Kerala High Court
Sadasivan E.R vs State Of Kerala on 13 July, 2020
Equivalent citations: AIRONLINE 2020 KER 445
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
MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942
CRL.A.No.1280 OF 2018
AGAINST THE JUDGMENT IN SC 317/2015 DATED 07-09-2018 OF
ADDITIONAL DISTRICT & SESSIONS COURT - I, KASARAGOD
CRIME NO.128/2015 OF Nileswaram Police Station, Kasargod
APPELLANT/ACCUSED:
SADASIVAN E.R,
AGED 47 YEARS, S/O.RAMAN, ELEDATHU HOUSE,
OMACHERI, KARINTHALAM VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT, 671315
BY ADVS.
SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI 31
R1 BY SMT.AMBIKA DEVI S, SPL.GP
SMT. PUSHPALATHA M K SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
06-07-2020, THE COURT ON 13-07-2020 DELIVERED THE
FOLLOWING:
Crl. Appeal No.1280 of 2018
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P.B.SURESH KUMAR, J.
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Criminal Appeal No.1280 of 2018
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Dated this the 13th day of July, 2020
JUDGMENT
The sole accused in S.C. No.317 of 2015 on the files of the Additional Sessions Court-I, Kasaragod, has come up in this appeal challenging his conviction and sentence in the said case.
2. The prosecution case in essence is that on 22.02.2015, at about 10.00 a.m., the accused committed rape and aggravated penetrative sexual assault on the victim girl aged 7 years at his residence and thereby committed the offences punishable under Sections 376 of the Indian Penal Code (the IPC) and Section 5 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, the prosecution examined 12 witnesses as PW1 to Crl. Appeal No.1280 of 2018 ..3..
PW12 and proved through them 19 documents as Exts.P1 to P19. The witnesses examined on the side of the prosecution have also identified MO1 to MO4 material objects. 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 evidence 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 examined three witnesses as DW1 to DW3 on his side, when called upon to enter on his defence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl herself, PW2 is the grandmother of the victim girl, PW6 is the doctor who examined the victim girl, PW7 is the Headmaster of the school where the victim girl was pursuing her studies, PW10 is the police official who registered the First Information Report and PW12 is the Investigating Officer. Among the documents proved, Ext.P1 is the First Information Statement given by the victim girl, Ext.P2 is the statement given by the victim girl under Section 164 of the Code, Ext.P7 is the report of medical Crl. Appeal No.1280 of 2018 ..4..
examination of the victim girl and Ext.P8 is the certificate of age of the victim girl.
5. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and under Section 5 read with Section 6 of the POCSO Act. On the said finding, the court convicted the accused and sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/-, and in default of payment of fine, to undergo rigorous imprisonment for two years, for the offence punishable under Section 376(2)(i) of the IPC. In the light of the provisions contained in Section 42 of the POCSO Act, separate sentence was not imposed on the accused for the offence under Section 5 read with Section 6 of the POCSO Act. The appellant is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. At the outset, the learned counsel for the appellant contended that there is a huge delay in lodging the First Information Report and the same has not been satisfactorily explained. It was also contended by the learned Crl. Appeal No.1280 of 2018 ..5..
counsel that it has come out that the victim girl was taken to the doctor even before the incident was informed to the police and therefore, the statement made by the victim girl to the doctor concerning the incident should have been the First Information Statement in the case. According to the learned counsel, the said statement has been withheld by the prosecution. It was also contended by the learned counsel that there was huge delay in the matter of registering the crime even after the incident was informed to the police from the hospital and the said delay has also not been satisfactorily explained. It was further contended by the learned counsel that as regards the core aspect of the crime, the only evidence available is the evidence of the victim girl and the same is not consistent with her previous statements. The learned counsel has also pointed out some of the factual aspects in the case in support of his contention that the evidence tendered by the prosecution is not consistent. The essence of the arguments of the learned counsel was, therefore, that the court below was not justified in convicting the accused solely based on the evidence tendered by the victim girl. Per contra, the learned Public Prosecutor contended that the inconsistencies and Crl. Appeal No.1280 of 2018 ..6..
discrepancies pointed out by the learned counsel for the appellant are all of a very minor nature and the same are not sufficient to interfere with the decision of the court below.
8. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 376(2)(i) of the IPC and under Section 5 read with Section 6 of the POCSO Act.
9. Before I deal with the contentions advanced by the learned counsel for the appellant, it is necessary to refer to a few facts which are not in dispute. The parents of the victim girl got separated and re-married. The victim girl is residing with her maternal grandparents. The accused is the son of the sister of the maternal grandfather of the victim girl. He is residing in the neighbourhood of the house of the maternal grandparents of the victim girl.
10. I shall now refer to the material evidence in the case. The victim girl as PW1 deposed that on 22.02.2015, at about 10.00 a.m., when she went to the house of the accused, there was nobody at his house. She deposed that the Crl. Appeal No.1280 of 2018 ..7..
accused then gave her something to eat. She deposed that later, the accused took her inside his room, made her sit on a stone, removed her dress and sucked her breast. She deposed that thereafter, the accused removed her dress and undergarments and placed his genital organ inside her vagina for sometime. She deposed that after sometime, the accused took her to the bathroom and washed her vagina. She deposed that the accused gave her something to eat thereafter also and directed that she shall not divulge the incident to anyone. She deposed that she did not disclose the incident to anyone on that day. She deposed that later, when she felt pain at her vagina, she complained to her grandmother. She deposed that her grandmother then took her to the Government Hospital at Kanhangad. She deposed that she narrated the incident to the doctor. She deposed that the doctor informed the matter to the police and the police came to the hospital and took her statement. She proved the statement given by her to the police which is marked as Ext.P1. She deposed that she gave statement to the Magistrate also and proved the same which is marked in the proceedings as Ext.P2. She also identified the cloths worn by Crl. Appeal No.1280 of 2018 ..8..
her and that of the accused at the time of occurrence, which are marked in the proceedings as MO1 to MO4.
11. PW2, the maternal grandmother of the victim girl deposed that she does not remember the date on which the accused has assaulted the victim girl and that it was sometime during when she was studying in the third standard. She deposed that the occurrence was narrated by the victim girl to her when questioned on her complaining about pain at her vagina. She deposed that she took the victim girl on the next day to the Government Hospital, Kanhangad. PW6, the doctor who examined the victim girl at the Government Hospital, Kanhangad, deposed that the victim girl was brought to her for examination on 27.02.2015 alleging that on 21.02.2015, at about 10.30 a.m., the uncle of the victim girl has sexually assaulted her by pricking several times with his genital organ at her vagina. She deposed that at the time of examination, the victim girl was complaining of pain at the vulvar area. She deposed that on examination, she found painful contusion marks on both sides of labia minora. She also deposed that she found a small contusion mark at the fourchette area having size of 1 x 0.5 cm. PW6 deposed that Crl. Appeal No.1280 of 2018 ..9..
the hymen of the victim girl was intact. She clarified that there was no evidence of vaginal penetration, though there was evidence of recent attempt of sexual intercourse. PW7, the Headmaster of the school where the victim girl was pursuing her studies gave evidence to the effect that the date of birth of the victim girl is 04.10.2007.
12. Coming to the core aspect of the case, as pointed out by the learned counsel for the appellant, the only evidence available in the case is the evidence tendered by the victim girl. As noted, her evidence was that the accused has sucked her breast and placed his genital organ inside her vagina for sometime. The said evidence of the victim girl is corroborated in her First Information Statement, Ext.P1. The relevant portion reads thus:
"ക യ ര തന കഴഞ മ മൻ എ എടത അടതള കടലൽ
ക ണ കടത . പ വ ട പ നച വച ഷഡ ഊര മ റ എ ട മ മ $
പഞ ര എ $ പഞ രയൽ വവദന ഉണ ക ത വപ ല കത . പ എ $
ക യത $ കടക ഊര എ $ അമഞ മഞ ."
The evidence tendered by the victim girl is corroborated by the statement given by her under Section 164 of the Code, Ext.P2. Crl. Appeal No.1280 of 2018
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The relevant portion reads thus:
"മ മൻ ക യ2 ഊരട അമഞ മഞ . മ മൻ എ $ വദഹത പടച.
എന ണ മ മൻ 6യത എന ആവര ട2 പറയരത എ ണ പറഞടളത .
മ മൻ മ മ $ പഞ ര എ $ പഞ രയല ക "
The evidence tendered by the victim girl is further
corroborated by the versions given by her to the doctor as recorded by the doctor in Ext.P7 report of medical examination. The relevant portion of Ext.P7 reads thus:
"കടയ ട മ മന യ പതയ ട വ?ടൽ 10.30 am വന ടടത അവട ത ഇളയ കടയ ട ക ട കളക ൻ (8th std student) വദവക വപ യ . മ മൻ പഴ2 പ ര ക ടത പവല ഭ ച കട യ കടലൽ കടത ലല2ഗകമ യ പ?ഡ ച. അയ ള ട ല2ഗ2 കണ കടയ ട ജനവനനയതൽ പലപ വശK2 കത എ ണ കട പറഞത. കതKതന വശഷ2 അയ ൾ ത കടയ ട ജനവനനയ ഭ ഗ2 കകസൽ ക ണവപ യ കഴക വതയ ക ക ടത."
In the light of the evidence tendered by the victim girl as PW1, the evidence tendered by the grandmother of the victim girl as PW2, the evidence tendered by the doctor who examined the victim girl as PW6, Ext.P1 First Information Statement, Ext.P2 statement given by the victim girl under Section 164 of the Code and Ext.P7 report of medical examination, the prosecution has proved beyond reasonable doubt that the Crl. Appeal No.1280 of 2018 ..11..
accused has sucked the breast of the victim girl and also placed his genital organ into the vagina of the victim girl. The learned counsel for the appellant has no case that the aforesaid acts would not constitute rape as defined in the Indian Penal Code, and aggravated penetrative sexual assault as defined in the POCSO Act since the victim girl was aged below 12 years at the time of the alleged occurrence.
13. Now I shall deal with the contentions of the learned counsel for the appellant. The first and foremost contention is as regards the delay in registering the First Information Report. In the matter of considering this contention, one has to keep in mind the fact that the victim girl is aged 7 years and the fact that the accused is none other than a close relative of the victim girl. Insofar as it has come out that the accused has directed the victim girl not to divulge the incident to anyone, the victim girl cannot be blamed for having not divulged the incident to her grandparents with whom she was staying, then and there. It has also come out that she had to divulge the incident to her grandmother since she was experiencing pain at her vagina after a couple of days. As expected from a girl of that age, she then divulged the Crl. Appeal No.1280 of 2018 ..12..
incident to her grandmother. Promptly, the grandmother took the victim girl to the hospital on the next day morning. Since it has come out that the grandmother took the victim girl to the hospital on 27.02.2015, it can be inferred that the victim girl must have informed the occurrence to the grandmother only on 25.02.2015. As noted, the victim girl narrated the incident to the doctor. It has come out from the evidence that the doctor immediately informed the matter to the police and the police came to the hospital on the same day and the case was registered by 4 p.m. on that day. If one examines the aforesaid facts, it is clear that the delay occurred since the victim girl did not divulge the incident then and there to her grandparents. Viewed in this perspective, according to me, the delay of a few days in registering the FIR is not at all fatal to the prosecution in a case of this nature. True, the case of the prosecution is that the occurrence took place on 22.02.2015, which was a Sunday. The case of the victim girl in Ext.P1, however, was that the occurrence took place on 21.02.2015, the previous day. Even before the doctor, the victim girl has stated that the date of occurrence is 21.02.2015. The argument of the learned counsel for the appellant was that the victim girl cannot be Crl. Appeal No.1280 of 2018 ..13..
believed on account of that reason. I am unable to accept this argument. The victim girl being one aged 7 years, such trivial mistakes cannot be blown out of proportion to contend that the evidence tendered by her is not believable. Similarly, it is true that the grandmother of the victim girl deposed that the victim girl has narrated the incident to her on the same day night, which is incorrect going by the prosecution case. Merely for the reason that the aged grandmother of the victim girl has stated so, it cannot be argued that the evidence of the victim girl has to be rejected in toto, for such mistakes are likely to occur for want of proper communications. At any rate, the same is not sufficient at all for the court to ignore the evidence tendered by the victim girl as regards the core aspect of the crime. The learned counsel for the appellant is right in his submission that though the incident was informed to the police from the hospital in the morning hours of 26.02.2015, the crime was registered only by 4.00 p.m. on the said day. Nothing suspicious was brought out by the accused in the cross-examination of the police official who registered the First Information Report. In the absence of any suspicious circumstances, I do not think that the delay on the part of the Crl. Appeal No.1280 of 2018 ..14..
police in registering the crime would help the appellant in any manner. There is also no substance in the argument advanced by the learned counsel for the appellant that the evidence tendered by the victim girl as regards the core aspect of the crime is inconsistent with her previous statements. I have extracted the versions of the victim girl in paragraph 12 above and I do not find any material inconsistency in her statements.
For the aforesaid reasons, I do not find any merit in the appeal and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE ds 07.07.2020