Kerala High Court
Suresh, C-857/2016, Central Prison And ... vs State Of Kerala on 27 July, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
CRL.A NO. 289 OF 2017
AGAINST THE JUDGMENT IN SC 403/2014 OF SPECIAL COURT FOR THE
TRIAL OF OFFENCES AGAINST CHILDREN (ADDITIONAL SESSIONS
COURT-I), KOZHIKODE
APPELLANT:
SURESH, S/O AYYAPPAN, C-857/2016, CENTRAL PRISON
AND CORRECTIONAL HOME, KANNUR.
BY ADV. SRUTHY N BHAT(STATE BRIEF)
RESPONDENT:
STATE OF KERALA
(KODENCHERY POLICE STATION, CR.NO.288/13)
BY ADVS.
SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN
& CHILDREN & WELFARE OF W & C
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.04.2022, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Crl.Appeal No.289/2017
-:2:-
"C.R."
J U D G M E N T
Dated this the 27th day of July, 2022 This appeal portrays the sorry plight of an innocent minor girl, aged 11 years, who was repeatedly sexually exploited by none other than her father with the tacit support of her mother for about one year - a clear case of the fence itself eating the crop.
2. The victim girl was staying with her parents and younger brother. The incidents took place in the year 2012-2013. At that time, the victim was a 5 th standard student. The accused was a coolie. The prosecution alleged that the accused committed rape on the victim multiple times during the above- mentioned period. The victim narrated in detail three incidents of sexual assault. According to her, the first incident took place at her home when her mother and brother were away. When she complained about this to her mother in the evening, she supported her husband. Taking advantage of this, the accused Crl.Appeal No.289/2017 -:3:- continued to rape her, under the influence of alcohol, on several occasions and threatened to kill her if she complained. She was not able to open up about the heinous acts to anyone for the fear of getting killed. Crying was her only form of resistance until one day she opened up and told everything to PW6, her aunt and PW2, her class teacher.
3. On 13/11/2013, PW6 along with the victim went to Kodenchery police station and gave Ext.P1 FI statement to PW10, the SI of Police. Based on Ext.P1, PW10 registered Ext.P8 FIR. PW11, the Circle Inspector of Police, Kodenchery Police Station conducted the investigation. After completing the investigation, he filed the final report at the Sessions Court, Kozhikode. The Sessions Court after taking cognizance of the offences made over the case to the court below. After hearing both sides, the court below framed the charge against the accused under Section 376 of IPC and Section 3(a) r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act). After trial, the court below found the accused guilty under Section 376 of IPC and Section 4 of the POCSO Act and he was convicted for Crl.Appeal No.289/2017 -:4:- the said offences. He was sentenced to undergo rigorous imprisonment for a term of ten years on three counts and to pay a compensation of `50,000/- to the victim, in default to suffer rigorous imprisonment for a term of one year for the offence punishable under Section 4 of the POCSO Act. No separate punishment was imposed under Section 376 of IPC. Aggrieved by the said conviction and sentence, the accused preferred this appeal.
4. As the appellant was not represented by his own lawyer, Smt.Sruthy N.Bhat was appointed as crown counsel to render legal aid to the appellant. I have heard the learned Counsel for the appellant as well as the learned Special Government Pleader Smt.Ambika Devi.
5. I place on record the appreciation for the able assistance rendered by the learned crown counsel Smt.Sruthy N.Bhat.
6. The learned counsel for the appellant impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The counsel submitted that the Crl.Appeal No.289/2017 -:5:- conviction is based on the uncorroborated testimony of the child witness. The counsel further submitted that there is an unexplained delay in lodging the FIR, the benefit of which should go to the accused. The counsel also submitted that the medical evidence does not support the oral testimony of the victim. The prosecution miserably failed to prove the guilt of the accused, argued the counsel. Per contra, the learned Special Government Pleader supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 376 of IPC and Section 4 of the POCSO Act have been established against the accused and the prosecution has succeeded in proving the case beyond reasonable doubt.
7. The prosecution mainly relied on the evidence of PWs.1, 2, 3, 6, 12 and 13 to prove the incident and to fix the culpability on the accused. PW1 is the victim. PW2 is the class teacher and PW3 is the neighbour of the victim. PW6 is the wife of the victim's father's elder brother. PWs.12 and 13 are the doctors who examined the victim.
8. PW1, the victim, gave evidence in detail regarding the Crl.Appeal No.289/2017 -:6:- sexual assault committed on her by the accused on various occasions. At the time of giving evidence, she was aged 14 years, studying in 9th standard, and was housed at a shelter home viz., Nirbhaya Shelter, Paroppady. She deposed that, while she was studying in 5th standard, one day, when her mother and brother were not in the house, the accused forcibly made her lay on a cot, kissed her, caught her breast, pulled her pant and panties up to her knee and thrust his finger and genital organ into her genital organ. She further deposed that she felt pain and when she made attempt to run away from the house, the accused chased her, took her back to the room and repeated what he had done earlier. Thereafter, the accused threatened to kill her if she disclosed the incident to anybody. She also deposed that when her mother came in the evening, she narrated the incident to her, but she told her that she would not support her and instead sided with the accused. She added that on two or three occasions thereafter, the accused repeated the very same thing. She spoke about the second incident. According to her, one day the accused took her to the house of her grandmother at night. On the way, Crl.Appeal No.289/2017 -:7:- he embraced her and thrust his finger into her genital organ. She also spoke about the third incident in detail. She stated that on 10/11/2013, the accused took her to the house of her paternal grandmother. On that day also, the accused repeated the very same sexual act. When she cried, some people of the locality came towards them. Then the accused dragged her to the nearby bushes and thrust his genital organ into her genital organ. She deposed that on the next day, when she went to school, she felt pain in her private part and when she was sitting in the classroom with pain, the teacher asked her what happened, but she did not disclose anything to the teacher. Then the teacher informed the matter to PW6, who came to the school. Then she disclosed the entire incident to PW6 and then to PW2. Thereafter she along with PW6 went to the police station and gave Ext.P1 complaint. Ext.P1 was marked through her.
9. PW2 and PW6 gave evidence in tune with the evidence given by PW1. PW2 deposed that, one day, PW1 developed a stomachache at the school, and she informed the matter to PW6 who came to the school and talked with PW1. PW1 narrated the Crl.Appeal No.289/2017 -:8:- entire incident of sexual assault done on her by her father to PW6. Thereafter, PW1 told her also about the entire incident. PW6 deposed that, one day, the grandmother of PW1 called her over the phone and told her that PW1 has got a stomachache and requested her to go to their house and enquire with PW1 as to the reason for her stomachache. Accordingly, she went to the house and enquired with PW1 who told her that her father behaved badly with her and touched her private parts. As PW1 was crying, she did not ask anything more. The next day PW2 called her and asked her to visit the school. At the school, she talked with PW1 who narrated the entire episode to her and then to PW2. She further deposed that thereafter she took her to a doctor at Government Hospital, Vythiri, and thereafter to the police station and lodged Ext.P1 complaint.
10. I have perused the evidence of PW1 meticulously. Even though she was cross-examined in length, nothing tangible could be extracted from her cross-examination to create any shadow of doubt that she is not a truthful witness. She clearly deposed the way the accused assaulted her sexually on multiple occasions. Crl.Appeal No.289/2017 -:9:- She gave a reliable, consistent, and credible version of the crime and her evidence inspires confidence. In the chief examination, she clearly deposed that the accused thrust his finger and genital organ into her genital organ (അച്ഛൻ വവിരൽ കകകൊണണ എകന മൂതത ഒഴവിക്കുന സ്ഥലത അമർതവി. അതവിന ശശേഷത അച്ഛകന മൂതത ഒഴവിക്കുന സകൊധനത എകന മൂതത ഒഴവിക്കുന സ്ഥലത വചണ അമർതവി. എനവികണ ശവദന ഉണകൊയവി. ഞകൊൻ കരഞ കകകൊണണ പുറശതക്കു ഓടവി ശപകൊയവി. അച്ഛൻ എകന കൂകട ഓടവി വന എകന വവീണത വവീടവിശലക്കു കകകൊണണ ശപകൊയവി. മുൻപണ കചെയ്തതണ ശപകൊകല കചെയ). She has also specifically deposed that on 10/11/2013, when the accused took her to the house of her grandmother, on the way, the accused dragged her to the nearby bushes and thrust his genital organ into her genital organ (അശപകൊൾ പ്രതവി എകന കകൊടവിശലകണ വലവിച കകകൊണണ ശപകൊയവി നവിലത കവിടതവി. എകന പകൊനണ പ്രതവി ഊരവി, പകൊനവീസത ഊരവി. അച്ഛൻ മൂതത ഒഴവിക്കുന സകൊധനത എകന മൂതത ഒഴവിക്കുന സ്ഥലത കവച. അശപകൊൾ എനവികണ ശവദന ശതകൊനവി. അശപകൊൾ അച്ഛൻ എഴുശനറ. അശപകൊൾ എകന തുടയവിൽ എശനകൊ കകകൊഴുപ്പുള Crl.Appeal No.289/2017 -:10:- ദകൊവകത പറവിയവിരുന). It is pertinent to note that the above evidence specifically given by PW1 was not even touched on in cross- examination. Thus, her evidence on this aspect remains unchallenged.
11. It is settled that the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution. At the same time, it must be taken note of that the children by their inherent nature are honest. Corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence is a well-accepted principle [See Hari Om v. State of Uttar Pradesh (2021) 4 SCC 345]. There is absolutely no ground for doubting the veracity of the child witness, PW1.
12. The learned counsel for the appellant submitted that the conviction was based on the solitary evidence of the victim and no independent witness was examined. The Apex Court in Krishan Lal v. State of Haryana (AIR 1980 SC 1252) held that to seek substantial corroboration of the victim's evidence in a Crl.Appeal No.289/2017 -:11:- rape case is to sacrifice common sense. In Rafiq v. State of U.P. (AIR 1981 SC 559), the Apex Court observed that "hardly a sensitized Judge who sees the conspectus of circumstances in its totality rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity". In State of Himachal Pradesh v. Asha Ram (AIR 2006 SC 381), it was held that it is well within the limits to rest a conviction based on the solitary testimony of the victim, whose evidence is more reliable than that of the injured witness. In Radhu v. State of Madhya Pradesh [(2007) 12 SCC 57], it was held that, in rape cases, the finding of guilt can be based even on the uncorroborated evidence of the victim and the evidence of the victim should not be rejected based on minor discrepancies and contradictions. In State of Punjab v. Gurmit Singh and Others [(1996) 2 SCC 384], the Apex Court took the view that in cases involving sexual molestation, even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. It was further held that the courts cannot cling Crl.Appeal No.289/2017 -:12:- to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken by the victim of a sex crime strikes the judicial mind as probable.
13. The evidence of PW1 gets corroboration from the evidence of PW2 and PW6. The evidence of PW2 would show that PW1 complained of stomach pain in the classroom and when questioned, she asked her to call PW6 who came to the school and PW1 disclosed to her as well as to PW6 about the sexual assault made by the accused. The evidence given by PW6 would show that one day, the grandmother of PW1 called her over phone and told her that PW1 has got a stomachache and requested her to go to their house and enquire with PW1 as to the reason for her stomachache. Accordingly, she went to the house and enquired with PW1 who complained to her that her father behaved badly with her and touched her private parts. The next day PW2 called her and asked her to visit the school. At the school, when talking with PW1, she complained that the accused hugged her, caught on her breasts, kissed her, fondled her private part with his finger and thrust his genital organ into her Crl.Appeal No.289/2017 -:13:- genital organ. This conduct of the victim in complaining to her aunt and also to her class teacher about the sexual assault made by the accused is relevant and can be received in evidence under Section 8 of the Indian Evidence Act since it constitutes subsequent conduct of the victim. The bare language of Section 8 makes it abundantly clear that the subsequent conduct of any party to a proceeding is relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or relevant therein. The Illustration (j) to Section 8 of the Indian Evidence Act reads thus:
"8. Motive, preparation and previous or subsequent conduct.
xxxxx
(j) The question is, whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstance under which, and the terms in which, the complaint was made, are relevant.
The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157."
14. The above Illustration squarely applies to the facts of Crl.Appeal No.289/2017 -:14:- this case. The third incident of sexual assault took place on 10/11/2013. The evidence of PW6 discussed above would show that PW1 stated about the sexual assault committed by the accused on the same day when she visited her at the house and also on the next day when she visited her at the school. The evidence of PW2 would show that PW1 disclosed the entire incident to her as well on the next day of the last incident. This would certainly constitute a complaint relating to the crime narrating the circumstances and the way PW1 was subjected to sexual assault by the accused. The statement given by the girl of such an age in the form of imparting information would necessarily take the character of a complaint. Being the victim herself, she is a party to the proceedings within the ambit of Section 8 and her complaint to her aunt and class teacher is her subsequent conduct having direct bearing on the fact in issue and, thus, admissible under Section 8 of the Indian Evidence Act. The Apex Court in Rameshwar v. State of Rajasthan (AIR 1952 SC 54) has held that the previous statement of the raped girl to her mother, immediately after the occurrence, is not only Crl.Appeal No.289/2017 -:15:- admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of Section 157 of the Evidence Act. In order to come to the aforesaid conclusion, Illustration (j) to Section 8 of the Indian Evidence Act was relied on. This Court in Thottakkara Chathan v. State (2009 (2) KHC 175) has held that the conduct of a woman in complaining to her mother about the sexual assault on her is relevant since such conduct is influenced by the factum of such assault which is a relevant fact for the issue arising for decision. The Division Bench of the Madhya Pradesh High Court in Indru v. State of H.P. (1989 KHC 1570) has held that the statement made by the prosecutrix shortly after the gruesome incident complaining to her mother narrating the circumstances and the manner in which she had been subjected to rape by the accused having direct bearing on the fact in issue is admissible as evidence under Section 8 of the Indian Evidence Act. For these reasons, I am of the view that the evidence of PWs 2 and 6 can safely be relied on with the aid of Section 8 of the Indian Evidence Act.
Crl.Appeal No.289/2017-:16:-
15. The evidence of PW6 would further show that she along with PW1 went to the police station and gave Ext.P1 statement on 13/11/2013. The police took PW1 to PW13, the assistant surgeon at Taluk Hospital, Thamarasserry on 14/11/2013 for medical examination. Ext.P12 is the certificate issued by PW13. Thereafter, on 16/11/2013, PW12, the medical consultant, at Taluk Hospital, Thamarasserry, examined PW1 and issued Ext. P11 certificate. PW13 specifically deposed that the victim came with a history that her father sexually assaulted her during the last two years. It has been recorded in Exts.P11 and P12 as well. PW3 is a neighbour of the accused and the victim. She deposed that the accused used to create problems in the house after consuming alcohol and she had seen the accused taking PW1 outside the house during night hours. Thus, the evidence of PW3, 12 and 13 also supports the prosecution case.
16. The learned counsel for the appellant vehemently argued that there is undue delay in reporting the alleged incidents to the police and lodging the FIR. According to the prosecution, the alleged first incident took place one year prior to Crl.Appeal No.289/2017 -:17:- 11/11/2013. However, the FIR was lodged only on 13/11/2013. The prosecution failed to explain this delay, submitted the counsel.
17. The delay in lodging the FIR becomes fatal only in a case where there is absence of explanation and there is doubt as to the genesis or genuineness of the prosecution case. The delay in a case of sexual assault cannot be equated with delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR. (State of Himachal Pradesh v. Prem Singh, AIR 2009 SC 1010). It is pertinent to note that the evidence on record would show that the victim disclosed the first sexual assault committed by the accused to her mother on the evening of the incident. But her mother told her that she would only support her father. That apart, PW1 deposed that the accused threatened to kill her if she complained. It has come out in evidence that PW1 complained of Crl.Appeal No.289/2017 -:18:- stomach pain in the classroom and only when PW2 enquired with her about the reason for stomach pain, she was compelled to disclose the sexual assault committed by the accused to PW2 and PW6. On the next day itself, PW6 along with PW1 went to the police station and gave Ext.P1 FI statement Thus, there is satisfactory explanation for the delay in disclosing the incident by the victim to PW2 and PW6. That apart, there is nothing to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay.
18. The learned counsel for the appellant next argued that the evidence on record would show that the appellant was falsely implicated by PW6 on account of the animosity she had with him. To substantiate the said plea, the accused relied on the contradiction brought out in the evidence of PW6. When PW6 was questioned by the police, she gave a statement that there was animosity between herself and the accused. It is quite improbable to believe that on account of some animosity between PW6 and the accused, even if it is true, she would make a false allegation of rape on her own niece. That apart, it is also difficult to believe Crl.Appeal No.289/2017 -:19:- that the victim would speak falsehood against her own father. The Apex Court in Gurmit Singh (supra) held that the court must while evaluating the evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as she is involved in the commission of rape on her. In Rajinder v. State of Himachal Pradesh [(2009) 16 SCC 69], the Apex Court held that in the context of Indian culture, a woman, a victim of sexual aggression, would rather suffer silently than falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of a sex crime, she would not blame anyone, but the real culprit. Thus, the argument of the learned counsel for the appellant that the appellant was falsely implicated due to animosity with PW6 must fail.
19. Lastly, the learned counsel vehemently argued that the medical evidence does not support the oral testimony of PW1 as seen from the evidence of the doctors who were examined as PW12 and PW13. True, PW13 deposed that the hymen and Crl.Appeal No.289/2017 -:20:- fourchette of the victim were found intact and PW12 deposed that there were no external injuries, and the hymen was intact. It was argued that the said evidence suggests that no vaginal dilation has occurred and thus the evidence of PW1 that she was subjected to rape on many occasions is only to be disbelieved. I cannot subscribe to the said argument. The absence of injuries on the private parts of the victim will not, by itself, falsify the case of rape. Where the victim is of tender years, rupture of the hymen is not an essential consequence. The opinion of the doctor that there were no external injuries and that the hymen and fourchette of the victim were found intact is not sufficient to disbelieve the clear and cogent testimony of a victim. PW1 in unequivocal terms deposed that on three occasions, the accused thrust his finger and penis into her vagina. It may be a case where there is no actual penetration, but even partial penetration is sufficient to attract the offence of rape as defined under Section 375 (a) and (b) of IPC and penetrative sexual assault as defined under Section 3 (a) and (b) of the POCSO Act.
20. For the reasons stated above, I hold that the court Crl.Appeal No.289/2017 -:21:- below was absolutely justified in convicting the accused under Section 376 of IPC and Section 4 of the POCSO Act. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for a term of ten years and to pay a compensation of `50,000/- to the victim, in default to suffer rigorous imprisonment for a term of one year for the offence punishable under Section 4 of the POCSO Act.
21. In State of M.P. v. Babulal [(2008) 1 SCC 234], the Apex Court held that once a person is convicted for the offence of rape, he should be treated with heavy hands and an undeserved indulgence or liberal attitude in not awarding adequate sentence would encourage potential criminals. In Dhananjoy Chatterjee v. State of West Bengal [(1994) 2 SCC 220], the Apex Court observed that the Court must not only keep in view the rights of the criminal, but also the rights of the victim of crime and the society at large while considering the imposition of appropriate punishment.
22. A father-daughter relationship is one of the most solemn and pious relationships that God has created. Father is Crl.Appeal No.289/2017 -:22:- the one who nurtures and guides the daughter through every defining moment of her life. A father is legally and morally bound to protect his daughter. But here is a case where the protector turned out to be a perpetrator. To add fuel to the fire, the mother sided with the father and silenced the victim when she reported the incidents to her - a blatant betrayal of trust. The devastating impact of this case for the victim is obvious with the losing of both her parents and having to deal with the impact of their betrayal without any parental support. The mental trauma and agony the helpless child underwent each time when her own father sexually abused her cannot be lost sight of by the court while considering the question of the adequacy of the sentence. Thus, I find no mitigating or extenuating circumstances to justify the imposition of the lesser punishment. The appeal fails and it is, accordingly, dismissed.
Postscript This case is not an isolated incident. Despite having the highest literacy rate, in the 'God's own country,' sexual crimes against women and children committed by acquaintances are on Crl.Appeal No.289/2017 -:23:- the rise. Statistics reveal that such cases far outnumber sexual assaults by strangers. The figures are alarming. If more girl children are being raped and abused in the safety of their own homes, by their own fathers, relatives, or acquaintances, it's clear that there's a desperate need for intervention by our policymakers. The Government have an important role to play in preventing and stopping sexual abuse against children and providing support for abused children. Policies and practices should be formulated to keep children safe and prevent child sexual abuse. The factors that have contributed to the shocking rise in sexual violence against children have to be identified. Because there are multiple factors, multiple solutions will be needed. Public awareness and education are one of the most powerful weapons against child sexual abuse. School-based prevention programs are also necessary. Training modules for children of different age groups need to be created which teachers can use to impart awareness on these issues to children in school. Such initiatives need the support of civil society as well. Crl.Appeal No.289/2017 -:24:-
The Registry is directed to forward a copy of this judgment to the Chief Secretary, the Government of Kerala.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp