Kerala High Court
Lukose @ Kunjumon vs State Of Kerala on 1 June, 2020
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 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942
CRL.A.No.585 OF 2018
AGAINST THE JUDGMENT IN SC 525/2014 OF THE FIRST ADDITIONAL
DISTRICT & SESSIONS COURT, KOLLAM DATED 03.04.2018
CRIME NO.482/2014 OF Anchalummoodu Police Station
APPELLANT/ACCUSED:
LUKOSE @ KUNJUMON
S/O.YOHANNAN,AGED 72 YEARS, ANCY COTTAGE,
PANAYAM CHERY,PANAYAM VILLAGE, KOLLAM-691 601
BY ADV. SRI.BLAZE K.JOSE
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING SUB INSPECTOR OF POLICE,
ANCHALUMMOODU POLICE STATION,
KOLLAM DISTRICT,PINCODE- 691 601
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
SRI.RAMESH CHAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-05-2020,
THE COURT ON 01-06-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.585 of 2018 2
P.B.SURESH KUMAR, J.
--------------------------------------------------
Criminal Appeal No.585 of 2018
--------------------------------------------------
Dated this the 1st day of June, 2020
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C. No.525 of 2014 on the files of the First Additional District and Sessions Court, Kollam. The appellant is the sole accused in the case.
2. The accusation in the case is that on 28.03.2014, at about 1.30 pm, the accused trespassed into the house of PW6, the victim girl aged 12 years and committed penetrative sexual assault on her at the hall room of her house and thereby committed the offences punishable under Section 451 of the Indian Penal Code (the IPC) and Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
Crl.Appeal No.585 of 2018 3
3. On the accused pleading not guilty of the charges, the prosecution examined 8 witnesses as PWs.1 to 8 and proved 9 documents as Exts.P1 to P9. 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 same 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 was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined in the proceedings, PW1 is the mother of the victim girl. PW2 is the mother-in-law of PW1 and the grandmother of the victim girl. PW3 is the attester to Ext.P1 scene mahazar. PW4 is the doctor who examined the accused and issued Ext.P2 Potency certificate. PW5 is the police officer who recorded the First Information Statement from the victim girl. PW6 is the victim girl. She has proved Ext.P3 statement given by her under Section 154 of the Code. She has also proved Ext.P4 statement given by her under Crl.Appeal No.585 of 2018 4 Section 164 of the Code. PW7 is the investigating officer in the case. He has proved registration of Ext.P5 First Information Report, Ext.P6 report furnishing the particulars of the accused, Ext.P7 arrest memo, Ext.P7(a) inspection memo, Ext.P7(b) custody memo and Ext.P8 remand application. PW8 is the doctor who has examined the victim girl. She has proved Ext.P9 report of examination.
5. On an appraisal of the materials on record, the court below found that the prosecution has established the guilt of the accused under Section 451 of the IPC and Section 3 read with Section 4 of the POCSO Act. The accused was consequently convicted for the aforesaid offences and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for three more months for the offence punishable under Section 451 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/-, and in default of payment of fine, to undergo simple imprisonment for three more months under Section 3 read with Section 4 of the Crl.Appeal No.585 of 2018 5 POCSO Act. The court also ordered the substantive sentences to run concurrently. The accused is aggrieved by the conviction and sentence imposed on him.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant pointed out, at the outset, that the medical evidence in the case does not corroborate the prosecution case and the accused was convicted solely based on the evidence tendered by PW2, the grandmother of the victim girl and PW6, the victim girl. According to the learned counsel, the evidence tendered by the victim girl is not consistent with her two previous statements namely Exts.P3 and P4 and the same cannot, therefore, be stated to be reliable and trustworthy. It was also submitted by the learned counsel that the evidence tendered by PW2, the grandmother of the victim girl suffers from inherent improbabilities. It was also argued by the learned counsel that the evidence tendered by PW1 and PW2 are mutually destructive and if one among them is believed, necessarily, the other has to be disbelieved. The essence of the Crl.Appeal No.585 of 2018 6 submissions made by the learned counsel, therefore, was that the conviction of the appellant and the sentence imposed on him are unsustainable. Alternatively, it was contended by the learned counsel that at any rate, the evidence on record do not make out a case under Section 3 read with Section 4 of the POCSO Act. At the most, according to the learned counsel, the prosecution has made out only a case under Section 7 of the POCSO Act.
8. Per contra, the learned Public Prosecutor submitted that the evidence tendered by the victim girl is natural, consistent with her previous statements and trustworthy and there is absolutely no reason to disbelieve her. It was also submitted that there is no inconsistency or improbability in the evidence tendered by PW2, the grandmother of the victim girl. It was further submitted by the learned Public Prosecutor that the evidence let in by the prosecution makes out a case for conviction of the appellant under Section 3 read with Section 4 of the POCSO Act.
9. Having perused the materials on record, and having heard the learned counsel on either side, the following points are Crl.Appeal No.585 of 2018 7 formulated for decision in the appeal;
(i) whether the prosecution has established the guilt of the accused under Section 451 of the IPC and Section 3 read with Section 4 of the POCSO Act?
(ii) If point (i) is answered in favour of the accused, the relief which he is entitled to?
10. Points: PW1, as noted, is the mother of the victim girl. She has not seen the occurrence and she had only a hearsay information about the occurrence. It is seen, however, from the evidence of PW1 that the victim girl was residing with PW1 and her grandmother, PW2. PW2 has deposed that on the date of occurrence, she went to the church in the morning at about 9.30 a.m. and came back home after 2 p.m. PW2 has also deposed that when she reached home, she saw the accused grabbing the breast of the victim girl using both of his hands by standing behind the chair in which the victim girl was sitting. It was also deposed by PW2 that when the accused saw her, he ran away from the house. PW2 has also deposed that she went behind the Crl.Appeal No.585 of 2018 8 accused to his house and informed the matter to his wife and when the wife of the accused started questioning the accused regarding the occurrence, the accused disappeared inside a room in his house and closed its door. PW6, the victim girl has deposed that on the date of occurrence, while she was watching the television, after having her lunch, the accused who is a relative of her and who is residing in the neighbourhood of her house, came to the hall room of her house where she was sitting and when she asked him as to the reason for his visit, he informed her that he came casually to her house. PW6 has also deposed that after some time, he stood up and grabbed her breast from behind the chair in which she was sitting. It was stated by her that when she attempted to make a noise, the accused closed her mouth using his hand. It was also deposed by PW6 that later, the accused made her lie down on the floor, removed her skirt, pushed down her panties and pricked at her lower private part with his finger. It was deposed by PW6 that her grandmother came to the scene by the time and the accused then made her sit in the chair and grabbed her breast once again and left the scene thereafter. Crl.Appeal No.585 of 2018 9
11. It is seen that in the evidence tendered by PW6, she refers to three occurrences. Firstly, she narrates the conduct of the accused in grabbing her breast from behind the chair in which she was sitting while she was watching the television. Secondly, she narrates the conduct of the accused in making her lie down on the floor and pricking her lower private part using his finger after removing her clothes. Thirdly, she narrates the conduct of the accused in making her sit in the chair again and grabbing her breast, when her grandmother came to the scene. In the First Information Statement, the victim girl does not narrate the third occurrence referred to above. In the said statement, the version of the victim girl was that while the accused was pricking at her lower private part using his finger, PW2, the grandmother came to the scene and on seeing the grandmother, the accused left the scene. Exactly the same was the version of the victim girl in Ext.P4 statement given by her under Section 164 of the Code. If the version of the victim girl in her First Information Statement and in the statement given by her under Section 164 of the Code is believed, there would have been no occasion for PW2, the Crl.Appeal No.585 of 2018 10 grandmother of the victim girl to see the accused grabbing the breast of the victim girl as deposed by her. I have examined the evidence tendered by the victim girl in the background of other facts and circumstances as disclosed in the evidence, and I find that the evidence given by the victim girl as regards the first two occurrences is natural, reliable and consistent with her previous statements namely the First Information Statement as also the statement given by her under Section 164 of the Code. I am unable to attribute the same credence to the evidence tendered by the victim girl as regards the third occurrence spoken to by her. In so far as it is found that the evidence tendered by the victim girl is natural, reliable and consistent as regards the first two occurrences spoken to by her, it is unnecessary to examine the reliability of the evidence tendered by PW2, the grandmother for the purpose of this case. In other words, I am inclined to hold that the prosecution has established that on 28.03.2014, at about 1.30 p.m., the accused trespassed into the house of the victim girl and sexually abused her by grabbing her breast and also by pricking at her lower private part. The contention advanced by Crl.Appeal No.585 of 2018 11 the learned counsel for the appellant to the contrary, is therefore, rejected.
12. I shall now examine the question as to whether a case of penetrative sexual assault, as defined in Section 3 of the POCSO Act has been made out by the prosecution. The learned counsel for the appellant has not disputed the proposition that the alleged conduct of the accused in grabbing the breast of the victim girl would constitute an offence punishable under Section 7 of the Act. His contention, on the other hand, was that the alleged conduct of the accused in pricking at the lower private part of the victim girl, even if true, would not amount to penetrative sexual assault as defined in Section 3 of the POCSO Act. The stand of the learned Public Prosecutor on this point is that the evidence tendered by the victim girl would indicate that the accused has inserted his finger into the vagina of the victim girl and therefore, a case of penetrative sexual assault as defined in Section 3(b) of the POCSO Act has been made out. Section 3 of the POCSO Act reads thus:
"3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if-Crl.Appeal No.585 of 2018 12
(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 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."
The relevant portion of the deposition of the victim girl reads thus:
" മത ഒഴ കന ഭ ഗത ക വരൽ ഇട കത .4-5 പ വശ കത ."
It is seen that the aforesaid was her version in the First Information Statement given by her on the immediate next day of the occurrence. It is placing reliance on the expression 'കത ' used by the victim girl in her evidence that the learned Public Prosecutor has asserted that the prosecution has made out a case under Section 3(b) of the POCSO Act. The argument advanced by the learned counsel for the appellant in this regard is that to make out a case under Section 3(b), the prosecution should have Crl.Appeal No.585 of 2018 13 established that the accused had inserted his finger into the vagina of the victim girl. It was argued by the learned counsel that the expression 'കത ' used by the victim girl cannot be understood to mean that the victim girl has stated that the accused has inserted his finger into her vagina, for, according to the learned counsel, in order to attract Section 3(b), the accused should have placed, fitted or pushed his finger into her vagina. I find force in the argument advanced by the learned counsel for the appellant. In order to attract the offence under Section 3(b) of the POCSO Act, the prosecution should have a definite case that the accused had inserted his finger into the vagina of the victim girl. Cambridge Dictionary defines the word 'insert' to mean 'to put something inside something else'. A case of insertion of a finger cannot, therefore, be inferred from the word 'കത ' used by the victim girl. I take this view since the medical evidence available in the case probabilises the said view. The medical examination was conducted on the succeeding day of the occurrence. In Ext.P9 report of the medical examination, no external injuries were noted in the body of the victim girl. In terms Crl.Appeal No.585 of 2018 14 of Ext.P9 medical report, the private parts of the victim girl were found normal. Though it is stated in Ext.P9 that the hymen of the victim girl was found torn, PW8, the doctor has clarified that the tear was not a fresh one. I am fortified in this view also for the reason that the POCSO Act categorises sexual offences under different heads such as, penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated sexual assault, sexual harassment, use of child for pornographic purposes, abetment or attempt to commit sexual assault etc. and different punishments are provided for different offences, having regard to its gravity. In the light of the aforesaid scheme of the statute, according to me, it is the duty of the court to carefully examine in every case as to the category under which the offence alleged would fall and award appropriate punishment to the accused, or otherwise, there would not be any consistency in the sentencing pattern vis-a-vis the gravity of the offence.
13. Though the case set out by the prosecution that the accused has inserted his finger into the vagina of the victim girl is found unacceptable, it must be held that the accused had Crl.Appeal No.585 of 2018 15 meddled with the lower private part of the victim girl using his finger with sexual intent, which is an offence punishable under Section 8 of the POCSO Act. Section 8 of the POCSO Act provides for a punishment of imprisonment of either description for a term, which shall not be less than three years, but which may extend to five years, and shall also be liable to fine. Having regard to the totality of the facts and circumstances, especially the fact that the accused is now nearing to the age of 70 years, I am of the view that rigorous imprisonment for a term of three years with the same amount of fine would be the appropriate punishment to be imposed on the accused.
In the result, the appeal is allowed in part and the conviction of the appellant is altered to one under Section 7 of the POCSO Act and he is imposed a sentence of imprisonment of three years and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo simple imprisonment for another term of three months. The conviction of the appellant under Section 451 of the Indian Penal Code and the sentence imposed on him under the said provision will stand. It is ordered that the Crl.Appeal No.585 of 2018 16 substantive sentences imposed on the appellant will run concurrently. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR, JUDGE PV