1. The appellant was the first accused in S.C. No.310 of 2011 and S.C. No.311 of 2011 on the files of the Principal Assistant Sessions Court, Kollam. By judgment dated 22.12.2015, the appellant was found guilty for the offences punishable under sections 366A and 372 of the Indian Penal Code, 1860 (for short ‘the IPC’). All the remaining accused who faced trial were acquitted. Aggrieved by the conviction and sentence imposed on the first accused, this appeal has been preferred.

2. The prosecution alleged that the first accused had procured the minor victim and after acting as a pimp, introduced the victim for remuneration, to accused 2 to 11 and 16 to 19, all of whom raped her. It was also alleged that the first accused for commission, entrusted the victim to accused 12 to 15, who made her available to other men at the military quarters and lodges. The prosecution had in the final report also alleged that the first accused repeatedly ponced the victim and offered her to satiate the lust of the other accused and thereby committed the offences under sections 366A, 376, 377 and 372 read with section 34 of the IPC apart from sections 5 and 8 of the Immoral Traffic (Prevention) Act, 1956. The incident is alleged to have taken place during the period from March to April 2004.

3. Since accused No.12 was committed to the Sessions Court separately, two sessions case numbers allotted initially, as S.C. No.310 of 2011 and S.C. No.311 of 2011, were subsequently clubbed together during trial.

4. The prosecution in an attempt to prove their case, examined PW1 to PW41 and marked Ext.P1 to Ext.P50, while the defence examined DW1 and marked Ext.D1 to Ext.D47. Ext.C1 and Ext.C2 court exhibits were also marked. After analysing the evidence adduced in the case, the trial court, by the impugned judgment, found the first accused guilty as mentioned earlier and was sentenced to undergo rigorous imprisonment for a period of eight years and to pay a fine of Rs.3,00,000/- for the offence under section 366A IPC. She was also sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs.2,00,000/- for the offence under section 372 IPC. Default sentences were also imposed. The remaining accused were acquitted. As there is no challenge against the judgment of acquittal of any of the accused, this appeal is only in respect of the first accused.

5. Sri. Sarath Babu, the learned counsel for the appellant submitted that no evidence had been adduced by the prosecution to prove the guilt of the accused. It was also submitted that even if the prosecution allegations are accepted in toto, still, it would only reveal that the victim had, on her own, gone with the other accused and that the first accused had no role as alleged. The learned counsel further submitted that there was no evidence to prove the age of the victim and hence the prosecution had failed to prove the main ingredient of the alleged offences and therefore the accused ought to have been acquitted.

6. Sri. K.A. Noushad, the learned Public Prosecutor on the other hand submitted that the incident as revealed through the prosecution case reflects a horrendous crime and hence no leniency should be shown to the accused. It was also pointed out that the prosecution proved without any doubt that the first accused had enticed the victim and seduced her to indulge in illicit intercourse with several persons including the other accused and since the victim was less than 18 years in age, the offence alleged against the appellant stands proved and therefore there is no reason to interfere with the impugned judgment. The learned Prosecutor further argued that the evidence adduced by the prosecution proved the minority of the victim and in the light of the evidence adduced, the same was sufficient under law to attract the vice of the offences alleged.

7. I have considered the rival submissions and have also analysed the prosecution evidence adduced in the case.

8. The three questions that require to be considered are (i) Whether the victim was a minor at the time of the incident? (ii) Whether the offence under section 366A IPC is made out from the evidence adduced?, and (iii) Whether the offence under section 372 IPC has been proved by the prosecution?

9. The victim was the daughter of PW1. After the incident in the instant case, the victim was murdered by her own brother on 31.01.2005, as is evident from Ext.D16. Since the victim was murdered prior to the commencement of trial, she could not be examined as a witness in this crime. Therefore the prosecution evidence rests on the testimonies of PW1 to PW41.

10. Before considering the contentions advanced, and the three issues mentioned above, it is appropriate to dwell upon, briefly, the relevant evidence adduced by the prosecution. PW1, the mother of the victim, had deposed that her daughter died on 31.01.2005, when she was only 15 years old. She also deposed that the first accused used to take the victim from her house several times after inducing her, that too, when she was only 14 years old. The said witness also deposed that her daughter - the victim had told her that the first accused had seduced and took her and also that she was present when the victim informed the police about the first accused having seduced her. The said witness also deposed that the first accused was residing in another house in close proximity to theirs, and whenever the victim did not go to school, the first accused would induce and take her from their house. She also deposed that the victim was taken by the first accused to the military camp and subjected her to sexual abuse with other accused.

