Kerala High Court
Babu vs State Of Kerala on 7 July, 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 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942
CRL.A.No.554 OF 2019
AGAINST THE ORDER/JUDGMENT IN SC 830/2013 DATED 06-04-
2019 OF ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM
CRIME NO.601/2012 OF ARUVIKKARA POLICE STATION,
Thiruvananthapuram
APPELLANT/ACCUSED (IN CUSTODY):
BABU,
AGED 40 YEARS, S/O.SANKARAN NADAR,
AJITH BHAVAN, KADAMBANATTU MURI,
MANAMBOOR, ARUVIKKARA VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.V.S.THOSHIN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP
SMT. PUSHPALATHA.M.K SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26-06-2020, THE COURT ON 07-07-2020 DELIVERED THE
FOLLOWING:
Crl.Appeal No.554 of 2019
2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.554 of 2019
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Dated this the 7th day of July, 2020
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.830 of 2013 on the files of the Additional Sessions Court, Thiruvananthapuram. The appellant is the sole accused in the case.
2. The accusation in the case is that on 02.12.2012 at about 6 p.m., the accused had carnal intercourse against the order of nature with the victim boy aged 12 years, and thereby committed the offences punishable under Section 377 of the Indian Penal Code (the IPC) and Section 3 read with Section 4, Section 7 read with Section 8 and Section 11 read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the Crl.Appeal No.554 of 2019 3 charges, the prosecution examined 9 witnesses as PWs.1 to 9 and proved 12 documents as Exts.P1 to P12. The witnesses examined on the side of the prosecution have also identified the material objects in the case. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the mother of the victim boy. She proved Ext.P1 First Information Statement. PW2 is the victim boy. PW3 is a neighbour of the victim boy. PW4 is the doctor who examined the victim boy and issued Ext.P2 wound certificate. PW5 is the doctor who examined the accused and issued Ext.P3 Potency Certificate. PW6 is another neighbour of the victim boy. PW7 is the witness to Ext.P4 Scene Mahazar. PW8 is the witness to Ext.P5 Dress Crl.Appeal No.554 of 2019 4 Mahazar. PW9 is the Investigating Officer in the case. PW9 proved Ext.P6 First Information Report, Ext.P7 forwarding note, Ext.P8 arrest memo, Ext.P9 inspection memo, Ext.P10 custody memo, Ext.P11 address report and Ext.P12 report of the Forensic Science Laboratory.
5. On an appraisal of the materials on record, the court below found that the accused is not guilty of the offences punishable under Section 11 read with Section 12 of the POCSO Act. The court, however, found that that the accused is guilty of the offences punishable under Section 377 of the IPC, Section 3 read with Section 4 and Section 7 read with Section 8 of the POCSO Act. Accordingly, the accused was convicted for the said offences and sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 377 of the IPC. Similarly, the accused was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 3 read with Section 4 of the POCSO Act. He was also sentenced to undergo rigorous Crl.Appeal No.554 of 2019 5 imprisonment for three years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 7 read with Section 8 of the POCSO Act. The accused is aggrieved by the conviction and sentence imposed on him.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant submitted out that the case on hand being a case arising under the POCSO Act, it was obligatory on the part of the prosecution to establish that the victim is a child and the said fact has not been established by the prosecution. According to the learned counsel, insofar as it is not established by the prosecution that the victim is a child as defined in the POCSO Act, the conviction of the appellant under various provisions of the POCSO Act are unsustainable. Coming to the case set out against the accused under Section 377 of the IPC, placing reliance on the evidence tendered by the mother of the victim boy that she had lodged a complaint to the police immediately after Crl.Appeal No.554 of 2019 6 she was informed by the victim boy about the sexual assault, it was argued by the learned counsel that if as a matter of fact, there was such a complaint, the same should have been treated as the First Information Statement in the case. According to the learned counsel, the omission on the part of the prosecution in bringing on record the said complaint throws serious doubts as to the genuineness of the prosecution case. Placing reliance on the evidence tendered by the Investigating Officer that the victim boy is intellectually weak, the learned counsel argued that he was, therefore, not competent to give evidence in the case, in terms of Section 118 of the Evidence Act, and the conviction of the appellant solely based on the said evidence is unsustainable. It was also argued by the learned counsel that even otherwise, the conviction of the accused is liable to be set aside as there was no charge in terms of Section 212 of the Code. According to the learned counsel, the charge in terms of Section 212 of the Code should contain the place of the alleged occurrence and in so far as the charge does not contain the place of occurrence, it has to be held that there Crl.Appeal No.554 of 2019 7 was no valid charge at all and there was no fair opportunity for the accused to defend himself in the case. Alternatively, the learned counsel also contended that the sentence imposed on the accused for the offence punishable under Section 377 of the IPC is grossly excessive and disproportionate to the gravity of the offence.
8. Per contra, the learned Public Prosecutor conceded that the place of occurrence is not shown in the charge framed by the court and read over to the accused. She, however, pointed out that the materials on record do not suggest that any prejudice has been caused to the accused on account of the non mentioning of the place of occurrence in the charge and that therefore, it cannot be argued that the trial is vitiated in any manner. It was also contended by the learned Public Prosecutor that merely for the reason that the mother of the victim boy has stated that the victim boy is intellectually weak, it cannot be said that he is incompetent to give evidence. As regards the contention taken by the learned counsel for the appellant about the complaint stated to have been lodged by the Crl.Appeal No.554 of 2019 8 mother of the victim boy, it was pointed out by the learned Public Prosecutor that what is referred to by the mother of the victim boy in her evidence is the First Information Statement and nothing else. In short, the submission made by the learned Public Prosecutor is that there is no infirmity in the judgment impugned in the appeal.
9. On hearing the counsel on both sides and on perusing the materials on record, it is seen that the point arising for consideration in the matter is as to whether the prosecution has established the guilt of the accused under Section 377 of the IPC, Section 3 read with Section 4 and Section 7 read with Section 8 of the POCSO Act.
10. At the outset, as pointed out by the learned counsel for the appellant, it is necessary to mention that this being a case arising under the POCSO Act, it was obligatory for the prosecution to prove the age of the victim boy, to be precisely that the victim boy is a child as defined in the POCSO Act. It was conceded by the learned Public Prosecutor that no evidence is let in as regards the age of the victim boy. The learned Public Persecutor, however, Crl.Appeal No.554 of 2019 9 placing reliance on the evidence tendered by the victim boy that he was born on 22.07.1999, submitted that the victim boy was a child as on the date of occurrence. I am unable to accept this argument. The victim boy cannot be said to be a witness competent to give evidence as regards his date of birth. Whatever he says about his date of birth can only be a hearsay and therefore, not admissible. In other words, it can be found that the prosecution has not adduced any evidence as regards the age of the victim boy and if that be so, it has to be held that the conviction of the accused for the various offences punishable under the POCSO Act is unsustainable.
11. The question remains to be considered is as to whether the prosecution has established the guilt of the accused under Section 377 of the IPC. The place of occurrence in the case is the courtyard of the house of PW3. Ext.P1 First Information Statement has been given by PW1, the mother of the victim boy. She deposed that on the relevant day, the victim boy was alone in the house. PW1 deposed that while she was coming back to home from work, she went to the house of PW3, and PW3 then told her Crl.Appeal No.554 of 2019 10 that the accused has erected his penis and penetrated it into the mouth of the victim boy and also placed the same on his anus. PW1 deposed that when she proceeded to her house, the victim boy who was in the house then appeared to be scary. She deposed that when she questioned the victim boy, he narrated to her that the accused has assaulted him sexually. It was brought out by the accused in the cross examination of PW1 that the victim is a sick child. Though a suggestion was put to PW1 that she has not stated to the police that the place of occurrence is the courtyard behind the kitchen of the house of PW3, she denied the same. PW2, the victim boy deposed that the incident took place during 2012 and he was studying in the 4th standard during the relevant period. He deposed that on the relevant day, the accused has penetrated his penis into the mouth and thereafter, into his anus. He deposed that he was at the house of PW3 at the relevant time. He deposed that when he cried aloud, PW3 came and rescued him. He deposed that he was wearing a black pants and a T-shirt at the time of occurrence. He identified the said clothes which are marked as MO1 and MO2. In cross Crl.Appeal No.554 of 2019 11 examination, the victim boy admitted that PW3 and his mother came to know about the occurrence only when he told them about the same. PW3 deposed that while she was coming back to home on the relevant day, she saw somebody running away from the side of her kitchen. She deposed that when she asked PW2 who was present there, he informed her that the accused has sexually assaulted him.
12. As noted, neither PW1 nor PW3 has seen the occurrence. As regards the occurrence, the only evidence available is that of PW2. Before considering the acceptability or otherwise of the evidence tendered by PW2, it is necessary to mention that the evidence tendered by PW3 that when she came back home on the date of occurrence, she saw the accused running away from the side of her kitchen has not been discredited by the accused in any manner. Similarly, the evidence tendered by PW1, the mother of the victim that when she came back home on the relevant day, the victim boy who was in the house then appeared scary and that the victim boy told her that he was sexually assaulted by the accused have also not been Crl.Appeal No.554 of 2019 12 discredited by the accused. Coming to the occurrence, it is seen that the victim boy was examined by PW4, the doctor on 03.12.2012. Ext.P2 is the report issued by PW4. PW4 has given evidence to the effect that the victim was brought to him on the allegation of "sexual assault by neighbour". In Ext.P2, PW4 has noted that he found bleeding at the anus of the victim boy. Further, it is seen that the dress worn by the victim boy at the time of occurrence was sent for forensic examination. Ext.P12 is the report of the Forensic Science Laboratory. Ext.P12 report, which is admissible under Section 293 of the Code recites that in the black coloured pants worn by the victim boy at the time of the occurrence, there was presence of spermatozoa and semen. The aforesaid materials corroborate the case spoken to by the victim boy that the accused has penetrated his penis into the mouth and also into the anus of the victim boy. The occurrence is one that took place prior to Act 13 of 2013. There is no dispute to the fact that the act attributed against the accused then would fall under Section 377 of the IPC. In other words, I have no doubt that the prosecution has established beyond Crl.Appeal No.554 of 2019 13 reasonable doubt the guilt of the accused under Section 377 of the IPC.
13. Now, I shall deal with the contentions raised by the learned counsel for the appellant. True, PW1 has stated that the victim boy was suffering from some ailments. She has not stated that the victim boy is intellectually weak. PW9, the investigating officer in the case stated that the victim boy appeared to him to be an intellectually disabled person. Section 118 of the Indian Evidence Act reads thus:
"118. Who may testify :- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
In terms of the extracted provision, all persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions by disease, whether of body or mind. The Explanation to Crl.Appeal No.554 of 2019 14 Section 118 clarifies that even a lunatic is competent to give evidence unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. In the case on hand, the competency of PW2 to give evidence is not seen questioned. The court below has not even tested the competency of the victim by conducting an enquiry as is usually done in the case of intellectually disabled witnesses. In the circumstances, according to me, there is absolutely no substance in the argument advanced in this regard that the victim boy was incompetent to give evidence.
14. True, the place of occurrence is not seen mentioned in the court charge. Sub section (1) of Section 464 of the Code reads thus:
"No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby"
In terms of the extracted provision, the defect in the charge would vitiate the trial, only if prejudice has been caused on Crl.Appeal No.554 of 2019 15 account of the same to the accused. Nothing is brought on record to indicate that any prejudice has been caused to the accused on account of the non mentioning of the place of occurrence in the charge. The contention raised in this regard is also therefore rejected.
15. I have read meticulously the evidence tendered by PW1, the mother of the victim boy. A reading of the evidence tendered by PW1 would indicate that the complaint which she was referring to in her evidence is Ext.P1 First Information Statement and nothing else. If as a matter of fact the accused had a case that the complaint lodged by the mother of the victim boy has been withheld by the police, he should have certainly cross examined the investigating officer on that point. In the absence of any cross examination to the investigating officer in this regard, according to me, there is no substance in the argument that the complaint given in writing by PW1 has been withheld by the prosecution.
16. It is seen that the court below has imposed on the accused a sentence of seven years rigorous imprisonment for the offence punishable under Section 377 Crl.Appeal No.554 of 2019 16 of the IPC. A case involving the said offence being one triable by a Magistrate of the First Class and the maximum sentence that could be imposed by the Magistrate being three years, according to me, a sentence of rigorous imprisonment for three years and a fine of Rs.10,000/- would serve the ends of justice.
In the circumstances, the conviction of the appellant and the sentence imposed on him under Section 3 read with Section 4 and Section 7 read with Section 8 of the POCSO Act are set aside. The conviction and sentence of the appellant under Section 377 of the IPC is, however, confirmed and he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB