Kerala High Court
Surendran M. @ Kalyani Surendran vs State on 10 March, 2021
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
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
CRL.A.No.693 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
APPELLANT/ ACCUSED NO.1:
SURENDRAN M. @ KALYANI SURENDRAN, AGED 63 YEARS,
S/O.ONAKKAN, KALYANI NIVAS, THIRUVANGAD,
PULLAMBIL ROAD, THALASSERY
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.MANU TOM
SRI.A.RAJESH
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.M.VIVEK
RESPONDENT/ COMPLAINANT:
STATE,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2021,
ALONG WITH CRL.A.459/2015(A), CRL.A.460/2015(A), CRL.A.497/2015,
CRL.A.530/2015, Crl.Rev.Pet.245/2016, THE COURT ON 10-03-2021
DELIVERED THE FOLLOWING:
Crl.A.No.693/2015 & - 2 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
CRL.A.No.459 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
APPELLANT/ ACCUSED NO.3:
SUNIL BABU V. @ BABU, S/O.KRISHNAN,
PIGMI COLLECTION AGENT, SOORYA, KUTTIMAKKOOL,
THIRUVANGAD, THALASSERY
BY ADVS.
SRI.P.B.AJOY
SRI.T.M.DOLGOVE
SMT.M.NEEMA
RESPONDENTS/ COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
THALASSERY POLICE STATION, KANNUR DISTRICT - 670 001.
2 THE CIRCLE INSPECTOR OF POLICE, THALASSERY,
KANNUR DISTRICT - 670 001.
3 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1-R3 BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2021,
ALONG WITH CRL.A.460/2015(A), CRL.A.497/2015, CRL.A.530/2015,
CRL.A.693/2015, Crl.Rev.Pet.245/2016, THE COURT ON 10-03-2021
DELIVERED THE FOLLOWING:
Crl.A.No.693/2015 & - 3 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
CRL.A.No.460 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
APPELLANT/ ACCUSED NO.4:
SURESH KUMAR.N.@ MANEESAN, S/O.KUNHI KRISHNAN,
PRANAVAM, THIRUVANGAD, THALASSERY.
BY ADV. SRI.R.T.PRADEEP
RESPONDENTS/ COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
THALASSERY POLICE STATION, KANNUR DISTRICT - 670 001.
2 THE CIRCLE INSPECTOR OF POLICE, THALASSERY,
KANNUR DISTRICT - 670 001.
3 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1-R3 BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2021,
ALONG WITH CRL.A.459/2015(A), CRL.A.497/2015, CRL.A.530/2015,
CRL.A.693/2015, Crl.Rev.Pet.245/2016, THE COURT ON 10-03-2021
DELIVERED THE FOLLOWING:
Crl.A.No.693/2015 & - 4 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
CRL.A.No.497 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
APPELLANT/ ACCUSED NO.5:
PADMANABHAN K.@ PAPPAN MASH, AGED 79 YEARS,
S/O.KUNJIKANNAN, 'PENSIONER',
VASANTHA NIVAS, PULLAMBIL ROAD, THIRUVANGAD P.O.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT/ COMPLAINANT:
THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2021,
ALONG WITH CRL.A.459/2015(A), CRL.A.460/2015(A), CRL.A.530/2015,
CRL.A.693/2015, Crl.Rev.Pet.245/2016, THE COURT ON 10-03-2021
DELIVERED THE FOLLOWING:
Crl.A.No.693/2015 & - 5 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
CRL.A.No.530 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
APPELLANT/ ACCUSED NO.2:
SUDHEESH A.K. @ SASI, AGED 50 YEARS, S/O.RAGHAVAN,
RESIDING AT DEEPTHI HOUSE, PULLAMBIL ROAD,
CHIRAKKARA, THIRUVANGAD, THALASSERY
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SMT.MITHA SUDHINDRAN
SRI.VIPIN NARAYAN
RESPONDENTS/ COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
THALASSERY POLICE STATION, KANNUR DISTRICT-673 001.
2 THE CIRCLE INSPECTOR OF POLICE, THALASSERY,
KANNUR DISTRICT - 673 001.
3 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
R1-R3 BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2021,
ALONG WITH CRL.A.459/2015(A), CRL.A.460/2015(A), CRL.A.497/2015,
CRL.A.693/2015, Crl.Rev.Pet.245/2016, THE COURT ON 10-03-2021
DELIVERED THE FOLLOWING:
Crl.A.No.693/2015 & - 6 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 10TH DAY OF MARCH, 2021 / 19TH PHALGUNA, 1942
Crl.Rev.Pet.No.245 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.476/2013 DATED 29-04-2015 OF THE
COURT OF THE SPECIAL JUDGE FOR TRIAL OF OFFENCES AGAINST CHILDREN,
(SECTION 25 OF THE COMMISSION FOR PROTECTION OF
CHILD RIGHT ACT 2009) AT THALASSERY.
[CRIME NO.496/2013 OF THALASSERY POLICE STATION]
REVISION PETITIONER/S:
(VICTIM)
BY ADVS.
SRI.SIDHARTH A.MENON
SHRI.MUHAMMED SABIR
RESPONDENT/S:
1 SURENDRAN M. @ KALYANI SURENDRAN, AGED 66 YEARS,
S/O. ONAKKAN, KALYANI NIVAS, P.O.THIRUVANGAD,
PULLAMBIL ROAD, THALASSERY, PIN - 670 103.
2 SUDESH A.K @ SASI, AGED 51 YEARS, S/O. RAGHAVAN,
BUSINESS, DEEPTHI HOUSE, PULLAMBIL ROAD, CHIRAKKARA,
THIRUVANGAD, THALASSERY, PIN - 670 103.
3 SUNIL BABU V @ BABU, AGED 51 YEARS, S/O.KRISHNAN,
PIGMI COLLECTION AGENT, SOORYA, KUTTIMAKKOOL,
THIRUVANGAD, THALASSERY, PIN - 670 103.
4 SURESH KUMAR. N @ MANEESAN, AGED 52 YEARS,
S/O. KUNHI KRISHNAN, PRANAVAM, THIRUVANGAD,
THALASSERY, PIN - 670 103.
Crl.A.No.693/2015 & - 7 -
connected cases
5 PADMANABHAN. K @ PAPPAN MASH, AGED 82 YEARS,
S/O. KUNHI KANNAN, PENSIONER,
VASANTHA NIVAS, PULLAMBIL ROAD,
P.O.THIRUVANGAD, THALASSERY, PIN - 670 103.
6 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.R.ANIL
R1 BY ADV. SRI.M.SUNILKUMAR
R1 BY ADV. SRI.SUJESH MENON V.B.
R1 BY ADV. SRI.T.ANIL KUMAR
R1 BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
R1 BY ADV. SRI.THOMAS SABU VADAKEKUT
R1 BY ADV. SHRI.MAHESH BHANU S.
R1 BY ADV. SMT.S.LAKSHMI SANKAR
R1 BY ADV. SHRI.RESSIL LONAN
R2 BY ADV. SRI.P.VIJAYA BHANU (SR.)
R2 BY ADV. SRI.P.M.RAFIQ
R2 BY ADV. SRI.M.REVIKRISHNAN
R2 BY ADV. SRI.VIPIN NARAYAN
R2 BY ADV. SRI.AJEESH K.SASI
R2 BY ADV. SMT.POOJA PANKAJ
R2 BY ADV. SRI.V.C.SARATH
R2 BY ADV. SRUTHY N. BHAT
R3 BY ADV. SRI.P.B.AJOY
R4 BY ADV. SRI.R.T.PRADEEP (B/O)
R5 BY ADV. SRI.P.MARTIN JOSE (B/O)
R6 BY SMT.AMBIKA DEVI. S., SPL.GOVT.PLEADER
FOR ATROCITIES AGAINST WOMEN AND CHILDREN.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
17-02-2021, ALONG WITH CRL.A.459/2015(A), CRL.A.460/2015(A),
CRL.A.497/2015, CRL.A.530/2015, CRL.A.693/2015, THE COURT ON
10-03-2021 PASSED THE FOLLOWING:
Crl.A.No.693/2015 & - 8 -
connected cases
"C.R"
K. Vinod Chandran & M.R. Anitha, JJ.
------------------------------------- Crl.A.Nos.693/2015, 459/2015, 460/2015, 497/2015, 530/2015 & Crl.Rev.Pet.245/2016
------------------------------------- Dated, this the 10th day of March, 2021 JUDGMENT/ORDER Vinod Chandran, J.
