Kerala High Court
R.M.Vinod Kumar vs State Of Kerala on 16 June, 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
TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942
CRL.A.No.773 OF 2018
AGAINST THE ORDER/JUDGMENT IN CP 13/2012 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,THALASSERY
AGAINST THE ORDER/JUDGMENT IN SC 503/2012 DATED 23-05-
2018 OF SPECIAL COURT UNDER POCSO ACT, KANNUR
CRIME NO.702/2011 OF Chokli Police Station , Kannur
APPELLANT/ACCUSED:
R.M.VINOD KUMAR
S/O MADHAVAN ACHARI, AGED 37/16,
RAYAROTH MEETHAL HOUSE, OLAVILAM AMSOM,
MATHIPARAMBA.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
SRI.V.C.SARATH
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SRI.THOMAS J.ANAKKALLUNKAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN &; WELFARE OF W & C
SMT. PUSHPALATHA M.K. SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08-06-2020, THE COURT ON 16-06-2020 DELIVERED THE
FOLLOWING:
Crl.Appeal No.773 of 2018
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P.B.SURESH KUMAR, J.
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Criminal Appeal No.773 of 2018
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Dated this the 16th day of June, 2020
JUDGMENT
The conviction of the appellant and the sentence imposed on him in S.C. No.503 of 2012 on the files of the First Additional Sessions Court, Thalassery are under challenge in this appeal.
2. The appellant is the sole accused. The victim in the case is a girl aged 17 years. The accusation in the case is that on 01.05.2011 at 3.00 p.m., and on several subsequent dates till 05.07.2011, the accused committed rape on the victim girl at her residence, and thereby committed the offence punishable under Section 376 of the Indian Penal Code (the IPC).
3. On the accused pleading not guilty of the charges, the prosecution examined 10 witnesses as PWs.1 to 10 and proved 12 documents as Exts.P1 to P12. The witnesses examined on the side of the prosecution have also identified MO1 to MO3 material Crl.Appeal No.773 of 2018 ..3..
objects. The accused was, thereupon, questioned by the court under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused thereupon gave evidence in the proceedings as DW1. He also proved 4 documents as Exts.D1 to D4.
4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl. She proved Ext.P1 First Information Statement. PW2 is the mother of the victim girl. PW3 is the father of the victim girl. He proved Ext.P2 scene mahazar and Ext.P3 seizure mahazar. PW4 is the person cited by the prosecution to prove that she has given counseling to the victim girl. PW5 is the Headmistress of the school where the victim girl was pursuing her studies after the occurrence. PW5 proved Ext.P4 certificate indicating the date of birth of the victim girl. PW6 is the doctor who examined the victim girl. PW6 proved Ext.P5 report issued by her. PW7 is the Secretary of the local authority. PW7 proved Ext.P6 certificate of ownership of the house of the victim girl. PW8 is the village official who issued Ext.P7 site plan. PW9 is the police official Crl.Appeal No.773 of 2018 ..4..
who registered Ext.P8 First Information Report. PW10 is the Investigating Officer in the case. PW10 proved Ext.P9 potency certificate, Ext.P10 copy of the forwarding note, Ext.P11 report of chemical analysis and Ext.P12 property list.
5. On an appraisal of the materials on record, the court below found the accused guilty of the offence punishable under Section 376 of IPC, convicted him and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh and in default of payment of fine, to undergo rigorous imprisonment for one year. The appellant is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. At the outset, the learned counsel for the appellant submitted that there is inordinate and unexplained delay in registering the case. The learned counsel elaborated this submission pointing out that the first occurrence, going by the prosecution case, is one that took place allegedly on 01.05.2011 and the crime was registered only on 16.10.2011, after almost four months. It was also argued by the learned counsel that the accused was convicted solely based on the oral testimony of the victim girl Crl.Appeal No.773 of 2018 ..5..
and the same is not reliable and trustworthy. The learned counsel elaborated the submission pointing out that 01.05.2011 being a holiday as also a Sunday, the case spoken to by the victim girl to justify the alleged occurrence that there was nobody in her house on that day, cannot be believed. It was also submitted by the learned counsel that the victim girl was residing in a populated residential area and had there been any occurrences as alleged by the prosecution, the same would have been certainly known to others. It was also pointed out by the learned counsel that going by the evidence tendered by PW1, the last occurrence took place on 05.07.2011, on which day, she joined for Plus One course in another school and the said version of the victim girl cannot also be believed. It was further pointed out by the learned counsel that the victim girl has given evidence to the effect that she divulged the occurrence to one Chithra teacher and the said teacher, in turn, divulged the occurrence to the Headmistress of the school. It was submitted by the learned counsel that the Headmistress of the school who was examined as PW5 did not depose that the occurrence was informed to her by anybody. According to the learned counsel, if PW5 is believed, it has to be held that the victim girl was lying. It was further pointed out by the learned counsel that Crl.Appeal No.773 of 2018 ..6..
going by the prosecution case, on getting information from Chithra teacher, the Headmistress of the school summoned the parents of the victim girl and informed the matter to them. It was argued by the learned counsel that the version of the mother of the victim girl who was examined as PW2 was that she came to know the occurrences from the counselling centre. The contention urged by the learned counsel is that if PW2 is believed, PW1 cannot be believed. It was also argued by the learned counsel that had there been any occurrence as alleged, and had it been informed by the victim girl to the class teacher and Headmistress, they would have certainly informed the matter to the mother of the victim girl. It was also argued by the learned counsel that the most crucial witness in a case of this nature should have been the class teacher, namely, Chithra teacher to whom the victim girl is stated to have divulged the occurrences. She has not been examined in the proceedings. According to the learned counsel, the non-examination of the said witness is fatal to the prosecution case. It was also pointed out by the learned counsel that the very case of the prosecution is that the accused contacted the victim girl over telephone to ascertain her availability at home. According to the learned counsel, when the prosecution has such a case, it was obligatory for them to seize that Crl.Appeal No.773 of 2018 ..7..
mobile phone and make available the call records, which would satisfy the rule of best evidence. The non-seizure of the mobile phone and non-production of the call records are also fatal to the prosecution, submits the learned counsel. Alternatively, it was contended by the learned counsel that the sentence imposed on the accused is grossly disproportionate to the gravity of the offence, if any, established.
8. Per contra, the learned Public Prosecutor supported the impugned decision. Among others, it was clarified by the learned Public Prosecutor that the victim girl had no case in her evidence that she was sexually assaulted by the accused on 05.07.2011. On the other hand, what was spoken to by her in her evidence was only that she was abused on various dates upto 05.07.2011. Similarly, it was also clarified by the learned Public Prosecutor, referring to the deposition of PW5, the Headmistress of the School, that the Headmistress of the school did not state in her evidence that she has informed the occurrences to the parents of the victim girl. As regards the sentence, the learned Public Prosecutor submitted that having regard to the gravity of the offence established, the sentence imposed by the court below cannot be said to be disproportionate in any manner. Crl.Appeal No.773 of 2018
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9. Having perused the materials on record and having heard the learned counsel for the parties on either side, it is seen that the points arising for consideration are whether the prosecution has established the guilt of the accused under Section 376 of IPC, as it stood prior to Act 13 of 2013, for the alleged occurrences took place prior to Act 13 of 2013, and if so, whether the sentence imposed on the accused is proportionate to the gravity of the offence established.
10. The points : Before dealing with the various contentions raised by the learned counsel for the appellant, it is necessary to refer to the evidence tendered by the victim girl and other witnesses examined on the side of the prosecution in the matter. The victim girl as PW1 deposed that her mother is a house maid and her father is a person going for road work. She deposed that her only sibling, her elder sister is given away in marriage. She deposed that once her parents leave for work, she will be alone at home. PW1 deposed that the occurrence took place after she completed her 10th standard and while she was aspiring for Plus One admission. She deposed that the first occurrence took place on 01.05.2011 at about 3.00 p.m. PW1 deposed that the accused has called her over the mobile phone and ascertained as to whether her Crl.Appeal No.773 of 2018 ..9..
parents are at home. She deposed that she replied in the negative. PW1 deposed that the accused then sought her permission to come to her house. She deposed that she refused the request. PW1 deposed that by about 5.00 p.m., the accused came with a multi- socket. PW1 deposed that when she opened the door, the accused attempted to caught-hold of her. She deposed that though she resisted the attempt of the accused, the accused showed to her some obscene pictures from his mobile phone. She deposed that thereafter, the accused pushed her to her bedroom, undressed her and penetrated his genital organ into her vagina. She deposed that when she resisted, he beat her. PW1 deposed that when she was about to cry, the accused closed her mouth using his hand. She deposed that there was bleeding from her vagina. PW1 deposed that thereafter, the accused threatened her that he will kill her and her parents, if she discloses the occurrence to anyone. PW1 deposed that the accused committed the same thing on four more occasions. She deposed that thereafter, she was thereafter admitted to in Nambiar's Higher Secondary School for Plus One course. She deposed that she was not able to concentrate in her studies in the school on account of the sexual assault. She deposed that her class teacher, viz, Chithra teacher noticed her disinterest in the studies Crl.Appeal No.773 of 2018 ..10..
and reported the matter to the Headmistress. PW1 deposed that the Headmistress, thereupon, called the parents of the victim girl and sent her to a Counselling Centre. She deposed that after she came back from the Counselling Centre, she informed the occurrence to her elder sister and her husband. PW1 deposed that she, thereafter, informed the matter to the police as directed by her sister and her husband. PW1 has identified her signature in Ext.P1 First Information Statement.
11. PW2, the mother of the victim girl deposed that she is working as a maid servant in the house of a lawyer. She deposed that when she goes for work, the victim girl would be alone at home. PW2 deposed that on 26.09.2011, she was informed by the headmistress that PW1 is not concentrating in her studies and that she will be alright, if she is given counselling. PW2 deposed that the school authorities have, accordingly, made an arrangement for giving counselling to the victim girl and the victim girl was sent, accordingly, for counselling. PW2 deposed that on 13.10.2011, she along with her husband went to the Counselling Centre and from the Counselling Centre, it was revealed to her that on 01.05.2011 and on subsequent days, the accused has committed sexual assault on PW1. PW3, the father of the victim also gave evidence in tune with Crl.Appeal No.773 of 2018 ..11..
the evidence tendered by PW2. PW4 is the District Programme Co- ordinator of the Kerala Mahila Samakhya Society, who has given counselling to the victim girl. She deposed that as required by the school authorities, she brought down the victim girl to her Counselling Centre and in the course of the counselling, it was revealed to her that one Vinod has committed sexual assault on PW1. PW4 deposed that the matter was, accordingly, informed to the parents of the victim girl. PW5, the Headmistress of the school has deposed that since the victim girl has not shown any interest in her studies, she summoned her parents and informed the matter to them. PW5 also deposed that since it was found that the victim girl was having some problems, she advised for counselling and sent the victim for counselling to PW4. She also deposed that after sometime, she was informed by PW4 that the victim girl was subjected to sexual assault. PW6, the doctor who examined the victim girl has given evidence to the effect that on examination, it was found that the hymen of the victim girl was torn and there is evidence of vaginal penetration.
12. The victim girl was cross examined thoroughly by the learned counsel for the appellant. A suggestion was put by the learned counsel for the appellant to the victim girl during cross Crl.Appeal No.773 of 2018 ..12..
examination that her parents mooted a proposal to give away the victim girl in marriage to the appellant and since the appellant was not prepared to marry the victim girl, he was falsely implicated in a case of this nature with a view to see that his marriage which was scheduled in the meanwhile does not take place. The aforesaid suggestion was denied by the victim girl. Apart from the suggestions aforesaid, according to me, the evidence tendered by the victim girl as regards the occurrences have not been discredited in any manner in the cross examination. That apart, the evidence tendered by the victim girl especially as regards the psychological trauma to which she was subjected to, appear to be natural and very much truthful. Similar is the case with the other witnesses as well whose testimonies would corroborate the evidence tendered by the victim girl.
13. Now I shall deal with the contentions raised by the learned counsel for the appellant. It is not natural to expect every child who is subjected to sexual assault to cry aloud to invite the attention of the people around. It all depends on the social circumstances under which the child is brought up. As such, merely for the reason that the child in the case on hand did not cried aloud, it cannot be contended that there is no occurrence, if the occurrence Crl.Appeal No.773 of 2018 ..13..
is otherwise proved by satisfactory evidence. Likewise, as noted, the mother of the victim girl is a house maid and her father is a road worker. As such, the argument advanced on the premises that they would have been there at home on all Sundays and holidays cannot be accepted. Similarly, the victim girl has not stated in her evidence that she was sexually assaulted by the accused on 05/07/2011. As such, the argument advanced on the premises that the said day being the day on which she joined for Plus One course, the occurrence alleged was not possible also cannot be accepted. Similarly, the victim girl has not stated in her evidence that she divulged the occurrence to the Headmistress of the school. As such, the arguments advanced by the learned counsel for the appellant on that premises are also liable to be rejected. True, the investigating agency could have seized the mobile phone referred to by the victim girl and made available the call details to support the prosecution case. But, merely for the reason that the said course has not been adopted, it cannot be said that the occurrences have not been proved, when the court finds that the occurrences have otherwise been established by satisfactory evidence. Chithra teacher, of course, was a witness cited by the prosecution to prove that the victim girl has divulged the occurrence to her when questioned. She Crl.Appeal No.773 of 2018 ..14..
has not been examined by the prosecution. I fail to understand as to how the non-examination of such a witness would affect the credibility of the prosecution case.
14. The sequence of the events brought out in evidence in the case, according to me, satisfactorily explains the delay. At first, PW1, the victim girl has stated that she did not divulge the occurrence to her parents on account of the threat of the accused. It has come out that when PW1 has shown disinterest in her studies, the school authorities have sent her for counselling. It has come out that it was during the counselling that the occurrence was divulged by the victim girl and the parents, and the school authorities came to know about the occurrence thereupon. The case was registered immediately thereafter. The contention raised by the learned counsel for the appellant that the delay in registering the FIR has not been satisfactorily explained by the prosecution is therefore without substance.
15. Coming to the sentence, it is seen that the occurrence is one that took place in the year 2011. The minimum punishment provided for the offence under Section 376 of the IPC then was only 7 years. Further, in terms of the provisions then in force, for adequate and special reasons to be mentioned in the Crl.Appeal No.773 of 2018 ..15..
judgment, the court was even empowered to impose less than the minimum sentence provided for the offence. It was much later, severe sentences were provided for the offence of rape and similar other offences, in terms of Act 13 of 2013. In the aforesaid circumstances, having regard to the age of the appellant, the fact that the appellant is married, and having regard to the fact that he has a child aged four years and aged parents to be looked after, I am of the view that the minimum punishment provided for the offence at the time of the occurrences would meet the ends of justice.
In the result, the appeal is allowed in part, confirming the conviction of the appellant and modifying the sentence of imprisonment imposed on him to 7 years, from 10 years. The impugned judgment will stand affirmed in all other respects.
Sd/-
P.B.SURESH KUMAR JUDGE ds/dkr 09.06.2020