Kerala High Court
Xxx vs State Of Kerala on 6 August, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal.632/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 6TH DAY OF AUGUST 2024 / 15TH SRAVANA, 1946
CRL.A NO. 632 OF 2021
CRIME NO.331/2017 OF VELLAMUNDA POLICE STATION, WAYANAD
AGAINST THE JUDGMENT DATED 18.12.2020 IN SC NO.25 OF 2018 OF
SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT AND
CHILDRENS COURT (ADDITIONAL DISTRICT & SESSIONS COURT-I,
KALPETTA), WAYANAD
APPELLANT/ACCUSED:
XXX
BY ADVS.
P.VIJAYA BHANU (SR.)
P.M.RAFIQ
M.REVIKRISHNAN
MITHA SUDHINDRAN
POOJA PANKAJ
SRUTHY N. BHAT
RAHUL SUNIL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADV SMT.BINDU O.V., P.P. (ATROCITIES AGAINST WOMEN
AND CHILDREN AND WELFARE OF WOMEN AND CHILDREN)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY ON 29.07.2024,
THE COURT ON 06.08.2024, DELIVERED THE FOLLOWING:
Crl. Appeal.632/2021
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2024:KER:58710
JUDGMENT
Dated this the 6th day of August, 2024 C.Pratheep Kumar, J.
This appeal has been preferred by the accused in SC No.25 of 2018 on the file of the Special Court for trial of offences under POCSO Act and Children's Court, Wayanad, against the judgment of conviction and sentence passed against him under Section 376 (2)(f) of IPC and Section 5(l) and (n) of Prevention of Children from Sexual Offences (POCSO) Act, Section 506 Part-II of IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short, 'JJ Act' ).
2. The accused is the biological father of the victim, who is a minor girl of 15 years at the time of incident. The prosecution case is that during the period from April 2015 to August 2017, the accused committed rape/penetrative sexual assault on the minor girl repeatedly at his residence and intimidated to kill her in case the same is divulged to others. In October 2017, during counseling, the child told about the incident to her teachers, who in turn informed the Headmaster of the school and finally to the police and it was in the above context, the Crl. Appeal.632/2021 3 2024:KER:58710 police registered the case and proceeded against the father of the child.
3. The accused/appellant was charged under various provisions of the Indian Penal Code and the POCSO Act as well as under the Juvenile Justice (Care and Protection of Children) Act,2015.
4. On the side of prosecution, PWs 1 to 15 were examined and Exhibits P1 to P12 were marked. No defence evidence was adduced by the accused. On the basis of the available evidence, the trial court found the accused guilty under Section 376 (2)(f), (2)(i) and 2(n) of IPC, Section 5(l) and (n) of POCSO Act, Section 506 Part-II of IPC and Section 75 of the JJ Act. However, the trial court has awarded punishment only under Section 376 (2)(f) and sentenced to undergo imprisonment for life, which shall mean imprisonment for the remainder of his natural life and to pay a fine of Rupees One Lakh with default sentence of rigorous imprisonment for six months under Section 376 (2)
(f). No separate sentence was awarded under Section 376 (2) (i) and (n) of IPC and Section 5(l) and (n) of POCSO Act. However, under Section 506 Part-II IPC, he was sentenced to undergo rigorous imprisonment for five years. Under Section 75 of the JJ Act, he was sentenced to undergo rigorous imprisonment for another three years. Crl. Appeal.632/2021 4
2024:KER:58710 Aggrieved by the above judgment, conviction and sentence, he preferred this appeal raising various contentions.
5. Now the points that arise for consideration are the following:
(i) Whether the prosecution has succeeded in proving that the accused has committed rape/penetrative sexual assault on the victim, repeatedly as alleged?
(ii) Whether the prosecution has succeeded in proving the offence under Section 506 Part-II of IPC and Section 75 of the JJ Act, as alleged?
(iii) Whether the impugned judgment of conviction and sentence passed by the trial court calls for any interference by this Court?
6. Heard both sides on the points.
7. Admittedly, the accused is the biological father of the minor child, who was born on 31.5.2002. At the time of arguments, the fact that the victim is a minor born on 31.5.2002 was not challenged. The minor as PW2 and her mother as PW1 deposed that she was born on 31.5.2002. PW15, the Registrar of Births and Deaths also produced Exhibit P12 extract showing the date of birth of the child as 31.5.2002. In the light of the evidence of PWs 1 and 2 and Exhibit P12 produced Crl. Appeal.632/2021 5 2024:KER:58710 by PW15, it is revealed that the victim was born on 31.5.2002 and as such she was a 'child' as defined under the POCSO Act, at the time of commission of the offence.
8. The victim as PW2 has adduced evidence to the effect that while she was in her house alone during the summer vacation after her examination for 7th standard was over, the accused sexually abused her. According to her, during the said period, her mother went to Singapore in connection with job. In the residence, in addition to herself and her father, her brother alone was there. Father used to abuse her during night after her brother sleeps or during the day time when her brother is absent in the house. Usually she used to sleep in her bedroom, while the father along with brother used to sleep in the hall. First such incident was on a night, while she was sleeping. Her father came and laid beside her. He pressed her breast and thigh, removed her dress and panties and inserted his penis into her vagina. On several occasions, he had repeated the same during the day time as well as during night, at the bedroom as well as at the hall, in the absence of her brother or when her brother was asleep. Even after return of her mother from Singapore in June 2015, he used to sexually abuse her and threatened to do away with her in case Crl. Appeal.632/2021 6 2024:KER:58710 the matter is divulged to others. Due to fearfulness, she had not disclosed it to anybody else. During October 2017, she fainted while in the school. At that time teachers enquired about the reason and asked whether there was any problem in her residence. It was at that time she first disclosed about the said incident to her teachers namely PWs 3 and 4, who in turn reported about the same to PW5, the Headmaster.
9. PW3, the class teacher deposed before the court that on one day in the 1st week of October 2017 the child felt uneasiness and not paying attention to the class. On enquiry she disclosed that her father used to sexually abuse her. PW3 reported the matter to the Headmaster. The Headmaster authorised another teacher (PW4) to give counseling to the child. Accordingly, PW4 had given counseling to the child and during counseling the child disclosed about the incident to PW4 also.
10. PW4, the other teacher also deposed that, as instructed by the Headmaster, she had given counseling to PW2 and at that time she disclosed that since April 2015, the father used to sexually abuse the child. PW5, the Headmaster also deposed that on getting information about the disclosure made by the child, he had directed PW4 to give counseling to the child and after counseling, the matter was reported to Crl. Appeal.632/2021 7 2024:KER:58710 the Childline.
11. PW6 was the Gynaecologist attached to the District Hospital, Mananthavady. She deposed that she had examined PW2 on 12.10.2017 at about 12.30 pm. and issued Exhibit P3 certificate. On examination, no fresh external injuries were noticed on the body of the victim. Her hymen was found fleshy and elastic. She noticed partial tear of 3 O'clock and 9 O'clock portion. It was old tear. The inference is that there was evidence of past vaginal penetration. She further deposed that the patient told her that her father sexually abused her during the previous two years.
12. PW11 was the Casualty Medical Officer, District Hospital Mananthavady, who had examined the accused, conducted his potency test and issued Exhibit P7 certificate. He deposed that on examination there was nothing to suggest that the accused was incapable of performing sexual act.
13. The learned senior counsel Sri. Vijayabhanu who appeared for the appellant would argue that the evidence available is not sufficient enough to find the accused guilty and therefore, he prayed for giving the benefit of doubt to the appellant. On the other hand, in the light of the Crl. Appeal.632/2021 8 2024:KER:58710 evidence of PWs 1 to 6 and 11 the learned Public Prosecutor Smt. Bindu O.V., would argue that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. Therefore, she prayed for sustaining the sentence and for dismissing the appeal.
14. One of the arguments raised by the learned senior counsel is that in the evidence of PW2, there is embellishment and improvement than in the FI statement. Therefore, it was argued that the evidence of PW2 is not reliable. In the FI Statement, she stated that the accused used to press on her breast and thigh, kiss her, remove her pants and panties and place his genital organ into her genitalia and used to do 'something'. In Exhibit P2 164 Cr.P.C. statement also she had given an almost identical version, as in Exhibit P1. Her father used to lie beside her, press her breast and various parts of her body, kiss her, remove her dress and place his genital organ into her vaginal area. When she resisted, he gagged her mouth.
15. However, when she was examined as PW2, she had given a more detailed version regarding the overt acts committed by her father. At that time, according to her, her father used to insert his genital organ into her genitalia. Now the question to be considered is whether the Crl. Appeal.632/2021 9 2024:KER:58710 above version given by PW2 amounts to improvement or embellishment adversely affecting the validity of her evidence. However, it is interesting to note that the so called 'embellishment' or 'improvement' was not brought to the attention of PW2 when she was cross examined. Since, at the time of evidence, the attention of PW2 was not brought to the above omission and no opportunity was given to offer her explanation in that respect, the same cannot be taken as an omission to disbelieve her.
16. 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 this context, it is also to be noted that PW2 is a minor child and the accused is her biological father. In the above circumstance, she will have her own limitations in disclosing the details to the police of the sexual harassment to which she was subjected to by her father.
17. 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 Crl. Appeal.632/2021 10 2024:KER:58710 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."
18. In the decision in Krishna Kumar Malik v. State of Haryana, AIR 2011 SC 2877, the Apex Court held that, to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality.
19. 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 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 Crl. Appeal.632/2021 11 2024:KER:58710 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 Crl. Appeal.632/2021 12 2024:KER:58710 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 such similar 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 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. "
20. On a comparison of Exhibit P1 and P2 and the evidence adduced before the court by PW2, it can be seen that in Exhibit P1 and P2 she had given a general statement about the sexual harassment made by her father. However, in the evidence given by her before the Court, she had given a little more details about the overt acts committed by the father. In Exhibit P1 and P2 also, she stated that her father used to lie Crl. Appeal.632/2021 13 2024:KER:58710 near her, press on her breast and thigh and remove her dress including panties and used to put his genital organ into her genitalia. It is true that in Exhibit P1 and P2 she has not specifically stated that the accused used to insert his genital organ into her genitalia.
21. In this context it is to be borne in mind that when Ext.P1 and P2 were given, PW2 was only 15, while she was 17 when examined before the court. Being a minor girl of 15 years, she will have her own inhibitions, limitations and difficulties in discussing and disclosing the details of sexual abuse made by her father, to a third person, when Exts.P1 and P2 were given. At the time of giving evidence, at 17, she was more matured enough to explain the nature of the sexual abuse faced by her, more clearly. In the above circumstance, the omission on her part in not disclosing the minute details of the sexual overt acts committed by her father in Exhibit P1 and P2 cannot be taken as serious lapse sufficient enough to disbelieve her testimony. Most importantly, during the cross-examination of PW2, her attention was not brought to the so called improvement made from her previous statement. On that ground also, it cannot be treated as an omission amounting to contradiction.
Crl. Appeal.632/202114
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22. In the decision in State of Punjab v. Gurmit Singh and Others, AIR 1996 SC 1393 the Hon'ble Supreme Court also held that:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Crl. Appeal.632/2021 15
2024:KER:58710 Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a Crl. Appeal.632/2021 16 2024:KER:58710 condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over- looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. "
23. Unless there is compelling reasons like bitter animosity, a daughter will not raise false allegation of sexual harassment against her own father. In this case, the accused has no case that PW2 has any such animosity towards him. During the cross examination of PW2, one of the suggestions put to her is to the effect that she did not like her mother Crl. Appeal.632/2021 17 2024:KER:58710 going to Singapore, leaving her, her brother and father alone in the house. The reason that she did not like her mother going to Singapore, in search of a job, is not a reason to implicate the father in a very serious offence like the present one. The other suggestion put to PW2 was that her father uses ganja and she did not like the same. Therefore, it was contended that he was falsely implicated in this case. We are not inclined to believe that contention also, as an excuse for implicating her father in a rape case. During the cross examination of PW2, nothing material could be brought out to discredit her testimony. In other words, the evidence of PW2 remains as such without any proved omissions or contradictions so as to make it unreliable. On the other hand, her evidence is quite genuine, natural and sterling in nature so that it can be relied upon without any corroboration.
24. The evidence of PW6, the Gynaecologist corroborates the evidence of PW2. When she was examined by PW6, she noticed old tear at 3 O'clock and 9 O'clock portion of PW2 and she also concluded that there was evidence of past vaginal penetration. The above evidence of PW6 corroborates the evidence of PW2 that her father committed penetrative sexual assault on her. Moreover, the evidence of Crl. Appeal.632/2021 18 2024:KER:58710 PWs 3 and 4, the teachers of PW2, that during counseling she had disclosed about the sexual assault made by her father towards her, also substantiates the evidence of PW2. Therefore, from the evidence of PWs 2 to 6 and Exhibits P1 and P2, the prosecution has succeeded in proving that the accused has committed rape/penetrative sexual assault on PW2 as alleged. From the evidence of PW2, it is also revealed that the accused has intimidated to kill her, in case she discloses about the sexual harassment to outside world. Since the accused has sexually abused his own minor daughter, PW2 and intimidated to kill her, the prosecution has also succeeded in proving the offences under Section 506 Part-II IPC and Section 75 of the Juvenile Justice Act.
25. Since the accused is the father of the minor victim, he is liable to be punished under Section 376(2) (f) of IPC. The punishment provided for the offence under Section 376 (2) (f) IPC is imprisonment for a term which shall not be less than 10 years and which may extend to imprisonment for life, which shall mean imprisonment for remainder of the person's natural life and shall also be liable to fine.
26. The trial court has imposed a sentence of imprisonment for life, which shall mean imprisonment for remainder of the natural life of Crl. Appeal.632/2021 19 2024:KER:58710 the appellant and he was also sentenced to pay a fine of Rupees One Lakh in addition to the life sentence, under Section 376 (2) (f) IPC. Under Section 506 Part-II IPC, he was sentenced to undergo rigorous imprisonment for five years and under Section 75 of the JJ Act, he was sentenced to undergo rigorous imprisonment for another three years.
27. At the time of arguments, learned counsel for the appellant, relying upon the decision of the Hon'ble Supreme Court in Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252, would argue that Constitutional Courts are empowered to impose fixed term of sentence, even in cases where life sentence is imposed. Therefore, the learned counsel prayed for taking a lenient view on the ground that the accused is now aged 57 years. He would also submit that the victim got married and now leading a marital life away from the residence of the appellant.
28. In the decision in Raju v. State of Kerala, (Crl.A.No.233 of 2022 decided on 12.06.2023) a Division Bench of this court (in which one of us was a party) also held that it is now settled that the Constitutional courts are empowered to modify the punishment within the punishment provided for in the IPC, for specified offences. In the Crl. Appeal.632/2021 20 2024:KER:58710 above decision, by applying the above dictum, the punishment imposed on another father for the offence under section 376(2)(f) IPC was limited to rigorous imprisonment for a period of 20 years, instead of imprisonment for the remainder of his natural life.
29. The accused was aged 50 years at the time of commission of the offence. For the last seven years, he is in jail and now he is 57. As submitted by the learned counsel for the accused, the victim is already married and leading a peaceful life along with her husband and family. The appellant was a fisherman till the child was in 7 th standard. Then he met with an accident and thereafter started earning his livelihood by selling lottery tickets. Considering the entire facts, we hold that this is a fit case in which a fixed term of imprisonment can be imposed against the appellant, in lieu of life sentence. Considering the gravity of the offence, the age of the appellant and all other surrounding circumstances, we hold that rigorous imprisonment for a period of 20 years will be sufficient to meet the ends of justice. Similarly, for the offence under Section 506 Part-II IPC, rigorous imprisonment for a period of two years and under 75 of the JJ Act, rigorous imprisonment for a period of one year will be sufficient to meet the ends of justice. Crl. Appeal.632/2021 21
2024:KER:58710 Points answered accordingly.
30. In the result, this appeal is allowed in part as follows:
While sustaining the conviction, sentence is modified as follows:
The appellant is sentenced to undergo rigorous imprisonment for a period of 20 years under Section 376 (2)(f) of IPC, in place of imprisonment for life imposed by the trial court. The amount of fine as well as the default sentence imposed under Section 376 (2)(f) is sustained. The sentence imposed under Section 506 Part-II IPC is reduced to rigorous imprisonment for a period of two years and that under S.75 of the JJ Act is reduced to rigorous imprisonment for a period of one year.
Sd/-
P.B. SURESH KUMAR, JUDGE Sd/-
C. PRATHEEP KUMAR, JUDGE sou./Mrcs