Anvar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 CRL.A NO. 610 OF 2020** **AGAINST THE JUDGMENT SC 1934/2014 OF THE ADDL.SESSIONS COURT- I (SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST** **CHILDREN), THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** ## ANVAR AGED 44 YEARS, S/O VAHAB, C.NO.770, CENTRAL PRISON & CORRECTION HOME, POOJAPPURAM, THIRUVANANTHAPURAM AND RESIDED ON RENT AT VAYALIRAKKATHIL VEEDU NEAR THATTUPALAM KUDAVOOR DESAM, KUDAVOOR VILLAGE, THIRUVANANTHAPURAM BY ADV SRI.SUJESHKUMAR (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 STATE OF KERALA REPRESENTED BY ADDITIONAL SUB INSPECTOR OF POLICE, KALLAMBALAM POLICE STATION BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C SMT T V NEEMA -SR PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.610/2020 ## -:2:- J U D G M E N T Dated this the 18[th] day of July, 2022 This criminal appeal has been preferred under Sections 374(2) and 383 of the Cr.P.C challenging the conviction and sentence passed by the Additional Sessions Judge - I (Special Court for Trial of Offences Against Children), Thiruvananthapuram (for short 'the court below') in S.C.No.1934/2014 as per the judgment dated 5[th] February, 2016. 2. The appellant is the accused. He faced trial for the offences punishable under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘JJ(CPC) Act’). 3. The victim was a minor girl aged 4 years at the time of the incident. The accused is none other than the father of the victim. The prosecution case in short is that, on 23/08/2014, the accused committed penetrative sexual assault on the victim at their house situated at Kudavoor village. Crl.Appeal No.610/2020 -:3:- 4. The crime was registered by the S.I of Police, Kallambalam Police Station on the basis of Ext. P3 statement given by the mother of the victim. After completing the investigation, the final report was filed at the Principal Court of Sessions, Thiruvananthapuram and was made over to the court below. 5. The accused was on remand ever since his arrest. He was produced at the court below on production warrant. After hearing both sides, the court below framed charge against the accused for the offences punishable under Sections 3 and 4 of the POCSO Act and Section 23 of the JJ(CPC) Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW6 and marked Exts. P1 to P11. MO1 and MO2 were identified. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offence charged as above and he was convicted for the said offences. The accused was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/-, in default to suffer rigorous imprisonment for two years for the offence punishable under Section 3 r/w 4 of the Crl.Appeal No.610/2020 -:4:- POCSO Act and sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 23 of the JJ(CPC) Act. Challenging the said conviction and sentence, this appeal has been preferred. Since the appellant is not represented by a lawyer, this court appointed Adv. Sujesh Kumar as State Brief. 6. I have heard Sri. Sujesh Kumar, the learned counsel appearing for the appellant and Smt. T.V. Neema., the learned Senior Public Prosecutor. 7. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and resultant finding as to the guilt. Per contra, the learned Senior Public Prosecutor, Smt. T.V. Neema supported the findings and verdict handed down by the court below and argued that the prosecution has succeeded in establishing and proving the case beyond reasonable doubt. The learned Public Prosecutor further submitted that the accused had undergone the sentence and he had already been released from jail. A letter issued by the Superintendent of Central Prison, Thiruvananthapuram has also been made available to me for perusal. Crl.Appeal No.610/2020 -:5:- 8. The prosecution mainly relied on the evidence of PW1, PW3, and PW4 to prove the incident and to fix the culpability on the accused. PW4 is the victim and PW3 is her mother who gave Ext. P3 statement. PW8 is the doctor who examined the victim and gave Ext. P1 certificate. 9. PW4, the victim girl, deposed that on that crucial night, while she was sleeping, the accused who was lying near PW3 approached her and placed his sexual organ in her mouth and when she resisted, he beat her. She further deposed that her mother woke up when she cried aloud. She also deposed that, the accused used to sexually abuse her in the same manner whenever PW3 was away from home. 10. PW3, mother of the victim, deposed that accused is a habitual drunkard and drug addict and on 28/03/2014, while she was in deep sleep, she heard victim’s cry and when she lighted the lamp, she saw her husband, i.e., accused, having penetrated his sexual organ to the victim’s mouth holding her neck and the victim was struggling to get relieved off. She added that, when she suddenly intervened, he ill-treated her and, on the very next day, she lodged Ext. P3 statement before PW6, S.I of Crl.Appeal No.610/2020 -:6:- Kallambalam Police Station. 11. PW1 is the doctor, who examined PW3 on 24/08/2014 and issued Ext. P1 certificate. On examination, she could find that the vagina appeared congested and a healed hymenal tear at 7’O clock position, contusion 0.3x0.3cm on fourchette, bruise mark 0.5x0.5cm on her right cheek(jaw) and a scratch mark 0.2cm on the right cheek. PW1 further deposed that, these marks are consistent with the physical assault meted out by the child and there is evidence of past vaginal penetration. 12. I have perused the evidence of PW4 meticulously. She clearly deposed the manner in which the accused committed sexual assault on her. She gave a reliable, consistent, and credible version of the crime which inspires confidence. She specifically deposed that, the accused put his sexual organ in her mouth. 13. It is settled that, the evidence of a victim of 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 Crl.Appeal No.610/2020 -:7:- same time, it must be taken note of that, 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]. Here, there is absolutely no ground for doubting the veracity of the child witness, PW4. 14. The evidence of PW4 is found to be genuine, credible and reliable. It can safely be relied on to prove the incident and to fix the culpability on the accused. That apart, the evidence of PW4 corroborates the evidence of PW3. There is nothing to doubt the said evidence given by PW3. The oral evidence of PW4 also gets corroboration from the medical evidence submitted by the prosecution through PW1 and Ext. P1. Ext. P2 would show that the accused is potent and there is nothing to suggest that the person is incapable of performing sexual acts. The prosecution evidence clearly establishes that the accused has committed the offence punishable under Section 3 r/w 4 of the POCSO Act and Section 23 of the JJ(CPC) Act. The court below was absolutely justified in convicting the accused under the aforesaid provisions and no interference is called for on the said findings. Crl.Appeal No.610/2020 -:8:- 15. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/-, in default to suffer rigorous imprisonment for two years for the offence punishable under Section 3 r/w 4 of the POCSO Act and sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 23 of the JJ(CPC) Act. As stated already, the accused had undergone the sentence awarded and has been released from jail on 17/04/2020. In the result, I see no merit in the appeal. Accordingly, it is dismissed. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **Rp**