Kerala High Court
Abu vs The State Of Kerala on 25 August, 2020
Equivalent citations: AIRONLINE 2020 KER 1030
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 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942
CRL.A.No.121 OF 2019
(AGAINST THE ORDER OF THE ADDL. SESSIONS COURT (For the
trial of cases relating to Atrocities and Sexual Violence
towards Women and Children), Kozhikode in Sessions Case No.
1249/2015 dated 31.12.2018)
APPELLANT/CONVICT:
ABU,
AGED 58 YEARS
S/O.MOITHEEN, POOKADAVATH (H), MULIYANGAL,
CHONALI P.O, PERAMBRA P.S., KOZHIKODE DISTRICT.
BY ADV. SRI.N.V.P.RAFEEQUE
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, AT ERNAKULAM 682 031
2 SHO,
PERAMBRA POLICE, KOZHIKODE DISTRICT,
KERALA 673 001.
SRI.RAMESH CHAND - PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24-08-2020, THE COURT ON 25-08-2020 DELIVERED THE
FOLLOWING:
Crl.Appeal No.121 of 2019 2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.121 of 2019
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Dated this the 25th day of August, 2020
JUDGMENT
The sole accused in S.C.No.1249 of 2015 on the files of the Additional Sessions Court, Kozhikode has come up in this appeal challenging his conviction and sentence in the said case.
2. The victim in the case is a girl aged 9 years. The accusation in the case is that on 06.06.2015 at 12.15 pm, the accused who was engaged by the parents of the victim to carry out some work in their house has inserted his finger into the vagina of the victim girl and also exhibited his penis to the victim girl, and thereby committed the offences punishable under Section 376 of the Indian Penal Code (IPC), Section 3 read with Section 4, Section 5(m) read with Section 6 and Section 11(i) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 12 witnesses as Crl.Appeal No.121 of 2019 3 PWs.1 to 12 and proved through them 12 documents as Exts.P1 to P12. Among the witnesses examined, PW1 is the victim girl, PW2 is the mother of the victim girl, PW3 is the doctor who examined the victim girl and PW8 is the neighbour of the victim girl. Among the documents proved, Ext.P1 is the First Information Statement and Ext.P2 is the report of the medical examination issued by PW3.
4. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 3(b) read with Section 4, Section 5(m) read with Section 6 and Section 11(i) read with Section 12 of the POCSO Act. The accused was also found guilty of the offence punishable under Section 376 of the IPC. The accused was accordingly, convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.30,000/- and in default of payment of fine to undergo rigorous imprisonment for two years, for the offence punishable under Section 3(b) read with Section 4 of the POCSO Act, to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for three years, for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act and to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in de fault of payment of Crl.Appeal No.121 of 2019 4 fine, to undergo rigorous imprisonment for six months, for the offence punishable under Section 11(i) read with Section 12 of the POCSO Act. In the light of Section 42 of the POCSO Act, separate sentence was not imposed on the accused under Section 376 of the IPC. The court also ordered the substantive sentences to run concurrently. As noted, the accused is aggrieved by his conviction and sentence.
