Kerala High Court
Ramesh vs State Of Kerala on 9 June, 2020
Equivalent citations: AIRONLINE 2020 KER 286
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 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
CRL.A.No.633 OF 2018
AGAINST THE JUDGMENT IN S.C NO.238/2015 DATED 23-03-2018 OF IST
ADDITIONAL SESSIONS COURT, THRISSUR
CRIME NO.1100/2014 OF CHERUTHURUTHY POLICE STATION, THRISSUR
APPELLANT/IST ACCUSED:
RAMESH
AGED 30, S/O.THARUVAN, NAYADIKUNNATH VEEDU,
VARAVUR VILLAGE,VARAVUR KAMMATTIMUKKU DESOM,
C. NO. 4102, CENTRAL PRISON VIYOOR, THRISSUR
DISTRICT, PIN - 680 010.
BY ADVS.
SRI.MANJU ANTONEY
SRI.THOMAS C.ANTONY
SRI.R.ANAS MUHAMMED SHAMNAD
SMT.MAMATHA BINU
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA
REPRESENTED BY INSPECTOR OF POLICE,
WADAKKANCHERRY POLICE STATION
(CRIME NO.1100/14 OF CHERUTHURUTHI
POLICE STATION) THRISSUR DISTRICT THROUGH
PUBLIC PROSECUTOR HIGH COURT OF KERALA,
ERNAKULAM, COCHIN - 682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN & CHILDREN & WELFARE OF W & C
SRI.RAMESH CHAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.633 of 2018 2
C.R.
P.B.SURESH KUMAR, J.
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Criminal Appeal No.633 of 2018
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Dated this the 9th day of June, 2020.
JUDGMENT
The conviction of the appellant and the sentence imposed on him in S.C.No.238 of 2015 on the files of the First Additional Sessions Court, Thrissur are under challenge in this appeal.
2. The first accused is the appellant. The victim in the case is a girl aged 12 years. The first accused is the step father of the victim girl. The second accused is the mother of the victim girl. The accusation in the case is that sometime during Onam holidays in the year 2014, the first accused committed rape and penetrative sexual assault on the victim girl with the knowledge and connivance of the second accused. The offences alleged against the first accused were, therefore, offences punishable under Sections 376(2) Crl.Appeal No.633 of 2018 3
(f) and 376(2)(i) of the Indian Penal Code (the IPC) and Sections 4 and 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 19 witnesses as PWs.1 to 19 and proved 34 documents as Exts.P1 to P34. PW1 has also identified the material objects, Mos.1 to 3. The accused were, 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 they are innocent. Since the trial court did not find the case to be one fit for acquittal under under Section 232 of the Code, the accused were called upon to enter on their defence. The accused did not adduce any evidence.
4. Among the witnesses examined, PW1 is the victim girl. She has proved Exts.P1 statement given by her under Section 154 of the Code as also Ext.P2 statement given by her under Section 164 of the Code. PW2 is the elder sister of PW1. PW3 is a lady residing near the house of the victim girl. PW7 is the Headmaster of the school, where the victim girl was pursuing her studies. He has Crl.Appeal No.633 of 2018 4 proved Ext.P7 certificate issued by him as regards the date of birth of the victim girl. PW10 is the doctor, who examined the victim girl after the alleged occurrence. She has proved Ext.P10 report of examination. PW11 is the doctor who issued Ext.P11 certificate after examining the first accused. PW17 is the police official, who registered Ext.P14 First Information Report. PW18 is the police official, who conducted part of the investigation in the case and filed the final report in the matter. PW19 is the police official who conducted the remaining part of the investigation.
5. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the second accused. The court, however, found that the first accused is guilty of the offences punishable under Section 376(2)(f) and 376(2)(i) of the IPC and Section 5(l) read with Section 6 of the POCSO Act and convicted him for the said offences and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months under Section 376(2) of the IPC. In the light of Section 42 of the POCSO Act, no separate sentence was imposed on the first accused for the offences Crl.Appeal No.633 of 2018 5 punishable under the POCSO Act. The first accused is aggrieved by the conviction and sentence imposed on him and hence this appeal.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant has made elaborate submissions on the factual and legal aspects of the case. At the outset, it was pointed out by the learned counsel that the conviction of the appellant is solely based on the testimony of the victim girl. According to the learned counsel, the materials on record would indicate that the evidence tendered by the victim girl is not reliable and trustworthy, so as to form the sole basis of the conviction. It was also contended by the learned counsel that what was spoken to by the victim girl was only that the appellant caught hold of her hand, touched her belly, removed her pants and the undergarment and placed his genital region on the genital region of the victim girl. According to the learned counsel, the said evidence, even if accepted in toto, would not make out either a case of rape under Section 376 of the IPC or penetrative sexual assault under Section 5 of the POCSO Act.
