Beerendra Singh Dhakker vs State Of Kerala
2024 Latest Caselaw 27150 Ker

Kerala High Court

Beerendra Singh Dhakker vs State Of Kerala on 11 September, 2024

                                                     2024:KER:68395



             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

              THE HONOURABLE MRS. JUSTICE C.S. SUDHA

WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA, 1946

                       CRL.A NO. 33 OF 2016

         AGAINST THE ORDER/JUDGMENT DATED 11.11.2015 IN SC

NO.696 OF 2014 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT

                    CLAIMS TRIBUNAL, KASARAGOD

APPELLANT/ACCUSED:

          BEERENDRA SINGH DHAKKER
          AGED 24/14,
          S/O.INDRAPAL DHAKKER, ITTWAYI BANG ROUDH,
          VIJAYAPUR TALUK, SHIYOPORE DISTRICT,
          MADHYA PRADESH

          BY ADVS.
          SRI.RENJITH B.MARAR
          SMT.B.DEEPALAKSHMI
          SMT.LAKSHMI.N.KAIMAL
          SMT.RESHMI JACOB


RESPONDENT:

          STATE OF KERALA
          REP. BY THE INSPECTOR OF POLICE, NILESHWARAM,
          THROUGH THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM 31.

          SRI.VIPIN NARAYAN, SR.PP
     THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON   02.09.2024,    THE   COURT   ON    11.09.2024   DELIVERED   THE
FOLLOWING:
                                                               2024:KER:68395
CRL.A NO. 33 OF 2016

                                       2



                              C.S.SUDHA, J.
             -------------------------------------------------------
                    Criminal Appeal No.33 of 2016
             -------------------------------------------------------
              Dated this the 11th day of September 2024

                             JUDGMENT

In this appeal filed under Section 374(2) Cr.P.C., the appellant,

who is the accused in S.C. No.696/2014 on the court of Session,

Kasaragod, challenges the conviction entered and sentence passed

against him for the offences punishable under Sections 376(2)(n)

and 506(ii) IPC and Section 5(l) read with Section 6 of the PoCSO

Act.

2. The prosecution case as stated in the final report/charge

sheet:- PW2 aged 13 years, is the daughter of CW4, Saraswathy

through her first husband (CW3 Ukkam Singh is her second

husband). The accused induced PW2 to join him on the promise of

marriage. He threatened her that if she did not agree to the marriage,

he would do away with her family and thus compelled PW2 to join 2024:KER:68395 CRL.A NO. 33 OF 2016

him on 03/07/2014 at 11:00 a.m. The accused took PW2 to

Malappuram district and they stayed at two places in Vattamkulam

Village, during which he repeatedly raped PW2. Hence, the accused

was alleged to have committed the offences punishable under

Section 366A, 506(ii), 376(2)(n) IPC and Section 5(l) read with

Section 6 of the PoCSO Act.

3. On the basis of Ext.P1 FIS given on 03/07/2014 at 12:50

p.m. by PW1, the paternal uncle of PW2, recorded by PW18, the

then Assistant Sub Inspector of Police, Neeleswaram police station,

Crime no.287/2014 was registered, that is, Ext.P14 FIR under

Section 57 of the Kerala Police Act, 2011. Thereafter, investigation

was conducted by PW23, the then Circle Inspector who, on

completion of investigation, submitted the charge sheet alleging the

commission of the offences punishable under the aforementioned

sections.

4. The trial court on 31/12/2014 framed a charge for the

offences punishable under Sections 366A, 506(ii) and 376(2)(n) IPC 2024:KER:68395 CRL.A NO. 33 OF 2016

and Section 5(l) read with Section 6 of the PoCSO Act which was

read over and explained to the accused to which he pleaded not

guilty. On behalf of the prosecution, PWs.1 to 23 were examined

and Exts.P1 to P24 and MO1 to MO5 were got marked in support of

the case. After the close of the prosecution evidence, the accused

was questioned under Section 313(1)(b) Cr.P.C. regarding the

incriminating circumstances appearing against him in the evidence

of the prosecution. The accused denied all those circumstances and

maintained his innocence.

5. As the trial court did not find it a fit case to acquit the

accused under Section 232 Cr.P.C., he was asked to enter on his

defence and adduce evidence in support thereof. No oral evidence

was adduced by the accused.

