Point of law :Date of Birth – Proof of - 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

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