5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
6. The learned counsel for the appellant submitted that the prosecution has not established the guilt of the accused beyond reasonable doubt. He elaborated the said submission pointing out that the only evidence in the case is the evidence tendered by the victim girl and if the said evidence is appreciated in the background of the other materials brought out in evidence, it could be seen that the same is not reliable and trustworthy to rest the conviction of the accused solely based on the same. The learned counsel elaborated his submission further, pointing out that the First Information Statement of the victim girl was recorded in the case as questions and answers and that the same would show that answers were suggested by the police to the victim girl and no sanctity, whatsoever, can be attributed to the First Crl.Appeal No.121 of 2019 5 Information Statement. It was also pointed out by the learned counsel that the scene of occurrence in the case being a congested colony, the evidence of PW8, the neighbour of the victim girl who has not even heard the sound of the fragmentation of firewood stated to have been carried out by the accused, ought not have been relied by the court below to corroborate the evidence tendered by the victim girl. It was also pointed out by the learned counsel that the case of the prosecution is that the victim girl called the accused inside the house while he was working, to take the cycle kept in the almirah and it was after the accused provided the cycle to the victim girl that he has assaulted her sexually. The argument of the learned counsel is that such a case is highly improbable, for a cycle cannot be kept inside the almirah. It was also pointed out by the learned counsel that it is also the case of the prosecution that after providing the cycle to the victim, the accused has removed her clothes, inserted his finger into her vagina, shown his genital organ to the victim girl and wanted the victim girl to hold the same and the victim girl has escaped then from his grip and rushed to the place where her mother was working. The argument of the learned counsel is that if there was an occurrence as aforesaid, the victim girl would not have been in a position to wear her clothes and the prosecution Crl.Appeal No.121 of 2019 6 has no case that the victim girl has gone out of the house without clothes and that the said case of the prosecution is, therefore, unbelievable. It was also pointed out by the learned counsel that in the First Information Statement, the the victim girl has stated that she was wearing a churidar at the time of the alleged occurrence, whereas, in the evidence tendered by the victim girl, she has stated that she was wearing a jeans at the time of occurrence. It was also pointed out by the learned counsel, placing reliance on the evidence of PW3 doctor and also the report of medical examination namely Ext.P2, that when the victim girl was brought for medical examination before PW3, what was disclosed by her to the doctor was that the accused has pressed at the urethral area of the victim girl, whereas what was stated by her in court was that the accused has pricked (കുതത) at her vagina using his finger. The aforesaid inconsistencies also, according to the learned counsel, create suspicion as to the genuineness of the case of the prosecution. Alternatively, the learned counsel for the accused has also argued that at any rate, the proved facts do not disclose a case of penetrative sexual assault warranting conviction either under Section 4 or under Section 6 of the POCSO Act.
7. Per contra, the learned Public Prosecutor, placing Crl.Appeal No.121 of 2019 7 reliance on the evidence tendered by the victim girl, submitted that the statement of the victim girl that the accused has pricked at her vagina would indicate that the accused has inserted his finger into her vagina and that therefore a case of penetrative sexual assault is made out. It was also argued by the learned counsel that the inconsistencies, anomalies and exaggerations in the evidence tendered by the witnesses as projected by the learned counsel for the appellant are not sufficient to ignore the weighty evidence adduced by the prosecution in the case. In essence, the submission of the learned Public Prosecutor was that the impugned judgment does not warrant any interference.
8. It is seen that it is since the victim girl was aged below 12 years that the accused who is alleged to have committed penetrative sexual assault on her was indicted for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act. As such, the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 5(m) read with Section 6 and Section 11(i) read with Section 12 of the POCSO Act.
9. Section 29 of the POCSO Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the said Act, Crl.Appeal No.121 of 2019 8 the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. This court held in Crl. Appeal No.419 of 2019 that in the light of the said provision, if the prosecution produces admissible evidence which if accepted would constitute the offence, then it is for the accused to prove that he did not commit the offence on the principle of preponderance of probability. It was also held by this court in the said case that if the accused fails to do so, the presumption would apply and the prosecution will be considered to have discharged its burden to prove the guilt of the accused. In the light of the said decision, the question to be considered in a case arising under the POCSO Act is as to whether the prosecution has adduced admissible evidence to prove the foundational facts constituting the guilt of the accused and if so, whether the accused has proved his innocence on the principle of preponderance of probability.
10. As noted, the accused does not dispute the fact that the evidence let in by prosecution, if accepted, would make out a case of sexual assault, and his case is only that the evidence let in by the prosecution is not reliable and trustworthy and even if the same is accepted, a case penetrative sexual assault is not made out. The questions to be examined therefore, are whether Crl.Appeal No.121 of 2019 9 the accused has discharged the burden to prove his innocence and whether the proved facts would make out a case of penetrative sexual assault.
11. I shall now examine the questions aforesaid. The victim girl has deposed as PW1 that she was studying in the V th standard at the relevant time; that she was residing with her parents and younger sibling; that on 06.06.2015, her parents had gone for work and her younger sibling had gone to the Anganawadi; that the accused came to their house on that day for fragmenting firewood; that she requested the accused to take the cycle kept in the almirah; that the accused took the cycle for her from the almirah; that while she was trying to alight on the cycle, the accused took her to the cot, made her lie down therein, removed her clothes and pricked at her vagina; that when she attempted to cry, the accused closed her mouth; that the accused thereupon wanted her to hold his genital organ; that she then escaped some how from his grip and rushed to her mother who was working in the neighbourhood and disclosed the occurrence. PW1 has also deposed that her mother, in turn, went to the police station and complained. PW1 has identified the First Information Statement given by her which is marked as Ext.P1. PW1 has also identified the accused in court. PW2 is none other than the Crl.Appeal No.121 of 2019 10 mother of the victim girl. PW2 deposed that on the relevant day, she and her husband had gone work and her younger daughter had gone to Anganvadi; she was working in the house of one Narayani Amma in the neighborhood; the accused was called on that day for fragmenting firewood in her house; that the accused was accordingly working in her house; that after sometime, the victim girl came to her and complained that the accused has made her lie down in the cot, removed her clothes and inserted his finger into her vagina. It was also deposed by PW2 that the victim girl has escaped from the grip of the accused when he wanted her to hold on his genital organ. PW2 deposed further that she informed the matter to her co-workers and all of them together came to her house and the accused was about to leave the premises by then. PW2 also deposed that the matter was informed by her colleagues to the police and the police party came and removed the accused from the scene. PW8, the neighbour of the victim girl has deposed that on the relevant day by about 12.30 pm, she has seen the victim girl rushing from her house crying, to the place where her mother was working and when she questioned her, she told her that Abu, who came to her house for fragmenting firewood, has assaulted her. PW3, the doctor who examined the victim girl on the same day evening by about 6.15 Crl.Appeal No.121 of 2019 11 p.m. has deposed that the victim girl was taken to her for medical examination alleging that she was assaulted sexually by a person called Abu who came to her house for fragmenting firewood and that he pressed at her vagina with his hands. PW3 also deposed that on examination, she found vulvar edema and skin abrasion of 1x.5 cm on the medial aspect of both sides of labia minora.
12. Though PW1 and PW2 were cross examined thoroughly by the accused, nothing was brought out in their cross examination to discredit the evidence tendered by them. Further, the cross examination made by the counsel for the accused would indicate that the suggestion was that the accused was falsely implicated in the case on account of a trivial monetary dispute pertaining to Rs.2000/-. In this context, it is necessary to refer to the evidence given by the mother of the victim girl that since the accused was engaged for work at home, even while she was working elsewhere, she came in between to the house for the purpose of giving tea to the accused. The said aspect of the evidence tendered by PW2 has not been cross examined. In the aforesaid circumstances, I do not think that for a petty monetary dispute, any one would foist a case of this nature on anybody, that too, a case which would affect adversely the interests of their Crl.Appeal No.121 of 2019 12 daughter as well. The various arguments advanced by the learned counsel for the appellant to bring home the point that the evidence tendered by the prosecution witnesses are not trustworthy are not sufficient to ignore the weighty evidence adduced by the prosecution. True, in chief examination and also in Ext.P1 First Information Report, the victim girl has stated that she was wearing a churidhar, pants and inner wear. The very same statement has been made by her in her evidence also. A reading of the evidence would indicate that she was referring to her top by describing the same as churidhar. Merely for the reason that she used the expression 'jeans' for her pants in court, it cannot be argued for a moment that she was not stating true facts. Similarly, there is absolutely no merit in the contention that had the occurrence been as alleged, the victim girl would not have been able to come out of the house with her dress. The essence of the evidence tendered by the victim girl is only that having suffered the sexual assault committed by the accused, she did not permit him to do anything further, and that does not mean that the accused would not have permitted her to wear her dress. It is true that the First Information Statement has been recorded as questions and answers, but I have not seen any leading questions put to the victim girl. The question namely, "മമമോളള ആരമോണണ Crl.Appeal No.121 of 2019 13 ഉപദ്രവതച്ചതണ?", on which reliance was placed by the learned counsel to contend that the same is a leading question, cannot be considered as a leading question. The argument advanced by the learned counsel for the accused as regards the acceptability of the evidence tendered by PW8 is also unsustainable. Merely for the reason that PW8 did not see anybody fragmenting firewood at the residence of the victim girl, it cannot be argued that the accused had not come to the house of the victim girl at all. In other words, I have no doubt that it is a case where the accused has miserably failed in proving his innocence in terms of Section 29 of the POCSO Act.
