Unnikrishan vs State Of Kerala on 26 May, 2025

[Cites 51, Cited by 0]

Kerala High Court

Unnikrishan vs State Of Kerala on 26 May, 2025

We are confronted in this appeal with a tragic case involving the repeated violation of a daughter's innocence by the very man meant to protect her. It is a tale not just of abuse, but of betrayal. The victim's harrowing story of abuse, as corroborated by oral and medical evidence, was found trustworthy by the learned Sessions Judge and the father was found guilty of the offence punishable under Section 376(2), (f), (i), (n) of the IPC and Section 6 r/w. Section 5 (l), (m), (n) of the Protection of Children from Sexual Offences Act, 2012 (for brevity 'POCSO Act') and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-, with a default clause. The Court also ordered compensation of Rs.5,00,000/-, and the victim was directed to approach the Legal Services Authority. By this appeal, the appellant impugns the judgment passed by the learned Sessions Judge on various grounds.

Brief Statement of Facts:

2. PW1, an 11-year-old child, the daughter of the appellant, was 2025:KER:35503 Crl.A.No. 624 of 2020 4 allegedly subjected to aggravated penetrative sexual assault by the appellant on 06.10.2014 and 07.10.2014, at their residence, bearing building No. 15/486 of the Marakkara Grama Panchayat. The case portrayed by the prosecution is that the mother of the child, who was examined as PW2, had to undergo a scan and was not at home on 06.10.2014 and 07.10.2014. PW12, the wife of the appellant's brother, and the father of the appellant, along with the victim, were at home. On 06.10.2014 and 07.10.2014, the appellant took the child to the bedroom and inserted his finger into the vagina. When the child writhed with pain, the appellant is alleged to have licked her buttocks. It is also alleged that the appellant thereafter laid on top of the child and rubbed his penis on her genitals. On 08.10.2014, the child revealed the incident to PW12, her aunt, who in turn informed the family members. PW2 reached home at about 10:00 a.m. on 08.10.2014, and on receiving the information, reported the incident to the Station House Officer, Valanchery Police Station, who recorded Ext.P1 FI Statement at 5:00 p.m. on 08.10.2014.

Registration of Crime and Investigation:

3. Based on the information so furnished, Crime No. 354 of 2014 was registered at the Kadampuzha Police Station on 08.10.2014, under Section 376 (f) r/w. Section 3 r/w. Section 4 of the POCSO Act, by PW13, the Station House Officer, 2025:KER:35503 Crl.A.No. 624 of 2020 5 Kadampuzha Police Station.

4. The investigation was thereafter taken over by PW14, the Circle Inspector of Police, Valanchery Police Station. He went to the scene of the crime and prepared Ext.P3 Scene Mahazar. He identified the room where the child was subjected to sexual abuse by the appellant. The clothes which were worn by the child at the time of the occurrence were seized as per Ext.P2 Mahazar. On the same day itself, at 12:30 p.m., the accused was arrested while he was standing near the Kadampuzha Bus Stand, and his arrest was recorded as per Ext.P10 Arrest Memo.

Ext.P12 report was submitted before the Court, incorporating the name and address details of the accused. The medical examination of the accused was conducted and was thereafter produced before the jurisdictional court. An application was submitted before the Secretary of the Thrithala Grama Panchayat, and Ext.P6 Birth Certificate was obtained. The seized materials were forwarded to the Court as per Ext.P13 Forwarding Note. The clothes of the survivor were also forwarded for chemical analysis, and this part is evident from Ext.14 Forwarding Note. After completing the investigation, he laid the final report before the jurisdictional Magistrate. After complying with the procedure, the case was posted for trial before the Additional Court of Session.

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    Evidence Tendered:


            5.      To prove the case of the prosecution, 15 witnesses were examined

as PWs 1 to 15, and through them, Exts.P1 to P14 were exhibited and marked. No evidence was adduced by the defence. He denied the incriminating materials put to him under Section 313(1)(b) of the Cr.P.C. and maintained his innocence. He added that the case was fabricated by his wife.

Findings of the learned Sessions Judge:

6. The learned Sessions Judge, after careful evaluation of the evidence of PW1, the child, PW2, the mother of the survior, and PW12, the aunt to whom the incident was initially disclosed, and also the evidence of PW11, the Doctor who examined the child and issued the medical certificate, concluded that the prosecution had successfully established that the accused with lascivious intention, had committed the act of sexual abuse by inserting his finger and penis into the vagina of the survior and had also applied his mouth on her private parts.

