Kerala High Court
Xxxxx vs State Of Kerala on 3 March, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
CRL.A NO. 572 OF 2021
CRIME NO.122/2017 OF Meenangadi Police Station, Wayanad
AGAINST THE ORDER/JUDGMENT DATED 29.05.2019 IN SC
NO.170 OF 2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT
- I, KALPETTA
APPELLANT:
XXXXX
X
BY ADV Rajendran T.G
RESPONDENTS/STATE & COMPLAINANT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -
682 031.
2. THE INSPECTOR OF POLICE, MEENANGADI POLICE
STATION, WAYANAD DISTRICT - 673 591.
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BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
OTHER PRESENT:
SMT NEEMA T V, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.02.2025, THE COURT ON 3/3/2025 DELIVERED THE
FOLLOWING:
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RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal 572 of 2021
---------------------------------
Dated this the 3rd day of March 2025
JUDGMENT
P.V.BALAKRISHNAN,J This appeal is filed by the sole accused in SC No.170/2017, challenging his conviction under Sections 452, 376(2)(f),(n)&(i) and 506(ii) of IPC and Sections 5(l)&(n) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012('POCSO Act' for short) and sentence imposed under the afore IPC provisions by the Special Court for trial of offences under POCSO Act and Children's Court, Kalpetta.
2. The prosecution case is that on 5/3/2017 at about 10.15 pm, the accused, who is a close relative of the victim (PW2) aged Crl.Appeal 572 of 2021 4 2025:KER:17529 15 years, criminally trespassed into her house situated in Oorukandy Paniya Colony and took her to a shed nearby and committed rape/aggravated penetrative sexual assault upon her. Thereafter, on 15/3/2017 at about 12 am, inside the house of the accused situated in Mundavara, the accused after threatening and intimidating her, again committed rape/aggravated sexual assault upon her.
3. In the trial court, from the side of the prosecution, PW1 to PW16 were examined and Exhibits P1 to P24 documents and MO1 and MO2 were marked. On examination under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him in evidence and contended that he is innocent. From the side of the accused, no evidence was adduced. The trial court on an appreciation of the evidence on record, found the accused guilty and convicted him under Sections 452, 376(2)(f),(n)&(i)and Section 506(ii) of IPC and Sections 5(l)& (n) read with Section 6 of Crl.Appeal 572 of 2021 5 2025:KER:17529 the POCSO Act. The accused was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- under Section 452 IPC and in default, to undergo RI for six months. The accused was also sentenced to undergo rigorous imprisonment for life for the remainder of his natural life and to pay a fine of Rs.50,000/- each for the offences under Sections 376(2)(n), 376(2)(i) and 376(2)(f) of IPC. In case of each default, the accused was ordered to undergo rigorous imprisonment for a period of one year each. The accused was further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- under Section 506 (ii) IPC. In case of default, the accused was ordered to undergo rigorous imprisonment for a period of six months. No separate sentence was awarded for the offences under the POCSO Act and the substantive sentences were ordered to run concurrently.
4. While challenging the impugned judgment, the learned Crl.Appeal 572 of 2021 6 2025:KER:17529 counsel for the appellant Adv. Tarin Rajendran contended that the evidence adduced by the prosecution, even if they are accepted in toto as gospel truth, will not establish the guilt of the accused. He argued that the testimony of PW2 is shaky and the trial court has, even without looking for corroboration, relied upon it and has convicted the accused. He contended that the medical and scientific evidence adduced in this case only supports the contention of the accused that he is not involved in the crime. He argued that the prosecution did not even examine the ladies, to whom the victim first confided about the incident and thereby, has suppressed material evidence. He further submitted that the sentence imposed by the trial court is highly excessive.
5. Per contra, the learned Public Prosecutor Adv.Neema.T.V supported the impugned judgment and contended that there are no grounds to interfere with it. She, by relying on the decision of the Apex Court in State of H.P. v.Asha Ram [(2005) 13 SCC Crl.Appeal 572 of 2021 7 2025:KER:17529 766] contended that, a conviction can be founded solely upon the testimony of the prosecutrix, if it inspires confidence and there is no need to look for corroboration in the absence of compelling circumstances. According to her, PW2 is a sterling witness and the trial court was fully justified in relying upon her evidence to convict the accused. She further, by relying on the decisions of the Apex Court in Wahid khan v. State of Madhya Pradesh.[(2010) 2 SCC 9] and Rafiq v. State of U.P. [(1980) 4 SCC 262] contended that the absence of injuries on the private parts of the victim is not a ground to discard the prosecution case and even going by the relevant provisions of the statutes, there is no requirement of complete penetration for attracting the offences alleged. Hence, she prayed that this appeal may be dismissed.
6. Before delving into the evidence, it would only be appropriate to discuss the material evidence let in by the prosecution in this case. PW1 is the mother of the victim. She Crl.Appeal 572 of 2021 8 2025:KER:17529 deposed that the date of birth of the victim is 3/3/2002 and the victim was studying in 10th standard during the incident. The accused is her sister's husband and she came to know about the rape from her husband. Her daughter also told her about it. She identified MO1 and MO2 as the dresses worn by the victim and her signature in Ext.P1 mahazar, by which they were seized. In her cross examination, she stated that she had returned to her house after completing a three month tenure of work in Calicut and it is at that time, her daughter narrated to her about the incident.
7. PW2 is the victim in this case. She deposed that she is at present in Nirbhaya Home at Kaniyambata and that her date of birth is 28/6/2007. The accused is her uncle and the incident took place while she was studying in 10th standard. At about 10 pm,the accused entered her house and called her outside, while she was sleeping with her mother's sister. Thereafter, the accused dragged her to the shed nearby and at that time all the inmates of the Crl.Appeal 572 of 2021 9 2025:KER:17529 house were asleep. Inside the shed, the wife of the accused was sleeping in an inebriated condition. The accused forcefully removed her dress and inserted his penis into her vagina. When she shouted, the accused gagged her mouth and threatened to kill her if she disclosed the events to anyone. When the accused released her, she went back to her house. On another day, while she and her sister had gone to attend a function in the house of the accused and while they were sleeping, the accused took her to another room and again committed the similar acts. After that, she returned back to her room. She did not disclose the incident to anyone since she was afraid of the accused and his threats. Later she disclosed the events to some ladies who came to her house. Thereafter, the police came and recorded her statement which is Ext.P2. She also gave Ext.P3 statement before the Magistrate. During cross-examination, she stated that she was sleeping in the middle of her mother and sister and her father was sleeping Crl.Appeal 572 of 2021 10 2025:KER:17529 nearby. In her re-examination, she stated that her date of birth is 3/3/2002 and that what she had stated earlier is not correct. She further stated that she was 15 years at the time of the incident.
8. PW3 is the Gynecologist, who examined PW2, and issued Ext.P4 report. She stated that she examined the victim on 25/3/2017 and the allegation, as narrated by the victim, was sexual assault by Ananthan. She also stated that on examination, she found no external injuries on the victim and her hymen was intact. She added that there can be penetration without rupture of hymen.
9. PW 4 is the father of the victim. He deposed that the date of birth of PW2 is 3/3/2002 and that he had signed as a witness in Ext. P5 scene mahazar.
10. PW6 is the WCPO, who recorded Ext.P2 FIS of the victim on 24/3/2017. PW11 is the Village Officer, who prepared Ext.P11 site plan.
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11. PW12 was the headmistress of Meenangadi Govt LP School on 4/4/2017. She deposed that the victim was a student in her school during the period from 28/6/2007 till 7/5/2011 and that her date of birth is 3/3/2002. Through her, Ext.P12 certificate showing the date of birth and Ext.P13 extract of the Admission Register were marked.
12. PW13 is the police officer who registered Ext.P14 FIR on the basis of Ext.P2. PW14 is the doctor, through whom Ext.P15 potency certificate of the accused issued by one Dr.Sibin, was marked. PW15 is the village assistant, through whom Ext.P16 site plan was marked.
13. PW16 is the investigating officer in this case. He deposed that he took over the investigation on 25/3/2017 and on the very same day prepared Ext.P5 & P6 scene mahazars. He also seized the dresses of the victim as per Ext.P1 mahazar and collected Ext.P4 victim examination report from PW3. On 26/3/2017 he Crl.Appeal 572 of 2021 12 2025:KER:17529 arrested the accused after preparing Ext.P17 document and conducted his potency test. The samples collected by the doctor were seized as per Ext.P7 mahazar and was forwarded to the court as per Ext.P21 property list. He also prepared and sent Ext.P22 forwarding note to the court and received Ext.P23 FSL report . Later after collecting all other relevant documents, he filed the charge-sheet. During cross examination, he stated that he received the complaint from Child Welfare Committee and on that basis, recorded the statement of the victim.
