Arumughan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 CRL.A NO. 798 OF 2017** **AGAINST THE ORDER/JUDGMENT IN SC 83/2015 OF SPECIAL COURT UNDER POCSO ACT, WAYANAD** ## **APPELLANT:** ARUMUGHAN, S/O CHAMI, C.NO.262/17 CENTRAL PRISON & CORRECTION HOME, KANNUR BY ADV SRI.S.KRISHNALAL, STATE BRIEF ## **RESPONDENT:** STATE OF KERALA BY ADVS. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C SMT.AMBIKA DEVI S SPL.GP ATROCITIES AGAINST WOMEN amp CHILDREN amp WELFARE OF W amp C SMT SHEEBA THOMAS-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Cr. Appeal No. 798 of 2017 **==> picture [22 x 8] intentionally omitted <==** ## **J U D G M E N T** This Criminal Appeal has been preferred by the accused in SC No.83/2015 on the file of the Special Court for trial of offences under the POCSO Act and Children's Court (Additional Sessions Court-I, Kalpetta) (for short, 'the Court below') against the judgment dated 31[st] March, 2017 convicting him u/s.376(2)(i)(n) & 506(ii) of the IPC and Section 5(l)(m) r/w 6 of the Protection of Children from Sexual Offences Act (for short, “the POCSO Act”). 2. The victim was an orphan aged 11 years at the time of the incident. The prosecution case in short is that the appellant, after Vishu in 2014, on several days, repeatedly committed rape on the victim at Chandragiri Coffee Estate, Kadachikkunnu Mattam, Mooppainadu Village, and also at his house bearing door No. IX/284 of Moppainadu Grama Cr. Appeal No. 798 of 2017 **==> picture [22 x 9] intentionally omitted <==** Panchayath. 3. The accused was under judicial custody. He was produced at the Court below on production warrant. He was provided with the assistance of a legal aid counsel. After hearing both sides, the Court below framed charge against the accused for the offences under Sections 376(2)(i)(n) & 506(ii) of the IPC and Section 5(l)(m) r/w 6 of the POCSO Act. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PWs1 to 4 were examined and Exts.P1 to P17 were marked. After trial, the Court below found the accused guilty for the offence punishable under Sections 376(2)(i)(n) & 506(ii) of the IPC and Section 5(l)(m) r/w 6 of the POCSO Act and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for a period of two years for the offence Cr. Appeal No. 798 of 2017 **==> picture [22 x 8] intentionally omitted <==** punishable u/s 376(2)(i) of the IPC, sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in default to suffer simple imprisonment for two years for the offence punishable u/s 376(2)(n) of IPC and further sentenced to undergo rigorous imprisonment for five years for the offence punishable u/s 506(ii) of the IPC. The substantive sentence was ordered to be run concurrently. No separate sentence was awarded for the offence punishable u/s 5(l)(m) r/w 6 of the POCSO Act. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 4. As the accused is not represented by a counsel, this Court appointed Sri. S. Krishnalal as State Brief to assist the accused. I place on record the appreciation for the able assistance rendered by the learned counsel for the accused. 5. I have heard Sri. S. Krishnalal, the learned counsel for the appellant as well as Smt. Sheeba Thomas, the learned Cr. Appeal No. 798 of 2017 **==> picture [22 x 9] intentionally omitted <==** Public Prosecutor. 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 conviction is based on the uncorroborated testimony of the child witness. The counsel further submitted that the medical evidence does not support the oral evidence given by the victim. Per contra, Smt. Sheeba Thomas, the learned Public Prosecutor supported the findings and verdict handed down by the court below and argued that necessary ingredients of Sections 376(2) (i)(n) & 506(ii) of the IPC and Section 5(l)(m) r/w 6 of the POCSO have been established against the accused and the has succeeded in the case prosecution proving beyond reasonable doubt. 7. The prosecution mainly relied on the evidence of PWs1, 3, 4, 8, and 14 to prove the incident and to fix the Cr. Appeal No. 798 of 2017 **==> picture [22 x 9] intentionally omitted <==** culpability on the accused. PW1 is the victim. PW3 is the child line volunteer. PW4 is the warden of the hostel where the victim was residing. PW8 is the Doctor who examined the accused, conducted the potency test and issued Ext. P8 potency certificate. PW14 is the doctor who examined the victim and issued Ext.P11 victim examination report. 8. The mother of the victim is no more. After the death of her mother, her father got remarried. Therefore, she was staying in an orphanage. It has come out in evidence that during her school vacation, she used to stay with her grandmother at a place called Kadachikunnu. The accused is a mason. She deposed that accused used to come to the house of her grandmother at Kadachikunnu in connection with the construction work of a cattle shed during that period. Thus, she knew him. She further deposed that the accused used to touch her body as and when she gave drinking water to him. She Cr. Appeal No. 798 of 2017 **==> picture [22 x 8] intentionally omitted <==** further deposed that, on a day, the accused asked her to come to a nearby coffee plantation, but she did not accede to his request. She deposed that on another day, the accused dragged her into the said coffee plantation, disrobed her, pushed her down, and penetrated his penis into her vagina. Thereafter, he kissed on her lip. Though she cried aloud, no one came. She further deposed that the accused threatened her that if she reveals the incident to anybody, she would be done away with and hence, she did not reveal the incident to anyone. She spoke about another incident of rape. She stated that on another day when she went to the house of the accused to supply milk, he locked the door from inside, pushed her down on a cot, disrobed her, and penetrated his penis into her vagina. On that occasion also, he threatened her. She spoke about a third incident as well. According to her, after some days, again he dragged her into the above-mentioned coffee plantation, disrobed her, and committed rape on her. She Cr. Appeal No. 798 of 2017 **==> picture [22 x 9] intentionally omitted <==** further deposed that she revealed these incidents to PW4, the warden attached to the hostel where she was then residing, and thus the matter was reported to the police. The police recorded the FI Statement which has been marked as Ext.P1. She also deposed that she wrote everything in a piece of paper which was marked as Ext.P2 and handed it over to PW3, a social worker. 9. I have perused the evidence of the victim meticulously. Even though she was cross-examined at length by the learned counsel for the accused, 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 manner in which the accused sexually assaulted her on all three occasions. She gave a reliable, consistent, and credible version of the crime and her evidence inspires confidence. 10. It is settled that the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration Cr. Appeal No. 798 of 2017 ..9.. 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. 11. The learned Counsel for the accused submitted that the conviction was based on the solitary evidence of the victim and no independent witness was examined. It was argued that, as per the prosecution version, the victim was raped by the accused and she was taken to his house and coffee estate many a time, but not a single witness was cited to prove the said fact. The Apex Court in _**Krishan Lal v. State of Haryana**_ (AIR 1980 SC 1252) held that to seek substantial corroboration of the Cr. Appeal No. 798 of 2017 ..10.. victim's evidence in a 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 sole testimony of the victim, whose evidence is more reliable than that of the injured witness. In _**State of Punjab v. Gurmit Singh**_ [(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 to a fossil formula and insist upon corroboration even if, taken Cr. Appeal No. 798 of 2017 ..11.. as a whole, the case spoken by the victim of sex crime strikes the judicial mind as probable. As per the evidence of PW1, the rape and sexual assault took place at the house of the accused when no body was at his home and also in the isolated coffee plantation. Thus, there cannot be any independent witness. The evidence of the victim is found to be genuine, credible and reliable. It can safely be relied on to prove the incident and to fix culpability on the accused. 12. The evidence of PW1 gets corroboration from the evidence of PWs3 and 4. As stated already, PW1 deposed that she revealed about the sexual assault committed by the accused to PW4, the warden and she wrote everything in Ext. P2 and handed over the same to PW3. PWs3 and 4 gave evidence in tune with the evidence given by the victim in this regard. Evidence of PW3 would show that she produced Ext.P2 in the office of PW12, the Inspector of Police, who seized the same as Cr. Appeal No. 798 of 2017 ..12.. per Ext.P3 mahazar. PW4 deposed that PW1 told her about the incident of sexual assault committed by the accused on her and she brought the said matter to the notice of the superior authorities of the hostel. PW14 is the doctor who examined the victim and issued Ext. P11 victim examination report. The alleged history stated by PW1 has been described clearly in Ext.P11. It is stated in Ext P11 that the victim told the doctor that the accused sexually assaulted her at the coffee plantation, and also at her house. 13. As stated already, PW1 clearly testified that the accused disrobed her, and inserted his penis into her vagina. The said positive evidence was not successfully challenged in the cross-examination. The evidence of PW8, the doctor coupled with Ext. P8 potency certificate would clearly show that the accused was capable of performing sexual acts. The evidence of PW14, the doctor would clearly show that the victim had Cr. Appeal No. 798 of 2017 **==> picture [28 x 9] intentionally omitted <==** narrated the entire incident to her. Ext.P16, the school certificate of the victim would show that the date of birth of the victim is 09.10.2002. Thus, at the time of the alleged incident, the victim was below 16 years of age. Hence, offences punishable under Section 376 of the IPC and Section 5(l) (m) read with Section 6 of the POCSO Act have been clearly attracted. It has also been proved that the accused is criminally intimidated and threatened the victim that if she discloses the act to anybody, she would be done away with. Hence, Section 506 (ii) of the IPC has also been established. Thus, the Court below was absolutely justified in holding that the prosecution has succeeded in proving the case beyond reasonable doubt and convicting the accused. No interference is called for on the said findings of the Court below. 14. What remains is the sentence. The Court below sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo Cr. Appeal No. 798 of 2017 **==> picture [28 x 8] intentionally omitted <==** simple imprisonment for two years for the offence punishable under Section 376(2)(i) of the IPC., sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for two years for the offence punishable under Section 376(2)(n) of IPC and sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 506(ii) of the IPC. 15. 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. An 11 year old minor girl was sexually assaulted by the accused. I find no mitigating circumstances to interfere with the punishment imposed by the court below on the accused. Cr. Appeal No. 798 of 2017 **==> picture [28 x 9] intentionally omitted <==** 16. In view of the above findings, I find no reason to interfere with the conviction and sentence passed by the court below. Accordingly, the appeal is dismissed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV/16/06/2022