Sabu vs State Of Kerala on 5 March, 2024

[Cites 21, Cited by 0]

Kerala High Court

Sabu vs State Of Kerala on 5 March, 2024

The appellant is challenging the conviction and sentence passed against him in S.C. Nos. 60 and 61 of 2017 on the file of the Additional District and Sessions Judge, Ernakulam for the offences under Sections 376(2)(f) and 506(ii) IPC and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ('JJ Act' for short), as per the impugned judgment dated 18.12.2017.

2. The prosecution case is that the accused, who is the biological father of the minor victim girl, had subjected her to repeated sexual intercourse during the period from June, 2010 to September, 2014 and after investigation, four separate charge sheets were filed and the charge sheet pertaining to the offences committed during the period from June, 2010 to May, 2011 was taken on file as S.C. No. 61 of 2017, and the charge sheet pertaining to the offences committed during the period from June, 2011 to May, 2012 was taken on file as S.C. No. 60 of 2017. The charge sheet for the period from June, 2012 to May, 2013 was taken on file as S.C. No. 59 of 2017 and the charge sheet for the Crl. Appeal Nos.1302/2018 & 677/2019 :4: period from June, 2013 to September, 2014 was taken on file as S.C. No. 58 of 2017.

3. When the accused was produced before the trial court, after hearing both sides, charge was framed against the accused in all the four cases and the trial court also allowed the petition filed by the accused for joint trial as C.M.P No. 907 of 2017 and accordingly, all the above 4 cases were tried jointly. From the side of the prosecution PWs 1 to 12 were examined. Exhibits P1 to P15 were marked, and no evidence was adduced from the side of the defence.

4. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 18.12.2017, found the accused not guilty of the offences charged against him in S.C. Nos. 58 and 59 of 2017 and therefore, acquitted him in those two cases. But the accused was found guilty under Sections 376(2)(f) and 506(ii) of IPC and Section 23 of the JJ Act in S.C. Nos. 61 and 60 of 2017 and he is convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment, for two months for the offence under Section 376(2)(f) of IPC; and to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous Crl. Appeal Nos.1302/2018 & 677/2019 :5: imprisonment for one month for the offence 506(ii) of IPC; and to undergo rigorous imprisonment for three months for the offence under Section 23 of the JJ Act, in S.C. Nos 61 and 60 of 2017.

5. Heard Smt. Saipooja, the learned counsel for the appellant and Smt. Bindu O.V., the learned Public Prosecutor and perused the records.

6. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused by the trial court are sustainable or not.

7. The learned counsel for the appellant argued that there are serious inconsistencies in the evidence of the victim and her mother and there is inordinate delay in filing the FIR. It is argued that the prosecution has not examined the teacher of the school to whom the victim has first disclosed the alleged incident and that the evidence of PW1 in cross examination would show that during the relevant period, the accused resided in a rented house and the prosecution has no case that the accused subjected the victim to sexual intercourse in his rented house and therefore, the trial court ought to have found that the testimony of PW1 is not of sterling quality.

8. In Santhosh Prasad v. State of Bihar [2020 KHC 6155], it is held that if the conviction has to be based on the sole testimony of the Crl. Appeal Nos.1302/2018 & 677/2019 :6: victim in a rape case, the deposition of the victim must be of sterling quality. It is well settled that the status of the witness would be immaterial and what would be relevant is the truthfulness of such a statement made by the witness and for that purpose, the court is required to analyse the consistency of her statement right from the beginning till the end and as to whether she was able to withstand any length of cross examination.

9. It is true that the delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses etc. are factors that would persuade a court to look for corroboration before convicting the accused based on the sole testimony of the victim. Therefore, in view of the legal principles laid down in the aforesaid case, it is necessary to analyse the testimony of PW1 in this case, for a proper appreciation of the contentions raised by the learned counsel for the appellant.

10. PW6 was the Woman Police Sub Inspector who reached Nirmala Orphanage functioning under St. Mary's Orphanage, Vallakom on 24.05.2016 as per the direction of the Sub Inspector and recorded the statement of the victim girl in the presence of Sr. Tessy and the First Information Statement is marked as Exhibit P1. PW7 was the Sub Inspector of Vaikom Police Station on 24.05.2016 and he deposed that Crl. Appeal Nos.1302/2018 & 677/2019 :7: on the basis of the report received from the child line, he deputed PW6, Woman Sub Inspector, to record the statement of the victim and on the basis of Exhibit P1 First Information Statement, he registered Exhibit P8 FIR in this case. The reports received from the child line are marked as Exhibit P9 series.

