Kerala High Court
Kuttappan @ Babukuttan vs State Of Kerala on 31 August, 2022
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
CRL.A NO. 1308 OF 2018
AGAINST THE ORDER/JUDGMENT DATED 6.12.2017 IN SC 1279/2013
OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES
RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN
AND CHILDREN, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
KUTTAPPAN @ BABUKUTTAN,
AGED 56 YEARS
C.NO.2277, CENTRAL PRISON, TRIVANDRUM.
BY ADV C.K.JAYAKUMAR(K/85/2000), STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY DGP, HIGH COURT OF KERALA.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11.8.2022, THE COURT ON 31.08.2022, DELIVERED THE
FOLLOWING:
'C.R.'
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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Criminal Appeal No.1308 of 2018
-------------------------------------
Dated this the 31st day of August, 2022
J U D G M E N T
Jayachandran, J.
"Rape is not merely a physical assault
- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very sole of the helpless female. [State of Punjab v. Gurmit Singh and Others (1996(2) SCC 284)]
1. Rape is most foul when it is alleged to have been committed by a father on his minor daughter. Unfortunate are the facts involved in the instant appeal, where the allegation is one of rape by the accused/father on his minor daughter on several occasions in the month of December 2012, thus committing the offence under S.376 of the Penal Code, as also, under Ss.5, r/w 6 and 9, r/w 10 of Protection of Children from Sexual Offences Act, 2012.Crl.A 1308/2018
3
2. Parading 15 witnesses, the prosecution adduced evidence and got marked Exts.P1 to P12. Except marking Exts.D1 and D2 contradictions, no evidence, whatsoever, was adduced on behalf of the defence. The Sessions Court found that the evidence tendered by PW1, the victim, to be genuine and credible and convicted the accused for all the offences charged, which judgment is under challenge in the instant appeal.
3. Heard Adv.C.K.Jayakumar, learned State Brief appointed for and on behalf of the appellant and Smt.Ambika Devi, learned Special Government Pleader for Atrocities Against Women and Children. Perused the records.
4. Learned counsel for the appellant argued that the prosecution has no specific date as regards the commission of the alleged offence. The time alleged is so vague, as sometime during Christmas vacation 2012. That it was during Christmas vacation is not Crl.A 1308/2018 4 specified in Ext.P1 F.I.S, where the victim only refers to the time when she had holidays in the school. Learned counsel would contend that the conduct of PW1/victim in having not revealed the matter to her own mother is quite strange and unbelievable. According to the prosecution, the first incident of rape took place when the accused, victim and her brother were sleeping together in an afternoon. Curiously enough, the brother was not examined at all. There was inordinate delay in preferring the F.I.S and registering the F.I.R. The incident allegedly took place when the victim was studying in the 6th standard, whereas the F.I.R was registered only when she was studying in the 7 th standard. Even after the matter was allegedly revealed first to PW5/nurse, there is considerable delay in registering the F.I.R, which is not explained at all. Ext.D1 contradiction elicited from PW2 and Ext.D2 contradiction elicited from PW6 would render their respective version suspect. Learned counsel would conclude that the alleged victim is not of a sterling quality, so as to place sole Crl.A 1308/2018 5 reliance upon her testimony and no corroboration, whatsoever, is forthcoming, so as to convict the accused. There is serious contradiction between the version spoken of by PW14, a member of the child line team and the version spoken to by PW5 nurse and PW4 class teacher. Learned counsel would allege that the victim's mother had an eye fixed on evicting the appellant from the home-for the reason that he caters to the needs of his first wife and the children born in that wedlock-for which purpose, PW1/victim was made a tool. Finally, learned counsel pointed out that, there was no penetration, whatsoever, even going by the evidence adduced by PW1/victim, wherefore, the punishment under Ss.5, r/w 6 of POCSO Act is ex facie not sustainable.
5. Refuting the above allegations, learned Special Government Pleader submitted that the evidence tendered by PW1/victim is quite convincing, requiring no corroboration. The allegation is made against none other than the father of the victim and unless and until there is a ring of truth, it is Crl.A 1308/2018 6 most unlikely that a daughter would choose to speak against her father. PW1/victim was amply supported by the evidence tendered by PW5/nurse (to whom the incident was first revealed by the victim), PW4/class teacher, PW9/doctor (who examined the victim) and PW14 - the member of child line team. According to the learned Special Government Pleader, the judgment impugned is only to be sustained. As regards penetration, learned Special Government Pleader pointed out that, PW1/victim gave evidence to the effect that the appellant/accused attempted to insert his genitals to the victim's vagina, which evidence is more than sufficient to hold that there was penetration. Our attention was invited to the definition of rape under S. 375 to point out that, penetration 'to any extent' into the vagina would constitute the offence. Learned Special Government Pleader relied upon the following judgments of the Honourable Supreme Court to buttress her argument:
(i) Rafiq v. State of U.P. [1980(4) SCC 262]
(ii) State of U.P. v. Babul Nath [1994(6) SCC 29]
(iii) State of Punjab v. Gurmit Singh and Others Crl.A 1308/2018 7 [1996(2) SCC 384] and
(iv) Nawabuddin v. State of Uttarakhand [2022(5) SCC 419]
6. Having referred to the respective contentions of the appellant and the respondents, we will start with the evidence of PW1, the victim. The victim/PW1 deposed that, she was studying in S.N.H.S. School, Uzhamalakkal, in the 6th Standard and she was residing along with her father, mother and her younger brother at Vengotkavu. Their's was a thatched house. During Christmas vacation, her father and mother went for job as usual. However, her father came back by afternoon, telling that he has no job in the post noon session, whereafter PW1, her brother and her father went for sleep. While sleeping, the accused/father caressed her breasts and attempted to insert his genital to her vagina.
However, he could not penetrate. The victim cried out of pain, whereupon, her father/accused left his attempt. In the same house, the incident was repeated on other days as well. Thereafter, they Crl.A 1308/2018 8 have shifted the residence to a tin sheet roofed one, where also, the father/accused repeated the same. He threatened her that, if the incident is divulged to anybody, PW1 and her mother will be finished off. PW1 was also afraid that her father may assault her mother, if the incident is revealed and hence she chose to keep it a secret. There was an awareness class in the 6 th standard, where incidents like the biological father behaving indecently to children was dealt with. PW1 realised that what her father did was wrong and she divulged the matter to the sister (PW5/nurse), as also, to PW4/class teacher. PW1's mother was called to the school and the incident revealed. Thereafter, PW1 narrated the incident to her mother. Thereupon, a complaint was filed and PW1 was subjected to medical examination. Although PW1 initially deposed that, she disclosed the incident to the doctor, she corrected herself immediately. PW1 identified Ext.P1 First Information Statement (FIS) given by her.
7. In cross examination, PW1 confirmed that the Crl.A 1308/2018 9 accused is her biological father and that, he bothered the least about her studies. It was elicited that, in his first marriage, the accused had a daughter, who is married and who have two children. PW1 would state that her mother is maintaining good relationship with the said daughter of the accused and that, she used to come to her house once in a while. A suggestion that PW1 and her mother used to quarrel with the accused in the name of his daughter in the first marriage is completely denied by PW1. It is pertinent to note the manner in which PW1 answered certain motivated suggestions of the learned defence counsel, one among which is extracted herein below:
"സസംഭവതത്തിന് മമുമമ്പ് അച്ഛൻ നത്തിങ്ങളളളോടടളോപസം തളോമസത്തികമുന്നത് ളമളോൾകമ്പ് ഇഷ്ടമമുണളോയത്തിരമുന്നത്തിലല. (Q) അളയളോ ഒതത്തിരത്തി ഇഷ്ടമളോയത്തിരമുന്നമു. ഒരമുമത്തിചമ്പ് തളോമസത്തികളോൻ. (A)"
8. We note that PW1 answered so, not merely to the question cited above, but also to several other suggestions, which response we find as quite natural and spontaneous, thereby attaching an extra element Crl.A 1308/2018 10 of credibility to her version. Thereafter, suggestions to the effect that, they have shifted to the tin roofed house to extricate the accused is also denied by PW1. PW1 would state that she was afraid of seeing her father and apprehensive as to whether he would repeat the assault and would even kill her, if the incident is disclosed to anybody. The incident was not revealed to her mother out of fear that her father/accused would kill her, as also, for the reason that her mother would beat her, once she comes to know about the same.
9. Here, we notice that in the F.I.S, the reason for non disclosure is stated to be that she was afraid of her mother beating her. However, in court, PW1 would state that, she was threatened by her father to be finished off, if the incident is divulged to anybody. She was also apprehensive that her father would beat her mother. However, in cross examination, it is also elicited that, PW1/victim was apprehensive that her mother would beat her, if she comes to know about the incident. We, therefore, Crl.A 1308/2018 11 conclude that the reason stated in the F.I.S has been elicited in cross, supplemented by two additional reasons indicated above. We do not find any contradiction, much less any material contradiction, in the above version of PW1, so as to discount her trustworthiness.
