Kerala High Court
Pankajakshan Nair vs State Of Kerala on 18 February, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal Nos.1161/2018 & 416/2019 1
025:KER:1349
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 416 OF 2019
(CRIME NO.400/2014 OF Pothencode Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 27.07.2018 IN SC
NO.190 OF 2015 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN &
CHILDREN),THIRUVANANTHAPURAM)
APPELLANT/ACCUSED NO.1:
SAJI
AGED 42 YEARS
S/O VISWAMBARAN, CONVICT NO. 2897, CENTRAL PRISON
AND CORRECTIONS HOME, THIRUVANANTHAPURAM
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA(K/1605/2003)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
Crl.Appeal Nos.1161/2018 & 416/2019 2
025:KER:1349
OF KERALA, ERNAKULAM, KOCHI-682 031,
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SHAJIN S.HAMEED
OTHER PRESENT:
SMT. NEEMA T V, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
10.02.2025, ALONG WITH CRL.A.1161/2018, THE COURT ON
18/2/2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1161/2018 & 416/2019 3
025:KER:1349
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 1161 OF 2018
CRIME NO.400/2014 OF Pothencode Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.190 OF 2015 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT(ATROCITIES &
SEXUAL VIOLENCE AGAINST WOMEN &CHILDREN),THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.2:
PANKAJAKSHAN NAIR
AGED 67 YEARS
S/O KESAVAN PILLAI, RENJITH BHAVAN, PULIYANCODE,
BHAGAVATHIPURAM, ULIYAZHTHARA VILLAGE.
BY ADVS.
D.KISHORE
MINI GOPINATH
MEERA KISHORE
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
Crl.Appeal Nos.1161/2018 & 416/2019 4
025:KER:1349
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM 682 031
2 THE CIRCLE INSPECTOR OF POLICE
KAZHAKUTTOM POLICE STATION, THIRUVANANTHAPURAM -
695 581.
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.02.2025, ALONG WITH CRL.A.416/2019, THE COURT ON
18/2/2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1161/2018 & 416/2019 5
025:KER:1349
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
Crl.Appeal Nos.1161 of 2018 & 416 of 2019
------------------------------------
Dated this the 18th day of February 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J Accused Nos.1 and 2 in S.C.No.190/2015 on the files of Additional Sessions Court for the trial of cases relating to Atrocities and Sexual Offences against Women and Children, Thiruvananthapuram, have filed Criminal Appeal No.416/2019 and Criminal Appeal No.1161/2018 respectively challenging the conviction and sentence imposed by that court under Section 376(2)(i)IPC, and Section 3 r/w. Section 4 and Section 6 r/w. Section 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for short) upon the 1st accused and under Section 376(2)(i)IPC upon the 2nd accused.
Crl.Appeal Nos.1161/2018 & 416/2019 6
025:KER:1349 Prosecution case
2. The 1st accused, who is none other than the father of the victim aged 11 years, committed rape and aggravated penetrative sexual assault upon her several times, while staying in their house at Uliyazhthura village. It is alleged that the 2nd accused, who is a coconut plucker, had also committed rape and penetrative sexual assault on the victim at a rubber plantation situated nearby. The events came to light when the child disclosed the matter to the sisters of the Karunalayam where she was staying. Hence, the prosecution alleges that the accused have committed the offences punishable under 376 IPC and Sections 3, 4, 5(l)(m)(n), 6,9(n) & 10 of the Protection of Children from Sexual Offences Act, 2012.
