Kerala High Court
Abdul Rassaque @ Adbu vs State Of Kerala on 11 August, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942
CRL.A.No.632 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.19/2015 DATED 29-02-2016 OF
ADDITIONAL SESSIONS COURT - I (SPECIAL COURT FOR THE TRIAL
OF OFFENCES AGAINST CHILDREN)MANJERI
APPELLANT:
ABDUL RASSAQUE @ ADBU,
S/O.ENI, C-264/16
CENTRAL PRISON & CORRECTIONAL HOME,KANNUR.
BY ADV. JELSON.J.EDAMPADAM(STATE BRIEF).
RESPONDENT:
STATE OF KERALA
(INSPECTOR OF POLICE, MALAPPURAM),
(CR.NO.1029/2013).
BY SRI.RAMESH CHAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-
2020, THE COURT ON 11-08-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.632 of 2016
2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.632 of 2016
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Dated this the 11th day of August, 2020
JUDGMENT
The sole accused in S.C.No.19 of 2015 on the files of the Additional Sessions Court-I, Manjeri has come up in this appeal challenging his conviction and sentence in the said case.
2. The victim in the case is a girl aged 14 years. The accusation against the accused is that on a day in the month of November 2012, the accused has committed rape on the victim girl in the vacant room attached to the house of one Abdul Samad near AMUP school, Varikkode, and thereby committed the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Section 5(k) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 15 Crl.Appeal No.632 of 2016 3 witnesses on its side as PW1 to PW15 and proved through them 9 documents as Exts.P1 to P9. Among the witnesses examined on the side of the prosecution, PW1 is the doctor who examined the victim girl on 22.11.2013, PW3 is the Child Line Counsellor who interacted with the victim girl on 22.11.2013, PW5 is the Headmaster of AMUP school where the victim girl was pursuing her studies at the time of occurrence, PW6 is the teacher of AMUP school to whom the victim girl is stated to have disclosed the occurrence, PW9 is the victim girl, PW10 is the father of the victim girl, PW11 is the Police Official who prepared the scene mahazar in the case and PW12 is the Judicial Magistrate who recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure (the Code). Among the documents proved, Ext.P1 is the report of the medical examination of the victim girl issued by PW1, Ext.P4 is the certificate concerning the age of the victim girl issued by PW5, Ext.P5 is the scene mahazar prepared by PW11 and Ext.P7 is the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure.
Crl.Appeal No.632 of 20164
4. On an appraisal of the materials on record, the court below found the accused guilty of the offences under Section 376 of the IPC and Section 5(k) read with Section 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 5(k) read with Section 6 of the POCSO Act. No separate sentence is seen imposed on the accused for the offence under Section 376 of IPC. As noted, the accused is aggrieved by his conviction and sentence.
5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
6. The learned counsel for the appellant has made elaborate submissions on the legal and factual aspects of the case. At the outset, the submission made by the counsel was that in the absence of any allegation as to the date on which the accused has committed the alleged rape, the charge and the conviction of the accused for the offence punishable under Section 5(k) read with Section 6 of the Crl.Appeal No.632 of 2016 5 POCSO Act is unsustainable. Similarly, it was argued by the learned counsel that since the alleged occurrence took place admittedly prior to the Act 13 of 2013, what is to be examined by the Court is as to whether the prosecution has established the guilt of the accused under Section 376 of the IPC as it stood prior to Act 13 of 2013. It was pointed out by the learned counsel that the court below has found the accused guilty of the offence punishable under Section 376 of the IPC on the premise that the case is one that falls under the Sixth description of Section 375 of the IPC, as it stood prior to Act 13 of 2013. It was argued by the learned counsel that since the age of the victim girl has not been proved, and in the absence of any evidence that the sexual intercourse the accused had with the victim girl was without her consent, the court below was not justified in convicting the accused for the offence punishable under Section 376 of the IPC. Alternatively, it was also argued by the learned counsel that it is a case where the prosecution has miserably failed in proving the alleged act of sexual intercourse. The learned counsel elaborated the said submission pointing out that the victim girl has admitted that she has disclosed the alleged act of sexual intercourse Crl.Appeal No.632 of 2016 6 committed by the accused on the same day itself to PW6, her teacher and also to PW10, her father. According to the learned counsel, had there been such a disclosure, they would have certainly informed the matter to the police and the fact that the aforesaid persons have not informed the matter to the police would show that the allegation is false. It was also pointed out by the learned counsel that complaint in the case was lodged almost an year thereafter and there is no satisfactory explanation for the delay. It was also pointed out by the learned counsel that the case of the prosecution being that the accused took the victim girl to the place of occurrence which is the building adjoining the school of the victim girl from her class room, whereas the materials on record would indicate that it is not possible to go to the place of occurrence from the school of the victim girl at all. It was also argued by the learned counsel that the father of the victim girl gave a statement to the police about an year after the occurrence that the accused was not seen in the locality at all for about two years. According to the learned counsel, the aforesaid circumstances would also make the evidence given by the victim girl suspicious and unreliable. It was also argued Crl.Appeal No.632 of 2016 7 by the learned counsel that at any rate, the sentence imposed on the accused is disproportionate to the gravity of the offence established in the case.
7. Per contra, the learned Public Prosecutor submitted that even assuming that the argument advanced by the learned counsel for the accused that the accused should not have been charged and convicted for the offence punishable under the POCSO Act and that the prosecution has not proved the age of the victim girl, the proved facts would make out a case of sexual intercourse falling under the Sixth description to Section 375 of the IPC as it stood prior to Act 13 of 2013, for it was established that the sexual intercourse the accused had with the victim girl was without the consent of the victim girl. It was also argued by the learned Public Prosecutor that the various discrepancies in the evidence adduced by the prosecution as pointed out by the learned counsel for the appellant are not sufficient to disbelieve the evidence tendered by the victim girl, on the basis of which the accused is convicted. In essence, the submission made by the learned Public Prosecutor is that the judgment impugned does Crl.Appeal No.632 of 2016 8 not call for any interference.
8. Having heard the learned counsel for the parties on either side and having perused the materials on record, the points arising for consideration in the case are the following ;
i) Whether the court below was justified in
charging and convicting the accused for the offence
punishable under the POCSO Act, and
ii) Whether the prosecution has established the
guilt of the accused under Section 376 of the IPC as it stood prior to Act 13 of 2013.
9. As rightly contended by the learned counsel for the appellant, POCSO Act was notified only with effect from 14.11.2012. The charge in the case is that the accused has committed sexual assault on the victim girl on a day during the month of November 2012. In the absence of any specific allegation as to the date on which the sexual assault was committed by the accused, the allegation being only that the occurrence took place one day during November, 2012, one Crl.Appeal No.632 of 2016 9 cannot assert that the occurrence took place on 14.11.2012 or on a day thereafter in the month of November, 2012. If that be so, I am of the view that the court below was not justified in charging and convicting the accused for the offence punishable under the POCSO Act.
10. I shall now consider the question as to whether the prosecution has established the case set out by them that the accused had sexual intercourse with the victim girl. The evidence let in by the prosecution needs to be considered to adjudicate the said question. PW9 is the victim girl. Though the prosecution has a case that PW9 is mentally retarded, after a due enquiry, the court below came to the conclusion that she was able to understand the questions put to her and was in a position to give rational answers for the said questions and therefore, she is a competent witness. The said finding of the court below has been affirmed by the father of the victim girl also, testifying that though the victim girl has some speaking difficulties, she would understand all matters and has the ability to act accordingly. PW9 deposed that she was studying in A.M.U.P. school upto 7th standard and Crl.Appeal No.632 of 2016 10 thereafter, in P.M. Higher Secondary School; that she knows the accused; that while she was studying in 7th standard, the accused took her to a place near the school offering her sweets and it was thereafter that he committed sexual assault on her. PW9 also deposed that when she went to the place as required by the accused, he removed her clothes and grabbed her breast. She also deposed that thereafter he kissed on her face. PW9 deposed that thereafter, the accused has inserted his genital organ into her vagina after making her lie down. PW9 deposed that when she cried and requested him to leave her, the accused left her. PW9 deposed that the portion of her dress was torn off on account of the act committed by the accused and when PW6, her teacher asked as to the reason for the tear of the dress, she informed PW6 that her dress was torn off by the accused. PW9 deposed that she did not inform the matter to anybody else on account of fear. She deposed that she disclosed the occurrence to others including her teachers and friends, only when she was studying at P.M. Higher Secondary School in 8th standard. PW9 deposed that two other persons also committed sexual assault on her during the relevant period. Though PW9 was cross-examined, Crl.Appeal No.632 of 2016 11 nothing was elicited from her evidence to discredit her version in the chief examination. The only fact that was elicited from the victim girl during cross-examination is that she disclosed the occurrence to her father on the same day itself. The father of the victim girl deposed as PW10 that the teacher of the victim girl has told him that three persons including the accused has committed rape on the victim girl. PW6, the teacher of A.M.U.P. school deposed that some time during 2012-2013, while she was going to the class, she went to the class room of the victim girl as required by the class mates of the victim girl and when she went to the class room, she found that the dress of the victim girl was torn. PW6 deposed that when she questioned, the victim girl told her that one Abdu has torn of her dress. PW3 is a Child Line counsellor. She deposed that on receiving information from P.M. Higher Secondary School, she went to the school and talked to the victim girl and found that the victim girl was sexually abused by one Abdu. PW3 also deposed that she accordingly informed the matter to the police.
11. True, the only evidence available to prove the Crl.Appeal No.632 of 2016 12 core aspect of the crime, viz, the sexual assault is the evidence tendered by the victim girl. As rightly pointed out by the learned Public Prosecutor, there is absolutely nothing for this court to suspect the genuineness of the evidence tendered by the victim girl which discloses categorically that the accused has committed rape on her. What was deposed by PW6 was that the victim girl told her that the accused has torn of her dress. When the disclosure was only to that effect, there is no merit in the contention that in so far as PW6 has not informed the matter to the police, the case cannot be said to be a genuine one. Similarly, though the victim girl has stated that she had disclosed the occurrence to her father, the father did not admit that the victim girl had disclosed the occurrence then and there to him. Even assuming that the victim girl has disclosed the occurrence to her father, having regard to the social circumstances in the State, from the mere omission on the part of the father of the victim girl in not setting criminal law in motion, it cannot be inferred that the case was not genuine, for the father of the victim girl choosing not to report the matter to the police in the interest of the child cannot be ruled out. The contention taken by the Crl.Appeal No.632 of 2016 13 learned counsel for the appellant based on the disclosures alleged to have been made by the victim girl to PW6 and PW10, in the circumstances, is liable to be rejected. There is also no merit in the contention of the learned counsel that there was no access to the scene of occurrence directly from the school, for the prosecution has no case that the accused took the victim girl to the scene of occurrence directly from the school compound. True, the father of the victim girl as PW10 has deposed in cross examination that "അബ്ദുവവിനനെ രണ വർഷതതത്തോളമത്തോയവി നെത്തോടവിൽ കത്തോണത്തോതത്തോയവിടട്ട് അയത്തോളവിതപത്തോൾ എവവിനടെയത്തോണട്ട് എന്നുള്ള കത്തോരരര്യം എനെവിക്കറവിയവില." Merely for the reason that the father of the victim girl has not seen the accused, it cannot be contended that the accused was not in the locality at all during the relevant period when there is convincing evidence before the court to establish the presence of the accused in the locality at the time of occurrence. There is also no merit in the contention taken by the learned counsel for the appellant concerning the delay in registering the FIR. It has come out satisfactorily in evidence that the victim girl has not disclosed the occurrence to anyone then and there and she has Crl.Appeal No.632 of 2016 14 disclosed the occurrence to her friends and teachers only after an year, and immediately the matter was informed to the Child line and the Child line counsellor, in turn, informed the matter to the police. In the aforesaid circumstances, I am of the view that this is a case where the prosecution has established beyond doubt that the accused has committed rape on the victim girl as alleged, and the finding rendered by the court below in this regard does not call for any interference.
12. Though it was alleged that the victim girl was aged 14 years, the prosecution has not proved the age of the victim girl by satisfactory evidence. Ext.P4 document produced by the prosecution is only a certificate issued by the Headmaster of the school where the victim girl was pursuing her studies, stating the date of birth of the victim girl. The prosecution has not examined anybody who would be in a position to give the date of birth of the victim girl in order to prove her age nor the prosecution has produced any document falling within the scope of Section 35 of the Evidence Act, containing the date of birth of the victim girl. In Crl.Appeal No.632 of 2016 15 the light of the various decisions of this Court and also the Apex Court that even the school admission register falling within the scope of Section 35 does not conclusively prove the age of the victim without supporting evidence of the person at whose instance the entry in the school admission register concerning the said date of birth has been made, I am in agreement with the contention taken by the learned counsel for the appellant that Ext.P4 certificate does not conclusively prove the age of the victim girl. The question then is as to whether in the absence of any satisfactory evidence as to the age of the victim girl, can the prosecution be said to have proved the guilt of the accused under Section 376(1) of the IPC, as it stood prior to Act 13 of 2013.
13. Section 375 of the IPC, as it stood prior to Act 13 of 2013 reads thus:
"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :--
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained Crl.Appeal No.632 of 2016 16 by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. "
As pointed out by the learned counsel for the appellant, the court below found the accused guilty under Section 376(1) of the IPC holding that the case on hand is one that would fall within the Sixth description of Section 375 of the IPC, as it stood prior to Act 13 of 2013, on the premise that the victim girl is aged below 16 years. In so far as it is found that the age of the victim girl has not been proved, the question is as Crl.Appeal No.632 of 2016 17 to whether the prosecution has succeeded in making out a case of rape under Section 376(1) of the IPC, as it stood prior to Act 13 of 2013. I have referred to in the preceding paragraphs, the essence of the evidence given by the victim girl. The said evidence would disclose beyond doubt that the accused has taken the victim girl to the place of occurrence by offering her sweets and had sexual intercourse with her deceitfully and forcefully. In other words, the sexual intercourse the accused had with the victim girl cannot be said to be one with the consent of the victim girl, for the consent to be valid, the sexual intercourse should be one that is should have been welcomed by the victim girl (See Thankappan v. State of Kerala, 2020 (4) KLT 709). In other words, the materials on record would establish beyond doubt the guilt of the accused under Section 376(1) of the IPC, as it stood prior to Act 13 of 2013.
14. In so far as the prosecution has no case that the occurrence is one that took place after Act 13 of 2013, in terms of which Sections 375 and 376 of the IPC are amended drastically by introducing severe punishments for the offence of rape, I am of the view that the minimum punishment Crl.Appeal No.632 of 2016 18 provided for, for the offence would serve the ends of justice in the case on hand.
In the result, the appeal is allowed in part. The conviction of the appellant is altered to one under Section 376(1) of the IPC as it stood prior to Act 13 of 2013 and the sentence imposed on him is modified, directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months. In all other respects, the impugned judgment will stand confirmed.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj/PV