Crl.Appeal No.633 of 2018 6
8. Per contra, the learned Public Prosecutor submitted that the evidence tendered by the victim girl was natural and consistent as regards the material particulars and there is no basis for the argument that she cannot be believed to justify the conviction of the appellant. As regards the alternative argument advanced by the learned counsel for the appellant, the learned Public Prosecutor submitted that it has come out that the appellant has placed his penis on the vagina of the victim girl and the said conduct would amount to penetration and would attract the offences of rape and penetrative sexual assault. The learned Public Prosecutor has placed reliance on the decision of this court in Kunjumon v. State of Kerala, 2011(4) KHC 72, in support of the said contention.
9. Having perused the records of the case and having heard the learned counsel on either side, it is seen that the points arising for consideration in the appeal are (i) whether the prosecution has established the guilt of the appellant under Section 376(2)(f) and 376(2)(i) of the IPC and Section 5(l) read with Section 6 of the POCSO Act and (ii) If point (i) is answered in favour of the appellant, the relief to which he is entitled to.
Crl.Appeal No.633 of 2018 7
10. Points: As rightly pointed out by the learned counsel for the appellant, in order to prove the occurrence, the prosecution has only the evidence of the victim girl. No doubt, the evidence of a rape victim can be the sole basis of conviction, if the evidence is of a sterling quality. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to who can be said to be a sterling witness. Paragraph 22 of the judgment of the Apex Court in the said case reads thus:
"In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to Crl.Appeal No.633 of 2018 8 the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
The decision aforesaid has been quoted with approval by the Apex Court in its recent decision in Criminal Appeal No.264 of 2020, decided on 14.2.2020. It is evident from the aforesaid decisions that a sterling witness is a witness whose evidence is natural and consistent with the case of the prosecution qua the accused. It was Crl.Appeal No.633 of 2018 9 also held in the said cases that such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrence and the evidence shall have co-relation with each and everyone of other supporting materials, including expert opinions. It was also held in the said cases that such evidence should also satisfy the test applied in cases involving circumstantial evidence, viz, that there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence. To put it differently, the version of such witnesses on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary, and material objects should match the said version in material particulars. The moot question therefore, is whether the victim girl can be said to be a sterling witness so as to justify the conviction of the accused solely based on her evidence.
11. It has come out in evidence that the father of the victim girl is no more; that the victim girl and her elder sister were residing for sometime with their maternal grandparents and thereafter in an orphanage; that the appellant started living with the mother of the victim girl in the meanwhile; that the victim girl and her elder sister used to visit and stay with their mother during their Crl.Appeal No.633 of 2018 10 vacations; that the mother of the victim girl was residing with the appellant in one of the rooms in the line building; that it is to the said place that the victim girl and her sister used to be brought during their vacations and that the place of occurrence is the room in the line building occupied by the mother of the victim girl. The victim girl as PW1 has stated that she was brought by her mother to stay with her during her Onam vacation, when she was studying in the VII standard. To a specific question put to the victim girl in chief examination, she said that she was not aware about the exact month during which she was brought home by her mother. She deposed that on 21.10.2014, since her mother went for work, she and her elder sister alone were there at home. PW1 deposed that while so, her elder sister went for bath. She deposed that the appellant who was there at home then caught hold of her hand first and then touched her belly. She deposed that thereafter, the appellant removed her pants and lower undergarment. She paused for some time after that and then deposed that the appellant did not do anything. Thereafter, she deposed that the appellant has placed for sometime the portion of his body used for passing urine on the portion of her body used for passing urine. PW1 deposed that by the Crl.Appeal No.633 of 2018 11 time, her sister came back after bath and the appellant has then let her free. In the course of the chief examination, the victim girl has clarified that the overt act committed by the appellant did not cause any pain to her. She deposed that she gave a statement to the Police concerning the occurrence and identified Ext.P1 First Information Statement. Similarly, she also deposed that she gave a statement concerning the occurrence to the Magistrate and identified Ext.P2 statement. Though PW1 was cross examined thoroughly on various aspects, I am unable to find anything in the cross examination which would create a doubt as to the genuineness of the case spoken to by the victim girl. The reason pointed out by the learned counsel for the appellant in support of his contention that PW1 cannot be believed is that the victim girl who has not disclosed anything about the date and time of occurrence in her previous statements, has introduced a specific date, namely 21.10.2014 while giving evidence in the case. True, PW1 has not stated the date of occurrence in her previous statements. Merely for the said reason, according to me, it cannot be said that the evidence is not reliable, if it is otherwise found reliable and acceptable.
