Kerala High Court
Kamal vs State Of Kerala on 6 October, 2021
Equivalent citations: AIRONLINE 2021 KER 1509
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
CRL.A NO. 198 OF 2020
CRIME NO.342/2017 OF Varappuzha Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT IN SC 1091/2017 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN &
CHILDREN), ERNAKULAM
APPELLANT/ACCUSED:
KAMAL
AGED 34 YEARS
S/O. DHANIRAM, BAMGRI KARA, RAMNIGANJAL VILLAGE,
NEPPAL PIYOOTTAN DISTRICT, NOW RESIDING AT RENTED
BUILDING OF JOHNSON D'SILVA, CHETTIVALAPPIL
HOUSE, MOOLAMPILLY KARA, KADAMAKUDY, SOUTH
CHITTOOR, NOW UNDERGOING IMPRISONMENT IN CENTRAL
PRISON, VIYOOR, THRISSUR DISTRICT, PIN - 680 010.
BY ADV S.CHANDRASEKHARAN NAIR (K/185/1998)-13009
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE, NORTH
PARAVUR POLICE STATION, THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
COCHIN - 682 031.
BY ADVS.
SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
PUBLIC PROSECUTOR SMT.SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.10.2021, THE COURT ON 06.10.2021 DELIVERED THE
FOLLOWING:
Crl.A.No.198/2020
2
"CR"
R.NARAYANA PISHARADI, J
**********************
Crl.A.No.198 of 2020
-------------------------------------
Dated this the 6th day of October, 2021
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JUDGMENT
There can never be more graver and heinous crime than the father committing rape on his own daughter. The protector then becomes the predator. The father is the fortress and refuge of his daughter. Charged of raping his own daughter under his refuge and fortress is worst than the gamekeeper becoming a poacher and treasury guard becoming a robber (State of Himachal Pradesh v. Asha Ram : AIR 2006 SC 381).
2. The prosecution case is that the accused, the father of the victim girl, repeatedly committed sexual assault and rape on her, on many days during the period from 01.06.2017 to 22.09.2017.
Crl.A.No.198/20203
3. The victim girl was aged 11 years, when she became a prey to her father. She was studying in the fourth standard at that time. PW5 was her class teacher. She saw the child being very gloomy in the class. She reported the matter to PW4, the Headmistress of the school. On 21.09.2017, PW4 informed the matter to the Childline. On 22.09.2017, PW3, who was a member of the Childline, reached the school and talked to the victim girl. Then the girl revealed the acts of sexual assault committed on her by her father.
4. PW16 WCPO recorded Ext.P1 statement of the victim girl on 22.09.2017, in the presence of PW3. On the basis of that statement, PW21 Sub Inspector registered Ext.P11 F.I.R. PW23 Circle Inspector conducted the investigation of the case. After completing the investigation, he filed final report against the accused for the offences punishable under Sections 354, 376(2)
(f), (i) and (n) and 506(i) of the Indian Penal Code and also under Sections 5(l), (m) and (n) read with Section 6 and also Section 7 read with 8 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act').
Crl.A.No.198/20204
5. The trial court framed charge against the accused only under Sections 4, 6 and 10 of the Act and under Sections 376(2)
(f), (i) and (n) of the Indian Penal Code. The accused pleaded not guilty and he claimed to be tried.
6. The trial court found the accused guilty of the offences punishable under Sections 376(2)(f), (i) and (n) of the Indian Penal Code and Sections 4, 6 and 10 of the Act and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months for each of the offences punishable under Sections 376(2)(f), (i) and (n) of the Indian Penal Code and directed that the sentences shall run consecutively. In view of the provision contained in Section 42 of the Act, no separate sentence was awarded for the offences under the Act.
7. Conviction entered against and the sentence imposed on him by the trial court are challenged in this appeal by the accused.
Crl.A.No.198/20205
8. Heard learned counsel for the appellant and the learned public prosecutor. Perused the records.
9. Learned counsel for the appellant has very fairly submitted that there are no legal grounds worthy enough to challenge the conviction entered against the accused. However, learned counsel has vehemently contended that the sentence imposed on the accused by the trial court is harsh and unreasonable. He invited the attention of this Court to the provisions contained in Section 31 of the Code of Criminal Procedure, 1973 (for short 'the Code') and contended that the trial court should not have imposed consecutive sentences of imprisonment on the accused.
10. Learned Public Prosecutor has contended that the sentence imposed on the accused by the trial court is only just and proper in the circumstances of the case, especially when the accused is the father of the victim girl.
11. Inspite of the fact that no serious challenge has been raised by the learned counsel for the appellant to the conviction entered against the accused by the trial court, this Court has the Crl.A.No.198/2020 6 obligation to consider the merits of the conviction (See Jeetu v. State of Chattisgarh : (2013) 11 SCC 489).
Testimony of the Prosecutrix
12. When the victim girl was examined as PW1, she was aged 13 years. She has narrated before the trial court the acts of sexual assault committed on her by her father. The trial court has narrated her testimony in detail in the impugned judgment and it is not necessary to reproduce the same here.
