Kerala High Court
Suresh Kumar @ Koyan vs State Of Kerala on 18 February, 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
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA,
1941
CRL.A.No.620 OF 2019
AGAINST THE JUDGMENT IN SC 823/2013 DATED 21-12-2017 OF
FIRST ADDITIONAL SESSIONS COURT(SPECIAL COURT), PALAKKAD
CRIME NO.924/2013 OF Kasaba Police Station, Palakkad
APPELLANT/ACCUSED :
SURESH KUMAR @ KOYAN,
S/O. KOYAN, S/O. GANGADARAN,
AGED 43 YEARS, OKARAPPALLAM,
THENARI, ELAPPULLY,
PALAKKAD DISTRICT.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT/COMPLAINANT :
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.AMBIKA DEVI S, SPL.GP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18-02-2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.620 OF 2019
2
Crl.A.No.620 of 2019
----------------------------------------
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.823 of 2013 on the files of the Special Court for the trial of offences punishable under the Protection of Children from Sexual Offences Act, Palakkad.
2. The appellant is the sole accused in the case. The accusation against the accused is that the accused who is aged 37 years and residing in the neighbourhood of the residence of the victim girl aged 13 years has trespassed into her house after consuming liquor on 23.05.2013 at a time when her parents and siblings were not there, and committed rape and penetrative sexual assault on her and thereby committed offences punishable under Sections 450, 354, 376 and 506(i) of the Indian Penal Code (IPC) and Section 3 read with Section 4, Section 7 read with Section 8 and Sections 9(l) and 9(n) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (Act).
3. On the accused pleading not guilty of the charges framed against him, the prosecution examined 13 witnesses as CRL.A.No.620 OF 2019 3 PW1 to PW13 and proved 16 documents as Ext.P1 to P16. The witnesses examined on the side of the prosecution have identified MO1 to MO7 material objects as well. The accused was thereupon questioned by the Court under Section 313 of the Code of Criminal Procedure(Code) as regards the incriminating evidence brought out by the prosecution and the accused denied the same and maintained that he is innocent. Since the trial court did not consider 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 has not adduced any evidence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl. PW1 has proved Ext.P1 First Information Statement given by her. PW2 is the Child Line team member to whom PW1 has reported the occurrence which is the subject matter of the case. PW3 is a neighbour of the victim girl. PW4 is also a neighbour and relative of the victim girl. PW5 is the mother of PW1. PW6 is the doctor who has examined the victim girl on a reference by the Police. She has proved Ext.P2 report of examination. PW7 is an attestor to Ext.P3 scene mahazar. PW8 is an attestor to Ext.P4 seizure mahazar in respect of MO5 to MO7. PW9 is the Headmaster of the school where the victim was pursuing her studies. PW9 has proved Ext.P5 certificate issued by him relating to the date of birth of the victim girl. PW10 is the CRL.A.No.620 OF 2019 4 Village Officer who prepared Ext.P6 scene plan. PW11 is the Secretary of the Grama Panchayath concerned. He has proved Ext.P7 certificate of ownership of the house of the accused. PW12 is the Police Officer who has registered Ext.P1(a) First Information Report. PW13 is the Police Officer who has conducted the investigation in the case. PW13 has proved Ext.P9 arrest memo, Ext.P10 inspection memo, Ext.P11 certificate of examination of potency of the accused, Ext.P12 report to add the name and address of the accused, Ext.P13 property list, Ext.P14 copy of the letter forwarded to the Forensic Science Laboratory, Ext.P15 report of the Forensic Science Laboratory and Ext.P16 birth certificate of the victim girl.
5. On an appraisal of the materials on record, the Court found the accused guilty of offences punishable under Sections 450, 376 and 506(i) of IPC and convicted him. Upon conviction, the accused was sentenced to undergo rigorous imprisonment for a period for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 450 IPC and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2 lakhs and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years for the offence punishable under CRL.A.No.620 OF 2019 5 Section 376 IPC. The accused was also sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 506(i) of IPC. No separate sentence was awarded under the Act in the light of Section 42 therein. 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 learned counsel for the appellant pointed out that though the case of the victim girl in Ext P1 First Information Statement is that the occurrence took place on 23.5.2013, her version as regards the date of occurrence in her evidence was that the occurrence took place during April 2013. It was also pointed out by the learned counsel for the appellant that the version of the victim girl as regards the date on which the first information statement was lodged is that the same was lodged on 19.6.2013 which is not the case of the prosecution. It was also pointed out by the learned counsel that the evidence tendered by PW6, the doctor who has examined the victim girl does not sync with the evidence tendered by PW1. It was pointed out by the learned counsel that PW6 has clarified that the hymen of the victim girl was intact at the time of examination and that she has not found any evidence of vaginal penetration. It was also pointed out by the learned CRL.A.No.620 OF 2019 6 counsel that PW6 has clarified that she has not found any injury on the body of the victim girl at the time of examination. The learned counsel for the appellant has also brought to my notice the statement made by the victim girl to the Doctor when she was brought before her for examination as deposed by the Doctor. It was pointed out that the version of the victim girl to the Doctor was that on the relevant day, the accused had trespassed into her house, assaulted her and took her forcibly to the bedroom and while so her head hit on the edge of the cot and she became unconscious on account of the same. It was pointed out that her version was that when she became conscious, she was found lying naked on the bed with a sheet covered on her. According to the learned counsel, if the said version is accepted as correct, there is no evidence to prove that the accused had committed rape and penetrative sexual assault on her. According to the learned counsel, if the evidence of the victim girl is analysed in the light of the evidence of PW6 doctor, it cannot be said to be one which is reliable, trustworthy and sterling so as to convict the accused in a case of this nature where there is no other evidence to prove the guilt of the accused.
8. Per contra, the learned Public Prosecutor submitted that if the evidence tendered by the victim girl is analysed in the social background in which she is residing, there is absolutely no CRL.A.No.620 OF 2019 7 reason to doubt the genuineness of the same and if that be so, the court below cannot be found fault with for having convicted the accused placing reliance on the evidence of the victim girl.
9. I have considered the contentions raised by the learned counsel on either side. PW1 has stated that on the date of occurrence, at about 11.00 a.m. when the victim was having her food while watching T.V., the accused came to her house and asked about her parents. It is stated by her that when she told him that her parents have gone for work, the accused enquired about her siblings. It is stated by her that when she told him that her siblings had gone to her uncle's house, the accused immediately came inside the house, latched the door from inside. It is stated by her that though she had cried aloud and called PW3 and PW4 who are her relatives and neighbours, the accused caught hold of her throat, closed her mouth and pushed her to the cot. It is stated by her that in that process her head hit against the edge of the cot. It is stated by her that the accused thereafter laid over her after removing her clothes. It is also stated by her that thereupon he inserted his genital organ into her vagina. It is stated by her that when he left, he told her that if she informs the matter to anyone, he will kill her parents and siblings. It is also stated by her that she was lying down in the bed for some time as she was shocked by the conduct of the accused. It is stated by her that after few days, CRL.A.No.620 OF 2019 8 when Child Line workers came to her school and requested the children to divulge the instances of this nature, she informed them about the occurrence. It is stated by her that the Child Line workers then told her to inform her parents about the same. It is stated by her that accordingly she informed her parents and also PW3 and PW4 about the same. As instructed by the Child Line workers, later she has gone to the Police and given Ext.P1 First Information Statement. PW2 is the Child Line worker to whom the victim girl has divulged the occurrence. PW2 has stated that when PW2 visited the school where the victim girl is pursuing studies, the victim girl divulged the occurrence to her. PW3 and PW4 have also stated that the victim girl has divulged the occurrence to them, after divulging the occurrence to PW2. PW5, the mother of the victim girl has also stated that she was also informed by the victim girl about the occurrence. PW6 is the doctor who deposed that on a reference from the Police, she had examined the victim girl and issued Ext.P2 certificate. If what is stated by PW1 is believable, there cannot be any doubt that the same is sufficient to sustain the conviction of the accused. The question is as to whether the evidence tendered by PW1 is reliable and trustworthy. If the evidence of PW1 is examined in the social background in which she is brought up, I do not find any reason why she should inform the Child Line worker an occurrence of this nature, if there is CRL.A.No.620 OF 2019 9 in fact no occurrence as alleged. The accused is not attributing any motive on the victim girl to implicate him in such a serious offence. Further, nothing is brought out in the cross-examination for the court to entertain any suspicion as to the reliability of the evidence tendered by the victim girl.
10. I shall now refer to the contentions raised by the learned counsel for the accused. True, the prosecution case is that the accused committed the overt act on 23.05.2013 and the version of PW1 in her evidence is that the occurrence was some time during April 2013. There is no requirement under law that the victim girl should tell the court the exact date on which the occurrence took place. Similarly, there is a mistake as regards the date on which the first information statement was lodged. Merely for the reason that there is a mistake as regards the date of lodging of the First Information Statement in the evidence tendered by the victim girl, her evidence is not liable to be rejected if the same is otherwise found reliable and trustworthy. I take this view also for the reason that victim is a girl aged 13 years.
11. The version of the victim girl as regards the occurrence made to PW6 doctor, as stated by PW6 in the report of medical examination reads thus:;
"Koyamamman, who is claimed to be her uncle, came to my house on 23.05.2013 at 11.00 a.m. when nobody CRL.A.No.620 OF 2019 10 was at home, he was drunk, he caught my throat and hit me on floor and I became unconscious. When I regained consciousness, I was lying naked on bed, covered with bed sheet, I had pain in lower abdomen and site of urination."
The argument is that if what is stated to have been told by the victim girl to the doctor is correct, the evidence tendered by the victim as regards the acts of rape cannot be believed, for she could not have said anything that has happened after she became unconscious and before she gained consciousness. I do not find any substance in the said argument. If the evidence tendered by the victim girl is analysed meticulously, according to me, there is no scope for raising any such argument. The victim girl has stated in her evidence that while the accused was taking her to the cot by force, her head hit on the edge of the cot. It is thereafter she has narrated the occurrence. Merely for the reason that she has not stated about the dizziness she experienced then for some time while giving evidence, the evidence tendered by the witness would not become unreliable. It is all the more so since the evidence tendered by the victim girl as regards the occurrence was so convincing. It is seen that while giving evidence, the victim became so emotional and she was weeping while explaining the overt acts.
12. Coming to the evidence tendered by the doctor, merely for the reason that the doctor has reported that the hymen CRL.A.No.620 OF 2019 11 of the victim girl was found intact and that the doctor did not find any evidence of vaginal penetration, it cannot be said that the prosecution has not proved the overt act of rape and penetrative sexual assault alleged against the accused. After the Criminal Law Amendment Act, 2013, penetration of the genital organ of the accused to any extent is sufficient to constitute rape. Similar is the position as regards penetrative sexual assault in terms of the Act. In other words, even in a case where there is absence of medical evidence indicating penetration, the same does not absolve the accused from the guilt. In an identical case, a similar view has been taken by the High Court of Delhi in Rais v. State (NCT of Delhi), (2020) SCC Online Delhi 2). Paragraph 25 of the judgment in the said case reads thus :
"25. The learned counsel had referred to the MLC in support of his contention that accused had not committed any penetrative assault. He stated that in the MLC it was recorded that the balloon seller had "tried to rape her". He submitted that thus the allegation was only regarding attempt to commit the offence of rape and not any penetrative assault. He pointed out that the MLC indicated that the hymen was intact and this was inconsistent with the allegation of penetrative assault. This Court finds little merit in the aforesaid contention. Dr Rashmi Verma (who deposed as PW 10) had explained that it is not necessary that there would be a widespread damage to the victim's labia majora, labia minora, fourchette and hymen, if there is a penetrative assault. She had clarified that such damage can occur only if there is a complete penetrative assault. Therefore, the CRL.A.No.620 OF 2019 12 factum that the victim's hymen was intact is not inconsistent with her allegation of penetrative assault."
In the said view of the matter, I do not find any merit in the appeal, and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR
rkj JUDGE