Kerala High Court
Jafar Ali vs State Of Kerala on 25 July, 2024
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
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 25TH DAY OF JULY 2024 / 3RD SRAVANA, 1946
CRL.A NO. 324 OF 2017
CRIME NO.247/2014 OF KASABA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.03.2017 IN SC NO.846 OF 2015
OF ADDL. DITRICT & SESSIONS COURT FOR TRIAL OF CASES
RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN &
CHILDREN, KOZHIKODE
APPELLANT/4TH ACCUSED:
JAFAR ALI
AGED 32 YEARS, S/O.KUNHEEN,
EENGAPPADALEEL HOUSE, ATHRUSSERI P.O.,
CHILAVIL, VYLATHUR, MALAPPURAM DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.A.RAJESH
SRI.M.SUNILKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-682031.
BY ADV.
SMT.AMBIKA DEVI S, SPL.GOVERNMENT PLEADER
(ATROCITIES AGAINST WOMEN & CHILDREN)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.07.2024, ALONG WITH CRL.A.979/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal.Nos.324/2017 & 979/2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 25TH DAY OF JULY 2024 / 3RD SRAVANA, 1946
CRL.A NO. 979 OF 2024
CRIME NO.247/2014 OF KASABA POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 28.03.2017 IN SC NO.846 OF 2015 OF
ADDITIONAL DISTRICT & SESSIONS COURT FOR TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN,
KOZHIKODE
APPELLANT/ACCUSED NO.3:
SHAMEER @ SAJI
AGED 53 YEARS, S/O. PURUSHOTHAMAN,
ANAMTHURUTHIHIRA (H), KADAVANTHRA P.O.,
KASTHURBA NAGAR, ERNAKULAM DISTRICT, PIN - 682020
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY
SAIPOOJA
SADIK ISMAYIL
R.GAYATHRI
M.MAHIN HAMZA
RAYEES P.
ALWIN JOSEPH
BENSON AMBROSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
25.07.2024, ALONG WITH CRL.A.324/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.Appeal.Nos.324/2017 & 979/2024
3
JUDGMENT
Dated this the 25th day of July, 2024 C.Pratheep Kumar, J.
1. The facts of this case discloses the plight of a hapless girl born in Bangladesh, who was allegedly sold by her own cousin and his wife, after giving false promise of job, for the purpose of sexual exploitation. As per the prosecution case, the victim is a minor of 15 years. Altogether, there are six accused persons in this case. The prosecution case is that on 1.4.2014, the accused persons 1 and 2, who are the cousin of the minor and his wife, offering to arrange a job to her, took her from Panvel in Mumbai to Mysore, handed over her to the 3 rd accused, who in turn sold her to the 4 th accused. Thereafter, the 4th accused had given her to accused persons 5 and 6, for a period of ten days for sexual exploitation, after receiving a consideration of Rs.38,000/-. Then accused persons 3, 5 and 6 transported her in the car KL-10-R-7172 from Mysore, brought her to the lodge by name White Lines, situated in Kallai road, Kasaba, Kozhikode at 00:45 hrs. on 3.4.2014, took room Nos.316 and 317 therein and provided all arrangements for enabling the 5th accused to commit rape on her inside room No.317.
Crl.Appeal.Nos.324/2017 & 979/2024 4
2. The accused persons 2 and 3 were absconding from the very beginning. After investigation, the Inspector of Police, Kasaba Police Station filed split charge as against the accused persons 1, 4, 5 and 6. However, at the time of evidence, the trial court has given them ranks as accused Nos.1 to 4 respectively. Thereafter, the original accused persons A1 and A4 (A1 and A2 in this case) also absconded. The trial as against A5 and A6 (A3 and A4 in this case) proceeded with and ended in their conviction.
3. The learned Additional Sessions Court (The trial of cases relating to atrocities and sexual violence towards women & children), Kozhikode in CC. No.846 of 2015 framed charge against accused persons under Section 370 and 376 IPC and Section 4 of the POCSO Act, 2012. On the side of the prosecution, PWs 1 to 15 were examined and Exhibits P1 to P17 were marked. Ext. D1 and D2 were marked on the defence side. After hearing both sides, the trial court found them guilty. The 5th accused (3rd accused in this case) was found guilty under Section 370 & 376 of IPC and Section 4 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of six months, for the offence under Crl.Appeal.Nos.324/2017 & 979/2024 5 Section 370; and to undergo imprisonment for life and to pay fine of rupees one lakh and in default to undergo rigorous imprisonment for a further period of one year under Section 376 IPC. No separate sentence was imposed under Section 4 of the POCSO Act. The 6 th accused (A4 in this case) was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- and in default, to undergo rigorous imprisonment for a period of six months under Section 370 IPC. There is also a direction to pay the fine amount, if realised, as compensation to the survivor. Aggrieved by the above judgment of conviction and sentence, the accused persons 5 and 6 preferred these appeals. Crl. Appeal 324/2017 is filed by the 6th accused and Crl. Appeal 979/2024 is filed by the 5th accused.
4. The points that arise for consideration are the following:
1) Whether the prosecution has succeeded in proving that the appellants along with the absconding accused persons have committed the offence of trafficking of PW2?
2) Whether PW2 was a 'child', as defined under the POCSO Act 2012, on the date of commission of the offence on 3.4.2014?