13. The testimony of PW1 establishes that the accused had sexually molested her even on the previous day of the date on which she narrated the incident to her class teacher. Ext.P1 statement was recorded before there was any opportunity for tutoring or concoction.
14. No contradiction or omission in the testimony of PW1, with reference to Ext.P1 first information statement given by her to the police or Ext.P8 statement given by her to PW15 Magistrate under Section 164 of the Code has been brought out in evidence and legally proved. Exts.P1 and P8, the former statements, fully corroborate the testimony of PW1 in the court. Crl.A.No.198/2020 7
15. The testimony of PW1 can be accepted on its face value without any hesitation. There is an impression of truth in her testimony. The statements made by her, right from the point of revealing the matter to the childline member till deposing before the trial court, are consistent. There are no traces of tutoring in her testimony. Implicit reliance can be placed upon her testimony. PW1 qualifies to be treated as a sterling witness as envisaged in Rai Sandeep alias Deepu v. State (AIR 2012 SC 3157) and Ganesan v. State (AIR 2020 SC 5019). Medical Evidence
16. PW22 is the doctor who examined the victim girl at 17.00 hours on 23.09.2017 at the District Hospital and issued Ext.P12 medical certificate. Her evidence, along with the entries in Ext.P12 certificate, shows that the hymen of the victim girl was found torn and that there was evidence of penetration. Medical evidence corroborates the testimony of PW1 that she was subjected to rape.
Proof of Age of the Victim
17. Ext.P17 is the copy of the relevant page of the Crl.A.No.198/2020 8 admission register which was kept in the school in which PW1 was studying. It shows that her date of birth is 12.08.2005. This document was proved through PW4, the Headmistress of the school. The original admission register had been produced before the trial court and verified by that court.
18. PW4 has given evidence that PW1 was studying in that school from Class I onwards. Her evidence in that regard is corroborated by the entry in Ext.P17 which shows the date of admission of the child in the school as 15.05.2013. It was brought out in the cross-examination of PW4 that it was the mother of PW1 who filled up and gave the application for admission of the girl in the school.
19. The mother of PW1 could not be examined by the prosecution as she had left the family. Inspite of coercive steps taken, her presence could not be procured during the trial of the case.
20. This is a case in which the defence did not dispute the fact that the victim girl was aged below 16 years at the relevant time. Further, if the date of birth entered in the records of the Crl.A.No.198/2020 9 school first attended by the child is available, it can be treated as final and conclusive. Ext.P17 is from the school in which PW1 was first admitted and which was first attended by her. It is sufficient proof of the age of the child. The prosecution had established that PW1 was aged below 16 years at the relevant time.
21. In the above circumstances, conviction of the accused by the trial court, for the offences he was charged against by the court, is legal and proper. There is no sufficient ground to interfere with the conviction entered against the accused by the trial court.
Consecutive Sentences of Imprisonment
22. The trial court has sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months on each count for the offences punishable under Sections 376(2)(f), (i) and (n) of the Indian Penal Code and directed that the sentences shall run consecutively.
Crl.A.No.198/202010
23. Learned counsel for the appellant invited the attention of this Court to the provisions contained in Section 31(1) of the Code and contended that the direction given by the trial court that the sentences of imprisonment imposed on the accused shall run consecutively is illegal and improper.
24. Section 31(1) of the Code states that, when a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. Section 31(2) of the Code provides that, in the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court. Crl.A.No.198/2020 11 The proviso to this provision states that, (a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years; and (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.
25. The provisions contained in Section 31 of the Code are attracted only in cases where two essentials are satisfied, namely, (i) a person is convicted at one trial and (ii) the trial is for two or more offences. It is only when both these conditions are satisfied that the Court can sentence the offender to several punishments prescribed for the offences committed by him, provided the Court is otherwise competent to impose such punishments. What is significant is that such punishments as the Court may decide to award for several offences committed by the convict when comprising imprisonment shall commence one after the expiration of the other in such order as the Court may direct unless the Court in its discretion orders that such punishment shall run concurrently. The proviso to Section 31(2) of the Code mandates that, in no case can the person so sentenced be Crl.A.No.198/2020 12 imprisoned for a period longer than 14 years and the aggregate punishment shall not exceed twice the punishment which the Court is competent to inflict for a single offence.
26. Section 31 of the Code relates to the quantum of punishment which may be legally passed when there is (a) one trial and (b) the accused is convicted of "two or more offences". In Section 31(1) of the Code, since the word "may" is used, when a person is convicted for two or more offences at one trial, the Court may exercise its discretion in directing that the sentence for each offence may either run consecutively or concurrently. The words "unless the Court directs that such punishments shall run concurrently" occurring in sub-section (1) of Section 31 of the Code, indicates that a discretion is vested in the Court to direct that the punishment shall run concurrently, when the accused is convicted at one trial for two or more offences. It is manifest from Section 31 of the Code that the Court has the power and discretion to issue a direction for concurrent running of the sentences when the accused is convicted at one trial for two or more offences. Discretion to order running of sentences Crl.A.No.198/2020 13 concurrently or consecutively is judicial discretion of the Court which is to be exercised as per the established law of sentencing. The Court, before exercising its discretion under Section 31 of the Code, is required to consider the totality of the facts and circumstances of the case against the accused. It is left to the full discretion of the Court to order the sentences to run concurrently in case of conviction for two or more offences. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically (See O.M.Cherian v. State of Kerala : AIR 2015 SC 303).
27. The power to award suitable sentences for several offences committed by an offender cannot be disputed. The order in which such sentences shall run can also be stipulated by the Court awarding such sentences. So also the Court is competent in its discretion to direct that punishment awarded shall run concurrently and not consecutively.
Crl.A.No.198/202014
28. Recently, in Sunil Kumar v. State of U.P : (2021) 5 SCC 560, the Apex Court has held as follows:
"Thus, it is beyond a shadow of doubt that Section 31(1) Cr.P.C vests complete discretion with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct".
29. With regard to the limitations prescribed under the proviso to Section 31(2) of the Code, in Muthuramalingam v. State : AIR 2016 SC 3340, the Constitution Bench of the Supreme Court has held as follows:
Crl.A.No.198/202015
"A careful reading of sub-section (2) would show that the same is concerned only with situations where the Courts awarding the sentence and directing the same to run consecutively is not competent to award the aggregate of the punishment upon conviction for a single offence. The proviso further stipulates that in cases falling under sub-section (2), the sentence shall in no case go beyond 14 years and the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to award. Now in cases tried by the Sessions Court, there is no limitation as to the Court's power to award any punishment sanctioned by law including the capital punishment. Sub-section (2) will, therefore, have no application to a case tried by the Sessions Court nor would sub-section (2) step in to forbid a direction for consecutive running of sentences awardable by the Court of Session".
(emphasis supplied)
30. The dictum laid down by the Constitution Bench as above makes it clear that the limitations prescribed under the proviso to Section 31(2) of the Code are not applicable when the case is tried and the sentence is imposed by a Court of Session. Crl.A.No.198/2020 16
31. The single transaction rule has no application to Section 31(1) of the Code. In Sunil Kumar (supra), the Apex Court has held as follows:
"In a given case, after such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with 'single transaction' cannot be imported for dealing with the question at hand."
32. Now, the only question is whether the trial court has exercised its discretion properly in directing that the sentences of imprisonment imposed on the accused under the three sub-clauses of Section 376(2) of the Indian Penal Code shall run consecutively.
33. The trial court has observed that, the accused being the biological father of the child, was expected to protect her but he had forgotten that solemn duty and made his daughter a tool to satisfy his perverted lust, that too repeatedly. Therefore, the trial court found that the accused did not deserve any leniency in Crl.A.No.198/2020 17 the matter of punishment.
34. It cannot be found that the trial court has exercised its discretion in an illegal or improper manner. It is evident that the victim was 11 years old and dependent on her father. Instead of offering her protection and support, he perpetrated continuous sexual assault on her. One cannot even imagine the trauma the child would have suffered. The indelible imprint which the incestuous act has left in her mind cannot be ignored. She may feel the mental agony and pain for years to come.
35. In Asha Ram (supra), the Apex Court has observed as follows:
"Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society. Gravity of the crime has to be necessarily assessed from the nature of the crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. More so, when the perpetrator of the crime is the father against his own daughter it is Crl.A.No.198/2020 18 more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, ....... he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives".
36. In Madan Gopal Kakkad v. Naval Dubey : (1992) 3 SCC 204, the Apex Court has observed as follows:
"Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy Crl.A.No.198/2020 19 prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms. We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand".
(emphasis supplied)
37. This is a case in which the trial court could have imposed on the accused a sentence of imprisonment for life, which is statutorily defined as imprisonment for the remainder of natural life, for the offences under the three sub-clauses of Section 376(2) of the I.P.C. But, the trial court has imposed on the accused only the minimum sentence of imprisonment provided under law.
38. Considering the facts and circumstances of the case, I find no sufficient ground to interfere with the sentence imposed on the accused by the trial court and also the direction given by the trial court that the sentences shall run consecutively. Crl.A.No.198/2020 20
39. However, one thing requires to be noticed. If the Court of first instance directs consecutive running of sentences, it has the obligation to state the order (i.e., the sequence) in which they are to be executed. The trial court has not done so presumably for the reason that the term of the sentence of imprisonment imposed on the accused on all counts is the same, that is, ten years.
40. Consequently, the appeal is dismissed. The sentence of imprisonment imposed on the appellant/accused by the trial court under Sections 376(2)(f), 376(2)(n) and 376(2)(i) of the I.P.C shall be executed in the sequence in which they are mentioned in the judgment of the trial court.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr