Kerala High Court
Trial Of Cases Relating To Atrocities & ... vs By Advs on 23 February, 2021
Author: M.R.Anitha
Bench: K.Vinod Chandran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
CRL.A.No.254 OF 2016(A)
SC 641/2014 OF ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE
TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE
AGAINST WOMEN & CHILDREN) ERNAKULAM
CRIME NO.1378/2014 OF Kodanad Police Station , Ernakulam
APPELLANT/ACCUSED
SUNIL KUMAR
AGE 38 YEARS
S/O.RAMACHANDRAN PILLAI, AKKULANGARA, NEAR
PIZHARIKKAL TEMPLE, IMURY.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY S.I. OF POLICE, KODANAD THROUGH
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-
682018.
OTHER PRESENT:
SMT.S.AMBIKA DEVI, SPECIAL GOVERNMENT PLEADER,
ATROCITIES AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-
2021, THE COURT ON 23-02-2021 DELIVERED THE FOLLOWING:
Crl.A.254 of 2016
2
JUDGMENT
Dated : 23rd February, 2020 M.R.Anitha, J.
1. This appeal has been filed against the conviction and sentence in S.C.654/2014 on the file of Additional Sessions Court, Ernakulam (For the Trial of Cases relating to Atrocities and Sexual Assault Against Women and Children) Act.
2. Prosecution case can be summarized as follows :
Accused is the father of the victim girl aged 11 years. When the victim was studying in 1st standard,from 2009 onwards the accused had been committing aggravated sexual assault in the bed room situated on the north western corner of house No.XI/196 of Koovapadi Grama Panchayath at Aimury Kara by holding on her breast and forcing her to hold his penis repeatedly. It is further alleged that from 8.9.2013 upto 9.8.2014 on several days, accused committed aggravated penetrative sexual assault upon the victim girl in the room situated on the south western corner of House No.VI/495 of Koovapadi Grama Panchayath near Pisharikkal temple. He further threatened the victim girl with death if his actions are Crl.A.254 of 2016 3 disclosed to anybody and thereby accused committed the offence punishable under Sec.376 (2)(f)(i)(n) of IPC, Sec.5(1)(m)(n) r/w 6 and Sec.9(1) (m) (n) r/w 10 and of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter be referred as POCSO Act) and S.506 IPC.
3. Crime was registered on recording Ext.P1 FIS of the victim by PW1, the woman Police Officer attached to Kodanad Police Station. The FIR came to be registered based on the information given by PW10 who was the Doctor attached to Pranavam Counselling Centre, Kothamangalam, to which the victim was taken for counselling. Based on Ext.P1 FIS, PW12 the then Sub Inspector of Police attached to Kodanad Police Station, registered the Crime and Ext.P10 is the FIR. Thereafter PW13 the Circle Inspector, Perumbavoor took charge of the investigation of the case and prepared the scene mahazar, Exts.P3 and P4, of the two houses where the incidents are alleged to have taken place. The victim was got examined through PW7, Junior Consultant in Obstetrics and Gynecologist, General Hospital, Moovattupuzha. PW8 is the Doctor who examined the accused and issued Ext.P8 potency certificate with respect to the accused. PW13 further questioned the witnesses and collected the documents. PW9 the Village Officer Crl.A.254 of 2016 4 prepared the site plan of two houses and the room where the incident took place. It is marked as Ext.P9. PW6 is the Landlord of the house at Aimury Kara where the accused and family along with victim were residing near the Pisharikkal Temple. PW14 is the Secretary of the Grama Panchayat who issued the birth certificate, Ext.P17 pertaining to the victim to prove that her date of birth is 23.12.2002. Thereafter PW13 completed the investigation and filed the charge sheet against the accused.
4. Prosecution examined PW1 to 14 and Exts.P1 to P17 were marked. After the closure of prosecution evidence, accused was questioned under Sec.313(1) Cr.P.C. He denied all the incriminating facts and circumstances put to him and filed a detailed statement in addition. Ext.D1 was marked from his side during cross-examination of prosecution witnesses. There was no further evidence adduced from the side of the accused. Thereafter on hearing both sides, the learned Additional Sessions Judge found the appellant/accused guilty under Sec.376 (2)(f)(i)(n) of IPC, Sec.5(1)(m)(n) r/w Sec.6 and 9 (l)(m)(n) r/w 10 of POCSO Act.
5. Assailing the conviction and sentence appellant came up in appeal. Notice was issued to the respondent. Learned Special Public Prosecutor Smt.Ambika Devi appeared on behalf of the Crl.A.254 of 2016 5 respondent. Lower Court Records were called for and perused. Heard both sides.