6. On a consideration of the oral and documentary evidence

and after hearing both sides, the trial court by the impugned

judgment found the accused guilty for the offences punishable under

Sections 506(ii) and 376(2)(n) IPC and Section 5(l) read with 2024:KER:68395 CRL.A NO. 33 OF 2016

Section 6 of the PoCSO Act. He has been sentenced to rigorous

imprisonment for 10 years and to a fine of ₹50,000/- and in default

of payment of fine to rigorous imprisonment for six months for the

offence punishable under Section 376(2)(n) IPC; to rigorous

imprisonment for 10 years and to a fine of ₹50,000/- and in default

of payment of fine to rigorous imprisonment for six months for the

offence punishable under Section 5(l) read with Section 6 of the

PoCSO Act and rigorous imprisonment for one year for the offence

punishable under Section 506(ii) IPC. The accused has been

acquitted under Section 235(1) Cr.P.C. for the offence punishable

under Section 366A IPC. He has been granted set off under Section

428 Cr.P.C. Aggrieved, the appellant/accused has come up in appeal.

7. The only point that arises for consideration in this appeal

is whether the conviction entered and sentence passed against the

accused by the trial court are sustainable or not.

8. Heard both sides.

9. It was submitted by the learned counsel for the 2024:KER:68395 CRL.A NO. 33 OF 2016

accused/appellant that the prosecution has failed to prove that PW2

was a minor at the time of the incident. Ext.P17 report of PW20 and

Ext.P12 certificate are inadmissible pieces of evidence to prove the

date of birth of PW2. The testimony of PW2 shows that she had

voluntarily joined the accused and that there was consent for coitus.

Hence, no offences as alleged by the prosecution are made out. Per

contra, it was submitted by the learned Public Prosecutor referring

to the testimony of PW2 that the questions put to PW2 in the cross-

examination itself is suggestive of the fact that rape did take place

or that coitus took place without the consent of PW2 and that she

was put under fear and threat and that despite her resistance, she

was subjected to coitus.

10. The prosecution relies on the testimony of PWs 1, 2, 5, 8

and 9 to prove the prosecution case. PW1, the paternal uncle of

PW2, is the informant, who gave Ext.P1 FIS. In Ext.P1, PW1 states

that his brother Ukkam Singh's(CW3) 16 year old daughter(PW2)

has gone missing. The accused, who is one of the workers of his 2024:KER:68395 CRL.A NO. 33 OF 2016

brother, is also missing. When his brother Ukkam Singh tried to

contact the accused on his mobile, there was no response. They

suspect that the girl has gone with the accused.

10.1 PW2, the victim, when examined deposed that on

03/07/2014, she joined the company of the accused under his threat

and intimidation. The accused took her to Cheruvathur, Kasaragod

and Goa. When she refused to join the accused, the latter threatened

that he would do away with her parents and brother. When the

accused took her from her home, her mother (CW4) was sleeping

and there was nobody else at home. The accused took her to Goa

and told her that they would stay in a lodge to which she disagreed.

As insisted by her, they returned to Kerala by train and got down at

Kuttippuram. The accused then took her to his friend Sanjay's rented

place. In the night of the said day the accused came home drunk and

applied sindoor on her forehead. Despite her resistance, he subjected

her to coitus. On the next day, he took her to another rented place at

which place also he raped her. MO1 and MO2 are her dress and 2024:KER:68395 CRL.A NO. 33 OF 2016

MO3 to MO5 are the dress worn by the accused during the incident.

Though she expressed her desire to return home, the accused did not

agree to the same. He also did not permit her to use the phone. In

the cross-examination, she deposed that she does not know her date

of birth; that she had studied till 4th standard; that she does not

remember the year in which she dropped out of school; that though

she had opportunity/occasion to escape, she did not make any such

attempt(s) because the accused had threatened to kill her family;

that she had stated to the police that the accused had threatened her;

that she did not resist when the accused raped her; that the accused

raped her for the first time at the quarters of his friend Sanjay; she

had bled at the time of the incident; that she does not know whether

her clothes or the clothes of the accused had been stained due to

bleeding and that she was never in a relationship with the accused.

PW2 denied the suggestion that she had eloped with the accused due

to the said relationship and that she was above 19 years at the time

of the incident. PW2 also admitted that while they had stayed at the 2024:KER:68395 CRL.A NO. 33 OF 2016

quarters of Sanjay, his family as well his workers were also residing

there.

10.2. PW5 deposed that on 03/07/2014 at about 10:30

a.m. the accused and PW1 [sic] had travelled in his autorickshaw

from Nedumba to Cheruvathur. In the cross-examination he

deposed that he did not feel anything unusual when the accused and

the girl travelled in his autorickshaw, that their behaviour was quite

normal and that the girl was wearing a churidar.