11. The minor victim girl is examined as PW1. PW1 deposed that she is now an inmate of Nirbhaya Home, Kakkanad and her date of birth is 01.12.2001. According to PW1, her house is at Mamalakandam and there she resided with her parents, siblings and grandmother. Her evidence shows that she has two elder brothers and a younger sister and during the period when she resided at Mamalakandam, her elder brother was working at Kottayam. According to PW1, while she was residing in her house at Mamalakandam, her father subjected her to physical and mental harassment and during night, he used to insert his thing used for urinating into that part of her body used for urinating.

12. PW1 also stated that she saw her father committing the very same act against her younger sister and that her father repeated the said acts against her during the period from June, 2010 to September, 2014. According to PW1, during 2010, she was studying in Class III at LP School, Mamalakandam and since her father has threatened her, by showing a knife not to disclose the matter to anybody else, she has not Crl. Appeal Nos.1302/2018 & 677/2019 :8: disclosed the matter to anybody else. PW1 stated that subsequently, she disclosed the matter to her Health teacher at Vallakom School and thereafter, a Woman Police Officer recorded her statement and she identified her signature in Exhibit P1 First Information Statement. PW1 also stated that she has given a statement to the Magistrate regarding the incident and the 164 statement of PW1 recorded by the Magistrate is marked as Exhibit P2.

13. Even though, the learned counsel for the appellant argued that there are serious contradictions and inconsistencies in the evidence of PW1 regarding the occurrence, no proton of the previous statement of the witness was specifically brought to her attention while cross examining her and no proton of her previous statement is proved legally to contradict her. It is well settled that if it is intended to contradict a witness by her previous statement in writing, the attention of the witness must be drawn to those parts of it before the writing is proved, as held by the Hon'ble Supreme Court in Tahsildar Singh and another v. State of UP [AIR 1959 SC 1012]

14. In Dasu and others v. State of Maharashtra (1985 Crl.L.J.1933), it was held that:

"In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand Crl. Appeal Nos.1302/2018 & 677/2019 :9: together. It is also necessary to see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the two statements made by the witness cannot stand together and the statements in the court is such that the witness would necessarily have made at the time of his earlier statement, then alone omission thereof can be considered to be a contradiction."

15. In cross examination, PW1 denied the suggestion that she was tutored by the police regarding the matters to be deposed before the court. It is not known to PW1 whether her elder brother Sunil was born in the first marriage of her mother. She would say that neither her father nor her mother told her that her elder brother Sunil is not the son of her father. PW1 admitted that there used to be quarrel between her elder brother Sunil and her father for many reasons and that her father told Sunil not to lie with them in bed. But, she also clarified that her elder brother Sunil never used to lie with them in bed. PW1 also admitted that there occurred a quarrel between her father and elder brother and in the said incident, both of them sustained injuries on their face. But, she is not aware about the reason for the said quarrel.

16. According to PW1, her father is a coconut climber and mahout and while working as a mahout, he stayed away from the house for one month. PW1 further admitted that there used to be quarrel between the Crl. Appeal Nos.1302/2018 & 677/2019 : 10 : accused and her grandmother and while she was studying in Class III and IV, her father, after quarrelling with her grandmother, shifted the residence to a rented house and subsequently, returned to their house. PW1 also stated that while she was studying in Class V and VI also, her father shifted his residence to a rented house at Mamalakandam and thereafter while she was studying in 6th standard, they again returned to their house. The evidence of PW1 shows that along with the mother, they also accompanied the father to the rented house. But her father has not taken her elder brother and grandmother to the rented house.

17. PW2 is the mother of PW1 and according to PW2, she married the accused after the death of her first husband. PW2 stated that Sunil is the son born to her in her first marriage and in her marriage with the accused, one son and two daughters were born. PW2 stated that originally they were residing at Ponjassery and thereafter, came to Mamalakandam. Her daughters, including the victim herein, studied at L. P School, Mamalakandam up to the 4th Standard and thereafter, they were admitted in a school at Vallakom.

18. According to PW2, her children stayed in a hostel while studying at Vallakom School and it was because of the ill-treatment from the side of the accused, she shifted the victim and her sister to the hostel at Vallakom and that the victim and her sister used to reach the Crl. Appeal Nos.1302/2018 & 677/2019 : 11 : house only during Onam and Christmas vacations. According to PW2, the accused used to subject the children to ill-treatment after consuming liquor and she was not aware about the exact nature of the ill-treatment and her children only told her that their father is behaving in a bad manner and hence, she transferred her children to the school at Vallakom and there at the time of counselling, they disclosed the entire matter to the counsellor and subsequently, she was summoned to the school and only then she came to know the entire matter from the teachers. The 164 statement of PW2 recorded by the Magistrate is marked as Exhibit P3.

19. In cross examination, PW2 stated that whenever the accused reached the house after consuming liquor, there used to be quarrel between her mother and the accused. She also admitted that there used to be quarrel between her elder son Sunil and the accused. PW2 denied the suggestion that the accused never committed the alleged acts and that she is falsely deposing against the accused.

20. PW3 was the doctor who examined PW1 on 24.05.2016 at Taluk Hospital Vaikom and issued Exhibit P4 certificate. The evidence of PW3 and Exhibit P4 shows that the victim was brought by the police and on examination, old torn was detected on the hymen. According to PW3, the alleged history was intercourse several times since 8 years of age at Crl. Appeal Nos.1302/2018 & 677/2019 : 12 : her own house by her father and there is evidence of past vaginal penetration. In cross examination, PW3 admitted that at the time of examination, the parents of the victim were not present and she has not obtained written consent of her parents. PW3 also admitted that the hymen can be torn due to several reasons.

21. PW4 was the Secretary of Kuttampuzha Grama Panchayat who issued Exhibit P5 ownership certificate of house bearing No. 11/297. According to PW4, he also issued the birth certificate of the victim girl and the same is marked as Exhibit P6. The evidence of PW4 and Exhibit P6 shows that the date of birth of the victim is 01.12.2001. The then Village Officer of Kuttampuzha Village, who prepared Exhibit P7 site plan, is examined as PW5.

22. PW8 deposed that on 24.05.2016, he was in charge of the Circle Inspector in Vaikom Police Station and since the place of occurrence in Crime No. 966 of 2016 of Vaikom Police Station was within the limits of Kuttampuzha Police Station, he forwarded the case file to Kuttampuzha Police Station. PW10 was the Sub Inspector of Kuttampuzha Police Station who re-registered the case as Crime No. 360 of 2016 of Kuttampuzha Police Station and the said FIR is marked as Exhibit P10.

Crl. Appeal Nos.1302/2018 & 677/2019 : 13 :

23. PW9 deposed that on 24.05.2016, while working as a Woman Police Constable in Vaikom Police Station, she produced the victim for medical examination in Vaikom Taluk Hospital. PW11 was the Circle Inspector who conducted the investigation of this case from 25.05.2016 and Exhibit P12 is a report filed by him regarding the correct address of the accused. The arrest memo, inspection memo and custody memo of the accused are marked as Exhibit P13 series. The scene mahazar prepared by PW11 is marked as Exhibit P14.

24. PW12 was the Circle Inspector of Kothamangalam Police Station, who conducted the investigation of this case from 26.05.2016. According to PW12, he has taken steps for recording the 164 statement of the victim and also filed a report for adding Section 506(ii) IPC before the court. The evidence of PW12 further shows that he completed the investigation and filed the final report.

25. The learned counsel for the appellant argued that the evidence of PW3, doctor, would show that she has not obtained the written consent of the parents of the victim before conducting the examination and therefore, there is violation of Section 164A of Cr.P.C. The evidence of PW9, Woman Police Constable, would show that the victim was an inmate of Nirmala Orphanage, Vallakom and it was from there she produced the victim before the Taluk Hospital, Vaikom for Crl. Appeal Nos.1302/2018 & 677/2019 : 14 : medical examination as per the direction of the Station House Officer. It is true that there is nothing in evidence to show that either PW9 or PW3 doctor has obtained the written consent of the parents of the victim before conducting the medical examination. But, it is pertinent to note that there is nothing in the evidence of PWs 1 and 2 to show that the medical examination of PW1 was conducted without their consent.

26. It cannot be disputed that Section 27 of the Protection of Children from Sexual Offences, 2012 and Section 164(A) Cr.P.C are intended to safeguard the interest of the minor victim and therefore, in the absence of any material to indicate that any prejudice is caused to the accused in conducting the medical examination of the victim without a written consent from PW2, her mother, the same cannot be accepted as a ground to discard the evidence of PW3 and Exhibit P4 medical certificate.

27. The learned counsel for the appellant argued that the evidence of PW3 in cross examination would show that hymen can be torn due to several reasons and therefore, on the basis of the findings in Exhibit P4 certificate, it is not possible to arrive at a finding that the victim is not virgin and there is no satisfactory evidence in this case to prove that there was penetration sufficient to constitute sexual intercourse. In this connection, the learned counsel for the appellant also Crl. Appeal Nos.1302/2018 & 677/2019 : 15 : pointed out that the definition of 'rape' under Section 375 IPC and 'penetrative sexual assault' in Section 3 of the Protection of Children from Sexual Offences Act, 2012 came into force subsequent to the date of occurrence in this case and therefore, the same is not applicable for deciding the question of penetration sufficient to constitute the sexual intercourse necessary to the offence of rape as provided in the explanation to Section 375 of IPC prior to the Criminal Law Amendment Act, 2013.

28. The evidence of PW1 clearly shows that the accused used to insert his thing used for urinating into that part of her body used for urinating during night. The relevant portion of the evidence of PW1 before the court is extracted below:

"രാത്രി കിടക്കുമ്പോൾ പപ്പയുടെ മൂത്രമൊഴിക്കുന്ന അവയവം എന്റെ മൂത്രമൊഴിക്കുന്ന അവയവത്തിൽ കയറ്റും."

The above evidence of PW1 in chief examination is not seen specifically challenged in cross examination.

29. In Chenthamara v. State of Kerala [2008 (4) KLT 290], it was held that penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina Crl. Appeal Nos.1302/2018 & 677/2019 : 16 : would constitute rape, if penis gets physical contact in that process of access with any of the external portions of the female genital organ, such as, vulva, labia majora etc.

30. It is true that no offence under Section 376 IPC can be made out, unless there was penetration to some extent. However, it is well settled that a slight degree of penetration of the penis into vagina is sufficient to hold the accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC. In Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC 560], the Honourable Supreme Court held thus:

To constitute the offence of rape neither Section 375 IPC nor the explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains.

31. In this case, the evidence of PW1 that the accused used to insert his penis into her vagina during night is supported by the evidence Crl. Appeal Nos.1302/2018 & 677/2019 : 17 : of PW3, doctor, and Exhibit P4, medical certificate, which shows past vaginal penetration and old torn to hymen. Even though, PWs 1 to 3 were seriously cross examined, no material contradiction or omission was brought out and therefore, we find that the evidence of PW1 regarding the occurrence is reliable and trustworthy and the contention of the appellant that the prosecution has not established penetration sufficient to constitute sexual intercourse, is not legally sustainable.

32. On the basis of the evidence of PWs 1 and 2 in cross examination that the accused after quarrelling with the grandmother of the victim resided in a rented house during the relevant period, it is argued that since the prosecution has no case that the accused subjected the victim to sexual intercourse in the rented house, the accused is entitled to the benefit of reasonable doubt. The learned counsel for the appellant pointed out that the specific case of the prosecution is that the accused subjected the victim to sexual intercourse in a house having building No. 11/297 of Kuttampuzha Grama Panchayat. It is true that PW1 has admitted that her father, while working as a mahout, stayed away from the house for one month and that after quarrelling with her grandmother, the accused shifted the residence to a rented house and subsequently returned to their house. The fact that the accused stayed away from the house for short periods Crl. Appeal Nos.1302/2018 & 677/2019 : 18 : or that he shifted the residence to a rented house for a short duration after quarrelling with the grandmother of the victim by itself is not sufficient to show that he has no access to the victim during the period of occurrence and therefore, we find that the contention of the appellant in this regard cannot be accepted.

33. Another contention of the appellant is that there is delay in registering the FIR. It was pointed out that the alleged period of occurrence in S.C. No. 61 of 2017 was from June, 2010 to May 2011 and the alleged period of occurrence in S.C. No. 60 of 2017 was from June, 2011 to May, 2012 and that the FIR in this case was registered only on 24.05.2016. The evidence of PW7, the then Sub Inspector of Vaikom Police Station, clearly shows that he received Exhibit P9 series reports from the child-line regarding the sexual abuse of the victim by her father and accordingly, he directed PW6, Woman Police Sub Inspector, to record the statement of the victim and further the evidence of PW2, the mother of the victim, also shows that because of the ill treatment from the side of the accused, she shifted the victim and her sister to a hostel at Vallakom and that the victim studied only upto 4 th standard in L.P School, Mamalakandam and thereafter, the victim and her sister were admitted in a school at Vallakom and after the victim was transferred to the school at Vallakom, she disclosed the entire matter to a counsellor in Crl. Appeal Nos.1302/2018 & 677/2019 : 19 : the school at the time of counselling and the teacher also informed PW2 regarding the incident, and the evidence of PW2 shows that the victim has not disclosed the entire incident to her previously and she came to know the entire incident from the teachers and therefore, considering the facts and circumstance of the case, we find that there is no unexplained delay in registering the FIR.

34. Further it is in evidence that the victim girl was aged only 9 years at the time of occurrence and that the accused also threatened her with a knife not to disclose the incident to anybody else. We find that in cases of this nature, it cannot be expected that the police would be informed immediately by the victim, especially in view of the fact that the victim is a young girl aged only 9 years and that the assailant is her father.

35. It is well settled that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances as held by the Hon'ble Supreme Court in Rafiq v. State of U.P. [1980 (4) SCC 262].

36. The testimony of the victim of sexual assault is more reliable than that of an injured witness, unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of the victim of sexual Crl. Appeal Nos.1302/2018 & 677/2019 : 20 : assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. In the absence of any serious contradiction, omission or exaggeration in the evidence of PW1 before court and since her evidence tallies with her statement in Exhibit P1 First Information Statement and Exhibit P2, 164 statement recorded by the Magistrate, we find that her evidence regarding the occurrence inspires confidence and it can be relied upon even without seeking further corroboration.

37. The evidence of PW1 that her date of birth is 01.12.2001 is not challenged in cross examination. Further the evidence of PW4, Panchayat Secretary, and Exhibit P6, birth certificate, also shows that the date of birth of the victim is 01.12.2001 and the said evidence of PW4 is also not challenged in cross examination. We find that Exhibit P6 birth certificate of the victim and the evidence of PW4 proves beyond reasonable doubt that the date of birth of PW1 is 01.12.2001 and that she was a minor at the time of occurrence.

38. In this case, the evidence tendered by PW1 is natural and consistent with the case of the prosecution. Even though PW1 was seriously cross examined, the core spectrum of the crime remained intact throughout the cross examination, and PW1 has not given any room for any doubt as to the material particulars deposed by her, Crl. Appeal Nos.1302/2018 & 677/2019 : 21 : especially in relation to the sexual assault committed on her by her father. Further, in this case, the sexual abuse took place in the house of the victim and it cannot be imagined that a young girl of her age would cook up such a false story against her father in the absence of any serious grudge or hostility towards him before the occurrence. The evidence of PW1 in this case has correlation with each and every other supporting evidence, including the expert opinion given by the doctor who examined her. Therefore, we have no doubt in our minds that PW1 can certainly be regarded as a sterling witness.

39. Therefore, on a careful re-appreciation of the entire evidence, we find that the trial court has rightly convicted the accused for the offences under Sections 376(2)(f) and 506(ii) IPC and Section 23 of the JJ Act.

40. The learned counsel for the appellant, relying on the dictum in Mohd. Firoz v. State of Madhya Pradesh [2022 KHC 6432], submitted that considering the family background and other circumstances from which the accused comes, the maximum sentence of imprisonment for life imposed on him for the offence under Section 376(2) (f) of IPC may be reduced as the minimum sentence for the said offence is only 10 years. In Mohd. Firoz v. State of Madhya Pradesh [2022 KHC 6432], it was held that the maximum punishment prescribed Crl. Appeal Nos.1302/2018 & 677/2019 : 22 : may not always be the determinative factor for repairing the crippled psyche of the offender and balancing the scales of retributive justice and restorative justice. Therefore, in the circumstances of the case, we deem it appropriate to modify the sentence of imprisonment for the offence under Section 376(2)(f) IPC to be for a period of 20 years without any remission.

41. In view of Section 427 Cr.P.C and the fact that both the cases are with respect to the offences committed by the accused against the same victim, we also deem it appropriate to order that the sentence in both cases shall run concurrently. The sentence imposed by the trial court for the remaining offences shall stand confirmed.

In the result both the appeals are partly allowed to the aforesaid extent alone. Interlocutory applications, if any pending, shall stand closed.

sd/-

P.B. SURESH KUMAR, JUDGE.

sd/-

JOHNSON JOHN, JUDGE.

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