3) Whether the 5th accused (A3) committed rape and penetrative sexual assault on PW2 in room No.317 of White Lines Hotel at Crl.Appeal.Nos.324/2017 & 979/2024 6 Kallai road, Kozhikode during the early hours of 3.4.2014?
5. Heard both sides.
6. Point No.2:- (For the purpose of convenience, point No.2 is discussed earlier.) The prosecution case is that on the date of occurrence on 3.4.2014, PW2, the survivor was a minor of 15 years. Admittedly, PW2 is a Bangladesh national, who was taken to India promising to arrange her a job. At the time of evidence, PW2 deposed that she is an illiterate girl. Though she claimed that her date of birth is 7.5.1997, it is only hearsay knowledge, as told by her father. Since she had not studied in any school, there is no school certificate to prove her age. The prosecution could not produce any documents to prove her age. In the above circumstances, the prosecution has relied upon the evidence of PW11, the Senior Resident Medical Officer, Department of Forensic Medicine, Medical College Hospital, Kozhikode, who had conducted the test for determining the age of PW2 and issued Exhibit P12 certificate.
7. According to PW11, as per her examination, PW2 was above 16 years and below 18 years on the date of commission of the offence on 3.4.2014. However, during cross examination she admitted that there is Crl.Appeal.Nos.324/2017 & 979/2024 7 marginal error of one year in the above finding arrived at by her in Exhibit P12. Therefore, even according to the evidence of PW11, the age of PW2 may be between 15 and 19. Therefore, it is to be held that, in this case there is no convincing evidence to prove that PW2 was under 18 years of age on 3.4.2014. In other words, there is no reliable evidence to prove that she was a 'child' as defined under the POCSO Act and as such this point is answered accordingly.
8. Point No.3:- As per the prosecution case, the 5 th accused committed rape on PW2 in room No.317 of White Line hotel, Kallai, Kozhikode during the early hours of 3.4.2014. In order to prove the above incident, the evidence available in this case is the oral testimony of the survivor as PW2. In categorical terms, she had deposed that on 2.4.2014, the accused persons 1 and 2 brought her from Mumbai to the residence of 3rd accused by name 'Chotty' in Mysore, promising to arrange her a job. In the evening of 2.4.2014, the 3rd accused along with two other persons took her in a car and during the night they reached a lodge at Calicut. She identified the driver of the said car as 6 th accused and the other male person who accompanied them in the car as 5 th accused, before the court.
9. According to PW2, the accused persons booked two rooms in the Crl.Appeal.Nos.324/2017 & 979/2024 8 above lodge and she was asked to sleep in one of those rooms. The 3 rd accused told her that she will return after a while and therefore, she did not lock the door from inside. While she was sleeping, she heard some noise and when she woke up she saw the 5th accused inside the room. When she tried to escape from the room, the 5 th accused stopped her, beat on her face and she fell down on the bed. He laid over her body, threatened not to make any noise, tored her churidar, removed his dress, caught hold on her thigh, shoulder and left breast and also kissed her. In spite of her resistance, he overpowered her, closed her mouth, intimidated her and committed rape on her. When he released her, she went inside the bathroom and locked it's door from inside and stayed inside the bathroom till the morning. In the morning, when she opened the door of the toilet, she saw the 5 th accused lying on the bed and at that time she changed her dress and came out of the room. At that time, the 3rd accused saw her and asked her where she is going. She told the 3rd accused that she is not going anywhere. When the 3rd accused entered inside the other room, she ran away from there to the road, where she saw an auto-rickshaw and with the help of the auto-rickshaw driver (PW1), she reached the Women Police Station, where she informed the matter to the police.
Crl.Appeal.Nos.324/2017 & 979/2024 9
10. PW1 also deposed that in the morning on 3.4.2014, while he was in his auto-rickshaw, a girl approached him and wanted to go to the bus stand towards Bombay. When he asked about the reason for her sorrow, she told him that somebody assaulted her and then she started weeping. Therefore, he had taken the child to the Women Police Station. During the cross-examination of PW1, the attempt was to show that he also had role in transporting her to Kozhikode, which he denied.
11. PW3, the Receptionist of Hotel White Lines would swear that at about 9 a.m. on 3.4.2014, the accused persons 5 and 6 (A3 and A4) along with a lady vacated the rooms occupied by them. Thereafter the police party came there and seized Exhibit P4 series registration cards and he signed in Exhibit P3 mahazar prepared for the registration cards as well as in Exhibit P2 scene mahazar.
12. PW5 was the Sub Inspector of Police, Women Police Station, Kozhikode, who had recorded Ext.P1, F.I. statement of PW2. According to her, when she reached the police station in the morning of 3.4.2014, PW2 was present there and she was crying. She was a Hindi speaking girl who came to the station in an autorickshaw. With the help of a Head Constable, who knew Hindi, she had recorded her F.I. statement. Before recording the statement, she had taken PW2 to several Crl.Appeal.Nos.324/2017 & 979/2024 10 hotels in Kozhikode and finally reached White Lines Hotel, which she identified.
13. PW6 was the Associate Professor, Department of Obstetrics and Gyneacology, Medical College Hospital, Kozhikode, who had examined PW2 on 3.4.2014 at 5 pm and issued Exhibit P8 certificate. She appeared with a history of sexual assault. On examination, there was a small tear and redness at 6'o clock position of the hymen, looks recent tenderness present. Redness found on fourchette. Vaginal dilation had occurred and is consistent with the introduction of male organ recently.
