Kerala High Court
Of Cases Relating To Atrocities And ... vs By Adv. Adv.R.Krishna ... on 9 October, 2020
Author: M.R. Anitha
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942
CRL.A.No.694 OF 2017
SC 550/2014 OF ADDITIONAL DISTRICT & SESSIONS COURT FOR THE TRIAL
OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN
AND CHILDREN, KOZHIKODE.
CRIME NO.1009/2013 OF THAMARASSERY POLICE STATION , KOZHIKODE
APPELLANT
ASHRAF @ BHASKARAN, S/O KUNHIRAMAN
C.NO.67/17, CENTRAL PRISON & CORRECTIONAL HOME,
KANNUR
BY ADV. ADV.R.KRISHNA KUMAR(CHERTHALA) (STATE BR
RESPONDENT
STATE OF KERALA
(THAMARASSERY POLICE STATION CR.NO.1009/13)
BY SMT.AMBIKA DEVI.S., SPL.PP ATROCITIES AGAINST
WOMEN & CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2020,
THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:
Crl.A.No.694/2017
2
JUDGMENT
Dated : 9th October, 2020 M.R. Anitha, J.
1. Appellant is the accused in S.C.No.550/2014 of Additional District & Sessions Court for the Trial of Cases Relating to Atrocities And Sexual Violence Towards Women and Children, Kozhikode.
2. The prosecution case is that about 7 months prior to 22.12.2013 one day appellant/accused (hereinafter be referred as accused) trespassed into building No.XIX/213 wherein PW11, the victim and her mother CW4 were residing. Accused the step grandfather of the victim girl committed penetrative sexual assault on the minor victim girl aged 10 years and sexually assaulted her touching and pressing on her private parts and thereby committed the offences aforementioned.
3. The case was initiated on Ext.P6 compliant by the victim Crl.A.No.694/2017 3 and intimation from the school to child line where the victim girl was studying in 5th standard. PW8- Sub Inspector of Thamarassery Police Station upon Ext.P6 complaint of the victim sent through the child line registered the FIR - Ext.P7 and conducted the initial investigation and arrested the accused. Pw13 the Circle Inspector, Thamarassery continued the investigation of PW8 and thereafter PW10 his successor took charge of the investigation and completed the same and filed the charge sheet against the accused.
4. On the side of the prosecution PWs 1 to 13 were examined and Exts.P1 to P8 were marked.
5. After closure of the prosecution evidence accused was questioned under Section 313 Cr.P.C. and he denied all the incriminating facts and circumstances put to him and stated additionally that the victim, her mother and PW12, the mother's sister are in enimical terms with him because he conducted second marriage of the mother of PW12. Though the victim girl and CW4 - mother were residing in the Crl.A.No.694/2017 4 adjacent room of the line building where himself and family are residing, he never went to the room of the victim girl and committed the alleged act. He would also state that the nephew of CW4 used to visit the room where the victim and mother were residing and they have some illicit relationship and himself and his wife DW1 warned them and subsequently the house owner PW2 evicted the victim and mother from the line room. They are under the belief that it is at his instance that they were evicted. So on that ground also they have got ill-will against him and accordingly this case was falsely foisted against him.
6. On the side of the accused DW1 - his wife was examined and D1 portion of 161 statement of the victim was marked thereafter on hearing both sides the court below found the accused guilty and convicted. Assailing the conviction and sentence the appellant/accused came up in appeal.
7. Notice was issued to the respondent. Respondent appeared through Special Public Prosecutor Smt.S. Ambika Devi. Crl.A.No.694/2017 5 Lower court records were called for and perused. Both sides were heard.
8. According to the learned counsel for the accused, CW4 - the mother and PW12 the mother's sister of the victim are in enimical terms with him due to his second marriage with DW1 the mother of PW12. He would also contend that there is some relationship between the victim girl and one Jans the son of sister of PW12 and he used to visit the house of the victim and himself and wife objected the same and ultimately the house owner evicted them from the rented room and hence they are in enimical terms with him. He would also contend that Ext.P6 complaint alleged to have been filed by the victim does not make out a case at all against him. Further he would contend that the prosecution case is that the incident occurred seven months before 22.12.2013. But they occupied the room only 6 - 7 months at this particular line building, no particular date of the incident is mentioned and hence there is a strong Crl.A.No.694/2017 6 doubt about the incident as alleged by the prosecution. He would also contend that the place of the occurrence according to the doctor is the verandah and that also creates doubt about the prosecution case. Further he would contend that first incident alone has been narrated by the victim and further that the mother of the victim was not examined, that also makes the prosecution case suspicious.
