Kerala High Court
Noufal vs State Of Kerala on 28 February, 2025
Criminal Appeal No.207 of 2020
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2025:KER:16711
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.A NO. 207 OF 2020
CRIME NO.938/2014 OF FEROKE POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 31.01.2019 IN SC NO.406 OF
2015 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE.
APPELLANT/ACCUSED (IN CUSTODY):
NOUFAL,
AGED 32 YEARS,
S/O.KUNHIMON, KALLIPARAMBIL HOUSE,
THIRUVATHRA .P.O, CHAVAKKAD, THRISSUR DISTRICT.
BY ADV M.R.SASITH
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2025, THE COURT ON 28.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.207 of 2020
2
2025:KER:16711
C.S.SUDHA, J.
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Criminal Appeal No.207 of 2020
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Dated this the 28th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused, in S.C.No.406 of 2015 on the file of the Court of Session, Kozhikode, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 377 IPC and Section 3(a) read with Section 4 of the PoCSO Act.
2. The prosecution case is that on a day in the month of September 2014, the accused committed carnal intercourse against the order of nature on PW4 a minor boy aged 11 years by thrusting his penis between the thighs of the boy and by inserting his penis into the anus of the boy after undressing him in the bedroom of the house bearing no.V/146, Feroke panchayat, Mangattunilam, Nallur desom. Thus, as per the final report the accused is alleged to have Criminal Appeal No.207 of 2020 3 2025:KER:16711 committed the offences punishable under Section 3(a) read with Section 4 of the PoCSO Act.
3. Crime no.938/2014, Feroke police station, was registered by PW8, the then Sub Inspector of police, that is, Ext.P6 FIR based on Ext.P5 FIS of PW4, the victim. The initial investigation was conducted by PW10, the SHO, Feroke police station. Thereafter, the investigation was taken over by PW11, Sub Inspector, Feroke police station, who on completion of investigation submitted the final report before the Court alleging the commission of the offences punishable under the aforementioned Section by the accused.
4. On appearance of the accused before the trial court, a charge under Section 377 IPC and Section 3(a) read with Section 4 of the PoCSO Act was framed, read over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW12 were examined and Exts.P1 to P11 were got marked in support of the case. After the close of the prosecution evidence, the accused was Criminal Appeal No.207 of 2020 4 2025:KER:16711 questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. DW1 and DW2 were examined on behalf of the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Sections 377 IPC and Section 3(a) read with Section 4 of the PoCSO Act. Hence he has been sentenced to rigorous imprisonment for 7 years and to a fine of ₹50,000/- and in default to undergo rigorous imprisonment for 2 years for the offence punishable under Section 377 IPC and to rigorous imprisonment for 7 years and to a fine of ₹50,000/- and in default to rigorous imprisonment for 2 years for the offence punishable Criminal Appeal No.207 of 2020 5 2025:KER:16711 under Section 3(a) read with Section 4 of the PoCSO Act. Out of the fine amount of ₹1,00,000/- if realised, an amount of ₹75,000/- has been directed to be given to PW4, the victim boy as compensation under Section 357(1)(b) Cr.P.C.. The substantive sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not.
9. Heard both sides.
10. I make a brief reference to the oral or documentary evidence relied on by the prosecution in support of the case. PW4 the victim boy when examined deposed that the incident occurred in the month of September 2014 and that he had does not remember the exact date on which the incident occurred. PW6 his mother was admitted in the Medical College Hospital, Criminal Appeal No.207 of 2020 6 2025:KER:16711 Kozhikode. As his mother was in the hospital, he was staying at the house of his maternal aunt, that is, DW2 Shereefa along with PW5 her husband; DW1 her daughter; PW9 her son and the accused who is none other than the husband of DW1 and son-in- law of DW2 at their house. While so in the month of September 2014, the accused undressed him and after undressing himself, thrust the latter's penis between his thighs and thereafter inserted the penis into his anus. PW4 was also made to hold the penis of the accused and perform fellatio. The accused did the act several times and threatened him with dire consequences in case he revealed the incident to anybody. PW4 further deposed that he returned home after his mother was discharged from the hospital. PW4 also deposed that due to the acts of the accused he had an injury on his thighs and that he had pain on his anus and so his mother had cleaned the affected areas with lukewarm saline water. Later, when he heard that the accused had sexually abused his other near relatives also, he disclosed the incident to his mother. Thereafter, his Ext.P5 FIS was recorded by the police.
Criminal Appeal No.207 of 2020 7 2025:KER:16711 10.1. PW6, the mother of the victim boy, deposed that the accused is none other than the son-in-law of DW2 her younger sister. At the time of the incident she was hospitalized and when she was discharged from the hospital, PW4 her son who was staying at the home of DW2 Shareefa returned to their home. Her son revealed the incidents of sexual abuse by the accused when he heard that the accused had abused his cousins also. As there was puss formation inside the anus of her son, there was foul smell from his anus pursuant to which he was admitted in the Beach hospital. While undergoing treatment in the hospital, the police recorded Ext.P5 FIS, in which she had affixed her signature.
10.2. PW1, Assistant Surgeon, Government General Hospital, Kozhikode deposed that on 22/12/2014 at 10:15 a.m. he examined the victim boy and issued Ext.P1 certificate. On examination, the boy complained of pain over genitalia during micturition. He had a history of discharge from rectum. PW1 found the victim boy looking depressed while answering questions. On local examination he was found that there was perianal excoriation; Criminal Appeal No.207 of 2020 8 2025:KER:16711 tenderness over both thigh muscles and anal orifice was found lax.
10.3. PW3, Headmistress, Sreedevi A.U.P.School, Kadalundi was examined to prove the age of the victim boy. As per Ext.P3, the date of birth of PW4 is 29/09/2003.
10.4. PW5, none other than the father-in-law of the accused when examined turned hostile and deposed that he is not an attestor to the scene mahazar prepared by the police.
10.5. PW9 son of PW5 also does not support the prosecution case that he is an attestor to the scene mahazar. On the other hand, he deposed that he was made to put his signature in a blank paper by the police.
10.6. PW7, Sub Inspector, Kozhikode police station had recorded Ext.P5 FI Statement of PW4 on 23/12/2014 at 15:00 hours at the Beach hospital where the boy was undergoing treatment. On the basis of Ext.P5 FIS recorded by PW7, PW8, Sub Inspector of Police, Feroke police station registered Ext.P6 FIR.
11. It was submitted by the learned counsel for the accused/appellant that there was inordinate delay in giving the FIS Criminal Appeal No.207 of 2020 9 2025:KER:16711 to the police. There are no materials on record to show that PW6 the mother of PW4 was at the hospital during the relevant time and that the child had resided at the house of DW2. The medical evidence on record also does not show any injuries having been caused. Per contra, it was submitted by the learned Public Prosecutor that the delay has been properly explained by PW4 and PW6. Even if the hospital records have not been produced by the prosecution, the same has not affected the core prosecution case as the foundational facts have been established by the testimony of PW4 and PW6. There is no infirmity in the findings of the trial court calling for an interference by this Court, goes the argument.
12. It is true that there is delay in PW4 giving Ext.P5 FIS to the police. However, PW4 deposed that initially he had not disclosed the incident to anybody. Thereafter, when he came to know that the accused had sexually abused his other relatives also, he disclosed the incident of sexual abuse to his mother. The medical evidence to which I have already referred to substantiates the prosecution case of sexual abuse and assault. No Criminal Appeal No.207 of 2020 10 2025:KER:16711 external injuries were seen because the medical examination was done about three months after the incident. Therefore, there is no possibility of external injuries being present when PW4 was examined. PW4 and PW6 were extensively cross-examined. However, nothing was brought out to discredit or disbelieve their testimony. It is true that no records have been produced by the prosecution to substantiate the case that PW6 was in the hospital during which time PW4 her son was residing with DW2. The non production of the hospital records has not in any way effected the prosecution case because PW4 and PW6 when cross-examined stood by the prosecution case of sexual abuse and assault.
13. The defence case that there were property disputes between the sisters of DW2 and that while DW2 was abroad, the accused had intervened on her behalf and held talks with the sisters of DW2. According to the accused, this resulted in the sisters, including PW6 becoming inimical to him, which resulted in his false implication. The materials on record do not in any way show that the defence case is probable. I went through the Criminal Appeal No.207 of 2020 11 2025:KER:16711 testimony of DW1 and DW2 also. Though DW1 and DW2 have a case that the latter was abroad when the incident is alleged to have taken place, no materials have been produced to substantiate the same. If DW2 was actually in Gulf as contended by the accused, the passport or other relevant records could have been produced to show that she was not available in India and therefore the prosecution case of PW4 residing along with DW2 was false or improbable. However, no such attempt(s) is seen made by DW2 to substantiate her case that she was never at home during the relevant time. The materials on record substantiate the prosecution case and so I find no infirmity in the findings of the trial court calling for an interference by this Court.
In the result, the appeal sans merit is dismissed. Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak