Bino @ Monai vs Stateof Kerala on 28 June, 2013

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Kerala High Court

Bino @ Monai vs Stateof Kerala on 28 June, 2013

This appeal is against the judgment of conviction and order of sentence passed under Sections 376(2)(f), 377 and 506(i) of the Indian Penal Code and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act as against the appellant/accused in S.C.No.356 of 2012 on the file of the Court of the Sessions Judge, Thodupuzha.

2. The victim is a minor girl, aged 9 years, and the accused is none else, her stepfather. While she was at the age of 9 years, her stepfather sexually assaulted and committed rape on her several times and it was continued till it was revealed by her to PW2, the class teacher. The first incident has happened when the victim was alone in her house, a Crl.A. No.1520 of 2013 (B) :: 2 ::

thatched house situated at Kozhimala, and she had to sleep in the room along with her stepfather. When she was in sound sleep, the accused attempted to sexually assault her by pressing on her chest and removing her undergarments. It was on the third day of Onam in the year 2008. At that time, she was studying in fourth standard. The thatched house was partly covered by plastic sheet. On the first day, there was only an attempt on the part of the accused to commit rape on the victim. But on the subsequent days, he committed rape on the victim, though it was objected by her. On one occasion when she objected, the accused threatened her that he would kill her if it is disclosed to her mother. After two or three weeks, they shifted their residence to the house of her uncle, one Satheesh, wherein they were provided with a room. She resided there from 4th standard to 6th standard. The accused used to commit rape on the victim girl both day and night. On one occasion, he used the victim for his unnatural offence by committing oral sex. When she was promoted to the 7th Crl.A. No.1520 of 2013 (B) :: 3 ::

standard, they shifted their residence to a rental house at Theyilacherivu by June, 2011. On that night also, the accused committed rape on the victim in the absence of her mother. It is at that time her class teacher, PW2 - Smt.Nisha, felt something wrong with the victim, the minor girl, and questioned her when she was found to be weak and gloomy and occasionally fainted at school. There on, she disclosed about the sexual assault of the accused and it was reported to the Headmaster.

3. The oral evidence tendered by the prosecutrix, who was aged only 14 years at the time when she was examined, gives a vivid picture of what she had suffered from the hands of her stepfather. It was the usual practice of the accused to commit rape on the victim during night time as well as day time. Sometimes he will not permit her to go to the school and satisfied his lust towards her even during day time. Crl.A. No.1520 of 2013 (B)

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4. PW2 had given sufficient support to the oral evidence tendered by PW1 and the disclosure made by her when she was questioned at the school. The version given by PW1, the victim, stood corroborated by the presence of spermatozoa and semen in the kaily (the dress of accused) and also the underskirt (the dress of victim), which were identified as MO3 and MO1 respectively. Ext.C1 is the forensic lab examination report. Ext.P2 and P3 are the two mahazars by which MO1 to MO3 were recovered. PW5 was examined to prove the recovery.

5. PW3 is the mother of the victim. A mere perusal of the oral evidence tendered by PW1 and PW2 would show the consenting attitude of the mother. PW4 is the landlord of the house wherein the victim at first resided. The fact that PW1 did not divulge the entire episode with its precision and details to the police when she was questioned is not fatal to the prosecution as she was a minor girl at that time and she is not Crl.A. No.1520 of 2013 (B) :: 5 ::

expected to give the entire details of the sexual assault and rape committed by her stepfather, to the police. On the other hand, the oral evidence tendered by PW1 stood as corroborated by PW2 and the presence of spermatozoa and semen in the underskirt of the victim and kaily of the accused. Nothing was brought out during the course of cross examination to shake the credibility of PW1. On the other hand, the oral evidence tendered by her inspires confidence in all respect.

6. The medical evidence adduced through PW7 Dr.Sreelatha is also relevant, which supports the frequent sexual intercourse destroying the hymen fully and completely, which fully and completely corroborates the version given by PW1. The learned Sessions Judge relied on the decision rendered by the Apex Court in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 SCC (Cri) 210) wherein the Apex Court has observed thus: Crl.A. No.1520 of 2013 (B)

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"We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases."