9. In order to prove the incident prosecution mainly relies upon the testimony of PW11 the victim minor girl. She deposed that she along with her mother had been residing at Puthuppadi and she was abandoned by the father and the accused is a neighbour and a relative. The incident took place one day in the year 2013 while mother had gone for work and the neighbouring people also went for work and she was lying in the room. Since it was hot, she did not lock the room. while she was sleeping somebody held at her chest and suddenly she awoke and found the accused and pushed him. Then he bit her breast and removed her Crl.A.No.694/2017 7 pants and jetty and put his organ at her urinary part and pressed and after sometime some liquid like rice-soup fall upon her legs and other parts and accused went away and threatened her if it is revealed to anybody she would be beat to death. Accused showed Rs.20/-, she did not receive it but he put it on the window. Thereafter on two occasions accused done the same thing.
10. During vacation she went to the house of PW12 and stayed for two days and disclosed the incident to her and she in turn disclosed it to the mother and mother and PW12 went to the school and disclosed it to Nabeesa teacher and they intimated the child line and child line people came and enquired her about the incident. She also stated that she was studying in 5th standard and was ten years old and her statement was recorded by the Magistrate.
11. During cross-examination she stated that accused is the second husband of her grandmother. She stated that except on Sundays on all other days mother used to go for Crl.A.No.694/2017 8 work and there is a verandah in the front of the house and it is a line building having five quarters and they are residing in the second room from the southern end. She also stated the names of the neighbouring occupiers and that they were in cordial terms. It is stated by her during cross-examination that if she alarmed from her room it could be heard by the neighbouring people and also in the room of the accused. She also admitted that accused used to give money and she used to purchase articles with the same and mother had questioned it once and she told the mother that it was given by Jans, the nephew of the mother.
12. During cross-examination she stated that in that quarters they resided only below one year and immediately after starting residence the accused has not ill-treated her. She also could not state clearly as to how many months after their occupation in the line room that accused sexually abused her. She also admitted that it is long after the sexual abuse that she revealed it to PW12. Further she stoutly Crl.A.No.694/2017 9 denied the suggestion of having any issue between herself and Jans. So on a close scrutiny of the evidence of the victim girl it could be seen that though she was questioned at length the defence could not tilt the substratum of her evidence with regard to the sexual abuse and the aggravated penetrative sexual assault committed by the accused upon her.
13. In support of her evidence there is medical evidence adduced by the prosecution through PW3 who was the Associated Professor in gynaecology department, Calicut Medical College. She deposed that on 25.12.2013 at 3.40 p.m she examined the victim girl aged 10 years with the history of sexual assault by the neighbour Ashraf @ Bhaskaran. It is further stated that the hymen was torn and there was an old tear, vaginal dilatation had occurred and it is consistent with introduction of male organ and the certificate is marked as Ext.P1.
14. During cross-examination the doctor stated that the Crl.A.No.694/2017 10 occurrence was at the verandah of the house of the accused and she also stated that there is possibility of bleeding at the time of insertion of male organ in to the vagina of a child and tear can be caused due to some other reason also, very rarely. But PW3 the doctor deposed categorically that the vaginal dilation is consistent with the introduction of male organ and the doctor also noted the old tear. It is to be remembered in this context that the incident occurred admittedly before 6 - 7 months of the examination of the victim. So the evidence of the doctor is consistent and in corroboration with the evidence of victim girl that she has been subjected to sexual intercourse by the accused.
15. The learned counsel for the accused would contend about the evidence of PW3 is that the incident was at the verandah of the house of the accused. But that evidence of PW3 appeared to have been given in view of the history of sexual assault revealed by the victim at the time of examination. But on looking at Ext.P1 the history stated is Crl.A.No.694/2017 11 sexual assault by the neighbour Ashraf many times at her house on the days when she was at home and on the day when there was school holidays and she also gives history of vaginal intercourse in the 'kolazhi' of her house. In this context we examined Ext.P4 scene plan prepared by PW5- the village officer. It would go to show that from the door on the western side of the line room there is a passage which extends upto the kitchen which situates on the extreme east of the line room. So when the victim says about 'kolazhi' she may be referring about the passage and the door is also seems to be opening to the passage. The only cross- examination of PW6 the Village officer is also that the place of incident is room inside. When the outer door leading to the passage (kolai) is closed it would also be a room and so we do not find any discrepancy with regard to the place of occurrence as contended by the learned counsel for the accused.
16. The next argument of the learned counsel is with Crl.A.No.694/2017 12 regard to the defence case that the victim was actually molested by Jans, the nephew of the mother of victim and PW12. It is true that during cross examination PW11 the victim stated that when her mother questioned about the money in her possession she told the mother that it was given by Jans. But on further questioning that she has been sexually abused by Jans, is stoutly denied by her. So there is nothing come out from the evidence of PW11 that it is Jans, nephew of her mother who has sexually abused her.
17. It is true that during cross-examination of PW12 the sister of her mother to whom she revealed about the sexual assault at the instance of the accused, denied about Jans. But it is to be noted that initially she stated that her sister's son Jans never used to come to her house. But on further cross she denied that her sister had such a son and she has no relative by name Jans. She also admitted that the mother of PW11 the victim has got an elder sister and she has children but she does not know how many children she Crl.A.No.694/2017 13 has got. She also pleaded ignorance to the suggestions put to her that PW11 was sexually abused by Jans.
18. It is true that the denial of PW12 about Jans is a discrepancy in her evidence. But it is to be noted that before the examination of PW12 the victim PW11 was examined and the suggestion put to PW11 victim was that it is Jans who had sexually abused her and accused had not done anything. So being more anxious about the said allegation against the victim connecting Jans, she might have pleaded total ignorance about Jans. However PW11 the victim admits about her mother's nephew Jans and also stoutly denied to have any such illicit contact with Jans.
19. DW1 the defence witness who is none other than the second wife of the accused also deposed that Jans was a visitor in the room of the victim and she also stated that one day there had a big commotion and several people assembled and complaint was given to the owner of the building i.e. PW2 and after two days they were evicted and Crl.A.No.694/2017 14 the mother of the victim was under the impression that it is she who has stated about their relationship to the owner and while vacating from there she threatened her. But it is pertinent to note that the owner of the line building was examined as PW2. No such question was put to her with regard to the visit of Jans. She would have been the best witness to state about the reason for eviction. But curiously enough no such question was put to PW2. So also it has been categorically stated during cross-examination by PW2 that since there was an issue in between accused and CW4 that she has been evicted. So the contention of the accused regarding the illicit relationship between the victim and the alleged Jans is nothing but a false story and cannot at all be accepted.
20. Yet another contention advanced by the learned counsel is that the complaint has been filed falsely against him at the instigation of PW12. But PW12 is none other than the mother's sister of the victim and she has deposed that Crl.A.No.694/2017 15 while the victim had been to her house on 21.12.2013 on 22.12.2013 while she was taking bath in the bathroom she found some unusual growth to her body parts and on enquiring with the victim she started weeping and she consoled her and after the bath and when the victim came to the kitchen again she enquired the victim and she disclosed that accused used to sexually abuse her. Thereafter she intimated the school teacher and she in turn intimated the mother and victim along with her mother went to the school and thereafter from the school child line was intimated. During cross-examination some questions were put to her with regard to the place where actually the victim disclosed the act of accused whether it is in the bathroom or in the kitchen. But that according to us, is immaterial whether it is in the kitchen or in the bath room her evidence that the victim disclosed about the sexual abuse at the hands of accused could not be discredited inspite of lengthy cross-examination. The teacher of the school to whom the Crl.A.No.694/2017 16 victim girl and mother disclosed the fact is also examined as PW1. The name of PW1 is referred by PW12 also. PW11 the victim also stated that Cw4 her mother and PW12 and herself disclosed the facts to Nabeesa teacher (PW1). PW1 also stated that they enquired about the incident to the victim and then victim stated that accused has physically and mentally ill-treated her and molested her and accordingly she intimated the child line and they enquired with the child. Though during cross-examination some questions were put to show that she was not the class teacher and the victim and mother came in search of the class teacher, PW1 categorically stated that as per the instruction of the class teacher that she made enquiry with the victim. So we do not find any reason to disbelieve the evidence of PW1 the teacher of the Higher Secondary School where the victim was studying.
21. The defence counsel has also got a contention that out of ill-will of PW12 towards DW1 that this case has been Crl.A.No.694/2017 17 falsely foisted against the accused and the reason for enmity according to the accused is that she married accused.
22. In the above context the learned Special Public Prosecutor would contend that accused married DW1 in the year 2002. This incident occurred quite long after in the year 2013. So the contention of the accused that out of enmity in marrying DW1 that this case has been falsely foisted cannot also be accepted. DW1 also deposed that it is at the instance of Pw12 that this case has been falsely foisted against him. During cross-examination of PW12 she stated on one occasion that there had been another allegation against the accused and he had abused her daughter and she had warned him. But on further cross-examination she stated that she used to go to the house of the accused and DW1 used to go to the house of PW11 the victim and they were in cordial terms also with the accused. It is true that the victim during cross-examination stated that DW1 will not Crl.A.No.694/2017 18 come to her house and she does not know the reason for the same. Anyway the evidence of the victim that DW1 never used to come to her house may be correct and PW12 anyway is not residing in that line building and she also is more anxious to show that herself DW1 and accused were in cordial terms in order to show that there was no question of false implication. That can just be avoided as an embellishment and will not affect the crux of the prosecution case.
23. The learned counsel also argued that the mother of the victim was not examined and that is fatal to the prosecution. But the prosecution case itself is that the victim girl first divulged the matters to Pw12, the mother's sister. She in turn intimated the mother. So non examination of the mother is not that material. It is also well settled that it is not the quantity but quality that matters (Kartic Malhar V. State of Bihar(1996)1SCC 614)
24. The specific prosecution case is that the victim girl was Crl.A.No.694/2017 19 ten years old at the time of the incident. That facts seems to be not disputed since no argument in that regard has been advanced before us. Moreover PW4 the Headmaster of the school where the victim girl was studying produced admission register extract to the investigating officer and it has been marked as Ext.P2 through him and he deposed that as per which the date of birth of the victim is 20.09.2003. He was not cross-examined at all. Moreover the victim also during evidence stated that she was ten years old at the time of the incident and was studying in 5 th standard. So the age of the victim also could be convincingly established by the prosecution.
25. The learned counsel for the accused has also got a contention that the prosecution case is that before 6 -7 months of 23.12.2013 that the incident occurred. The victim admitted that immediately after they started residing there accused has not ill-treated her. But she further deposed that she does not remember as to how many months after that Crl.A.No.694/2017 20 he molested her. There is no clear evidence adduced from the side of the prosecution as to when exactly they started residing in the line building. But it is an admitted case that they resided there for about 6-7 months. So the prosecution case that before 6 -7 months of 23.12.2013 that the incident occurred cannot be doubted especially because the medical evidence adduced through the doctor also is consistent with the prosecution case. So the absence of proving the exact date or month of the aggravated penetrative sexual assault by the accused though not proved is not at all of much relevance as long as it is proved in evidence that it is the accused who has committed the heinous act to a ten year old girl child. It is also relevant in this context to quote David v. State of Kerala [I.L.R. 2020 (3) Kerala 1092] wherein while dealing with Section 29 of the POCSO Act this Court held that a higher degree of proof of facts constituting the guilt of the accused as is usually Crl.A.No.694/2017 21 insisted in criminal trials, is not insisted from the prosecution in a case arising under the Act. Accused also failed to rebut the presumption that is available in favour of the prosecution u/s 29 of the Act. Though Dw1, his second wife was examined and attempted to establish the alleged illicit contact between the victim and her cousin Jans, that has already been found against.
26. So on a close scrutiny of the evidence adduced from the side of the prosecution, we are of the considered view that the prosecution could establish that the accused committed aggravated penetrative sexual assault upon the victim girl who is a child below 12 years after trespassing to her residence. So we do not find reason to interfere with the conviction entered into by the court below.
27. Next is with regard to the sentence. The learned counsel for the accused would contend that accused is a senior citizen and maximum leniency has to be shown in the matter of sentence. The court below has convicted and Crl.A.No.694/2017 22 sentenced the accused to undergo rigorous imprisonment for five years and fine of Rs.5,000/- for offence u/s. 450 IPC, rigorous imprisonment for five years and fine of Rs.5,000/- for offence u/s. 10 of POCSO Act and imprisonment for life which means imprisonment for the remainder of the natural life of the accused and fine of Rs.5,000/- for offence u/s.376(2)(f) IPC, in default of payment of fine to undergo rigorous imprisonment for a further period of six months under each count. No separate sentence is awarded u/s. 6 of POCSO Act. Substantive sentence imposed for offence u/s.450 IPC and u/s.10 of POCSO Act were directed to run concurrently.
28. So taking into account the fact that the accused is at present aged about 62 years, we find it just and proper to modify the sentence to undergo rigorous imprisonment for five years and to pay a fine for Rs.5,000/- for the offence under Section 450 IPC, rigorous imprisonment for five years and to pay a fine of Rs.5,000/- under Section 10 of the Crl.A.No.694/2017 23 POCSO Act, rigorous imprisonment for a term of 10 (ten) years and to pay fine of Rs.5,000/- (Rupees five thousand only) under Section 376(2) (f) IPC r/w. Section 6 of POCSO Act. The substantive sentence shall run concurrently. Set off also allowed under Section 428 Cr.P.C.
29. It has come out in evidence that the victim is a ten year old child who had been living with her mother and father had already abandoned them. They were living in a room in line building on rent at the time of occurrence and they were evicted from that room. The victim seems to be from the lowest strata of the society. In view of the facts and circumstances, we are of the view that adequate compensation has to be given to the victim who happened to be a victim of sexual assault even at her childhood days of ten years. So we recommend the District Legal Services Authority, Kozhikode to provide adequate compensation to PW11 the victim girl under Section 357A Cr.P.C. r/w.Rule 5 of Kerala Victim Compensation Scheme, 2017. Crl.A.No.694/2017 24 In the result, conviction confirmed and sentence modified U/S 386(b) (iii) Cr.P.C.
Sd/-
A.HARIPRASAD Judge Sd/-
M.R.ANITHA Judge Shg/Mrcs