Kerala High Court
Khalid @ Alikka vs State Of Kerala on 29 June, 2020
Equivalent citations: AIRONLINE 2020 KER 1229
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 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942
CRL.A.No.1259 OF 2018
AGAINST THE JUDGMENT IN S.C.NO.385/2015 DATED 11-07-2018
OF ADDITIONAL DISTRICT AND SESSIONS COURT(FOR THE TRIAL OF
CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE TOWARDS
WOMEN AND CHILDREN), KOZHIKODE
APPELLANT/ACCUSED:
KHALID @ ALIKKA,
AGED 61 YEARS,
S/O.MOIDEEN KUTTY, HOUSE NO.B-17,
THOPPAYIL BEACH, NADAKKAVU.P.O,
KOZHIKODE
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI. ANAND K
RESPONDENT/STATE:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
(CRIME NO.551/2014 OF VELLAYIL POLICE STATION,
KOZHIKODE DISTRICT)
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
SRI.RAMESH CHAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-
06-2020, THE COURT ON 29-06-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.1259 of 2018
2
P.B.SURESH KUMAR, J.
----------------------------------------------------
Crl.Appeal No.1259 of 2018
--------------------------------------------
Dated this the 29th day of June, 2020
JUDGMENT
This appeal is directed against the conviction and sentence of the appellant in S.C.No.385 of 2015 on the files of the Additional Sessions Court, Kozhikode. The appellant is the sole accused in the case. The victim in the case is a girl aged 7 years.
2. The accusation in the case is that about two months prior to 28.11.2014, the accused who is the neighbor of the victim girl took the victim girl to his house, had sexual intercourse with her and threatened her that she would be done away with, if she discloses the incident to anyone. The offences attributed against the accused are the offences punishable under Sections 376 and the first part of 506 of the Crl.Appeal No.1259 of 2018 3 Indian Penal Code (the IPC) and Section 5(m) read with Section 6 of the Protection of the Children from Sexual Offeces Act, 2012(the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 16 witnesses as PWs.1 to 16 and proved 16 documents as Exts.P1 to P16. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined, PW1 is the victim girl. She proved Ext.P1 First Information Statement and Ext.P2 statement given by her under Section 164 of the Code. PW2 is the doctor who examined the victim girl and issued Crl.Appeal No.1259 of 2018 4 Ext.P3 wound certificate. PW2 has also proved Ext.P4 consent letter given by the mother of the victim girl for the medical examination of the victim girl. PW3 is another doctor who examined the victim girl and issued Ext.P5 treatment certificate. PW4 is the doctor who examined the accused and issued Ext.P6 potency certificate. PW5 is the witness to Ext.P7 scene mahazar. PW6 is the official of the local authority who issued Ext.P8 birth certificate of the victim girl. PW7 is the official of the local authority who issued Ext.P9 ownership certificate concerning the house of the accused. PW8 is the village official who issued Ext.P10 site plan. PW9 is the police official who registered Ext.P11 First Information Report. PW10 is the mother of the victim girl. PW11 is a friend of the victim girl. PW12 is the counsellor attached to the organization called "Bhumika" who gave counseling to the victim girl. PW13 is the police official who recorded Ext.P1 First Information Statement. PW14 is the police official who conducted part of the Crl.Appeal No.1259 of 2018 5 investigation. PW14 proved Ext.P12 arrest memo, Ext.P13 arrest intimation, Ext.P14 report adding the particulars of the offence. PW15 is the police official who conducted another part of the investigation. PW16 is the police official who submitted the final report in the matter. PW16 proved Ext.P16 report furnishing the particulars of the accused.
5. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Sections 376 and first part of 506 of the IPC and Section 5(m) read with Section 6 of the POCSO Act. Accordingly, the accused was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act. Similarly, the accused was also sentenced to undergo simple imprisonment for two years for the offence punishable under Crl.Appeal No.1259 of 2018 6 the first part of Section 506 of the IPC. Separate sentence was not imposed on the accused for the offence punishable under Section 376 of the IPC. Substantive sentences were ordered to run concurrently. The accused is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. At the outset, the learned counsel for the appellant submitted that the evidence tendered by the victim girl as regards the incident is not consistent and reliable. It was pointed out that what is stated by the victim girl in Ext.P1 first information statement is only that the accused has rubbed her vagina, whereas, in Ext.P2 statement and before the court, the victim girl has gone one step ahead and stated that the accused has placed his genital organ on her vagina. The medical evidence let in by the prosecution does not also support the prosecution case, submits the counsel. It is stated Crl.Appeal No.1259 of 2018 7 by the counsel that since the conviction of the accused is solely based on the evidence of the victim girl, the same is unsustainable in law. Alternatively, the learned counsel argued that, at any rate, the evidence would only show that the accused has touched the vagina of the victim girl and nothing more, and if that be so, the appellant is not liable to be convicted under Section 4 of the POCSO Act.
8. Per contra, the learned Public Prosecutor submitted that the evidence tendered by the victim girl is natural, consistent and the same has been corroborated by the evidence tendered by her mother, PW10, her friend, PW11 and the doctor who examined her, PW2. It was also pointed out by the learned Public Prosecutor that the evidence tendered by the victim girl is further corroborated by Ext.P1 First Information Statement and Ext.P2 statement given by the victim girl under Section 164 of the Code.
9. Having heard the learned counsel for the Crl.Appeal No.1259 of 2018 8 parties on either side and having perused the materials on record, it is seen that the points arising for consideration are whether the prosecution has established the guilt of the accused under Sections 376 and the first part of Section 506 of the IPC and Section 5(m) read with Section 6 of the POCSO Act, and if not, whether the accused is entitled to any relief.
10. Before I deal with the contentions raised by the learned counsel for the parties on either side, it is necessary to refer to a few facts which are not in dispute. The accused is a neighbor of the victim girl. The incident alleged is one that took place two months prior to the day on which the First Information Report was lodged. The First Information Report was lodged on 28.11.2014. On the same day, the victim girl was examined by PW2 doctor. It is about a month thereafter, on 30.12.2014, that Ext.P2 statement under Section 164 of the Code was recorded from the victim girl. The evidence was tendered by the victim girl after about four years thereafter, on Crl.Appeal No.1259 of 2018 9 22.01.2018.
11. I shall now refer to the evidence tendered by the victim girl. The victim girl has deposed that the incident occurred when she was studying in the 1st standard. She deposed that she does not know the year. She deposed that the incident occurred while she was playing with her friends in the courtyard of her house. She deposed that the accused who has been identified by her in court then called her to his house showing two rupees. She deposed that when she went to his house, the accused took her to his room. She deposed that the accused thereafter removed her baniyan and pants and made her lie down in the cot. She deposed that the accused thereafter poked her vagina using his finger. She deposed that thereafter the accused placed his genital organ on her vagina. She deposed that thereafter the accused placed his genital organ on her back and pressed. She deposed that when she cried, the accused threatened her that she will be killed, if she Crl.Appeal No.1259 of 2018 10 discloses the incident to anyone. She deposed that she did not therefore inform the incident to anybody. She deposed that the accused called her twice thereafter also and inserted his finger into her vagina. She deposed that thereafter she used to have pain while passing urine. She deposed that she informed her mother about the pain. She deposed that when her mother asked her, she disclosed the incident to her mother. She deposed that her mother then took her to a hospital and informed the matter to the doctor. She deposed that police came to the hospital and she informed the matter to the police also. She deposed that the police took down her statement. She identified Ext.P1 First Information Statement as also Ext.P2 statement recorded from her under Section 164 of the Code. In cross examination, the victim girl asserted that she had informed the police that the accused has poked her vagina; that the accused has placed his genital organ on her vagina; that the accused has pressed her back with his genital organ Crl.Appeal No.1259 of 2018 11 and that the accused has inserted his finger into her vagina. She has also stated in cross examination to a specific question put to her that she has informed the occurrence to her friend "സന".
12. PW2 is the doctor who examined the victim girl on 28.11.2014 and issued Ext.P3 wound certificate. She deposed that the victim was brought before her with the allegation that a person named "അലദദക" has inserted his finger into her vagina. She also deposed that the victim girl complained that she has burning sensation while passing urine. She deposed that on examination, the vagina, hymen and breast of the victim girl were found normal and no injuries were noted on the face, back and abdomen of the girl. In cross examination, PW2 stated that the allegations in Ext.P3 have been recorded by her as disclosed to her by the mother of the victim girl. PW3 is another doctor who examined the victim girl on the same day and issued Ext.P5 report on the advice of Crl.Appeal No.1259 of 2018 12 PW2. PW3 has deposed that on Gynaecology consultation, he found that the victim girl was sexually abused. In cross examination, he admitted that he has not mentioned the name of the Gynaecologist who was consulted in Ext.P5 report issued by him. PW10 is the mother of the victim girl. She deposed that on 27.11.2014, the victim girl complained that she has pain while passing urine. She deposed that when questioned, the victim girl told her that the accused once took her to his house, made her lie down in the cot, removed her pants and undergarments and then did something with his hand in her vagina. PW10 also deposed that the victim girl told her that the accused threatened her that she will be killed if she discloses the occurrence to anyone. PW11 is a friend of the victim girl named 'Sana'. PW11 deposed that during 2014-15, while she was studying in the 7th standard, the victim girl has once told her that the accused has removed her clothes and did something. PW11 deposed that she does not remember what Crl.Appeal No.1259 of 2018 13 exactly the accused has done on the victim girl, as told to her by the victim girl. She deposed that when she asked the victim girl as to why she has not disclosed that to her parents, the victim girl told her that the accused has threatened her that she will be killed, if she discloses the incident to anyone.
13. It is based on the evidence tendered by PW1, PW2, PW3, PW4, PW10 and PW11 that the learned Public Prosecutor contended that the prosecution has established the guilt of the accused. As noted, the first information statement regarding the occurrence was made by the victim girl to her mother on 27.11.2014. The evidence tendered by the mother of the victim girl in this regard reads thus:
"മതവവനന വലലപ മകനള വവടവലലകക വവളവചനകകണലപകയവ മറവയവല കയറവ കടവലവല കവടകകൻ പറഞ. ചരവദകർ ആയവരന. അതക അഴവകകൻ പറഞ. ചരവദകർ പകനക അഴവച. ഷഡവയയ അഴവകകൻ പറഞ. മകൾ അഴവച. എനവടക മതവവനന (page 6)വലലപ മൂത്രനമകഴവക്കുന സ്ഥലതക കകനകകണക എനനകനകലയക കകടവനയന പറഞ."
PW10 took the victim girl to the hospital on the next day namely, 28.11.2014. It has come out that after a preliminary Crl.Appeal No.1259 of 2018 14 consultation, the doctor has referred the victim girl to PW12 for counseling and it is after the counseling that the matter was informed to the police. Ext.P1 First Information Statement was taken from the victim girl thereafter, on the same day. In Ext.P1, the version given by the victim girl as regards the occurrence reads thus:
"എനന വവടവനടതള ആലവക കലറ ദവവസയ മമക എനന വവടവനന മറതക ഞകൻ കടകകലരകനടകതക കവകലനരയ കളവക്കുലമകൾ എനന രണരപ കകണവചക ആയവഷ ഇലങകടക വക, നമകക കളവകകയ എനക പറഞക അയകളുനട വവടവലലകക എനന വവളവച. ഞകൻ ഓടവനചന. ആലവക എനന മറവയവല ഉള കടവലവല കവടതവ ഞകൻ ഇടവരന പകനയ ജഡവയയ അഴവചമകറവ അയകളുനട വവരല നകകണക എനന മൂത്രനമകഴവക്കുന സ്ഥലതക എലനക നചെയ. അതവനുലശേഷയ എനവകക മൂത്രനമകഴവക്കുന ഭകഗതക ഭയങ്കര ലവദനയയ പുകചവലയ ഉണകയവ. ഇകകരരയ ആലരകടയ പറയരനതനയ പറഞകല നവനന നകകന കളയനമനയ ആലവക എലനകടക പറഞതു നകകണക ഞകനവകകരരയ ആലരകടയ പറഞവല്ല .
True, what is informed by the mother of the victim girl to PW2 doctor who has examined the victim girl thereafter and recorded in Ext.P3 is that the accused has inserted his finger into the vagina of the victim girl. I am not taking into account of the said statement since it was admitted by the doctor Crl.Appeal No.1259 of 2018 15 herself that it was the mother of the victim girl who has made the said statement. Ext.P2 statement under Section 164 of the Code was taken from the victim girl almost a month thereafter, on 30.12.2014. In Ext.P2 statement, the version of the victim girl as regards the occurrence reads thus:
"ഒര ദവവസയ school വവടക വവടവല വനക പമരയ നകകണക മറതക കളവചനകകണവരവക്കുലമകൾ ഉമ മകത്രയ വവടവലണകയവരന. ആലദവക അടതതവനന അടത വവടവനല ആലദവക, മറതക വനക ഒര കപസ എനന കകണവച . നമകക കളവകകയ എനക പറഞക അയകളുനട വവടവല കടവനകകണ ലപകയവ. അയകളുനട വവടവല ആരമവല്ലകയവരന . ഉളവനല room - ല നചെനലപകൾ എലനകടക ഷഡവ അഴവകകൻ പറഞ. pant - ഉയ ബനവയനുമകണക ഞകൻ ഇടവരനതക. ഞകൻ പകനകസക ഊരവ . എലനകടക കടവല ലമല കവടകകൻ പറഞ . ഞകൻ കവടന . അയകൾ കക നകകണക ആകവ. ഇവവനട ആകവ . she touches her private parts. മൂത്രനമകഴവക്കുന ഭകഗതക അയകൾ 2 വവരല വചക അമർതവ. അയകളുനട മട she explain അയകൾ മൂത്രനമകഴവക്കുന സകധനയ എനന മൂത്രനമകഴവക്കുന ഭകഗതക വച. പവനന എലനകടക മറവയകൻ പറഞ . പവനന back- ല വച . she explain ഉറകനന ഉളവല വച. ഞകൻ ഉചതവല കരഞ . നകകനകളയയ എനക എലനകടക പറഞ"
As noted, there is substantial improvement in Ext.P2 statement made by the victim girl from her earlier narration regarding the incident to her mother and the narration in the First Information Statement. The evidence tendered by the victim girl is more or less on the same lines with Ext.P2 statement given by the victim girl under Section 164 of the Code.
Crl.Appeal No.1259 of 201816
14. On a careful scrutiny of the evidence tendered by the prosecution, there is absolutely no reason to disbelieve the evidence tendered by the victim girl that on the relevant day, the accused took her to his house, made her lie down in the cot, removed her clothes and did something in the vagina of the victim girl. An adjudication of what was done by the accused is necessary to fix the liability, for, if the accused has only touched or poked at the vagina of victim girl as spoken to by her in her first statement made to her mother, and to the Police, it cannot be contended that the prosecution has made out a case of penetrative sexual assault. On the other hand, if the accused had inserted his finger into the vagina of the victim girl or has placed his genital organ on the vagina of the victim girl, then it is a case of penetrative sexual assault. When the victim girl was examined by PW2 doctor, she was suffering from burning sensation while passing urine and what is certified by PW2 in Ext.P3 wound certificate is only that the same could be Crl.Appeal No.1259 of 2018 17 caused if the the assailant has inserted his finger into her vagina. The evidence tendered by PW2 and Ext.P3 wound certificate is not of any use to the court to decide the question as to which of the statements made by the victim girl is correct, more precisely, on the question as to whether the accused had did something other than mere touching or poking at the vagina of the victim girl. Coming to the evidence of PW3 doctor, though he stated that he confirmed after examination of the victim girl and after Gynaecologic consultation that she was subjected to sexual abuse, it is not seen as to how PW3 has arrived at the said conclusion. He has not even mentioned in his report the particulars of the Gynaecologist who was consulted by him nor the particulars of the opinion received from the Gynaecologist. The evidence tendered by PW3 is also therefore not of any use to adjudicate the point referred to above. As noted, there is substantial improvement in Ext.P2 statement made by the victim girl and also in her evidence, Crl.Appeal No.1259 of 2018 18 from her earlier narration regarding the incident to her mother and in the First Information Statement. If as a matter of fact the accused had inserted his finger into the vagina of the victim girl or has made an attempt to rape her by placing his genital organ on her vagina, there is absolutely no reason why the girl would not have spoken about the same to her mother, when she narrated about the occurrence to her. In the said circumstances, I am of the view that it is not safe to place reliance on the subsequent statements of the victim girl as regards the incident. In other words, what is proved by the prosecution is only that the accused took the victim girl one day to his house, made her lie down in the cot and did something with his hand at her vagina.
15. The accused is charge sheeted for aggravated penetrative sexual assault and rape. In order to constitute penetrative sexual assault, it has to be established that the accused has either inserted his finger into the vagina of the Crl.Appeal No.1259 of 2018 19 victim girl or penetrated his penis into her vagina. If the accused has only rubbed at the vagina of the victim girl without insertion, since the age of the victim girl is only seven years, the offence committed is only the offence punishable under Section 9(m) of the POCSO Act. Needless to say that the conviction of the accused is labile to be altered from Section 5(m) to Section 9(m) of the POCSO Act.
In the result, the appeal is allowed in part and the conviction of the appellant is interfered with and is altered to one under Section 9(m) of the POCSO Act and he is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for three months. In all other respects, the impugned judgment will stand affirmed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
DK