7. It is true that nobody was examined to prove that MO3 kaily belonged to the accused and nobody has identified the same as that of the accused. But the fact that it was recovered from the house at Theyilacherivu, along with the underskirt of the victim, identified as MO3 and MO1 respectively, witnessed by PW5, would show that it was recovered from the residential place of the accused. Ext.P2 is the mahazar. In both the dresses, the underskirt as well as the kaily, spermatozoa and semen were detected on chemical examination. The main challenge raised by the appellant is that no DNA profiling test, as envisaged under S.53A of Crl.A. No.1520 of 2013 (B) :: 7 ::

Cr.P.C., was conducted by the prosecution and failure to conduct the said mandate is fatal to the prosecution and took support from Krishan Kumar Malik v. State of Haryana (AIR 2011 SC 2877). Section 53A was incorporated in the Cr.P.C. with effect from 23.6.2006. Prior to that, there was no mandate for sending either the cloth of the accused or the victim for DNA profiling. The legislative intention while incorporating S.53A is to give more credibility in the identification of the accused by conducting DNA profiling so as to enable the prosecutrix to make out a full proof case. This would show that the failure to comply with the requirement under Section 53A of Cr.P.C., after its amendment, cannot be used to overshadow a case which was otherwise brought out in evidence proving the complicity of the accused. Further it is well evident from the oral evidence tendered by the victim that she was under the control of the assailant, her stepfather, at the time when she was subjected to rape and unnatural sexual assault and he used to threaten her for that purpose and as such, the Crl.A. No.1520 of 2013 (B) :: 8 ::

prosecution has established the offence under Sections 376 (2)(f), 377 and 506 IPC and satisfies the commission of offence under S.23 of the Juvenile Justice (Care and Protection of Children) Act .

The sentence awarded strikes a balance between the mitigating and aggravating circumstances under which the offence was committed and its repetition, hence does not call for any interference by this Court. Hence the appeal fails, deserves only a dismissal and we do so. Shaffique, J.(concurring) I fully agree with the findings of my learned Brother Judge Sri.P.Somarajan in regard to the finding of guilt, conviction and sentence. One startling feature which we have come across during the course of argument is that the crime seems to have been committed with the tacit consent and knowledge of the victim's mother, though mother of the victim is not made an accused in the case. Presently, the victim is residing in a hostel. Now that she has Crl.A. No.1520 of 2013 (B) :: 9 ::

become a major, she is required to be rehabilitated. It may not be possible for her to go back to her mother. Though we requested the learned Public Prosecutor to find out what rehabilitation measures were being done by the Government, no such materials are made available. Of course under S.357A of Cr.P.C., provisions are made for victim compensation. But in such cases where a minor girl is being sexually abused by the parent or with the consent and knowledge of the parents, it may not be possible to permit her to go back to the parental home after attaining majority. Her right to reside in the Society as a citizen free from any blemish requires to be protected by proper rehabilitation and change of identity, if required. There is neither any policy nor any statute by which such victims are entitled for being rehabilitated and protected. The Apex Court in Delhi Domestic Working Women's Forum v. Union of India [(1995) 1 SCC 14] had occasion to consider the plight of such unfortunate victims and after considering various issues involved in the matter relating to legal assistance and the conduct of trial of rape of victims, taking into account the future of such persons, the following directions had been issued at paragraphs 15 and 18 which reads as under:-

Crl.A. No.1520 of 2013 (B)

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"15. In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.

xxxxx (6) In all rape trials anonymity of the victim must be maintained, as far as necessary. (7) It is necessary, having regard to the Directive Principles contained under Article 38 (1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

"18. Having regard to the above provisions, the third respondent will have to evolve such scheme as to wipe out the tears of such unfortunate victims. Such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall take necessary steps for the implementation of the scheme at the earliest."

Crl.A. No.1520 of 2013 (B)

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2. The issue again cropped up before the Apex Court while considering Gang Rape Ordered by Village Kangaroo Court in W.B. In re [(2014) 4 SCC 786]. The Apex Court having taken note of S.357A further observed at paragraphs 19 and 24 as under:-

"19. No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim's fundamental right, the State is duty-bound to provide compensation, which may help in the victim's rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace."

"24. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case."

3. Therefore, while disposing of this appeal, we also direct the Government to take appropriate measures to Crl.A. No.1520 of 2013 (B) :: 12 ::

ensure that the victim involved in this case is properly rehabilitated taking into account her wishes. She should be provided a means for a proper livelihood and also a decent place of residence.

4. The Government shall also frame appropriate policy taking into account instances of similar nature and ensure that proper rehabilitation measures are done to enable such victims to carry on a decent life in the society.

The Registrar of this Court shall forward a copy of this judgment to the Chief Secretary, Government of Kerala for appropriate action.

A.M. Shaffique Judge P.Somarajan Judge ahz/Rp

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