Kerala High Court
Chandrasekharan vs State Of Kerala on 16 July, 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
THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942
CRL.A.No.843 OF 2019
AGAINST THE JUDGMENT IN SC 683/2017 DATED 27-06-2019 OF
ADDITIONAL SESSIONS COURT ((POCSO), ERNAKULAM
CRIME NO.1879/2016 OF Thrikkakara Police Station, Ernakulam
APPELLANT/ACCUSED NO.1:
CHANDRASEKHARAN,
AGED 63, S/O. NEELAKANDA MENON,
MARUTHATTIL HOUSE, NEAR MAKALEEYAM TEMPLE,
IRUMBANAM, THIRUVAMKULAM.
BY ADV. SRI.C.P.UDAYABHANU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY SMT.AMBIKA DEVI S, SPL.GP
P.N.SUMODU PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-
07-2020 ALONG WITH CRL.A.No.883 OF 2019, THE COURT ON 16-
07-2020 DELIVERED THE FOLLOWING:
Criminal Appeal Nos.843 &
883 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942
CRL.A.No.883 OF 2019
AGAINST THE JUDGMENT IN SC 683/2017 DATED 27-06-2019 OF
ADDITIONAL SESSIONS COURT (POCSO), ERNAKULAM
CRIME NO.1879/2016 OF Thrikkakara Police Station, Ernakulam
APPELLANT/2ND ACCUSED:
SHAINY,
AGED 36 YEARS, W/O. ABY, AMBATTIL HOUSE,
THAMMANAM, KARANAKONAM, PUNITHURA
BY ADV. SRI.K.V.SABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
SRI.P.N.SUMODU PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-
07-2020 ALONG WITH CRL.A.No.843 OF 2019, THE COURT ON 16-
07-2020 DELIVERED THE FOLLOWING:
Criminal Appeal Nos.843 &
883 of 2019
3
P.B.SURESH KUMAR, J.
-------------------------------------------------
Criminal Appeal Nos.843 & 883 of 2019
--------------------------------------------------------
Dated this the 16th day of July, 2020
JUDGMENT
Among these appeals, Criminal Appeal No. 843 of 2019 is by the first accused in S.C.No.683 of 2017 on the files of the Additional Sessions Court (POCSO), Ernakulam and Criminal Appeal No.883 of 2019 is by the second accused in the said case. The appellants challenge in these appeals their conviction and sentence in the said case.
2. The accusation against the first accused in the case in essence is that on 03.11.2016, at about 11.45 a.m., the first accused has inserted his finger into the vagina of the victim girl aged 3¾ years at the premises of the pre-school where the victim girl was attending, and thereby committed the offences punishable under Section 376(2)(i) of the Indian Penal Code (the IPC) and Sections 5(f) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). The accusation against the second accused in the Criminal Appeal Nos.843 & 883 of 2019 4 case is that the second accused who is working as a teacher in the pre-school, has failed to report the sexual assault to which the victim girl was subjected to, on receiving information regarding the same from the victim girl, and thereby committed the offence punishable under Section 19(1) read with Section 21(1) of the POCSO Act.
3. On the accused pleading not guilty of the charges, the prosecution examined 12 witnesses as PW1 to PW12 and proved 11 documents through them as Ext.P1 to Ext.P11. Among the witnesses examined, PW1 is the mother of the victim girl, PW2 is the victim girl herself, PW3 is the Principal of the pre-school, PW5 is the doctor to whom the victim girl was taken first by her parents, PW6 is the doctor who examined the victim girl on a reference by the police and PW11 is the Investigating Officer in the case. Among the witnesses, PW1 has also identified MO1 plastic chair. Among the documents, Ext.P1 is the First Information Statement proved by PW1, Ext.P2 is the medical certificate proved by PW5, Ext.P3 is the medical certificate proved by PW6 and Ext.P10 is the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure (the Code). Since the trial court did not consider the case to be one fit for acquittal under Section 232 of the Code, the second accused examined two witnesses on her side as DW1 Criminal Appeal Nos.843 & 883 of 2019 5 and DW2, when called upon to enter on her defence.
