Kerala High Court
Jaleel vs State Of Kerala on 12 August, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942
CRL.A.No.1040 OF 2018
AGAINST THE JUDGMENT IN SC 701/2016 DATED 20-03-2018 OF
ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM
CRIME NO.333/2016 OF Edathala Police Station , Ernakulam
APPELLANT:
JALEEL,
AGED 38 YEARS, S/O KUNJI PAREETH,
C.NO.4094, CENTRAL PRISON, VIYYUR - 680 010.
BY ADV. MOHAMED SABAH
BY ADV. NIHARIKA HEMA RAJ, STATE BRIEF
RESPONDENT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY CI OF POLICE, ALUVA POLICE STATION.
SRI.B.JAYASURYA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-
08-2020, THE COURT ON 12-08-2020 DELIVERED THE FOLLOWING:
Criminal Appeal No.1040 of 2018
2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.1040 of 2018
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Dated this the 12th day of August, 2020
JUDGMENT
The sole accused in S.C.No.701 of 2016 on the files of the Additional Sessions Court, Ernakulam has come up in this appeal challenging his conviction and sentence in the said case.
2. The accusation in the case is that during the 2012 Onam holidays of the victim girl aged 12 years who was studying in 8th standard then, the accused who is none other than her father, had sexual intercourse with her on several occasions, and thereby committed the offence punishable under Section 376(2) of the Indian Penal Code (the IPC).
3. On the accused pleading not guilty of the Criminal Appeal No.1040 of 2018 3 charge levelled against him, the prosecution examined 16 witnesses on its side as PW1 to PW16 and proved through them 10 documents as Exts.P1 to P10. Among the witnesses, PW1 is the victim girl herself, PW2 is the wife of the brother of the accused, PW3 is the cousin brother of the accused, PW4 is the son of the elder brother of the accused, PW5 is a relative of the accused, PW7 is the doctor who examined the victim girl on 12.07.2016, PW9 is the Headmistress of the school where the victim girl was pursuing her studies, PW10 is the member of the Child Line at whose instance the crime was registered and PW11 is the youngest sibling of the victim girl. Among the documents proved, Ext.P1 is the First Information Statement given by the victim girl, Ext.P2 is the statement given by the victim girl under Section 164 of the Code of Criminal Procedure (the Code), Ext.P3 is the report of the medical examination of the victim girl, Ext.P5 is the extract of the relevant page of the School Admission Register pertaining to the victim girl and Ext.P7 is the First Information Report in the case.
4. On an appraisal of the materials on record, Criminal Appeal No.1040 of 2018 4 the court below found the accused guilty under Section 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for ten years, and to pay a fine of Rs.25,000/- and in default of of payment of fine, to undergo rigorous imprisonment for three months. As noted, the accused is aggrieved by his conviction and sentence.
5. When the matter was taken up on 03.08.2020, Adv. Niharika Hema Raj, the State Brief appointed in the case appeared for the accused and accordingly, the State Brief and the Public Prosecutor were heard.
6. At the outset, it was pointed out by the learned counsel for the appellant that while the specific case of the prosecution is that the occurrence took place some time in the year 2012, the crime was registered only after almost four years, in the year 2016 and there is no satisfactory explanation for the said delay. It was also pointed out by the learned counsel for the appellant that the charge in the case is vague in as much as it does not specify the dates on which the accused allegedly had sexual intercourse with the victim girl. It was also pointed out by the learned counsel that Criminal Appeal No.1040 of 2018 5 though it is recited in the charge that the sexual assaults were committed by the accused during her 2012 Onam holidays, no evidence was let in to prove such a case. Instead, it was pointed out that the evidence let in by the prosecution would only show that the sexual assaults were committed by the accused during the annual vacation of the victim girl while she was studying in the 8th Standard. According to the learned counsel, want of proper charge in a case of this nature has caused substantial prejudice to the accused and the impugned judgment is liable to be set aside on that sole ground. As regards the evidence tendered by the prosecution to prove the guilt of the accused, it was pointed out by the learned counsel that in order to prove the core aspect of the crime, the only evidence available is the evidence of the victim girl and that the