6. The learned counsel for the appellant/accused (hereinafter be referred as accused) assailed the conviction and sentence on various grounds. According to him, the prosecution case and the Court charge has no connection with each other. Prosecution case states about the incident which took place from the first standard onwards and thereafter the allegation of aggravated penetrative sexual assault is alleged after 17 th July 2014. But the Court charge is not in consonance with the prosecution case. The learned Sessions Judge passed harsh sentence against the accused based on the tutored sole testimony of the victim. FIR was not registered at the first instance when PW10 the Doctor got the alleged information from the victim regarding the sexual assault. It was only on the next day the police was informed of the incident which according to him, is the time taken for framing a case. Ext.D1 would prove that the entire case was falsely foisted in order to grab the property of the accused by PW2, the mother of the victim. It is also his contention that the penetrative sexual assault is brought out in the evidence of PW1, the victim, by a Court question and that according to him, is not acceptable. Further he Crl.A.254 of 2016 6 would contend that there is no allegation of penetrative sexual assault alleged on the victim while Ext.P1 FIS was given. It is also his contention that there is no convincing evidence to prove that sexual intercourse had taken place and the finger test conducted by PW7, the Doctor is not conclusive. In short, according to him, there is no acceptable evidence to prove the alleged aggravated penetrative sexual assault.
7. The learned Special Public Prosecutor on the other hand, would contend that the victim has given clear evidence with regard to the sexual assault meted out at the instance of her father while she was studying for first standard till 10.9.2014. The evidence of PW9 the Counsellor and PW7 the Gynecologist, in corroboration would conclusively prove the act of penetrative sexual assault committed by the accused against his little minor daughter and there is also corroborative evidence of PW2-the mother of the victim, PW3 - the grandmother, PW4 - aunt, PW5- uncle of the victim. According to the learned Special Prosecutor, this is a clear case of repeated penetrative sexual assault upon a minor girl by her own father and hence no interference is called for at the instance of this Court.
8.We would first deal with the contention of the learned counsel about the inconsistency of the Crl.A.254 of 2016 7 prosecution charge and the charge framed by the learned Additional Sessions Judge. The prosecution allegation is that, from 2009 onwards while the victim was studying in the Ist standard upto 07.09.2013 on several days, by holding at her chest and also forcing her to hold his organ he committed aggravated sexual assault. From 08.09.2013 onwards till 09.08.2014 at House No.VI/495 in Koovappady Grama Panchayath, Aimury Kara near Pisharikkal Temple, accused committed aggravated penetrative sexual assault upon her and threatened to kill her if it is disclosed to anybody.
9. In the court charge, the first paragraph states about the aggravated penetrative sexual assault meted out by the victim from 08.09.2013 to 09.08.2014 and further charge was formulated against the aggravated sexual assault at his instance at House No.XI/196 at Kottappallykudy without specifically stating the period. The first part of the court charge would make it specifically clear that the period alleged is from 08.09.2013 to 09.08.2014. The charge formulated in paragraph No.3 of the court charge is with reference to the prior period, before the victim menstruated as clearly stated in the FIS. A portion of that period is after the commencement of POCSO Act, 2012, which came into Crl.A.254 of 2016 8 effect on 14.11.2012. When the alleged atrocities commenced in the year 2009, the Act was not in force it continued after the Act commenced. Prior to that offence u/s. 354 IPC would have been attracted. POCSO Act was enacted with the objective of ensuring that children of tender age are not abused and exploited, on finding that the existing laws are not adequate to provide a deterrent to such social evil increasing in the society. So even a single act of holding the breast of the victim or forcing to hold the penis of the perpetrator would attract the offence of sexual assault under the POCSO Act after its commencement which becomes an aggravated sexual assault if it is by a near relative residing in the same household. The period after the advent of the POCSO Act is not mentioned in the court charge framed as thirdly is not material. So we do not find any material discrepancy in the court charge. Nothing is brought out to prove that any prejudice has been caused to the accused in that regard also. No question was put to any of the witnesses including the investigating officer in this regard.
10. It is relevant in this context to quote Chittaranjan Das v. State of W.B. [1963 KHC 674] wherein it has been held that requirement of Section 222 (1) Cr.P.C. in a criminal trial is Crl.A.254 of 2016 9 that the accused person must have reasonably sufficient notice as to the case against him. A charge is not invalid solely for the reason that it does not specify the particular date and time at which any offence is alleged to have been committed. It is also held that the requirements of procedure are generally intended to subserve the ends of justice. So undue emphasis on mere technicalities in respect of matters which are not vital or of important significance in a criminal trial may sometimes frustrate the ends of justice. Hence it is futile for the accused to contend about the discrepancies in the court charge from the police charge; especially since the accused is tried on the basis of the charge framed by the Court.
11. The learned counsel would contend about the delay in lodging the FIS. According to him, PWs 1 and 2 along with PW4 went for counselling to PW10 on 25.09.2014. The prosecution case is that the victim narrated the sexual abuse meted out on her at the instance of the accused, to PW10 on that day. But no complaint was filed on that day and only on 26.09.2014 when they again went to PW10, the police was informed. According to the learned counsel, prosecution was taking time to frame a case and that is why complaint Crl.A.254 of 2016 10 was not straightaway filed on 25.09.2014 and hence according to him it is not the first version that has been given to the police on 26.09.2014. It is also his contention that PW10 did not give any explanation as to why he has not informed the police on the same day.
12. It is to be noted that during evidence of PW10, no question was put to PW10 in this regard. While PW2, the mother of the victim was examined she stated that she came to know about the incident on 25.09.2014. But she was also not questioned why the complaint was not given on the same day. To PW4-the aunt of the victim, who accompanied PW2 and the victim to PW10 also, no question was put as to why a complaint was not given on the same day. Further it is quite natural that a woman confronted with the fact of her husband having perpetrated sexual assault on their daughter would not immediately rush to the Police with a complaint. So we do not find any delay as such in filing the complaint.
13. The learned counsel would further contend that PW1 the victim is a tutored witness and hence without any independent corroboration her evidence cannot be accepted. It is also his contention that during cross examination she admitted that she harbours hatred towards her father for constantly picking up drunken quarrels Crl.A.254 of 2016 11 with her mother. He would also argue on Ext.D1 document executed by the father in law to divulge true facts before the court.
14. On a scrutiny of the evidence of PW1, it could be seen that though she admitted during cross examination that she had hatred and anger towards the father because he used to consume liquor and quarrel with the mother, the further suggestion that out of that ill will she along with the mother and grandfather has falsely foisted this case against the father is stoutly denied by her. But her evidence in chief examination that she had given Ext.P1 complaint to the police on 26.09.2014 and the father had molested her by holding her chest and putting the male organ of the father on her genitals and further pressed it and inserted it inside and that the acts were done in the evening and night are not specifically challenged at all. It is also stated by her that herself, mother and brother used to sleep in a room and mother and brother used to lie on a cot and she used to lie on a separate cot and after the mother started sleeping the father used to take her to his room and do the sexual act against her etc are also not touched upon during cross examination.
15. Accused has got a contention that the specific act of penetrative sexual assault has Crl.A.254 of 2016 12 been brought out by a court question. The evidentiary value and its implication would be discussed later. But, pertinent is the fact that major questions during cross examination of PW1 is with regard to the execution of Ext.D1. She admitted during cross examination that on 17.07.2015 the house and properties has been transferred in the name of the grandfather. But she further pleaded ignorance as to whether there was an understanding while executing Ext.D1 that it would be stated before the court that it was a false case. Her evidence is also that since father committed default in paying the loan, demand was made to transfer the property in the name of mother or grandfather. She also stated that she has not signed in that document. The learned counsel would rely on the said statement of PW1 to contend that she is not a truthful witness because Ext.D1 would show that she has signed it. PW2, the mother of the victim admitted that PW1 had signed it.
16. With regard to the execution of Ext.D1 at the outset we would observe that it is signed by the father-in-law of the accused and the mother-in- law, wife and daughter [victim] signed it as witnesses. Apart from the legality as to whether it is an enforceable agreement, we are of the opinion that D1 would itself to some extend would Crl.A.254 of 2016 13 speak of the culpability of the accused, otherwise he need not have ventured to get such a document from his father-in-law, with PWs 1 and 2, his own wife and daughter and also PW3 his mother-in-law as witnesses. The wording in Ext.D1 is that the case has been filed on a misunderstanding against the accused by the victim and PW2. It is also stated that the complaint was filed since the accused after consuming liquor started making problems in the house and when his brother aided him in conducting the case they filed complaint against him also. It is further stated that since accused had agreed to transfer the property in his name (father-in-law) it has been agreed by him that the complaint filed against the accused and his brother would be withdrawn and they would state the true facts before the court and having so agreed the execution was in front of the advocate, who has not affixed his signature to the document. It is further stated that no complaint will be filed against the accused or his family members hither to. So that last stipulation is per se illegal and against the express provisions of Section 23 of the Indian Contract Act,1872. Nobody can prevent another from resorting to legal action whenever there is infringement of their rights or anybody acts Crl.A.254 of 2016 14 illegally against them. D1 on the face of it is illegal and not enforceable and rather than prove the innocence of the accused, in fact throws suspicion on his conduct.
17. On examining, Ext.D1 it appears to have been obtained in the form of a consent letter from the father-in-law that the complaint filed against the accused and his brother would be withdrawn since the accused has agreed to transfer the properties standing in his name in favour of the father-in-law. The father-in-law has no such right to give a consent on behalf of the minor victim, his daughter or his wife. PW2 his daughter, PW3, his wife are themselves not capable of giving such consent and the father-in- law could not have agreed to such a course especially since it is not his complaint and he is not even a witness to the incidents complained of. The natural guardian of PW1 the victim is the mother in the absence of father. Even the mother could not have entered into such an agreement on behalf of the minor victim and there is no question of the grandfather undertaking to that end. Moreover, in order to give true version before the court no such undertaking or consent letter of anybody is necessary. According to us the execution of Ext.D1 document itself would to some extent reveal the guilty mind of the accused Crl.A.254 of 2016 15 and his anxiety to get a favourable version from his daughter, wife, father-in-law and mother-in- law with respect to the complaint filed against him. If he was totally innocent and had not done any crime against his own minor daughter, he would not have got executed such a document like Ext.D1. According to us, Ext.D1 document is not worthy of consideration and does not have the value of the paper it is written on. So the contention of the learned counsel about the evidentiary value of PW1-the victim since she denied to have signed in Ext.D1 also does not require any consideration at all since Ext.D1 itself is found to have no legal effect.
18. We will now discuss the contention of the learned counsel about the question put by the court in chief examination which led to an answer by the victim that accused penetrated his male organ into her sex organ. It has been contended forcefully that, reply to the court question is the only statement given by the victim with regard to the penetrative sexual assault and throughout her deposition nowhere any such statement would be found. So according to the learned counsel, the testimony of the victim on an answer to a question put by the court ought not have been relied on for finding the guilt against the accused for aggravated penetrative Crl.A.254 of 2016 16 sexual assault.
19. Power of the Court to put any question to the witness has been conferred under Section 165 of the Indian Evidence Act, 1872. For clarity, we would extract Sec.165 of the Evidence Act, which reads as follows:
"165. Judge's power to put questions or order production.--The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense Crl.A.254 of 2016 17 with primary evidence of any document, except in the cases hereinbefore excepted."
20. On going through the above Section, there would not be any doubt about the powers of a court in putting any question either relevant or irrelevant. The purpose behind the Section is for enabling the court to elicit any information or material which the court deems necessary for a just disposal of the case. The powers of the court, as an adjudicator under the provision is so wide that it can put an irrelevant question also, which even the parties to the lis are prohibited from. The proviso to Section 165 only provides that judgment should be based upon facts which are relevant and duly proved. It is also very clear from the section itself that without the leave of the court nobody can cross examine any witness to a reply given to any court question. So that would underline the wide powers of the court in putting questions during examination of a witness.
21. In this case, the question by the court is during chief examination while the witness was giving answer to a question with regard to the sexual act committed by the accused. She stated that accused put his male organ in her genitals. At that juncture the court put a question whether it has been inserted inside, the witness answered Crl.A.254 of 2016 18 in the affirmative. Thereafter, the chief examination continued and witness stated that the accused has done so upon her and that was repeated on three occasions further in chief examination itself and further she categorically stated that upto 05.08.2014 accused has done so. The version of the witness-victim was in consonance with her earlier versions and the answer to the court question is not the only time the witness complained of about the penetrative assault as seen from her deposition. Thereafter, accused had cross-examined the witness at length but curiously enough no specific question is seen put to the witness about her evidence regarding aggravated penetrative sexual assault or leave sought for from court to so question the witness if the contention that the particular act was brought out only by the Court. The only caution we would express is that the court could have waited at least till the chief examination was over to see whether it would be brought out by the Prosecutor himself during the chief- examination. Anyway, since the court is empowered to put any question at any time u/s.165 of the Evidence Act, the accused cannot be heard to contend about the answer elicited by the court through the court question or the admissibility of the answers, so elicited, especially since the Crl.A.254 of 2016 19 evidence of that particular act is not confined to the answer elicited by court.
22. In this context, we place reliance on State of Rajasthan v. Ani [1997 (6) SCC 162 : 1997 KHC 215] wherein while dealing with Section 165 of the Evidence Act, it has been held that S.165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. It is also held that the said section was framed lavishly, studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. Neither of the parties has any right to raise objection to any such question. Paragraph No.12 of the said decision is also relevant in this context to be extracted, which reads as follows:
" 12. Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn Crl.A.254 of 2016 20 Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be about or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised."
23. In that decision, Ram Chander v. State of Haryana [AIR 1981 SC 1036: (Para No.2) has been Crl.A.254 of 2016 21 quoted which is relevant in this context to be extracted, paragraph No.13.
"The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
We respectfully concur with the aforesaid observations. We find no wrong in the Trial Court interjecting during cross examination of PW-3 with a view to ascertain the correct position."
24. We may also quote Gopalakrishnan @ Mani v. State of Kerala (ILR 2012 (1) KER. 237 : 2011 KHC
872). Para 47 of the said judgment quoted S.311 Cr.P.C. and 165 of the Evidence Act, which are stated as a source of perpetual inspiration for Crl.A.254 of 2016 22 the trial judge.
"47. If there be any doubts, a perusal of S.311 CrPC and S.165 of the Evidence Act can be a source of perpetual inspiration for the trial Judge. We extract the same.
311. Power to summon material witness, or examine person present. --
............................................. ..................
S.165..................................... ................................. ............................................. .................................... The sweeping powers of the trial Judge to take any necessary step at any point of time, if justice so demands, is important. The power under S.165 of the Evidence Act to ask any question to the witness, even ignoring the law relating to relevancy is significant. Please note the number of 'any' used in both the sections to identify the width and the sweep of such powers. These powers are of course to be cautiously invoked with circumspection. They afford indication of the expectation of the system from a trial Judge. He is clothed with ample powers to do justice. He is not to be a mute and blind spectator with no commitment to anything. His commitment must Crl.A.254 of 2016 23 be to truth and justice and he must be adept at handling the tools which the system / legislature has afforded to him to discharge the mission left to him."
25. We may also quote State of Kerala v. Madhu @ Kutti Madhu [ILR 2021 (1) Ker. 247 : 2021 1 KHC 351]. In paragraph No.80 after quoting Section 165 of the Evidence Act it has been stated as follows:
"This Section is intended to empower the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the Court should be able to look at and inquire into every fact, whatever it be. A trial Judge, in order to discover or to obtain proper proof of relevant facts, may exercise wide powers. He may approach the case from any point of view and is not tied down to the ruts marked out by the parties. He can ask (1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties and (6) about any fact relevant or irrelevant. No party is entitled to object to any such question or order or to cross - examine the witnesses without getting leave of the Court. Therefore under S.165 of the Evidence Act the Court has a Crl.A.254 of 2016 24 right to ask the witness any relevant or even irrelevant question and the parties or their counsel cannot raise any objection to any such question (Also see Sanjay Kumar v. State of Bihar (2014 KHC 4068 : 2014 (1) KLD 343 : 2014 (1) SCALE 751 : (2014) 9 SCC 230)).
26. So vast and unbridled powers are vested with the court u/s. 165 of the Evidence Act to put questions to bring out the truth at any time even during chief examination in any form even as leading question. So the accused cannot be heard to contend that the question put by the learned Additional Sessions Judge during chief examination with regard to the aggravated penetrative sexual assault cannot at all be acted upon in order to enter into a conviction for the said offence. Moreover, as stated earlier, she had repeatedly stated in chief-examination thereafter that accused had done the above- mentioned acts again and again.
27. It is to be remembered in this context that she was only 13 years old at the time of giving evidence before court. So the delicacy of a minor girl to state repeatedly the sexual act done by the accused specifically can only be imagined and cannot be lost sight of.
28. The learned counsel would further contend that there is no allegation about the aggravated Crl.A.254 of 2016 25 penetrative sexual assault in Ext.P1 FIS. But on examining Ext.P1 which is the statement given by the victim to WCPO, PW11 it is seen that she has categorically stated that accused will hold at her chest and penetrate his penis into her urinary area. She also stated that during the initial periods father used to hold her genitals and she would be asked to hold his penis. Further she stated that after she attained puberty accused started to perpetrate the penetrative sexual assault, after making her lie down on the cot with him. So the contention of the learned counsel that there is no allegation of aggravated penetrative sexual assault in Ext.P1 cannot be accepted. There is clear statement by the victim with regard to the aggravated sexual assault and also aggravated penetrative sexual assault in Ext.P1 and Ext.P2 164 Cr.P.C. statement.
29. The surrounding circumstances brought in the evidence of PW1 also strengthens the prosecution case. It has come out from the evidence of Pw1 that she did not disclose the act of accused to anybody since the accused threatened to kill her mother and herself. Further she stated that on August 10, 2014 she went to her mother's house since she was afraid of the father and due to the ill-treatment of the mother by him. Even though the mother came for taking her back home, she Crl.A.254 of 2016 26 refused out of fear of the father. It is also stated by her that she caused injury to her hand with blade and when mother asked she told that it is to avoid return to the house and thereafter that she was taken for counselling on 25.09.2014.
30. PW10 the Doctor/Counsellor stated in corroboration with the victim. He spoke about the disclosure made by the victim on 25.09.2014 to him about the sexual act of her father from her childhood days onwards. The child informed him that from 1st standard onwards the father used to molest her making her uneasy and uncomfortable. While studying in 5th standard she informed the mother and the mother intervened and thereafter for a certain period there was no harassment from the accused and after she attained puberty there was sexual assault from the side of the father and thereafter the child had great difficulties and discomfort and pain and there was a situation of having difficulty in continuing in the house. Thereafter she left to her mother's home and while so she was taken to the Doctor for counselling. He also states about the mark on her hand made by the victim with blade. It is also categorically stated by him that, the version of the victim, according to him, is not a tutored one at the instance of the mother and the members of the mother's family and according to him it Crl.A.254 of 2016 27 was due to the discomfort which she felt from childhood. So we do not find any reason to disbelieve the evidence of PW10-the Doctor/Counsellor who talked with the victim before the complaint was given.
31. PW2-the mother of the victim stated about the counselling given to the victim through PW10 and she stated that the victim girl was very afraid of her father and she was reluctant to come to their house and she also attempted to cut the vein of her hand and hence she was taken for counselling along with PW4. It is true that though she stated during cross examination that she came to know about the incident only on 25.09.2014, PW10-the Doctor stated that the mother had information about the sexual advances about one year before. The victim also during her evidence stated that she told her mother once about the ill-treatment by the father and thereafter the mother talked with the father, and for some period there after there was no harassment.
32. In Ext.P1 statement, the victim stated that when the mother came to take her to their house from the mother's house, she told her that she is afraid of the father and informed the mother slightly about the ill-treatment of the father and thereafter she was taken to the Counsellor- Crl.A.254 of 2016 28 PW10. So even if PW10's version that the victim earlier informed her mother about the fathers actions and on her mother questioning the father the advances temporarily stopped; it will not in anyway improve the defence case. When the child informed about the sexual advances of the father, the mother would have questioned him and thereafter he might have stopped his sexual acts for sometime and again when she attained puberty, this ill-treatment aggravated, which resulted in the victim girl leaving her parental house and taking shelter in her mother's house.
33. Evidence of PW3 the grandmother would corroborate the prosecution case that the victim girl came to their house on 10th August 2014 and resided in their house and till that time she had been residing with her parents near the Pisharikkal temple. She also stated that the victim had been taken for counselling and thereafter she came to know about the incident and still the victim is residing with her.
34. PW5, who is the uncle of the victim and brother of PW2 is a witness in Ext.P3 and P4 scene mahazars. He is also a witness in Ext.P5 the seizure mahazar prepared at the time when the dress worn by the victim was seized. He is also a witness in Ext.P6 the seizure mahazar prepared while seizing the dhothi and the bed sheet of the Crl.A.254 of 2016 29 accused from the house. There was an attempt made by the accused to establish during the evidence of Pw5 that there was some dispute between his family and that of the accused and PW2 in connection with some monetary transaction between his father and PW2. But it has also come out that it was long back and thereafter when the victim was three years old they patched up. Subsequently some questions were also put to him to show that at the instance of his father the properties of the accused were sold but he was not prepared to admit that it was due to the compulsion of the father that the property was sold. It has also come out from his evidence that PW2 had filed complaint on several occasions before the police against physical torture at the hands of the accused and she had undergone treatment also in connection with the same and he also admitted that in such complaints she had not stated about the present allegation made against the victim. But the specific prosecution case and also the evidence brought in through the witnesses is that PW2 came to know about the aggravated penetrative sexual assault only when the victim disclosed the same to PW10. So naturally when she files complaint about the physical torture of the accused, she could not have disclosed the sexual advances by the father towards the daughter. Crl.A.254 of 2016 30
35. Evidence of PW7-the Junior Consultant in Obstetrics and Gynecology, who examined the victim girl would clearly prove that on examination an old tear was found on hymen and vagina admitted one finger and the opinion of the Doctor is that sexual intercourse had taken place and Ext.P7 is the certificate issued by her. Question was put to him during cross examination to the effect that penetration is possible by external instruments and need not be by a genital organ and doing the same by self cannot be denied. The Medical evidence though conclusive as to the fact of sexual intercourse, it does not rule out that possibility. In fact the evidence of PW1 is clear and she categorically stated about the penetrative sexual assault on her at the instance of the accused on several occasions. So, in effect, the evidence of PW1-the victim is corroborated by the medical evidence.
36. PW8 is the Doctor, who examined the accused and issued Ext.P8 potency certificate, which would categorically state that there was nothing to suggest that accused is incapable of performing sexual act. Moreover, he is a father of two children also. So there is no doubt regrading the potency of the accused especially in view of the evidence of PW8 and Ext.P8 certificate of potency test.
Crl.A.254 of 2016 31
37. So on an evaluation of the evidence of the victim, the medical evidence of Pw7 and 8 and also the evidence of Pw10 the act of aggravated sexual assault and aggravated penetrative sexual assault upon the victim by the accused father is proved.
38. The learned counsel for the accused in this context drew our attention to Sasi v. State of Kerala [2019 KHC 465] wherein while dealing with a case charged against the accused u/s. 376 IPC it has been held that penetration cannot be inferred simply because vagina admitted one finger and hymen was torn. It was also held that finger test is not a sure test to give an opinion suggesting penetration. But it is to be noted that the above cited decision was passed mainly relying on Lillu @ Rajesh and Anr. v. State of Haryana [2013 KHC 4300 : 2013 (2) KLT 868 : AIR 2013 SC 1784]. But that was a case in which there was a contention from the side of the accused that admission of two fingers and the rupture of hymen is an indication that prosecutrix is habitual to sexual intercourse. It was in the said context the Apex Court held that the factum of admission of two fingers could not be held adverse to the prosecutrix, as it would also depend upon the size of the fingers inserted. It was also held that the two finger Crl.A.254 of 2016 32 test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity and hence it was held that even if the report is affirmative, cannot ipso facto, give rise to presumption of consent. It is also held that rape is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Art. 21 of the Constitution of India. It was further held that the Courts should deal with such cases sternly and severely. Paragraph No.11 of the said judgment is apposite in this context to be extracted which reads as follows:
"In State of Punjab v. Ramdev Singh, 2004 KHC 373:
AIR 2004 SC 1290: 2004 (1) SCC 421 : 2004 SCC (Cri) 307, this Court dealt with the issue and held that rape is violative of victim's fundamental right under Art.21 of the Constitution. So, the Courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self- esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is Crl.A.254 of 2016 33 not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Art.21 of the Constitution.
39. The learned Public Prosecutor took our attention to Wahid Khan v. State of Madhya Pradesh [2010 KHC 6059 : 2010 (2) SCC 9]. That was a case of rape of minor girl aged 12 years. In that case, it was held that, examination report of the doctor reporting that hymen of prosecutrix was intact and further that the prosecutrix though initially turned hostile but further gave credible and consistent statement in FIR, in 161 Cr.P.C. statement, before the Medical officer and in 164 Cr.P.C. statement and the investigating officer caught the accused red handed during rape and also the autorickshaw in which the prosecutrix was kidnapped was also seized. In the said circumstances it was held that prosecutrix stated that accused removed her underwear, mounted her, put his male organ into her private parts and was moving up and down and in the said circumstances in spite of the evidence of the doctor that the hymen was intact it was held that offence of rape was proved from all angles. It was also held in that decision that evidence of prosecutrix stands on equal Crl.A.254 of 2016 34 footing with that of injured witness and if her evidence inspires confidence, corroboration is not necessary.
40. The decision in Raju and another v. State of Kerala [2013 (1) KHC 718] was further drawn to our attention. It was a case charged u/s. 376, and 366 IPC and prosecutrix stated that her father committed rape on her about five months prior to the date of giving FIS. In the said circumstances, it was held that corroboration is not the sine qua non for conviction of the accused in a rape case and even medical evidence need not be insisted upon, unless having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. In the said circumstances, conviction was sustained.
41. In State of Punjab v. Gurmit Singh & Ors. [1996 KHC 711] in a case charged u/s. 376 IPC it has been held that while appreciating the testimony of prosecutrix corroboration is necessary only in the presence of compelling reasons. In the case of appreciation of the evidence of a rape victim it has been held that it is the duty of the court to examine the broader probabilities of a case and should not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, Crl.A.254 of 2016 35 to throw out an otherwise reliable prosecution case. It is also held that the testimony of the prosecutrix must be appreciated in the background of the entire case.
42. In State of Himachal Pradesh v. Asha Ram [2006 KHC 157] it has been held that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also held that courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
43. In the present case, we have already discussed in detail the testimony of the victim minor girl who happened to be subjected to aggravated sexual assault and aggravated penetrative sexual assault by her own father and medical evidence also supports the testimony of the victim girl. In this case, it has also come out that the sexual assault meted out on her by the accused was so unbearable as to force the victim to leave her own house and take shelter in the maternal grandparent's house and from there she was taken to PW10, the Doctor for counselling, she narrated the incident to him and thereafter on the immediate next day the Crl.A.254 of 2016 36 complaint was filed.
44. The age of the victim is not disputed at all and moreover the evidence of PW14-the Secretary of Kattappana Grama Panchayath and Ext.P17 Birth Certificate would convincingly establish that the date of birth of the victim is 23.12.2002 and that has been stated by the victim which also remains unchallenged. So the fact that the victim was a minor child, aged 11 years, when the aggravated penetrative sexual assault was repeatedly committed by the accused/the father of the victim, stands proved.
45. Though Exts.C1 and C2 are also marked, it would only show that after the arrest in this case, when accused was admitted in the prison, there he showed some withdrawal symptoms and attempted to cause injury upon himself and attacked other persons and he was sent to the General Hospital for giving treatment and there after to Thrissur Mental Hospital. But the impression of the doctor on examination at the General Hospital is withdrawal symptom characteristic of alcoholism. So also nothing was brought out during evidence to show that he has got any mental illness and no such question was put to any of the witnesses. So Exts.C1 and C2 will not in anyway help the accused to claim any benefit on the basis of the same.
Crl.A.254 of 2016 37
46. So on an anxious evaluation of the facts and circumstances and evidence adduced in this case and the judgment passed by the court below, we are of the considered view that all the facts and circumstances and evidence adduced have been considered by the learned Additional Sessions Judge in the correct perspective to come to the conclusion regarding the guilt of the accused.
47. Now we come to the sentence. The learned counsel for the accused would contend that accused has been granted the maximum punishment u/s.376(2)(f)(n)IPC i.e rigorous imprisonment for life which shall mean the imprisonment for the remainder of his natural life and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) in default to undergo rigorous imprisonment for another six months. He is further sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/- (Rupees fifty thousand only) u/s. 9(m)(n) r/w. 10 of POCSO Act.
48. The learned counsel would contend that the accused has been awarded the maximum sentence and it is highly excessive and he has no criminal antecedents. Hence he seeks for maximum leniency.
49. The learned Special Public Prosecutor in this context placed reliance on State of Karnataka v. Puttaraja (2004 KHC 213) in the context of proportionality of sentence. According to the Crl.A.254 of 2016 38 learned Prosecutor after the Amendment Act 25 of 2019 more stringent Punishments has been introduced for the offence u/s.5 and 6 of the POCSO Act and that has to be considered while passing the sentence.
50. The offence proved to have been committed by the accused is aggravated sexual assault and also aggravated penetrative sexual assault repeatedly upon his minor daughter, aged 11 years, the former from 1st standard onwards till 09.08.2014 while she was studying in 6th standard. The trauma and the psychological imbalance which was caused upon the minor victim by her own father, the accused, is unimaginable. He was aged about 38 years at the time of filing the charge sheet in this case. So his return to the family definitely would result in serious issues in the family. However it has come out in evidence that Pw2 has already filed Original Petition for Divorce and it is pending. So, taking into account the fact that the accused is not involved in any other crime prior to this incident and the entire facts and circumstances, we are inclined to alter the sentence passed u/s.376(2)(f)(i)(n) to rigorous imprisonment for 12 (twelve) years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) in default to undergo further period of imprisonment for one year. The sentence passed Crl.A.254 of 2016 39 u/s. 9(l)(m)(n) r/w.10 by the learned Additional Sessions Judge is hereby maintained. Out of the fine amount, if realized, Rs.1,40,000/- shall be paid to PW1-the victim as compensation for the injury sustained by her u/s.357(1)(b) Cr.P.C. Substantive sentence shall run concurrently. Set off allowed.
51. In the result, appeal partly allowed, confirming the conviction and modifying the sentence.
Sd/-
K. VINOD CHANDRAN JUDGE Sd/-
M.R.ANITHA JUDGE Mrcs/Shg.15.2.
xxx