Kerala High Court
Radhakrishnan Unnithan vs State Of Kerala on 1 July, 2020
Equivalent citations: AIRONLINE 2020 KER 362
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942
CRL.A.No.484 OF 2019
AGAINST THE ORDER/JUDGMENT IN SC 172/2015 DATED 16-03-2019
OF THE FIRST ADDITIONAL SESSIONS COURT, KOLLAM
CRIME NO.1793/2014 OF Kadakkal Police Station , Kollam
APPELLANT/ACCUSED:
RADHAKRISHNAN UNNITHAN,
AGED 56 YEARS, S/O.VASUDEVAN UNNITHAN,
ANANTHU BHAVAN, ATHISAYAMANGALAM,
THUDAYANNOOR MURI, ITTIVA VILLAGE,
KOLLAM DISTRICT.
BY ADV. SRI.B.MOHANLAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE STATION HOUSE OFFICER,
KADAKKAL POLICE STATION IN KOLLAM DISTRICT,
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP
SMT. PUSHPALATHA M.K SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-
06-2020, THE COURT ON 01-07-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.484 of 2019
2
P.B.SURESH KUMAR, J.
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Criminal Appeal No.484 of 2019
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Dated this the 1st day of July, 2020
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.172 of 2015 on the files of the First Additional Sessions Court, Kollam. The appellant is the sole accused in the case.
2. The victim in the case is a minor girl aged 5 years. The appellant is residing in the immediate neighbourhood of the victim girl. The accusation in the case is that on 30.11.2014, at about 1 pm, the accused has bitten the breasts and caught hold of the private parts of the victim girl and thereby committed the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Section 5(l) read with Section 6, and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 Crl.Appeal No.484 of 2019 3 (the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 11 witnesses as PW1 to PW11 and proved 10 documents as Exhibits P1 to P10. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not , however, adduce any evidence.
4. Among the witnesses examined, PW1 is the mother of the victim girl. She proved Ext.P1 First Information Statement. PW2 is the victim girl. PW3 is the brother-in-law of the father of the victim girl. PW3 is the witness to Ext.P2 Scene Mahazar. PW4 is the Village Officer who issued Ext.P3 Scene Plan. PW5 is the doctor who examined the victim girl and issued Ext.P4 report of medical examination. PW6 is the doctor who examined the accused and issued Ext.P5 Potency Certificate. PW7 is the Secretary of the local authority who Crl.Appeal No.484 of 2019 4 issued Ext.P6 Birth Certificate of the victim girl. PW8 is the witness to Ext.P2 Scene Mahazar. PW9 is the police officer who recorded Ext.P1 statement from the mother of the victim girl. PW10 is the police officer who recorded the statement of the mother of the victim girl as also the victim girl. PW11 is the police officer who registered Ext.P7 First Information Report. PW11 has also proved Ext.P8 series of memos, Ext.P9 remand application and Ext.P10 report.
5. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376 of the IPC and Section 5(l) read with Section 6 and Section 7 read with Section 8 of the POCSO Act. Upon the said finding, the accused was sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for six months under Section 5(l) read with Section 6 of the POCSO Act. No separate sentence was awarded to the accused under Section 376 of the IPC and Section 7 read with Section 8 of the POCSO Act. The accused is aggrieved by the conviction and sentence imposed on him.
Crl.Appeal No.484 of 20195
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant contended that the impugned judgment is one which is far from satisfactory and expected of, in a case of this nature. It was argued that there are no findings in the judgement as to how the offences alleged are established by the prosecution on the facts. It was also argued by the learned counsel that the conviction of the appellant which is founded solely based on the evidence tendered by the victim girl is unsustainable as the said evidence is not credible and reliable.
8. Per contra, the learned Public Prosecutor submitted that the evidence tendered by the victim girl has not been discredited in any manner by the accused in cross examination. She has also submitted that the said evidence makes out the offences alleged against the accused and no interference is, therefore, called for in the matter.
9. Having heard the learned counsel for the appellant and having perused the materials on record, it is seen that the point arising for consideration in the appeal is as to whether the prosecution has established the guilt of the Crl.Appeal No.484 of 2019 6 accused under Section 376 of the IPC and Section 5(l) read with Section 6 and Section 7 read with Section 8 of the POCSO Act.
10. Before dealing with the contentions raised by the learned counsel for the appellant, it is necessary to refer to the evidence tendered by the prosecution in the case. As noted, PW1 is the mother of the victim girl. PW1 deposed that on 30.11.2014, at about 1 pm, the victim girl has told her that the accused has bitten her breasts. She deposed that she then removed the dress of the victim girl to see her breasts and it was found that her breasts were red and swollen. She deposed that the victim girl has also told her then that the accused had poked at her vagina also. PW1 deposed that the victim girl told her thereafter that the accused wanted the victim girl to touch his penis. She also deposed that she immediately went to the house of the accused and questioned him and the accused then replied to her that he was only fondling her. PW1 deposed that she immediately reported the matter to the police. Though PW1 was cross examined by the accused at length, he could not elicit anything from PW1 which would discredit her evidence. Crl.Appeal No.484 of 2019 7
11. PW2 is the victim girl. She deposed that while she was studying in UKG, she used to visit the house of the accused to play with the boys there. She deposed that on 30.11.2014, when she went to the house of the accused for playing with the boys there, the accused has bitten her breasts. She also deposed that the accused thereafter poked at her vagina. PW2 deposed that the boys and aunty were not there in the house at the relevant time. She deposed that it is only when she reached the house of the accused that she realised that there were nobody in the house. PW2 deposed that though she requested the accused to leave her, the accused did not obey. She deposed that the accused had also caused her to touch his penis. She deposed that after sometime, the accused let her to go. PW2 deposed that she immediately informed the matter to her mother and when her mother questioned the accused about the incident, the accused told her mother that he was only fondling her. Unlike in the case of PW1, the victim girl was not seriously cross-examined by the accused, and the suggestion made to her during cross-examination that she was deposing as taught by her mother was emphatically denied by the victim Crl.Appeal No.484 of 2019 8 girl.
12. PW5 is the doctor who examined the victim girl on 01.12.2014 and issued Ext.P4 report. She deposed that the victim girl was brought to her with the allegation "അയൽപകത വടൽ കളക ൻ ആയ പപ യപ ൾ കടതയ on 30.11.2014 ല ഗക പഡന നടതകയ മമ! ഇതപപ ത പ പ വശ& ആവർ കകയ ത)യടണ! . മ റൽ കടയകയ പയ ന യൽ വരൽ കടതകയ ത)യ". PW5 deposed that she found an abrasion of 1 cm long on the right lateral aspect of the labia minora and a transverse abrasion of 5 cm on the fourchette of the victim girl. PW5 deposed that red lines and teeth marks were also found on the upper side of both nipples of the victim. She also deposed that she found evidence of manipulation of finger at her vagina.
13. As noted, the occurrence took place on 30.11.2014 by about 1 pm. Ext.P1 First Information Statement is given on the same day at 2.45 pm. No circumstances, whatsoever, which would throw some doubt at least to the genuineness of the case spoken by the victim girl is brought out by the accused. In the circumstances, on an evaluation of the evidence tendered by PW1, PW2 and PW5 in the backdrop of the time at which the occurrence was Crl.Appeal No.484 of 2019 9 reported to the police, and the narration as to the occurrence made to PW5, I have no hesitation to hold that the prosecution has established that the accused has bitten the breasts of the victim girl and did something on her vagina on the relevant day.
14. In order to find out the nature of the offence committed by the accused, it is necessary to go into question as to what was done by the accused at the vagina of the victim girl. The only evidence available on this aspect is the evidence of the victim girl. In her evidence, the victim girl has stated that the accused had poked at her vagina and also caused her to catch his penis. The relevant portion of the evidence reads thus:
"ഞ ൻ തപടകന സ ! പ6 ണകയ ത)യ. പ)ടന ര മ മ യ
ഇല യരന. അവതട ത)നപ ൾ ആണ! അവർ ഇതലന! മനസ യ6! .
ഞ ൻ വട! എന! പറഞ ട വടല. മ മത@ തപടകന സ ! പടക ൻ
പറഞ. ബ മ യ പട ച."
Though PW2 has stated in her evidence that the accused had caused her to catch his penis, PW1 did not say that the victim girl had told her anything about that. The evidence tendered by PW1 was only to the effect that the victim girl Crl.Appeal No.484 of 2019 10 told her that the accused required her to touch his penis. In Ext.P4 report of the medical examination, what is reported by PW5 as to what was informed to her by the victim girl and her mother when the victim girl was brought before her for examination is "മ റൽ കടയകയ പയ ന യൽ വരൽ കടതകയ ത)യ". After examination of the victim girl, the opinion given by the doctor is that there is evidence of manipulation with finger. It is seen that there is no evidence in the case in support of the version as regards the insertion of the finger into the vagina made by the victim girl to the doctor. In Ext.P1 First Information Statement, PW1 had also no such case. What is stated in Ext.P1 First Information Statement by PW1 is only that the accused had caught hold of the private parts of the victim girl. In the absence of any satisfactory evidence in this regard, I am of the view that the fact proved is only that the accused had poked at the vagina of the victim girl.
15. Section 3 of the POCSO Act deals with penetrative sexual assault. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault. Going by the definitions of the said offences, if an act does not make out a case of penetrative sexual assault, it will not make out a case Crl.Appeal No.484 of 2019 11 of aggravated penetrative sexual assault. The point to be decided therefore, is as to whether the facts established would make out a case of penetrative sexual assault. 'Penetrative sexual assault' defined in Section 3 of the POCSO Act reads thus:
"3. Penetrative sexual assault A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
The prosecution has no case that the case on hand is one falling under clause (a), (c) or (d) of Section 3 of the POCSO Act. Their case is only that the case on hand is one that falls under clause (b) of Section 3 of the POCSO Act, for, according to them, the accused has inserted his finger into the vagina of the victim girl. Dictionaries define the word Crl.Appeal No.484 of 2019 12 'insert' to mean pushing something into something else. A case of insertion of the finger into the vagina cannot, therefore, be inferred from the word " പ6 ണ " spoken to by the victim girl and also her mother. I take this view also for the reason that the medical evidence in the case would only probabilise the said view. As noted, after a thorough examination of the victim girl, PW5 has only opined that the case is one in which the accused had manipulated the vagina of the victim girl, to mean that the accused has done something at the vagina of the victim girl cleverly or unscrupulously. If that be so, insofar as the age of the victim girl has been established in the case and the said fact is not challenged, the offence made out is only the offence punishable under Section 9(m) of the POCSO Act.
16. It is not evident from the materials on record as to how a case of rape defined in Section 376 of the IPC is made out on the facts of the case. The conviction of the appellant under Section 376 of the IPC and under Section 6 of the POCSO Act are therefore, unsustainable in law. The accused is liable to be convicted only under Section 9(m) read with Section 10 of the POCSO Act.
Crl.Appeal No.484 of 201913
In the result, the appeal is allowed in part. The conviction of the appellant is altered to Section 9(m) read with Section 10 of the POCSO Act and he is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for six months for the said offence. The impugned judgment will stand modified accordingly.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB