Sindhu vs State Of Kerala on 25 October, 2024

[Cites 15, Cited by 0]

Kerala High Court

Sindhu vs State Of Kerala on 25 October, 2024

The above appeals arise from S.C. No.135 of 2014 on the files of the Additional District and Sessions Court, Ernakulam. There were five accused in the case. Accused 1, 2 and 5 among them, are the appellants in the appeals. Accused 3 and 4 in the case were though convicted and sentenced under Section 354 IPC, they have not preferred any appeal challenging their conviction and sentence in the case. Among the appellants, the first accused stands convicted and sentenced under Section 376(1) of the Indian Penal Code (IPC), the second accused stands convicted and sentenced under Section 109 read with Sections 354 and 376(1) IPC as also under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the fifth accused stands convicted and Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 5 :- sentenced under Sections 354 and 376(1) IPC.

2. The second accused is the mother of the victim. The father of the victim is no more. The first accused was a regular visitor in the house of the second accused. The fifth accused is a person running a shop in the close proximity of the house of the victim. The case which culminated in the conviction of the accused was one registered at the instance of the Child Welfare Committee, Ernakulam. In the final report, it was alleged that the victim was aged only 9 years.

3. When the accused were committed to trial on the final report being filed in the case, the Court of Session framed the following charges against them:

First:- That, in the month of August 2012, from the kitchen of the house of the 2nd accused, having building number, Elamkunnapuzha gramapancyayat XVII/341, situated on the southern side of Beach Road, near to the Murikumpadam Belbo Street, Vypin-Munambam State Highway, you the 1st accused, with the knowledge and consent of the 2nd accused, had sexual intercourse with CW2, daughter of the 2nd accused, a girl child aged 9 years, three times repeatedly and, thereby you have committed the offence, rape, punishable u/s. 376 (2) (f) of IPC, within my cognizance.

Secondly:- That, in the month of May 2012, from the same place, with the knowledge and connivance of the 2nd accused, you the third accused, had sexual intercourse with CW2, two times repeatedly and, thereby you have committed the offence, rape, punishable u/s.376 (2) (f) of IPC, within my cognizance.

Thirdly:- That, in the month of July 2012, from the north eastern bedroom of the above house of 2nd accused, with the knowledge and connivance of the 2nd accused, you the 4th Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 6 :- accused, had sexual intercourse with CW2, two times repeatedly and, thereby you have committed the offence, rape, punishable u/s. 376 (2) (f) of IPC, within my cognizance Fourthly:- That, in the months of March and April 2012, you the 5th accused, from your shop room having building number Elamkunnapuzha Panchayat XVII/152, situated on the northern side of the Beach Road, Murikkumpadam Belbo Street, with the intention of outraging the modesty, caught the private parts of CW2 and, thereby you have committed the offence punishable u/s. 354 of IPC, within my cognizance.

Fifthly:- That, during the same period, time and place, you the 5th accused, had taken her to the terrace of the above building and with the intention of committing unnatural offence, had carnal intercourse against the order of nature with CW2, by inserting your penis into her mouth and, thereby also committed the offence punishable u/s. 377 of IPC, within my cognizance.

Sixthly:- That, during the same period, time and place, you the 5th accused, had taken CW2 to the terrace of your above building and had sexual intercourse with her, repeatedly, by laying her on the floor and, thereby also committed the offence, rape, punishable u/s.376 (2) (f) of IPC, within my cognizance.

Seventhly:- That, you the 2nd accused, being the mother of CW2, had intentionally aided the accused A1, A3 to 5, to have sexual intercourse with CW2 and A5 to commit unnatural offence and also received cash from the 1st and 3rd accused and, thereby you have committed the offence, abetment, punishable u/s. 109 r/w 354, 377, 376 (2) (f) of IPC, within my cognizance.

Eighthly:- That, you the 2nd accused, being the mother of CW2, had given her to the accused A1, A3 to 5, for having sexual intercourse and, thereby you have also committed the offence punishable u/s. 372 of IPC, within my cognizance.

Ninethly:- That, you the 2nd accused, being the mother and bound to give protection to CW2, a girl child of 9 years, have subjected her to unnecessary physical and mental suffering by giving her to the accused A1, A3 to 5, for having sexual intercourse and, thereby committed the offence punishable u/s. 23 of the Juvenile Justice (Care and protection of Children) Act, 2000, within my cognizance. The accused pleaded not guilty of the charges. The prosecution, thereupon, examined 21 witnesses as PW1 to Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 7 :- PW21 and proved through them 23 documents as Exts.P1 to P23. On the closure of the prosecution evidence, the appellants were questioned under Section 313 of the Code of Criminal Procedure (the Code) and they denied the incriminating circumstances brought out in the evidence of the prosecution.

As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the appellants were called upon to enter on their defence. At that stage, the accused examined two witnesses on their side as DW1 and DW2 and proved through them three documents as Exts.D1 to D3. Thereupon, on an evaluation of the matters before it, the Court of Session found accused 1 and 5 guilty of the offence punishable under Section 376(1) IPC, accused 3 to 5 guilty of the offence punishable under Section 354 IPC and the second accused guilty of the offences punishable under Section 109 read with Sections 354 and 376(1) IPC as also under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. They were accordingly convicted for the said offences and acquitted of all the remaining charges. The first accused was consequently sentenced to undergo imprisonment for life and pay fine for the offence under Section 376(1) IPC. Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 8 :- Likewise, the second accused was sentenced to undergo rigorous imprisonment for 10 years and pay fine for the offence punishable under Section 109 IPC read with Section 376(1) IPC, rigorous imprisonment for one year and pay fine for the offence punishable under Section 109 read with Section 354 IPC and rigorous imprisonment for six months and pay fine for the offence punishable under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Similarly, the fifth accused was sentenced to undergo rigorous imprisonment for 7 years and pay fine for the offence punishable under Section 376(1) IPC and rigorous imprisonment for one year and pay fine for offence punishable under Section 354 IPC. The appellants are aggrieved by their conviction and sentence in the said case, hence these appeals.

4. Heard Adv.Saipooja, the learned counsel for the first accused, Adv.Manju Antoney, the learned counsel for the second accused and Adv.T.G.Rajendran, the learned counsel for the fifth accused. The learned Public Prosecutor addressed arguments on behalf of the State.

5. The point that falls for consideration is whether the conviction of accused 1, 2 and 5 and the sentence Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 9 :- passed against them in the case are sustainable in law.

6. The learned counsel for the first accused raised four contentions. The first and foremost of which was that the testimony of the victim is not reliable as it is not of a sterling quality. It was also contended by the learned counsel that the investigation in the case was faulty and improper. It was further contended by the learned counsel that the Child Welfare Committee and its officers made attempts to create a false case against the first accused. Lastly, it was contended by the learned counsel that at any rate, the subject crime being a crime committed prior to the amendment made to Section 376 IPC in terms of Criminal Law (Amendment) Act, 2013, the punishment inflicted on the first accused is too harsh, especially having regard to the fact that the first accused is a person aged 74 years.

7. The learned counsel for the fifth accused adopted all the contentions taken by the learned counsel for the first accused. In addition, it was contended by the learned counsel that the fifth accused is the next door neighbour of the victim, who runs a shop, and in spite of that, the victim did not implicate him in the First Information Statement. According to Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 10 :- the learned counsel, the evidence tendered by the victim as against the fifth accused, in the circumstances, is liable to be rejected. That apart, it was also contended by the learned counsel that the specific case of the prosecution is that the fifth accused committed rape on the victim twice, once inside the shop and on another occasion on the terrace of the shop building. It was argued by the learned counsel that it has come out in evidence that the fifth accused is a person working in the Naval Base, Ernakulam and the shop is one run by the wife of the fifth accused. According to the learned counsel, it is impossible, therefore, for the fifth accused to commit rape on the victim as alleged by the prosecution. It was also contended by the learned counsel that there is no allegation in the charge as regards the dates on which and the time at which the fifth accused committed rape on the victim and without there being any such particulars in the charge, the Court of Session acted illegally in convicting the fifth accused.

8. The learned counsel for the second accused contended that the conviction of the second accused under Section 109 IPC is unsustainable in law inasmuch as the proved facts do not show that the second accused intentionally aided Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 11 :- the first accused to commit sexual intercourse with the victim. The learned counsel also contended that the punishment is too harsh in the light of the background of the parties.

9. In the light of the various contentions raised by the learned counsel for accused 1, 2 and 5, it is necessary to delve deep into the evidence let in by the prosecution. PW1 is the victim in the case. PW1 deposed that while she was residing with her mother at Murikkumpadam, the first accused used to visit their house and commit sexual intercourse with her mother. The conduct aforesaid of the first accused was expressed by the victim in her own words by stating that the first accused used to penetrate his sexual organ into the vagina of her mother and also hold her breasts. It was deposed by the victim that the first accused used to commit the same acts on her as well at their house. It was deposed by the victim that the fifth accused was a person running a shop in the neighbourhood of their house and that he also committed the same acts on her twice as done by the first accused, once inside his shop and on another occasion on the terrace of the shop building, after making her lie down and removing her clothes. It was deposed by the victim that when the first Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 12 :- accused committed the acts aforesaid, her mother was present in the house and even though she cried out of pain, her mother did not take it seriously. It was further deposed by the victim that when she complained to her mother about the pain on her private parts also, her mother did not respond. It was deposed by the victim that when the first accused used to commit such acts, her mother would stand at the door to ensure that her brother is not coming. It was deposed by the victim that she complained to her Anganwadi teacher and also to the Child Welfare Committee about the pain on her private parts and her inability to walk properly. It was admitted by the victim that Ext.P1 is the statement given by her before the Child Welfare Committee. PW1 also confirmed that Ext.P2 is the statement given by her before the Magistrate. The victim identified accused 1 and 5 in the dock. In cross-examination, the victim conceded that she is unable to recollect the dates when the first accused assaulted her. She however, stated that she was taken to the Child Welfare Committee on 24.08.2012.

10. PW2 was an Asha Worker attached to Puthuvype Public Health Centre. PW2 deposed that she met the victim when PW2 went to the Anganwadi near the Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 13 :- residence of the victim to give polio vaccine to children during February, 2012 and when she enquired with the victim as to the reason for not wearing an undergarment, the victim told PW2 that that she is not wearing an undergarment as instructed by her mother so as to enable the visitors of her mother to commit sexual assault on the victim as well. It was deposed by PW2 that she informed the matter to the Anganwadi teacher and also to the Health Inspector. PW3 is the Anganwadi teacher referred to by PW2 in her evidence. PW3 gave evidence on similar lines of the evidence given by PW2. PW10 is the Health Inspector referred to by PW2. She also gave evidence on similar lines of the evidence tendered by PW2. In addition, it was deposed by PW10 that on the basis of the information given by PWs 2 and 3, PW10 went to the school of the victim and informed the matter to her headmistress and from the school, the matter was informed to the Child Welfare Committee.

11. PW9 was the Gynaecologist attached to the General Hospital, Ernakulam during 2012. PW9 deposed that on 18.08.2012, he did a gynaecology examination on the victim on the basis of the request of the Child Welfare Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 14 :- Committee, Ernakulam and no ailments could be detected. Ext.P4 is the certificate issued by PW9 in this regard. It was clarified by PW9 in his evidence that it is only when they are informed that the patient is a rape victim, will a certificate be issued in the proper form as issued in respect of rape victims, indicating that he was not informed of the fact that the girl was a victim of sexual abuse. PW13 was a Gynaecologist attached to St.Joseph's Hospital, Kothamangalam. PW13 deposed that on 24.01.2013, she examined the victim who was brought there from Dharmagiri Vikas Centre at the instance of Child Welfare Committee, Ernakulam, with the history of sexual abuse, and on examination, it was noticed that her hymen was absent, vaginal introitus open and yellowish discharge coming from within mild candidiasis from the vaginal introitus and she issued Ext.P6 certificate opining that the victim was sexually abused.

12. PW15 was the president of Kothamangalam Dharmagiri Vikas Society which is a women and children welfare centre. PW15 deposed that while the victim was staying at the Centre, she complained about irritation in her private parts and it was accordingly that she was taken first to Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 15 :- Dharmagiri St.Josephs Hospital. It was also deposed by PW15 that later the victim was taken to Kottayam Medical College also for treatment.

13. PW16 was the chairperson of the Child Welfare Committee, Ernakulam during 2012. She deposed that it was she who took the statement of the victim and forwarded the same to the police. PW16 identified Ext.P1 as the statement given by the victim and Ext.P9 as the covering letter issued by her. It was clarified by PW16 that the victim was initially sent to the Government Girls Home and later to Dharmagiri Vikas Centre, Kothamangalam and thereafter to SOS Village, Aluva by the Child Welfare Committee. Even though it was stated by PW16 in the cross-examination of accused 1, 2 and 4 that the victim was brought to the Child Welfare Committee on 13.08.2012, it was stated by PW16 in the cross-examination of the fifth accused that she does not remember the date on which the victim was brought before the Child Welfare Committee. It was clarified by PW16 that the victim was taken to the General Hospital and also to St.Joseph's Hospital as she was not well, indicating that it was not for the purpose of obtaining an opinion on the question whether the victim was Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 16 :- subjected to sexual abuse, she was sent to the said hospitals.

14. PW17 was the police officer who conducted the investigation and submitted the final report in the case. PW17 deposed the said fact in his evidence. It is seen that when the matter was taken up before the Court of Session, the Public Prosecutor filed an application under Section 173(8) of the Code for further investigation and the same was allowed. PW18 was the police officer who conducted further investigation in the case. It was thereupon that the statement of PW16, the chairperson of the Child Welfare Committee was recorded and the certificates of examination of the victim by PW9 and PW13 were seized and produced before the court by PW18. PW19 was the police officer who took over the investigation from PW18. PW19 filed the supplementary final report after the further investigation.

15. As noted, two witnesses were examined on the side of the accused as DW1 and DW2. Among them, DW2 was the Associate Professor of Kottayam Medical College who examined the victim when she was taken there for treatment. It was deposed by DW2 that she examined the victim on 06.02.2013 and issued Ext.D3 certificate. According to DW2, Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 17 :- even though the victim was brought to her with a history of sexual abuse, on examination, there were no injuries anywhere on her body and DW2 did not, therefore, give any opinion on the question whether the victim was subjected to sexual abuse.

16. It is based on the evidence discussed in the preceding paragraphs that the Court of Session arrived at the conclusion referred to in paragraph 3 above. Even though the specific case of the prosecution was that the victim was a minor girl aged 9 years, accused 1 and 5 are convicted only under Section 376(1) IPC as the prosecution failed to prove the age of the victim.

17. Let us now consider the point. Ext.P4 certificate issued by PW9 does not help the prosecution in any manner. As clarified by PW15, Ext.P6 certificate was not one issued by PW13 on a reference made by the Child Welfare Committee for opinion on the question whether the victim was subjected to sexual abuse. Ext.P6 was a certificate issued when the victim was taken to PW13 for treatment when there was a yellowish discharge from her vagina. Be that as it may, PW13 examined the victim on 24.01.2013. It was immediately Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 18 :- thereafter on 06.02.2013, DW2 examined the victim. DW2 did not issue a certificate opining that the victim was subjected to sexual abuse. PW13 is a private doctor, whereas DW2 is an Associate Professor attached to the Government Medical College Hospital, Kottayam. Since DW2 did not give any opinion that the victim was subjected to sexual abuse, despite the fact that she noticed during her examination that the hymen of the victim was not intact, we are of the view that it is not safe to place reliance on Ext.P6 certificate issued by PW13 to hold that the victim was subjected to sexual abuse. In other words, there is no medical evidence to corroborate the case of the prosecution that the victim was subjected to sexual abuse by several persons. Needless to say, in order to prove the case of sexual abuse, prosecution has only the oral evidence tendered by the victim.

18. No doubt, the evidence of a rape victim can be the sole basis of a conviction. But, it is trite that in order to base a conviction solely on the evidence of a rape victim, such evidence shall be of sterling quality. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to who can be said to be a sterling Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 19 :- witness. Paragraph 22 of the judgment of the Apex Court in the said case relied on by the learned counsel for the first accused reads thus:

"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 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 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."

As evident from the decision of the Apex Court, before acting Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 20 :- upon the sole testimony of a victim in a case of rape to convict the accused, it should be ensured that the version of the victim on the core spectrum of the crime is truthful and remained intact all throughout, right from her first statement till her deposition in the Court, and that the same shall, under no circumstances, give room for any doubt as to the factum of the occurrence.

19. The evidence adduced by the prosecution in the case reveals that after the death of the father of the victim, the second accused, viz, the mother of the victim was leading a wanton life and the first accused was a regular visitor in her house. The evidence also reveals that the fifth accused was running a shop in the close proximity of the house of the victim. Even though PW2 deposed that the victim informed her about the sexual abuse to which she was subjected to, it is not clear from the evidence of the said witness as to what was the information that was passed on to her by the victim. But, what is discernible from the evidence of PW2 is that she entertained a doubt as to whether the victim was subjected to sexual abuse by the visitors at her house and it was that information, she passed on to PW3. It has come out that PW3 passed on the Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 21 :- said information to PW10, the Health Inspector. As noted, the stand taken by PW10 was that she passed on the information gathered from PW2 to the Headmistress of the school where the victim was pursing her studies then. The Headmistress of the school was not examined in the proceedings. What was stated by PW10 in her evidence is only that when she informed the matter to the Headmistress, PW10 made arrangements for counselling the victim through the Child Welfare Committee. The Chairperson of the Child Welfare Committee who was examined as PW16 categorically stated that the victim had not divulged anything about sexual abuse initially and that it was at a later point of time that she disclosed that she was subjected to sexual abuse and rape by those who visited her mother. It was at that point of time, the Child Welfare Committee recorded the statement of the victim and forwarded the same to the police. As noted, Ext.P9 is the communication addressed by PW16 to the police. Ext.P9 indicates that the statement was forwarded to the Circle Inspector of Police, Njarakkal on 24.08.2012 and he, in turn forwarded the same to the Sub Inspector of Police, Njarakkal on 01.09.2012 and the case was registered on 03.09.2012. Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 22 :- Even though the police took steps thereupon to record the statement of the victim under Section 164 of the Code, the police had not taken steps to conduct the medical examination of the victim. The explanation offered by PW17, the investigating officer in this regard is that steps were not taken to conduct medical examination of the victim since she was subjected to the same by PW9 earlier on 18.08.2012 at the instance of the Child Welfare Committee. The question whether the victim in this case can be considered as a sterling witness needs to be examined in the above background.

20. We have scrutinised, thoroughly, the evidence in the case. We do not find any reason to disbelieve the evidence tendered by the victim as regards the alleged acts of rape committed on her by accused 1 and 5. As noticed, among them, the first accused is a person who used to visit the house of the victim regularly and the fifth accused was a person running a shop in the close proximity of the house of the victim. True, the victim has not specifically mentioned the name of the fifth accused in Ext.P1. A close reading of Ext.P1 would indicate that the essence of the same is that those who are visiting the house of the victim are subjecting her to sexual Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 23 :- abuse and that her mother is not protecting her. The perpetrators are described generally in Ext.P1 as "ച ടന ർ". Of course, it is stated therein that the first accused used to visit everyday. According to us, inasmuch as Ext.P1 statement pertains to the events that were taking place in her house, the omission on her part in mentioning the name of the fifth accused, is not of much significance. We take this view for the reason that the victim has not only mentioned the name of the fifth accused in Ext.P2 statement given under Section 164 of the Code, but also mentioned therein the background in which the fifth accused committed rape on her, including the particulars of the places at which the fifth accused committed rape on her. The evidence tendered by the victim was consistent with her previous statements in Exts.P1 and P2 and the materials brought out in the cross-examination, do not give any room for doubt as to the factum of the overt acts attributed to accused 1 and 5. On the other hand, the evidence of the victim appeared to us to be truthful and natural in the background in which the victim was brought up. Needless to say, the victim in the case can be regarded as a sterling witness and her evidence can certainly be acted upon. Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 24 :-

21. It is trite that if the investigation in a case is faulty, the evidence in the case will have to be scrutinised independently of the faulty investigation; otherwise criminal trial will descend to the investigating officer ruling the roost and if the court is convinced that the evidence of an eyewitness is true, it is free to act upon such evidence. It is apposite in this context to refer to the judgment of the Apex Court in State of Karnataka v. K.Yarappa Reddy, (1999) 8 SCC

715). Paragraph 19 of the said judgment reads thus:

"19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre- eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."

Reverting to the facts, we are of the opinion that this case could have been investigated in a better manner. We have Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 25 :- already indicated that despite the statement given by the victim that she was subjected to sexual abuse by the visitors in her house, steps were not taken for her medical examination. As already indicated, the lame excuse stated by the investigating officer for not doing so was that the victim was examined by PW9 earlier. Had the investigating officer been vigilant in the investigation, it would have been very easy for him to come to the conclusion that PW9 was never informed when the victim was taken to him that she is a victim of child abuse. Similarly, no material is placed before the court from which it could be inferred as to the circumstance under which the care and protection of the victim was taken over by the Child Welfare Committee and the purpose for which her custody was taken over. There are serious lapses in the conduct of the case on behalf of the prosecution as well. A lot of facts which needed clarification to enable the court to come to a right conclusion on the factual aspects of the case, are left unclarified. Be that as it may, the question is whether the accused are entitled to the benefit of such faulty investigation and faulty prosecution. According to us, inasmuch as the evidence tendered by the victim was found acceptable and Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 26 :- satisfied the requirements of law, such lapses cannot enure to the benefit of the accused. The argument advanced by the learned counsel for the first accused in this regard is only to be rejected and we do so.

22. It is seen that the contention that the Child Welfare Committee and its officers have made attempts to create a false case against the first accused is pressed solely based on the fact that PW16, the Chairperson of the Child Welfare Committee came to give evidence in the case, without bringing the records. If the first accused was prejudiced on account of the said conduct of PW16, he should have resorted to the recourse available to him under law to remedy the same. Without taking recourse to such courses of action, the first accused cannot be heard to contend that any prejudice has been caused to him.

23. As noticed, one of the arguments advanced by the learned counsel for the fifth accused is that the fifth accused was employed elsewhere; that his wife is running the shop located in the close proximity of the house of the victim and that the case set out by the prosecution that the fifth accused committed rape on the victim inside the shop and also Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 27 :- on the terrace of the shop building is therefore, not believable. There is no satisfactory evidence in the case to show that the fifth accused was employed elsewhere. The categoric evidence given by the victim is that the fifth accused is running the shop and it is only when he goes to the market, his wife would be present at the shop. This part of the evidence of the victim is not seen cross-examined by the counsel for the fifth accused. If that be so, the fifth accused cannot be heard to contend that the case of the prosecution, qua the fifth accused, is not believable. Another argument advanced by the learned counsel for the fifth accused relates to the non-mentioning of the date and time of the alleged occurrences by the victim. The charge as against the fifth accused is that he committed rape on the victim during the months of March and April, 2012. True, the victim has not stated in her evidence the period during which and the time at which the fifth accused committed rape on her. We do not think that merely on account of that reason, the evidence tendered by the victim is liable to be rejected, especially when the fifth accused has no case that any prejudice has been caused to him on account of the omission on the part of the victim in specifying the dates Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 28 :- on which and time at which the alleged acts of rape were committed by him. In cases of this nature, where girls of tender age are compelled to have sexual intercourse with several people from time to time, it is unreasonable to expect from them, the precise dates on which a particular individual had sexual intercourse with them [See Chittaranjan Das v. State of W.B., AIR 1963 SC 1696]. The aforesaid contention of the fifth accused, in the circumstances, is also liable to be rejected.

24. The argument advanced by the learned counsel for the second accused is that the facts proved in the case, even assuming that the same would establish the guilt of accused 1 and 3 to 5, do not show that the second accused abetted the crime committed by the said accused. As noted, the charge against the second accused is that she intentionally aided accused 1 and 3 to 5 to have sexual intercourse with her daughter. As already noticed, the age of the victim has not been proved in the case. The evidence reveals that the first accused committed rape on the victim forcefully in the presence of the second accused and the second accused used to receive money from him and others after permitting them to have sexual intercourse with the victim. The evidence also Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 29 :- reveals that the brother of the victim had once assaulted the first accused and the second accused would therefore stand at the door of the house when the first accused and others used to commit rape on the victim to ensure that the brother of the victim is not coming. The argument advanced by the learned counsel is that one could be said to be intentionally aiding the commission of a thing, in the context of the offence of abetment, only if he does so by any act or illegal omission. According to the learned counsel, the fact that the offence was committed in the presence of the second accused would not amount to an act or illegal omission to constitute abetment. Likewise, it was argued that the fact that the second accused collected money from the first accused and others for having permitted them to have sexual intercourse with the victim, would also not amount to an act in order to constitute abetment, since the same is admittedly done after the commission of the crime. It was argued by the learned counsel that though the second accused was obliged morally to prevent the first accused from committing rape on her daughter, the omission on the part of the second accused to do so, cannot be regarded as an illegal omission in order to attract Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 30 :- the offence punishable under Section 107 IPC. The relevant portion of Section 107 IPC reads thus:

107. Abetment of a thing A person abets the doing of a thing, who--

First -- Instigates any person to do that thing; or Secondly -- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly -- Intentionally aids, by any act or illegal omission, the doing of that thing.

                   Explanation 1:-- xxx xxx      xxx

              Illustration

                       xxx   xxx    xxx

Explanation 2:-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. No doubt, as rightly contended by the learned counsel, one could be said to be intentionally aiding the commission of a thing only when he does so by any act or illegal omission. Black's Law Dictionary defines the word "Aid" thus:

"Aid. To support, help, assist or strengthen. Act in cooperation with; supplement the efforts of others. State v. Upton, lowa, 167 N.W.2d 625, 628"

Similarly, the said dictionary defines "Aid and abet" thus:

"Aid and abet. Help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 31 :- incite as to its commission. State v. Fetters, lowa, 202 N.W.2d 84, 90. It comprehends all assistance rendered by words acts, encouragement, support, or presence, actual or constructive, to render assistance if necessary."

In the light of the meaning of the word "aid" as also its meaning in the context of the offence of abetment as referred to above, we have no doubt in our minds that the proved conduct of the second accused in the case would establish that the second accused intentionally aided the commission of the crime, for her conduct in facilitating the accused in committing the crime in her own house in her presence, that too, by ensuring that her son who is against such acts, does not come in the way, would amount to an act that would fall within the scope of Section 107 IPC. It is all the more so, in the light of Explanation 2 to the Section which clarifies that whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. The contention of the learned counsel for the second accused, in the circumstances, is only to be rejected and we do so.

25. What remains to be considered is the Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 32 :- argument advanced by the learned counsel for accused 1 and 2 that the sentence imposed on them is harsh and excessive. No doubt, the crime which is the subject matter of the case was one committed prior to the Criminal Law (Amendment) Act, 2013. The mandatory minimum sentence prescribed for the offence then under Section 376 IPC was only imprisonment for a period of seven years and fine. In the light of the proviso to Section 376(1), as it stood then, the court had even power to impose a sentence for imprisonment for a term less than seven years for adequate and special reasons to be mentioned. The materials on record indicate that the parties come from the rustic background and the first accused was aged about 60 years at the time of the occurrence. As noted, the occurrence took place in the year 2012. From the materials available, it can also be inferred that social and economic circumstances must have prompted the second accused to lead a wanton life after the death of her husband. In the circumstances, we are of the view that any punishment above the minimum mandatory punishment would be too harsh in a case of this nature.

In the result, Crl.A.Nos.352 of 2018 and 239 of 2019 Crl.Appeal Nos.967 of 2017 and connected cases 2024:KER:79491 -: 33 :- are allowed in part, confirming the conviction of the appellants and reducing the sentence imposed on them to rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each and in default of payment of fine to undergo imprisonment for a period of three months, for the offences for which they were found guilty. Crl.A.No.967 of 2017 is dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.PRATHEEP KUMAR, JUDGE.

YKB/Ds/Mn

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