4. On an appraisal of the materials on record, the court below found that the first accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and Sections 5(f) and 5(m) read with Section 6 of the POCSO Act. Similarly, the court found that the second accused is guilty of the offence punishable under Section 19(1) read with Section 21(1) of the POCSO Act. The accused were accordingly convicted and sentenced.
5. Heard the learned counsel for the accused as also the learned Public Prosecutor.
6. The learned counsel for the first accused pointed out that the mother of the victim girl, who claims that the victim girl has informed her about the occurrence at about 8.00 p.m. on the same day, did not inform the matter to the police nor did she take the victim girl to any doctor or make any effort to contact the school authorities on that day. It was also pointed out by the learned counsel that there is nothing on record to indicate that the victim girl has complained about the incident to anyone till 8.00 p.m.. The aforesaid circumstances, according to the counsel, would cast serious doubts as to the genuineness of the prosecution case. It was also pointed out by the learned counsel that the mother of the victim girl who took Criminal Appeal Nos.843 & 883 of 2019 6 the victim girl to PW5 on the next day of the occurrence has not divulged to PW5 that the victim girl was sexually assaulted. Instead, what was informed by PW1 to PW5 was only that she entertains a doubt as to whether the victim girl was sexually assaulted. According to the learned counsel, if as a matter of fact, the victim girl had informed PW1 that she was subjected to sexual assault by anybody, PW1 would have certainly informed that matter to PW5. It was further pointed out by the learned counsel that when the victim girl was examined by PW6 on 05.11.2016, she noted a fresh wound at the vagina of the victim girl. According to the learned counsel, if at all any fresh wound was noted by PW6 on 05.11.2016, the same cannot be attributed to the sexual assault allegedly took place on 03.11.2016. It was further pointed out by the learned counsel that what was narrated by the victim girl to PW6 when she was produced for medical examination as regards the occurrence, was that the security staff in the school who used to wear 'mundu' and 'green shirt' has held her tightly, closed her mouth and tried to introduce his finger into her vagina. According to the learned counsel, the evidence tendered by the victim girl in court is not consistent with her previous statement. Coming to the evidence tendered by the victim girl as PW2, it was argued by the learned counsel that the victim girl was only about 5 Criminal Appeal Nos.843 & 883 of 2019 7 years at the time when she was examined in court and therefore, in all probability, she might have been given evidence as tutored by her parents. In short, the submission of the learned counsel for the first accused is that the prosecution has not proved the guilt of the accused beyond reasonable doubt. Alternatively, it was also argued by the learned counsel that even if the evidence tendered by the witnesses examined on the side of the prosecution is found acceptable, a case of rape or penetrative sexual assault as found by the court below is not made out.
7. The learned counsel for the second accused submitted that there was absolutely no material in the final report even to implicate the second accused in the crime on a charge under Section 19(1) read with Section 21(1) of the POCSO Act. It was pointed out by the counsel that nevertheless, while giving evidence, PW2 stated that she informed about the sexual assault to the second accused and the second accused then told her not to divulge the incident to anybody. It was also pointed out by the learned counsel that the said statement, on the basis of which the second accused is convicted for the offence aforesaid, has not been made by the victim girl to the Magistrate while giving statement under Section 164 of the Code. According to the learned counsel, the aforesaid is a Criminal Appeal Nos.843 & 883 of 2019 8 material omission, amounting to contradiction and that the victim girl cannot, therefore, be believed insofar as the implication of the second accused in the crime is concerned.
8. Per contra, the learned Public Prosecutor submitted that the embellishments, inconsistencies, contradictions and anomalies in the evidence as pointed out by the learned counsel for the accused are not sufficient to interfere with the decision of the court below insofar as the same do not pertain to the evidence tendered by the victim girl as regards the core aspect of the crime. According to the learned Public Prosecutor, the evidence tendered by the victim girl on the core aspect of the crime has not been discredited by the accused in any manner whatsoever, and that therefore, there is no infirmity at all in the decision of the court below.
9. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the points arising for consideration are; (1) whether the prosecution has established the guilt of the first accused under Section 376(2)(i) of the IPC and Sections 5(f) and 5(m) read with Section 6 of the POCSO Act and (2) whether the prosecution has established the guilt of the second accused under Section 19(1) read with Section 21(1) of the POCSO Act.
10. Before I deal with the evidence in the case and Criminal Appeal Nos.843 & 883 of 2019 9 also the contentions advanced by the learned counsel for the accused, it is necessary to mention that there is no dispute in the case as to the age of the victim girl. Similarly, there is no dispute to the fact that the victim girl on the relevant day had attended the pre-school. Likewise, there is no dispute to the fact that the first accused was the security staff and the second accused was a teacher in the said pre-school at the relevant time.
11. I shall now deal with the evidence in the case. As is usual in similar cases, the only evidence in the case as regards the alleged sexual assault is the evidence tendered by the victim girl, who was examined as PW2. PW2 was only 5 years at the time when she gave evidence. She has identified in court accused Nos.1 and 2 as the security staff and the "Miss" respectively in the pre-school she was attending. She deposed in English pointing towards her private part that the first accused has poked her private part with his fingers. She deposed that when she told him not do so, he covered her mouth. She deposed that the occurrence took place at the staircase of the school. She clarified that the first accused has made her sit on MO1 chair and committed the overt act. PW2 deposed that she told the incident to the second accused and the second accused then told her not to divulge the same to anybody. PW2 deposed Criminal Appeal Nos.843 & 883 of 2019 10 that she subsequently narrated the incident to her mother. Though PW2 was cross-examined thoroughly, the evidence aforesaid has not been discredited in any manner. PW1 is the mother of the victim girl. She only deposed that while she was giving bath to PW2, she told her that she has pain at her vagina. She deposed that when she examined her vagina, she found redness there. PW1 deposed that when she asked PW2 about the pain, she replied that the pain is inside. PW1 deposed that she found blood at her vagina. PW1 deposed that when she questioned PW2, she told her that "Chetta touched me with fingers". PW1 deposed that when she questioned further, PW2 deposed that it was the security staff of the school who did it. PW3 is the Principal of the pre-school. PW3 only deposed that when she questioned the victim girl on that day, she complained that the security staff caught hold of her. PW5 is the doctor to whom the victim girl was taken initially. She deposed that the victim girl was brought by her parents on the allegation of sexual molestation, on 03.11.2016 and on examination, she found a small abrasion 4 - 5 mm in the left upper side of vulva, inner to labia majora and she sent PW2 to the Medical College Hospital, Kalamassery. PW6 is the doctor who examined the victim girl on 05.11.2016 at the Medical College Hospital, Kalamassery. She deposed that the victim girl was brought by her mother for Criminal Appeal Nos.843 & 883 of 2019 11 medical examination on 04.11.2016 and as she was not willing for detailed medical examination, she was not examined on that day. She also deposed that the victim girl was brought again on 05.11.2016. PW6 deposed that the victim girl then told her that a security staff in the school who was wearing 'mundu' and 'green shirt' who is called by the girl as "chettan" held her tightly, closed her mouth and tried to introduce his finger into her vagina and that she resisted. PW6 deposed that she found tenderness at the introitus, a small laceration around 5mm between urethral introitus and vaginal introitus on examination. She also deposed that the area near the introitus was found congested. If one examines the evidence tendered by the victim girl in the light of the evidence tendered by PW1, her mother, PW3, the Principal of the pre-school and the evidence of the doctors who examined her viz, PW5 and PW6, there is absolutely no reason to disbelieve her version.
12. I shall now deal with the contentions raised by the learned counsel for the accused. As the victim girl who is in her tender ages is not expected to know the seriousness of the sexual assault to which she was subjected to, the inaction on the part of the victim girl in not complaining about the same, according to me, cannot be made use of by the accused. True, the mother of the victim girl has admitted that the victim girl has Criminal Appeal Nos.843 & 883 of 2019 12 informed her about the occurrence when she questioned her on informing her about the pain at her vagina on the same day night and she has informed the matter to the police only on the next day. In a case of this nature, the conduct on the part of the mother of the victim girl in taking the victim girl to a doctor for confirming as to whether the victim girl was subjected to sexual assault, before lodging a complaint to the police cannot be viewed as an unusual conduct and merely on account of that fact, it cannot be said that the case of sexual assault is incorrect. Similarly, merely on account of the reason that the mother of the victim girl has told PW5 doctor that she entertains a doubt as to whether her daughter was subjected to sexual assault, it cannot be argued that the victim girl was not subjected to sexual assault, when the evidence tendered by the victim girl in this regard is found convincing and acceptable. Likewise, merely for the reason that the wound in the vulva of the victim girl noted by PW6 was a fresh one, it cannot be argued that it has nothing to do with the sexual assault. Even assuming that the wound noticed by PW6 has nothing to do with the sexual assault, according to me, the same is not a reason to reject the evidence tendered by the victim girl as regards the sexual assault, when it is found that the same is otherwise acceptable.
13. The question remaining to be considered is as to Criminal Appeal Nos.843 & 883 of 2019 13 whether the prosecution has established the guilt of the first accused under Section 376(2)(i) of the IPC and Sections 5(f) and 5(m) read with Section 6 of the POCSO Act. 15. Section 3 of the POCSO Act deals with penetrative sexual assault. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault. Going by the definitions of the said offences, if an act does not make out a case of penetrative sexual assault, it will not make out a case of aggravated penetrative sexual assault. The point to be decided therefore, is as to whether the facts established would make out a case of penetrative sexual assault. 'Penetrative sexual assault' defined in Section 3 of the POCSO Act reads thus:
"3. Penetrative sexual assault :
A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
The prosecution has no case that the case on hand is one falling Criminal Appeal Nos.843 & 883 of 2019 14 under clause (a), (c) or (d) of Section 3 of the POCSO Act. Their case is only that the case on hand is one that falls under clause
(b) of Section 3 of the POCSO Act, for, according to them, the accused has inserted his finger into the vagina of the victim girl. Dictionaries define the word 'insert' to mean pushing something into something else. As noted, the evidence tendered by the victim girl is to the effect that the accused has poked at her vagina. The relevant portion of the evidence reads thus;
"She points to her private part and stated that he poked me here with his fingers."
A case of insertion of the finger into the vagina cannot, therefore, be inferred from the word "poked" spoken to by the victim girl. If that be so, it cannot be said that the prosecution has made out a case of penetrative sexual assault. Insofar as the offence of rape is defined in the Indian Penal Code on identical lines with the offence of penetrative sexual assault contained in the POCSO Act, if the offence of penetrative sexual assault is not made out in a given case, it cannot be said that the offence of rape is made out. At the same time, the conduct of the first accused proved in the case would establish a case of aggravated sexual assault falling under Sections 9(f) and 9(m) Criminal Appeal Nos.843 & 883 of 2019 15 read with Section 10 of the POCSO Act.
14. Coming to the case against the second accused, true, PW2 has stated in her evidence that she complained about the sexual assault to which she was subjected to by the first accused to the second accused, and the second accused, in turn has directed not to divulge the incident to anyone. As rightly pointed out by the learned counsel for the second accused, in Ext.P10 statement given by the victim girl under Section 164 of the Code, she has not made such a statement against the second accused. In the absence of any other material to infer that what PW2 has stated in her evidence concerning the second accused is correct or at least probable, according to me, it is not safe to convict the second accused for the offence alleged, solely based on the evidence of the victim girl, especially since she has not made such a statement while deposing before the Magistrate. In the said circumstances, according to me, the second accused is entitled to the benefit of doubt.
In the result, Criminal Appeal No.883 of 2019 is allowed and the conviction and the sentence imposed on the second accused are set aside. Criminal Appeal No.843 of 2019 is allowed in part and the conviction of the first accused is altered to one under Sections 9(f) and 9(m) read with Section 10 of the POCSO Act and he is sentenced to undergo rigorous Criminal Appeal Nos.843 & 883 of 2019 16 imprisonment for a period of five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 9(f) read with Section 10 of the POCSO Act. Similarly, the first accused is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 9(m) read with Section 10 of the POCSO Act. It is ordered that the substantive sentences imposed on the first accused shall run concurrently.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj