Kerala High Court
Devadas @ Devan vs State Of Kerala on 13 July, 2020
Equivalent citations: AIRONLINE 2020 KER 980
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 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942
CRL.A.No.1448 OF 2019
AGAINST THE JUDGMENT IN SC 651/2015 OF FIRST ADDITIONAL
SESSIONS COURT, PALAKKAD
CRIME NO.522/2015 OF Chittur Police Station, Palakkad
APPELLANT/ACCUSED:
DEVADAS @ DEVAN,
AGED 43 YEARS, S/O RAGHAVAN,
MANGODE HOUSE, PUDUNAGARAM, PALAKKAD.
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP
SMT. PUSHPALATHA .M K SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-
07-2020, THE COURT ON 13-07-2020 DELIVERED THE FOLLOWING:
Crl.A. No. 1448 of 2019
2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.1448 of 2019
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Dated this the 13th day of July, 2020
JUDGMENT
The sole accused in S.C.No.651 of 2015 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 below 12 years. The accused is the step father of the victim girl. The accusation in the case, in essence, is that the accused has committed rape on the victim girl while they were residing together at their house and thereby committed the offences punishable under Sections 376(2)(i) and 376(2)(j)of the Indian Penal Code (the IPC), Sections 5(m) and 5(n) read with Section 6, Sections 9(l), 9(m) and 9(n) read with Section 10 and Section 11(iii) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the Crl.A. No. 1448 of 2019 3 charges framed against him, the prosecution examined 13 witnesses as PW1 to PW13 and proved through them 12 documents as Exts.P1 to P12 to establish the case. Among the witnesses examined, PW1 is the Co-ordinator of the childline, PW2 is a member of the childline, PW3 is the doctor who examined the victim girl, PW4 is the mother of the victim girl, PW7 is the teacher of the school where the victim girl was pursuing her studies, PW8 is the Headmistress of the said school, PW10 is the victim girl and PW13 is the Investigating Officer. Among the documents proved, Ext.P1 is the report of the medical examination issued by PW3, Ext.P5 is the certificate indicating the date of birth of the victim girl and Ext.P7 is the complaint of the victim girl which is treated as the First Information Statement in the case. Since the trial court did not consider the case to be one fit for acquittal under Section 232 of the Code of Criminal Procedure (the Code), the accused examined the brother of the victim girl as DW1, when called upon to enter on his defence in the case.
4. The court below, on an appraisal of the materials on record, found that the accused is guilty of the offences punishable under Sections 376(2)(f) and 376(2)(i) of the IPC, Sections 5(m) and 5(n) read with Section 6 and Crl.A. No. 1448 of 2019 4 Sections 9(l), 9(m) and 9(n) read with Section 10 of the POCSO Act, convicted him and sentenced. As noted, the accused is aggrieved by his conviction and sentence.
5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
6. The learned counsel for the appellant contended that the evidence tendered by the witnesses examined on the side of the prosecution do not make out the offences alleged. Alternatively, it was also argued by the learned counsel that as regards the core aspect of the crime, the only evidence available is the evidence of the victim girl and since it was established in the case that the victim girl is a person who was maintaining grudge against the accused, her evidence ought not have been the sole basis of the conviction of the accused. It was also argued by the learned counsel that the victim girl cannot also be believed, as the materials on record would establish that she has, in fact, been giving evidence in the case as tutored by others as she does not want to live with her mother and the accused.
7. Per contra, the learned Public Prosecutor submitted that the materials on record would certainly make out the offences alleged against the accused. It was also Crl.A. No. 1448 of 2019 5 argued by the learned Public Prosecutor that merely for the reason that the victim girl has once told her mother that she would teach a lesson to the accused, the evidence tendered by the victim girl cannot be rejected in toto. According to the learned Public Prosecutor, the evidence tendered by the victim girl is natural and very much convincing and there is, therefore, no infirmity in the decision of the court below.
8. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 376(2)(f) and 376(2)(i) of the IPC, Sections 5(m) and 5(n) read with Section 6 and Sections 9(l), 9(m) and 9(n) read with Section 10 of the POCSO Act,
9. The case of the prosecution is that a complaint has been received from the school of the victim girl that the victim girl is afraid of going to her home; that a member of the childline accordingly talked to the victim girl and it was revealed in the conversation that she is being assaulted sexually by the accused who is her step father. PW1 is the Co- ordinator of the childline concerned. She only deposed that a complaint was received from the school of the victim girl. She Crl.A. No. 1448 of 2019 6 has neither gone to the school nor talked to the victim girl. PW2 is a member of the childline. She deposed that the complaint was received on 29.06.2015 and since the members of the childline could not go to the school on the same day and since the following day was a holiday, she went to the school on 01.07.2015. She deposed that when she talked to the victim girl, the victim girl told her that the accused used to show her obscene pictures from his phone and also would show his genital organ to her. She also deposed that the victim girl told her that the accused used to come and lie down near her while sleeping and he used to touch at her private parts. She deposed that since the victim girl was not ready to go back to her home, the matter was informed to the Child Welfare Committee and the victim girl was sent to a shelter home accordingly. PW3 is the doctor who examined the victim girl. She deposed that she examined the victim girl on 02.07.2015 and on examination, it was found that her vagina admitted one finger and the hymen was torn. PW4 is the mother of the victim girl who was examined to prove that the victim girl told her about the sexual assault to which she was subjected to by the accused. PW4, however, turned hostile to the prosecution. PW7 is the teacher of the victim girl. PW7 deposed that one Crl.A. No. 1448 of 2019 7 day, while she was taking classes, she asked the students to raise their hands if they like their father more than their mother and the victim girl was the only girl who raised her hand in response to that question. She deposed that when she questioned the victim girl in private later, she told her that somebody is residing with her mother and that he is abusing her sexually. PW10 is the victim girl. PW10 deposed that she gave Ext.P7 statement to the childline. She deposed that one day during her holidays, while she was sleeping, she felt pain at her private part and she found the accused pressing her vagina when woke up. She also deposed that on another day, the accused pulled her to the kitchen, removed her dress and she escaped from him by biting on his hand. PW10 deposed that when she complained to her mother, her mother talked to the accused and there was a quarrel between them thereafter. If one examines the evidence tendered by the victim girl as PW10, in the background of the evidence tendered by PW 1, PW 2, PW 3 and PW 7, it can be certainly found that the evidence of the victim girl is natural and convincing.
10. The victim girl admitted in cross-examination that she does not like the accused and that she has once told her mother that she would teach the accused a lesson. The Crl.A. No. 1448 of 2019 8 relevant portion of the deposition reads thus :
"എന തല . എന തലയത ന ണ 2-ആനചനന ഒര പ ഠ പഠപ ക
എ ഞ ൻ അമയയ ട പറഞ രന."
It is placing reliance on the aforesaid evidence tendered by the victim girl that the learned counsel for the appellant contended that the victim girl was maintaining grudge against the accused and her evidence cannot, therefore, be the sole basis of the conviction of the appellant. As rightly pointed out by the learned Public Prosecutor, merely on account of the aforesaid reason, it cannot be said that the victim girl was deposing falsehood in court. The possibility of the victim girl having made the said statement on account of the sexual advances made by the accused also cannot be ruled out. The victim girl has admitted in her evidence that she wants to marry one Balan who is a handicapped person and her mother did not permit her to do so. Placing reliance on the said evidence tendered by the victim girl and the evidence tendered by the brother of the victim girl who was examined by the accused on his side as DW1 to the effect that the mother of Balan visited the victim girl in the school on the previous day of the complaint, it was argued by the learned counsel for the appellant that the victim girl cannot be Crl.A. No. 1448 of 2019 9 believed, for, the possibility of she having lodged the complaint at the instance of the mother of Balan cannot be ruled out. I am not impressed by this argument also. There was no suggestion to the victim girl by the accused during her cross- examination about the visit of the mother of Balan in the school. In the absence of any suggestion to that effect, the evidence tendered by the brother of the victim girl as DW1 cannot be used to discredit the evidence tendered by the victim girl. In the circumstances, I am inclined to hold that the materials on record would establish beyond doubt that the accused used to assault the victim girl sexually when they were residing together.
11. Now I shall examine the question as to whether the evidence available on record would make out the offences alleged. The victim girl has deposed about the sexual assault for the first time to PW7. The relevant evidence to that effect given by PW7 reads thus:
"അമയയ നട ച ഴയ യ$നറ ര ളണ. അയ ൾ എന
പ(ഡ പ കനണ എ പറഞത ഏ യ+ശ 3 $ര. മൻപ ണ. ഇങനന
പറഞ സ ഭ$ ഉണ യത ത(യത കത8മ യ ഓർമയല. കട ടകയ> ൾ
അയ ൾ കനട $ന ടക , ശര(ര ഭ ഗങളൽ സർശ ക എ ങനന
പറഞ രന."
Ext.P7 is a complaint written by the victim girl in her own Crl.A. No. 1448 of 2019 10 handwriting to the Co-ordinator of the childline which is treated as the First Information Statement in the case. The relevant portion of Ext.P7 reads thus:
"അയ ൾ എന കരമ യ ഉപദ$കന. എനF യൽ പടച $ലകന.
യI ണലനട യ$ണ ത ച ത ണകന. എനF മത ഒഴക ഭ ഗത നത ട.
ര ത ഉറങ സമയത ണ ഇങനന നചയ ത. എന ഒരപ ട തല യ
നചയനണ."
Ex.P1 is the report of examination. The narration of the
occurrence as made by the victim girl to PW3 doctor reads thus:
"............നയ 4 $ർ.മ യ ആര8>ളതള $(ടൽ ന$ച അശള(ല ച തങൾ ണച ന ടക യ സV ര8 ഭ ഗത സർശ ക രയ 2015 May ഒ ത(യത vagina യനട ഉള യലക $രൽ ടത യ നചയതൽ $ച."
The relevant portion of the evidence tendered by PW10 as regards the occurrence reads thus:
"ഒര + $സ ഞ ന അന യന ര ത ഉറങ ൻ ടന. എനF മത
ഒഴക ഭ ഗത യ$+ന യത ഞ ൻ ഉണർന യന ക യയപ ൾ പത അ$നട
പടച അമർത ത ണ. അത ഒര 1-ആ ത(യതയ യരന. $രല ന ണ
മത ഒഴക തനF അ യതക ണ അമർതയത. ഞ ൻ ഉണർ യപ ൾ
അയ ൾ എഴയ റ യപ യ ."
As noted, the evidence of PW7 was only to the effect that the victim girl has told her that the accused used to touch her body Crl.A. No. 1448 of 2019 11 when she sleeps. In Ext.P7, the victim girl however stated that the accused has touched her vagina once while sleeping. The version of PW10 in Ext.P7 that the accused used to show her obscene pictures from his mobile phone has not been spoken to by her in court. Be that as it may, in the statement given by the victim girl to the doctor when she was produced for medical examination, she improved her version and said that the accused used to insert his finger into her vagina. Similarly, before the court, she did not say specifically that the accused has inserted his finger into her vagina. Instead, she deposed that the accused has pressed inside her vagina. On an evaluation of the materials on record, I am of the view that it is not safe to accept the versions of the victim girl as made by her before the doctor or before the court, for the same are not consistent with her two earlier versions given to PW7 and also in Ext.P7 complaint. If the version given to PW7 and Ext.P7 complaint are taken as true, since it is established that the victim girl was below the age of 12 years, only a case of aggravated sexual assault punishable under Sections 9 (m) and 9 (n) are made out. In this connection, I must refer to the argument of the learned counsel for the appellant that the victim girl has not stated in her evidence that the accused has Crl.A. No. 1448 of 2019 12 touched her private parts after removing her dress, and therefore, it cannot be said that a case of sexual assault is made out, even if the evidence tendered by the victim girl is accepted. I do not find any substance in this argument, for there was no cross-examination on this aspect to the victim girl. Needless to say, the accused can be convicted only under Sections 9(l), 9(m), and 9(n) of the POCSO Act. Since the accused was awarded only the minimum sentence on his conviction under Section 5 of the POCSO Act, I am of the view that taking a queue from the said view, the accused can be imposed the minimum sentence provided for under Section 9 of the POCSO Act together with a fine of Rs.10,000/-
In the circumstances, the conviction of the appellant is altered to one under Sections 9(m) and 9(n) of the POCSO Act. He is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months, for the offence punishable under Section 9(m) of the POCSO Act. Similarly he is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months, for the offence punishable Crl.A. No. 1448 of 2019 13 under Section 9(n) of the POCSO Act. The substantive sentences imposed on the accused shall run concurrently. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR JUDGE rkj