Asokan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** **CRL.A.No. 1416 of 2013** **AGAINST THE JUDGMENT IN SC No.631/2008 of SESSIONS COURT, THIRUVANANTHAPURAM, DATED 19-03-2013** ## **APPELLANT/ACCUSED:** **ASOKAN, S/O.PONNAYYAN NADAR, MEKKUMKARA PUTHEN VEEDU, KALLIKONAM, MANAVARI, KARAKONAM DESOM, ANAVOOR, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.J.R.PREM NAVAZ SRI. P.T.SHEEJISH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY. PUBLIC PROSECUTOR SMT.S.AMBIKA DEVI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2018, THE COURT ON 18.09.2018 DELIVERED THE FOLLOWING:** Crl. Appeal No.1416 of 2013 2 ## **JUDGMENT** ## **P. Somarajan, J.** Appeal against the judgment of conviction and orders of sentence for the offence punishable under Sections 376(1) and 506 IPC in Sessions Case No.631/2008 of the Sessions Court, Thiruvananthapuram, dated 19.03.2013. 2. The accused, the step-father of the victim girl, aged 17 years, while she was studying in Plus Two Course in LMS Higher Secondary School, Cheruvarakonam, brought the victim to her house in connection with Sivarathri holidays in the year 2007 and on the night of 16.02.2007 committed rape on her. It was the further case of prosecution that the accused is the second husband of PW2, the mother of the victim, and they were residing in a one room house. The accused used to sleep on the bench on the varandah. PW2 and her daughter used to sleep inside the room on the floor. The incident happened on 16.02.2007, the second day of her arrival from the hostel. While she was sleeping inside the room during night time she felt somebody touching her body. She woke up and realized that it was none else, her step-father, the accused herein. The accused thereon closed her mouth with his hand and threatened that she would be killed and prevented her from making Crl. Appeal No.1416 of 2013 3 noise. Thereupon, the accused committed rape on her. She was again subjected to rape on various occasions by putting her under the fear of death and she was not in a position to divulge the same to her mother or her relatives fearing death in the hands of accused. On 13.11.2007 the change in her abdomen was noticed by the hostel warden wherein she was staying. Then the victim revealed the entire incident and the threat unleashed by her step-father before the hostel warden. Immediately, she summoned the mother of the victim, PW2, and told her about the incident and the factum of pregnancy. She was taken to her house by PW2. After consultation with the near relatives, PW2, mother, went to the Police Station along with her daughter and gave Exhibit P1, FIS and caused to register Exhibit P1(a) FIR. The victim was removed to the hospital wherein she delivered a child. 3. The learned Sessions Judge, based on the oral testimony of PW1, the prosecutrix, PW2, the mother, PW7, the hostel warden and the medical evidence adduced through PWs 3 and 4, found that the accused is guilty of the offence punishable under Sections 376(1) and 506 IPC and he is convicted thereunder and sentenced to undergo imprisonment for life and a fine of Rs.3,00,000/-, in default to undergo rigorous imprisonment for three years for the offence punishable under Section 376(1) IPC and rigorous imprisonment for one year for the offence under Section 506 IPC with a further direction to release the entire fine amount Crl. Appeal No.1416 of 2013 4 to PW1 under Section 357(1) Cr.P.C in the event of its realization. Set off for the period of pre-trial detention was also allowed by its judgment dated 19.03.2013, against which this appeal is preferred. 4. The prosecutrix was examined as PW1 and nothing was elucidated during her cross examination in order to shake the credibility except the improbability (i) that the mother did not notice the alleged incident though it happened within the room wherein she used to sleep; (ii) that the factum of pregnancy was not noticed even at the advanced stage by her mother, PW2; (iii) the FIR was highly belated as it was given only on the 9[th] month of the alleged incident; (iv) the incident was not revealed by the victim for a long period of nine months; and (v) that she was in love with another person and no investigation was conducted in that behalf. The place of occurrence, according to PW1, is the floor of one room house and it was on the night of 16.02.2007 during Sivarathri holidays. The accused stealthily entered into the room taking advantage of night time while she was sleeping on the floor along with her mother and committed rape on her. Admittedly, the house is having only one room and a kitchen which is well evident from Exhibit P5 scene plan as well. She was aged only 17 years at that time and was wholly depending on her mother and step-father. Even according to her, her mouth was closed by her step-father and threatened her that she would be killed. He committed rape on the victim by putting her under the fear Crl. Appeal No.1416 of 2013 5 of death. There is every possibility of the incident coming to the notice of her mother, if it had happened while she was sleeping along with her mother on the floor of the room. But the circumstance prevailed at that time is so crucial as it was done during night time while the mother was sleeping. The accused stealthily entered into the room taking advantage of night. Nothing was brought out and even no suggestion was put up during the cross examination of PW1 or PW2, suggesting any practice of keeping a source of light inside the room during night time while they were sleeping. No question was put up whether there was any source of light inside the room at the time of commission of offence. The fact that it was done by taking the advantage of absence of light during night time and also taking the advantage that PW2 went asleep would be suggestive of what actually happened, especially when it was done by putting the prosecutrix under the fear of death and by closing her mouth with hand. The question why the victim