10.3. PW8 deposed that he has 11 rooms which he gives

on rent. The accused on 27/07/2014 had taken one of his rooms on

rent for a period of 7 days. The accused was accompanied by a girl

who was introduced as his wife. According to PW8, the girl looked

around 17 years of age.

10.4. PW9, a tenant of one of the rooms of PW8, deposed that

he had seen the accused along with a lady residing in one of the

rooms situated adjacent to his rented room for a period of about 7

days. Thereafter, they were taken away by the police.

2024:KER:68395 CRL.A NO. 33 OF 2016

11. I shall first consider whether the prosecution has been

able to prove that PW2 was a minor at the time of the incident. The

accused contended that PW2 was above 18 years; that they were in

a relationship for quite sometime; that PW2 had willingly joined

him and that she later on changed her stand due to the pressure and

compulsion of her parents who wanted to marry her off to a third

person. In Ext.P1 FIS given by PW1, who is none other than her

paternal uncle, the age of PW2 is stated to be 16 years. In the final

report/charge sheet filed before the court, PW2 is stated to be 13

years. The prosecution relies on the testimonies of PW14, PW20

and Exts.P12 and P17 to prove the age of PW2. The trial court

rejected Ext.P12, finding it to be an inadmissible piece of evidence.

Ext.P12 dated 05/08/2014 is a certificate issued by the Headmaster,

Govt. Primary School, Parsotta, Pahadgad. In Ext.P12, it is certified

that PW2 is the daughter of one Ram Lakhan Thakkur who had

joined the school on 02/07/2007 and that her date of birth is

28/07/2001. PW14, a senior civil police officer during the relevant 2024:KER:68395 CRL.A NO. 33 OF 2016

time, deposed that as directed by the investigating officer, he

proceeded to Parsotta in Madhya Pradesh and obtained Ext.P12

certificate from CW22. CW22 was never examined before the

court. Ext.P12 is apparently a statement given by a witness, namely,

CW22, to the police during the course of investigation and therefore

the bar under Section 162 Cr.P.C is clearly attracted and hence

makes it inadmissible in evidence. The learned Public Prosecutor

made no attempts to challenge the finding of the trial court that

Ext.P12 is an inadmissible piece of evidence.

12. Now coming to the testimony of PW20 and Exts.P17 to

P19, PW20 deposed that on 02/06/2015, while he was working as

Professor, Forensic Medicine, Pariyaram Medical College, he had

examined PW2 for determination of her age. Taking into account

Exts.P18 and P19 X-ray reports and the height and weight of the

girl, he is of the opinion that PW2 was above 16 years but below 18

years on the date of her examination. Ext.P17 is the report given by

him. In Jarnail Singh v. State of Haryana, AIR 2013 SC 3467, it 2024:KER:68395 CRL.A NO. 33 OF 2016

has been held that on the issue of the determination of age of a

minor, one needs to make a reference to Rule 12 of the Juvenile

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

reads-

"12. Procedure to be followed in determination of age. (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2)The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3)In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking 2024:KER:68395 CRL.A NO. 33 OF 2016

evidence by obtaining-

(a)(i)the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii)the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii)the birth certificate given by a corporation or a municipal authority or a panchayat;

(b)and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board of, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i),

(ii), (iii) or in the absence whereof, clause (b) 2024:KER:68395 CRL.A NO. 33 OF 2016

shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

(4) xxxxxx (5) xxxxxx (6) xxxxxx

The Apex Court referring to Rule 12 held that, even though

Rule 12 is strictly applicable only to determine the age of a child in

conflict with law, the aforesaid statutory provision should be the

basis for determining age, even for a child who is a victim of crime

as there is hardly any difference in so far as the issue of minority is

concerned, between a child in conflict with law, and a child who is a

victim of crime. In the scheme of Rule 12(3), matriculation (or

equivalent) certificate of the concerned child, is the first option. In

case, the said certificate is available, no other evidence can be relied

upon. Only in the absence of the said certificate, Rule 12(3),

envisages consideration of the date of birth entered, in the school

first attended by the child. In case such an entry of date of birth is

available, the date of birth depicted therein is liable to be treated as 2024:KER:68395 CRL.A NO. 33 OF 2016

final and conclusive, and no other material is to be relied upon.

Only in the absence of such entry, Rule 12(3) postulates reliance on

a birth certificate issued by a corporation or a municipal authority or

a panchayat. Yet again, if such a certificate is available, then no

other material whatsoever is to be taken into consideration, for

determining the age of the child concerned, as the said certificate

would conclusively determine the age of the child. It is only in the

absence of any of the aforesaid, that Rule 12(3) postulates the

determination of age of the child concerned, on the basis of medical

opinion.

13. PW20 apparently is not the authority referred to in Rule

12(3)(b) to determine the age of the child. That being so, neither the

testimony of PW20 nor Exts.P17 to P19 can be relied on by the

prosecution to prove the age of PW2. (see also Mahadeo v. State of

Maharashtra (2013) 14 SCC 637).

14. Now what remains is the question of consent. Consent

has not been defined in IPC. Section 90 IPC though does not define 2024:KER:68395 CRL.A NO. 33 OF 2016

'consent', describes what is 'not consent'. Section 90 IPC deals with

consent known to be given under fear or misconception. It says that

consent is not such a consent as is intended by any Section of the

Code, if consent has been given by a person under fear of injury or

under misconception of fact and if the person doing the act knows,

or has reason to believe, that the consent was given in consequence

of such fear or misconception. Consent may be express or implied,

coerced or misguided, obtained willingly or through deceit. If the

consent is given by the prosecutrix under a misconception of fact, it

is vitiated. Consent for the purpose of Section 375 IPC requires

voluntary participation not only after the exercise of intelligence

based on the knowledge of the significance and moral quality of the

act, but also after having fully exercised the choice between

resistance and assent. Whether there was any consent or not is to be

ascertained only on a careful study of all the relevant circumstances.

In Vijayanpilla v. State of Kerala, 1989 KHC 577, it has been

held that consent supposes three things - a physical power ; a mental 2024:KER:68395 CRL.A NO. 33 OF 2016

power and a free and serious use of them. Hence, if consent was

obtained by intimidation, force, mediated imposition,

circumvention, surprise or undue influence, it is to be treated as a

delusion, and not as a deliberate and free act of the mind. In Sunil

Kumar v. State of Kerala, 2013 KHC 468, it was held that there

can be no straitjacket formula in ascertaining whether there is

consent in a particular case. A decision has to be arrived at on the

basis of the facts and circumstances of each case and in the light of

the evidence adduced in the case.

15. PW5 is the auto-rickshaw driver in whose vehicle the

accused and PW2 had travelled on the said day. As noticed earlier,

PW5 deposed that he did not feel anything unusual when he saw the

couple who travelled in his vehicle. The testimony of PW8 and

PW9 also does not show that PW2 was under any sort of threat or

intimidation. PW2 admits that while they had stayed in the house of

Sanjay, a friend of the accused, the family of the former as well as

his friends were also residing in the said house. PW2 admits that she 2024:KER:68395 CRL.A NO. 33 OF 2016

had opportunities of escaping, but made no attempts to do so

because she was threatened by the accused that he would wipe off

her entire family. It is quite interesting to note that CW3 and CW4,

the stepfather and mother of PW2, though very much present in the

court were never examined even to prove the age of PW2. The

finding of the guilt of the accused depends solely on the testimony

of PW2 regarding consent as the prosecution has failed in proving

PW2 to be a minor at the time of the incident. However, the

testimony of PW2 does not inspire confidence in the mind of the

court as she admits that the accused had taken her to several places

like Cheruvathur, Kasaragod, Goa etc. According to her, the accused

wanted to stay in a lodge in Goa. However, she did not agree to the

same. Therefore, they came back by train and went to Neeleswaram

and stayed in rented places. The testimony of PW2 does not make

out any such situation in which she was unable to seek outside help.

There were several other persons in and around PW2 and therefore

it appears that she could have made attempt(s) to escape or inform 2024:KER:68395 CRL.A NO. 33 OF 2016

others in case she was being kept in illegal confinement or under

threat or coercion by the accused. No such attempt is seen made by

PW2. That being the position, I find that the accused is entitled to the

benefit of doubt. Therefore, the finding of the trial court that there

was no consent of PW2 and that consent was given under fear, threat,

intimidation etc., does not appear to be correct on the basis of the

materials on record. Hence, an interference into the impugned

judgment is called for.

In the result, the appeal is allowed. The impugned judgment is

set aside. The conviction and sentence passed in S.C.No.696/2014

against the accused under Sections 376(2)(n) and 506(ii) IPC and

Section 5(l) read with Section 6 of the PoCSO Act is set aside. The

accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty

and his bail bond shall stand cancelled.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

C.S.SUDHA JUDGE NP