The Court also found that the medical evidence adduced by the prosecution to the effect that the mucosa of the vagina of the child was congested, probablises 2025:KER:35503 Crl.A.No. 624 of 2020 7 the version of the child. Holding so, the finding of guilt was arrived at and the accused was convicted as aforestated.

Contentions of the appellant:

7. Sri. Vinay V, the learned counsel appearing for the appellant, submitted that the learned Sessions Judge has seriously erred in arriving at the finding of guilt as against the appellant. He would point out that there are serious discrepancies in the evidence adduced by PWs 1, 2 and 12. He would refer to the charge as well as the investigation conducted by the police, and it is submitted that, evidently, in all cases wherein allegations of sexual abuse are levelled, inevitably, the statement under Section 164 of the Cr.P.C. is recorded, which is a statutory mandate. In the case at hand, no such exercise was carried out. He would urge that there is no material to show that the statement of the child was in fact recorded by the Investigating Officer. The learned counsel would refer to the judgment rendered by a Division Bench of the Patna High Court in Mahesh Trivedi v. The State of Bihar1, and it was urged that Section 164 (5-A) of the Cr.P.C is a mandatory provision. According to the learned counsel, as soon as the crime is brought to the knowledge of the Police Officer, he is duty-bound to take 1 MANU/BH/0171/2024 2025:KER:35503 Crl.A.No. 624 of 2020 8 the victim to the nearest Judicial Magistrate for recording her statement, and it is the duty of the Magistrate to record the statement. When such an exercise was not carried out, it would affect the credibility of the version of the survivor. He would also refer to the judgment rendered by the Telangana High Court in Syed Masood Razvi v. The State of Telangana2, wherein the above principles were reiterated. Relying on the evidence tendered by PW1, it is submitted that it was the duty of the Judicial Officer to ask preliminary questions to the child with a view to ascertaining whether the minor can understand the questions put to her and is in a position to give rational answers. In the case at hand, no such exercise was carried out. The trial court was bound to record its opinion that the child witness understands the duty of speaking the truth, and is also bound to record that the Court was of the opinion that the child understands the duty of speaking the truth. In order to substantiate the said contention, reliance was placed on the judgment rendered by the Apex Court in Pradeep v. State of Haryana3. The learned counsel would then urge that the Apex Court in Jarnail Singh v. State of Haryana4, had occasion to hold that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, would apply strictly for the 2 MANU/TL/0920/2023 3 MANU/SC/0736/2023 4 [(2013) 7 SCC 263] 2025:KER:35503 Crl.A.No. 624 of 2020 9 determination of the age of a child in conflict with law, and the same has to be the basis for determining the age, even for a child who is a survivor of a crime. In the case at hand, the document mentioned in Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, has not been produced by the prosecution to prove that the victim was a minor at the time of the occurrence.

Instead, what has been produced is Ext.P6 Birth Certificate, issued by the local authority. This, according to the learned counsel, is not sufficient to prove that the child was a minor at the time of commission of the offence. The learned counsel would further submit that the specific case of the child is that her father had subjected her to brutal sexual abuse. However, the medical evidence produced by the prosecution does not support the said version. Furthermore, the record has not been proven in accordance with the law. All that the medical record shows is that there is congestion of the vagina of the child and nothing more. The learned counsel would then submit that though the clothes worn by the survivor were seized and the same were forwarded to the Forensic Lab for analysis, no report has been produced before the court to support the same. The non-production and concealment of the Forensic Science Lab Report has caused serious prejudice, contends the learned counsel. He would also urge that the evidence let in by PWs 2 and 12 is inconsistent and is at variance with the statement of the child.

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According to the learned counsel, proper evaluation of the evidence let in by PWs 1, 2 and 12 would only lead to the conclusion that the foundational facts have not been properly proved by the prosecution. It is finally submitted that though the accused has been guilty of the offence under Section 376(2)(n) of the IPC, the fact remains that no charge was laid against him in respect of the said offence. Submissions of the learned Public Prosecutor:

8. Smt. Neema T.V., the learned Public Prosecutor, on the other hand, submitted that the evidence of the child is reliable and trustworthy, and there is absolutely no reason to disbelieve her version. According to the learned counsel, the learned Sessions Judge was satisfied that the child was able to rationally answer and speak the truth to the questions put by the Court. And if that be the case, the mere fact that the procedure was not strictly followed will not advance the case of the defence. It is further submitted that the version of the child was corroborated by PW2, the mother of the child, PW12, the aunt and the medical records. The learned Public Prosecutor would then refer to the judgment rendered by a Division Bench of this Court in Biju v. State of Kerala5, and it is urged that the statement made by the child, shortly after the incident to PW12, aunt, as well 5 [2024 (2) KLT 130] 2025:KER:35503 Crl.A.No. 624 of 2020 11 as the mother, which is having a direct bearing on the fact in issue is admissible as evidence under Section 8 of the Indian Evidence Act, since it constitutes subsequent conduct of the victim. Insofar as the noncompliance of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is concerned, it is submitted by the learned Public Prosecutor that the accused is none other than the father of the child, and he is not disputing the fact that the child was just 11 years old when the offence was committed. It is further submitted that the Birth Certificate, which is produced by the prosecution and proved in accordance with law, stands testimony to the fact that the child was 11 years old at the time of commission of the offence. Insofar as the medical evidence is concerned, it is submitted by the learned Public Prosecutor that it is not the case of the prosecution that the child was subjected to penetrative sexual abuse in a violent way, so as to leave tell-tale signs on her private parts. She would, however, urge that the acts committed by him constitute the offences under Section 376 of the IPC and Section 5 r/w. Section 6 of the POCSO Act. In order to substantiate her contention, reliance is placed on Wahid Khan v. State of Madhya Pradesh6.



                   9.      We have considered the submissions advanced by both sides and
6
    [(2010) 2 SCC 9]
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perused the entire record. We have carefully gone through the judgment rendered by the learned Sessions Judge.

10. Before evaluating the contentions advanced by both sides, it would be appropriate to deal with the evidence presented by the prosecution to bring home the charge against the appellant.

Evidence let in by the prosecution:

11. PW1 is a minor child who was subjected to sexual abuse by her own father. She stated that she, along with her parents, grandfather, her father's brother, his wife and his child, were residing in the same house. At the time of the incident, she was studying in the VI Standard at the A.U.P School, Kadampuzha.

She stated that on 06.10.2014, she was watching a serial named "Chandanamazha" and she dozed off. The TV was placed in the hall. She stated that her father licked her buttocks and lay on top of her. She stated that he attempted to insert his penis into her vagina and she felt pain. On the next day, her father left. She stated that her mother had gone to her parental home. According to her, her grandfather, her father's brother, his wife and his child were occupying other rooms. On the next day, she disclosed the incident to "Mema" (aunt), examined as PW12. She was taken to the Tirur Hospital, and a lady 2025:KER:35503 Crl.A.No. 624 of 2020 13 Doctor examined her. Thereafter, her statement was recorded by a Woman Police Constable. She stated that PW12 disclosed the incident to her mother. In cross-examination, she stated that at the time of tendering the evidence, she was studying in the Plus One course and she was residing with her mother at Muthuthala. She stated that earlier, when they were staying together, her father used to be loving and caring towards her. She stated that the incident was disclosed first to PW12, since her mother was not at home. Her mother came only after two days. It was only on the day that her mother returned that she had disclosed the incident to her aunt. On the same day itself, PW3 and her mother went to the Police Station and lodged the complaint. The police recorded her statement while she was residing in the house of her mother's sister. She added that her father was an alcoholic and used to physically assault her mother. However, her mother used to bear the abuse and stayed at home. She stated that she does not have any animosity towards her father for manhandling her mother. She stated that she used to feel sad on seeing her mother being assaulted by her father. She denied that she was stating a falsehood at the instance of her mother. Some minor omissions in her statement were brought out in cross-examination. It was brought out that in her earlier statement to the police, she had not disclosed that initially, the incident was disclosed to PW12. In re-examination, the child 2025:KER:35503 Crl.A.No. 624 of 2020 14 added that on previous occasions, her father had behaved in an improper manner towards her. When her mother was on her 'menstrual periods', she used to sleep separately, and her father used to come and sleep with her. She also added that even on previous occasions, she has been subjected to sexual abuse by her father. She also added that when she woke up, she and her father were alone in the room.