said evidence is not credible enough to rest the conviction of the accused solely based on the same. The learned counsel elaborated the said submission pointing out that the victim girl was not consistent at all in her versions as regards the occurrence. The learned counsel pointed out that the previous statement made by the victim girl to PW7 doctor Criminal Appeal No.1040 of 2018 6 when she was taken before her for medical examination was that the occurrence took place in the year 2013 and also that the accused had assaulted her only once, whereas, her evidence before the court was to the effect that the occurrence took place in the year 2012 and the accused had committed sexual assault on her 5 to 6 times. It was also pointed out by the learned counsel that the case of the prosecution that the accused had sexual intercourse with the victim girl when she was sleeping along with the other members in her family including her mother and her younger siblings is inherently absurd and improbable. It was further pointed out by the learned counsel that the case set out by the prosecution that the victim girl had not divulged the occurrences to anyone including her friends for about four years cannot also be believed, especially when it has come out that the victim girl used to attend awareness classes taken by Child line in matters of this nature. It was also pointed out by the learned counsel that had the occurrences alleged been real, the victim girl would not have come to her house thereafter and it has come out that the victim girl used to Criminal Appeal No.1040 of 2018 7 come to her house during all her vacations thereafter as well. It was also pointed out by the learned counsel that the most competent witness who should have been examined by the prosecution in the case is the mother of the victim girl who was present in the house at the time when the alleged sexual assaults were committed by the accused and she has not been examined by the prosecution. Non examination of the mother of the victim girl in a case of this nature, according to the learned counsel, is fatal to the prosecution case. It was argued by the learned counsel that though it is alleged that the mother of the victim girl is mentally ill, to justify her non examination in the proceedings, nothing was brought out in evidence to prove the said fact. The essence of the submissions made by the learned counsel, therefore, was that in the circumstances, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt. Alternatively, it was argued by the learned counsel that the sentence imposed on the accused by the court below was grossly disproportionate to the gravity of the offence established. It was pointed out that the occurrence being one Criminal Appeal No.1040 of 2018 8 took place prior to Act 13 of 2013, the court below ought not have imposed a sentence of 10 years rigorous imprisonment on the accused.
7. Per contra, the learned Public Prosecutor contended that though the evidence as regards the core aspect of the crime was given by the victim girl as PW1, the evidence tendered by her relatives namely, PW2, PW3, PW4 and PW5 are consistent with the evidence given by PW1 as regards aspects other than the core aspect of the crime and a cumulative evaluation of the evidence adduced by the said witnesses would establish the occurrences alleged by the prosecution. According to the learned Public Prosecutor, the inconsistencies and contradictions pointed out by the learned counsel for the appellant are of trivial nature and the same, at any rate, are not sufficient to ignore the weighty evidence adduced by the prosecution. The submission made by the learned Public Prosecutor in the circumstances, was that the judgment does not call for any interference.
8. After the case was heard and reserved for judgment, Adv.Mohammed Sabah mentioned in court that he Criminal Appeal No.1040 of 2018 9 had instructions from the appellant to appear in this matter, and though he had filed Vakalath, his name was not shown in the cause list on 3.8.2020 and he could not, therefore, address arguments on behalf of the appellant. Adv.Mohammed Sabah, in the circumstances, prayed for an opportunity to address additional arguments in the case. The matter was accordingly listed as 'to be spoken to' and Adv.Mohammed Sabah was also heard.
9. It is seen that the occurrence took place prior to Act 13 of 2013 in terms of which Section 376 of the Indian Penal Code was amended. As such, the point arising for consideration is as to whether the Prosecution has established the guilt of the accused under Section 376(1) of the Indian Penal Code, as it stood prior to Act 13 of 2013.
10. In order to adjudicate the point, it is necessary to refer to the evidence let in by the prosecution in the case. The victim girl as PW1 has deposed that the accused is her father; that her mother is mentally ill; that she has two younger siblings; that she is staying in an orphanage and going to school from there from her 4 th standard onwards; Criminal Appeal No.1040 of 2018 10 that she used to come to her house during holidays and that the accused who is her father used to misbehave with her. It is seen that she wept for some time and deposed thereafter that the accused used to touch her genital area when others in the house go to sleep by lying near her, after removing her clothes and that the accused has inserted his finger and his genital organ into her vagina on 5 to 6 occasions. PW1 deposed that it was during her vacation while studying in the 8th standard that the said occurrences took place. PW1 deposed that she did not disclose this to anyone on account of fear and that she has disclosed this for the first time to the Child line counsellor. PW2 is the wife of the brother of the accused. She too deposed that the wife of the accused is suffering from mental illness. The essence of her evidence was that PW5 has told her that he has seen once that the accused is standing in a bad position near his daughters. PW2 also deposed that when she questioned the accused, he denied the same and when she questioned the younger siblings of the victim girl, they also denied the same. PW3 is a person residing in the immediate neighbourhood of the house Criminal Appeal No.1040 of 2018 11 of the accused. He deposed that PW5 has told him that he saw the accused behaving indecently to his children. He deposed that he, accordingly, informed the matter to PW4 who is the son of the brother of the accused. PW4 deposed that based on the information received from PW5 that the accused used to misbehave with his children, he informed the matter to the Child line. PW5, who was examined thereafter, deposed that he used to park his auto rickshaw in the house of PW3 which is near the residence of the accused and that one day when he looked into the house of the accused, he saw the accused standing naked near his daughter. He deposed that he, accordingly, informed the matter to PW4. PW7 is the doctor who examined the victim girl on 12.07.2016. She deposed that the victim girl was brought before her on the said day with the history of sexual assault by her father. PW7 deposed that on examination, she found the hymen of the victim girl torn and the tear was old. PW9 is the headmistress of the school where the victim girl was pursuing her studies. She deposed, based on the entry in the relevant page of the school admission register, namely, Ext.P5, that the victim girl Criminal Appeal No.1040 of 2018 12 was born on 20.04.2000. PW10 is a member of the Child line. She deposed that on 10.07.2016, a call was received by Child line to the effect that the accused is molesting his children and when she went there on that day, only the youngest sibling of the victim girl was available at the house. PW10 deposed that on the next day, she went to the orphanage where the victim girl was staying and talked to the victim girl. PW10 deposed that when she questioned the victim girl, she disclosed to her that her father used to touch her private parts and also had sexual intercourse with her. PW10 deposed that she accordingly informed the matter to the police. PW11 is the younger sibling of the victim girl who deposed that she had once seen her father grabbing the breast of the victim girl.
11. As revealed from the evidence aforesaid, as regards the core aspect of the crime namely, the sexual assaults alleged to have been committed by the accused, the only evidence available is the evidence of the victim girl. It is trite that in a case of this nature, the accused can be convicted solely based on the evidence of the victim if the Criminal Appeal No.1040 of 2018 13 evidence of the victim is of a sterling quality. In other words, the moot question is as to whether the evidence tendered by the victim girl is of a sterling quality so as to rest the conviction solely based on the same.
12. As noted, PW1 has categorically deposed that when all others in the house go to sleep, the accused used to lie down near her and touch her genital organ. She also deposed that the accused has inserted his finger and also his genital organ into her vagina on a few occasions. Though PW1 was cross examined, nothing was elicited from her evidence to discredit the said evidence tendered by her. The attempt made by the accused during cross examination of the victim girl was that she is giving evidence as tutored by the brothers of the accused, who are interested in his property. It is not clear from the materials on record as to how the brothers of the accused would be able to appropriate the property of the accused if he is convicted. Further, it is seen that the victim girl was aged 16 years at the time when she gave evidence. I do not find any reason for a girl aged 16 years to raise an accusation of sexual assault against her own father, if the Criminal Appeal No.1040 of 2018 14 same is not true, that too, at the instance of the brothers of her father. The evidence tendered by PW7, the doctor who examined the victim girl as indicated above, which has not been discredited, also supports the case spoken to by PW1. That apart, the evidence tendered by the victim girl has been corroborated by the previous statements of the victim girl namely Ext.P1 given by her under Section 154 of the Code and Ext.P2 given by her under Section 164 of the Code.
13. Now I shall deal with the contentions raised by Adv.Niharika Hema Raj. The essence of the charge in the case is that the accused who is none other than the father of the victim girl, had sexual intercourse with her on a few occasions while she was studying in 8th standard, though it was mentioned in the charge that the occurrences took place during 2012 Onam holidays. True, PW1 has stated in her evidence that the occurrences took place during her annual vacation while studying in 8 th standard. I do not think that the accused can be heard to contend that failure of justice has been occasioned on account of the mentioning of the period "Onam holidays", instead of "annual vacation" in the charge. Criminal Appeal No.1040 of 2018 15 As such, in the light of the provision contained in Section 464 of the Code, the contention raised by the accused in this regard is only to be rejected. Similarly, in so far as the accused is none other than the father of the victim girl, the conduct of the victim girl in not disclosing the occurrences to anyone can never be viewed with suspicion. That apart, when PW10, the child line worker went to the house of the victim girl, on receiving an anonymous call that the accused is molesting his children, she could not find the victim girl in the house and it is only when PW10 went to the orphanage where she was residing and questioned, she disclosed the occurrences to her. The aforesaid circumstances would also reinforce the fact that the disclosure made by the victim girl to PW10 is genuine. Similarly, in so far as the crime was registered on an intimation received from Child line, it cannot be said that the delay in lodging the FIR is fatal to the prosecution case. As regards the inconsistency in the evidence tendered by the victim girl, the circumstance highlighted that the victim girl has disclosed to PW7 that the occurrences took place in the year 2013, is without any Criminal Appeal No.1040 of 2018 16 substance since she has stated in the said disclosure also that she was studying in 8th standard then, which is consistent with her evidence in the case. True, the version of the victim girl as regards the number of times at which the accused had sexually assaulted her, as disclosed by her to PW7 and before the court is not consistent. But that by itself is not a ground for me to suspect the evidence tendered by the victim girl. The argument advanced by the learned counsel that the case spoken to by the victim girl that the accused used to assault her sexually when others in the house go to sleep cannot be said to be an improbable version as projected by the learned counsel, especially when the wife of the victim girl is stated to be mentally ill and when the remaining members in the house were the younger siblings of the victim girl. Similarly, I do not find any merit in the contention taken by the learned counsel that had the alleged occurrences been genuine, the victim girl would not have come to her house, for if she had come to her house even after the occurrences, it is on account of her helplessness and the accused cannot take advantage of the same. Similarly, the non-examination of the mother of the Criminal Appeal No.1040 of 2018 17 victim girl also cannot be said to be fatal in this case, as not only the victim girl and her younger sibling who was examined as PW11, but also other witnesses who are their close relatives have testified that the mother the victim girl is mentally ill.
14. Adv.Mohammed Sabah, after endorsing the submissions made by Adv.Niharika Hema Raj, submitted, placing reliance on Ext.P5 extract of the school admission register of the victim girl, that since the victim girl joined for Plus One course during July 2015, it can be certainly presumed that she must have been studying in 8 th standard only in the year 2013 and therefore, it can be concluded that the prosecution has not established its case that the accused had sexual intercourse with the victim girl during the year 2012. As noted, the essence of the charge in the case is that the accused had sexual intercourse with the victim girl during her vacation while she was studying in 8 th standard. As the said case has been established by the prosecution, the accused cannot take advantage of the wrong mentioning of the year 2012 in the charge, if at all the same is wrong. Placing reliance Criminal Appeal No.1040 of 2018 18 on Ext.P8 communication sent by the Co-ordinator of the Child line, it was argued by Adv.Mohammed Sabah that the allegation therein is only that the accused has committed sexual assault and not penetrative sexual assault, and if the said document is considered in the light of the evidence of PW11, the younger sibling of the victim girl, it can be seen that the accused has not committed rape on the victim girl. I do not find any merit in this argument also, for Ext.P8 is only a communication issued in terms of Section 19(1) of the POCSO Act, and merely for the reason that the expression 'sexual assault' is used in the said communication, it cannot be contended that the disclosure made by the victim girl to PW10, as spoken to by her, is incorrect. In the light of the aforesaid discussions, I have no doubt that the prosecution has proved beyond reasonable doubt, the overt act of sexual assault attributed against the accused and there is no infirmity at all in the finding rendered by the court below in this regard.
15. In so far as the accused is none other than the father of the minor victim girl, I do not think that the sentence of imprisonment of ten years imposed on him is Criminal Appeal No.1040 of 2018 19 disproportionate in any manner. However, it is brought to my notice that the accused was convicted and sentenced to undergo rigorous imprisonment for life on the same day in another case namely, S.C.No.700 of 2016 on the files of the same court, for having committed penetrative sexual assault on the younger sibling of the victim girl and the appeal preferred by him against the judgment in the said case is pending before this court as Crl.Appeal No.1041 of 2018. In the light of the said conviction, I deem it appropriate to order the sentence imposed on the accused in this case to run concurrently with his sentence in S.C.No.700 of 2016 on the files of the Additional Sessions Court, Ernakulam.
In the result, the appeal is dismissed. It is, however, ordered that the sentence imposed on the appellant in this case shall run concurrently with the sentence imposed on him in S.C.No.700 of 2016 on the files of the Additional Sessions Court, Ernakulam.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj/PV