CRL.A NO.416 OF 2016

AGAINST THE JUDGMENT IN S.C.NO.552/2014 DATED 22.04.2016 OF THE
 COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (SPECIAL COURT
  FOR TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE
             AGAINST WOMEN AND CHILDREN), ERNAKULAM.
  CRIME NO.161/2014 OF RAMAMANGALAM POLIC STATION, ERNAKULAM.
                              ------
APPELLANT/ACCUSED:

          ALEX P.V., AGED 52 YEARS, S/O.VARKEY,
          PADIYEDATH HOUSE, OORAMANA KARA, MELMURI VILLAGE.

          BY ADVS.
          SRI.P.VIJAYA BHANU (SR.)
          SRI.A.E.ALIYAR
          SRI.T.B.GAFOOR
          SRI.K.MOHAN
          SRI.P.M.RAFIQ
          SRI.M.REVIKRISHNAN
          SRI.VIPIN NARAYAN
          SRI.AJEESH K.SASI
          SRI.V.C.SARATH
          SMT.POOJA PANKAJ
          SRUTHY N. BHAT


RESPONDENT/ STATE & COMPLAINANT:

          STATE OF KERALA,
          REP. BY THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM-682031,
          THROUGH THE S.I.OF POLICE,
          RAMAMANGALAM POLICE STATION.

          BY ADVS.
          SMT.AMBIKA DEVI.S., SPL.GP (ATROCITIES AGAINST WOMEN
          AND CHILDREN AND WELFARE OF WOMEN AND CHILDREN).

          THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.07.2021, THE COURT ON 13.07.2021 DELIVERED THE FOLLOWING:
 Crl.A.No.416/2016               -   2 -


                                                                 "C.R."
          K. Vinod Chandran & Ziyad Rahman A.A, JJ.
          -------------------------------------------
                    Crl.A.No.416 of 2016
           -------------------------------------------
             Dated, this the 13th day of July 2021

                              JUDGMENT

K.Vinod Chandran, J.

It is moral depravity of the worst kind when

teachers stoop down to the level of lecherous deviants

to molest their students. In the case we are dealing

with, we have an allegation of a teacher in a Sunday

School, where moral and religious education is

imparted, having committed repeated rape on his

student, a minor child. Worst still, the defence is

that it was another teacher in the same Sunday School

who committed the atrocious act, who also stands

convicted in another proceeding. We can only look up to

the Good Lord and lament: 'Heaven forbid'. But in this

world, we are called upon to decide, whether the

conviction was proper and if we affirm it, as to the

correctness of handing down the harshest sentence, the

legislature prescribes.

2. The allegation was of repeated rape and

the offences charged were under S.376 (2)(i) & (n) of

the Indian Penal Code [for brevity, 'the IPC'], S.5(f)

&(l) read with S.6 of the Protection of Children from

Sexual Offences Act, 2012 [for brevity, 'the POCSO

Act']. The repeated commission of the offence was found

against the prosecution. On the single instance, upon

which the First Information Statement (FIS) was

registered, the accused was found guilty under S.376(2)

(i) of IPC and S.5(f) read with S.6 of the POCSO Act.

He was convicted and sentenced to undergo R.I for life

for the offences on which conviction was entered under

the IPC, which means the remainder of his natural life

and a fine of Rs.2 lakh with default sentence. No

separate sentence under the POCSO Act was imposed under

S.42 of that Act.

3. The prosecution paraded 14 witnesses before

the trial Court as PWs.1 to 14, marked 22 documents

as Ext. P1 to P22 and produced 4 material objects as

MO1 to MO4. DW1 to DW4 were examined on the side of

the defence and Ext. D1 & D2 were marked.

Sri.P.Vijayabhanu, learned Senior Counsel, instructed

by Smt.Pooja Pankaj argued for the appellant-accused.

While Smt.S.Ambika Devi, learned Special Government

Pleader [Atrocities against Women and Children and

Welfare of Women and Children] appeared for the State.

4. Sri.P.Vijayabhanu pointed out, it is

doubtful that the offence under the POCSO Act would be

attracted, because Sunday School is neither an

educational or religious institution. In any event, the

act complained of had not occurred in the course of the

functioning of the accused in the status of a staff of

the institution. It is pointed out that Clause (d) &

(e) of Section 5 can only be taken as being applicable,

when such acts are committed on an inmate or an

inpatient, respectively. The very same interpretation

would have to be carried over to sub-clause (f) is the

contention. It is pointed out that the daughter and

mother have inconsistent statements about the tuition

arrangement; how it was initiated and arranged and the

subjects it was intended for. In fact, the mother, as

spoken of by the other witnesses, on being informed of

the alleged incident, which occurred in the course of

the tuition, immediately responded that her daughter

was not attending any tuition. PW1, the prosecutrix,

also has no consistent case and her evidence before

Court is full of embellishments of such acts having

commenced in the year 2012 itself from the residence of

her family, where they were staying earlier, which was

not stated to the Doctor or in the FIS. Almost 90% of

her evidence has been disbelieved by the trial Court.

She is not wholly reliable and is unreliable. There is

an allegation of yet another teacher having molested

her, which was the allegation, the prosecutrix spoke of

to her friend. The prosecution purposefully did not

examine that friend; who when examined as DW2,

categorically stated that the mother of the prosecutrix

had asked her to say the name of the accused rather

than that of the other teacher. The judgment in the

case registered against that other teacher has been

produced to show that the conduct of the prosecutrix is

highly suspect. It is urged that though a defence

witness; evidence of DW2 cannot be treated as tainted

as held in AIR 2002 SC 620 [State of Haryana v Ram

Singh]. The incident complained of against the other

teacher is earlier to the instant allegation, which

would unsettle the corroboration attempted to be

offered by the medical evidence in this case. The

learned Senior Counsel would also rely on 2021 (3) KLT

205 [Surendran v. State] to question the advisability

of accepting the medical evidence regarding the tear in

hymen and the entry facilitated of one or two fingers.

Last but not least the learned Senior Counsel would

question the determination of age by the trial Court.

The evidence produced as Ext.P3 is the extract of a

School Register, which does not even qualify the test

in Jarnail Singh v. State of Haryana [2013) 7 SCC

263]. It is asserted that without proof of age, none of

the provisions under which the conviction has been

maintained can be upheld.

5. Learned Special Government Pleader on the

question of age, points out that there is no challenge

to the marking of the document, Ext.P3, nor even a

question asked to the Headmistress (HM) as to whether

the age stated in the Extract is correct or not.

Reliance is placed on Jarnail Singh (supra) and

Mahadeo v. State of Maharashtra [(2013) 14 SCC 637]. It

is pointed out from S.94 of Juvenile Justice (Care and

Protection) Act, 2015 that now there is no mandate of

proof by the production of an admission extract from

the School first attended. Relying on Ramesh @ Ramesh

Kumar v. State, rep. by Inspector of Police [2017 KHC

3314] of the Madras High Court, it is argued that if

the dispute was raised, proper proof would have been

offered. Lakhi Ram Takbi v. State of Sikkim [2019 KHC

3670] of the Sikkim High Court is pointed out to bring

home the principle of 'Ante litem motam' affording

acceptability to documents certifying age, as the same

was done long before the commission of the crime

itself. It is asserted that the Sunday School is an

educational institution and those who impart training

has the status of a teacher. The accused also in his

statement under S.313 admitted, having taught the

prosecutrix in the Sunday School. That the act was

committed using the influence, a teacher has on a

student is quite evident and it attracts the offences

under the IPC and the POCSO Act. As to the argument of

non- examination of DW2 by the prosecution; it is urged

that she was not necessary to unfold the prosecution

case. In any event, the allegation of substitution of

the accused as the perpetrator of the crime, for

another teacher, was never put to the witnesses, who

recorded the FIS and registered the FIR. The conviction

and sentence have to be upheld, especially taking into

account the fact that the legislature in the case of

such offences, against children below 16, made

amendments to the IPC bringing in more severe

punishment in the year 2018.

6. We need not refer to the allegation of

repeated rape committed on the prosecutrix, since the

said charge was found to be not proved before the trial

Court and there is no appeal by the State. We confine

to the allegation of an act of molestation committed on

14.12.2013, at the house of the accused, when he had

forcible sexual intercourse with his student, who had

been to his house for private tuition. The FIS by the

prosecutrix was recorded by PW9, a woman CPO. As per

the FIS, when PW1 was studying in the 7th Standard, at

a PTA meeting, PW2, her Class Teacher, advised her

mother to give her private tuition, since she was not

doing well in her studies. Her mother then entrusted

her tuition with the accused, her Sunday School

teacher, who used to summon the student through her

mother when he had free time. PW1 commenced tuition

from October and often at the time of tuition the

children of the accused used to be present and so was

the wife of the accused present in the house. On

14.12.2013, when she reached the house of the accused,

the family of the accused were not there. The accused

invited her with an orange juice and when the tuition

was going on, he boxed her left ear without reason. She

cried in pain, when he caught her hands in appeasement

and took her to the bedroom. There he forcefully

removed her dress ignoring her resistance and made her

lie on the cot. He removed her undergarments and

despite her cries; not to harm her, he lifted her

petticoat and raped her. After the act, he asked her

not to divulge the incident to anybody and went out.

She went to the bathroom and cleaned the 'filth'. She

also specified the colour of the dress she wore on that

day. When her periods did not come in time, she told

her friend, DW2. DW2 talked about the incident, upon

which the authorities of the School came to know about

this and eventually her mother too.

7. PW1, in her evidence, spoke in tandem with

what she stated in the FIS; but made several

embellishments. Before Court, PW1 in addition to what

was stated in the FIS, alleged that the molestation by

the accused commenced in the year 2012 and continued in

that year as also in the next. This version of repeated

rape as we noticed, was disbelieved by the Court and

there is no appeal against that. However, the specific

incident that happened on 14.12.2013 was repeated

verbatim. She also marked MO1 to MO4 dresses worn by

her at that time; later seized by the Police. Nothing

comes out of the said MOs, since even according to her,

they were washed after the incident and the prosecution

too did not pursue any chemical analysis; rightly so.

Though PW1 stated her date of birth in the FIS, no such

question was put to her while she was examined in Court

and contrary to what is stated by the learned Special

G.P, she has not specifically stated her date of birth

in her chief-examination; the controversy regarding

which date we will deal with later.

8. PW2 is the Class Teacher, who spoke of DW2

having told her about the sexual assault of PW1 by a

Sunday School Teacher. She informed the HM, who

summoned PW4, the mother of PW1. The HM also informed

the Childline and the Police, who questioned the

victim. In cross-examination, PW2 stated that she has

not told the Police about DW2 having told her about the

assault. It was also explained that since she was

proceeding for exam duty, she would not have stated all

the facts before the Police. She denied having

suggested private tuition for PW1. PW3 is the HM, who

deposed that she came to know of the allegations from

PW2. She also stated before Court that PW2 had informed

her that she was informed of the allegations by DW2.

PW2 & PW3 also said that when PW4 was summoned, she had

initially denied PW1 being sent for private tuition.

She marked Ext.P3 extract of the School Admission

Register, which shows the date of birth as 01.06.2001.