14. PW7 was Junior Resident Medical Officer, Department of Forensic Medicine, Medical College Hospital, Kozhikode, who had conducted the potency test of the 5th accused and issued Exhibit P9 certificate. According to him, there was nothing to suggest that the 5 th accused was not capable of performing sexual act.
15. PW15, was the Circle Inspector of Kasaba Police Station Kozhikode, who had conducted the investigation of the case. On 4.4.2014, he had prepared Exhibit P2 scene mahazar, seized Exhibit P4 series registration cards produced by PW3, as per Exhibit P3 mahazar and arrested the accused persons 5 and 6 on 4.5.2014. PW4 and 10 are Crl.Appeal.Nos.324/2017 & 979/2024 11 witnesses to the arrest of the accused.
16. In the light of the evidence of Pws1 to 7 and PW15, the learned Public prosecutor Smt. S. Ambika Devi would argue that the prosecution has succeeded in proving that the 5th accused has committed rape on PW2, beyond reasonable doubt and as such the conviction and sentence passed by the trial court is liable to be sustained. On the other hand, Smt. Saipooja, the learned counsel for the 5th accused would argue that there are embellishments and omissions in the evidence of PW 2 and as such the prosecution has not succeeded in proving the offence of rape alleged against the 5th accused, beyond reasonable doubt. Therefore, she prays for acquitting the 5th accused.
17. In support of the above argument, at first, the learned defence counsel invited our attention to the inconsistency between Exhibit P1, FI statement as well as the oral testimony of PW2. It is true that in the FI Statement, PW2 had given only a brief description of the atrocities committed by the 5th respondent on her body. At the same time, at the time of evidence, she had given a more detailed description in that respect. In Exhibit P1, she only stated that while she was lying on the bed, the 5th accused forcefully laid on her body, removed her dress, closed her mouth, removed his pants and committed rape on her for Crl.Appeal.Nos.324/2017 & 979/2024 12 about 10-15 minutes.
18. However, at the time of evidence, she had deposed that when she tried to escape from the room, the 5 th accused stopped her, beat on her face and she fell down on the bed. At that time he laid over her body, threatened not to make any noise, tored her churidar, removed his dress, caught hold on her thigh, shoulder and left breast and also kissed her. In spite of her resistance, he overpowered her, closed her mouth, intimidated her and committed rape on her. Therefore, it was argued that the detailed description given by PW2 at the time of evidence regarding the overt acts committed by the 5th accused amounts to embellishment and material omission, sufficient enough to disbelieve PW2.
19. It is true that in Ext.P1 or in the charge it is not stated that the 5th accused beat on the face of PW2, as deposed by her at the time of evidence. However, it is interesting to note that the so called 'embellishments' and 'omissions' were not brought to the attention of PW2 when she was cross examined, as required under Section 145 of the Indian Evidence Act. Since, at the time of evidence, her attention was not brought to those omissions and no opportunity was given to offer her explanation in that respect, the appellant cannot now take Crl.Appeal.Nos.324/2017 & 979/2024 13 advantage of those omissions.
20. However, as argued by the learned Public Prosecutor, in Exhibit P1 as well as in the evidence of PW2, she unequivocally stated that while she was sleeping inside the room, the 5th accused came to her, laid over her body, undressed her as well as himself, closed her mouth and committed rape on her, in spite of her resistance. At the time of evidence before the court, she had additionally stated that while committing rape, the 5th accused caught hold of her thigh, shoulder, and pressed her left breast, and also kissed her. In fact, it cannot be styled as embellishment or even improvement. When she stated that the 5 th accused laid on her body, undressed her and himself and committed rape on her, those alleged 'omissions' would automatically come within it's sweep.
21. The law is well settled that FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR.(V.K.Mishra v. State of Uttarakhand, AIR 2015 SC 3043). In paragraph 13 of the decision in V.K.Mishra (supra) the Apex Court held:
"13. FIR is not meant to be an encyclopedia nor is it expected to Crl.Appeal.Nos.324/2017 & 979/2024 14 contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in the FIR. Complaint was lodged within few hours after the tragic event. PW-1 has lost his young daughter just married before six weeks in unnatural circumstances. Death of a daughter within few days of the marriage, the effect on the mind of the father-PW1 cannot be measured by any yardstick. While lodging the report, PW-1 must have been in great shock and mentally disturbed. Because of death of his young daughter being grief stricken, it may not have occurred to PW-1 to narrate all the details of payment of money and the dowry harassment meted out to his daughter. Unless there are indications of fabrication, prosecution version cannot be doubted, merely on the ground that FIR does not contain the details."
22. In this context, it is also to be noted that the FI statement was given by PW2 immediately after she miraculously escaped from the clutches of the accused persons. At that time she must have been in great shock and mentally disturbed. The trauma undergone by such a minor girl at the hands of the accused persons, is to be considered while appreciating the First statement given by her at the police station immediately after the incident. At that time she may not be in a position to narrate all details to the police. PW5 also deposed that PW2 was crying while giving the statement and also that she was not in good mental condition.