14. The materials on record show that PW2, the victim, is the star witness in this case and the trial court has wholly relied upon her evidence to find the accused guilty. An appraisal of her evidence shows that she has given a graphic description of the events, which took place on two occasions i.e., one inside a shed near her house and the other inside the house of the accused. Her evidence reveals that while she was sleeping inside her house Crl.Appeal 572 of 2021 13 2025:KER:17529 along with her mother and sister, the accused had entered her house and had called her outside. Thereafter, the accused dragged her to the shed nearby and had sexually abused her. Her evidence also reveals that, when she cried aloud, the accused had gagged her and threatened to kill her. It is also discernible from her evidence that on another occasion when she and her family members had gone to attend a function in the house of the accused and while they were sleeping, the accused had taken her to another room and had again violated her. Her evidence also reveals that it is only because of the fact that she was afraid of the accused and his threats, she had not disclosed the events to anyone. Even though PW2 has been subjected to roving cross- examination, her version regarding the core of the events spoken to by her remains credible and cogent. The embellishments, which had been brought out during cross examination, such as not giving a statement to the police regarding the fact that the accused had Crl.Appeal 572 of 2021 14 2025:KER:17529 opened the door and had come inside, and that he had dragged her to the shed, are only minor ones not affecting the credibility of the witness. At this juncture, we will also take note of the fact that the recitals in Ext.P2 FIS tallies in material particulars with the incident and the same lends much support to PW2's version.
15. The evidence on record further goes to show that immediately after the registration of the FIR, on the very next day itself, the victim was examined by PW3. Her evidence coupled with Ext.P4 would go to show that the victim herself has narrated the history of the incident to her, as sexual assault, by Ananthan. The afore fact also lends considerable support to the evidence of PW2 regarding the incident and the involvement of the accused. It is true that PW3 has not noted any external injuries on the victim and that her hymen was intact at the time of examination. But, PW3 has specifically deposed that there need not be any rupture of hymen during penetration. It is also to be kept in mind that the Crl.Appeal 572 of 2021 15 2025:KER:17529 physical examination on the victim was conducted only 10 days after the last assault, and if so chances of finding external injuries were very bleak. At this juncture, we will also take note of the fact that the definition of 'rape' and 'penetrative sexual assault' do not contemplate a full or complete insertion /penetration and even a slightest penetration is sufficient to constitute the offence. Going by Section 375 IPC and Section 3 of POCSO Act, penetration to any extent is sufficient to constitute the offences and if so, in the present case even if the medical evidence, as stated afore, does not give a positive indication of sexual assault, the same is not a ground to discard the prosecution case. (See Wahid Khan's case & Rafiq's case (cited supra) and State of Himachal Pradesh v. Manga Singh [(2019) 16 SCC 759].
16. It is true that in the present case, there is no corroborative piece of evidence in support of the testimony of PW2. The question, therefore that arises for consideration, is whether Crl.Appeal 572 of 2021 16 2025:KER:17529 this Court has to look for corroboration or can rely upon the sole testimony of the prosecutrix. It is now well settled that a conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness and her testimony is vital unless there are compelling reasons which necessitate looking for corroboration of her statement. If the testimony of the victim inspires confidence and is found to be reliable there is no impediment for the courts in acting upon it. While analysing such evidence, minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be taken as a ground to defenestrate an otherwise reliable prosecution case. Unless an offence has really been committed, a girl or woman would be extremely reluctant even to admit that such an incident had taken place which is likely to reflect on her chastity. [See Asha Ram's case, Wahid Khan's Crl.Appeal 572 of 2021 17 2025:KER:17529 case, Rafiq's case, Manga Singh's case (all cited supra)]. Hence, considering the evidence of PW2 in the light of the above legal principles, we have no hesitation to find that there is a ring of truth in her testimony regarding the events and we find her testimony wholly reliable and can be acted upon even without corroboration.
17. The evidence on record further goes to show that the victim at the time of occurrence was aged 15. PW1, PW2 and PW4 have specifically given evidence that the date of birth of the victim is 3/3/2002. It is to be taken note that there is no substantial challenge from the side of the accused regarding this fact. Apart from the above, the evidence of PW12 coupled with Ext.P13 extract of the Admission Register also confirms the fact that the date of birth of the victim is 3/3/2002. Further, the evidence of PW14 coupled with Ext.P15 certificate would go to show that there is nothing to suggest that the accused was incapable of performing Crl.Appeal 572 of 2021 18 2025:KER:17529 sexual acts at the relevant time.
18. The upshot of the afore discussions on evidence is that, the prosecution has proved beyond reasonable doubt that the accused has, on 5/3/2017 trespassed into the house of PW2 and has committed rape/aggravated sexual assault upon her The prosecution has also proved that on 15/3/2017 the accused had again committed rape/aggravated sexual assault upon PW2 inside the house of the accused. The trial court has properly appreciated the evidence on record and has arrived at a correct conclusion of guilt against the accused. The appellant could not bring out any material evidence which would enable this Court to interfere with the said conclusion. Therefore, the challenge raised on merits fails and the conviction arrived at by the trial court stands confirmed. Now the question to be considered is whether the sentence imposed by the trial court is just and proper. As stated earlier, the trial court has sentenced the accused to undergo rigorous Crl.Appeal 572 of 2021 19 2025:KER:17529 imprisonment for a period of five years and to pay a fine of Rs.10,000/- under Section 452 IPC and in default, to undergo rigorous imprisonment for six months. It has also sentenced the accused to undergo imprisonment for life for the remainder of his natural life and to pay a fine of Rs.50,000/- each for the offences under Sections 376(2)(n), 376(2)(i) and 376(2)(f) of IPC. In case of each default, the accused was ordered to undergo rigorous imprisonment for a period of one year each. The accused was further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- under Section 506 (ii) IPC. In case of default, the accused was ordered to undergo rigorous imprisonment for a period of six months. In the light of Section 42 of the POCSO Act, no separate sentence was awarded for the offences under the said Act. Considering the facts and circumstances of this case, the manner of perpetrating the crime, its gravity, the fact that the victim has not suffered any physical Crl.Appeal 572 of 2021 20 2025:KER:17529 injuries in the assault, the age of the accused, his chances for reformation, etc. we are of the view that the substantive sentences of imprisonment imposed by the trial court is on a higher side and the same can be modified and reduced. Considering the fact that Section 6 of the POCSO Act prescribes a minimum sentence of 20 years and in the light of Section 42 of the said Act, we are of the view that the appellant/accused can be sentenced to undergo rigorous imprisonment for a period of twenty years each and to pay a fine of Rs.50,000/- each for the offences punishable under Sections 5(n) & 5(l) read with Section 6 of the POCSO Act and no separate sentence need to be awarded for the offences under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of IPC. In case of each default, the appellant/accused shall undergo rigorous imprisonment for a period of one year. We are also of the view that the sentence of imprisonment imposed on the appellant/accused under Section 506(ii) of IPC can be reduced to Crl.Appeal 572 of 2021 21 2025:KER:17529 one of rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-. In case of default in payment of fine, the appellant/accused shall undergo simple imprisonment for a period of two months. We are of further view that the sentence imposed on the appellant/accused under Section 452 IPC is also on the higher side and the same can be reduced to one of rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-. In case of default, the appellant/accused shall undergo simple imprisonment for a period of two months. The fine amount, if realised, shall be disbursed to the victim(PW2) and the substantive sentences shall run concurrently. In the result, this appeal is allowed in part as follows:
i) The conviction of the appellant/accused under Sections 376(2)
(f), 376(2)(n), 376(2)(i), 452 and 506(ii) of IPC is confirmed.
ii) The conviction of the appellant/accused under Sections 5(l)& 5(n) of the POCSO Act is also confirmed.
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iii) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of twenty years each and to pay a fine of Rs.50,000/- each for the offences punishable under Section 5
(l)& 5(n) read with Section 6 of the POCSO Act. In case of each default,the appellant/accused shall undergo rigorous imprisonment for a period of one year.
iv) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- under Section 506 (ii) of IPC. In case of default in payment of fine, the appellant/accused shall undergo simple imprisonment for a period of two months.
v) The appellant/accused is also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- under Section 452 IPC .In case of default the appellant/accused shall undergo simple imprisonment for a period of two months.
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vi) The substantive sentences shall run concurrently and set off is also granted.
vii) The fine amount, if realised, shall be paid to PW2 as compensation under Section 357(1)(b) Cr.P.C.
Sd/-
RAJA VIJAYARAGHAVAN V Judge Sd/-
P.V.BALAKRISHNAN
dpk Judge