Kerala High Court
Subodh Ekka vs State Of Kerala on 13 February, 2025
2025:KER:11604
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
CRL.A NO. 185 OF 2019
CRIME NO.312/2015 OF SHOLAYUR POLICE STATION
AGAINST THE JUDGMENT DATED 27/02/2018 IN SC NO.395 OF
2016 OF THE COURT OF SESSION, PALAKKAD
APPELLANT/ACCUSED:
SUBODH EKKA
AGED 30 YEARS
S/O FABIYANUS EKKA C.NO.170/2018, CENTRAL PRISON,
PALLIKKUNNU P.O, KANNUR, PIN-670004
BY ADVS.
BIJU ANTONY ALOOR
JOBIN ABRAHAM
K.P.PRASANTH
SHAFIN AHAMMED
ARCHANA SURESH
HIJAS T.T.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPT BY THE INSPECTOR OF POLICE, AGALI
SMT.SHEEBA THOMAS, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
05.02.2025, THE COURT ON 13.02.2025 DELIVERED THE FOLLOWING:
2025:KER:11604
CRL.A NO. 185 OF 2019
2
C.S.SUDHA, J.
--------------------------------------------------------------
Crl.Appeal No.185 of 2019
---------------------------------------------------------------
Dated this the 13th day of February 2025
JUDGMENT
In this appeal filed under Section 383 Cr.P.C., the appellant, the sole accused in S.C. No.395 of 2016 on the file of the Court of Session, Palakkad, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 363 & 376 IPC and Section 5(l) read with Section 6 of the PoCSO Act.
2. The prosecution case is that the accused on 17/12/2015 on the promise of marriage had sexual intercourse with PW1, a minor girl aged 14 years, inside a room bearing no.XIII/350 in Kottathara Village, Sholayur Panchayat, owned by PW5, the employer of the accused. Thereafter, on 18/12/2015, the accused on the promise of marriage induced PW1 to accompany him to Jharkhand. He had sexual intercourse with PW1 in the house of his sister at Akkasi, 2025:KER:11604 CRL.A NO. 185 OF 2019 3 Ujra Village, Jharkhand and thereafter in a rented house at a place called Baroka, Sirsi District, Haryana. Hence, the accused as per the final report is alleged to have committed the offences punishable under Sections 363, 376, 341 IPC and Section 5(l) read with Section 6 of the PoCSO Act.
3. Crime No.312/2015, Sholayur police station, that is, Ext.P14 FIR, was registered by PW15, the Additional Sub Inspector, based on Ext.P1 FIS of PW2, the mother of the victim who gave a missing complaint. The case was investigated by PW18, the then Circle Inspector, Agali police station, who on completion of the investigation submitted the final report alleging the commission of the offences punishable under the aforementioned sections by the accused.
4. The final report was filed before the Court of Session, Palakkad. The case was taken on file as SC No.395/2016 and thereafter made over to the Additional Sessions Judge-I (Special Judge) for trial and disposal.
2025:KER:11604 CRL.A NO. 185 OF 2019 4
5. On appearance of the accused person before the trial court, a charge under Sections 363 & 376 IPC and Section 5(l) read with Section 6 of the PoCSO Act was framed, read over and explained to the accused to which he pleaded not guilty.
6. On behalf of the prosecution, PWs.1 to 18 were examined and Exts.P1 to P23 and MOs 1 to 7 were marked in support of the case. After the close of the prosecution evidence, the accused was 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.
7. 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. Ext.D1 is the contradiction brought out in the statement of PW2.
8. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the 2025:KER:11604 CRL.A NO. 185 OF 2019 5 impugned judgment found the accused guilty of the offences punishable under Sections 363 & 376(2)(i) IPC and Section 5(l) read with Section 6 of the PoCSO Act. Hence, he has been sentenced to undergo rigorous imprisonment for a period of 5 years and to a fine of ₹50,000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence punishable under Section 363 IPC and to rigorous imprisonment for a period of 10 years and to a fine of ₹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) IPC. No separate sentence has been awarded for the offence punishable under Section 5(l) read with Section 6 of the PoCSO Act in view of Section 42 of the Act. The fine, if realised, has been directed to be paid to PW1, the victim minor girl, by way of compensation under Section 357(1)(b) Cr.P.C. Set off under Section 428 Cr.P.C. has been allowed. The substantive sentences of imprisonment have been directed to run concurrently. Aggrieved, the present jail appeal has 2025:KER:11604 CRL.A NO. 185 OF 2019 6 been filed.
9. 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.
10. Heard both sides.
11. I briefly refer to the evidence on record relied on by the prosecution in support of the case. Ext.P1 FIS was given by PW2, the mother of PW1, on 23/12/2015 on the basis of which Crime no.312/2015, Sholayur police station, under Section 57 of the Kerala Police Act was registered by PW15, Additional Sub Inspector, Sholayur police station. In Ext.P1, it is stated that her daughter (PW1) is missing from 18/12/2015 onwards. On enquiry, she came to know that her daughter is in a relationship with the accused, an employee of PW5. The accused was also found missing. PW2, on enquiries with the friends of the accused, came to know that the accused had returned home to Jharkhand. Hence, she requested that necessary action be taken.
