George @ Shaji vs State Of Kerala on 27 March, 2024

[Cites 10, Cited by 0]

Kerala High Court

George @ Shaji vs State Of Kerala on 27 March, 2024

The appellant is the sole accused in S.C. No. 573 of 2013 on the file of the Additional District and Sessions Judge, Ernakulam and he is challenging the conviction and sentence passed against him for the offences under Sections 376 (1) of IPC and Section 67B(e) of Information Technology Act, 2000 ('Act, 2000' for short) as per the impugned judgment dated 03.09.2016.

2. The prosecution case, as per the final report, is that the accused, who is the biological father of the minor victim girl, subjected her to sexual intercourse forcibly at 4.30 p.m., on 21.10.2010. and thereafter, he continued to subject her to sexual intercourse on several days for a period of one year and he also recorded the above act of rape in his mobile phone and thereby, caused others to see the same and he is thereby, alleged to have committed the offences punishable under Section 376 (1) IPC and Section 67B(e) of the Act, 2000.

Crl. Appeal No. 12/2017 :3:

3. Based on Exhibit P1, First Information Statement of the victim dated 17.07.2012 recorded by PW10, Exhibit P9 FIR was registered and thereafter, PW11, Circle Inspector of Mattancherry, conducted the investigation and filed the final report and the same was taken on file as S.C. No. 573 of 2013.

4. When the accused appeared before court, he was furnished with copies of all the prosecution records and after hearing both sides, charge was framed against the accused for the offences punishable under Section 376 (1) of IPC and Section 67B(a) and (e) of the Act, 2000.

6. The charge was read over and explained to the accused to which he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 12 and marked Exhibits P1 to P16 and MOs 1 to 3 to prove the charge against the accused. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appeared against him in the evidence of prosecution. The accused denied all those circumstances and stated that he is innocent. Since it is found that it is not a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence. But, no evidence was adduced from the side of the accused. Crl. Appeal No. 12/2017 :4:

7. After considering the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 03.09.2016, convicted the accused and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for another 5 months for the offence under Section 376(1) IPC. The accused is also sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for another 10 months for the offence under Section 67B(e) of Act, 2000.

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

9. Heard Sri. Rahul S., the learned counsel representing the learned counsel for the appellant on record, and the learned Public Prosecutor, Smt. Bindu O.V. and perused the records.

10. The main argument advanced on behalf of the appellant/ accused is that the sole testimony of PW1 cannot be relied on to find the accused guilty, especially in view of the fact that PW2, the mother of the victim, has not supported the prosecution case. It is argued that the testimony of PW1 is not of sterling quality and that Crl. Appeal No. 12/2017 :5: there is inordinate delay in filing the FIR. It is also argued that the conviction of the accused for the offence under Section 67B(e) of the Act, 2000 is not based on any legally acceptable evidence and that there is no reliable evidence in this case to connect the accused with MO1, mobile phone, and MO2, memory card.

11. The learned counsel for the appellant relied upon the dictum laid down in Santhosh Prasad v. State of Bihar [2020 KHC 6155], in which it is held that if conviction has to be based on the sole testimony of the 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.

12. 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, keeping in mind the principles laid down in the aforesaid case, it is necessary to consider the arguments of the appellant that Crl. Appeal No. 12/2017 :6: the testimony of PW1 is not of sterling quality and as to whether the testimony of PW1 suffers from any material discrepancies, inconsistencies, contradictions or embellishments or in any way inconsistent with the testimony of other prosecution witnesses.

13. Exhibit P1, First Information Statement, is seen recorded on 17.07.2012 by PW10, Sub Inspector of Kannamaly Police Station, and his evidence shows that he recorded the statement of the victim in the presence of a Women Civil Police Officer. The victim girl, when examined as PW1, deposed that now she is an inmate of Vikas Bhavan, Kothamangalam and that while she was residing with the accused at Kannamaly, he sexually assaulted her during January, 2010. According to PW1, the accused is her father and on 21.01.2010, at about 4 p.m., when she came back from the school, her grandmother has gone to the church and subsequently, the accused who came there, asked her to change the dress for going to the church and while she was changing her dress, the accused entered the room, caught her and forcibly laid her to the bed and thereafter, subjected her to sexual intercourse.