Proceedings before the trial court
3. The prosecution, in order to bring home the guilt of the accused, examined PW1 to PW12 and marked Exhibits P1 to P19 documents. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing Crl.Appeal Nos.1161/2018 & 416/2019 7 025:KER:1349 against them in evidence and contended that they were innocent. Even though the accused were granted an opportunity to adduce evidence, no evidence was adduced from their side. The trial court, on an evaluation of the evidence on record and after hearing both sides, found the 1st accused guilty of committing offences punishable under Section 376(2)(i) of IPC and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of his natural life, and to pay a fine of Rs.1,00,000/- under Section 376(2)(i) of IPC. In case of default, he was ordered to undergo R.I. for one year. He was further found guilty of committing the offences punishable under Sections 4 & 6 of the POCSO Act and was convicted thereunder, and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.50,000/- under Section 10 of the POCSO Act. In case of default, he was ordered to undergo S.I. for six months. The 2nd accused was also found guilty and convicted under Section 376(2)(i) of IPC and was sentenced to undergo Crl.Appeal Nos.1161/2018 & 416/2019 8 025:KER:1349 rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-. In case of default, he was sentenced to undergo simple imprisonment for a period of one year. But, the 2nd accused was found not guilty under Sections 6 & 10 of the POCSO Act. No separate sentence was imposed for the offences under Sections 4 and 6 of POCSO Act upon the 1st accused. The fine amount, if realised, was ordered to be paid as compensation to the victim under Sections 357 (1)(b) Cr.P.C. Prosecution evidence
4. PW1 is a victim in this case. She stated that she had given Ext.P1 FIS to the police from the Child Welfare Committee Office at Poojappura. Her date of birth is 5/6/2003 and when she gave the statement, she was studying in V Standard in GSS, Ayiroorpara. While she was studying in IV Standard, her father who is a carpenter had left her mother. While she was residing with her parents, her father used to take her to the room and would make her lie on his body. Thereafter, he would place his urinating part on her corresponding part and the event first Crl.Appeal Nos.1161/2018 & 416/2019 9 025:KER:1349 occurred while she was studying in IV Standard. She had studied in IV Standard for two years and it was in her 2nd term, such things occurred. He used to insert his fingers into her vagina, press her chest and commit fellatio. Since he threatened her, she was afraid to disclose this fact to anyone. The events used to occur during day time and her father had repeated the acts till he left her mother. He also used to show porn photos on a mobile phone and will ask her to imitate the same. Apart from her father, a person by name, Amaran, who was of the age of her grandfather, who used to come to pluck coconuts, had also sexually abused her. He had taken her to a rubber plantation and had removed her dress, and inserted his penis into her vagina and mouth. She was afraid to disclose these events even to her mother and ultimately, told her while she was in Karunalayam. She identified the person by name Amaran as the 2nd accused in the dock and stated that she had also given Ext.P2 statement before the Magistrate. In her cross- examination, PW1 stated that she was having pain and bleeding Crl.Appeal Nos.1161/2018 & 416/2019 10 025:KER:1349 at that time and it was only because she was afraid of her father, she did not disclose it to anyone. While she was in Karunalayam, the sisters asked her why she was depressed and at that time she disclosed the events to them. They in turn called her mother and then she divulged the same to her.
5. PW2 is the mother of the victim. She deposed that the date of birth of PW1 is 5/6/2003 and she is aware of the facts in this case. Her daughter used to regularly request her to send her to a boarding school and accordingly, she sent her daughter to Karunalayam. One day, the sisters called her and informed her that her daughter was having some problems since she is regularly found in a mournful mood. When she went to Karunalayam, the sisters informed her that the victim's father and another person had abused her daughter and when she enquired with her daughter, she disclosed the events. She could understand that her daughter did not reveal anything to her since she was afraid of her father's threats. She also identified Amaran as the 2nd accused in the dock. In her cross Crl.Appeal Nos.1161/2018 & 416/2019 11 025:KER:1349 examination, she stated that at the time when she gave the statement to the police, she was not on good terms with her husband. Her Ration card, Aadhar card, ID card, Certificates, Birth certificate of her children, etc. were taken away by her husband and she had filed a case to get it back. Later, she withdrew from the case when she felt that she would not get relief. Her husband used to come in an inebriated condition regularly and physically harass her and she even had to give a complaint to the police. It was in April 2014, she left her daughter in Karunalayam and it was during the recess after the III Standard examination, that her daughter was abused. It was during the recess after the V standard examination, she took her daughter to Karunalayam and her daughter told her about the incident three years thereafter. Till the time her daughter was with her, she was very active and it was only after reaching Karunalayam that she started to show psychological distress. Her daughter was also very attached to her father. She further stated that Amaran has another name by Pankajakshan and he Crl.Appeal Nos.1161/2018 & 416/2019 12 025:KER:1349 also works as a security guard in a school.
6. PW3 is the Assistant Surgeon, Taluk Hospital, Chirayankeezhu through whom Ext.P3 and Ext.P4 potency certificates of the 2nd and 1st accused respectively were marked.
7. PW4 was the Headmistress of the Government Higher Secondary School, Ayiroorppara during 30/5/2011 to 30/5/2016. She stated that as per her instructions, the senior assistant of the school had issued Ext.P5 extract of the Admission Register and as per the said document, the date of birth of the victim is 5/6/2003. The victim was given admission to 1st standard on 1/6/2009 and the entries were made in the Register as per the birth certificate. In her cross examination, she stated that the signature in Ext.P5 is not that of hers and it is that of the senior assistant.
8. PW5 is the village officer, who prepared Ext.P6 and P6(a) scene plans. PW6 is a witness to Ext.P7 and P8 scene mahazars. PW7 is the SHO, who registered Ext.P9 FIR after Crl.Appeal Nos.1161/2018 & 416/2019 13 025:KER:1349 receiving the FIR in Crime No.596/2014 from Poojappura Police Station. PW8 is the police officer, who completed the investigation and laid the charge. PW9 is the SI of police, Poojappara, who registered Ext.P10 FIR.
9. PW10 is the police officer, who conducted a major portion of the investigation. He arrested the second accused, after preparing Ext.P11 to P13 documents, and prepared Ext.P8 scene mahazar. Later on 11/5/2014, he arrested the first accused after preparing Exts.P15 to P17 documents and also prepared Ext.P7 mahazar.
10. PW11 is the SI attached to City Vanitha Police Station. She deposed that on 6/5/2014 she went to the office of the Child Welfare Committee and recorded Ext.P1 statement and entrusted the same to the SHO, Poojappura Police station.
11. PW12 is the Deputy Superintendent, who was in charge of the Superintendent, Women & Children Hospital, through whom Ext.P19 wound certificate was marked. He stated that Dr.Dhanya Sukumaran was working in this hospital on Crl.Appeal Nos.1161/2018 & 416/2019 14 025:KER:1349 6/5/2014 and Ext.P19 was issued by her, and it contains her signature and seal. As per Ext.P19, Dr.Dhanya had examined the victim aged 11 years who came with an alleged history of sexual assault. On examination, it was noted that her hymen was torn completely and there was evidence of vaginal penetration.
Contentions of the appellants
12. The learned counsel for the first accused Adv.Dheerendra Krishnan K.K. and the learned counsel for the second accused Adv.D.Kishore contended that the accused have been falsely implicated in this case at the instance of PW2 and her paramour. They argued that the charge framed is not specific and is defective, since it does not even mention the proximate time/period when the offences were allegedly committed and the same has caused considerable prejudice to the accused. They also argued that even going by the prosecution case, the alleged offences have been committed much before the coming into force of the POCSO Act and prior Crl.Appeal Nos.1161/2018 & 416/2019 15 025:KER:1349 to the amendment made in 2013 to Section 375, and hence the conviction and sentence imposed by the trial court cannot be sustained. They submitted that the prosecution has suppressed the material evidence by not examining the matron of Karunalayam, to whom the victim allegedly first confided. They argued that Ext.P5 certificate has not been proved as required by law and it is only a copy from an extract taken and not an extract from the Admission Register. The learned counsel relied on the decision in Rajan v. State of Kerala (2021 KHC 375) and contended that such a copy will not satisfy the requirement of law, as contemplated under Section 76 of the Indian Evidence Act. Hence, according to them, the prosecution has not let in any credible evidence to prove the age of the victim. They further argued that no reliance can be placed on Ext.P19, since the opinion is not conclusive and the same cannot be relied upon to prove penetrative sexual assault. The learned counsel for the second accused, by relying on the decision in State of Kerala v. Itty (2024 KHC OnLine 1657), also added that the Crl.Appeal Nos.1161/2018 & 416/2019 16 025:KER:1349 testimony of a child witness without corroboration especially when there are doubts about its reliability must not be acted upon. He submitted that the evidence of PW1 is not at all believable, since she has not divulged anything to her mother. He further submitted that, PW1's evidence has been recorded by the trial court without conducting the voir dire test and the same also is fatal. He also submitted that the trial court has jointly tried the case of the second accused with the first accused, even though the allegation against the second accused reveals a distinct offence, and has thereby violated the provisions of Sections 218 and 223 of Cr.P.C causing considerable prejudice to him. He further, by relying on the decisions in Jayan & others v. State of Kerala (2021 6 KHC
400) and Biju v. State of Kerala (2024 KHC 1198), contended that the identification of the second accused by the victim for the first time in the court cannot be accepted. Hence, they prayed that these appeals may be allowed. Contention of the Prosecutor Crl.Appeal Nos.1161/2018 & 416/2019 17 025:KER:1349
13. Learned Senior Public Prosecutor Adv.Neema T.V. argued that the prosecution has proved its case beyond reasonable doubt. She contended that there is no vagueness in the charge and the period during which the victim was assaulted has been specifically stated in it. She argued that the evidence of PW1 and PW2 would reveal that the offences had been perpetrated after the POCSO Act came into force, while the victim was studying in the 4th standard and the FIS had been lodged while the victim was studying in the 5th standard. She also argued that PW1 is a sterling witness and no corroboration is required for her evidence. She, by relying on Sections 215 and 464 of Cr.P.C, submitted that no prejudice has been caused to the accused, even if there is an error in the proceedings before the trial court or in framing charge, the same is not fatal. She contended that the oral testimony of PW1 is well supported by the evidence of PW12 and Ext.P19, the medical evidence adduced in this case. Hence, she prayed that these appeals may Crl.Appeal Nos.1161/2018 & 416/2019 18 025:KER:1349 be dismissed.
Evaluation of evidence
14. In the present case, the prosecution places heavy reliance on the evidence of PW1, the victim, to prove its case. An appraisal of her evidence would show that she has given a vivid description of the manner in which she was abused by the first accused and the second accused. Her evidence reveals that, while she was studying in the 4th Standard, the first accused had taken her to a room and had made her lie upon him. Thereafter he inserted his penis and finger into her vagina and fondled her chest. He also committed fellatio and threatened her with dire consequences if she discloses the events to anyone. It is also discernible from her evidence that the first accused has committed the afore acts till he left his wife. As regards the second accused, the evidence of PW1 reveals that he had taken the victim to a rubber plantation nearby and thereafter had removed her dress and inserted his penis into her vagina. He also committed acts of fellatio. The victim positively identified Crl.Appeal Nos.1161/2018 & 416/2019 19 025:KER:1349 the second accused in the dock and stated that she has pre acquaintance with him, since he used to regularly come for plucking coconuts. Even though a roving cross examination was conducted by the learned counsel for the accused, nothing has been brought out to discredit her testimony regarding the crux of events spoken to by her and also the identification of the second accused made by her.
15. As stated earlier, the events got unfurled only when the victim spoke to the matron of Karunalayam, who, in turn, informed the Child Welfare Committee and the mother of the victim. It is from the office of C.W.C., the first information statement (Ext.P1) of the victim was recorded by the police on 6/5/2014. The recitals in Ext.P1 FIS would go to show that it tallies in material particulars with the testimony of PW1 regarding the core of the events which transpired. Likewise, Ext.P2-Section 164 statement given by the victim before the Magistrate on 11/12/2014 also corroborates with her evidence and no contradictions or material omissions have been brought Crl.Appeal Nos.1161/2018 & 416/2019 20 025:KER:1349 out by the accused. Further, the evidence of PW12 coupled with Ext.P19 wound certificate, (which was marked without any objections from the side of the accused) also lends much credence to the testimony of PW1 regarding her being sexually abused by the accused. Ext.P19 clearly goes to show that at the time when the victim was examined by the doctor, ie, on 6/5/2014, her hymen was completely torn and there was evidence of vaginal penetration. Even though it is stated in Ext.P19 that, "final opinion is pending chemical analysis", the doctor, after assessing the entire physical/bodily characteristics/attributes including the private parts of the victim and conducting tests, has opined that there is evidence of vaginal penetration. Further, even after PW12 has been cross examined in extenso, nothing has been brought out which would cast a cloud over the opinion given by the Chief Medical Officer of the Women and Children hospital, who issued Ext.P19.
16. Coming to the contention of the learned counsel for the appellants that it is highly unsafe to rely on the sole Crl.Appeal Nos.1161/2018 & 416/2019 21 025:KER:1349 testimony of PW1 in the absence of corroboration, we are of the view there is no merit in it. It is true that PW1 has not spoken about the events to her mother while she was residing with her and that she had disclosed it only while staying in Karunalayam. But the evidence of PW1 clearly goes to show that she was under a looming threat from the first accused while she was staying in her house along with her parents, disabling her from disclosing the events to anyone. It is only when the sisters in Karunalayam noticed her depression and questioned her, the victim had opened up her mind to them.In such circumstances, her conduct can never be considered as a factor to doubt her credibility. Further, as stated earlier, PW1 has withstood the strenuous cross examination from the side of the accused and no material contradictions or omissions could be brought out from the side of the accused. Her testimony of sexual abuse also is well supported by the medical evidence adduced in this case. On an evaluation of evidence of PW1, we have no doubt in our mind that there is a ring of truth in her testimony. It is to Crl.Appeal Nos.1161/2018 & 416/2019 22 025:KER:1349 be kept in mind that it is not the quantity of witness, but the quality of witness which weighs in the court. If the testimony of a solitary witness is wholly reliable and the witness is of sterling quality, the same can undoubtedly be relied upon by the courts to convict the accused. (See Allil Mollah v. State of West Bengal [(1996) 5 SCC 369], Amar Singh v. State(NCT of Delhi) [(2020) SCC OnLine 826]. If so, we see no impediments in placing reliance upon her testimony.
17. Coming to the next contention of the appellants that, the offences under the POCSO Act and under Section 376(2)
(i)&(n) IPC will not be attracted in the present case since, the crime has been committed much prior to the introduction of the POCSO Act and the afore provisions in IPC, we are of the view that there is some merit in them. A perusal of the court charge goes to show that no specific date, month or year of the commission of the offence has been stated in it. Instead, what is stated is that the first accused has sexually assaulted and committed rape upon the victim, while she was studying in the Crl.Appeal Nos.1161/2018 & 416/2019 23 025:KER:1349 3rd standard and the second accused has committed the afore acts while the victim was studying in the 4th Standard. The evidence of PW1 coupled with Ext.P1 would go to show that Ext.P1 has been lodged by her while she was studying in the 5th Standard. But her evidence shows that she has not spoken about the period during which she was abused. Even though she would say that the first accused had abused her for the first time while she was studying in the 4th Standard during her second term and that the abuse continued till her father left her mother, she did not state anything regarding when the second accused abused her. Now going by the evidence of PW2, it is during the end of completing her 3rd Standard and after the exams, her husband has abused PW1. Her evidence also reveals that she is not sure about the year or month in which the events transpired. It is also pertinent to note that during cross examination, PW2 went on to say that it is after three years of the incident, her daughter has revealed about it. It cannot be disputed that the prosecution is duty bound to prove the period Crl.Appeal Nos.1161/2018 & 416/2019 24 025:KER:1349 during which the crimes have been perpetrated and that those crimes fall within the ambit of the law prevailing at that time in order to prosecute the accused. As stated earlier, the evidence on record goes to show that there is no consistency in the evidence regarding the period during which the crimes were committed and going by the evidence of PW2, it is nearly three years before the disclosure by PW1, the offences have been perpetrated. It is to be taken note that the POCSO Act was brought into effect only on 14/11/2012 and the provisions under Section 376(2)(n)(i) of IPC have been incorporated only on 3/2/2013. If so, we have no hesitation in coming to a finding that there are no materials to convincingly establish that the offences under the POCSO Act and Section 376(2)(n), (i) IPC are attracted in this case . Resultantly, we find that the conviction of the accused under the afore provisions cannot be sustained.
18. Be that as it may, in the present case, as stated earlier, the prosecution has, without any doubt, proved that the accused Crl.Appeal Nos.1161/2018 & 416/2019 25 025:KER:1349 have committed sexual intercourse with the victim. The charge framed against the accused by the trial court also clearly states that the accused have committed penetrative sexual assault and rape repeatedly upon the victim while she was studying in III and IV Standard. The charge also specifies the offence with which the accused are charged i.e, Section 376 IPC. It is true that in the court charge, it has been mistakenly stated that the minor girl was aged 11 at the time of commission of the crime. It is also true that no specific date or time is mentioned in the court charge as to when the crime was committed, since the same cannot be discerned from the minor victim who was subjected to repeated sexual assault. But, as stated earlier, all the other material particulars of the offence required to be stated in the charge have been put to the accused and they have participated in the full-fledged trial conducted thereafter. There is nothing on record to show that the accused were misled by the minor error that has crept in the court charge or that it has occasioned a failure of justice. At this juncture, we Crl.Appeal Nos.1161/2018 & 416/2019 26 025:KER:1349 will also keep in mind Section 215 of Cr.P.C, which states that no error in stating either the offence or the particulars to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned to failure of justice.
19. As regards the contention of the appellants that no reliance can be placed on Ext.P5 since the same has not been proved as required by law and that the prosecution has failed in proving the age of the victim, we are of the considered view that there is no merit in it. It is true that, from the evidence of PW4 it is discernible that Ext.P5 was prepared by the senior assistant in the school and also that the same has been signed by him. But, even if Ext.P5 is eschewed, we are of the view that there is sufficient credible evidence in the form of the oral testimonies of PW1 and PW2 to prove the age of the victim. Both PW1 and PW2, have in one voice, categorically stated that the date of birth of PW1 is 5/6/2003. It is very pertinent to note Crl.Appeal Nos.1161/2018 & 416/2019 27 025:KER:1349 that not a single question has been raised by the accused disputing the afore version of PW1 and PW2 when they were cross-examined. Further, we also do not find any reason to disbelieve PW2, who is the mother of the victim, on this aspect. At this juncture, we would take note of the fact that even when PW1 was examined in the trial court she was aged only 14 and again, there is no quarrel regarding the same from the side of the accused. It has been held in Biju v. State of Kerala [2024 (2) KHC 297], that there is nothing under the POCSO Act, which would indicate that the unchallenged oral testimony of the mother of the victim cannot be taken as proof of date of birth of the victim. It is also held that the provisions of the J.J.Act, dealing with documents that can be relied upon to prove the age of a juvenile for the purposes of that Act do not preclude a court from considering a question regarding the age of a victim under the POCSO Act from placing reliance on other evidences admissible as per the Evidence Act. If so, we are of the view that the afore principle can also be adopted in the present case Crl.Appeal Nos.1161/2018 & 416/2019 28 025:KER:1349 and the unchallenged evidence of PW2 can be relied upon to reach a conclusion that the date of birth of the victim is 5/6/2003. This, in turn, means that the accused can be found guilty of committing an offence punishable under Section 376(2)
(f)of IPC as it stood before the substitution brought into that Section with effect from 3/2/2013.
20. The contention of the appellants that non conducting voir dire test on PW1 is fatal to the prosecution case, also does not have any legs to stand. It is a settled law that the preliminary examination is conducted by the court only to ensure that the witness is capable of understanding the nature of questions put to him/her and he/she is able to give rational answers. The mere fact that the voir dire test is not conducted does not affect the credibility of the evidence furnished by the witness. If the court after taking evidence finds that the witness is capable of giving cogent, convincing and rational answers, then the witness is a competent witness under Section 118 of the Evidence Act. [See Lalu v. State of Kerala (2015 KHC Crl.Appeal Nos.1161/2018 & 416/2019 29 025:KER:1349
535) and Mirajul Islam Sheik v. State of Kerala [(2017) SCC OnLine Ker 24107]. In the present case, on an appraisal of the evidence of PW1, we have no doubt in our mind that she is a witness, who is capable of understanding the nature of questions put to her, and able to give rational answers. If so, we find that the probative value of the evidence furnished by her need not be defenestrated, solely for this reason.
21. As far as the contention raised by the learned counsel for the second accused by relying on Sections 218 and 223 Cr.P.C that the second accused cannot be jointly charged and tried with the first accused and that it has caused considerable prejudice in the minds of the court, we find no merit in them. First of all, we would point out that even though such a contention of prejudice has been raised by the second accused, there is nothing on record to substantiate the same. The records go to show that the second accused has actively participated in the entire trial and has extensively cross examined the prosecution witnesses without any objection. Secondly, going by Crl.Appeal Nos.1161/2018 & 416/2019 30 025:KER:1349 Section 465 Cr.P.C., no finding, sentence or order passed by a competent court shall be reversed in appeal on account of any error, omission or irregularity in the proceedings before or during trial under this Code, unless a failure of justice has, in fact, been occasioned thereby. [See Nasib Singh v. State of Punjab & Anr.[(2022) 2 SCC 89]. If so, in the absence of any material to show that any prejudice has been caused to the defence of the accused, thereby resulting in failure of justice, no much weightage can be given to the afore contention.
22. The upshot of the afore discussions on evidence is that, even though the prosecution has failed to prove that the accused have committed the offences under the POCSO Act or under Section 376(2)(i),(n) of IPC, they have proved beyond reasonable doubt that the accused have committed an offence punishable under Section 376(2)(f)of IPC (as it stood before the substitution of the Sections with effect from 3/2/2013). This, in turn, means that the conviction and sentence imposed upon the accused by the trial court are liable to be set aside and instead, Crl.Appeal Nos.1161/2018 & 416/2019 31 025:KER:1349 they are liable to be convicted under Section 376(2)(f) of IPC and we do so.
23. Now coming to the question of sentence, considering the nature of offence, its gravity, the age of the victim, the fact that the first accused is the father of the victim, the further fact that the second is the senior citizen, and the facts and circumstances of the case, we are of view that the appellants/accused can be sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lakh each under Section 376(2)(f) IPC. In case of default, each of the appellants/accused shall undergo simple imprisonment for a further period of one year.
In the result, these appeals are allowed in part as follows:
i) The conviction and sentence imposed on the appellants/accused in S.C. No.190/2015 by the Additional Sessions Court for the trial of cases relating to Atrocities and Sexual Offences against Women and Children, Thiruvananthapuram, are set aside.Crl.Appeal Nos.1161/2018 & 416/2019 32
025:KER:1349
ii) Instead, the appellants/accused are convicted under Section 376(2)(f) IPC and are sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh each under Section 376(2)(f) IPC. In case of default, the appellants/accused shall undergo simple imprisonment for a further period of one year.
iii) In case the fine is realised, the same shall be paid to PW1 as compensation under Section 357(1)(b) Cr.P.C.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE Sd/-
P.V.BALAKRISHNAN
dpk JUDGE