did not respond immediately is quite probable and acceptable by the fact that she was put under the fear of death. It is quite probable that she would not be in a position to respond against the attack. It is a case wherein a young hapless girl was subjected to the lust of her own step-father inside her house during night time and it is quite discernible from the facts and circumstances why she could not be in a position to respond against her step-father. The fact that she was depending solely on her mother and step-father Crl. Appeal No.1416 of 2013 6 for her livelihood coupled with the factum that she had been put under the fear of death would be a sufficient reason, why she could not divulge the same to her mother or near relatives. It is true that, even according to the prosecution, she was again subjected to rape on several occasions. But so long as the threat continues, the very same logical inference can be applied, especially when she is a young girl aged only 17 years. She may have her own reasons why it was not divulged in time. Fear and anxiety in such situation may have its own impact on a young girl, aged only 17 years, especially when she had suffered the most heinous act from her step-father. In all other aspects, her evidence is found to be trustworthy and inspires confidence. 5. The settled position of law in the matter of S.376 IPC is that the conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. The legal position was settled in _**State of Himachal Pradesh v. Asha Ram (2006 KHC 157 = AIR 2006 SC 381 = 2006 SCC (Crl.) 296 = 2005 (13) SCC 766)**_ . The Apex Court had taken note of the shocking increase of sexual assault on minor girls and have given more reliability to the evidence of a prosecutrix than that of an injured witness. The relevant portion of paragraph 2 of the judgment in _**Asha Ram's case** (supra)_ is extracted below for reference: _“.... It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there_ Crl. Appeal No.1416 of 2013 7 _are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”_ ## 6. The Apex Court had also considered various decisions on the point in paragraph 17 to 21 which are extracted below for reference: _“17. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, this Court pointed out that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? It was further pointed out that on principle the evidence of a victim of sexual assault stands on a par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. The aforesaid observation was_ Crl. Appeal No.1416 of 2013 8 _made by this Court because of the following factors: (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the crossexamination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent._ _18. In the case of Rafiq v. State of U.P. (1980 (4) SCC 262), V.R. Krishna Iyer, J. speaking for the Court observed at SCC p. 265,_ Crl. Appeal No.1416 of 2013 9 _para 5 as under:_ _“Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying lifestyles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.”_ _19. In the case of Madan Gopal Kakkad v. Naval Dubey (1992 (3) SCC 204), it was pointed out at SCC p. 218 that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. In the case of Ranjit Hazarika v. State of Assam (1998 (8) SCC 635), this Court held that non-rupture of hymen or absence of injury on victim’s private parts does not belie her testimony. This Court further held that the opinion of the doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence._ _20. In the case of State of Punjab v. Gurmit Singh (1996 (2) SCC 384), this Court pointed out at SCC p. 403:_ _“Rape is not merely a physical assault — it is often_ Crl. Appeal No.1416 of 2013 10 _destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”_ _21. In the case of State of Rajasthan v. N.K. the accused, (2000 (5) SCC 30), the observation made in Gurmit Singh case (supra) was reiterated. The Court further observed in para 9 at SCC p. 38 as under:_ _“Having heard the learned counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court_ Crl. Appeal No.1416 of 2013 11 _should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.”_ 7. This Court had the occasion to consider the probative value of the direct evidence tendered by a minor prosecutrix in **Royson v. State of Kerala** [2017 KHC 1056] (in which we are the members) and it was held as follows: _“The Courts are duty bound to give more reliability to the oral testimony of a prosecutrix, especially when she is a minor, and it is not at all permissible to have a study with the aid of spectacles fitted with lenses tinged with doubt, disbelieve or suspicion. But, when there is inherent material abnormalities or vital improbabilities or material inconsistencies, it is permissible to seek for corroboration before acting on the sole testimony of the prosecutrix. The improbabilities/ inconsistencies brought out should be of that nature to make the version of the prosecutrix unacceptable due to inherent abnormality tainted with either enmity or tutoring.”_ 8. The Court must give more reliability to the oral testimony of a prosecutrix, especially when she is a minor, and it is not at all Crl. Appeal No.1416 of 2013 12 permissible to have a study with the aid of spectacles fitted with lenses tinged with doubt, disbelieve or suspicion. Corroboration is required only when there is inherent material abnormalities or vital improbabilities or material inconsistencies. As discussed earlier, no material abnormalities or inconsistencies were brought out during her examination. On the other hand, the medical evidence adduced and the oral evidence of PWs 2 and 7 would sufficiently prove the guilt of accused beyond the scope of any doubt. 9. It was also held in **Royson's** case (supra) that the material suppression and the attempt on the part of the victim to wreck vengeance against the father coupled by the deviation in FIS would necessarily be a relevant factor to be considered while testing the probative value of the oral testimony of the prosecutrix. 