Kerala High Court
Kunju vs State Of Kerala on 22 June, 2020
Equivalent citations: AIRONLINE 2020 KER 1232
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 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942
CRL.A.No.476 OF 2019
AGAINST THE JUDGMENT IN SC 313/2014 DATED 06-09-2018 OF FIRST
ADDITIONAL SESSIONS COURT, PALAKKAD
APPELLANT/ACCUSED:
KUNJU,
AGED 56 YEARS,
S/O PAZHANI, NOLLIKKOD HOUSE,
CHITHALI, KUZHALMANNAM, PALAKKAD.
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
SMT. PUSHPALATHA M.K SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2020,
THE COURT ON 22-06-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.476 of 2019 2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.476 of 2019
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Dated this the 22nd day of June, 2020
JUDGMENT
The sole accused in S.C.No.313 of 2014 on the files of the First Additional Sessions Court, Palakkad has come up in this appeal challenging his conviction and sentence in the said case.
2. The victim in the case is a girl aged eight years. She is none other than the daughter of the accused. The accusation against the accused is that while the accused was residing with the victim girl prior to 05.05.2013, he committed sexual assault on her by lying down over her and also by causing her to touch his private parts with sexual intent, and thereby committed the offences punishable under Sections 9(m) and 9(n) read with Section 10 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 11 witnesses as PWs.1 to 11 and proved 13 Crl.Appeal No.476 of 2019 3 documents as Exts.P1 to P13. 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.
4. Among the witnesses examined, PW1 is the elder sister of the mother of the victim girl. PW1 has proved Ext.P1 complaint lodged by her which was treated as the First Information Statement in the case. PW2 is the victim girl. PW3 is the witness to Ext.P2 scene mahazar. PW4 is the Principal of the school where the victim girl was pursuing her studies. PW4 proved Ext.P3 certificate concerning the date of birth of the victim girl. PW5 is the Secretary of the local authority who issued Ext.P4 ownership certificate of the house of the victim girl. PW6 is the village official who prepared Ext.P5 site plan. PW7 is the investigating officer in the case. PW7 has proved Exts.P6 and P7 reports. PW8 is the police official who registered Ext.P8 First Information Report. PW8 has also proved Ext.P9 arrest memo, Ext.P10 inspection memo and Ext.P11 arrest intimation. PW9 is the Police official who recorded the statement of the victim girl. PW10 is Crl.Appeal No.476 of 2019 4 the doctor who examined the accused and issued Ext.P12 potency certificate. PW11 is the doctor who examined the victim girl and issued Ext.P13 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 Sections 9(m) and 9(n) read with Section 10 of the POCSO Act and accordingly, convicted the accused and sentenced him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 9(m) read with Section 10 of the POCSO Act. Similarly, the accused was sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for six more months for the offence punishable under Section 9(n) read with Section 10 of the POCSO Act. The substantive sentences imposed on the accused were ordered to run concurrently. The accused is aggrieved by his conviction and sentence. Hence this appeal.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The point arising for consideration is as to whether the Crl.Appeal No.476 of 2019 5 prosecution has established the guilt of the accused under Sections 9(m) and 9(n) read with Section 10 of the POCSO Act.
8. The learned counsel for the appellant pointed out that the conviction of the appellant is solely based on the evidence tendered by the victim girl. Referring to the various materials on record, it was contended by the learned counsel that the evidence tendered by the victim girl cannot be said to be credible, reliable and trustworthy to form the sole basis for the conviction of the accused.
9. I am not referring to the various materials relied on by the learned counsel to make the said submission for the present, as I propose to deal with the same elaborately a little while later.
10. Per contra, the learned Public Prosecutor submitted that if the evidence tendered by the victim girl is evaluated in the background of the evidence tendered by PW1, it can be seen that the same is natural, consistent and truthful. It was also contended by the learned Public prosecutor that the evidence of PW1 is corroborated by the evidence tendered by PW11, the doctor who examined the victim girl as well.
11. Before proceeding to consider the contentions advanced by the learned counsel for the parties on either side, it is necessary to refer to a few facts which are not in dispute. As noted, the accused is Crl.Appeal No.476 of 2019 6 the father of the victim girl. The mother of the victim girl died on 05.05.2013. Two days after the ceremonies in connection with the death of the mother of the victim girl, the brother of the mother of the victim girl took the victim girl from the house of her father and entrusted her custody to PW1. The accused thereupon lodged a police complaint against PW1 alleging that she has abducted the victim girl from his custody. He also instituted a proceedings under the Guardian and Wards Act for the custody of the child. In the meanwhile, PW1 has lodged a complaint before the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, for the care and protection of the victim girl. PW1 has also attempted thereafter to obtain Transfer Certificate of the victim girl from the school where she was studying till then, with a view to admit her in a new school near to the house of PW1. She could not get Transfer Certificate from the school as the school authorities maintained the stand that the same will be issued only to the parents of the victim girl. While so, on 01.02.2014, PW1 lodged Ext.P1 complaint to the Superintendent of Police alleging that the victim girl has informed her, while she was giving bath to her, that the accused has committed penetrative sexual assault on her on various occasions. As noted, the case is one that arises on that complaint.
Crl.Appeal No.476 of 2019 7
12. I shall now refer to the evidence in the case. PW1 deposed that the victim girl is the only daughter of her deceased sister. She deposed that the victim girl was only eight years old at the time of the death of her mother. She deposed that after the 16 th day ceremonies in connection with the death of the mother, the victim girl told her that she wants to accompany PW1 as she is afraid of staying alone in that house. She deposed that her brother later dropped the victim girl at her house. She deposed that while the victim girl was staying with her, one day while she was giving bath to the victim girl, she complained of pain in her private parts. She deposed that when she questioned, the victim girl told her that her father used to lie down on her body and he used to touch her genital area with his genital organ. PW2, the victim girl deposed that her mother used to go to her house very often and her father would not permit the victim girl to go with her mother. PW2 deposed that while she was studying in the I st standard, her father used to remain naked and direct her to remove her clothes. She deposed that her father used to place his genital organ into her vagina. She deposed that if she refuses to permit her father to do so, her father used to hit her on her head. She deposed that her father used to put his genital organ into her mouth also and ask her to suck. She deposed that her father used to take her to the Crl.Appeal No.476 of 2019 8 nearby building under construction and give her liquor. She deposed that she has not disclosed these occurrence to anybody on account of fear. She deposed that one day her father lied down on her body. She deposed that one day after the death of her mother, when the brother of her mother came to see her, she told him that she is afraid of staying with her father and requested him to take her along with him. She deposed that she was accordingly taken by her uncle to the house of PW1.
13. At the outset, it must be mentioned that the evidence of PW11 doctor is only to the effect that she found on examination, that the hymen of the victim girl was partially torn. Merely for the reason that the hymen of the victim girl was found partially torn, it cannot be inferred that the same probabilises the sexual assault alleged against the accused, for, tear of hymen may occur on account of various other reasons as well. As noted, the evidence tendered by PW1 also as regards the various instances of sexual assault are only hearsay. As such, the question is as to whether PW2 could be believed to justify the conviction of the accused solely based on her evidence. I shall now make an endeavour to consider that question.
14. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to Crl.Appeal No.476 of 2019 9 who can be regarded as a sterling witness to justify a conviction solely based on the same. 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 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 Crl.Appeal No.476 of 2019 10 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."
It is evident from the aforesaid decision that such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrences and the evidence shall have co-relation with each and everyone of other supporting materials including expert opinions.
15. PW1 admitted in her evidence that there was a discussion on the date of the last ceremony in connection with the death of the mother of the victim girl as to the custody of the victim girl, and the accused was not willing to part with the custody of the victim girl. She admitted in her evidence that after two days, her brother took the victim girl to their house. She admitted in her evidence that she was summoned by the police thereupon on the complaint lodged by the accused alleging abduction of the victim girl. She admitted in her evidence that she went to the police station along with the victim girl and divulged to the Police that the victim girl is being sexually assaulted by the accused and the police, after questioning the victim girl, permitted the victim girl to go with her. She admitted in her evidence that she produced the victim girl before Crl.Appeal No.476 of 2019 11 the Family Court in the proceedings instituted subsequently by the accused for the custody of the victim girl and divulged to the court also that the victim girl is being sexually assaulted by the accused and after interacting with the victim girl, the Family Court permitted the victim girl to go with PW1. PW1 has admitted in her evidence that she lodged a complaint before the Child Welfare Committee alleging that the victim girl is being sexually assaulted by the accused, and seeking appropriate orders for the care and protection of the victim girl and an enquiry has been conducted by the said committee on her complaint. She admitted in her evidence that she complained to the school authorities also that the victim girl is being sexually assaulted by her father, for the purpose of getting the Transfer Certificate. All the aforesaid events took place after PW1 obtained the custody of the victim girl from her father and before lodging of Ext.P1 complaint before the Superintendent of Police, on the basis of which the case was registered. It is very difficult to believe that the Police would not register a crime and make appropriate investigations, if serious instances of sexual abuse on a child in the nature of one attributed against the accused are brought to their notice. Similarly, it is difficult to believe that the Family Court and the Child Welfare Committee would refrain from initiating appropriate proceedings against the Crl.Appeal No.476 of 2019 12 accused, if a case of child abuse in the nature of one attributed against the accused is brought to their notice. The position would be same as regards the Headmaster of the school also and I do not believe that if the headmaster was told about the alleged instances of child abuse, he would not have taken any action. In other words, the case put forward by PW1 that she divulged to the police, the Family Court, the Child Welfare Committee and the Headmaster of the school, the alleged instances of the sexual abuse committed by the accused on the victim girl, cannot be believed. If that be so, it can be inferred that until Ext.P1 complaint was lodged, PW1 had no case that the accused has abused the victim girl sexually.
16. As noted, the victim girl was residing with PW1 after the death of her mother for about nine months before Ext.P1 complaint was lodged. What is stated in the complaint is that while she was giving bath to the victim girl one day, she complained of pain in her private parts and when questioned about the same, the victim girl informed her that her father used to assault her sexually. When PW1 was asked in cross-examination about the date on which the victim girl has raised the said complaint, her answer was to the effect that she does not remember. If as a matter of fact, there was such an occurrence, the same must have certainly happened, immediately Crl.Appeal No.476 of 2019 13 after the child came to reside with PW1, for, complaints of pain would not have been made after nine months. Similarly, if such an information was divulged by the victim girl to PW1, there is no satisfactory explanation for not lodging a complaint for about nine months. To a specific question put to PW1 as to the reason why she did not lodge a complaint immediately thereupon, she answered that she wanted to ascertain the truth before lodging a complaint. Of course, before lodging a complaint on behalf of another, one need to be satisfied about the genuineness of the grievance. But, the said explanation, at any rate, is not sufficient to justify the delay of almost nine months in lodging Ext.P1 complaint. In other words, as found earlier, it can be inferred that until Ext.P1 complaint was lodged, PW1 had no case that the accused has abused the victim girl sexually. I came to this conclusion also for the reason that the specific case put forward by PW1 in Ext.P1 complaint is that the accused has molested the victim girl after the death of her mother when she was alone with the accused. It has come out that when the complaint was lodged, the victim was studying in the 3rd standard, and she was studying in the 2 nd standard when her mother died. The evidence tendered by the victim girl in the court were in respect of the various instances of sexual assault took place allegedly while she was studying in the 1 st standard. Crl.Appeal No.476 of 2019 14 In other words, the case attempted to be projected by PW1 about the occasion for her to know about the sexual assault committed by the accused on the victim girl namely that the victim girl complained of pain in her private parts while she was giving bath to her, cannot also be accepted, for there is a gap of more than two years between the alleged sexual assault and the complaints of pain.
17. It is seen that the victim girl gave evidence in the proceedings almost five years after the death of her mother. She was aged 13 years when she gave evidence in the proceedings. As noted, during the said period of five years, the victim girl was residing with PW1. In cross examination, the victim girl has admitted that she did not inform the police that her father used to insert his genital organ in her mouth and wait until a white substance is coming out of the same. If as a matter of fact, there was such an occurrence, I do not find any reason why the victim girl has not divulged the same to the police, especially since the victim girl has informed the police various other instances of sexual abuse attributed against her father. In the absence of such a case before the police, I do not think that a thirteen year old girl would speak of such things in court without being told by others. Similarly, it was admitted by the victim girl in cross-examination that she did not disclose to the police that her father used to take her to the Crl.Appeal No.476 of 2019 15 nearby building under construction and used to give her liquor and thereafter abuse her. In the absence of such a case before the police, the evidence tendered by the victim girl in this regard also cannot be believed. Similarly, the victim girl has admitted in cross-examination that she did not divulge to the Magistrate who took her statement also that, her father has inserted his genital organ into her mouth and that he has abused her in the nearby house. Though PW1 denied the suggestion that there was a dispute between the accused and the family of his wife as to the properties of his deceased wife, she admitted that the accused caused to issue a lawyers notice claiming share of properties belonged to his wife and the brother of PW1 has caused to send a reply to the said notice. Be that as it may. PW1 has also admitted that she has attempted to obtain Transfer Certificate of the victim girl and she was denied the same on the premise that only the parents of the children would get the same. The evidence tendered by PW1 would indicate that it is at that point of time that Ext.P1 complaint was lodged against the accused. In the aforesaid facts and circumstances, according to me, the evidence tendered by the victim girl would certainly give room for doubt as to the factum of the occurrences set out by the prosecution and it is, therefore, not safe to convict the accused solely based on the same. Needless to say that Crl.Appeal No.476 of 2019 16 the accused is entitled to the benefit of doubt.
In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him by the Court of Session are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE PV/YKB