Babu S/O Kumaraswamy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945** **CRL.A NO. 350 OF 2016** **AGAINST THE ORDER/JUDGMENT IN SC 921/2009 OF SPECIAL COURT UNDER** **POCSO ACT, THIRUVANANTHAPURAM** **CP 12/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD APPELLANT/ACCUSED:** **BABU S/O.KUMARASWAMY, VANI BHAVAN, KOTTUKUNNAM MURI, VAMANAPRAM VILLAGE, THIRUVANANTHARUAM** **BY ADVS. SRI.K.NIRMALAN SRI.A.RAJASIMHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV SRI.M.ABDUL RASHEED** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.08.2023 AND THE COURT ON 18.08.2023 DELIVERED THE FOLLOWING:** **CRL.A NO. 350 OF 2016** **2** ## **JUDGMENT** Dated this the 18[th] day of August, 2023. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) and the appellant is the accused in S.C.No.921/2009 on the files of the First Additional Sessions Court (Special Court for Trial of Offences Against Children), Thiruvananthapuram. 2. Heard the learned counsel for the appellant as well as the learned Public Prosecutor appearing for the State. Perused the judgment and appreciated the evidence available in detail. 3. The prosecution case is that the accused herein, who is the neighbour and friend of the father of a minor girl aged 9 years, taken the child into his residential home and had forceful carnal coitus with her on 04.04.2007. The further allegation is that thereafter, on several occasions, the accused repeated the said crime. The same was divulged by the victim to her **CRL.A NO. 350 OF 2016** **3** grandmother and accordingly, crime No.350/2008 was registered by the Venjaramoodu Police Station on the allegation that the accused committed offence punishable under Section 376 of IPC. 4. The learned Sessions Judge secured the presence of the accused for trial and on completing the legal formalities of pre-trial steps, the learned Sessions Judge tried the matter. During trial, PWs.1 to 11 were examined and Exts.P1 to 12 were marked. 5. On completion of prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C. and opportunity was provided to him, to adduce defence evidence. But no evidence was adduced. 6. Thereafter, the learned Sessions Judge appreciated the evidence in consideration of the contentions raised by the accused as well as the prosecution and finally, convicted the accused for the offence punishable under Section 376 of IPC and sentenced to undergo rigorous imprisonment for a period of ten years and **CRL.A NO. 350 OF 2016** **4** to pay fine of Rs.1,00,000/-(Rupees one lakh only). In default of payment of fine, rigorous imprisonment for one year also was imposed. 7. The above conviction and sentence are under challenge in this appeal at the instance of the appellant. 8. While impeaching the veracity of the verdict of the trial court, the learned counsel for the appellant given much emphasis to the evidence of PW9, the Doctor, who examined PW5 (victim), to contend that the offence of rape is not made out in the present case. It is pointed out that as per the evidence of the Doctor and as per Ext.P5, there is no penetration to complete the offence under Section 376 of IPC and therefore, the court below went wrong in finding that the accused herein committed offence punishable under Section 376 of IPC. 9. In view of this argument, I have perused the evidence of PW9 along with Ex.P5. The evidence given by the Doctor is that at about 12.46 am on 10.07.2008, he had examined the victim came with history of sexual assault by a man, Babu, her **CRL.A NO. 350 OF 2016** **5** father's friend. On examination, it was found that mild congestion over vulva, hymen intact and vaginal orifice admits little finger tight with lubrication. But his evidence further is that there is no definite history of penetration. History of finger manipulation over external genitalia and the last episode was before opening the school around 1 ½ months before. In fact, no cross-examination effected to challenge the version of PW9 and the crossexamination was limited to a suggestion that mild congestion noted on her vulva (normally abnormal for a child of such an age) could be the result of infection also. Before discussing the merit of the contentions further, it is apposite to refer the evidence tendered by the victim, who was examined as PW5. PW5 given evidence that she studied at Government School, Parapparamukal in class 1 to 4 and she resided along with her father at Puthen veedu, Kottakkunnam. Her mother was abroad during 2007 - 2008. Her father was engaged in the sale of fish and he would leave for the sale in the morning and would come back at 2 pm. Her evidence further is that her aunt by name **CRL.A NO. 350 OF 2016** **6** 'Azeena' was residing nearby her house. Further evidence is that the accused at the dock is 'Babu', a driver by profession and has been residing nearby the house of PW5. The accused used to come to her residential house. One day, the accused brought her to the house of the accused and removed her dresses. Thereafter, he laid her on the cot and subjected her to sexual assault. Thereby there was ejaculation of sperm and the same was wiped away by the accused and then she worn her dress and was advised to go back. The further statement is that before the occurrence also, the accused used to take her on his lap. After the occurrence, she disliked to go to the house of the accused and she also stated that she had disclosed the same to her aunt a few days later and in turn, her aunt disclosed the same to her grandmother. Eventhough PW5, the victim, given statement as to the occurrence, there is no effective crossexamination to shake the version of PW5 in any manner and the cross-examination is centered on certain irrelevant questions, with a suggestion that the aunt of PW5 instructed PW5 to tell **CRL.A NO. 350 OF 2016** **7** falsehood and in turn, this case was registered. 