The prosecution has charged a case of abject moral depravity in which five persons, aged between 48 to 79, were alleged to have ravished a minor girl, as complained of by the victim and her mother. The prosecution case rests squarely on the evidence of the victim.
I. The revision and prayer for conversion as an appeal:
2. The appeals are filed by the accused and after hearing commenced and continued for two days, Sri.Siddarth A. Menon, Legal Aid Counsel appointed in Crl.R.P.246/2016 sought for conversion of the R.P. into an appeal under Section 401(5) of the Code of Criminal Procedure, 1973 ['Cr.P.C.' for brevity]. The revision filed by the victim was called to the Division Bench, to be heard along with the appeals. The Counsel appearing for the accused appearing in the appeals have taken notice for the respondents on 08.02.2020. The prayer for conversion as appeal is on the ground that, unwittingly, the victim, filed a revision against the order of acquittal under the Protection of Children from Sexual Offences Act, 2012 ['POCSO Act' for brevity]. A victim is enabled to file an appeal against such order of acquittal as Crl.A.No.693/2015 & - 9 - connected cases per the proviso to Section 372 of the Cr.P.C. The learned Counsel would rely on the decisions of the Hon'ble Supreme Court in Blssu Mahgoo v. State of Uttar Pradesh [AIR 1954 SC 714] and Bachan Singh v. State of Punjab [(1979) 4 SCC 754].
3. Learned Senior Counsel Sri.P.Vijaya Bhanu specifically pointed out that the revision only has a prayer for enhancement of sentence for which a victim has no right to file appeal. There is no prayer as such for reversing the order of acquittal under the POCSO Act. It is also urged that in any event, the accused would be prejudiced if now the revision is converted into an appeal against acquittal, since at no time, for the past five years, when the accused were in custody, the prayer was made.
4. Blssu Mahgoo held that when either the State or the complainant moved the High Court in revision against the sentence awarded, the High Court was well within its powers to enhance the sentence. Bachan Singh was a case in which appeals were filed by both the accused and the State. The High Court enhanced the sentence by partly allowing the appeal of the State, which order was challenged for non compliance of S.377(3). The Hon'ble Supreme Court held that erroneously the enhancement of sentence was ordered in the appeal; which obviously the State did not seek. The enhancement was actually made in a clearly maintainable revision under Section 401 of Cr.P.C. which was also pending along with the appeals.
5. In the present case the prayer for enhancement of sentence can be considered in the revision itself. Though there is no prayer made for reversing the acquittal under the POCSO Act, we see that one of the grounds raised is against Crl.A.No.693/2015 & - 10 - connected cases acquittal. We were hence of the opinion that the prayer for conversion could have been considered; but for the accused being disabled from filing an appeal for enhancement of sentence. The revision petitioner cannot seek for conversion of a portion of the revision as an appeal and retain the revision to the extend it seeks enhancement of sentence.
6. The acquittal sought to be challenged by the victim is against the acquittal under the POCSO Act. Which came into effect from 14.11.2012. The alleged incidents of rape occurred in the year 2010 and 2011 and there is no specific date mentioned. There is nothing in evidence to show that even after 14.11.2012 the victim was sexually assaulted by A1 to A5 and thus the acquittal under the POCSO Act. We find no reason to interfere with the order of acquittal.
There is also the technical difficulty in retaining the revision for enhancement of sentence and converting a portion of it as an appeal against acquittal. We do not intend to invoke our powers under Section 401(5). The prayer for conversion of the revision into an appeal stands rejected. As far as the enhancement of sentence is concerned, we deem it fit that it be considered along with the appeals. II. The Conviction and Sentence:
7. The allegation comprises incidents spoken of by the victim involving the accused, singly and separately in groups of two. The prosecution went to trial with the victim as the key witness; PW-1. The prosecution also examined PW2 to 13 and marked Exts. P1 to P28. The defence examined DW-1 to DW-10 and marked 34 exhibits as Exts. D1 to D10 & D10(a) series. The trial Court acquitted the accused under the POCSO Act and convicted A1&2 to 5 five years under S.366A and life Crl.A.No.693/2015 & - 11 - connected cases imprisonment under S.376(2)(g). A3 to A5 were convicted and sentenced to 10 years under S.376(2)(g). III. The Arguments:
8. Learned Senior Counsel Sri.B.Raman Pillai appearing for A1 pointed out the contradictions and omissions in the evidence of PW-1, the victim, which were read extensively. The very case that PW1 was picked up from a public road is highly improbable, when there are houses situated on both sides of that road. PW1 alleged that the accused; in all instances, manhandled her before the act of harassment. There is nothing to show that PW1 suffered any bodily injury. PW1 had different versions in the FIS, the 164 statement and her deposition. Both PW-1 and PW-2, the mother admit an earlier complaint filed before the Deputy Superintendent of Police ['Dy.SP' for brevity], which was not proceeded with. Even the trial Court disbelieved their version of a subsequent instance of harassment, prompting the instant complaint on 08.04.2013. The first complaint was one alleging defamation of the mother and daughter and even according to PW-1 no allegation of sexual harassment was made. The second complaint was a mere afterthought intended to wreak vengeance. According to the accused, there was a dispute with the mother of the victim, regarding the sale of a property lying adjacent to her residence, which property was purchased by A3 and A1 was the broker.
9. The car belonging to the son of A1 was seized by the police as pointed out by the victim, as one in which she was forcibly taken. The evidence of DW-1, Joint RTO, shows that the said car was taken delivery on 18.03.2011 and registered on 25.03.2011. DW-2 & DW-5 are the son and Crl.A.No.693/2015 & - 12 - connected cases daughter-in-law of A1, whose evidence indicate that they resided along with A1,his wife and another son. DW-4's deposition was read out to impress upon us that he is a pious man who regularly takes penance for the pilgrimage to Sabarimala. Reliance was placed on - Bhimapa Chandappa Hosamani v. State of Karnataka [(2007) 1 SCC (Cri) 456], Rai Sandeep v. State (NCT of Delhi)[(2012) 8 SCC 21], Krishan Kumar Malik v. State of Haryana [(2011) 3 SCC (Cri) 61], Santosh Prasad @ Santosh Kumar v. State of Bihar [(2020) 3 SCC 443] and Royson v. State of Kerala [2017 KHC 1056 ].
10. Sri.P.Vijayabhanu, learned Senior Counsel appearing for A2, submits that without a 'Willing Suspension of Disbelief'; no Court can believe the evidence led.
Adopting the arguments of A1, it is further argued that there is no evidence to establish PW1's date of birth and there is no proof that she was a minor or below 16 years of age. The veracity of the evidence of PW-1 & PW-2 has a ring of falsity and PW-1 modulated her versions and embellished it to a large extent. The medical report of PW1 indicates only possibility of sexual intercourse, but there is nothing to connect the accused with the incidents which relate back to more than two years. A2 has school-going children who return home by 4.00 P.M, as deposed by DW-6. DW-7 proves construction activities going on in the house of A2 during the period the incidents are alleged. At no point there is an allegation that two of the accused together ravished the victim and there is no cause for invoking S.376(2)(g). A2 has been charged under S.366A, but there is no allegation of himself having harassed her together with A3 or A4 and hence the charge under S.376(2)(g) cannot hold good. Birad Mal Singhvi Crl.A.No.693/2015 & - 13 - connected cases v. Anand Purohit [AIR 1988 SC 1796], Ashok Kumar v. State of Haryana [AIR 2003 SC 777], State of Madhya Pradesh v. Munna [(2016) 1 SCC 696] and Manojan v. State of Kerala [2013 (3) KHC 642], Sasi v. State of Kerala [2019 (2) KLD 175 (DB)] were relied on.
11. Sri.Ajoy P.V. appears for A3 and points out that though PW-1 and PW-2 admit that some people of the locality required PW-2 to bestow more attention on PW1, none were examined to furnish a reason for such a warning. The father of the victim, who accompanied PW-1 & PW-2 when both the complaints were made, was not examined. PW1 in the FIS clearly stated that apart from A1 to A4, she was harassed by two or three persons, none of whom have been named except A5 at a later point. There is no allegation of rape and she only complains of sexual abuse, which does not bring in the essential ingredient of penetration. The medical report does not attribute on the accused any sexual intercourse with PW1, especially when there are still others who have ravished her even as per the FIS. The following decisions were placed before us- Madan Gopal Kakkad v. Naval Dubey and Ors. [(1992) 3 SCC 204], Madan Lal v. State of J&K [(1997) 7 SCC 677], Aman Kumar & Ors. v. State of Haryana [(2004) 4 SCC 379], Hanuman Prasad & Others v. State of Rajasthan [(2009) 1 SCC 507].
12. Sri.R.T.Pradeep, appearing for A4, urged the uncertainty of the charges framed against that accused, to allege serious prejudice. Even the prosecution has no case that A3 and A4 together committed or attempted rape on PW1, for them to have a common intention to sustain a conviction under S.376(2)(g). Reliance was placed on Vinubhai Crl.A.No.693/2015 & - 14 - connected cases Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel and Others [(2018) 7 SCC 743].
13. Learned Senior Counsel Sri.S.Sreekumar argued for A5, who according to him, is a person incapable of the sexual act alleged; clear from Exhibit P9 Potency Report. It is very strange that the Doctor opined that A5 cannot be said to be 'incapable of performing the sexual act', which runs contrary to the recitals regarding the condition of his genitals as contained in the very same report. A5 is a Teacher and a familiar person of the locality and also PW1; clear from her reference to him as 'Pappan Mash'. His name was not mentioned by the victim when the FIR was lodged. A5 had attempted to intercede in the dispute between the other accused and the mother of the victim for reason of which he has been falsely implicated. Reliance is placed on Kathi Bharat Vajsur and Another v. State of Gujarat [2012 KHC 4278].
14. Smt.S.Ambika Devi, Special Government Pleader for Atrocities against Women and Children, appearing for the prosecution, commenced her arguments specifically pointing out the first paragraph of the impugned judgment, wherein the trial court rued the degradation of moral values, which in the present case touched an all time low; a classic example. A minor school-going girl was subjected to rape by the accused not once, but on different occasions. The accused by virtue of their age is in the status of a father or a grandfather of the minor child. There is no ambiguity in the charge prejudicing the accused and a mere irregularity is saved by S.215 & 464 of Cr.PC. The reason for delay in registration of the crime as is stated in the FIS itself is Crl.A.No.693/2015 & - 15 - connected cases the fear of loss of face, which is natural considering the nature of the offence and age of the victim.
15. The omissions in the FIS are not significant, since every detail would not be stated at the first instance. The allegation against A5 is available in Ext. P2 statement of the victim under S.164. There was no FIR registered at the earlier instance and there can be no allegation of suppression. The prosecution has, beyond any reasonable doubt, proved the offences charged against all the accused. PW-1 is a reliable creditworthy and sterling witness. The contradictions and omissions brought out by the defence are only minor discrepancies which does not go to the root of the matter. The allegations leading to the crime have been consistently spoken of by PW1. The FIS is not an encyclopedia of events. The deposition of PW-1 before Court contains no embellishment and the statement of minor details for clarity does not qualify to be considered a relevant omission. Even against A5, there is reliable evidence as also proof of potency. The prosecutrix in a rape case is not in the status of an accomplice and the Courts have to sensitize themselves to the evils perpetrated by deviant lascivious adults on unsuspecting minor children; submits learned P.P echoing the caution expressed by the Hon'ble Supreme Court.
16. As far as the Birth Certificate, it is argued that the mother has given clear evidence of the date. The following decisions are relied on - Chittaranjan Das v. State of W.B. [AIR 1963 SC 1696], Rafiq v. State of U.P. [(1980) 4 SCC 262], State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550], Karnel Singh v. State of M.P. [(1995) 5 SCC 518], State of Punjab v. Gurmit Singh and Crl.A.No.693/2015 & - 16 - connected cases Others [(1996) 2 SCC 384], Superintendent of Police, CBI v. Tapan Kr.Singh [(2003) 6 SCC 175], State of Punjab v. Ramdev Singh [(2004) 1 SCC 421], Wahid Khan v. State of Madhya Pradesh [2010 KHC 6059], Jarnail Singh v. State of Haryana [(2013) 7 SCC 263].
17. Sri.Sidharth A. Menon submitted forcefully that the deviant nature of the offence demands that the evidence be appreciated keeping in mind the trauma suffered by the victim, a minor child. All the accused acted in consort and the trial Court has found that though the incidents are separate, it is a planned action of A1 to A5. The assault on the minor child commenced sometime when she was studying in the 9th Standard and continued till three months before the registration of the FIR. There is no rhyme or reason to limit the sentence to that awarded by the trial Court. IV. Scope of Section 376(2)(g) of IPC:
18. Sri.Vijayabhanu argued that A1 and A2 had not committed rape in the instances they were alleged to have procured the girl for another. Hence there could be no conviction against them under S.376(2)(g) for reason of their conviction under S.366A for the offence of procurement of a minor girl. We cannot accept the said contention.
19. In Ashok Kumar [AIR 2003 SC 777] the Hon'ble Supreme Court held so, as to the ingredients of a charge under S.376(2)(g):
"7. Charge against the appellant is under S.376(2)
(g), I.P.C. In order to establish an offence under S. 376(2)(g), I.P.C., read with Explanation 1 thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact Crl.A.No.693/2015 & - 17 - connected cases that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds.
It is not enough to have the same intention independently of each of the offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence".
20. In Hanuman Prasad [(2009) 1 SCC 507] also it was held that in animating the accused to act in furtherance of a common intention the principles of S.34 has clear application. What is required to be proved is the consensus of the minds of the persons participating in the act, which is the common intention and not a similar intention, was the authoritative pronouncement. Hence even if A1 and A2 are found to have not committed the rape on the victim after procuring her, the act of procurement for facilitating another to rape her reveals the common intention and even the procurer would be guilty of the offence under S.376(2)(g). The punishment under section 366A is for procurement of the minor girl leading to a rape by another and that later act by another, is brought under S.376(2)(g); which was motivated by the common intention of both the procurer and aggressor. These are two aspects of the very same transaction punishable separately under the IPC.
V. Insufficiency of charge:
21. To consider the insufficiency of charges framed, we here with extract the charges as framed by the Sessions Crl.A.No.693/2015 & - 18 - connected cases Court:
"Firstly, you the first accused, M.Surendran @ Kalyani Surendran, during the period from the month of December 2010 till the end of 2011 on various days have enticed CW1, a minor girl under the age of 18 years on her way from school to her house, with the intend and knowledge that she will be forced to seduced to illicit intercourse with others and induced her and took her in a car driven by you bearing No.KL58E/6936 and that you thereby committed an offence punishable under Section 366(A) of Indian Penal Code and within my cognizance;
Secondly, that you, (A1) took the aforesaid CW1 to your residential house bearing No.13/153 of Thalassery Town and you along with other accused in this case have also committed rape on her after putting her on her fear on various occasions and that you thereby committed an offence punishable under Section 376(2)(g) of Indian Penal Code and within my cognizance;
Thirdly, you and the 2nd accused, A.K.Sudesh @ Sasi, had enticed and procured the minor girl (CW1) on her way back from School and took her in a car after putting her on fear, with the intention or knowledge to compel or seduce her to illicit intercourse with others, to house No.13/725 of Thalassery Town where he is residing and that you thereby committed an offence punishable under Section 366 (A) of Indian Penal Code and within my cognizance;
Fourthly, that you (A2) subjected CW1 to rape on various days after putting her on fear and ignoring her objection, at the aforesaid house bearing No.13/725 of Thalassery Town and that you thereby committed an offence punishable under Section 376(2)
(g) of Indian Penal Code and within my cognizance;
Fifthly, you the 3rd and 4th accused, V.Sunil Babu @ Babu, and N.Sureshkumar @ Maneesan, have subjected CW1, the minor girl to rape at the aforesaid residential house of A2 when she was abducted by A2 and brought there and that you both, thereby Crl.A.No.693/2015 & - 19 - connected cases committed an offence punishable under Section 376(2)
(g) of Indian Penal Code and within my cognizance;
Sixthly, you the 5th accused, K.Padmanabhan @ Pappan, has committed rape on the minor girl at the aforesaid residential house of A1 when she was enticed by him and brought to his house bearing No.13/153 of Thalassery Town by A1 and that you there by committed an offence punishable under Section 376(2)(g) of Indian Penal Code and within my cognizance;
Seventhly, that you, (A1, A2, A3, A4, A5) have committed penetrative sexual assault on the victim (CW1) and that all of you, thereby committed offences punishable under Section 4 and 8 of Protection of Children from Sexual Offences Act and within my cognizance."
