Kerala High Court
Santhosh K vs State Of Kerala on 22 July, 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
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
CRL.A.No.1162 OF 2015(B)
AGAINST THE JUDGMENT IN SC 548/2014 dated 29th day of April
2015 OF SPECIAL COURT UNDER POCSO ACT, Thalassery
CRIME NO.510/2014 OF Kannur Town Police Station
APPELLANT:
SANTHOSH K., S/O.JOHN, C-334/15, CENTRAL
PRISON, KANNUR
BY ADVS.
SRI.S.SACHITHANANDA PAI
SRI K.A ANAS STATE BRIEF
RESPONDENT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC
PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN-682 031.
R1 BY PUBLIC PROSECUTOR
SRI. RAMESH CHAND
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.07.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.1162 of 2015 2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.1162 of 2015
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Dated this the 22nd day of July, 2020
JUDGMENT
The sole accused in S.C.No.548 of 2014 on the files of the Special Court for the trial of offences against the children, Thalassery 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 5 years. The accusation against the accused is that in the early morning hours of 01.04.2014, the accused kidnapped the victim girl who was sleeping with her mother in the veranda of a shop and committed rape and penetrative sexual assault on her, and thereby committed the offences punishable under Sections 363 and 376(2)(i) of the Indian Penal Code (the IPC) and Sections 5(i) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
Crl.Appeal No.1162 of 2015 3
3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 13 witnesses as PW1 to PW13 and proved through them 16 documents as Exts.P1 to P16. The witnesses examined on the side of the prosecution have also identified the material objects in the case, viz, MO1 to MO3. Among the witnesses examined on the side of the prosecution, PW1 is the mother of the victim girl, PW2 is the sister of PW1, PW3 is the doctor who examined the victim girl on the same day by about 4.30 a.m., PW6 is the Police Official who was on night duty in the police aid post near the scene of occurrence, PW7 is the Sub Inspector of Police who reached the scene of occurrence on hearing the information about the crime from PW6, PW11 is the Security staff of the building near the scene of occurrence and PW12 is an autorickshaw driver who came to the scene of occurrence hearing the hue and cry of PW1. Among the documents, Ext.P1 is the First Information Statement proved by PW1 and Ext.P2 is the report of medical examination proved by PW3.
4. On an appraisal of the materials on record, Crl.Appeal No.1162 of 2015 4 the court below found the accused guilty of the offences punishable under Sections 363 and 376(2)(i) of the IPC and Sections 5(i) and 5(m) read with Section 6 of the POCSO Act. Accordingly, the accused was convicted and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/-, and in default of payment of fine, to undergo rigorous imprisonment for one month for the offence punishable under Section 363 of the IPC, and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.25,000/-, and in default of payment of fine, to undergo rigorous imprisonment for three months under Sections 5(i) and 5(m) read with Section 6 of the POCSO Act and Section 376(2)(i) of the IPC. 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 pointed out at the outset that the victim girl has not been examined in the case and no other evidence was let in by the prosecution to prove the overt act of sexual assault Crl.Appeal No.1162 of 2015 5 attributed against the accused. According to the learned counsel, in the circumstances, the case has to be treated as one of circumstantial evidence. It was argued by the learned counsel that the circumstances established by the prosecution would not prove beyond doubt the guilt of the accused under various provisions attributed against him and that the impugned judgment, in the circumstances, is unsustainable.
7. Per contra, the learned Public Prosecutor submitted that this is not a case where the prosecution has withheld the evidence of the the victim girl. It was pointed out by the learned Public Prosecutor that the court below did not permit examination of the victim girl since it was found that the victim girl was not in a position to understand the questions put to her and give rational answers to those questions. It was also submitted by the learned Public Prosecutor that the circumstances brought out in evidence are sufficient to prove the guilt of the accused beyond doubt and no interference is, therefore, called for with the decision impugned in the appeal. Crl.Appeal No.1162 of 2015 6
8. Having heard the learned counsel for the parties on either side and having perused the materials on record, I am of the view that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 363 and 376(2)(i) of the IPC and Sections 5(i) and 5(m) read with Section 6 of the POCSO Act.
9. Before dealing with the contentions advanced by the learned counsel for the parties on either side, it is necessary to refer to the evidence relied on by the prosecution to prove the guilt of the accused. As pointed out by the learned Public Prosecutor, it is seen that the court below did not permit examination of the victim girl holding after necessary enquiries that she is not in a position to understand the questions put to her and give rational answers to the same. As noted, PW1 is the mother of the victim girl. She deposed that on the relevant day, she was sleeping in the varanda of a shop along with the victim girl, and by about 2 a.m., when she woke up, she found that the victim girl was missing. She deposed that Crl.Appeal No.1162 of 2015 7 when she cried aloud, the security staff in the nearby textile shop informed her that somebody took away the child and went inside the nearby building. She deposed that she thereupon went inside the nearby building with the auto drivers who assembled at the scene in the meanwhile and found that the victim girl was lying near the accused. PW1 has identified the accused in court. Though she was declared hostile by the prosecution, for not giving favourable answers to the questions put by the Public Prosecutor thereupon, the evidence tendered by PW1 as referred to above has not been discredited in any manner.
10. PW2, the sister of PW1 deposed that she was also sleeping along with PW1 and the victim girl on the relevant day and that the victim girl was found missing by about 2 a.m. She deposed that when they were searching for the child, the security staff in the neighbouring shop informed them that the child has been taken away by somebody. She deposed that after some time, a few auto drivers came to the scene and they went inside the building and brought the child back stating that the child was found Crl.Appeal No.1162 of 2015 8 with the accused. She deposed that when the victim girl was brought back, there were no injuries on her body and the victim girl informed PW1 that the accused has covered her mouth using his hands. PW3 is the doctor who examined the victim girl on the same day after about two hours, at 4.30 a.m. She deposed that the victim girl was brought before her for examination on the allegation that somebody has kidnapped her and attempted to commit sexual assault on her. PW3 deposed that on examination, no injury was found on her breast or thigh. She, however, deposed that she found a fresh bruise on the inner aspect of her right labia majora. She also deposed that the hymen of the victim girl was intact on examination. She opined that her impression after examination was that there is evidence of sexual assault.
11. PW6 is the police official who was on duty in the police aid post near the scene of occurrence. He deposed that in the early hours of 01.04.2014, PW12 came to him and told him that somebody kidnapped a girl who was sleeping with her mother in the veranda of a shop. He Crl.Appeal No.1162 of 2015 9 deposed that he immediately informed the matter to the police station. PW7 is the Sub Inspector of police attached to Kannur Town police station and he deposed that on receiving information from PW6, he went to the scene and he found a bearded person, a few locals and a few nomadic women and children. He deposed that when he questioned the people assembled at the scene, they have informed him that the bearded person has kidnapped the victim girl and he was later found out with the victim girl from the car park area of the nearby building. PW7 identified the accused as the bearded person he found on that day. PW11 is the security staff in the building near the scene of occurrence. He deposed that he found that somebody was taking the victim girl who was sleeping with PW1 and PW2, and going inside the nearby building. He also deposed that when PW1 realised that the girl was missing, she started crying aloud and the people assembled at the scene hearing the cry of PW1. PW11 also deposed that the autorikshaw drivers who assembled at the scene then found out the person who removed the victim girl, from inside the nearby building. Crl.Appeal No.1162 of 2015 10 PW11 however, did not identify the accused and consequently, he too was declared hostile and cross examined by the Public Prosecutor. As in the case of PW1, even though PW11 was cross-examined, nothing was elicited from him as regards the evidence tendered by him.
12. PW12 is the crucial witness in the case. He is an autorickshaw driver. He deposed that on relevant day by about 2 a.m. in the morning, he found a lady crying aloud stating that her daughter has been kidnapped by somebody. He deposed that he immediately went to the police aid post and informed the matter to PW6. PW12 also deposed that when he came back to the scene, he was told by the watchman in the nearby shop that the girl has been taken inside the nearby shop by somebody. PW12 deposed that he thereafter went along with other autorikshaw drivers inside the shop and searched for the child and found that the child was lying naked near the accused. PW12 also deposed that the accused was then keeping the mouth of the victim girl closed using his hands. He further deposed that on seeing them, the accused attempted to flee away Crl.Appeal No.1162 of 2015 11 from the scene. PW12 also deposed that he along with others caught hold of the accused and handed over to the police.
13. On a scrutiny of the aforesaid evidence, I have no doubt that the prosecution has proved beyond doubt that the victim girl who was sleeping with her mother on the relevant day was kidnapped by somebody; that the victim girl was traced by the autorikshaw drivers and others who assembled at the scene from the car park area of the nearby building; that when the victim girl was found out, she was lying naked near the accused; that when the victim girl was found out, the accused was keeping her mouth closed using his hands, and that the accused then tried to flee away from the scene. It is trite that to convict a person on the basis of the circumstances, the circumstances should be consistent with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. In other words, the circumstances proved must be such that the only possible inference from the same shall be the guilt Crl.Appeal No.1162 of 2015 12 of the accused. The circumstances aforesaid, according to me, would certainly establish that the accused has taken away the victim girl who is a minor, out of the keeping of her lawful guardian without her consent. The circumstances aforesaid would also establish that the accused has sexually assaulted the victim girl. I take this view having regard to the evidence tendered by the doctor who examined the victim girl a few hours after the alleged occurrence that there is a fresh bruise on the inner aspect of the right labia majora of the victim girl. The larger question is as to whether the same is sufficient for the court to convict the accused under Section 376(2)(i)of the IPC and Sections 5(i) and 5(m) read with Section 6 of the POCSO Act. In order to make out a case under Section 376(2)(i), or Sections 5(i) and 5(m) read with Section 6 of the POCSO Act, going by the definitions of rape and penetrative sexual assault contained in the said statutes, the prosecution has to prove either that the accused has penetrated his penis or inserted any object or any part of his body into the vagina of the victim girl or has manipulated any part of the body of the Crl.Appeal No.1162 of 2015 13 victim girl so as to cause penetration to her vagina or has applied his mouth to her vagina. Merely for the reason that the accused was found keeping the mouth of the victim girl closed using his hand and that the victim girl was found naked near the accused and that a fresh bruise was found on the inner aspect of the right labia majora of the victim girl, it cannot be inferred, without any suspicion whatsoever, that the accused has penetrated his penis or inserted any object or any part of his body into the vagina of the victim girl or has manipulated any part of the body of the victim girl so as to cause penetration to her vagina or has applied his mouth to her vagina. At the same time, the aforesaid circumstances are sufficient for the court to come to the irresistible conclusion that the accused has assaulted the victim girl sexually. The accused has no case that the victim girl was above 12 years. In other words, the materials on record are sufficient to hold that the accused is guilty of aggravated sexual assault punishable under Sections 9(i) and 9(m) read with Section 10 of the POCSO Act. Needless to say, the conviction of the accused is liable to be altered Crl.Appeal No.1162 of 2015 14 to one under Sections 9(i) and 9(m) read with Section 10 of the POCSO Act.
14. The minimum punishment for the offences punishable Sections 9(i) and 9(m) read with Section 10 of the POCSO Act is five years. At the time of hearing, it was submitted by the learned counsel for the appellant that the accused is in custody since 1.4.2014. In other words, the accused has now completed detention for a period exceeding 6 years. In the aforesaid circumstances, according to me, the sentence already undergone by the accused would be the adequate sentence to be imposed on him for the offences punishable under Sections 9(i) and 9(m) read with Section 10 of the POCSO Act. In so far as the accused is stated to have undergone the punishment imposed on him for the offence under Section 363 of the IPC, it is unnecessary to consider the question as to whether the sentence imposed on him for the said offence is adequate.
15. In the result, the appeal is allowed in part. Crl.Appeal No.1162 of 2015 15 The conviction of the appellant is altered to one under Sections 9(i) and 9(m) read with Section 10 of the POCSO Act and also under Section 363 of the IPC. It is ordered that the sentence already undergone by the accused is adequate for the offences under Sections 9(i) and 9(m) read with Section 10 of the POCSO Act. In all other respects, the impugned judgment will stand. The accused shall, therefore, be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE PV