12. PW2 is the elder sister of the victim girl. She Crl.Appeal No.633 of 2018 12 deposed that the occurrence took place on 21.10.2014 and she was present on that day at the house. PW2 deposed that the appellant sent her for bath and only the victim girl and the appellant were in the house at that time. PW2 deposed that when she came back after bath, she saw the first accused coming out from the house. PW2 deposed that after sometime, she saw the victim girl also coming out from the same place crying. As in the case of PW1, though PW2 was also cross examined at length, the evidence tendered by her as regards the aforesaid aspects were not discredited. PW10 is the doctor who examined the victim girl two days after the occurrence. She deposed that the victim girl was brought before her alleging that she was sexually abused by her stepfather. PW10 deposed that on examination, she found that there was evidence of past vaginal penetration. If the evidence adduced by the aforesaid three witnesses are examined as a whole, it would appear certainly that the version of the victim girl as regards the occurrence is natural, consistent and truthful.
13. The next question is as to whether the prosecution has established the guilt of the accused under Section 376(2)(f) and 376(2)(i) of the IPC and Section 5(l) read with Section 6 of the Crl.Appeal No.633 of 2018 13 POCSO Act. As noted, the relevant portion of the evidence tendered by the victim girl as regards the occurrence reads thus:
"രമമമശട ൻ ആദദദ എനന കയയ ൽ പയടയച . (witness takes time) രമമമശട ൻ എനന വയറയ ൽ പയടയച , രമമശശ മചട ൻ എനന Pant ഊരയ. Pant നന അടയയയ ൽ ഞഞ ൻ നഷെഡശഡയ ഇടയരുന. എനന നഷെഡശഡയ ഊരയ. (witness takes time) ഒനദ നചയയല. രമമശശ മചടനന Urine pass നചയ്യുന്ന ഭഞഗദ എനന Urine pass നചയ്യുന്ന ഭഞഗതശ വച. അമപഞമഴകദ മചചയ കളയമറയയയ ൽ നയന്നശ വന . കറചമനരദ രമമശശ മചടൻ ടയയഞ ൻനറ Urine pass നചയ്യുന്ന ഭഞഗദ എനന Urine pass നചയ്യുന്ന ഭഞഗതശ വച. എനയകശ മവദന എടുതയല. കറചമനരദ അങ്ങനന വച, അമപഞമഴകദ മചചയ കളയ കഴയഞശ വന. അമ്മ ആ സമയതശ മജഞലയക മപഞകക ആയയരുന. മചചയ കളയ കഴയഞശ വന്ന കഞരണദ ആണശ രമമശശ മചട ൻ മമ ൽപറഞ പവ ർ തയനയ ർതയയതശ ."
It is placing reliance on the aforesaid evidence that the learned counsel for the appellant argued that a case of rape or penetrative sexual assault is not made out. The contention advanced is that for making out a case of rape and penetrative sexual assault, there shall be evidence of penetration, and the victim girl has not spoken in her evidence anything about penetration. Placing reliance on the two previous statements of the victim girl, one under Section 154 of the Code and the other under Section 164 of the Code, wherein the victim girl has specifically mentioned about the male genital organ and penetration, it was argued by the learned counsel that it is not a case where the victim does not know anything about the male genital organ and penetration and nevertheless, she did not mention anything about the male genital organ and penetration in her Crl.Appeal No.633 of 2018 14 evidence. The submission made by the learned counsel, therefore, was that what is revealed, at the most, from the evidence of the victim girl is that the appellant has placed his penis on the vagina of the victim girl and the said conduct would only make out a case under Section 354 of the IPC.
14. I am unable to accept the aforesaid contention of the learned counsel. Placing reliance on the decisions of the Apex Court in Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, Aman Kumar v. State of Haryana, (2004) 4 SCC 379 and State of U.P. v. Babul Nath, (1994) 6 SCC 29, this Court held in Chenthamara v. State of Kerala, 2008 (4) KLT 290 that penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina would constitute rape, if penis gets physical contact in that process of access with any of the external portions of the female genital organ, such as, vulva, labia majora etc. Later, in Kunjumon, the same learned Judge who rendered Chenthamara, has clarified that an attempt at penetration into vagina would amount to accessing of the vagina and even a slightest penetration into vulva or labia majora Crl.Appeal No.633 of 2018 15 would constitute "rape", although there would be no vaginal penetration in such cases. Similar view has been expressed by the Apex Court earlier in Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) 8 SCC 560, wherein also, it was explained that penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence under Section 376 IPC. The aforesaid are decisions rendered prior to Act 13 of 2013, in terms of which Section 375 of the IPC was amended to its present form. As per the unamended provision, sexual intercourse by a man with a woman under any of the circumstances described in the section would have constituted rape and the question whether there is sexual intercourse or not, had to be determined in the light any clarification contained in the Explanation to the provision that penetration is sufficient to constitute sexual intercourse. All the decisions referred to above are therefore decisions dealing with the scope of the word 'penetration' contained in the Explanation to the definition of 'rape' as it stood prior to Act 13 of 2013.
15. Section 375 of the IPC dealing with the offence of Crl.Appeal No.633 of 2018 16 rape, as amended in terms of Act 13 of 2013, reads thus:
"375. Rape.--A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to Crl.Appeal No.633 of 2018 17 understand the nature and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen years of age.
Seventhly.--When she is unable to communicate consent. Explanation 1.--For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.--A medical procedure or intervention shall not constitute rape. Exception 2.--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Although scope of the offence of rape has been substantially enlarged in terms of Act 13 of 2013, penile penetration, to any extent, into the vagina is still retained within the scope of the offence of rape. Explanation to the amended definition, in addition, clarifies that for the purpose of the Section, vagina shall also include labia majora, indicating clearly that even the slightest penetration into vulva or labia majora would constitute rape and penile vaginal Crl.Appeal No.633 of 2018 18 entry namely actual passing of penis into the vagina, is not essential to constitute rape. It is, therefore, clear that the views expressed by the Apex Court and this Court in the various decisions referred to in paragraph 14 above have not been diluted in any manner in terms of Act 13 of 2013 in the context of rape, in so far as penile penetration is concerned.
16. Coming to the POCSO Act, 'penetrative sexual assault' is defined therein, almost on identical terms as 'rape' is defined in the IPC. In fact, it is the definition of 'penetrative sexual assault' contained in the POCSO Act that was substantively introduced as the definition of 'rape' in the IPC in terms of Act 13 of 2013. Be that as it may. The definition of 'penetrative sexual assault' in the POCSO Act reads thus:
"Section 3: Penetrative sexual assault A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not Crl.Appeal No.633 of 2018 19 being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
Although the definition of 'penetrative sexual assault' does not have an explanation for the word 'vagina' as contained in Explanation 1 to Section 375 of the IPC, as amended in terms of Act 13 of 2013, according to me, the said explanation can be read into the POCSO Act in the light of Section 2(2) therein which reads thus:
"2(2) The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts."Crl.Appeal No.633 of 2018 20
Even in the absence of a provision in the POCSO Act as extracted above, according to me, the word 'vagina' contained in Section 3 of POCSO Act defining 'penetrative sexual assault' has to be understood in the manner in which the word is understood in the context of the offence of rape under the IPC, or otherwise, it would appear that penile vaginal entry is required for making out a case of penetrative sexual assault, while the same is not required for making out a case of rape. Such an interpretation would certainly go against the object of the POCSO Act, viz, to secure the tender aged children from sexual abuses of all kinds. In other words, penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well.
17. Reverting to the facts, the evidence let in by the victim girl as extracted in paragraph 13 above would certainly reveal that the accused has placed his male genital organ at the external genitalia of the victim girl. Even if the case of the accused that there is no evidence of penetration of the male genital organ into the Crl.Appeal No.633 of 2018 21 vagina of the victim girl is accepted, the materials on record would indicate clearly that the accused has attempted to penetrate his genital organ into the vagina of the victim girl or otherwise there was no reason why he should place his genital organ into the external genitalia of the victim girl. There is no substance in the argument raised by the learned counsel for the appellant in this regard that the victim girl who knows about the male genital organ and who has mentioned about the same in her two previous statements did not mention about the same in the evidence and instead, she has mentioned only the expression "ഭഭാഗഗ" and that the said expression cannot be understood as male genital organ. If the evidence tendered by the victim girl in this regard is carefully examined, it can be easily inferred that by using the expression "ഭഭാഗഗ", the victim girl was referring to the genital organ of the accused. In so far as the age of the victim girl as alleged by the prosecution is not disputed by the accused and in so far as it is established that the accused is a person in a position of authority towards the victim girl, the offences punishable under Sections 376(2)(f) and 376(2)(i) of the IPC and the offence under Section 3(a) of the POCSO Act have been made out.
Crl.Appeal No.633 of 2018 22
18. Since there is no evidence to establish that the accused has committed penetrative sexual assault on the victim girl more than once or repeatedly, the conviction of the accused under Section 5(l) read with Section 6 of the POCSO Act is unsustainable. However, the accused is not entitled to any relief on this ground as he has not been sentenced for the offence punishable under the POCSO Act.
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.
DK