Kerala High Court
K.Govindan vs State Of Kerala on 24 August, 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
MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942
CRL.A.No.294 OF 2019
AGAINST THE JUDGMENT IN S.C.NO.840/2014 DATED 30-11-2018
OF ADDITIONAL SESSIONS COURT - I, KASARAGOD
APPELLANT/ACCUSED:
K.GOVINDAN,
AGED 52 YEARS
S/O.KANNAN, R/AT NEAR KURUMBA BHAGAVATHI
TEMPLE, ADKATHBAYAL BEACH, KASARAGOD DISTRICT.
BY ADV. SRI.KODOTH SREEDHARAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE SHO KASARAGOD,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
SRI. RAMESH CHAND, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-
2020, THE COURT ON 24-08-2020 DELIVERED THE FOLLOWING:
Criminal Appeal No.294 of 2019
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P.B.SURESH KUMAR, J.
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Criminal Appeal No.294 of 2019
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Dated this the 24th day of August, 2020
JUDGMENT
The sole accused in S.C.No.840 of 2014 on the files of the First Additional Sessions Court, Kasaragod has come up in this appeal challenging his conviction and sentence in the said case.
2. The accusation in the case is that from the year 2012, the accused has committed rape on the victim girl aged 12 years in a shed near her house at Adkathbayal Beach, and thereby committed the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code (the IPC) and Section 3 read with Section 4 and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 13 witnesses on its side as PWs.1 to 13 and proved through them, nine documents as Exts.P1 to P9. Among the witnesses examined, PW1 is the Chairperson of the Kasaragod Child Welfare Committee, PW2 is Criminal Appeal No.294 of 2019 -3- the victim girl, PW3 is the elder sister of the mother of the victim girl, PW5 is the doctor who examined the victim girl on 19.05.2014, PW8 is the owner of the shed where the accused is stated to have committed sexual assault on the victim girl and PW12 is the investing officer in the case. Among the documents proved, Ext.P1 is the statement given by the victim girl to the Child Welfare Committee, which is treated as the First Information Statement in the case, Ext.P2 is the statement given by the victim girl under Section 164 of the Code of Criminal Procedure (the Code) and Ext.P4 is the report of the medical examination of the victim girl conducted by PW5.
4. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376(1) of the IPC, as it stood prior to Act 13 of 2013 and Section 3 read with Section 4 of the POCSO Act, convicted him for the said offences and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 376(1) of the IPC as it stood prior to the Act 13 of 2013. Separate sentence was not imposed on Criminal Appeal No.294 of 2019 -4- the accused for the offence punishable under the POCSO Act, in the light of Section 42 of the POCSO Act. 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, at the outset, pointed out that in so far as the court below found that the charges against the accused for the offences punishable under Section 376(2) of the IPC as amended in terms of Act 13 of 2013 is unsustainable, in the absence of any specific case for the prosecution as to the dates on which the accused has allegedly committed sexual assault on the victim girl, the court below ought not have found the accused guilty of the offence punishable under the POCSO Act also, for in the absence of any specific case as to the dates on which the accused has allegedly committed sexual assault on the victim girl, the court cannot be certain as to whether the alleged sexual assault was before or after 14.11.2012, with effect from which date, the POCSO Act has been brought into force. As regards the merits of the matter, it was contended by the learned counsel that the only evidence let in by the prosecution to prove the sexual Criminal Appeal No.294 of 2019 -5- assault is wholly unreliable. It was also pointed out by the learned counsel that the medical evidence let in by the prosecution has, in fact, disproved the case of the prosecution as regards the sexual assault. The learned counsel has elaborated the said submission pointing out that the doctor who examined the victim girl has deposed categorically that she did not find any evidence of sexual assault in the victim girl in tune with the allegation in the case. Per contra, the learned Public Prosecutor contended that in the absence of any specific reason for the victim girl to implicate the accused falsely in a case of this nature, the impugned judgment does not call for interference on any grounds, whatsoever.
7. Having heard the learned counsel for the parties on either side and having perused the materials on record, the point falls for consideration is as to whether the prosecution has established the guilt of the accused under Section 376(1) of the IPC as it stood prior to Act 13 of 2013 and Section 3 read with Section 4 of the POCSO Act.
8. It is seen that the accused was charged for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the IPC, as amended in terms of Act 13 of 2013. Criminal Appeal No.294 of 2019 -6- The court below noticed that Act 13 of 2013 came into force only with effect from 03.02.2013, and in so far as the prosecution does not have a case as to the specific dates on which the accused has allegedly committed sexual assaults on the victim girl, he cannot be charged for the said offences and it is on that premise that the court below found the accused guilty of the offence punishable under Section 376(1) of the IPC, as it stood prior to Act 13 of 2013. As rightly pointed out by the learned counsel for the appellant, if the same logic is applied, it can be seen that the conviction of the accused under the POCSO Act is also unsustainable, for in the absence of any specific allegation as to the dates on which the accused has allegedly committed sexual assaults on the victim girl, the court below would not be in a position to hold that the sexual assaults have been committed on or after 14.11.2012, with effect from which date the POCSO Act has been introduced. In other words, the conviction of the appellant for the offence punishable under the POCSO Act is unsustainable in law.
9. The question remains to be considered is as to whether the prosecution has established the guilt of the accused under Section 376(1) of the IPC, as it stood prior to Act Criminal Appeal No.294 of 2019 -7- 13 of 2013. As rightly contended by the learned counsel for the appellant, as regards the core aspect of the crime namely the sexual assault, the only evidence available in the case is the evidence of the victim girl. The victim girl who was examined as PW2 has deposed that during 2012, while she was studying in the sixth standard, the accused used to require her to get 'Beedi' for him; that she used to get him 'Beedi' as and when directed by the accused; that the accused thereupon, used to take her to the shed of one Kesavan and grab her breast and insert his genital organ into her vagina. She deposed that she has not disclosed the said occurrences to anybody. She deposed that while so, she informed the matter to the Child line when they came to the school and they, in turn, took her to the Child Welfare Committee and she disclosed the occurrences to the Child Welfare Committee also. PW1 is the Chairperson of the concerned Child Welfare Committee. PW1 deposed that on receipt of a complaint from the victim girl, the Child Welfare Committee recorded her statement and forwarded the same to the police. PW3 is the elder sister of the mother of the victim girl. PW3 deposed that she came to know of the sexual assaults to which the victim Criminal Appeal No.294 of 2019 -8- girl was subjected to from PW1. PW3 also deposed that the victim girl has disclosed the occurrences to her also.
10. Ext.P1 is the statement given by the victim girl to the Child Welfare Committee. In Ext.P1, the victim girl does not have a case that the accused has committed vaginal penetration on her. Instead, what is stated by the victim girl in Ext.P1 is that accused used to touch her body, grab her breast and used to penetrate his genital organ into her anus. She also deposed that the accused used to insert his finger into her vagina. What is stated by the victim girl in Ext.P1 had not been deposed by her in court. Further, the specific case of the victim girl is that the accused who is aged about 50 years had sexual intercourse with her on several occasions. It is also her case that the accused has committed digital penetration on her on several occasions. PW5 is the doctor who examined the victim girl on 19.05.2014. She deposed that on examination, the hymen of the victim girl was found intact; that there were no injuries, whatsoever, over her vagina and that there was no evidence of vaginal penetration. PW5 has deposed that if a child had been subjected to vaginal penetration two years prior to the examination, evidence of the same may not be present. Criminal Appeal No.294 of 2019 -9- She, however, clarified in cross-examination that in the case of repeated sexual intercourse, there may be evidence of vaginal penetration. Similarly, though PW5 has deposed that the victim girl was brought to her for examination with the alleged history of sexual assault by one Govindan, she clarified in cross-examination that the history of allegation is not stated in the words of the subject. If what is stated by the victim girl is true, going by the evidence tendered by PW5, some evidence of vaginal penetration would have been noticed by the doctor. But, the doctor has not only stated that the hymen of the victim girl is intact, but also that she did not find any evidence of vaginal penetration on the victim girl. The medical evidence in this case throws serious doubt as to the genuineness of the prosecution case as spoken to by the victim girl. It is all the more so since the case of the prosecution is that the accused who is aged about 50 years has committed repeated vaginal intercourse with the minor girl aged about 12 years. A Division Bench of the Himachal Pradesh High Court in Nikka Ram v. State Of H.P (2019 Crl.L.J. 1834), in an almost identical case of sexual assault observed for disbelieving the evidence tendered by the victim girl, thus:
"Otherwise also, a fully grown-up male aged 52 years as Criminal Appeal No.294 of 2019 -10- the accused in this case, could have not raped the victim nor subjected her to aggravated penetrative sexual assault, that too, on many a times without causing injury in her vagina. In that even rather her health was bound to deteriorate and even could have been fatal to her life also. She to the contrary as per her own statement and also that of her parents had been going to the school regularly and attending the classes and also taking part in all activities including sports. As a matter of fact, even after the so called sexual assault also, she throughout remained normal, which could have not been expected from a girl below 12 years of age, had she been sexually abused by a fully grown-up male on number of occasions."
True, even if it is assumed that the medical examination in the instant case has been conducted after about two years of the occurrences, had the occurrences been as alleged by the victim girl, she would have certainly been subjected to some health issues and she would have disclosed the same to her parents, especially when she has no case that there was threat from the accused for not disclosing the occurrences to anyone. Further, the specific case spoken to by the victim girl is that the accused has committed sexual assault on her in the shed owned by PW8. In chief examination, PW2 has also stated that when the accused used to commit sexual assaults on her, there would be nobody in the shed. In cross-examination, PW2 however, admitted that during the relevant time, Kesavan and Criminal Appeal No.294 of 2019 -11- his family were residing in the shed. Kesavan has been examined in the case as PW8. He deposed that during 2012, he was residing with his family in the shed. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) does not apply to Indian scenario, for there would be hardly any witness in India whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. In India, the duty of the court is to scrutinise the evidence carefully, separate the grain from the chaff and find the truth of the matter. If one analyses the evidence on record in the light of the above principle, it is difficult to believe the case put forward by the victim girl that the accused has committed vaginal intercourse with her on several occasions. I take this view also for the reason that prior to Act 13 of 2013, it was obligatory for the prosecution to establish at least an attempt on the part of the accused to commit vaginal penetration.
11. At the same time, the materials on record disclose that it is a case where the victim girl had been sexually assaulted by the accused. The court, however, is unable to find the extent of assault to which the victim girl was Criminal Appeal No.294 of 2019 -12- subjected to by the accused. I take this view for two reasons. There is absolutely no reason for the victim girl aged about 15 years to raise a false allegation against the accused in court. Further, it is seen from the evidence tendered by the victim girl that the complaint has been lodged by the victim girl for the first time before the Child line when its members came to her school. If as a matter of fact, there was no basis at all for the allegation, such a complaint would not have been raised by the victim girl before the Child line. In other words, in the absence of any materials indicating the period during which the sexual assault was committed by the accused on the victim girl, the accused is liable to be convicted only under Section 354 of the IPC, as it stood prior to Act 13 of 2013.
12. The maximum punishment provided for the offence under Section 354 of the IPC, prior to Act 13 of 2013 was two years rigorous imprisonment or with fine or with both. Having regard to the peculiar facts of this case, according to me, the maximum punishment for the offence under Section 354 of the IPC, as it stood prior to Act 13 of 2013, is liable to be imposed on the accused.
Criminal Appeal No.294 of 2019 -13- In the result, the appeal is allowed in part. The conviction of the appellant is altered to one under Section 354 of IPC and the appellant is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, and in default of payment of fine, to undergo simple imprisonment for three months. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR, JUDGE.
DK