2025:KER:11604 CRL.A NO. 185 OF 2019 7 11.1. PW1, the victim, deposed that 11/02/2001 is her date of birth. She was in a relationship with the accused. On 17/12/2015, she had sexual intercourse with the accused inside the room in which the accused was staying in the property of PW5. The accused asked her whether she would accompany him to his home state. As she was spoilt (ചീത്തയായി), she agreed to accompany him. On 18/12/2015, she accompanied the accused to Olavakkode railway station. The next day, they caught a train to Jharkhand. They reached Ranchi on 21/12/2015 at 05:00 a.m. From there, they went to the residence of the accused's sister and stayed there for six days, at which place they also engaged in coitus. She was taken to the house of one Basheer, the friend of the accused. The accused left her there and went to meet his father. He returned after three days. Thereafter, they went to Delhi by train. From Delhi, they went to Sirsa in Haryana and stayed at the house of a friend of the accused for three days. The friend of the accused helped them in getting employment in the house of a Punjabi.
2025:KER:11604 CRL.A NO. 185 OF 2019 8 They stayed in a room outside the house of the said Punjabi at which place also, they engaged in coitus and lived as husband and wife. 08/01/2016 was the last occasion on which they had coitus. On 12/01/2016, police from the Agali police station came and brought her back home. PW1 further deposed that she had accompanied the accused as he promised to marry her. It was only when she was taken to Agali police station she came to know that the accused was married and had children also.
11.2. PW2, the mother of PW1, admitted her signature in Ext.P1 FIS.
11.3. PW3, a friend of PW1, deposed that one day the latter told her that she wanted to go to a phone booth for making a call and when PW3 asked PW1 as to the person whom she wanted to contact, the latter replied that she wanted to contact her husband, the accused herein. After PW1 went missing, when PW2 made enquiries, she had told the latter about the relationship between PW1 and the accused.
2025:KER:11604 CRL.A NO. 185 OF 2019 9 11.4. PW4, another friend of PW1, deposed that PW1 had told her that if the accused invited her, she would join him.
11.5. PW5, the employer of the accused, deposed that he is an attestor to Ext.P2 scene mahazar which is related to the room in which the accused was staying in his property.
11.6. PW6, a Women Police Constable, is the official who recorded the statement of PW1.
11.7. PW7, Junior Medical Consultant, Women and Children Hospital, Palakkad, deposed that on 15/01/2016, at 06:35 p.m., she examined PW1, Remya, aged 15 years and issued Ext.P4 certificate. On examination, she noted that the hymen was completely torn and it admitted two fingers. There were no external injuries. Vaginal smear and swab were taken for chemical examination. She also found evidence of past vaginal penetration.
11.8. PW11, Assistant Secretary, Agali Grama Panchayat, deposed that Ext.P8 is the birth certificate of PW1 issued by him and as per the said birth certificate, her date of birth is 11/02/2001.
2025:KER:11604 CRL.A NO. 185 OF 2019 10 11.9. PW12, Village Officer, Kottathara, deposed that he had issued Ext.P9 possession certificate as per which the building mentioned therein in Survey No.783 belongs to PW5. He also prepared Ext.P10 site plan relating to the room situated in the said survey number.
11.10. PW15, Additional Sub Inspector, Sholayur police station, registered the crime, that is, Ext.P14 FIR, based on Ext.P1 FIS.
11.11. PW16, Sub Inspector, Sholayur police station, submitted Ext.P15 report to the effect that Section 363 IPC has been added in the place of Section 57 of the Kerala Police Act and that investigation is proceeding.
11.12. PW17, Circle Inspector, Agali, took over the investigation and conducted the investigation in the case.
11.13. PW18, Circle Inspector, Agali, is the person who completed the investigation and submitted the final report before the court alleging the commission of the offences punishable under 2025:KER:11604 CRL.A NO. 185 OF 2019 11 the aforementioned sections.
12. It was submitted by the learned counsel for the appellant/accused that the offence of kidnapping as contemplated under Section 361 IPC is not made out. If the same is not made out, then the subsequent instances of alleged rape took place in Jharkhand and Punjab and therefore the trial court did not have the territorial jurisdiction to try the offence. It was also submitted that the evidence on record is not satisfactory to establish beyond doubt the offences alleged against the accused.
13. The fact that PW1 was a minor at the time of the incident is proved by Ext.P8 birth certificate. Section 361 IPC says whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The accused has no case that it was with the 2025:KER:11604 CRL.A NO. 185 OF 2019 12 permission of PW2, the mother of PW1, he had taken the latter to his home state. The testimony of PW1 will show that the accused had invited her to join him on the promise of marriage, pursuant to which she left home and joined him. Hence, the offence of kidnapping as contemplated under Section 361 IPC is clearly made out. (See Thakorlal D. Vadgama v. The State of Gujarat, (1973) 2 SCC 413). Now, even assuming for argument sake that the offence of kidnapping is not made out, the offence of rape is clearly made out as PW1 was a minor at the time of the incident. It is true that her testimony shows that the relationship was consensual. However, she was only 14 years old at the time of the incident and hence, her consent is immaterial. Therefore I find no reasons to interfere with the finding of conviction by the trial court.
14. Now coming to the sentence to be imposed on the accused. The accused has been in custody right from the date of his apprehension, which was on 15/01/2016. He still continues to be in judicial custody. Therefore, he has served 9 years and 30 days of 2025:KER:11604 CRL.A NO. 185 OF 2019 13 his sentence as on today. Taking into account the facts and circumstances of the case, the sentence is modified to the imprisonment already undergone by the appellant/accused. Considering the financial condition of the appellant/accused, the fine amount is reduced to ₹25,000/- for the offence punishable under Section 363 IPC and to ₹50,000/- for the offence punishable under Section 376(2)(i) IPC. In default of payment, he shall undergo imprisonment for three months each.
The appeal is disposed of accordingly.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE NP