9. PW4 is the mother of PW1. She spoke of the

school authorities summoning her and informing her of

what transpired with her daughter. She asserted that

she had admitted to the HM that her daughter is

attending private tuition. She spoke of having close

acquaintance with the accused, a neighbour earlier and

also colleagues at the Sunday School where both of them

taught. She spoke of sending her daughter for tuition

to the accused. PW5 is the Doctor who examined PW1. She

spoke of the history stated by the subject at the time

of examination; which referred to the incident that

occurred on a second Saturday in December 2013. The

narration of the history by PW1 as spoken to PW5

tallies with the FIS. The Doctor also spoke of finding

the hymen of PW1, partly torn, the age of which tear

could not be specified. PW1 was also stated to be

'liberalized' with sexual contact, which we should

understand as 'habituated'; though not in the full

sense of the term.

10. PW6 is the HM of the Sunday School wherein

the accused was teaching for about eight to ten years.

PW1 was a student and PW6 produced the attendance

registers of the teachers and the students of the

school, two each in number, which were marked as Ext.P6

& P7 and P8 & P9 respectively. He proved Exts.P6(a) and

P7(a) portions which showed the attendance marked by

the accused. Ext.P8(a),(b)and(c) and Ext.P9(a)

attendance marked by PW1 were also marked. PW9 is the

woman CPO who took out the statement of PW1 as per the

instruction of the Sub Inspector of Police. PW10 Doctor

examined the accused and certified his potency. Ext.P13

ownership certificate of the house in the name of the

accused, the scene of occurrence, was produced and

marked by PW11. PW13 authorized PW9 to take the

statement of PW1, on being informed of the commission

of the offence through telephone. He registered the

FIR, Ext.P16 as per the FIS and sent the victim along

with PW9 for medical examination. PW14 is the

Investigating Officer.

11. As we observed at the outset, there is no

cause for us to dwell upon the repeated sexual assault

spoken of by PW1 and PW4 before Court. We are only

concerned with the one-act complained, of 14.12.2013.

The learned Senior Counsel had attacked the prosecution

case pointing out the discrepancies in the evidence of

PW1 and PW4 as compared to what was deposed by PW2 and

PW3. Both PWs.2 and 3 had said that on informing the

mother, PW4, about the allegation of sexual assault on

her daughter by a tuition teacher, she denied her

daughter being sent for private tuition. PW4 on the

other hand asserted that she admitted before the School

authorities that her daughter was being given tuition

by the accused. Even if the evidence of PW2 and 3 on

that aspect is believed, we find it only natural for a

mother, informed of a sexual dalliance of her daughter

at a tuition class, to be on denial mode, as a

knee-jerk reaction. PW2 also denied having ever

suggested private tuition for PW1. Whatever that be,

PW1 and PW4 had spoken of the tuition being arranged

with the accused. At whose behest the victim was sent

for private tuition is not very relevant and this

contradiction does not vitiate the testimony of the

victim and her mother as to the tuition she attended.

The discrepancy concerning the subjects as spoken of by

PWs.1 and 4 are also not very material since the victim

was studying in the 6th standard where the curriculum

though subject-specific, could be handled by any

knowledgeable person. In this context, we have to also

take into account the contention raised by the accused

of his educational qualification which is asserted to

be only matriculation. Again we stress the standard in

which the victim was admitted at the relevant time and

it cannot be assumed that private tuition especially

for subjects in the Upper Primary classes are rendered

only by persons with specific qualifications.

12. Indeed, what was spoken of by PW1 about

the repeated sexual assault was disbelieved by the

Court. The victim had also not spoken of that at the

first instance, which throws suspicion on the later

embellishments made in Court. However, for that sole

reason, her evidence cannot be discarded in its

entirety as unreliable. We believe that there is a fair

distance between 'not wholly reliable' and

'unreliable'. To find the witness to be 'unreliable'

the Court has to necessarily find the evidence to be

fully tainted, artificial, contrived or exaggerated and

the witness to be untrustworthy, deceitful, dishonest

or undependable. Whereas, if a witness is termed to be

'not wholly reliable', as can be found in the present

case, there is no warrant for eschewing the entire

evidence. That is the context in which Courts have time

and again spoken about 'sifting the chaff and grain'.

Such sifting is not on individual predilections but on

an appreciation of the entire evidence placed before

the Court, including the corroborating materials and

the attendant circumstances as borne out from the

depositions of the various witnesses and the documents

proved.

13. Here, we have the victim at the first

instance, speaking about a specific incident in the

FIS. The very same recital was made before the Doctor,

who physically examined her. These materials, which are

first in point and contemporaneous, lend credibility to

the deposition of the victim in Court, about the

specific solitary instance of sexual molestation. Hence

PW1 can only be seen to be a witness who is 'not wholly

reliable' but by no stretch can she be categorized as

'unreliable'. So much of the evidence which appears

credible and is corroborated has to be accepted. Here

we have to keep in mind that the incident alleged is of

a sexual assault on a school going girl. It results in

alienation from society, placing the victim and her

family in a pall of shame; though they are the wronged

ones. The apathetic societal inclinations result in

those wronged attempting to embellish, to hold their

ground and justify their stand while also hoping for

retribution. Though the embellishments are disbelieved,

we do not find anything to disbelieve PW1 or for that

matter PW4, a mother who would not normally press an

allegation of rape on her daughter. We have gone

through the certified copy of the judgment in another

case of sexual molestation on the very same victim, by

another teacher from the same Sunday school. We are not

called upon to look at the merits of the case and we

have not. This was produced only to point out that

therein the victim had asked for her mother to be sent

out when her S.164 statement was recorded. There is

nothing suspicious about that conduct since it is

natural that a girl feels reluctant to relate an

instance of molestation before her own mother. In the

present case too the mother was not present when the

statement was recorded under S.164.

14. Further, the revelations did not come

voluntarily as an accusation from the victim or at the

behest of her mother. The evidence indicates that she

divulged the incident to her friend (DW2) who talked

about it, which ultimately reached the ears of the

school authorities. The incident when brought to the

attention of the school authorities, the mother was

summoned and so was the complaint raised before the

Police and the Child Welfare Bodies. There was no time

for deliberation or false accusation to be made by the

victim against an unconnected person nor was it a

calculated move against the accused. When we are on the

allegations against the other teacher of the very same

Sunday School, we also have to notice the defence set

up through DW-2 of the present allegation having

originated about that other teacher. The evidence led,

indicate that after the incident of 14.12.2013, the

victim missed her periods, which prompted her to

confide about the incident to her friend, DW2. In fact,

therein there was no allegation of penile penetration

or carnal intercourse and the specific complaint was,

of that teacher having inserted his finger into the

vagina of the victim. This could not have resulted in

the victim missing periods; which she would definitely

have been aware of.

15. In this context, we also have to look at

the evidence of DW2. She vouches that she had been told

of the incident by the victim and she communicated it

to her friends and PW2, who in turn informed the school

authorities. PWs.2 and 3 also speaks of the information

having been received as passed on first by the victim

to DW2. DW2 is not studying in the same Sunday School

and it was not even asked to her before Court, whether

she had any acquaintance with the accused. On the

contrary, in cross-examination, she admitted that she

has no acquaintance of either the accused or the other

teacher against whom allegations were raised. Her

attempt, while speaking for the defence, was to say

that it was not the accused but another teacher of the

same Sunday School who molested her friend. However,

PWs.2 and 3 the class teacher and the HM, who heard it

from DW2, neither speak of DW2 having divulged a

specific name nor were they cross-examined on this

aspect. Tested against the evidence of PW1 & PW4, DW2's

statement that PW4, the mother of the victim approached

her to change the name of the accused person, fails to

impress us. The defence also did not put a question to

PW2 as to whether the exact name of the perpetrator was

spoken of by DW2; when both the witnesses accept that

PW2 was informed of the allegation by DW2. It is not as

if we consider a defence witness to be tainted but on a

judicious appreciation of the evidence tendered as a

whole we find no warrant to find the accused having

been wrongly implicated in the crime. DW2's evidence to

the extent of the victim having named another person as

the rapist, in the totality of the circumstances cannot

be believed.

16. The next contention of the accused is

that if at all the offence stands proved, it would not

fall under S.5(f) of the POCSO Act; since the act

complained of is independent of his status as a teacher

of the Sunday School and a Sunday School is not an

educational institution. We are unable to accept such a

contention. What would have been in the contemplation

of the legislature was the possibility of unsuspecting

children being abused sexually by persons who wield

some authority over them, because of a dominant status

enjoyed by them 'vis-a-vis' the child. Either because

of fear instilled, a sense of awe, pure fascination,

simple devotion or the respect commanded; for example,

as would a uniformed officer or a teacher evoke.

We look at Section 5 and the various clauses. A police

officer or a member of the Armed or Security Forces if

commits penetrative sexual assault on a child, it is

treated as aggravated assault, if it is done within

his or the Force's area of jurisdiction, in the course

of his duty or even where he is known and identified

as a member of a uniformed service [clauses (a) and

(b)]. As far as clause (c) is concerned, a public

servant has a duty to the society which he serves,

as an employee of the Government. The aggravated

nature of the offence committed, hence is not limited

to its commission within the jurisdictional area nor

is the knowledge of his holding a public post relevant.

As far as clause (d) is concerned, when the accused is

the management or staff of a Prison or other

institution of confinement, the offence should have

been committed on an inmate since it is only over an

inmate that he wields such authority. Likewise, a

Doctor also has a dominant authority over a child in

a hospital either as an inpatient or a bystander or

visitor. It is only in the specific contextual

circumstances that clauses (d) and (e) insists that

the offence had to be perpetrated on an inmate or

someone in the hospital; which requirement cannot be

imported into the other clauses.

17. We also notice clauses (g) and (h), which

speaks of the commission of such an offence by a gang

or using a deadly weapon or lethal substances thus

instilling a sense of fear and helplessness in the

victim. Though there cannot be any parallel drawn; a

broad co-relation can be made to a concept, recognized

by crime-fighting agencies across the globe, coined

with the term 'Stockholm Syndrome'. It speaks of a

psychological response by which, hostages or abuse

victims develop a bond with their captors or abusers,

even while in captivity or being subjected to abuse.

Likewise, a child subordinated or subservient to a

dominant adult, if sexually molested by that adult, it

is an abuse of the position held or authority wielded

by that person over the child, which the legislature

thought should be severely punished, to enforce

deterrence and hence provided as an aggravated offence

of sexual assault.

          18.     Clause      (f)        of    S.5,    speaks      about      the

management       or   staff    of    a        religious      or   educational



institution        and   the      commission       of       an    offence      of

penetrative        sexual      assault       on    a        child     in    that

institution. This need not be necessarily within such

an institution. It only requires the assault to be

committed on a child in that institution, which means

admitted to that institution and not residing in or

within that institution. A teacher has a special status

in every community and is venerated by not only those

presently tutored but also the past students. At an

impressionable age, it is only natural that the teacher

has sway over his student, as we noticed, for reasons

of fear instilled, awe evoked or fascination,

affection, respect or devotion. A teacher with that

sole status holds a position of authority and influence

over his student. The commission of an offence of

sexual molestation by such a person on his student, a

child, is what is intended to be punished by the above

provision as an aggravated offence. There is no warrant

to interpret the said clause as restricting it to only

instances of such commission of offence when the

perpetrator is engaged in the act of teaching or it is

occasioned within the institution to which the child is

admitted. Also, a Sunday School though does not deal

with a normal curriculum, still is concerned with

moulding the character of a student by imparting moral

lessons and religious training. It is definitely an

educational institution. The accused was in the status

of her teacher in the Sunday School and was also taking

private tuition for her, of subjects in the regular

curriculum. It is the status of a teacher or a staff of

the school in which the student was admitted that is

germane to attract the provision, to term the offence

as an aggravated one. The teacher-student relationship

originated from the Sunday School. In addition to the

offence committed, there is the aspect of it having

been committed by a person with authority over the

victim; which authority is coupled with a

responsibility. This requires the offence to be treated

as of a more grievous nature and hence it is

categorized as an aggravated offence. The accused is a

teacher and the victim a student of the Sunday School,

as spoken of by PW6, the HM and evidenced by the

attendance registers of the staff (Exts.P6&7) and that

of the students (Exts.P8&9). We reject the argument

raised against the offences charged under the POCSO

Act, on the above two counts. The fact that the

offence was committed when the accused, a Sunday School

teacher, was holding private tuition will not take the

offence out of S.5(f) of the POCSO Act.

19. The next contention is concerning the date

of birth. The extract of the Admission Register from

the School which was first attended by the victim; 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

(both supra); drawing support from the Juvenile Justice

(Care and Protection of Children) Rules 2007. Rule 12

of the said rules specify under sub-rule (3)(a)(ii)

that the date of birth certificate from the school

(other than a play school) first attended is sufficient

evidence to determine the age of a child in conflict

with law. Rules of 2007 are no more in force and we see

from the Juvenile Justice (Care and Protection) Act,

2015 that the determination of age is as per S.94(2) in

which clause (i) provides so:

(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;

20. Though under the Act of 2015, there is no

requirement of the certificate to be from the School

first attended, the Hon'ble Supreme Court has

specifically referred to the Rules of 2007 and imported

the same procedure in the case of minor victims as in

the case of minor children in conflict with law. A

Division Bench of this Court in Crl.Appeal No.50 of

2017 [Rajan K.C. v. State of Kerala] after referring to

the Rules of 2007 and the Act of 2015, held: " we

would think that the said rigour (in the Rules of 2007)

has to be applied in cases where the determination of

the age of a minor victim arises; so as to not

prejudice the accused" (sic). The rigour noticed is of

the requirement of the extract of the School Register

to be from the school first attended. The Act of 2015

is one intended for the protection of the juveniles in

conflict with law, just as the criminal justice system

ensures no prejudice being caused to the accused. The

rigorous requirement made by the Hon'ble Supreme Court,

while importing the requirement of the Rules of 2007,

specifically of the date of birth of even a victim

being determined with the certificate from the school

first attended has to survive the repeal of the Rules

of 2007 and we cannot be diluting the requirement. This

also is in consonance with the principle of 'ante

litem motam'.

21. Ravinder Singh Gorkhi v. State of U.P (AIR

2006 SC 2157) held so, on S.35 of the Indian Evidence

Act (para 25), the evidence of an HM based on the

school register (Para 33 to 35) and the evidentiary

value of an extract of the school register in the

absence of the evidence of the person who supplied the

information to be included in the register (Para 37);

extracted herein below:

"23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder:

(i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country, and (iv) all persons concerned indisputably must have an access thereto.

xxx xxx xxx

33. The deposition of the Headmaster of the school in this case did not satisfy the requirements of the law laid down in the aforementioned decisions.

34. Mr.Mishra, however, relied upon Umesh Chandra v. State of Rajasthan [(1982) 2 SCC

202]. Therein a register maintained by a public school of repute had been produced. This Court relied thereupon, opining that Section 35 cannot be read with Sections 73 and 74 of the Evidence Act. If a public school maintains a register in ordinary course of business, the same would be admissible in evidence.

35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.

xxx xxx xxx

37. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission, for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum, e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was minor. A court of law for the purpose of

determining the age of a party to the lis, having regard to the provisions of the Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted".

It was also held: "We are, therefore, of the opinion

that that until the age of a person is required to be

determined in a manner laid down under a statute,

different standard of proof should not be adopted."

