IMPORTANT POINTS
The evidence of PW1 does not prove the alleged rape on her by the appellant twice or even once. So is the case with the evidence of PWs 2 to 4. Medical evidence for rape is absent-Did the trial court go wrong. In the process of finding the appellant guilty, the trial court even considered the statement of PW1 recorded under S.161 of Cr.P.C. as seen from paragraph 14 of the impugned judgment. It was legally impermissible. The impugned conviction and sentence cannot be sustained.

JUDGMENT :

A.M. BABU, J.

1. Appellant was the accused in SC 181/2012 on the file of the court of session, Ernakulam division. He was convicted and sentenced under S.376 of the Indian Penal Code(IPC).

2. Prosecution case goes as follows: The appellant committed rape on a girl aged below 12 years on two Sundays in the year 2010. The first incident had taken place in a temporary shed where the appellant was residing then with his family. The second incident of rape was committed by the appellant in his newly constructed house. He enticed the child by giving her money for buying confectioneries and toffees. The child divulged the incidents to her class teacher when the latter who found toffees and a confectionery called sip-up in the school bag of the former and questioned her. The class teacher reported to the headmistress to whom too the child disclosed the incidents. The headmistress informed the matter to the child’s mother.

3. The mother of the child gave the first information statement. It was given and the F.I.R. was registered on 9.9.2011. Investigation was conducted and charge-sheet was filed. The case was committed to the court of session, Ernakulam division. The learned Sessions Judge made over the case to the additional sessions Judge who was notified to hold trials of cases relating to atrocities and sexual violence against women and children.

4. The learned additional sessions Judge, after hearing the prosecution and the defence, framed charge against the appellant under S.376(2)(f) of IPC. The appellant pleaded not guilty to the charge and claimed to be tried.

5. PWs 1 to 13 were examined and Exts. P1 to P10 and Nos. 1 and 2 were marked on the side of the prosecution. The learned trial judge on completion of the prosecution evidence examined the appellant under S.313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and circumstances against him. The trial court found that the appellant was not entitled to acquittal under S.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He examined his wife as DW1.

6. The court below found that S.376(2)(f) of I.P.C. was not attracted since the said provision came into effect only on 13.2.2013, that is, only subsequent to the commission of the offence by the appellant. Finding that the appellant committed the offence of rape, he was convicted under S.376 of I.P.C. He was sentenced to imprisonment for life and a fine of Rs.50,000/-. Sentence in default of payment of fine was also imposed.

7. Heard Sri.K.K.Dheerendrakrishnan, the learned counsel for the appellant and Smt.S.Ambika Devi, the learned public prosecutor.

8. The prosecution contended that the victim girl was under 12 years of age at the time of commission of the crime on her. The learned counsel for the appellant submitted that the prosecution failed to prove the age of the girl to be 12 years or below at the time of the alleged incidents. The prosecution did not produce the extract of the birth register or the extract of the school admission register or any other similar document to prove the age of the victim. What was produced and exhibited was a certificate issued by PW5 who was the headmistress of the school where the victim was a pupil at the time of investigation of the case. The certificate was marked as Ext. P2. PW5 prepared and signed Ext P2 and gave it to the investigating officer. The same can be treated only as a statement of PW5 given to the investigating officer under S.161 of Cr.P.C, although signed. Ext P2 is therefore hit by S.162 of Cr.P.C and is not admissible in evidence. It is liable to be discarded.

9. But the prosecution is not without evidence to prove the age of the girl. Her mother who was examined as PW2 spoke that the date of birth of the child was 29.6.1999. Being the mother, PW2 was the person who had direct knowledge about the date of birth of her daughter. The evidence of PW2 that her daughter was born on 29.6.1999 was not challenged