14. According to PW1, the accused also threatened her not to disclose the matter to her mother and if in case she discloses the matter to the mother, he will finish her mother. According to PW1, thereafter also, the accused subjected her to sexual intercourse on Crl. Appeal No. 12/2017 :7: several days for the next one year and all the said incidents occurred in their house at Kannamaly. Thereafter, the wife of the elder brother of her father told her that the sexual acts between her and the accused are seen in the internet by the friends of the elder brother of her father and when her mother came to know about the same, she disclosed the matter to her mother and subsequently, the police questioned her. PW1 also identified her signature in Exhibit P1 First Information Statement and Exhibit P2 statement recorded by the Magistrate under Section 164 Cr.P.C.

15. In cross examination, PW1 denied the suggestion that she has given Exhibit P2, statement to the Magistrate as directed by the police. She also denied the suggestion that she made the said statement as instructed by her uncle. PW1 admitted that she reached the court along with a Sister of Vikas Bhavan Orphanage. But, she denied the suggestion that she was tutored by the said sister regarding the matters to be deposed before the court.

16. PW5 is the wife of the elder brother of the accused. PW5 deposed that she is residing at Kannamaly and on 16.07.2012, she came to know from her husband that obscene videos of the accused and PW1 are there in the internet and thereafter, she informed the matter to the father of the accused and the mother of the victim. Crl. Appeal No. 12/2017 :8: According to PW5, when they questioned PW1, it is revealed that the accused sexually abused the victim.

17. It is true that PW2, the mother of the victim, turned hostile to the prosecution and deposed that when she questioned PW1 on getting information from PW5 regarding the obscene videos, PW1 has told her that no such incident occurred. Even though PW2 admitted her signature in Exhibit P3, 164 statement, and deposing before Magistrate about her husband subjecting PW1 to sexual assault, she would say that she made the said statement as instructed by the police.

18. PW4 is the brother of PW2. According to PW4, the accused and PW2 were in love when PW2 was aged 18 years and at that time, the accused refused to marry PW2 and thereafter, left the native place and subsequently, returned and married PW2, while PW1 was studying in class IX.

19. PW6 was the doctor who examined the victim on 17.07.2012 and issued Exhibit P5 certificate stating that there is evidence of vaginal penetration. PW7 was the doctor who examined the accused on 18.07.2012 and issued Exhibit P6, potency certificate, stating that on examination, there was nothing to suggest that he is incapable of performing sexual acts. Crl. Appeal No. 12/2017 :9:

20. It is pertinent to note that the evidence of PW1 before the court tallies on all material particulars with Exhibit P1, First Information Statement, and Exhibit P2, 164 statement recorded by the Magistrate. It is true that there is delay in reporting the matter to the police and registering the FIR. But, in this connection, it is to be noted that according to PW1, the accused has threatened her not to disclose the incident to her mother and if in case she discloses the incident, he will finish her mother. The evidence of PW1 regarding the occurrence is also supported by the evidence of PWs 4 and 5 and medical evidence of PW6 and Exhibit P5 medical certificate.

21. 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]. It cannot be disputed that the testimony of the victim of sexual assault is more reliable than that of an injured witness, and 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 assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.

Crl. Appeal No. 12/2017 : 10 :

22. Considering the age of the victim girl and the fact that the incident occurred in her house, while she was alone and that the accused is her biological father and that he threatened the victim after the incident not to reveal the matter to anybody else and that he will finish her mother, if she discloses the incident to her, we find that in cases of this nature, it cannot be expected that the police would be immediately informed by the victim ignoring the threat from the accused, who is none other than her father who is residing with her and therefore, considering the above facts and circumstances, we find that there is no unexplained delay in registering the FIR and the argument of the appellant in this regard cannot be accepted.

23. In this case, the sexual assault 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 tendered by PW1 appeared to us to be natural and consistent with the case of the prosecution. Even though PW1 was seriously cross examined, the core spectrum of the crime remained intact and she categorically denied the suggestion that she was tutored by the police and the Sister from the orphanage who accompanied her to the court. PW1 has not given Crl. Appeal No. 12/2017 : 11 : any room for any doubt as to the material particulars deposed by her, especially in relation to the sexual assault committed on her by her father. The evidence tendered by PW1 has correlation with each and every other supporting evidence. Therefore, we have no doubt in our minds that PW1 can certainly be regarded as a sterling witness.