10. In fact, the evidence of PW5, the victim of the crime, is not seriously challenged during cross-examination and the said evidence remains as unchallenged. Therefore, there is substantial evidence in this matter to prove the occurrence. The learned counsel for the appellant argued that the evidence of PW7 and PW1 regarding the occurrence are contrary and therefore, the prosecution case is in the midst of doubts and thereby the accused deserves acquittal. It is argued further that in a case where there is no penetration and hymen intact without evidence to show the hymen was not elastic, no offence of rape would attract. 11. In this case, the trial court convicted the accused on the finding that he had committed offence punishable under Section 375 of IPC. In this connection, it is necessary, in the interest of justice, to extract Section 375 of IPC and the same provides as under: **375.Rape** .-A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with **CRL.A NO. 350 OF 2016** **8** him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- _First_ . - Against her will. _Secondly_ -Without her consent. _Thirdly._ - With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. _Fourthly_ . - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. _Fifthly. -_ With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. _Sixthly -_ With or without her consent, when she is under eighteen years of age. _Seventhly -_ When she is unable to communicate consent. _Explanation 1_ .-For the purposes of this section, "vagina" shall also include labia majora. _Explanation 2_ .-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. **CRL.A NO. 350 OF 2016** **9** _Exception 1 -_ A medical procedure or intervention shall not constitute rape. _Exception 2_ .-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 12. In the decision reported in **(1994) 6 SCC 29 [State of U.P. v. Babulnath]** , the Apex Court considered the question of penetration of penis into the private parts of the victim/prosecutrix and held that _to constitute the offence of rape it is not at all necessary that there should be complete penetration with the male organ with the emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ in the labia majora or the vulva or pudenda with or without any emission of semen and even an attempt of penetration into the private parts of the victim would be quite enough for the purpose of sections 375 and 376, I.P.Code. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains._ _13._ In the decision reported in **AIR 2004 SC 1497** : _**(2004) 4 SCC 379: 2004 Cr LJ 1399**_ **[Aman Kumar v. State of** **CRL.A NO. 350 OF 2016** **10** **Haryana]** the Apex Court held that _to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape. The depth of penetration is immaterial in an offence punishable under section 376, I.P.Code._ 14. In the instant case, the court below relied on the evidence of PW1, the grandmother, who laid Ext.P1-First Information Statement about the incident divulged by the child and deposed that the accused had been a frequent visitor at the residence of the victim and he made company with the child and used to place her on his lap. Similarly, PW1 also given evidence in support of the narration of the incident by PW5 regarding the occurrence on 04.04.2007. Even though the learned counsel for the appellant attempted to point out serious contradictions in the evidence of PW1 and PW7, in fact, they are not eye witnesses to **CRL.A NO. 350 OF 2016** **11** the occurrence. Further, no material contradictions to disbelieve the prosecution case pointed out by the learned counsel for the accused in any manner in the instant case, where the evidence of PW5, the victim of crime, remains as substantial evidence to prove the occurrence, as I have already pointed out. 15. In this case, there is no eyewitness and the evidence of occurrence is that of PW5 which is not shaken. In the judgment of the trial court, decision of the Apex Court reported in **(2013) 4 SCC 643 [Lillu @ Rajesh and Another v.State of Haryana]** and the decision reported in **AIR 2005 SC 1248** [ **State of UP v.Pappu]** were relied on to hold that _a prosecutrix complaining having been a victim in an offence of rape is an accomplice after the crime and there is no rule of law that her testimony cannot be accepted without corroboration in material particulars, for the reason, that she stands on a much higher pedestal than an injured witness._ 16. It is true that the trial court also considered the delay in lodging the FIR and held that the victim is absolutely a rustic **CRL.A NO. 350 OF 2016** **12** village girl and she was subjected to sexual molestation by her neighbour. Since the victim was a minor, she disclosed the same at a later point of time and the reason for the same also stated in the FIS. Therefore, the trial court held that the delay in lodging the FIR also is well explained. The said finding appears to be correct on evaluation of the materials available as observed by the learned Sessions Judge. In this matter, recording of FIS and registration of Ext.P1 FIR are deposed by PWs.1 and 4 and PW11, the Investigating Officer, who arrested the accused, on 10.04.2008, supported the arrest by deposing about Ext.P8 arrest memo, Ext.P9 custody memo and Ext.P10 inspection memo. It is to be noted that as per Ext.P7 scene mahazar, the place of occurrence as stated by the victim and other witnesses is the same and in order to show the ownership of the house, Ext.P6 ownership certificate was let in through PW10, the then Secretary, Vamanapuram Grama Panchayt and as per which, the place of occurrence is stated as the house bearing door No.II/528A belonged to Smt.Bindu, who is the wife of the **CRL.A NO. 350 OF 2016** **13** accused. That apart, PW6 - the Village Officer, Vamanapuram Village Office, produced the site plan and the same also would support the place of occurrence as per Exts.P7 and P6. 17. The potency of the accused was tested by PW8, Dr.N.A.Balaram and he issued Ext.P4 potency certificate stating that there was nothing to indicate that the accused was incapable of performing sexual act. The said evidence is not in dispute. 18. Even though the accused placed a defence before the trial court that he was on duty as driver in KSRTC bus since he has been employed as KSRTC bus driver. The said suggestion was not proved in any manner. 19. The learned Sessions Judge relied on the decision reported in **Wahid Khan v. State of Madhya Pradesh (2010 KHC 6059)** and held that _to constitute an offence of rape it is not necessary that there should be complete penetration of penis, emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or_ **CRL.A NO. 350 OF 2016** **14** _without emission of semen or even an attempted penetration is quiet sufficient for the purpose of law. It is therefore, quiet possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains._ The legal position regarding the evidence of the prosecutrix without corroboration is no more _res integra_ and it has been settled through a large number of decisions. In **Vijay @ Chinee v. State of Madhya Pradesh (2010 KHC 4502 : (2010) 8 SCC 191 : 2010 (7) SCALE 502 : 2010 (94) AIC 148 : (2010) 3 SCC (Cri) 639),** the Honourable Supreme Court, after referring to **State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 KHC 737 : AIR 1990 SC 658 : (1990) 1 SCC 550: 1990 SCC (Cri) 210 : 1990 CriLJ 889), State of U.P. v. Pappu @ Yunus and Another (2005 KHC 495 : AIR 2005 SC 1248 : (2005) 3 SCC 594 : 2005 (4) KLT SN 52 : 2005 SCC (Cri) 780 : 2005 CriLJ 331), State of Punjab v. Gurmit Singh and Others (1996 KHC 711 : AIR 1996 SC 1393 : (1996) 2 SCC 384 : 1996 SCC (Cri) 316: 1996 CriLJ 1728), State of Orissa v. Thakara** **CRL.A NO. 350 OF 2016** **15** **Besra and Another (2002) KHC 1407 : AIR 2002 SC 1963 : (2002) 9 SCC 86 : 2002 CriLJ 2642), State of Himachal Pradesh v. Raghubir Singh (1993 KHC 1229 : (1993) 2 SCC 622 : (1993) SCC (Cri) 674 : 1993 (2) ALT (Cri) 286 : 1993 (2) Crimes 887)** etc. and the legal position is that the evidence of the prosecutrix, if found to be worthy of credence and is reliable, it requires no corroboration. The Court can convict the accused on the sole testimony of the prosecutrix. 20. In **State of Orissa v. Thakara Besra and Another (2002 KHC 1407: AIR 2002 SC 1963: (2002) 9 SCC 86: 2002 CriLJ 2642)** , it was held by the Apex Court that rape is not mere a physical assault. rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination of other witnesses may not be a serious infirmity, particularly where the other witnesses had not seen the commission of the crime. **CRL.A NO. 350 OF 2016** **16** 21. **In State of Himachal Pradesh v. Raghubir Singh (1993 KHC 1229: (1993) 2 SCC 622: (1993) SCC (Cri) 674 1993 (2) ALT (Cr) 286: 1993 (2) Crimes 887)** , the Apex Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. 22. Thus it appears that the offence of rape as alleged by the prosecution is well established and the trial court rightly appreciated the evidence and entered into conviction. Therefore, the conviction is confirmed. Regarding the sentence, the same also appears to be reasonable. Therefore, this appeal is liable to be dismissed. In the result, this appeal stands dismissed. The order suspending sentence and granting bail to the appellant shall stand vacated and the bail bond executed by the appellant/accused stands cancelled. The appellant/accused is **CRL.A NO. 350 OF 2016** **17** directed to surrender before the trial court and to undergo the sentence within seven days from today, failing which, the trial court shall execute the sentence without fail. Registry is directed to forward a copy of this judgment to the trial court concerned for information and compliance. **Sd/A. BADHARUDEEN JUDGE** nkr