(sic-para:38)

22. On the above finding it has to be held

that Ext.P3, extract of the Admission Register of the

School, which was not the first school attended by the

student, cannot be accepted as valid proof of age. We

do not agree with the contention of the learned Special

G.P that there was no challenge made in the

cross-examination of the HM, PW3, and she was not even

questioned as to the correctness of the date. The HM

cannot be questioned on the correctness of the date

since she has no personal knowledge of the date of

birth of the victim. She can only vouch for the entry

in the Register which would have been entered therein

on the information supplied by either the guardian or

the parents. The Register maintained by the School is

not a public document. Ramesh @ Ramesh Kumar was a case

in which the father of the victim had spoken of the age

of the victim. Here, the mother was examined as PW4,

who was not asked the date of birth of the victim, in

chief-examination. We also reject the contention of the

Senior GP that if the accused had questioned the

document and raised a dispute, definitely the

prosecution would have produced a valid birth

certificate. The accused has no obligation to so invite

the prosecution to establish the date of birth of the

victim. It is the prosecution's bounden duty to

establish every material fact and circumstance before

the trial Court. In the above case, no such valid proof

was offered and although the young victim was studying

in a school, we are unable to find her age to be below

16 or even below 18; for reason of no valid proof

offered. It is the failure of the prosecution and they

cannot cover themselves up by alleging that the accused

never raised a dispute. There is no significance in the

mere marking of the document, since its probative value

has to be established, which has to be by primary

evidence, such as direct oral evidence (s.60 of IE Act)

or documentary evidence (S.62 of IE Act) or secondary

evidence in the form recognised by law (S.63 & 65 of

the IE Act). If the document produced by the

prosecution is not a public document or a certified

copy of it, at least there should be oral evidence by a

competent person.

23. Birad Mal Singhvi v. Anand Purohit [1988

Suppl. SCC 604] arose under the Representation of the

People Act, 1951. It was held that the entry regarding

date of birth contained in the school register and the

secondary school examination has no probative value if

no person on whose information the date of birth of the

candidate was entered in the school records was

examined. The entry contained in the admission form or

the school register must be shown to be made based on

the information given by the parents or a person having

special knowledge about the date of birth of the person

concerned. The date of birth of the candidate as

contained in the document must be proved by admissible

evidence ie: by the evidence of those persons who can

vouchsafe the truth of the facts in issue. In the

absence of any such evidence, the document has no

probative value and the date of birth mentioned therein

cannot be accepted. Hence, it can always be proved by

the person who has direct knowledge of the fact in

issue and who has, in the present case, passed on such

information to be entered in the School Register. We

reiterate, the mother was examined, but this crucial

fact was not elicited. We find the document Ext.P3 and

mere statement of HM, PW3, to be insufficient proof

insofar as the date of birth of the victim is

concerned.

24. On the reasoning above, we have to find

the evidence of PW1, the prosecutrix, regarding the

incident of a rape committed on 14.12.2013, by the

accused to be convincing and credible. The incident had

reached the ears of the school authorities through the

friend, to whom she talked about it. The said fact has

been spoken of by PW2 (Class Teacher) and PW3 (HM).

Though DW2, the friend to whom PW1 confided, deposed

that the allegation was made against another teacher,

we have disbelieved that part of her evidence, since it

was not spoken of by the Class Teacher(PW2) to whom DW2

conveyed the information. The prosecution has not

produced any valid proof of age and we hold the same to

have been not established before Court. In such

circumstances, we find the accused not guilty of the

charges levelled against him under S. 376(2)(i) IPC,

treating the victim to be below 16 years and S.5(f) of

the POCSO Act, treating the victim to be a child under

18 years of age. However, the allegation of rape having

been found, the accused has to be convicted under

Section 376(1) IPC, which is a lesser offence with

lesser severity of sentence, which is permissible. We,

hence, convict the accused under Section 376(1) IPC and

impose the punishment of imprisonment for life.

The appeal stands partly allowed.

Sd/-

K. VINOD CHANDRAN, JUDGE

Sd/-

ZIYAD RAHMAN A.A., JUDGE

vku/jma/sp.