Kerala High Court
Martin Uravu vs State Of Kerala on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal Nos. 456 /2019 & 253/2022
1
2024:KER:78712
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
CRL.A NO. 456 OF 2019
CRIME NO.3825/2015 OF ALUVA EAST POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 12.09.2018 IN SC NO.207 OF
2016 OF ADDITIONAL DISTRICT & SESSIONS COURT (VIOLENCE
AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT/ACCUSED:
XXX,
AGED 32 YEARS
XXX
BY ADVS.
P.MOHAMED SABAH
SAIPOOJA(K/001130/2016)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM
REPRESENTED BY CI OFPOLICE ALUVA POLICE STATION
BY SMT. AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.10.2024, ALONG WITH CRL.A.253/2022, THE COURT ON
23.10.2024 DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 456 /2019 & 253/2022
2
2024:KER:78712
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
CRL.A NO. 253 OF 2022
CRIME NO.3825/2015 OF ALUVA EAST POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 12.09.2018 IN SC NO.207 OF
2016 OF ADDITIONAL DISTRICT & SESSIONS COURT (VIOLENCE
AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT/ACCUSED:
XXX
AGED 39 YEARS
XXX, PIN - 680010
BY ADVS.
C.Y.VINOD KUMAR
C.ANILKUMAR (KALLESSERIL)
P.M.MANASH
P.B.MALINI RAO
AADIL NAZARUDEEN
NADEEM AHAMED RESHEED
RESPONDENT/STATE & IO :
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 CIRCLE INSPECTOR OF POLICE, ALUVA EAST POLICE
STATION, SUB JAIL ROAD, ALUVA, ERNAKULAM-683101
BY SMT. AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.10.2024, ALONG WITH CRL.A.456/2019, THE COURT ON
23.10.2024 DELIVERED THE FOLLOWING:
Crl. Appeal Nos. 456 /2019 & 253/2022
3
2024:KER:78712
JUDGMENT
Dated this the 23rd day of October, 2024 C. Pratheep Kumar, J Both these appeals were filed by the very same accused involved in SC. No.207 of 2016 on the file of Additional District and Sessions Judge, Ernakulam, against the judgment dated 12.9.2018 convicting him under Section 376 (2) (f), (i) and (n) of IPC coupled with Section 5(l) and (n) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and sentencing, inter alia, for imprisonment for life and fine.
2. Crl. Appeal No.456 of 2019 was filed as a jail appeal, while Crl. Appeal. No.253 of 2022 was filed through his lawyer. Since both these appeals were filed against the very same judgment, both the appeals were taken up together. At the time of argument, the learned counsel, who was representing the appellant in Crl. Appeal No.456 of 2019, submitted that he is relinquishing engagement for the appellant in that case. Therefore, the learned counsel Smt. Saipooja was heard on behalf of the appellant in Crl. Appeal No.253 of 2022.
3. The appellant is none other than the biological father of a 13 year old minor girl child. The prosecution case is that he had repeatedly Crl. Appeal Nos. 456 /2019 & 253/2022 4 2024:KER:78712 committed rape on his minor daughter, while residing in house No.VII/605 in Kadungallur Grama Panchayat and also in another building No.VII/162 of the very same Panchayat, on several days within a period of two years prior to 9.11.2015.
4. The evidence in this case consists of the oral testimonies of PWs 1 to 17 and documentary evidence Exhibits P1 to P13. No evidence was adduced by the accused. After evaluating the available evidence, the trial court found the accused guilty of the offences both under the provision of the IPC and also under the POCSO Act. Aggrieved by the above judgment of conviction and sentence, the accused preferred these appeals raising various contentions.
5. Now, the points that arise for consideration are the following:
1. Whether the victim was a child as defined under the POCSO Act, as on the date of commission of the offence?
2. Whether the prosecution has succeeded in proving that the accused being the father of the minor child repeatedly committed rape on her?
3. Whether the prosecution has succeeded in proving that the accused being the father of the minor child repeatedly Crl. Appeal Nos. 456 /2019 & 253/2022 5 2024:KER:78712 committed penetrative sexual assault on her, as alleged?
4. Whether the impugned judgment of conviction and sentence calls for any interference in the light of the grounds raised in the appeal?
6. Heard both sides.
7. Points 2 to 4: When the victim was examined as PW1, she deposed that she was aged 13 and studying in 5th standard in CKC School at Ponnurunni. According to her, prior to the same, she was studying in Government LP School Aluva and during the said period, they were residing in a rented house. She had shifted to the school at Ponnurunni while she was studying in 4th standard. Now her parents are in Bengal. She would swear that while she was staying in the rented house at Aluva, her father used to sexually abuse her. In the house, in addition to her parents, her younger sister, now aged 10 years alone was residing. Both parents were working in a shop and mother used to return only at 5.30 p.m. and father used to return only at about 7 p.m. They used to sleep in the same room. During the night, after her mother sleeps, the accused used to approach her, remove his dress, undress her, lie on her body and press on her breast and other parts of the body. She further deposed that he used to insert his finger into her genitalia Crl. Appeal Nos. 456 /2019 & 253/2022 6 2024:KER:78712 and also penetrates his genital organ into her genitalia. He used to commit such acts since she was studying in the 2nd standard and last such incident was in November, 2015. Father told her not to disclose about the same to others and therefore, she did not disclose the same to others. Finally, when she was questioned by her class teacher, she disclosed about the incident to the class teacher. Thereafter, the school authorities informed the matter to the Child- line workers and finally police came and she had given Ext.P1, FI statement to the police. She admitted her signature in Exhibit P1.
8. PW2 was the class teacher of PW1. She would swear that she had noticed behavioral changes on PW1 and on questioning her as well as her younger sister studying in the same school, she came to know about the incident. She informed the matter to the Headmistress, namely PW3. PW3, the Headmistress also deposed that PW2 informed about the incident to her and thereafter she had informed the matter to the Child-line workers. Subsequently, the police came and recorded the statement of PW1. PW4 was the Child-line Counselor, in whose presence Exhibit P1 FI statement of the victim was recorded.
9. PW5 was the owner of the house, in which the accused along with his family including the victim were residing for about five months Crl. Appeal Nos. 456 /2019 & 253/2022 7 2024:KER:78712 during the period 2015. He is also an attestor to Exhibit P3 scene mahazar. PW8 was the Assistant Professor of Medical College Hospital, Ernakulam, who had examined PW1 and issued Exhibit P5 certificate. According to her, examination revealed that the hymen was absent and there was evidence of vaginal penetration.
10. PW10 was the WCPO in Special Juvenile Police Unit, Ernakulam Rural, who had recorded the FI statement of PW1. PW17 was the Sub Inspector, Aluva, who had registered Exhibit P13 FIR. PW16 was the Circle Inspector, Aluva, who had conducted investigation of this case and laid the final report.
11. During the cross examination of PW1, an attempt was made to show that she being a native of Bengal, she did not know Malayalam and as such she was not aware of the contents of Exhibit P1 FI statement when she affixed her signature on it. It is true that during the cross examination, she admitted that at the time of giving the above statement, she did not know how to write and read Malayalam. However, she admits that while she was studying in the Government LP School, Aluwa, she studied Malayalam and written her examination in Malayalam. There is no evidence to show that she did not know how to speak or understand Malayalam. Moreover, the Crl. Appeal Nos. 456 /2019 & 253/2022 8 2024:KER:78712 evidence adduced by PW1 before the court is in tune with the averments in Exhibit P1, FI statement, in almost all respects. Therefore, there is no merit in the argument that she signed in Exhibit P1 FI statement without understanding its contents.
12. It was argued by the learned counsel for the appellant that at the time of examination of PW1, there was an attempt for embellishment and as such the evidence of PW1 is not reliable. It was argued that, at first PW1 has not stated that the accused has inserted his penis into her genitalia and that it was stated only to a leading question. It is true that during the chief examination of the victim, at first she deposed that the accused inserted his finger into her genitalia. It was only when a question was asked as to whether the accused inserted anything else other than his finger, into her genitalia, she replied that the accused inserted his genital organ also into her genitalia. During the chief examination, she deposed about everything else in tune with the averments in Exhibit P1 FI statement.
13. Considering the fact that PW1 is the daughter of the accused, the trauma and embarrassment faced by her while giving evidence, can be imagined. Even then, to the subsequent question she replied that the accused inserted his genital organ also into her genitalia. In fact it was not a leading Crl. Appeal Nos. 456 /2019 & 253/2022 9 2024:KER:78712 question, as argued by the learned counsel. In the light of the above answer given by PW1 subsequently, there is no material omission or contradiction in her evidence. Though she was cross-examined in detail, nothing material could be brought out to discredit her testimony.
14. Similarly, the evidence of PWs 2 to 4 is also quite genuine, natural and trustworthy. During the cross-examination of PWs2 to 4 also, nothing material could be brought out to discredit their testimonies. Therefore, from the evidence of PWs 1 to 4, it is evident that the accused, who is the biological father of the victim committed rape on her on several days while she was studying in the Government LP School at Aluva and the last such incident was in November, 2015. The evidence of PW8, the Assistant Professor, Government Medical College Hospital, Ernakulam and Exhibit P5 certificate issued by her also substantiates the evidence of PW1 that the accused committed rape on her.
15. It was argued by the learned counsel for the appellant that PW8 has not noticed any tear in the hymen of PW1 and that absence of tear is an indication that there was no penetrative sexual assault. On the other hand, Smt. Ambika Devi, the learned Special Public Prosecutor would argue that absence of hymen itself is indication of vaginal penetration. According to Crl. Appeal Nos. 456 /2019 & 253/2022 10 2024:KER:78712 PW8, on examination, she found that hymen was absent in the victim. At the time of evidence, PW8 in clear terms deposed that absence of hymen in this case is evidence of penetrative sexual assault. Generally speaking, absence of hymen alone may not be sufficient to prove sexual assault. However, in this case there is the evidence of PWs1 to 4 to prove the charge against the accused and absence of hymen substantiates their evidence. Therefore, we do not find any merits in the above argument.
16. Relying upon the decision of a Single Bench of this Court in Mohanan v. State of Kerala [2011 (3) KHC 680], the learned counsel would argue that in order to prove the scene of occurrence, mere marking of the scene mahazar is not enough and the same is to be proved by oral evidence of the victim. However, in this case, the victim has given evidence when she was examined before the court, that she was subjected to sexual assault at her own residence. Therefore, the scene mahazar prepared after visiting those residences is sufficient to prove the place of occurrence in this case. Moreover, at the time of evidence the accused has not challenged the place of occurrence.
17. In the light of the above discussions, it can be seen that the trial court was perfectly justified in finding the accused guilty of the offence Crl. Appeal Nos. 456 /2019 & 253/2022 11 2024:KER:78712 punishable under Section 376 (2)(f) and (n) of IPC. The finding on Section 376(2)(i) will depend upon the validity of Exhibit P2 certificate. The punishment provided for the offence under Section 376 (2)(f) and (n) of IPC is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and shall also be liable to fine.
18. Point No.1: The learned counsel for the appellant would argue that in this case, there is no reliable evidence to prove that the victim, namely PW1 was a minor as on the date of commission of the alleged offence. On the other hand, the learned Special Public Prosecutor would argue that in the light of the evidence of PW1 as well as the evidence PW3 and Exhibit P2 certificate issued by PW3, it can be safely concluded that the victim was a minor as on the date of commission of the offence. Further according to her, the evidence of PW1 regarding her age was not challenged during her cross- examination.
19. It is true that when the victim was examined as PW1, she claimed that her date of birth is on 11.10.2003. It is also true that this claim of PW1 was not challenged during cross examination. However, as argued by the learned counsel for the appellant, being a child, PW1 is not competent to Crl. Appeal Nos. 456 /2019 & 253/2022 12 2024:KER:78712 swear about her date of birth. In this case, the victim's mother was not examined as a witness. As per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age of the victim is to be proved firstly on the basis of the school admission register and thereafter on the basis of the birth certificate and only in its absence ossification test result could be relied upon. In the instant case, Exhibit P2 is neither the School Admission Register or the birth certificate, but only a certificate issued by the Headmistress of the school, in which PW1 was studying.
20. Relying upon the decision of a Division Bench of this Court in Sasi v. State of Kerala [2019 (3) KLT 561] the learned counsel for the appellant would argue that Exhibit P2 is only a certificate issued by the Headmistress of the school, in which PW1 was studying, during the course of investigation and as such this certificate is hit by Section 162 of Cr.P.C. and as such it cannot be relied upon for proving the age of the victim.
21. In the decision in Sasi (supra) the Division Bench held in paragraph 8 that:
"8. The prosecution contended that the victim girl was under
12 years of age at the time of commission of the crime on her. The learned counsel for the appellant submitted that the prosecution failed to prove the age of the girl to be 12 years or below at the time Crl. Appeal Nos. 456 /2019 & 253/2022 13 2024:KER:78712 of the alleged incidents. The prosecution did not produce the extract of the birth register or the extract of the school admission register or any other similar document to prove the age of the victim. What was produced and exhibited was a certificate issued by PW5 who was the headmistress of the school where the victim was a pupil at the time of investigation of the case. The certificate was marked as Ext P2.
PW5 prepared and signed Ext P2 and gave it to the investigating officer. The same can be treated only as a statement of PW5 given to the investigating officer under Sec.161 of Cr.P.C, although signed. Ext P2 is therefore hit by Sec.162 of Cr.P.C and is not admissible in evidence. It is liable to be discarded."
22. On the other hand, the learned Special Public Prosecutor, relying upon the decision in Maju @ Manu v. State of Kerala [2020 (3) KHC 22] would argue that the subsequent Bench has distinguished the earlier Division Bench decision and as such Exhibit P2 can be relied on.
23. The learned Single Bench in Maju @ Manu (supra) held that the certificate issued by the Principal of the school where the victim girl has pursued her Vocational Higher Secondary Course, was sufficient to conclusively prove the age of the victim.
24. However, in the decision in Shaju @ Shaju v. State of Kerala and Another [2022 (5) KHC 663], another Division Bench of this Court has refused to accept a certificate issued by the Headmistress by holding in Crl. Appeal Nos. 456 /2019 & 253/2022 14 2024:KER:78712 paragraph 13 that:
"13. The date of birth proof produced unfortunately does not stand legal scrutiny since Ext. P6 produced by the Head Mistress (PW10) of the School in which the victim was studying, is just a certificate and not the extract of the register. Rajan, Alex and Raghavan ( all supra) held that but for a certificate from school first attended as provided for in Jarnail Singh v. State of Haryana [(2013) 7 SCC 263] no other certificate can be accepted for the purpose of proving date of birth; which has to be in accordance with the Evidence Act. The register maintained in the school is not a public document and the certificate issued by the Headmistress cannot be considered to be a secondary evidence. We hence find that there is no proof of age as established by the prosecution."
25. In the decision in Yuvaprakash P. v. State represented by Inspector of Police [AIR 2023 SC 3525], after analysing various provisions under the POCSO Act and the Juvenile Justice Act, the Apex Court held in paragraph 13 and 14 as follows:
"13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act consideration is that the concerned court has to determine the age by considering the following documents:
Crl. Appeal Nos. 456 /2019 & 253/2022 15 2024:KER:78712 "(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".
14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have Crl. Appeal Nos. 456 /2019 & 253/2022 16 2024:KER:78712 been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence."
Accordingly, in the above case, the Hon'ble Apex Court has refused to act upon the transfer certificate containing the date of birth of the victim to prove the age.
26. As per Section 42 of the POCSO Act, when the act or omission constitutes an offence punishable under the said Act and also under the sections of IPC referred therein, the offender can be punished only for the offence for which greater punishment is provided. The maximum punishment provided for Section 376 (2) (f) and (n) of IPC and Section 5(l) and (n) read with Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 are imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and fine.
27. In answer to points 2 to 4 we have already found that the prosecution has succeeded in proving the charges under Section 376 (2)(f) Crl. Appeal Nos. 456 /2019 & 253/2022 17 2024:KER:78712 and (n) of IPC, which provides for a punishment of rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and fine. Since the trial court has ordered that the substantive sentences shall run concurrently, the finding on section 376(2)(i) also has no relevance. In the above circumstance, for the disposal of this case, there is no necessity to examine whether Exhibit P2 certificate issued by PW3 can be used for proving the age of the victim. In this case we are leaving open the above question to be decided in an appropriate case. Point No.1 answered as above.
28. In the light of the above discussions, the conviction of the accused under Section 376 (2)(f) and (n) of IPC is liable to be confirmed.
29. The learned counsel for the accused prayed for taking a lenient view in favour of the accused on the ground that convicting him for life, which means imprisonment till the end of his natural life is too harsh when compared to the offence alleged against him. Relying upon the decision of the Hon'ble Supreme Court in Mohammed Firoz v. State of Madhya Pradesh [2022 (7) SCC 443] and Indrakunwar v. State of Chattisgarh [AIR 2023 SC 5221], the learned counsel would argue that even in cases Crl. Appeal Nos. 456 /2019 & 253/2022 18 2024:KER:78712 where life sentence is provided, this court is competent to impose a term sentence.
30. She has also relied upon the decision of Rajasthan High Court in Chhagan Lal v. State of Rajasthan [2019 KHC 4340], in support of her above argument. However, in the above case, sentence of imprisonment was reduced to 10 years on the finding that the sexual relationship between the appellant and the victim was a consensual one. Therefore, the above decision cannot be applied in this case.
31. Now it is well settled that the Constitutional Courts have power to award fixed term even in cases in which imprisonment for life extending to the remainder of the natural life of the accused is provided. The Hon'ble Supreme Court in Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252, held that Constitutional Courts are empowered to impose fixed term of sentence, even in cases where life sentence is imposed.
32. In the decision in Raju v. State of Kerala, (Crl.A.No.233 of 2022 decided on 12.06.2023) a Division Bench of this court (in which one of us was a party) also held that it is now settled that the Constitutional courts are empowered to modify the punishment within the punishment provided for Crl. Appeal Nos. 456 /2019 & 253/2022 19 2024:KER:78712 in the IPC, for specified offences. Those decisions were followed by this court in xxx Vs. State of Kerala (Crl.A. No. 632 of 2021 decided on 6.8.2024) also.
The accused is a coolie hailing from Bengal. At the time of commission of offence he was 32 years old and now he is 41. In the above circumstances, considering the entire facts, we hold that a sentence of rigorous imprisonment for a period of 25 years will be a reasonable sentence in this case under Sections 376 (2)(f) and 376 (2)(n) IPC, in addition to the fine imposed by the trial court.
Sd/-
P.B. SURESH KUMAR, JUDGE Sd/-
C. PRATHEEP KUMAR, JUDGE sou.