Crl.Appeal.Nos.324/2017 & 979/2024 15
23. In the decision in State of Punjab v. Gurmit Singh and Others, (1996) 2 SCC 384 the Apex Court narrated the psychological as well as physical harm inflicted by the rapists on the survivors. In paragraph 21 the Court held that:
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. 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 soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration Crl.Appeal.Nos.324/2017 & 979/2024 16 required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
24. In the decision in Matadin v. State of U.P., 1979 KHC 779, the Hon'ble Supreme Court held that the statements given by the witnesses before the Police are meant to be brief statements and it could not take the place of evidence, in the following words:-
".....The Sessions Judge did not realise that the statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self contained liars."
25. At the time of evidence, PW2 also clarified that when she had given the first information statement she was very much scared and hence, she could not give all the details in the above statement. Though at the time of giving the FI statement, PW2 knew only Hindi, at the time of her examination before court after more than 2 years, she became fluent in Malayalam and she had given evidence in Malayalam. At that time she was in a totally different situation, where she has more Crl.Appeal.Nos.324/2017 & 979/2024 17 freedom to express the atrocities faced by her.
26. At the time of evidence, it is revealed that at first PW5 recorded the statement of PW2 as a draft and only thereafter the original FI statement was recorded. In the original FI statement, the thumb impression of PW2 was obtained, while in the draft it was not obtained. However, it so happened that, along with the FIR, the draft FIS was produced before the Sessions Court. Subsequently, on 7.4.2014, the original FI statement containing the thumb impression of PW2 was produced, along with a covering letter, requesting to substitute the same in the place of the draft. Therefore, at the time of arguments, the learned counsel for the appellants raised a contention that the original FI Statement was suppressed in the case.
27. In the case bundle, the draft FIS, is present. Since it did not contain the signature or thump impression of PW2 and since it was a draft, what was marked as Exhibit P1 is the original FI statement containing the thumb impression of PW2. Since Exhibit P1 was prepared subsequent to the draft, technically it can be stated that Exhibit P1 is not the First Information Statement. At the time of cross- examination, PW5 deposed that Ext.P1, original FI statement was prepared immediately after the draft was prepared, without much time Crl.Appeal.Nos.324/2017 & 979/2024 18 gap. According to her, when she started recording the statement, PW2 was not in a good mental condition. That is why, the draft was prepared first and thereafter, original was prepared. The above version given by PW5 appears to be true as Ext.P1 is the verbatim reproduction of the draft. Therefore, no prejudice was caused to the accused persons in that respect.
28. It was the learned counsel for the 5th accused who had seriously raised the contention that the 5th accused was not previously known to PW2 and as such identification of 5 th accused made by PW2 before the court for the first time after the incident cannot be relied upon, in the absence of any test identification parade. In support of the above argument, she has relied upon the following decisions:
(i) Rameshwar Singh v. State of J and K[1971 KHC 604], (ii) Kannan v. State of Kerala [1979 KHC 393], (iii) Raju alias Rajendra v. State of Maharashtra [1998 KHC 642], (iv) Rabindra Kumar Pal @ Dara Singh v. Republic of India [2011 KHC 4063],
(v) Mukesh Singh v. State (NCT of Delhi) [2023 KHC OnLine 6804] and Sasikumar P. v. State Rep. By the Inspector of Police [2024 KHC OnLine 6332].
29.On the other hand, the learned Public Prosecutor would argue that there Crl.Appeal.Nos.324/2017 & 979/2024 19 was enough time for PW2 to get acquaintance with the accused persons as they were travelling in the same car from Mysore to Kozhikode together for several hours and thereafter they have reached White Lines hotel, took rooms and stayed there, which was enough to imprint the image of accused persons in her memory.
30. In the decision in Milkhansingh v. State of Madhya Pradesh [(2003) 5 SCC 746], the necessity of conducting TI parade was considered by the Hon'ble Supreme Court and held that though it is a safe rule of prudence, it is not an inflexible one. In paragraph 7 the Court held as follows:
"..... As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to Crl.Appeal.Nos.324/2017 & 979/2024 20 the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration."
31. It is true that in case the witness has no previous acquaintance with the accused, identification of the accused for the first time before the court, may not always be safe. In such circumstances, identification of the accused at the TI parade will corroborate the evidence given before the court. However, in case the witness had enough time to see and interact with the accused for quite long time so as to get the image of the accused imprinted in the memory of the witness, and the evidence given inspires the confidence of the court, absence of TI parade may not affect the prosecution case.
32. In the instant case, as argued by the learned Public Prosecutor, PW2 had sufficient time to interact with the accused persons and to have their images imprinted in her memory. On 2.4.2014, the 3 rd Crl.Appeal.Nos.324/2017 & 979/2024 21 accused along with accused persons 5 and 6 took her in a car from Mysore and they reached the hotel White Lines at Kozhikode in the early hours of 3.4.02014. Thereafter they have stayed in that hotel. While PW2 was lying on the bed, the 5th accused went inside the room and committed rape on her. From the evidence of PW2 it is also revealed that there was light inside the room when the 5 th accused committed rape on her. In the above circumstances, there was enough time for PW2 to see and interact with the 5th accused and to have a clear picture of his image in her memory and as such absence of TI parade is not fatal in the facts of this case.
33. Moreover, in this case the 5th accused has taken a strange contention at the time of evidence that he had contracted to marry PW2 and also that huge amount was paid to her towards maher. A more strange contention was taken to the effect that after contracting the marriage she tried to induct him in some terrorist organisation. During the cross examination of PW2, an attempt was made by the learned counsel for the 5th accused to show that PW1 along with the accused persons 1 and 2 received huge amounts from the 5th accused towards maher and agreed to give PW2 to him in marriage. During the cross- examination of PW2, the learned counsel suggested to her that after Crl.Appeal.Nos.324/2017 & 979/2024 22 agreeing to marry the 5th accused she asked him to join a terrorist group and since he refused and told her that he will complain against her to the police, she filed a false complaint against him.
34. During the cross-examination of PW1 also, similar questions were put to him. It was suggested to him that he is a marriage broker, that he proposed PW2 to the 5th accused and also that through PW1, PW2 received maher. It was also suggested to PW1 that he tried to induct the 5th accused into a terrorist group. Both PWs 1 and 2 denied those suggestions. During the cross-examination of PW15 also the learned counsel suggested that the 5th accused complained about PW2 to him as she is a foreigner, belonging to Bangladesh. It was further suggested to PW15 that the 5th accused complained to him that PW1 proposed PW2 to him and received huge amount as maher. It was further suggested that when PW1 wanted him to join in a terrorist group, he declined and informed the matter to PW15. However, PW15 also denied those suggestions.
35. In those suggestions made by the learned counsel for the 5 th accused to PW1 and 2 and 15, he admits that he had much acquaintance with PW2 even before the commission of offence and also that it was due to previous enmity, he was falsely implicated in the crime. Those Crl.Appeal.Nos.324/2017 & 979/2024 23 suggestions, put to PW1, PW2 and PW15 on behalf of the 5 th accused will go to show that the 5th accused contracted to marry PW2 through the intervention of accused persons 1 and 2 and subsequently the said contract was not performed. Through those suggestions the 5th accused admits that he had enough acquaintance with PW2 before the commission of the offence and as such now he cannot turn round and say that he is not familiar to PW2, so as to identify him before the court at the time of trial.
36. More over, on account of the traumatic and tragic experience, the face of the rapist must be got imprinted in the memory of the survivor of a sexual assault, as held by the Apex Court in Milkhansingh (supra) In para 16 the court held that:
"16. .... .... .... The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of Crl.Appeal.Nos.324/2017 & 979/2024 24 the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. ..."
37. In a recent decision in Biju @ Ernakulam Biju v. State of Kerala, (Crl.Appeal No.1091/2018 decided on 5.6.2024), a Division Bench of this Court in which one of us was a party, has relied upon the above decision. In the light of the above reasons we have no hesitation to hold that the evidence of PW2 identifying the 5th accused before the court is reliable, trustworthy and liable to be accepted, without any corroboration. Even then, PW3 also identified the 5th accused and as such the identification of A5 stands proved, beyond reasonable doubt.
38. Relying upon the decision of Patna High Court in Sakindar Yadav v. State of Bihar [2023 KHC OnLine 4866], the learned counsel for the 5th accused would argue that if there was any use of force, there is chance of injuries on the body of the victim and absence of such injuries means absence of any use of force or violence. At the very outset, it is to be stated that the facts and circumstances of each case will be different. It is true that at the time of evidence, PW2 deposed that when the 5th accused approached her with sexual lust, she resisted and in spite of that he overpowered her, beat on her face, closed her Crl.Appeal.Nos.324/2017 & 979/2024 25 mouth and committed rape on her. For the mere reason that there is no external injuries on the body of PW2, no adverse inference can be drawn to the effect that there was no use of force or that it was a consensual relationship.
39. From the evidence of PW15, the Investigating Officer, it is revealed that in hotel White Lines, there was CCTV coverage and in spite of that the same was not produced as part of evidence. It is true that the Investigating Officer has failed to collect the CCTV footage from the hotel, though it was available. However, for the mere reason that the investigating officer failed to collect the said evidence and produce the same before the Court, the prosecution case could not be disbelieved, provided they are able to prove the case otherwise.
40. It is also revealed that PW2 had given 164 Cr.P.C statement to the Magistrate in Malayalam. However, the above 164 statement was not marked in evidence. Non-examination of the Magistrate who had recorded the above 164 Cr.P.C statement was highlighted by the learned counsel for the accused as a circumstance against the prosecution. It is true that though such a statement was recorded, it was not marked in evidence. Though the Magistrate who had recorded the statement was not examined, it could have been marked when the prosecutrix was Crl.Appeal.Nos.324/2017 & 979/2024 26 examined. But it was not seen done. S.164 Cr.P.C. statement of witnesses was recorded at the instance of the prosecution, in order to ensure that the witnesses stick to those statements when they are subsequently examined before the court and does not turn hostile to the prosecution. In the instant case, the de facto complainant has supported the prosecution and also adduced evidence in tune with the prosecution case. In the above circumstances, the failure of the prosecution to mark her 164 Cr.P.C statement is not fatal, if the other evidence available is inspiring the confidence of the court. For the mere reason that 164 statement was not marked in evidence, the same will not in any way affect the prosecution case.
41. Relying upon the decision of the Apex Court in Santhosh Prasad v. State of Bihar, 2020 KHC 6155, it was argued by the learned counsel for the 5th accused that the evidence of PW2 is not of sterling quality and as such conviction on her sole testimony is not proper. The test to determine whether a witness is a sterling witness was considered by the Apex Court in Rai Sandeep @ Deepu and Another v. State of NCT of Delhi, 2012 (8)SCC 21. In paragraph 22 the Court held that:
"22. In our considered opinion, the 'sterling witness' should be of a very high quality and calibre whose version should, therefore, be Crl.Appeal.Nos.324/2017 & 979/2024 27 unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, can it be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the Crl.Appeal.Nos.324/2017 & 979/2024 28 core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. "
42. In the above decision, the Hon'ble Supreme Court has reiterated the following observations made by another Bench of the Supreme Court in State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990 (1) SCC 550 -
"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which Crl.Appeal.Nos.324/2017 & 979/2024 29 requires it to look for corroboration."
43. Now the question to be considered is whether the evidence of PW2, the prosecutrix inspires confidence, absolutely trustworthy, unblemished and is of sterling quality?
44. The prosecutrix as PW2 adduced evidence almost in tune with the prosecution case. Her evidence regarding the core issue involved in this case that the 5th accused committed rape on her on 3.4.2014 during the early hours, inside room No.317 of White Lines hotel is exactly in tune with the prosecution case and there is nothing to disbelieve the same. Her evidence to the effect that she saw the 6 th accused paying money to the 4th accused and that the 5th accused beat on her face when she resisted rape are two omissions in her testimony. Out of which, the omission regarding the evidence that she was beaten up by the 5 th accused was not proved by the accused persons, for want of compliance of S.145 of the Evidence Act. We have already found that there is no material inconsistency between the evidence of PW2 and Ext.P1, FI statement. Considering the fact that PW2 is an illiterate girl born in Bangladesh and at the time of investigation she knew only Hindi, omission to state about the payment of money made by A6 to A4 is not serious enough to disbelieve her remaining testimony. As such, it is to Crl.Appeal.Nos.324/2017 & 979/2024 30 be held that there is no serious omissions or contradictions in the evidence of PW2, so as to discredit or disbelieve the same. Therefore, we are of the considered view that the evidence of PW2 inspires confidence, absolutely trustworthy, unblemished and is of sterling quality. Further, the evidence of the prosecutrix is fully corroborated by the medical evidence of PW6 and Ext.P8 certificate. Therefore, in the light of the evidence of Pws 1 to 7 and 15 including PW2, the prosecutrix and PW6 doctor, and Ext.P8 medical examination report, the prosecution has succeeded in proving that on 3.4.2014 during the early hours, the 5th accused committed rape on PW2. Point No.3 answered accordingly.
45. Point No.1:- The learned counsel for the 6th accused Mr.V.B.Sujesh Menon would argue that there is no sufficient evidence in this case to prove that the 6th accused was involved in the trafficking of PW2 and therefore, he prayed for setting aside the conviction as against the 6th accused. On the other hand, the learned Public Prosecutor would argue that there is sufficient evidence against the 5 th and 6th accused in the commission of the offence of human trafficking.
46. Section 370 IPC defines trafficking of a person as follows :-
Crl.Appeal.Nos.324/2017 & 979/2024 31 "370. Trafficking of person Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First - using threats, or Second - using force, or any other form of coercion, or Thirdly - by abduction, or Fourthly - by practising fraud, or deception, or Fifthly - by abuse of power, or Sixthly - by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
47. Regarding the involvement of accused persons 5 and 6, PW2 would swear that, on 2.4.2014 she was taken from Mysore to Kozhikode in the car driven by the 6th accused. In the above car, in addition to the 6th accused, the other passengers were accused Nos. 3 and 5. Therefore, it can be seen that accused 3,5 and 6 together transported PW2 from Mysore and reached the White Lines hotel in Kozhikode in the early hours of 3.4.2014. Thereafter, two adjacent rooms 316 and 317 were booked in the above hotel in the name of the Crl.Appeal.Nos.324/2017 & 979/2024 32 6th accused, as seen from Ext.P4 series registration cards. Then the 3 rd accused after keeping PW2 in room No.317 went to the other room, after telling PW2 that she will return to that room shortly and thereby ensured that the room will not be closed from inside, by PW2. It was thereafter, the 5th accused went inside room No.317, did not permit PW2 to go out and committed rape on her.
48. It appears that, when the 5th accused committed rape on PW2, the 6th accused along with the 3rd accused were present in the other room, knowing very well about what is going in room No.317. It appears that they have not only made all arrangements to enable the 5 th accused to commit rape on PW2, but also wanted to ensure that PW2 does not escape from their custody. After the commission of the offence, when PW2 came out of the room after changing her dress, the 3 rd accused questioned her. At that time, PW2 cunningly mislead the 3 rd accused stating that she had no idea to go away from them. When the 3 rd accused went inside room No.316, believing the words of PW2, she got an opportunity to escape from there. When she ran towards the road, in her attempt to escape from there, the 6th accused along with accused Nos.3 and 5 chased her in the car in their attempt to prevent her from escaping Crl.Appeal.Nos.324/2017 & 979/2024 33 from their clutches. Only because PW2 entered the railway station, crossed the railway track and reached the road on the other side, she could escape from the accused persons, with the help of PW1, an auto- rickshaw driver.
49. At the time of evidence, PW2 deposed that, when they entered the car at Mysore, another person who was there in the house of A3 approached A6 and after some discussion, A6 had given some money to that person. However, in her previous statements there is no mention about the above payment of money by A6 and such it is an omission amounting to contradiction, proved through PW15. Therefore, the evidence of PW2 regarding payment of money by A6 to A4 could not be believed.
50. It is revealed that on 1.4.2014, A1 and A2 took PW2 from their residence in Mumbai and reached the residence of A3 by noon on 2.4.2014. On 2.4.2014, A5 and 6 reached Mysore in a car driven by A6 and waited at the road, little away from the house of A3, at about 5 p.m., expecting A3 and PW2 to reach there. A3 introduced A5 and 6 to PW2 as her friends. Then they proceeded in that car to Kozhikode and reached White Line hotel during the early hours of 3.4.2014. Crl.Appeal.Nos.324/2017 & 979/2024 34
51. In the hotel, two rooms were taken in the name and address of A6, as stated in the final report. Ext. P4 series are the registration cards in that respect. However, in the registration cards, the names of the 2 women (A3 and PW2) were given incorrectly, as Rahimath in Ext.P4 and Sajeena in Ext.P4(a). At the same time, in the column relating to relationship, it is shown as "wife" in both cards. The purpose of visit is shown in both cards as 'hospital'. If A6 was not an accomplice along with the other accused persons, he would not have taken 2 rooms in his name introducing the women (A3 and PW2) as his wives and provided all necessary arrangements to A5 to commit rape on PW2 as above. The above conduct of the 6th accused in giving the names of two fictitious ladies in the hotel can only be to mislead the staff of the hotel and to cover up the acts of himself and the co-accused and the same will speak volumes, about his guilty intention.
52. The reasons given for accepting the identification of A5 equally applies to A6 also. All along the route from Mysore to Kozhikode and thereafter in the White Lines hotel also he was there along with A5. He was also there along with A3 and A5 to chase PW2 in car. The only difference is that he has not abused PW2. In addition to the oral Crl.Appeal.Nos.324/2017 & 979/2024 35 testimony of PW2 and PW3, Ext.P4 series registration cards also are available to prove the involvement of A6 in the trafficking. Those evidence are sufficient enough to prove the identification of A6, beyond reasonable doubt.
53. Though Ext.P4 series registration cards were seized on 4.4.2014, they were seen produced before the court only on 13.5.2014. Therefore, it was argued that it was subsequently fabricated after the arrest of the accused on 4.5.2014. However, when the receptionist of the hotel PW3 was examined, no such suggestion was put to him. To PW15 also no such suggestion was put. PW3, the receptionist of the hotel identified the accused persons 5 and 6 and deposed that they have stayed in the hotel and vacated in the morning at about 9 a.m. on 3.4.2014. He also deposed that rooms will be given to visitors only after verifying their identity and also that on seeing the accused and the woman he believed that they are members of a family. The above evidence of PW3 was also not challenged in cross-examination. Therefore, in the light of the evidence of PWs 3 and 15, Ext.P4 series stands proved and in the above circumstance, the delay in producing the same before the court has not in any way caused any prejudice to the accused persons. Crl.Appeal.Nos.324/2017 & 979/2024 36
54. It was argued by the learned counsel for the 6 th accused Mr.V.B.Sujesh Menon that the conduct of PW2 in not reporting about the incident to the staff of the hotel is to be viewed with suspicion. He would also highlight the fact that PW3, the receptionist of the hotel, deposed that he had seen only two men and a woman and that he had not seen PW2 in the said hotel. It is true that PW3 deposed that he had seen only two men and a woman at the time when they reported for vacating the rooms. PW3 deposed that he joined duty in the hotel on that day only at 8.30 a.m. and before that PW2 escaped from there. It was in the above context that PW3 had not seen PW2 at about 9 a.m. when A3, 5 and 6 vacated the hotel. Therefore, there was no occasion for PW3 to see PW2.
55. It is to be noted that accused persons brought PW2 from Mysore to Kozhikode, promising to arrange a job to her. She was sent along with A3, 5 and 6 by A1 and 2, her cousin and his wife. Therefore, at the time when she was brought to the hotel, there was no scope for any suspicion or complaint to anybody, including the hotel inmates. Subsequently, after the incident she was somehow trying to escape from there, without being noticed by the accused persons and when she got Crl.Appeal.Nos.324/2017 & 979/2024 37 an opportunity, she fled away from there. After getting out of the reach of the accused she reached the women police station and reported the matter. In the above circumstance, failure to inform the incident to the inmates of the hotel cannot be taken as fatal to the prosecution case.
56. He would further argue that in Ext.P8, alleged history given to PW6 doctor, nothing is mentioned against A6. It is true that in Ext.P8 in the column relating to 'history given by the police', it is stated that the two persons who accompanied A3 are her husband and husband's brother. It was argued that A6 is neither the husband nor the brother of the husband of A3. First of all, it is the version given to the doctor by the police and not by PW2. She is a Bangladeshi girl meeting A3 ,5 and 6 for the first time on 2.4.2014. According to her, A3 introduced 2 persons present in her house as her husband and husband's brother. According to her, A5 and 6 are two other persons introduced to her by A3 as her friends. In this context, it is also to be noted that in Ext.P4 series registration cards A6 had shown the names of two fictitious ladies and his relationship with them was shown as 'wife' in both cards. Since the above history was stated to the doctor by the police and not by PW2, much importance cannot be given to it.
Crl.Appeal.Nos.324/2017 & 979/2024 38
57. It was argued by the learned counsel for the 6th accused that there is no evidence in this case to show how PW15 identified and arrested the accused persons 5 and 6. However, in Ext.P5 seizure mahazar prepared by PW15 it is specifically stated that he had received an anonymous call informing him that the culprits involved in this case are travelling in KL 10 R 7172 Accent car from Vaithiry to Karnataka and that they will reach Thamarassery Churam around 10-10.30 p.m. and it was in the above context that he had checked the vehicle and arrested the accused persons 5 and 6 at the above place. After questioning them, he got them identified by PW2. Therefore, there is no merit in the above contention also.
58. The above conduct of accused persons 5 and 6, along with accused 1 to 4 in giving false promise of job to PW2, transporting her from Mysore to Kozhikode, sexually abusing her, not permitting her to move freely and attempting to chase her when she tried to flee away from them, speak volumes about their larger idea to sexually exploit her. By giving false promise of job to PW2, they have also practised fraud and deception to transport her from Mysore to Kozhikode.
59. Though the prosecution could not positively prove the payment of Crl.Appeal.Nos.324/2017 & 979/2024 39 money by A6 to A4, the other evidence available in this case is sufficient enough to reach the conclusion that the accused persons 5 and 6, along with the absconding accused persons, were associated with each other for the purpose of trafficking PW2 for sexually exploiting her. From the conduct of the 5th accused in going up to Mysore and taking PW2 in the car along with the 6 th accused, keeping her in the hotel, sexually exploiting her, not permitting her to move away from there even after the commission of the offence, the conduct in chasing PW2 when she escaped from the hotel room etc. constitutes the offence of trafficking punishable under Sec.370 IPC. It will also substantiates the prosecution case that 5th accused was also involved in the trafficking of PW2 along with A6.
60. Therefore, from the available evidence, it can be seen that the prosecution has succeeded in proving the offence under Section 370 IPC as against accused 5 and 6 and the offence under Section 376 IPC as against the 5th accused, beyond reasonable doubt. At the same time, since it is found that the prosecution has not succeeded in proving that PW2 is a 'child', as defined under the POCSO Act, the offence under Section 4 of the POCSO Act stands not proved. Accordingly, the Crl.Appeal.Nos.324/2017 & 979/2024 40 conviction entered into by the trial court under Section 370 IPC as against the 6th accused and under Sections 370 and 376 IPC as against the 5th accused are liable to be sustained and the conviction under Section 4 of the POCSO Act as against the 5 th accused is liable to be set aside.
61. In paragraph 10 of the decision in Chhagan Lal v. State of Rajasthan, 2019 KHC 4340, Rajasthan High Court held that :
"From a plain reading of the principles enunciated in the Supreme Court judgment in the case of Sunil Dutt Sharma (supra) and the statutory provision, ie, S.376 IPC (as it then stood), it is clear that imprisonment for a term of 7 years is the minimum sentence provided by the Section, which also postulates that the term may extend to 10 years or life, meaning thereby that awarding the minimum sentence of 7 years is the mandate of law, whereas, the court may, for the special reasons to be recorded, award a greater sentence, which may extend either to 10 years or imprisonment for life. Manifestly, thus, for awarding the maximum sentence of imprisonment for life, the court would have to record special and strong reasons. ..."
62. Section 376 IPC was amended w.e.f. 11.8.2018 providing a punishment with rigorous imprisonment for a term which shall not be less than ten years, which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, Crl.Appeal.Nos.324/2017 & 979/2024 41 and shall also be liable to fine. Before the above amendment, the punishment was "shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine."
63. In the instant case, the incident was on 3.4.2014, and the minimum punishment then was seven years and the maximum punishment was imprisonment for life.
64. In the decision in Chhagan Lal (supra) the Rajasthan High Court held that for awarding maximum sentence of imprisonment for life, special and strong reasons have to be given. In the instant case, the trial Court has not given any such reasons for awarding the maximum punishment of imprisonment for life. In the above circumstances, considering the entire facts, we hold that rigorous imprisonment for a period of ten years will be a reasonable punishment for the offence under Section 376 IPC. Further we hold that, considering the facts, rigorous imprisonment for seven years will be a reasonable punishment for the offence under Section 370 IPC. In the result, while sustaining the conviction under Section 370 and 376 IPC, the sentence is liable to be modified as follows :
In the result, in Crl.Appeal No.324 of 2017 filed by the 6th accused, the Crl.Appeal.Nos.324/2017 & 979/2024 42 conviction is sustained and sentence of imprisonment is reduced to rigorous imprisonment for seven years under S.370 IPC. The amount of fine and default sentence are sustained.
65. In the result, Crl.Appeal No.979 of 2024 filed by the 5th accused is allowed in part. The 5th accused is acquitted of the offence under Section 4 of the POCSO Act, under section 386(b)(i) Cr.P.C. The conviction under S.370 and 376 IPC are sustained. The sentence of imprisonment is reduced to rigorous imprisonment for seven years under S.370 IPC and rigorous imprisonment for ten years under S.376 IPC. The amount of fine and default sentence are sustained.
Sd/-
P.B. SURESH KUMAR, JUDGE Sd/-
C. PRATHEEP KUMAR, JUDGE sou./Mrcs.