24. The learned counsel for the appellant argued that the evidence of PW1 would show that the sexual relationship with the accused can only be consensual. It is pointed out that there is nothing to show that there was any resistance from her side and that the sexual relationship continued for about one year and Exhibit P1 statement was given only when PW5 has informed about the obscene video of PW1 and the accused circulating in the internet.

25. The accused herein is the biological father of the victim and the occurrence was inside their house and therefore, the mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistence or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law and the consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, Crl. Appeal No. 12/2017 : 12 : based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent, as held in Rao Harnarain Singh Sheoji Singh v. State [1958 Crl. Law Journal 563] and Uday v. State of Karnataka [(2003) 4 SCC 46]. It is well settled that the consent in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.

26. In this case, the evidence of PW1 clearly shows that the accused entered her room, while she was changing the dress and he forcibly laid her on the bed and then subjected her to sexual intercourse and that he also threatened her that if in case she discloses the incident to anybody else, he will finish her mother and therefore, according to us, in a situation of this nature, the conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender cannot be construed as consensual acts of sexual intercourse and therefore, the contention of the appellant in this regard is not sustainable and we find no reason to interfere with the finding of the trial court that the accused committed the Crl. Appeal No. 12/2017 : 13 : offence under Section 376(1) of IPC and considering the facts and circumstances and the nature of the offence, we also find no reason to interfere with the sentence imposed by the trial court for the offence under Section 376(1) of IPC.

27. The learned counsel for the appellant argued that the finding of the trial court that the accused committed the offence under Section 67B(e) of the Act, 2000 is without any legally acceptable evidence to connect the accused with MO1 mobile phone, and Mo2, memory card. It is pertinent to note that the specific case of the prosecution is that the accused recorded the sexual acts in his mobile phone and caused others to see the same. The evidence of PW11, the then Circle Inspector of Mattancherry Police Station, shows that he seized MO1, mobile phone, said to be used by the accused, when the same was produced by PW2, as per Exhibit P4 mahazar on 19.07.2012.

28. In cross examination, PW11 admitted that he has not produced any document to prove the IMEI number of the mobile phone or as to who was the subscriber of the SIM card used in the said mobile phone. Even though PW11 deposed in cross examination that he also produced the memory card of the mobile phone, he cannot say, which company manufactured the same or its capacity.

Crl. Appeal No. 12/2017 : 14 :

29. PW12 was working as a Civil Police Officer in Cyber Cell, Cochin and according to him, he copied the video clipping in the memory card of a mobile phone to a CD as per the direction of the Circle Inspector. At the time of examination of PW12 before the court, MO3, CD, could not be played before the court as it was found broken. In cross examination PW12 admitted that only if scientific examination is conducted in Cyber Forensic Lab, it can be ascertained as to whether the obscene video in MO2, memory card, was recorded by using MO1, mobile phone. PW12 also cannot say the date on which MO2, memory card, was activated.

30. As noticed earlier, PW2 has turned hostile to the prosecution. According to PW2, she has not stated to the police that one mobile phone of her husband is lost and she also cannot remember the mobile number of her husband. There is nothing in the evidence of PW2 to show that MO1 is the mobile phone of the accused.

31. Therefore, we find force in the argument of the learned counsel for the appellant that the prosecution has not adduced any legally acceptable evidence to connect the accused with MO1, mobile phone, and MO2, memory card. Therefore, we find that the finding of the trial court that the accused committed the offence Crl. Appeal No. 12/2017 : 15 : under Section 67B(e) of the Act, 2000 is not legally sustainable and the same is liable to be set aside.

32. Therefore, while confirming the conviction and sentence imposed against the appellant/accused for the offence under Section 376(1) of IPC, the conviction and sentence passed against him for the offence under Section 67B(e) of the Act, 2000 is set aside.

In the result, this appeal is allowed in part as above. Interlocutory applications, if any, pending shall stand closed.

sd/-

P.B. SURESH KUMAR, JUDGE.

sd/-

JOHNSON JOHN, JUDGE.

Rv Crl. Appeal No. 12/2017 : 16 : APPENDIX APPELLANT'S ANNEXURE:

ANNEXURE A1: THE ORIGINAL OF THE DEATH CERTIFICATE ISSUED BY ST. ANTONY'S CHURCH, KANNAMALY, KOCHI. RESPONDENTS' ANNEXURES: NIL /True Copy/ PS To Judge rv

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