12. PW2 is the mother of the survivor. She stated that on 07.10.2014, she was not at her home. She had to go to a hospital in Thrissur due to stomach pain and went there for a scan. From the hospital, she went to her parental home. It was on 08.10.2014, she returned back to her matrimonial home. She stated that the father of the accused, as well as his brother, along with his family, were residing in the same house. The fact that PW1 was sexually assaulted was told to her by PW12 at about 10:00 a.m. on 08.10.2014. On hearing the incident, she asked her child about it, and she stated that PW1 cried. The accused is a driver, and he had gone out of the house in the morning itself. She immediately went to the Police Station and lodged Ext.P1. She stated that when the child was examined by the lady Doctor, she was also present. She asserted that the date of birth of the child is 07.04.2004 and that she was studying during the relevant 2025:KER:35503 Crl.A.No. 624 of 2020 15 period in the VI Standard at A.U.P School, Kadampuzha. She also added that the clothes of the child victim were handed over to the police by her. In cross-examination, she stated that the child was initially taken to her elder sister's house, and it was thereafter that she had gone to the Police Station. She stated that while divulging the incident, the child had cried, and thereafter, she narrated the entire incident to her. She denied that a false case had been registered against the husband due to the animosity that PW12 had towards the accused.

13. PW3 is the brother of PW2. He stated that after PW2 had returned from the hospital, he, along with PW2, went to the Police Station and gave the information. He stood as an attester to Ext.P2 Seizure Mahazar of the clothes of the survivor.

14. PW4 is the attester to Ext.P3 Scene Mahazar. PW5 is the Medical Officer who issued Ext.P4 Potency Certificate after examining the accused. PW6 is the Secretary of the Grama Panchayat, who issued Ext.P5 Certificate, providing the details of ownership of building No.15/486, wherein the child was subjected to abuse. PW7 is the Registrar, Births and Deaths, Thrithala Grama Panchayat. He stated that the date of birth of the victim child is 07.04.2004 as per the register maintained by the local authority. The said certificate was marked as Ext.P6. PW8 2025:KER:35503 Crl.A.No. 624 of 2020 16 is the Village Officer who prepared Ext.P7 Sketch in respect of the house where the incident had taken place. PW9 is the Woman Police Constable, Kadampuzha Police Station. She stated that on 08.10.2014, at 5:00 p.m., PW2 came to the Police Station and gave Ext.P1 Statement, based on which a crime was registered. She stated that after recording Ext.P1, the statement of the child was recorded while the child was in the house of the sister of PW2. PW10 is also a Woman Police Constable of the Valanchery Police Station, who stated that the statement of the child was recorded by her. PW11 is the Medical Consultant in Gynaecology, Government Hospital, Tirur. He stated that he examined the survivor child when she was brought by her mother and the Woman Police Constable. He was informed that yesterday, as well as the day before, while the mother of the survivor had gone to Thrissur, the father had subjected the child to sexual abuse. On examination of the child, the doctor had noted an injury on the left forehead. The Doctor noted that the hymen was intact, but the vaginal mucosa was found to be congested. No other injuries were noted. The doctor opined that the insertion of penis may cause vaginal congestion. Ext.P8 is the certificate issued by PW11.



            15.     PW12 is the wife of the younger brother of the accused. She stated
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that she, along with the accused, PW1, PW2, her husband and his father, were all residing in the same house. On 08.10.2014, she was informed by PW1, the survivor, that her father had subjected her to sexual abuse on 06.10.2014 and 07.10.2014. At the time of disclosing the said information, her husband, Babu, and his father were at home. PW2 was not at home, as she had gone to a hospital in Thrissur. She stated that the survivor, as well as the accused, had stayed in the same room. It was on 08.10.2014 that she got information about the sexual abuse when the child informed her about the same. On 08.10.2014, when PW2 returned back from Thrissur, she stated that the child had told her that the accused had inserted his finger into her vagina and when she cried out, he licked on the genitals. She also stated that the child told her that her father had pressed his penis on her genital area. In cross-examination, it was brought out that the marriage between her and her husband had not been registered. To a specific question as to whether there were differences of opinion between the appellant and his wife, she stated that the accused was an alcoholic, and after consuming alcohol, he used to come and create problems in the house. She stated that she had not gone to the Police Station along with PW2. To a pointed question that she was in a relationship with one Arun, and that false allegations were being made because the appellant opposed the said relationship, she denied 2025:KER:35503 Crl.A.No. 624 of 2020 18 the same.

16. PW15 is the Circle Inspector of Police, who laid the final report before the Court.

Evaluation of the evidence

17. The first question that is to be determined is whether the prosecution has established that PW1 is a child as defined under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012. Under Section 2(d) of the Act, "child" means a person below the age of 18 years. In the case at hand, the incident is alleged to have taken place on 06.10.2014 and 07.10.2014. The accused is none other than the father of the victim. At the time of examination of the victim on 29.12.2016, she was 12 years of age and was studying in the VIII Standard at the Parathoor High School. PW2 is the mother of the child. She has given evidence that her daughter was born on 07.04.2004. The above evidence has not been challenged by the appellant.

18. In Jarnail Singh (supra), the Apex Court has held that even though the rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 apply strictly only for determination of the age of a child in 2025:KER:35503 Crl.A.No. 624 of 2020 19 conflict with law, the statutory provisions therein can certainly be the basis for determining the age of even a child who is a victim of crime, for there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law and a child who is a victim of a crime.

19. As the incident is alleged to have taken place on 6.10.2014 and 7.10.2014, the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000 applies. On the issue of the determination of the age of a minor, reference has to be made to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007, framed under Section 68(i) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 reads as under:

Rule 12: Procedure to be followed in the determination of Age (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, 2025:KER:35503 Crl.A.No. 624 of 2020 20 and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii)the birth certificate given by a corporation, a municipal authority, or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause

(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

xxxx xxxx xxxx

20. As can be seen from the relevant statutory provisions, the Birth Certificate given by a Corporation, a Municipal Authority, or a Panchayat is a valid document that can be used to determine the victim's juvenility.

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21. In Rajan K.C vs. State of Kerala7, a Division Bench of this Court, after referring to the statutory provisions, including Section 76 of the Indian Evidence Act, 1872, held that the "Register" of Births and Deaths is a public document as contemplated in Section 74 of the Act, the certified copy of which spoken of in Section 76 of the Act, is the one issued by the Registrar on an application made before him. The primary evidence as contemplated under Section 62 of the Act would be the "Register" itself, and the secondary evidence, as spoken of in Section 63 inter alia includes certified copies given under the provision therein after contained. It was held that a certificate of birth issued by the Registrar showing the details of the entry in the "Register" is secondary evidence acceptable on record, under Section 65 of the Indian Evidence Act, 1872. In the case on hand, the prosecution has examined PW7, the Registrar, Births and Deaths, Thrithala Grama Panchayat, and has marked through him the Birth Certificate dated 16.10.2014 showing that PW1, the daughter of the appellant and PW2, was born on 07.04.2004 at a named Pattambi Nursing Home at Nhangattiri. In view of the unchallenged oral testimony of PWs 1 and 2, and Ext.P6 Birth Certificate, it can be held without any shroud of doubt that PW1 was a minor child aged 11 years at the time when she was subjected to sexual abuse 7 2021 (4) KLT 274 2025:KER:35503 Crl.A.No. 624 of 2020 22 on 06.10.2014.

22. Now, the question is whether the allegation of sexual abuse of the child has been established by the prosecution with credible evidence. Before dealing with the contentions, it would be profitable to refer to Sections 29 and 30 of the POCSO Act, which deal with presumptions. It reads as under:

29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under S.3, S.5, S.7 and S.9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state. - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

23. A careful examination of the statutory provisions and the principles laid down by the Hon'ble Supreme Court and this Court on the application of the 2025:KER:35503 Crl.A.No. 624 of 2020 23 reverse burden doctrine reveals, with considerable clarity, that even in such cases, the prosecution must first establish a prima facie case beyond reasonable doubt, in accordance with the settled tenets of criminal jurisprudence. It is only upon the establishment of such foundational facts that any statutory presumption against the accused can legitimately be invoked. At that stage, the burden shifts to the accused, not to prove innocence beyond doubt, but to rebut the presumption by adducing evidence that meets the threshold of preponderance of probability. This insistence on establishing foundational facts functions as a vital safeguard against the arbitrary or erroneous invocation of statutory presumptions. In the context of an offence under the Protection of Children from Sexual Offences (POCSO) Act, it is incumbent upon the prosecution, at the threshold, to prove that the victim is a child as defined under Section 2(d) of the Act. Thereafter, it must be demonstrated, by cogent and legally admissible evidence, that the alleged incident did occur and that the involvement of the accused has been established beyond a reasonable doubt. Any medical or forensic evidence adduced must serve to corroborate the version of the victim and thereby lend probative value to the prosecution's case. If the Court is satisfied that these foundational facts have been duly proved, the onus then shifts to the accused to rebut the statutory presumption of guilt. This may be achieved by exposing inherent improbabilities, 2025:KER:35503 Crl.A.No. 624 of 2020 24 glaring inconsistencies, or material contradictions in the prosecution's narrative. It is equally open to the accused to demonstrate the existence of prior enmity, ulterior motive, or undue delay in lodging the complaint, all of which may undermine the case of the prosecution. The accused may also seek to establish that the victim is not a child within the meaning of the Act, or that the relationship in question was consensual. The burden may also be discharged either by discrediting prosecution witnesses through effective cross-examination or, where required, by leading defence evidence. It would be open to the accused to enter the box if he chooses so or cite any witness whose examination may aid him in establishing his contention that he has been falsely implicated and that the prosecution case is meritless. In essence, the evidentiary structure of a trial under the POCSO Act aligns with that of other criminal trials, save for the added dimension of statutory presumptions in favour of the prosecution and the corresponding obligation on the accused to rebut the same. [See: Naresh Kumar Alias Nitu v. State of Himachal Pradesh8, Justin @ Renjith and Another v. Union of India and Others9, Gangadhar @ Gangaram v. State of Madhya Pradesh10, Noor Aga v. State of Punjab and Others11] 8 AIR 2017 SC 3859 9 ILR 2020 (4) Ker. 679 10 AIR 2020 SC 3656 11 2008 KHC 5054 2025:KER:35503 Crl.A.No. 624 of 2020 25

24. We have already detailed the evidence let in by PWs 1, 2, 11, and

12. The victim has stated in graphic detail the nature and manner in which she was subjected to sexual abuse by her father. She stated that the father had inserted his finger into her vagina, and when she complained of pain, he licked on her buttocks. Thereafter, he attempted to insert his penis into her vagina and she felt pain. On 08.10.2014, the child divulged the incident to PW12, who in turn informed the disclosure to PW2, the mother of the child. The mother confronted the child, and she cried. She immediately rushed to the Police Station and gave a statement. PW12, the aunt of the child, has stated that the child disclosed to her the abuse to which she was subjected by the father. PW12 was also residing in the same house, and she had stated that the child had spent the night with her father on 06.10.2014 and 07.10.2014. The doctor, who conducted medical examination of the child, noted that "the vaginal mucosa is congested and the same is indicative of sexual assault". He stated that the insertion of penis may cause vaginal congestion.

25. Of course, the evidence of a child witness is required to be evaluated carefully, as the child may be swayed by what others may tell him or her, as the child is an easy prey to tutoring. Wisdom requires that the evidence of 2025:KER:35503 Crl.A.No. 624 of 2020 26 a child witness must find adequate corroboration before it is relied on as observed in State of U.P v. Ashok Dixit12. In Raju v. State of Madhya Pradesh13, the Apex Court while reiterating the principles of law laid down in earlier precedents held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. In State of Punjab v. Gurmit Singh14, it was observed that Rape is not merely a physical assault--it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If, for some reason, the court finds it difficult to 12 (2000) 3 SCC 70 13 (2008) 15 SCC 133 14 (1996) 2 SCC 384 2025:KER:35503 Crl.A.No. 624 of 2020 27 place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case, and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. Furthermore, any minor variations in the testimony of the child witness concerning trivial aspects of the incident, such as the precise sequence of events or the specific portion of the body touched, cannot be viewed as material contradictions that would undermine the core of the prosecution case. Such minor deviations, which are natural in the recollection of a child, do not detract from the essential allegation that the act of the appellant was driven by lascivious intent. Nor do they render improbable the foundational prosecution narrative that the appellant engaged in physical contact with the victim with a clearly discernible element of sexual intent. These inconsequential inconsistencies do not take the appellant's act outside the culpable boundaries prescribed by the relevant penal provisions.