10. It was clarified during cross examination that the sister to whom the incident was first divulged was the school nurse. The teacher was told about the incident subsequently. PW1 specifically stated that, she mustered the courage to divulge the incident to the sister/nurse and the teacher only after undergoing counselling. PW1 realised during counselling that a father who would maul her daughter sexually would be punished. Here, we notice that, by referring to counselling, the witness meant the class taken by PW5/nurse. Upon coming to know about the incident from the teacher, PW1's mother questioned the accused, followed by a quarrel between them. The following suggestion and its answer is also pertinent, which is extracted here Crl.A 1308/2018 12 below:
"അമ്മ ളചളോദത്തിചളപളോൾ അച്ഛൻ വളടര വത്തിഷമത്തിചച ഇറങ്ങത്തി ളപളോയത്തിളലല. (Q) അച്ഛൻ വളടര ളദഷഷ്യതത്തിൽ അമ്മടയ ചചീതടയളോടക വത്തിളത്തിചത്തിടച ഇറങ്ങത്തിളപളോരമുന്നതളോണ് കണത്. (A) Question repeats ളദഷഷ്യതത്തിലളോണ് ളപളോയത്. (A)"
11. PW1 thereafter deposed that, her father left her house and came back after few days. Whenever her father comes to the house, PW1 will be put to the house of her mother's sister. When her father came back to her house after a gap, the fact was informed to the school, whereupon the childline was informed and the case was filed, deposed PW1. Thereafter, PW1 was taken to Nirbhaya and she came from Nirbhaya to give evidence.
12. PW2, the victim's mother, confirmed her date of birth as 14.05.2001 and deposed that she was studying in the 6th Standard when the incident took place. PW2 was not aware of her husband's sexual advances to her daughter/PW1. She was called by PW4/class teacher and required of her to keep an eye Crl.A 1308/2018 13 on her husband. PW2 questioned the accused based upon the information, whereupon he left the house. After six months, the accused came back. Since the accused was present, PW1 did not want to stay in the house, wherefore, she was put in her sister's house. When PW1 hesitated to stay even at PW2's sister's house, PW2 enquired with her about the matter, whereupon PW1 narrated the incident to PW2/mother. In cross examination, it is elicited that the accused was a driver and his income was spent in her family. Expenses for the marriage of the daughter of accused in his first wife were spent by her mother and not by the accused. PW2 is not aware as to whether the accused had given any property or gold in connection with that marriage. PW2 used to quarrel with the accused, when he comes intoxicated with alcohol. Then the accused would leave the house for 5-6 months, during which period, the expenses will be met by the income generated by PW2. A suggestion to the effect that PW2 and PW1 were inimical to the accused for maintaining relationship with his first wife and for catering to their Crl.A 1308/2018 14 expenses is stoutly denied by PW2. According to PW2, there was no interaction between the first wife of the accused and herself. PW2 came to know about the incident when she was informed by the school teacher. Ext.D1 is a contradiction marked through PW2 on the basis of her former statement to the effect that, she did not question her husband after coming to know about the incident, in order to find out the truth. We do not find this contradiction as a material one, which would affect the credibility of the version spoken of by PW2. For not preferring a complaint immediately, PW2 explained that she had to take care of her daughter and she has to think as to what is to be done. PW2 clarified that the case was initiated from the school and not by her. To a question, PW2 answered that, she feels that the accused would have done as alleged by PW1, since his character is bad. PW2 agreed that the return of accused to the house is the reason for preferring the complaint. Had he not returned, PW1/victim would have lived along with PW2 and she need not have to go to Nirbhaya and no case would have been Crl.A 1308/2018 15 instituted.
13. We notice that the version of PW2/mother is at variance with that of PW1/daughter, insofar as it pertains to the dissemination of information as regards the incident to PW2/mother is concerned. According to PW2, she was called to the School and PW4/class teacher required of her to keep an eye on her husband, whereas PW1 would state that PW2/mother was detailed about the incident by PW5/nurse, in the presence of PW4/class teacher. If that be so, the version of PW2 that the incident was narrated to her by PW1, when PW1 expressed hesitation to stay even at PW2's sister's house, cannot be reconcilled. We are, however, of the opinion that the variance between the respective versions of PW1 and PW2 is not with respect to the incident constituting the charge against the accused, but with respect to the manner in which PW2/mother got information about the incident. Again PW2/mother has no direct knowledge of the incident, except as spoken to by PW5/nurse, PW4/class teacher and PW1/victim. Therefore, we Crl.A 1308/2018 16 discount the above.
14. PW3 turned hostile. He stated that the accused and his family are residing in a land purchased from PW3's mother's youngest sister.
15. PW4 is the class teacher of PW1. She deposed that, she knows Sheela sister (PW5) and that she was informed by her that PW1 was sexually molested by her father. PW4 summoned PW2/mother and spoke to her about the matters disclosed by sister Sheela. In cross examination, it is elicited that PW4 did not speak to PW2/mother, but it was PW5/nurse (sister) who spoke. Upon coming to know about the incident, PW4 informed the Headmaster.
16. PW5 is sister Sheela. She is the Junior Public Health Nurse attached to the Uzhamalakkal Sreenarayana Higher Secondary School during 2013- 2014. She used to screen the children on a weekly basis to ascertain any health problem or abnormality. She used to take classes about sexual Crl.A 1308/2018 17 abuse of children to pupils belonging to classes 5 to 8. PW1, while studying in the 6 th standard, attended one such class. On the following day, she came to PW5 and told her that her father attempted to sexually abuse her. He used to touch her vagina and breast. PW5 spoke to PW2/mother when she was summoned. When PW1 informed that she is no more willing to stay in her house, she was shifted to childline. In cross examination, PW5 deposed that all the facts divulged to her was informed to PW2/mother, but PW5 does not know whether she came to know about the incident first through PW5. The disclosed facts were informed to the class teacher and the Headmaster on the date on which it was spoken to by PW1 and that, PW5 spoke to PW2/mother in the presence of PW4 class teacher. PW5 is aware that childine activist by name Lilly came to the school upon receiving the information and they have questioned the child about the incident, which was in her presence. She did not instruct PW2/mother to prefer a complaint before the police. PW5 has no information as to whether PW1 had any animosity to Crl.A 1308/2018 18 her father/accused. PW5 denied a suggestion to the effect that PW1 had animosity to her father/accused.
17. PW6 is the Headmaster attached to S.N.H.S. School, Uzhamalakkal. He issued Ext.P3 school certificate in proof of the age of PW1, as per which, the date of birth of PW1 is 17.05.2001. PW1 took admission in the said school in the 6 th standard. We straight away notice that Ext.P3 school certificate is not issued from the school first attended by the victim and therefore, the same cannot vouch the age of the victim, as held in Alex v. State of Kerala [2021 (4) KLT 480]. Nevertheless, we notice that the age of PW1 in the instant case is proved by the deposition of her mother/PW2, where the date of birth is specifically spoken to as 14.05.2001, which aspect is not seen challenged also.
18. PW6 deposed that, he gave statement to the police about the incident and that, he had informed the matter to the childline. In cross examination, Crl.A 1308/2018 19 it was, however, elicited that, it was not PW6 who informed the childline. Ext.D2 is a contradiction marked through PW6 to the effect that he had informed the childline. This contradiction, however, according to us, is not a material one, affecting the core of the prosecution case. PW6 was first informed about the incident by PW4 class teacher and PW5 sister. Simultaneous with the information to PW6, the childline was also informed. Witness would add that, he came to know about the incident when childline officials came. Lilly teacher is a H.S.A. having special training in counseling. It was childline officials who informed the police and not PW6, deposed PW6.
19. PW7 is the Village Officer concerned, who issued Ext.P4 scene plan. PW8 is a witness to Ext.P2 scene mahazar.
20. PW9 was the CMO attached to the WMC Hospital, Thycaud. He examined PW1 on 04.08.2013 as requested by the investigating officer and issued Ext.P5 Crl.A 1308/2018 20 medical certificate. PW1 was examined by the Gynecologist in the presence of PW9. On examination, the vulva was found normal and the hymen intact. The posterior portion was normal and vagina admits only the tip of the finger. The alleged history, as spoken of by PW9, is sexual abuse by the victim's father by touching the vagina with his penis. There is no history of penetration spoken of. PW9 deposed that in a case of sexual abuse, penetration is possible even without rupture of hymen. The redness, contusion etc. caused due to vaginal penetration will vanish after 3-4 days, deposed PW9. In cross examination, it was elicited that there was no evidence of any recent or past vaginal penetration and that there was no evidence of recent sexual intercourse. There existed nothing suggesting penetration to vulva. PW9 would state that, he had not examined the victim personally, but she was examined in his presence. In re-examination, PW9 would state that, he had examined the victim and had referred the victim to the Gynecologist only for detailed examination, since she was under the age of Crl.A 1308/2018 21 18 years.
21. PW10 was the C.M.O of the District Hospital, Nedumangad. He examined the accused and issued Ext.P6 potency certificate. PW11 is the Women Sub Inspector attached to the Thiruvananthapuram City Vanitha Helpline. She recorded the first information Ext.P1 FIS on 04.08.2013, which was forwarded to the S.H.O. of Aryanad Police Station. The reason for initial non disclosure, as stated in Ext.P1 F.I.S, was put to PW11 and she affirmed of PW1 having given a statement to the effect that she was afraid of her mother beating her. It was also put to PW11 that a statement to the effect that her father would kill her if the matter is disclosed to her mother, was not given to her.
22. PW12 was the S.H.O. of Aryanad Police Station, who recorded Ext.P7 FIR on 04.08.2013 pursuant to Ext.P1 FIS. PW13 was the Secretary of Uzhamalakkal Grama Panchayath as on 07.08.2013 and he issued Ext.P8 ownership certificate in respect of house of Crl.A 1308/2018 22 the accused and the victim. As per Ext.P8, the building stands in the name of PW2/mother, Chandrika. PW14 is Lilly, a team member of the childline, who went to S.N.H.S. school in July 2013 pursuant to the information given by PW5 Sheela and spoke to PW1. The child told her that from December 2012 onwards, she was sexually abused by her father and that the matter was not disclosed to anybody, since she was threatened by her father. PW1 also told her that her father quarreled with her mother and resided separately for a period of six months, whereafter he came back. PW1 got scared when he came back and hence, he informed the matter to the school authorities. After conversing with PW1, both PW1 and PW2/mother were summoned to the childline. Information was given to the child Welfare Committee. Since it was found that the victim was not safe in her residence, she was shifted to Nirbhaya Shelter Home. According to PW14, it was she who informed PW6, the Headmaster of the school. PW14 would state that, for a period of six months, the child did not disclose the matter to anybody out Crl.A 1308/2018 23 of fear. It was also elicited that, PW2/mother was aware of the incident when PW14 spoke to her at childline. The incident was referred to the childine when the accused/father came back. When her father came back, the child got frightened and the matter was accordingly informed to PW5 Sheela. PW14 would state that, PW5 Sheela, PW6 Headmaster and herself came to know about the incident on the same day, which statement cannot be true going by the evidence tendered by other witnesses; all the same not very material according to us.
23. PW15 is the investigating officer who was the Circle Inspector of Aryanad Police Station. He spoke about the various formalities in the investigation, about preparation of Ext.P2 scene mahazar, about arrest of the accused, about obtaining Ext.P6 potency certificate of the accused, Ext.P3 age certificate of the victim and Ext.P8 ownership certificate of the residential building and also about filing final report upon conclusion of investigation. PW15 would depose in cross Crl.A 1308/2018 24 examination that the incident took place when the victim was studying in the 6th standard during Christmas vacation. The awareness class was taken immediately after 10th September. PW15 would admit that the FIS was given after six months from the date on which the child disclosed the matter to the school teacher. The teacher informed the matter to the childline, which, in turn, informed the matter to the police. PW5 Sheela and the officials of the childline came to know about the incident on different days and not on the same date.
24. Having scanned through the entire evidence, we are of the opinion that the prosecution case has been successfully driven home. Subject to the objections on the part of the defence, which will be dealt with separately hereunder, we find the evidence tendered by PW1/victim to be trustworthy and liable to be acted upon. A ring of truth pervades all through out her version. She categorically spoke of the sexual advances made by her father, which occurred for the first time during Crl.A 1308/2018 25 the Christmas vacation, while she was studying in the sixth standard. She specifically spoke of the overt acts. Credibility surfaces from her honest version that there was no penetration as such, although there was an attempt. PW1 deposed that the aggression continued even after they shifted their residence to a tin roofed one. It is true that corroboration by medical evidence is not specifically forthcoming. However, we are of the opinion that corroboration by medical evidence is practically impossible in the given facts, having regard to the nature of allegations levelled. As already indicated, there was no penetration. The specific allegation is with respect to caressing her breasts, touching her vagina and an attempt to insert the penis to the vagina, the last among which was, however, unsuccessful, even according to PW1. Except for the third overt act, if successful, there could be little medical evidence to support the prosecution version. Nevertheless, we note that Ext.P5 certificate issued by PW9/Doctor also supports the prosecution version to the limited Crl.A 1308/2018 26 extent of the history recorded therein, that is sexual abuse by the father, with the history of touching the vagina with his penis.
25. Corroboration to the victim's version lies in the evidence adduced by PW5/nurse. It is PW5 to whom PW1 first disclosed the incident, pursuant to a class taken by PW5. According to PW1, this emboldened her to divulge her sufferings to PW5. PW5 immediately informed PW4/class teacher, as also, the medical officer and PW6/Headmaster. PW5 withstood the heat of cross examination and the veracity of her evidence adduced is not eroded during the course of cross examination. Upon receipt of information from PW5, PW4 summoned the victim's mother (PW2) and PW5 detailed the advances made by the accused on the victim, in the presence of PW4/class teacher. We find the evidence of PW5 credible. The version of PW1 is also supported by the evidence tendered by PW4/class teacher, who corroborated the version of PW5. The versions of PW4 and PW5 find further corroboration from the evidence Crl.A 1308/2018 27 adduced by PW6/Headmaster.
26. Again, we also find that the evidence tendered by PW14/Lilly, a team member of the Childline, also supports the prosecution version. She conversed with the victim in July, 2013 at the school, pursuant to which the Childline informed the Child Welfare Committee and shifted the victim to the Nirbhaya Shelter Home. In cross examination, PW14 would state that it was she who informed PW6/Headmaster, which version - although in variance with the version spoken to by PWs 4, 5 and 6 - is only to be discounted, as it concerns only a peripheral aspect of the prosecution case. Another dichotomy in the version of PW14 is with respect to her knowledge spoken of to the effect that PW2/mother was aware of the incident, pretty earlier through PW1/victim. Her version to the extent that PW2/mother was aware of the incident much before PW14 came to know about it is true and correct. The complaint was filed after a period of 6 months, when the accused came back and started residing along with PW2 and PW1. However, Crl.A 1308/2018 28 her version that it was through PW1/victim that PW2/mother came to know about the incident is only her impression of the matter, without any direct knowledge of the same and hence not of any moment.
27. We will now refer to the specific defence contentions raised. The primary contention is that there was inordinate delay in reporting the incident to the Police, even after it was allegedly detected in the form of a disclosure made by PW1/victim to PW5/Nurse. It is true that there is delay in preferring Ext.P1 F.I.S. However, the prosecution has explained the delay. According to the prosecution, the incident first occurred during Christmas vacation of the year 2006, when PW1/victim was studying in the sixth standard. It was disclosed to PW5/nurse when she was studying in the sixth standard itself, as spoken of by PW5. According to PW5, the matter was informed to PW4/class teacher and PW6/Headmaster. Going by the version of PW4/class teacher, PW2/mother was summoned and she was informed about the sexual advances made by the Crl.A 1308/2018 29 accused on the victim in the presence of PW5/nurse. PW2/mother questioned the accused on the information received, whereupon the accused picked up a quarrel, got enraged and left the house, presumably to the house of his first wife. Thereafter, he used to come only occasionally for a day or two, on which occasions, the victim will be shifted to their relative's house in the neighbourhood. After six months, the accused came back to the house of the victim and PW2, and started residing therein. The victim was again fearsome and apprehensive, which she spoke of in her examination in cross. The matter was hence informed to the school, which, in turn, informed the Child Line, which triggered the registration of the crime, pursuant to the First Information Statement given on 4.8.2013.
28. We find that the delay is quite normal. The victim is the daughter and the accused is none other than her father. We perfectly understand the embarrassment and dilemma of PW2/mother in proceeding with the matter legally, which she spoke Crl.A 1308/2018 30 of in cross examination. She also said that but for the accused returning to their home after 6 months, a formal complaint would not have been preferred. It was on the return of the accused, thereby instilling fear in the minds of PW1 and PW2, that the matter was again informed to the School authorities, which led to the registration of the crime through Child Line. The social ostracism, which may fall upon the entire family, the stigma, agony and the disrepute to the victim all persuaded PW2/mother from proceeding legally. We find that the delay is properly explained.
29. Another defence contention is with respect to the date of birth of PW1/victim, which is not proved by Ext.P3 school certificate issued by PW6, inasmuch as Sree Narayana Higher Secondary School was not the school first attended by PW1/victim. We find merit in the defence's contention and the legal position in this regard is settled by the judgments of this Court in 1) Reju v State of Kerala [2020 KHC 2271],
2) Rajan v. State of Kerala [2021 (4) KLT 274], Crl.A 1308/2018 31
3) Alex v. State of Kerala [2021 (4) KLT 480] and
4) Raghavan v. State of Kerala [2021(6) KLT 427]. However, the age of the victim has been proved, despite the shortcoming with respect to Ext.P3. The victim's age has been specifically spoken of by her mother/PW2 as 14.5.2001. The requirement of law is sufficiently met when her mother speaks of the same, especially when the same is not challenged in cross examination. The said contention is, therefore, rejected.
30. The next contention is on the count that PW1 is not a witness of sterling quality, so as to place sole reliance upon her testimony to convict the accused. Corroboration is not forthcoming and therefore, the judgment of conviction cannot be sustained is the contention. We have already discussed this aspect while dealing with the intrinsic worth of the evidence tendered by PW1, as also, the corroborative evidence available by virtue of the testimonies of PWs.4, 5 and 14 and Ext.P5 medical certificate, to the extent it does. Crl.A 1308/2018 32 Therefore, this contention is also dismissed.
31. The fourth contention is with respect to the dichotomy of the versions spoken of by various witnesses as regards the dissemination of the information regarding the incident. According to PW1/victim, the incident was first divulged to PW5/Nurse. PW5/Nurse in turn informed the matter to PW4/Class Teacher and PW6/Headmaster. PW4/Class Teacher informed PW2, the mother of PW1/victim. However, PW14 would state that PW2/mother was aware of the incident through PW1/victim. We have discussed this aspect also earlier and we do not find much merit in the defence contention. As indicated earlier, PW14 is not a person having direct knowledge as regards the person through whom PW2 came to know about the incident and it can only be taken that what she spoke of is only her impression.
32. Simultaneous with this point, we also deal with another point, again pertaining to the dichotomy of Crl.A 1308/2018 33 the version between PW1 and PW2 as regards their relationship with the first wife and daughter of the accused. While PW1 would depose that her family is maintaining good relationship with the daughter of the accused through his first wife and that she used to come to their house once in a while, PW2/mother would maintain that she is not keeping any relationship, whatsoever, with her. Here again, we find that the inconsistency surfaces on a peripheral aspect, not touching the core of the prosecution case and hence, not liable to be taken stock of, to disbelieve the prosecution case.
33. What remains now is the contention with respect to the absence of penetration. Going by the prosecution allegations, the offence is of rape under S.376 of the Penal Code, as also, under Ss. 6 and 10 of the POCSO Act, which are not attracted, according to the defence.
34. The offence was first committed during December, 2012, at which point of time, the Crl.A 1308/2018 34 definition of rape as per S.375 of the Penal Code stood thus:
"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
First.-- Against her will.
Secondly.--Without her consent. Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-- With or without her consent, when she is under sixteen years of age.
Explanation -- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his Crl.A 1308/2018 35 own wife, the wife not being under fifteen years of age, is not rape."
It could be seen from the above that the essential overt act required is sexual intercourse, which by virtue of Explanation 1, stands clarified that penetration is sufficient, thereby meaning that an ejaculation-in culmination of the sexual intercourse-is not a legal requirement.
35. The POCSO Act came into force on 19.6.2012 and S.7 defines "sexual assault" thus:
"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
36. S.3 defines "penetrative sexual assault" and the same, insofar as it is applicable to the instant facts, is extracted herein below:
"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if
--
(a) he penetrates his penis, to any extent, Crl.A 1308/2018 36 into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) xxx
(c) xxx
(d) xxx"
37. Having taken note of the requirements of the offences canvassed, we refer to the facts once again in the present context. The specific version of PW1 in chief examination as regards penetration is that the accused/father attempted to insert his genitals on her vagina, but it did not enter/penetrate. The version of PW5 is also significant to some extent, since the victim disclosed the matter to her for the first time. The version of PW5 in this regard is of a much lesser degree that the accused/father used to touch her vagina. In view of this apparent inconsistency, we also perused PW1's version in Ext.P1 F.I.S, where PW1 would state that her father/accused kept his genitals on her vagina, whereupon she woke up and cried. We, therefore, discount the version of PW5 that the overt act is only to the extent of the accused touching the Crl.A 1308/2018 37 vagina of the victim. In doing so, we reckon the history as recorded in Ext.P5 medical certificate as well.
38. However, the fact remains that there was no penetration as such, although there was an attempt. The medical evidence adduced vide Ext.P5 also supports our conclusion, since the victim's vulva was normal, hymen intact and the vagina admits only the tip of a finger. In the circumstances, we find that the offence as defined under S.375 is not attracted; instead an attempt to commit the offence under S.375 cognizable under S.511 is attracted. As it is well settled, a crime contemplates four phases
- intention, preparation, attempt and commission/accomplishment. In the instant facts, the commission, insofar as the offence under S.375 is concerned, is unsuccessful. However, an attempt is quite clear. The medical evidence is also in support thereof. Here, we also notice that absence of a separate charge under S.511 of S.375 is of no consequence in view of the provision in sub-Section Crl.A 1308/2018 38 (3) of Section 222 of the Code.
39. The Hon'ble Supreme Court had occasion to deal with a similar situation recently in State of Madhya Pradesh v. Mahendra @ Golu [2021 SCC Online (SC) 965], where the Hon'ble Supreme Court held that the action of the accused in stripping the prosecutrixes and himself and rubbing his genitals against those of the victims was indeed an endeavour to commit sexual intercourse. The Hon'ble Supreme Court went on to hold that the acts of the accused were deliberately done with manifest intention to commit the offence and were reasonably proximate to the consummation of the offence; that the act exceeded the stage beyond preparation, but preceded actual penetration. Observing thus, the Hon'ble Supreme Court upheld the conviction under S.511 of S.375. The fact situation is more or less similar and the judgment is on all fours. We, therefore, conclude that the offence attracted is under Ss.511 and 375 of the Penal Code.
Crl.A 1308/201839
40. Now coming to the POCSO Act, it is true that S.3 contemplates penetration of penis "to any extent" into the vagina. However, the above definition does not obviate the legal necessity of a penetration as such, however negligible the extent be, which in this case is found lacking. As already taken note of, all what is there is an attempt of penetration, but unsuccessful. Therefore, we find that the offence of penetrative sexual assault under S.3 of the POCSO Act is not attracted. However, the offence of sexual assault under S.7 of the POCSO Act is very much attracted. By virtue of S.9(n), the offence of aggravated sexual assault punishable under S.10 of the Act is also attracted.
41. In view of the finding of guilt with respect to S.511 of S.375 of the Penal Code and also under S.9, read with S.10 of the POCSO Act, what remains is the question of appropriate sentence. S.511 contemplates a punishment which may extend to one-half of the punishment stipulated for the principal offence, the attempt of which has been found against the accused. Crl.A 1308/2018 40 In the instant case, the principal offence charged is one under S.375, punishable under S.376 of the Penal Code. Inasmuch as the victim/PW1 was aged only 11 years at the time of commission of the offence, her date of birth being 14.5.2001, the offence attracted is one under S.376(2)(f) of the Penal Code, which prescribes a punishment of not less than 10 years, but, which may be for life and also fine. In this context, it is relevant to note the language employed in S.511, that is to say, commit an offence 'punishable' by this Court with imprisonment for life. We take note that S.376(2) is an offence 'punishable' with imprisonment for life. Even the offence under S.376(1), which is not as aggravated as the one under S.376(2) is punishable with imprisonment for life. Therefore, for the purpose of S.511, the punishment provided for the offence has to be taken as imprisonment for life. Now, the question is how to reckon one-half of that punishment, which prescribes imprisonment for life, for which we take recourse to S.57 of the Penal Code, which is extracted herein below: Crl.A 1308/2018 41
"57. Fractions of terms of punishment.- In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years."
Thus reckoned, one-half of the punishment provided will be rigorous imprisonment for a period of 10 years for the offence under S.376(2) of the Penal Code.
42. Coming to the offence of aggravated sexual assault under the POCSO Act, the punishment prescribed under S.10 is imprisonment for a period not less than 5 years, but which may extend to 7 years and also fine. Here again, the punishment to be reckoned for the purpose of S.511 shall be imprisonment for a period of 7 years and one-half of the same will be imprisonment for a period of three years and six months. However, in view of S.42 of the POCSO Act, the accused/appellant is punished for offence under S.511, read with S.375 and S.376(2), the punishment for which offence being greater in degree. We retain the fine imposed by the Sessions Court for the offence under S.376 at Rs.1,00,000/- and for the offence under S.10 of the POCSO Act at Rs.50,000/-. The default sentence for Crl.A 1308/2018 42 non-payment of fine in each case is also stipulated as simple imprisonment, instead of rigorous imprisonment as imposed by the Sessions Court, for six months. The direction to compensate the victim by virtue of the recommendation by the District Legal Services Authority, as directed in the impugned judgment is sustained.
43. In the result, this Appeal is allowed in part. The conviction for offence under S.376 of the Penal Code is set aside; instead, the appellant/accused is convicted for offence under S.511, read with S.375 and the accused is sentenced to undergo rigorous imprisonment for a period of 10 years. The conviction under S.10 of the POCSO Act is sustained. The convictions under S.5(l) and (n) of the POCSO Act are also set aside. The Criminal Appeal is disposed of as above.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C.JAYACHANDRAN JUDGE Sbna/jg