10. That she was having a love affair with another person may not by itself be sufficient to discard her evidence. The factual situation involved in **Amar Bahadur Singh v. State of Uthar Pradesh** [2011 (1) KLT Suppl. 85 (SC)] is standing on an entirely different footing not identical with the facts involved in the instant case. In the said case, the victim was the mother of seven children, having the age of 26 years. Hence, the Apex Court found that it was too difficult to believe the version of prosecutrix regarding a rape committed in the presence of so many members of the family in a small house. Crl. Appeal No.1416 of 2013 13 11. The fact that she managed to conceal the factum of pregnancy from her mother even at the advanced stage may not have much relevance and it is so usual as far as a young hapless girl who had been subjected to rape and suffered the resultant effect. There may be tendency to conceal the same from the notice of others, especially so long as the threat from the step-father continues besides the anxiety of a young unmarried minor girl who became pregnant, living in our society. 12. The medical evidence adduced would also fully and completely support the version given by the prosecutrix regarding the time in which she had been subjected to rape and the various occasions under which she had been again subjected to the lust of her step-father. The fact that she was pregnant by 36 weeks at the time of revelation and the medical examination further gives ample support to her version. Needless to say that when the version given by the prosecutrix is found to be genuine and inspires confidence and not in conflict with the medical evidence, it can be safely accepted. No other direct evidence, except the version of prosecutrix in a case of rape, would be possible when it was committed in secrecy. 13. PW2, the mother of the victim, had given oral evidence in tune with what is spoken by the prosecutrix. She came to know about the incident only on 13.11.2007 when she was summoned by the hostel Crl. Appeal No.1416 of 2013 14 warden before whom the incident was revealed by her daughter. PW2 thereon went to the Police Station along with PW1, after having consultation with her relatives, and had given Exhibit P1 FIS. The victim was admitted in Government Women and Children Hospital at Thycaud wherein the victim delivered a child. PW3 is the Assistant Surgeon of Government Women and Children Hospital, Thycaud, who examined the victim girl on 25.11.2007 at 6.30 p.m. Exhibit P2 report of examination on PW1 reveals old tear of hymen and vagina admits two fingers. Abdomen uterus was found to be enlarged by 36 weeks. The medical evidence tendered by her that there was evidence of past vaginal penetration and the fact that she was pregnant and delivered a child would sufficiently show that she was subjected to intercourse in and around 36 weeks prior to the date of her examination. The history relating to the incident was also stated in Exhibit P2 report, wherein the person who committed rape stated to be her step-father nine months back. It is stated that she was subjected to rape on several occasions and the last rape was committed seven months back. 14. The oral evidence tendered by PW1 and PW2 further stood supported by the oral evidence of PW7, the Warden of Karunalayam Hostel, Cheruvarakonam and she is in full agreement with the revelation made by the prosecutrix before her on detecting the factum of pregnancy. Crl. Appeal No.1416 of 2013 15 15. Exhibit P3 potency certificate issued by Dr. G.S.Gireesh (PW4), Taluk Hospital, Neyyattinkara, also shows that there is nothing to show that the accused is incapable of performing sexual intercourse. 16. Yet another reason is also available as nothing was brought out either by the prosecution or by the accused to show any strong false motive to implicate her step-father in an offence of like nature. When the evidence adduced would suggest commission of offence by the accused, supported by the oral testimony of prosecutrix, it can be safely accepted. The Apex Court in **Narayana Saha and Another v. State of Tripura** [AIR 2005 SC 1452] held that if the totality of the circumstances appearing on record of the case does not have a strong motive to falsely implicate the persons charged, the court should obviously have no hesitation in accepting the evidence. Hence, we are of the view that nothing was brought to the notice of this Court in order to have an interference to the finding of guilt of accused both under Section 376(1) and 506 IPC and the conviction thereunder. The sentence awarded by the learned Sessions Judge, after having considered the judicial pronouncements of the Supreme Court in **Dinesh v. State of Rajasthan** [2006 (1) KLT 1006 (SC)] and after taking note of two Criminal Appeals - (1) Crl. A.No.2629/2008 drawn by this Court in **Raju v. State of Kerala** and (2) Crl.A. No.168/2011 drawn in **Immanuel v. State of Kerala** , reflects a proper balance between the Crl. Appeal No.1416 of 2013 16 mitigating and aggravating circumstances. But the accused, being an age old person, is entitled to some leniency in the matter of sentence and as such we are of the view that the sentence can be reduced to a period of nine years and a fine amount of Rs.3,00,000/- for the offence punishable under Section 376(1) IPC, in default of payment of fine he shall undergo rigorous imprisonment for three years. In the event of realization of fine amount, it shall be released to the victim, PW1, under Section 357(1) Cr.P.C. The sentence awarded for the offence under Section 506 IPC strikes a balance, hence does not call for any interference by this Court. The substantive sentence shall run concurrently. Set off is also allowed for the pre-trial detention, besides the period of sentence already undergone. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **P.SOMARAJAN** DMR/- **JUDGE** / True copy // P.A. to Judge