26. At this juncture, it is necessary to highlight one important aspect. One of the charges against the appellant concerns the commission of repeated 2025:KER:35503 Crl.A.No. 624 of 2020 28 acts of rape/penetrative sexual assault. PW12, in her deposition, stated that the accused had subjected the victim to sexual abuse on 06.10.2014 and again on 07.10.2014. However, when examined before the Court, the victim did not speak of repeated acts of sexual abuse. She referred only to a single incident and further stated that she could not recall the exact date. In her re-examination, she mentioned that she had, on earlier occasions, been subjected to inappropriate conduct by her father, but did not specify the nature of such conduct. In view of the above, while there is sufficient material to conclude that the victim was subjected to rape/penetrative sexual assault on at least one occasion, the evidence on record falls short of establishing the offence of repeated acts of sexual assault so as to attract the graver charge under Section 376(2)(n) of the Indian Penal Code or Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

27. The learned counsel appearing for the appellant has raised a contention that insertion of an adult penis into the vagina of a child is expected to cause more serious injuries. According to him, the offence of penetrative sexual assault, or for that matter, the offence of rape will not be made out under Section 375 of the IPC. We are unable to agree. Section 375 of the IPC reads as under:

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                     "Section 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,.................."

28. The very same ingredients attract the offence of "penetrative sexual assault" as defined under Section 3 of the POCSO Act. PW1 has clearly stated that the appellant inserted his finger into her vagina and that he has licked her buttocks. She has also stated that he has rubbed and attempted to insert his genitals into her private parts. The above actions of the appellant would bring his devious acts within the ambit of rape/penetrative sexual assault as defined in the respective enactments. In that view of the matter, the contention of the learned counsel that the offence under Section 376 (2) (f),(i),(n) of the Indian Penal Code 2025:KER:35503 Crl.A.No. 624 of 2020 30 and Section 3 r/w. Section 4 of the POCSO Act will not be attracted is to be rejected.

29. The next contention advanced by the learned counsel is that the failure of the prosecution to produce the child before the learned Magistrate and record her statement under Section 164 of the Code would lessen the impact and reliability of her evidence. Under subsection 5A of Section 164 as inserted by the Criminal Law (Amendment) Act, 2013 (Act No. 13 of 2013) w.e.f. 03.02.2013 in cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police. In the case on hand the incident had allegedly taken place on 6.10.2014 and 7.10.2014 and in terms of the provisions of the Code, the Police were obliged to get the statement of the child recorded by the learned Magistrate.



            30.     Section 25 of the POCSO Act provides for the recording of a
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statement of the child by the Magistrate. The said provision reads as under:

25. Recording of statement of a child by Magistrate.--(1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974)(herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child:

Provided that the provisions contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.

(2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code.

31. There can be no doubt that with the insertion of sub-section (5A) to Section 164 of the Code of Criminal Procedure, it has become mandatory for the investigating officer to produce the victim before the nearest Judicial Magistrate for the purpose of recording her statement. The issue for consideration is whether the omission to record such a statement under Section 164 would, in any manner, undermine the evidentiary value or sanctity of the testimony tendered by the child before the court. In our considered view, having regard to the facts and circumstances of the present case, the failure of the investigating officer to get 2025:KER:35503 Crl.A.No. 624 of 2020 32 the statement of the child recorded under Section 164 CrPC does not, by itself, impair the credibility or reliability of her testimony in court. While it is true that the investigating officer ought to have taken the child to the learned Magistrate at the earliest opportunity, such a procedural lapse cannot be construed as conferring any advantage or benefit upon the accused. We are unable to accept the argument that the absence of a statement under Section 164 renders the substantive evidence of the child unworthy of credence or liable to be discarded. It is trite law that a statement recorded under Section 164 CrPC is not substantive evidence; it may be used only for the limited purpose of corroborating or contradicting the maker thereof, in accordance with the provisions of the Indian Evidence Act. We are of the view that the evidentiary weight of the testimony given by the child before the court remains unaffected by the omission to record her prior statement under Section 164.

32. The next contention advanced by the learned counsel is that the learned Magistrate failed to properly assess the competency of the child witness by not putting relevant and sufficient preliminary questions. In the present case, the child was 11 years old at the time of her examination in chief. Consequently, the proviso to Section 4 of the Oaths Act, 1969, which exempts children under 2025:KER:35503 Crl.A.No. 624 of 2020 33 twelve from taking an oath if they are unable to understand its nature, does not apply. In terms of Section 118 of the Indian Evidence Act, 1872, it is incumbent upon the trial court to form and record an opinion that the child is capable of understanding the questions put to her and of giving rational answers thereto. In addition, the Presiding Judge must record a finding that the child understands the obligation of speaking the truth, and to provide reasons in support of such a conclusion. In the instant case, the learned Sessions Judge did put preliminary questions to the child regarding her age, the class she was studying in, her general awareness of court proceedings, and her understanding of the duty to speak the truth. It was only after such interaction that the Presiding Officer recorded that the witness was found competent to depose before the court. Upon a thorough consideration of the testimony of the child witness, we are satisfied that the learned Sessions Judge has duly complied with the legal mandate and has conscientiously assessed the competence of the child. The procedure adopted clearly reflects the court's satisfaction as to the witness's ability and capacity to testify truthfully.

33. Having carefully evaluated the evidence of PW1 in the light of the medical evidence, we find the same to be credible, trustworthy and reliable. We 2025:KER:35503 Crl.A.No. 624 of 2020 34 hold that the learned Sessions Judge has rightly relied on the evidence tendered by the prosecution to arrive at the finding of guilt. The contentions fervently raised by the learned counsel to assail the finding of guilt are meritless and hence rejected.

34. Now we shall come to the imposition of sentence. We find from the judgment that the appellant was found guilty of the offence under Section 376 (2)

(f) (i) (n) of the IPC and under Section 6 r/w. Section 5 (l) (m) (n). Section 376 (2) (f) penalise a person who commits rape while being a relative, guardian or teacher of the victim. Section 376 (2) (i) was repealed by Act 22 of 2018 with effect from 21.04.2018. He was also found guilty for the offence under Section 376 (2) (n) of the IPC for committing rape repeatedly on the same woman. Section 5(l) speaks about commission of penetrative sexual assault on a child more than once or repeatedly, Section 5(m) penalises the accused for committing penetrative sexual assault on a child below 12 years, and Section 5 (n) provides for punishment of penetrative sexual assault by a relative. The above offences are punishable under Section 6 of the Act. Section 42 of the POCSO Act states that where an act or omission constitutes an offence punishable under the POCSO Act and also certain offences under the IPC which include Section 376 of the IPC, the 2025:KER:35503 Crl.A.No. 624 of 2020 35 offender found guilty of such offence shall be liable to punishment under the POCSO Act or the IPC as provides for punishment which is greater in degree. We find that the learned Sessions Judge has sentenced the appellant to undergo RI for life and to pay a fine of Rs.50,000/ and in default of payment of fine to undergo RI for six months for the offence under Section 376(2) (i) and (n) of the IPC. We have already held that there is no evidence to attract Section 376(2)(n) of the IPC. Having considered all aspects and the punishment provided for the offences as it existed on the date of commission of the offence, the nature and gravity of the offence, the relationship between the parties and other factors and by invoking the powers of the Appellate Court under Section 386(iii) of the Code of Criminal Procedure, 1973, we are of the view that sentencing the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- will serve the ends of justice.

35. In that view of the matter, while affirming the finding of guilt conviction and sentence for the offence under Section 376(2)(i) of the IPC, we order him to undergo RI for for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo RI for six months. We further direct the District Legal Services Authority, Manjeri, to take immediate steps to ensure that 2025:KER:35503 Crl.A.No. 624 of 2020 36 the compensation amount of Rs.5,00,000/- (Rupees Five Lakhs only) as ordered by the learned Sessions Judge is disbursed to the victim at the earliest, in accordance with the National Legal Services Authority Victim Compensation Scheme.

This appeal is dismissed, however, with modification of the sentence.

                                                                      Sd/-

                                                                  RAJA VIJAYARAGHAVAN V,
                                                                        JUDGE

                                                                      Sd/-

                                                                  K.V. JAYAKUMAR,
                                                                                 JUDGE

        PS & APM/26/05/2025

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