22. A4 raised the allegation specifically relying on Vinubhai R Patel [2018 (7) SCC 743]. In Dalbir Singh v. State of U.P[2004 (5) SCC 334] which was relied on in the cited decision, a three Judge Bench resolved the conflict between two Division Bench decisions of the Hon'ble Supreme Court. In 1994 considering an appeal against conviction under S.302, it was concluded that the charge was not established. Examining the question whether conviction could be under S.306 for which no charge was framed; it was held that having regard to the evidence adduced by the prosecution, the cross-examination of witnesses as well as the questions put under S.313 Cr.PC, it was established that the accused had enough notice of the allegations which could form the basis of the conviction under S.306. Later in 1997 on the identical issue, referring to S.322 it was found that the two offences are of distinct and different categories; ie: homicidal death and abatement of suicidal death. The three Judge Bench Crl.A.No.693/2015 & - 20 - connected cases approved the earlier decision in Lakhjit Singh v. State of Karnataka [1994(Suppl.1)SCC 173], referring to Chapter XXXV of Cr.PC which deals with irregular proceedings and their effect. S.464 was noticed to find that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conclusion or order of a competent Court unless the appellate or revisional Court finds a failure of justice having been occasioned thereby. What is 'relevant to be examined is whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the same facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself' (sic. Para 17).
23. Looking at the FIS, ideally we would have thought that on the allegation against A1&2, when they individually harassed PW1, there would be a charge under S.376(1) and along with that another charged under S.376(2)
(g), in addition to S.366A, for procuring the victim. A1 however, has been charged only under S.366A and S.376(2)(g), the later of which charge is alleged to have been committed along with all other accused. Similarly against the second accused while he has been charged under Section 366A, there is only a bland allegation of the offence under S.376(2)(g), without indicating the person with whom he shared the common intention. A3 and A4 are said to have raped PW1 in the residential house of A2, when abducted by A2, and the accused 3 & 4 together were charged under S.376(2)(g). The charge against A5 is under S.376(2)(g) who is accused of having committed the offence of gang rape on the minor girl on her Crl.A.No.693/2015 & - 21 - connected cases being procured by A1. The Seventh charge is under POCSO Act; of which the accused have already been acquitted.
24. As far as A1, for his alleged rape of PW-1 alone and not in the company of others, there was no charge framed. The charge framed against him were under S's. 366A & 376(2)
(g), the latter in consensus with all the accused. If no concerted action is found, either by all of them together or by two or more of them A1 could still be convicted for the lesser offence under S.376(1). This does not cause him any prejudice. A5 has been charged under S.376(2)(g) for having raped the girl on her being procured by A1, which is the case set up by the prosecution.
25. A2 though has been charged under S.376(2)(g) there is no allegation in the charge that he had a common intention with any of the others. A2 could be convicted under S.376(1) for the lesser offence of rape if the concerted action is not proved. The charge against A3 and A4 is defective for reason of there being no allegation of they having acted in concert, by themselves or with all of the other accused or with anyone, other than A2. The charge against A1, A3 & A4, though not properly framed, it is just an irregularity. It cannot be said that the accused were not appraised of the allegations on which the offence under S.376(2)(g) was framed against each of them. The evidence led clearly indicated that A3 along with A2 & A4 along with A2 committed the offence on two separate occasions. The witnesses were cross-examined by all the accused and the specific incriminating circumstances were put to the accused in the 313 questioning. We do not think that any defect in charge occasioning failure of justice arise.
Crl.A.No.693/2015 & - 22 -connected cases
26. But we pause here to observe that the charge all the same has to be explicit. In the present case we do not find any charge against the five accused, that the five of them acted together, in concert and with a common intention raped the minor girl. What is alleged is A1&A2 singly and two of them together, ie: A1&A5, A2&A3 and A2&A4 separately sexually harassed her. The knowledge of A2 about what A1 did to PW-1 does not necessarily bring in a common intention. The ingredient of Section 34 against all the accused together is totally absent, for which there is no charge and no evidence. VI. Acceptablity of Certificate of Date of Birth:
27. Exhibit P18 Certificate of date of birth is marked and proved by PW-11 the Head Master of the School in which PW-1 was studying. PW-11 deposed that it was issued based on the admission register maintained at the School. The defence assailed the same on the ground that, in the absence of evidence of the person who gave the information prompting the entries in the scholar's register maintained at the school, Exhibit P18 has no probative value; relying on Birad Mal Singhvi [AIR 1988 SC 1796]. Here, the relevancy of proof of date of birth is only as against A1 & A2 for the offence charged under S.366A, where the offence is of procurement of a minor girl. The charge under the POCSO Act was not found by the trial Court and we have affirmed the said finding. As far as the offence of rape is concerned, proof of age below 16 years is required only when it is brought under S.375- Sixthly, for attracting which, consent is then immaterial. Here the accused took the plea of total denial and there arises no issue of consent. All the same since there is a revision for enhancement, we have to adjudicate on the date Crl.A.No.693/2015 & - 23 - connected cases of birth, for considering the sufficiency of sentence under Section 366A.
28. True, the certificate cannot be accepted without further proof, but the mother of the victim PW-2 spoke in tandem with the certificate. In cross examination PW-2 first stated that the date of birth as given at the school was not the actual date. But to a suggestion that the date of birth as seen from the Admission Register is false, she replied that the date of birth is 25.06.1997; which is the date seen in the certificate. She had also deposed that the child was taken for admission to the School by herself and her husband. In the totality of the circumstances we are of the opinion that the mother's evidence as corroborated by Exhibit P18 Certificate can be accepted and the victim found to be a minor at the relevant time.
VII. The First Information Statement:
29. The FIS (Exhibit P1) registered on 08.04.2013, when PW-1 was studying in the 11th standard, in the academic year 2012-13. The various incidents which led to the complaint according to the victim commenced when she was studying in the 9th standard, in the year 2011. On a particular day when she was proceeding to the school A1 came with his car and offered to drop her at school. When she entered the car she was given a chocolate, after consuming which she lost consciousness. She is then said to have woken up in an unknown building by around 3 O'clock in the afternoon when A1 took her back to her house in the car. She states that she cannot say whether she was harmed physically on that day. After a few days A1 threatened her that he would spread a story about the earlier incident, and took her in Crl.A.No.693/2015 & - 24 - connected cases his car to his house where he sexually harassed her. These are the first two incidents alleged in the FIS and only as against A1. The third incident as narrated in the FIS occurred when A2 waylaid her on her way back from school, threatened her with knowledge of the incidents with A1 and asked her to get in the car. When she refused A2 is said to have beaten her, forcibly put her inside the car and took her to his house where she was sexually harassed. Later A2 dropped her near her house in the car. On the fourth instance A2 waylaid her, forcibly made her enter the car and took her to his house where his friend A3 sexually harassed her, after which she was dropped back in A2's car. On the fifth occasion A2 took her in his car and presented her to A4 who also sexually harassed her, after which she was dropped back in A2's car. It was also stated that later two or three people known by sight harassed her in A2's house. At the time when these incidents occurred, within the residence of A1 and A2, there were none present. Later when she started waking up with a start, frightened; her mother questioned her. Then she divulged the various acts of harassment committed. It is also stated that on many days similarly A3 and A4 and other identifiable persons harassed her. Before every such instance it was also the allegation that she was asked to swallow a pill. Even in December 2012, A2 is said to have repeated his act, upon which the complaint was lodged.
VIII. The Prosecution Evidence:
30. PW-1 is the victim and PW-2 is her mother, whose evidence we leave for the last. PW-3 is the mahazar witness of Exhibits P3, P4 & P5, which are respectively scene mahazars of the residences of A1 and A2 and the spot from Crl.A.No.693/2015 & - 25 - connected cases which PW-1 was picked up. PW-4 is the Doctor who examined PW-1, certifying (Exhibit P6) a tear in the hymen and the vagina admitting a finger. The Doctor opined that there is evidence of vaginal penetration, but in Exhibit P6 it was written: 'final opinion kept pending on chemical examination'. To a specific question the Doctor has answered that the tear on the hymen could be by reason of masturbation. The final opinion was kept pending only because the Doctor was awaiting the report of analysis of the vaginal swab and smear. The P.P. informs us that nothing was detected on chemical examination, obviously since the alleged incidents were long back. This does not create any difficulty for the prosecution, nor does it aid the defence. The opinion of the Doctor helps the prosecution only to the extent of there being a possibility of the minor girl having had sexual intercourse; but that alone would not connect the accused to the said act.
31. PW-5 is the Doctor who examined A2, A4 and A5 to ascertain their potency. Exhibits P7, P8 and P9 are respectively the certificates which opine that there is nothing to suggest the persons examined were incapable of performing the sexual act. PW-6 is the Doctor who issued Exhibit P10 Potency Certificate, on similar lines with respect to A1. Exhibit P27 is the Potency Certificate issued in the name of A3, which was marked through the Investigating Officer ['I.O' for brevity]. The Doctor was not examined and hence no reliance can be placed on Exhibit P27. The objection raised by A5 with respect to Exhibit P9, will be considered later.
Crl.A.No.693/2015 & - 26 -connected cases
32. PW-7 is the Magistrate who proved Exhibit P11 statement recorded under Section 164. The Magistrate categorically stated that the date or month or year on which the alleged incidents occurred were not stated by the victim. The said witness was elaborately cross-examined with respect to various omissions in Ext.P11. PW-8 is the Revenue Officer of the Municipality, who marked and proved Exhibits P12 and P13 Ownership Certificates of residential houses of A1 and A2. PW-9 is the Special Village Officer who prepared the three sketch plans, Exhibits P14, P15 & P16. Ext.P14 (Topo Sketch-I) shows the occurrence room in the house of A1. Exhibit P15 Topo Sketch-II shows the occurrence room in the house of A2. These sketches reveal that the houses of A1, A2 & PW-1 lie adjacent. Exhibit P16 is Topo Sketch-III showing the spot from which PW-1 was picked up. PW-10 is the Sub Inspector who seized the Maruti Alto Car belonging to A1, as pointed out by the victim; in which she was thrice taken by A1, first to an unknown place and later twice to his own residence wherein at the first instance A1 raped her and in the second instance A5 raped her (an addition from the FIS). PW-11 is the H.M of PW-1's school who proved Exhibit P18 certificate of date of birth. PW-12 is the Sub Inspector who registered the FIR as per the FIS, who also sent PW1 for medical examination. PW-13 is the Circle Inspector who conducted the investigation. We left the evidence of PW-1 and PW-2 for the last, since PW-1, proffers the solitary direct evidence while PW-2, the mother, corroborates with what was told to her. Pertinent is the fact that PW-1 and PW-2 speaks in tandem about a complaint made earlier to the Police in August, 2012; which PW-1 first spoke of in the Section 164 Crl.A.No.693/2015 & - 27 - connected cases statement, the nature or content of which is not disclosed in evidence.
IX. The Defence Evidence:
33. DW-1, a Joint R.T.O. proved that the car seized was one delivered to the purchaser on 18.03.2011, much after the allegations made against A1 occurred. DW-2 and DW-5 are the son and daughter-in-law of A1, who were examined to prove that the alleged incidents could not have occurred in the residence of A1 as there were other family members present throughout the day. As to the seized car, it is admitted by DW-2 that prior to that car they had another car. Though the present car was seized on the same being pointed out by PW1 itself; that circumstance alone would not discredit the evidence of PW-1. We also find that DW-2 has admitted that A1, knows driving. The son and daughter-in-law further spoke of the strained relationship between their family and that of PW-1 due to the sale of a property lying adjacent to the residence of PW-1, in which A1 and A3 were involved and on which property the mother of the victim had an eye on. DW-4, was examined to speak about the character of A1, which evidence according to us is of no consequence.
34. DW-6 is the Principal of the school where A2's children were studying. The children were using the conveyance arranged by the school as evidenced from the fee control register (Exhibits D5&D6). She also stated that the children should usually reach their home by 3.47 p.m. We cannot rely too much on the evidence of the Principal, but we keep in mind that A2 had two school going children who comes home by around 4 O'Clock. DW-7 is the Assistant Engineer of the Municipality, who speaks of a building permit for Crl.A.No.693/2015 & - 28 - connected cases addition and alteration having been issued on 31.03.2009 with respect to building having door No.523 which is the residential building of A2. He also categorically states that the work completion was reported on 30.12.2013 and the permit was upto 30.3.2012. Since the validity of the permit is four years, we do not place any reliance on the witness to find that A2's house during the entire period would have been inhabited by construction workers.
35. DW-3 is a witness to the sale agreement marked as Exhibit D4, in which A1 also was a witness. The sale was of a property which lies adjacent to the residential property of the victim. The owner of the property was one Meenakshy and the purchaser A3. A1 along with DW-3 was involved as brokers. The version of DW-3 is that even when measurement was taken of that property, PW-2, the mother of the victim and her husband had created problems. The vendor in Exhibit D4 is also a distant relative of PW-2. In cross-examination though an attempt was made to discredit the witness by various suggestions regarding his antecedents; he denied every single suggestion and there was no substantiation by the prosecution. It has also come out in cross-examination that while the property was being measured, it was threatened by PW-2 that the vendor and the vendee will not be permitted to live. DW-10 is yet another witness who spoke of the interest PW-2 had in the property covered by Exhibit D4. He stated that the property belongs to his cousin, which is a barren, low lying land without a proper pathway; to the west of which PW-2 was residing. There was direct access to the said land from PW-2's property and she was interested in purchasing it and had quoted a price lower than the market Crl.A.No.693/2015 & - 29 - connected cases value. DW-10 also withstood searching cross-examination. We find that the said witnesses are truthful but normally it cannot be believed that any one would stake the reputation of their daughter, especially with the allegation of sexual harassment, to wreak vengeance.
36. DW-8 is a tuition teacher who, during the relevant period took tuition classes for the victim. She says that she used to take tuition on every single day during the relevant period, after the victim returns from school, which evidence we find to be not credible or rather incredible. DW-9 a school-mate of PW-1 deposed that she goes to school with PW-1 and another girl. In cross-examination she admitted that she is the friend of the daughter of A3. From the defence evidence we keep in mind that both A1 and A2 were residing in residential buildings with their families, where the offence of rape is alleged to have been perpetrated on different occasions and A2 had school going children who return almost at the time when the victim too returns home from school. We emphasize this since the allegation is that A1 & A2 abducted her on her return from school. Two defence witnesses also have spoken of a rancour nurtured by PW-2 and her husband against A1 and A3.
X. The Precedents:
37. Before we look at the evidence of the victim/prosecutrix we would first examine the precedents on how it has to be evaluated especially when the case is based on the solitary evidence of the prosecutrix. The learned P.P produced before us a wealth of decisions of the Supreme Court over the past few decades to urge against rejection of the Crl.A.No.693/2015 & - 30 - connected cases evidence of the victim merely for reason of absence of corroboration.
38. Rafiq [(1980) 4 SCC 262] found rape to be the gravest crime against human dignity and cautioned judges from rejecting the testimony of a rape victim unless there are very strong circumstances militating against its veracity. It was held that corroboration was not a condition, for reliance of the testimony of a prosecutrix and it is rather a guidance of prudence. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 was a case in which a Police Officer forced a couple to accompany him to the Police Station, in the night, from their hotel room. Later, the husband was booked in a crime and the wife lodged in a hotel where he forcibly committed rape on her. The High Court acquitted the accused holding that only in rarest of rare cases, when the testimony of the prosecutrix is so trust worthy, truthful and reliable, corroboration was unnecessary. The Hon'ble Supreme Court disagreed and held that rule of prudence did not go to the extend of requiring the Court to look for corroboration before acting on the evidence of the prosecutrix in all cases except the rarest of the rare. The provisions of the Evidence Act was looked into, to find that a prosecutrix in a sex offence cannot be put on par with an accomplice and she is in fact a victim of the crime. The evidence of the prosecutrix hence has to be evaluated with a degree of care and caution, as the Court would, in the case of an injured complainant.
39. Gurmit Singh(1996) 2 SCC 384 was a case in which a minor girl was abducted and raped. The trial court refused to believe the version of the victim on the ground of the victim being ignorant about the make of the vehicle in which Crl.A.No.693/2015 & - 31 - connected cases she was abducted, the indifference of the I.O to trace out the vehicle, no alarm having been raised while she was abducted through a busy area and no corroboration being available for her statement. The trial court on a mere inference also characterized the girl to be one of loose morals which was strongly deprecated by the Hon'ble Supreme Court. The grounds to disbelieve the prosecutrix were also held to be unsustainable. Ramdev Singh (2004) 1 SCC 421 while reaffirming that a victim of rape is not an accomplice after the crime, further opined that an unmerited acquittal does no good to the society. When the prosecution has set up a convincing case there is no warrant for irrelevant or insignificant circumstances to be relied on or resort made to technicalities or assumption of doubts where none reasonably exists. It was held: "A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females or minor children. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children"(sic).
40. The learned Counsel for the defense placed decisions where the prosecutrix was disbelieved by the Court. Rai Sandeep(2012) 8 SCC 21 was a case in which the allegation was of gang rape by two accused. The minor nephew and niece of the prosecutrix who were said to have been locked in another room before the rape was committed turned hostile. Considering the inconsistencies in the evidence led before Crl.A.No.693/2015 & - 32 - connected cases Court, contrary to what the victim stated in the FIS, she was found to be not a sterling witness of a high quality and caliber. It was held that in the case of a solitary witness the Court should be able to accept the evidence at its face value without any hesitation and what would be relevant is the truthfulness, consistency and the natural manner in which narration is made from the starting point till the end. Krishan Kumar Malik [(2011) 7 SCC 130] again was a case of gang rape in which the Hon'ble Supreme Court considering the infirmities, lapses and omissions in the evidence of the prosecutrix held that lack of corroboration was a relevant factor resulting in acquittal. When there are contradictions an agile and active Court should differentiate between genuine cases from the frivolous and concocted ones. The role of Courts was held to be to determine whether the evidence available is enough and cogent to prove the accused guilty. The solitary evidence of the prosecutrix is sufficient if it inspires confidence and appears to be absolutely trust worthy, unflinching and should be of a sterling quality. Santosh Prasad [(2020) 3 SCC 443 was again a case in which the material contradictions in the evidence of the prosecutrix and delay in lodging FIR led to the accused being acquitted.
41. A Division Bench of this Court in Royson 2017 KHC 1056 dealt with an allegation of harassment of a minor child by the father. It was held that there cannot be a 'study of the evidence with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion' (sic), but in the event of material abnormalities or vital improbabilities or material inconsistencies, it is Crl.A.No.693/2015 & - 33 - connected cases permissible to seek corroboration before acting on the sole testimony of the prosecutrix. Bhimapa Chandappa Hosamani (2007) 1 SCC (Cri.) 456 was a case in which the charge of murder rested upon the sole eye witness testimony of the mother of the deceased. Disbelieving the mother, it was held that the duty of the Court is to critically scrutinize the evidence of the solitary witness, even when it is an eye witness to assure itself that the witness is stating the truth and that the evidence is so convincing and appears to be so natural and truthful that it is not necessary to look for other evidence to record a conviction.
42. The precedents above noticed clearly indicate that the prosecutrix in a rape case is not in the position of an accomplice and her evidence has to be treated as of a victim; which if found convincing and truthful, there is no reason to look for corroboration to convict the accused against whom the allegations are raised. Conviction in a rape case can be on the solitary evidence of the prosecutrix so long as it is convincing and inspires confidence in the Court. Rape, in every society, more so in the Indian context visits the victim with humiliation, disgrace and even ostracization from society, apart from the physical and mental trauma to which the victim is subjected to. This brings forth a popular belief that it is impossible and improbable that any woman would raise a false allegation which would result in herself being exposed to such ignominies. However, that remains a belief, in that realm justified; which does not have the weight of a legal presumption or preposition. No Court can detract from the principle that a mere allegation raised and spoken of in Crl.A.No.693/2015 & - 34 - connected cases Court can result in the conviction of the accused, if it is not believable, credible and inspiring. It is with this in mind that we have to look at the evidence of the prosecutrix. XI. The Evidence of PW1 & PW2:
43. We have read the evidence of PW-1, the FIS and noticed the following contradictions and omissions. The allegation in the FIS is with respect to five specific incidents which before Court increased to six; a new incident involving A5 having been added. In the FIS, the first and second incidents involve A1 alone, the third A2 alone, the fourth, A2 together with A3 and the fifth A2 together with A4. In the FIS it was also vaguely stated that on various days 2-3 people identifiable on sight harassed her at A2's residence and that on December, 2012 on one day when she was coming back from school, A2 again waylaid her, took her in the car and harassed her. In cross examination PW1 admitted that she has not spoken of an incident in 2012 involving A2. PW2 also categorically stated that the incidents with A1 occurred after her 9th standard Onam examinations ie: in 2010. Hence the allegations are of incidents that occurred in 2010 second half and 2011; without any dates or months specified. The incident of December 2012 as spoken of in the FIS and that spoken of having transpired after August 2012 was not believed by the trial court and all the accused including A2 were acquitted of the charge under the POCSO Act, which came into force in November, 2012.
44. The allegation against A2 having presented her to 2 to 3 identifiable persons also was not stated by her before Court in her evidence and her deposition was to the effect that A2, 3 & 4 harassed her on different occasions.
Crl.A.No.693/2015 & - 35 -connected cases When A1 to A4 were named in the FIR the reference to identifiable persons definitely was not to those named. The allegation against A1 having presented her to A5 was also not spoken of in the FIS. A5 was implicated in the 164 statement recorded on 11.04.2013, while in the FIS of 08.04.2013 and the 161 statement of 09.04.2013 this incident was not spoken of. The new version is that PW2 was picked up on her way back from school and taken to A1's house, where inside the room A5 was available. A5 is said to have beaten her, forcefully undressed her and touched on her private parts and sexually harassed her.
45. Exhibit P9 is the Potency Certificate issued in the name of A5. Though it records the opinion of the Doctor that there is nothing to suggest that the above person is incapable of performing the sexual act, the state of his genitals have been recorded as follows:
"On dorsal side 6 cms, on ventral side could not be measured as the penis is embedded in hydrocele (12 cm x 8 cm) not free from scrotum.
xxx xxx xxx The adult size Sensation could not be assessed due to tense hydrocele".
This was specifically put to the Doctor, PW-5, as also the recital in Exhibit P9 'could not be palpated'. Despite the witness admitting that palpation (examination by touch) is a necessary must in assessing potency; it was not done due to the condition of his genitals. A suggestion that A5 was not properly assessed for determining potency though denied, it was supplemented that hydrocele is a curable condition. In the above circumstance, it is strange that the Doctor opined that the person is not incapable of performing the sexual Crl.A.No.693/2015 & - 36 - connected cases act. True, this does not necessarily indicate that A5 had the condition at the time when the alleged act is said to have been committed. But at least, at the time when the examination for potency was conducted the opinion ought to have been otherwise. No reliance can be placed on the opinion at Exhibit P9 and PW-5 as to the potency of A5. This, in addition to the very material omission noticed as to the victim having not mentioned about A5 and the sexual harassment perpetrated on her by him, with the active connivance of A1 in the FIS, requires A5 to be definitely acquitted of the charges levelled against him under Section 376(2)(g). A5, as was argued was well known to PW1 and if he was involved there is no discernible reason as to why his name was not cited at the first time itself. This is a circumstance raising serious doubts about the testimony of the victim.
46. The narration of the first incident of her being enticed into the car by A1, with the promise of a lift to school, the toffee offered, her being rendered unconscious and waking up in an unknown place is repeated before Court. In the FIS and Ext P11 statement under Section 164 she made no accusation of sexual harassment in the first instance. In the box, before Court she gave a new story of having suffered a discomfort on that day and having detected blood in her undergarments on the next day. On the first incident her statement: "I do not know whether he harassed me. I had no body pain" was marked as Exhibit D2 contradiction from her 161 statement, which stands proved through PW-13, the I.O. The FIS and the 161 and 164 statements were on almost consecutive days.
Crl.A.No.693/2015 & - 37 -connected cases
47. The second incident was when A1 picked her up on her way back from School on the threat of the earlier incident being disclosed to everybody. According to her on the said day she was taken to A1's house, where there was nobody present. In the FIS and in the box she complained of having been sexually harassed on the said day by A1. PW-1 before Court also submitted that she refused to get into the car and told A1 that she would speak of the earlier incident to her parents. When A1 threatened that he himself would disclose the incident and reminded her that his house is frequented by police-men, she succumbed and boarded the car. PW-1 also says that inside the room of A1's house he got angry with PW-1 for having threatened him with disclosure to her parents and inflicted physical injury by beating her. After which he asked her to remove her dress and when she resisted again beat her. Then he removed her dress and touched her on her private parts and sexually harassed her on the cot available in the room, is the version. Though the details of the alleged sexual act cannot necessarily be characterized as an embellishment, the allegation of physical violence was not made in the FIS.
48. We have to pertinently notice that in all the incidents graphically described by the victim, PW-1 speaks of the very same modus operandi having been employed by the aggressor-accused, i.e. picked up forcibly from the public road, taken to a house, the demand to undress, physical violence she was subjected to on her resisting and later the sexual harassment; which is repeated on the same lines indicating a tutored version. We are quite conscious that a rape victim; especially a person subjected to it repeatedly, Crl.A.No.693/2015 & - 38 - connected cases can recount the traumatic experience only in agonizing monotones; for the wounds left behind are never fully healed. But the refrain is also of the accused having beaten her up before the sexual act and despite repeated incidents, PW-1 did not speak to her parents about it for more than two years. In cross examination PW2 deposed that for headache and bleeding she was taken to two doctors, one Dr.Shyam Mohan and Dr.Manoj and that the documents were available with her mother. None were produced and the mother, PW2 spoke about PW1 having been treated by yet another Doctor one Dr.Suja. These were not disclosed at any point before the trial and remained unsubstantiated.
49. It was also the case of PW-1 & PW-2 that in the year 2012, when the victim started to wake up with a start and run around the house, the mother enquired about it, upon which the victim revealed everything to her. The victim speaks of an immediate incident before the disclosure made to her mother where A2 was involved and she was picked up from a place called 'Balante eda', when A2 again waylaid her, took her to his house and presented her to an unknown person. The I.O categorically stated he is not aware of such an 'eda vazhi' [pathway]. This according to PW1 was after her 10th standard and when studying for plus-one, which should be in the second half of 2012. This was a new story since the disclosure made as seen from the FIS and the evidence of PW-1 are of incidents, which occurred in 2010-11 and one in December 2012. The new story of an incident in the second half of 2012 prior to August is when admittedly the victim along with her parents approached the Police first; which complaint was never spoken of in the FIS or before the Crl.A.No.693/2015 & - 39 - connected cases Police. As we noticed, in cross PW1 also denied the incident in 2012 with A2. Hence there could not have been an incident prior to August 2012 or later, in December 2012.
50. The complaint raised in August 2012 not spoken of in the FIS or the 161 statement, which omission was put to the victim in cross-examination, has to be examined with reference to her denial of that incident in cross. The I.O [PW-13] admitted total ignorance of such a complaint on a suggestion made that the said complaint did not disclose any of the allegations made in the present FIS. But both PWs.1 & 2 admitted and asserted that such a complaint was made. It was for the first time stated before the Magistrate under Section 164. PW-1 before Court named the Police Officer before whom she along with her parents complained first and also deposed that he consoled them and told them that if it is repeated a case can be charged. PW-2, the mother also admits the first complaint having been raised before the Police in August 2012.
51. PW-1 categorically says that the first complaint to the Dy.SP was given by her along with her mother and father and she herself wrote the same. She also repeatedly asserts that the sexual harassment was not spoken of then and she merely stated that she was troubled (ഉപദവച). When cross-examined by A2, PW-2 said she does not remember whether a written complaint was filed before the Police, while later, on being cross examined by A4 it was categorically stated that a written complaint was filed before the Dy.SP, Thalassery and that the allegations against A3 and A4 were specifically raised. When cross examined by A5, PW-2 admitted that her daughter and husband were with her when the first Crl.A.No.693/2015 & - 40 - connected cases complaint was made before the Dy.SP and that she recited everything stated by her daughter. PW-1, on the other hand was categorical in stating that sexual harassment was not complained of in August 2012. This is quite contrary to the statement of the mother, PW-2, who also said that the Dy.SP did not register an FIR since according to him 'the case was big and the victim too small'; indicating that the victim's name would be tarnished.
52. What comes out is that though an attempt to lodge a complaint was made earlier, it was not pursued and there was no allegation raised of sexual harassment at that time. No FIR was lodged by the Dy.SP and the victims version itself is that the allegation was only of the accused troubling her. This raises very serious doubts about the present FIS since there is no incident proved after the first complaint of August 2012; and the allegations the Court found to have been proved is of a date prior to that first complaint.
53. It is also the evidence of PW-1 & PW-2 that after the first complaint the victim was accompanied by either her father or mother, on her way to school and back. But PW-1 goes on to say that even then, on days when the school closes early, A2 used to waylay her and she was sexually harassed by A2, 3 & 4 at A2's house. This was not spoken of in the FIS. In the FIS the statement was that she was harassed on several occasions by identifiable persons. When A1 to A4 were named in the FIS obviously this statement was not with respect to them. Again, in the FIS she had a case that in December 2012 A2 harassed her. But before Court she said that A2 to A4 harassed her on many occasions later to the first complaint.
Crl.A.No.693/2015 & - 41 -connected cases This was the time, she herself admits she was accompanied by her father or mother on her way to and back from school. The version that, on days when the school closes early, A2 waylaid her on many occasions cannot be believed. First of all A2 would not know of the day when school closes early, without her parents first knowing about it. Further it is her case that on such days she was again brought to A2's house where he stays with his family and it would be an improbable co-incidence that when the victim or her parents do not have advance information, A2 would have such information and arrange with the others to harass her in his own house which on that particular day is empty. Pertinent also is the fact that when either of PW-1's parents accompany her back from school her disappearance from school would have cautioned them. Even then the refrain is of A2 having dropped the victim near her house, after the incident.
54. Yet another inconsistency we notice is in the version of PW-1 as to how she was dropped back after the sexual act. In the last two incidents connecting A1, the specific evidence of PW-1 was that after the harassment she was taken in A1's car from the house of A1 and dropped at the place from where she was picked up. Looking at the Topo Sketch produced, we see that the house of the victim is almost opposite to the house of A1. Even according to the victim what separates her house from that of A1 is a 10 feet road. PW2 also says that there are a number of houses in the locality, in which is situated the residences of herself and that of A1&A2. PW-1 also deposes before Court that she was dropped by A2 after the sexual act near her house, in A2's car. A2's house admittedly, is just a few feet from the house Crl.A.No.693/2015 & - 42 - connected cases of PW-1 and it cannot be believed that she was taken in the car of A2 from his house and dropped somewhere near her house.
55. In all the six specific instances spoken of about A1 to A5, except the first one, she is said to have been picked up forcibly from the public road, which the learned Public Prosecutor asserts was deserted; stoutly denied by the Counsel appearing for the accused. Ext.P16 Topo Sketch-III indicates that the road has houses on both sides and the very spot indicated, from which the victim is said to have been picked up, is a 'T' junction, called the Municipal Road Junction (Ext.P5 scene mahazar as prepared of the spot pointed out by the victim) and this junction is just before another junction where three roads come together. It is from Ext.P5 scene mahazar that the P.P points out the road to be low lying, than the buildings situated on the sides. In fact, if the houses are at a higher level, there is more chance of the residents having a clear view of what happens on the road. Except for the first incident, the victim deposes that she was picked up from the very same spot by A1 and A2. But later speaks of one other pathway, 'Balante Eda', which the I.O asserts was never told to the Police. It is also very unlikely that any person would attempt an abduction as deposed by PW-1, that too in broad day light, from an open area. This is more so since the specific contention of the victim is that at every point she refused to get into the car, A1 and also A2 beat her on the road and forcibly made her enter the vehicle. PW1 does not have a contention that there was any other person in the vehicle. This would require A1 or A2, who obviously would be driving the vehicle, to get Crl.A.No.693/2015 & - 43 - connected cases out of the vehicle, to beat her and force her inside the car from a public road which version, we find to be very improbable.
56. We have already noticed that the victim also speaks of the incidents having occurred in the house of A1 and A2 which are situated in a residential locality and very near to her own house. A3's house is also adjacent to that of the victim. The alleged offences were committed in the residences of A1 and A2, where admittedly they were staying along with their families. A1 had his wife, two sons and a daughter-in-law staying along with him and A2, his wife and school-going children. The chances of A1 and A2 bringing the victim home to perpetrate a sexual assault on her, and offer her to others within their residence, again is very improbable. In this context we have to notice that PW1 does not say anything about the dates or months in which she was abducted and abused and she is not clear as to the exact period. Further, PWs.1 and 2 in their deposition speak of persons known to their family having cautioned the mother and asked her to bestow more attention on the daughter. There is none examined to indicate as to why such a caution was expressed. Here we reiterate, immediately after the first complaint raised, which was not pursued, the parents were cautious and always accompanied the daughter. Even then PW1 says she was harassed on several days, when the school closes early; highly improbable.
XII. Medical Evidence:
57. As far as the medical evidence is concerned, the P.P. relied on the Potency Certificates and the medical examination of the victim. The Potency Certificates of A1, A2 Crl.A.No.693/2015 & - 44 - connected cases and A4, which only can be relied on, indicate that there is nothing to suggest that the said persons are incapable of performing the sexual act. As far as the medical evidence of the victim is concerned, Exhibit P6 indicates that the hymen is torn and vagina admits one finger. The learned P.P. assails Sasi [2019 (2) KLD 175 (DB)] and argues that Lillu @ Rajesh v. State of Haryana [(2013) 14 SCC 643], which was relied on by this Court, was a case in which the finger test was held to be not one raising a presumption of consent and was held to be a measure constituting invasion of privacy of the individual victim. The Division Bench of the High Court refused to rely on the report as a circumstance supporting the prosecution case finding that the medical evidence so proffered was not sufficient for the prosecution to establish penetration, especially since the vaginal swab and smears taken did not provide any evidence for reason of the delay of more than one year. We find no reason to detract from the said finding merely for reason of the identical reasoning having gone in favour of the victim and the accused in the two cited cases. The proposition is only that the finger test by itself, does not raise a presumption of consent nor does it establish the complicity of the accused without something in the nature of scientific or medical evidence, especially when there is a cloud over the evidence of the prosecutrix. In the present case there is a delay of almost two years from the date of the last alleged incident. That the vaginal tear and introduction of one finger is not conclusive as to sexual intercourse, is supported by the Doctor's [PW4's] evidence itself. PW4 to a suggestion admitted that the tear to the hymen and the free passage of a finger could be for other Crl.A.No.693/2015 & - 45 - connected cases reasons. The scanty medical evidence does not establish sexual intercourse and much less implicate the accused. XII. Delay in registration of the Complaint:
58. There is also long delay in raising the complaint about the alleged incidents, which is sought to be explained by PW-1 for fear of her honour being put at stake. The alleged incidents resumed some time in the second half of 2010 and continued in 2011. Apart from the specific instances complained of against A1 to A5, the inconsistencies in which were already noticed by us; PW-1 does not have a consistent version in the FIS or before Court. It is very difficult to believe that such repeated acts were neither complained of by the victim nor noticed by the parents, under whose care she was living, especially since the allegation is of being beaten up and sexually harassed. One other important aspect that assumes significance is the complaint said to have been made before the Dy.S.P. in August, 2012 and the different versions of PW1&2, which stood totally suppressed to the Police. It was after about eight months that the present complaint was made, FIR having been lodged on 13.04.2013. There is no incident proved after August, 2012 and the present FIS. The delay and the earlier complaint made with different versions deposed by PWs.1 and 2 are compelling circumstances to find in favour of the accused.
59. The learned P.P argued that a FIR is not an 'encyclopedia', which discloses all facts and details regarding the offence reported, relying on Tapan Kr.Singh [(2003) 6 SCC 175]. The learned Judges in the cited decision, after the above observation, specifically noticed the circumstances in which an informant lodges a report about the Crl.A.No.693/2015 & - 46 - connected cases commission of an offence, though he/she may not know the name of the victim or assailant and not even the place where it occurred. It was in this context that the Court observed that what is required is that the information discloses the commission of a cognizable offence; especially distinguishing such a report made, from that made by an eye witness. The observation does not detract from the fact that if it is an eye witness account, then necessarily the relevant aspects should be stated therein and any embellishments or omissions in the evidence led before Court would inure to the benefit of the accused. Here the case was lodged on the complaint of the victim whose evidence is the foundation on which the prosecution case rests.
60. Royson 2017 KHC 1056 by a Division Bench of this Court relied on a number of Supreme Court judgments, wherein FIR has been held to be 'an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial, the importance whereof can hardly be overestimated' [Thulia Kali v. State of T.N [1972] 3 SCC 393]. It was also held that 'the prompt and early reporting of the occurrence to the Police with all its vivid details gives an assurance regarding the truth of the prosecution version' [State of U.P. v. Harban Sahai [(1998) 6 SCC 50, Girish Yadav v. State of M.P. [(1996) 8 SCC 186], Hardev Singh v. Harbej Singh [(1997) 1 SCC 80], Jarmail Singh v. State of Haryana [1993 SCC (Cri) 869]. It eliminates chances of embellishments and false implication of accused [Krishnan v. State [(2003) 7 SCC 56], Jagannath Marayan Nikam v. State of Maharashtra [1995 CriLJ 795], Sayed Ahmed v. State of Maharashtra [1995 CriLJ 3585], Mitter Sen v. State Crl.A.No.693/2015 & - 47 - connected cases of U.P. (1976) 1 SCC 723]. In the present case, we have noticed the embellishments, contradictions and omissions in the evidence of the prosecutrix who is alleged to have been subjected to the offence of rape, which makes the case set up very improbable.
61. 'Suspension of disbelief', is a concept envisaged by Samuel Taylor Coleridge; a state of mind by which, even an enlightened reader could enjoy a literary work with elements of the fantastic and supernatural; suspending reasonable judgment concerning the implausibility of the narrative. 'Suspension of Disbelief' cannot be employed in the appreciation of evidence which requires a logical reasoning and not a mere willingness to enjoy the farcical. The defence has proven that there is some enmity between the mother of the victim and A1 and A3 for reason of the purchase of a property lying adjacent to PW-2's residence. It has also come out in evidence that A1 & A2 are residing with their families in their houses. The delay in registration of the FIR, the suppression of a complaint having been raised almost an year back which was voluntarily admitted later, the disparity in the version of the exact allegations raised against the accused at the earlier point, the implausible repetitive refrain of the particular incidents complained of by the victim, the attendant circumstances which render almost impossible and improbable the continued acts complained of by the victim and the embellishments, contradictions and omissions as specifically pointed here in above compel us to rule in favour of the accused. In the circumstances, we grant the accused the benefit of doubt and acquit them of the charges levelled against them. We would Crl.A.No.693/2015 & - 48 - connected cases not attempt to speculate as to why the complainant should raise such a false allegation; since the paths the human mind tread is beyond our ken and exceeds our jurisdiction.
We allow the appeals by setting aside the judgment of the Special Court for Trial of Offences Against Children, Thalassery in S.C.No.476 of 2013 dated 29.04.2015. The revision filed by victim for enhancement of sentence is dismissed consequent to the setting aside of the impugned judgment in the appeals of the accused. The accused, if in custody, shall be released forthwith unless they are required in any other case.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
M.R.ANITHA JUDGE Vku/jma/sp.