13. Now the question is as to whether the proved facts would make out a case of penetrative sexual assault. The stand of the learned counsel for the accused on this point is that there is no evidence in the case to indicate that the accused has inserted his finger into the vagina of the victim girl and therefore, a case of penetrative sexual assault is not made out, whereas the stand of the Public Prosecutor is that the evidence tendered by the victim girl that the accused has pricked at her vagina is sufficient to infer that the accused has inserted his finger into the vagina of the victim girl and thus, a case of penetrative sexual assault is made out. Section 3 of the POCSO Act which defines 'penetrative sexual Crl.Appeal No.121 of 2019 14 assault' 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 earliest version as regards the occurrence is the version given by the victim girl in her First Information Statement. The said version is as follows:
"എളന മൂത്രളമമോഴതക്കുന സ്ഥലത അയമോളുളട വതരലകൾ ഇട അമർതത."
The statement made by the victim girl as regards the occurrence to the doctor who examined her on the same day as recorded by the doctor in her report is as follows:
"വതറകു കകീറമോനമോയത വന അബ എനയമോൾ കടതലതൽ പതടതച കതടതത വസസ നകീകതയ മശേഷസ കകളകമോണണ urethral area ബലമമോയത press ളചെയ "
The version of the victim girl in her evidence as regards the Crl.Appeal No.121 of 2019 15 occurrence is as follows:
"ഞമോൻ ധരതച്ച ചൂരതദമോറസ pants ഉസ ഷഡതയസ അയമോൾ ഊരത. മൂത്രളമമോഴതക്കുന സമോധനതതൽ (എളന) അയമോൾ വതരൽ ളകമോണണ കുതത."
It is placing reliance on the expression ' കുതത' used by the victim girl in her evidence that the learned Public Prosecutor has asserted that the prosecution has made out a case under Section 3(b) of the POCSO Act. The argument advanced by the learned counsel for the appellant in this regard is that to make out a case under Section 3(b), the prosecution should have established that the accused had inserted his finger into the vagina of the victim girl. It was argued by the learned counsel that the expression ' കുതത' used by the victim girl cannot be understood to mean that the victim girl has stated that the accused has inserted his finger into her vagina.
14. In order to attract the offence under Section 3(b) of the POCSO Act, the prosecution should have a definite case that the accused had inserted his finger into the vagina of the victim girl. Cambridge Dictionary defines the word 'insert' to mean 'to put something inside something else' . The pointed question, therefore, is as to whether there are materials on record to hold that the accused has inserted his finger into the vagina of the Crl.Appeal No.121 of 2019 16 victim girl. It is relevant in this context to refer to the evidence tendered by PW3, the doctor who examined the victim girl on the same day after a few hours of occurrence. She has deposed that on examination, she found vulvar edema and skin abrasions of 1 x .5 cm on medial aspects of both labia minora. According to me, if there was no insertion of any external object into the vagina, there would not have been abrasions in the medial aspect of the labia minora of the victim girl. In other words, I am constrained to hold that the accused has inserted his finger into the vagina of the victim girl. I take this view also for the reason that PW3 has also deposed that the victim girl was complaining of pain while passing urine, which would also indicate that she suffered injuries inside the vagina.
In the circumstances, the impugned judgment does not call for any interference. The appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE DK/ PV