11. The grandmother of the victim, who was examined as PW2 also deposed that she had seen the victim several times in the house of the first accused and whenever she went missing, she was always traced out from the house of the first accused. PW3, the brother of the victim, who had murdered the victim on 31.01.2005, also deposed that the house of the first accused was nearby and that he had often seen the first accused interacting with the victim. He further deposed that the first accused used to come to their house to talk with the victim. He identified the signature of the victim in Ext.P1 First Information Statement as well as that in Ext.P2 statement under section 164 Cr.P.C. PW4, the sister of the victim’s mother, also deposed that when it came to her knowledge that the victim was not attending school, she enquired about it and soon realised that the victim was always in the house of the first accused. According to the said witness, when she went to the house of the first accused, she saw the victim sitting along with the first accused watching an adult video. She also deposed that on another occasion, when the victim was not seen in their house, she went to the house of the first accused and saw two boys coming out of that house. According to her, the victim used to go with the first accused and used to return after two or three days.

12. PW5, who is the brother of the landlord of the house where the first accused was allegedly staying, gave evidence that her sister owned the house which was given on rent by him to the first accused and she stayed there for four months and since there were complaints by the locals about various persons coming to that house in cars, the first accused was asked to vacate the house. PW6, who is the manager of a tourist home, deposed that the victim along with the fifth and eighth accused had come and taken room in their lodge and though they insisted on having a single room for all three of them, she refused and insisted on taking two rooms. It was also deposed that though two rooms were taken, all three of them went into the same room and this was objected to by her. She also deposed that the victim had come there on earlier occasions wearing a ‘pardha’ with other persons.

13. PW34 was the Sub Inspector of Kottiyam Police Station through whom the defence marked Ext.D36 medical certificate wherein the victim’s statement to the Doctor that the first accused had taken her to different places and forced her to indulge in sexual intercourse with various persons, is recorded. PW36 is the Judicial First Class Magistrate, Kottiyam who had recorded Ext.P2 statement under section 164 CrPC. PW39 is the Headmaster of the school where the victim had studied and through whom Ext.C1 date of birth certificate was marked. PW40 was the Vicar of the Church who issued Ext.C2 baptism certificate.

14. The prosecution thus attempted to portray through the evidence adduced, the situation of a child who was allegedly violated through a deliberate process of seduction and control with multiple individuals allegedly exploiting the vulnerability of the minor. In the centre of these allegations stands the first accused - a woman, who allegedly transformed the trust reposed on her for enabling repeated sexual abuses on the minor. Bearing in mind the above allegations and the evidence, the three issues raised mentioned earlier are considered in the succeeding paragraphs.

Issue No. (i) Whether the victim was a minor at the time of the incident?

15. Though the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted prior to the incident in the instant case, its Rules were framed only in 2007 titled as the Juvenile Justice (Care and Protection of Children) Rules, 2007, (for short ‘the Rules 2007’). Relying upon the recent decision of the Supreme Court in Om Prakash @Israel@ Raju @ Raju Das v. Union of India [(2025 INSC 43], the learned Counsel for the appellant had argued that though the incident in the instant case occurred prior to the coming into force of the 2007 Rules, still, those rules are to be applied retrospectively and hence the date of birth of the victim had not been proved in accordance with law. I am afraid I cannot agree with the said argument. In Om Prakash (supra), the Supreme Court was considering only the question regarding juveniles in conflict with law and not that of a victim. It had also been observed in that decision that an admission is also a form of evidence, indicating that the rules of evidence are not effaced wholly from consideration, despite the statutory enactment.

16. The mode of determination of age of a victim has been a contentious subject and some obscurity exists regarding the mode of proof required. In Jarnail Singh v. State of Haryana [(2013) 7 SCC 263], while considering the impact of the Rules 2007, it was held that the age of a victim of a crime should also be determined on the basis of the said rules. However, in Silvester Pigaruz v. State of Kerala [2024 KER 9026], a Division Bench of this Court held that the judgment in Jarnail Singh cannot be understood as laying down a proposition that the age of the minor victims in cases of rape and sexual assaults, is to be established only in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 or in terms of the subsequent legislation namely, the Juvenile Justice (Care and Protection of Children) Act, 2015, notwithstanding the provisions contained in the Evidence Act and the various judgments of the Apex Court rendered prior to Jarnail Singh. Similarly, in Biju v. State of Kerala [2024 (2) KLT 130], another Division Bench of this Court had observed that the JJ Act does not preclude a court from determining the age of a victim based on evidence admissible under the Indian Evidence Act. Relying upon the above two decisions, this Court had, in Suresh K. v. State of Kerala [2025 KHC OnLine 1299] held, after referring to the definition of the word proved under the Indian Evidence Act that the age of a victim even under the POCSO Act can be determined by any of the modes under law and not necessarily only as per the Juvenile Justice Act. Thus, reliance upon the Rules 2007 is not the only mode of determination of age. As observed in the above three decisions of this Court as well as that in Om Prakash (supra), the principles of the law of evidence can also be adopted to determine the age of a victim of a crime.

17. Coming to the facts of the instant case, it needs to be borne in mind that both the offences for which the first accused have been found guilty by the trial court are attracted, only if the victim was a minor at the time of incident, i.e. less than eighteen years in age. Moreover, as long as the victim was a minor, unlike under the POCSO Act, where the extent of punishment varies with the age of the victim, the exact date has no bearing unless the victim was close to attaining majority. In the instant case, such a situation does not exist, as is discussed below.

18. PW1 had explicitly stated that the victim was only 14 years in age at the time of the incident and 15 years at the time of her death. The said evidence went unchallenged. Ext.C1 is the extract of the Admission Register of the school, where the victim studied, which was marked through PW39, the Headmaster. The date of birth in Ext.C1 is recorded as 03.02.1990. Ext.C2 is the Baptism certificate marked through PW40, the Vicar of the Church, wherein her date of birth is recorded as 04.02.1990. The discrepancy in the dates in both those certificates cannot be fatal to the prosecution case as the difference is only one day and considering the nature of offence alleged, that discrepancy is immaterial. If reliance is placed on either of those dates, still, the victim remained a minor on the date of incident. Moreover, considering the nature of offences alleged against the first accused, as long as the victim was a minor, consent of the victim had no bearing. Thus, this Court is of the view that the victim was a minor at the time of commission of the alleged incident in the instant case.

Issue No. (ii). Whether the offence under section 366A IPC is made out from the evidence adduced?

19. Section 366A IPC deals with procuration of a minor girl with intent that she may be forced or seduced to illicit intercourse with another person. The said provision is attracted even if the means for procuring her were legal or illegal. What is significant is that if a minor girl is induced or seduced to illicit intercourse with another person, even if it is evident that the minor girl was willing, still, the offence gets attracted. Inducing a minor girl to move from place to place or do any act with intent that she will be forced or seduced to have illicit intercourse with another person is the core requirement of the offence. The title to Section 366A IPC is procuration of a minor girl. The essential ingredient is inducement of a minor girl to go from any place or to do any act with intent that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. Even if the minor girl had willingly accompanied the accused for the purposes mentioned in the provision, still, the offence under section 366A IPC will be attracted, provided there was inducement from the side of the accused. Under Section 366A of IPC, "inducement" without any compulsion or threat or abduction would suffice. A mere deviation from the path of virtue by a minor girl would not attract the offence under section 366A IPC. What is relevant to attract the said offence is the inducement to stray from the path of virtue.

20. The prosecution is, no doubt, handicapped without the evidence of the minor, as she was murdered by her own brother within a year of the incident in question. Nevertheless, if the prosecution evidence proves the existence of the ingredients of the offence alleged, the accused can be held to be guilty. In the instant case, the evidence of PW1, PW2, PW3 and PW4 reveals that they have often found the accused sitting with the victim and if given an opportunity, the victim was always in the house of the first accused with whom she was watching pornographic videos. PW4 has also seen the victim sitting inside the house of the first accused watching pornographic videos. Ext.D44 showed multiple old healed tears on the hymen of the victim. Thus the evidence of PW6, PW7 and PW33 prove that the victim had been subjected to sexual intercourse with different persons.

21. In the first information statement, which was marked through PW3, the victim is alleged to have narrated as to how the first accused initiated her to watch pornographic video together and while they were watching it, she pressed on her breasts and disrobed the victim and titillated and fingered her and even informed her that if she does those things as seen on the video with other men, she will be able to garner a large amount of money and that she can even make such arrangements for her. In this context, it has to be borne in mind that the FIR though marked in evidence, the first informant i.e. the victim, had not given evidence in court as she was not alive when the trial started. A mere production of the first information statement in the court or its marking as an exhibit during trial, will not render the contents of the first information statement admissible in evidence. The marking of the FIS will only prove that such a document was in existence. The existence of the facts stated in the FIS will have to be proved independently by the first informant narrating those facts in court. The facts narrated in the FIS, if relevant or is a fact in issue in a case, it has to be proved through evidence admissible in a court of law. Reference to the decisions in Ramji Dayawala & Sons (P) Ltd. v. Invest Import, [(1981) 1 SCC 80], Mohanan v. State of Kerala [2011 (3) KHC 680] and Mujeeb Rahman v. State of Kerala [2020 (3) KHC 400] are relevant. Thus the narration in Ext.P1 FIS, having not been proved through the informant, the contents of the said exhibit cannot be relied upon by this Court.

22. Ext.P2 is the statement of the victim which was recorded under section 164 Cr.P.C. by PW36, the Judicial First Class Magistrate-I, Kollam on 10.06.2004. However, since the victim had not been subjected to cross- examination, the said statement also cannot be used for any purpose. Even otherwise, a statement under section 164 of the Cr.P.C is not substantive evidence and can be used only for contradiction or corroboration of the witness. Reference to the decisions in George @Vakkachan v. State of Kerala [(1998) 4 SCC 605] and R. Shaji v. State of Kerala [(2013) 14 SCC 266] is relevant.

23. Notwithstanding the above, PW1 had, in her evidence, deposed that her daughter was only 14 years in age at the time of the incident and that the first accused had taken her away from their house. In her cross-examination, she deposed that after the first accused took her from her house and later two boys along with her daughter were caught by the Kollam East Police and when PW1’s sister went to the police station to take back the victim, it was learnt from the police station that two other boys had released her from the police station. PW1 also deposed that while her daughter - the victim was alive, she had informed her that the first accused had seduced her and also that she had even heard her daughter telling the police that the first accused had seduced her and had taken her to the military camp for sexually assaulting her. Though the learned counsel pointed out that there were certain contradictions in the statements of witnesses which have been marked as Ext.D1 to Ext.D15, Ext.D17 to Ext.D31 and Ext.D37 to Ext.D43, those contradictions are not sufficient to doubt the veracity of the prosecution case as against the first accused.

24. As per section 59 of the Indian Evidence Act, 1872 ( for short ‘the IE Act’) all facts, except the contents of documents or electronic records may be proved by oral evidence. As per section 60 of the IE Act, oral evidence must, in all cases whatever, be direct. That is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. As the victim had narrated to her mother PW1 that the first accused had induced her and taken her to various places for indulging in sexual intercourse with other persons, there is no reason or any material to disbelieve her evidence. On an appreciation of the evidence of PW1 to PW4, it can be concluded that the first accused had seduced the victim and the evidence of PW7 and PW35 proves that the victim was subjected to illicit intercourse. In fact in Ext.D44, it is mentioned that the hymen showed multiple old healed tears. On the basis of the above evidence, it is clear that the first accused had procured the victim for unlawful purposes apart from immoral purposes, thereby satisfying the requirements of section 366A IPC. Thus, it can safely be concluded that the first accused had committed the offence under section 366A of IPC.

Issue No. (iii). Whether the offence under section 372 IPC has been proved by the prosecution?

25. The trial court had held the first accused was found guilty for the offence under Section 372 IPC also, after finding that the appellant was responsible for exploitation of the victim who was used for prostitution. However, in coming to the said conclusion, the trial court erred in failing to note the object of section 372 IPC. The said provision makes the act of selling, letting on hire or otherwise disposing of any person under the age of eighteen years with intent that the said person be employed for or used for the purposes of prostitution or illicit intercourse with any person or for any unlawful and immoral purposes, or knowing it to be likely that such person will be employed or used for any such purpose as mentioned above. In order to bring home the guilt of the offence under section 372 IPC, the prosecution has to prove that there was a sale or letting on hire or otherwise disposal of a person who is under the age of eighteen and such sale or letting on hire or disposal must have been with intent or knowledge or likely that the person shall at any age be employed or used for the purposes of prostitution or illicit intercourse with any person or for any unlawful or immoral purposes.

26. Thus the primary requirement to attract the offence under section 372 IPC is proof of sale or hire or transfer of possession of a person. The provision targets the menace of children being used for unlawful and immoral purposes. To attract the offence, it is not necessary that the unlawful or immoral purpose using the minor had already taken place as even such a future activity will attract the penal provision. But what is essential is that there must have been a sale, letting on hire or otherwise disposing of that person for the unlawful or immoral purpose.

27. On an appreciation of the evidence adduced by the prosecution, there is not even a whisper by any of the witnesses except PW2 or any other evidence on record to indicate that the minor girl was sold or let on hire or otherwise disposed of, for the purpose of any unlawful activity or immoral purposes. Even the evidence of PW2 that the dress and gold of the victim were given by those who made money using her, is not sufficient to attract the offence. In the absence of any evidence adduced by the prosecution to prove sale or otherwise disposal of or letting on hire of the minor, the finding of guilt of the accused under section 372 IPC is without any basis and cannot be sustained.

In the result:

                  (a).     The finding of guilt, conviction and sentence imposed upon the appellant/first accused in S.C. No.310 of 2011 on the files of the Principal Assistant Sessions Court, Kollam for the offence under Section 372 IPC is set aside.

                  (b).     The finding of guilt, conviction and sentence including the fine imposed on the appellant/first accused in S.C. No.310 of 2011 on the files of the Principal Assistant Sessions Court, Kollam for the offence under section 366A IPC is affirmed.

                  The appeal is allowed in part.