Bhaskaran Nadar v. State of Kerala

Crl. Appeal No. 36/2019 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 ## CRL.A NO. 36 OF 2019 CRIME NO.1352/2015 OF PALODE POLICE STATION, THIRUVANANTHAPURAM JUDGMENT DATED 30.05.2018 IN SC 388/2016 OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM ## APPELLANT: ## BHASKARAN NADAR S/O.KESAVAN NADAR, C.NO.2751, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT THADATHARIKATHU VEEDU, THERIYAM VEEDU, PERAYAM THALIKKUNNU, ANADU MURI, PALODE VILLAGE. BY ADV SHERLY.S.A (STATE BRIEF) ## RESPONDENT: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. - 2 THE CIRCLE INSPECTOR OF POLICE, PALODE POLICE STATION. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON 03.11.2023 DELIVERED THE FOLLOWING: Crl. Appeal No. 36/2019 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------Crl. Appeal No. 36 of 2019 --------------------------------------------------------Dated this the 3[rd] day of November, 2023. ## **JUDGMENT** Johnson John, j **.** This appeal is filed under Section 374(2) of Cr.P.C by the sole accused in S.C. No. 388 of 2016 on the file of Additional Sessions Judge for the trial of cases relating to Atrocities and Sexual Violence against Women and Children, Thiruvananthapuram, through the Superintendent of Central Prison and Correctional Home, Thiruvananthapuram under Section 383 Cr.P.C, challenging the conviction entered and the sentence passed against him for the offences punishable under Sections 376(2)(i), 506(i) of IPC and Section 9 r/w Section 10 of the Protection of Children from Sexual Offences Act, 2012 ('Act, 2012' for short). 2. The prosecution case as per the final report is that the accused committed rape and aggravated penetrative sexual assault on his daughter aged 13 years at a shed attached to a rubber plantation at Kuriyodu, Nilamel Village on several occasions during the period from 2013 till December, 2014 after threatening her. The accused is thereby alleged to have committed the offences as aforesaid. 3. Based on Ext. P1 First Information Statement of the victim Crl. Appeal No. 36/2019 : 3 : given on 30.12.2015 and recorded by PW12, the Women Sub Inspector attached to Nedumangadu Police Station, Exhibit P10 First Information Report was registered by PW13 Station House Officer of Palode Police Station as Crime No. 1352 of 2015, the then Circle Inspector of Police, Palode. PW14 conducted the investigation and thereafter, PW15, the then Circle Inspector of Police, Palode, conducted a further investigation and on submission of the final report, the case was taken on file as S.C. No. 388 of 2016. 4. When the accused appeared before the court, he was furnished with the copies of prosecution records. After hearing both sides, the charge was framed against the accused for the offences punishable under Sections 376 and 506(i) of IPC and Section 3 r/w Section 4 and Section 9 r/w Section 10 of the Act, 2012. 5. The charge was read over and explained to the accused, to which he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 15 and marked Exhibits P1 to P14 and Mos I to V to prove the case. 6. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances proved against him in the evidence of prosecution. The accused denied all those circumstances and stated that he is innocent. Crl. Appeal No. 36/2019 : 4 : 7. Since the trial court found that it is not a fit case to acquit the accused under Section 232 Cr.P.C, he was asked to enter on his defence and adduced evidence in support thereof. But, no evidence was adduced from the side of the accused. 8. On a consideration of the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 30.05.2018, convicted the accused and sentenced him to undergo imprisonment for life which shall mean the imprisonment for the remainder of his natural life and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) for the offence punishable under Section 376(2) (ii) IPC and in default to pay the fine, to undergo rigorous imprisonment for one year. He was also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.5000/- (Rupees five thousand only) for the offence punishable under Section 506(i) of IPC and in default to pay the fine, to undergo rigorous imprisonment for one month. He was further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) for the offence punishable under Section 9 r/w Section 10 of the Act, 2012 and in default to pay the fine, to undergo imprisonment for six months. 9. In view of Section 42 of the Act, 2012, no separate sentence was imposed for the offence under Section 3 r/w Section Crl. Appeal No. 36/2019 : 5 : 4 of the Act, 2012. It was also ordered that fine amount, if realised, shall be given to the victim girl as compensation as provided under Section 357(1)(b) of Cr.P.C. Substantive sentences were directed to run concurrently. Set off was also allowed. 10. Considering the family background of PW1, the victim, the learned trial Judge has requested the District Legal Services Authority to consider awarding compensation to her under the provisions of the Kerala Victim Compensation Scheme, 2014. 11. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the trial court are sustainable or not. 12. Heard Ms. Sherly S.A., the State Brief appearing for the appellant and Ms. Bindu O.V., the learned Public Prosecutor. 13. The main arguments advanced on behalf of the appellant/accused are that (i) the victim and her mother had ulterior motive to avoid the accused from their family life and hence, false case was foisted against him; (ii) there is inordinate delay in filing the FIR; (iii) PW2 has no case that she witnessed any misbehaviour from the side of the accused towards her daughter; and (iv) the investigation conducted in this case is faulty. It is also argued that the sole testimony of PW1 cannot be relied on to find the accused is guilty of offences alleged against him, as the testimony of PW1 is not of sterling quality. Crl. Appeal No. 36/2019 : 6 : 14. In this connection, the learned counsel for the appellant also relied upon the dictum laid down in _**Santhosh Prasad v. State of Bihar**_ [2020 KHC 6155], in which it is held that if conviction has to be based on the sole testimony of the victim in a rape case, the deposition of the victim must be of sterling quality. It is well settled that the status of the witness would be immaterial and what would be relevant is the truthfulness of such a statement made by the witness and for that purpose, the court is required to analyse the consistency of her statement right from the beginning till the end and as to whether she was able to withstand any length of cross examination. 15. It is true that the delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses etc. are factors that would persuade a court to look for corroboration before convicting the accused based on the sole testimony of the victim. Therefore, keeping in mind the principles laid down in the aforesaid case, it is necessary to consider the arguments of the appellant that the testimony of PW1 is not of sterling quality and as to whether the testimony of PW1 suffers from any material discrepancies, inconsistencies, contradictions or embellishments or in any way inconsistent with the testimony of other prosecution witnesses. 16. Exhibit P1 First Information Statement is seen recorded Crl. Appeal No. 36/2019 : 7 : on 30.12.2015 by PW12. The evidence of PW13 Station House Officer of Palode Police Station shows that an information is received from the Childline Workers regarding the sexual abuse of the victim and accordingly, he had given instruction to PW12 to record the First Information Statement of the victim. PW12 has categorically denied the suggestion of the defence that the victim has given the statement as per the instruction of her mother. According to PW12, she has recorded only the statement of the victim. It is pertinent to note that while cross examining PW13, the defence has not challenged the evidence in Chief Examination that he received information from the Childline workers regarding the sexual abuse of the victim by her father and that he instructed PW12 to record the statement of the victim. 17. PW1, who is none other than the daughter of the accused, has stated in Exhibit P1 that she is a student of 8[th] Standard and she is residing with her father and mother in a single room shed for the last one year and prior to that they resided at Kuriyodu near to Ayur and that her father is a rubber tapper. In Exhibit P1, it is stated that the victim was studying in Standard VI and while her father returned after rubber tapping, at about 7 a.m., and she was sleeping inside the house, he caught her after lying near to her and attempted to disrobe her. When she resisted and cried, he closed her mouth and disrobed her and pressed on her breast and vagina and thereafter, he laid over her and inserted Crl. Appeal No. 36/2019 : 8 : his penis to her vagina and when she felt pain, she cried and then he closed her mouth and after some time, he went away after threatening her that he will kill her, if she discloses the incident to anybody. 18. In Exhibit P1, it is further stated that at the time of the incident, her mother was not there and that her mother was collecting latex from the rubber and subsequently, her mother returned at about 8 am., and thereafter, she went to school at about 8.30 am. The victim when examined as PW1 before court deposed more or less in the same way as per her statement in Exhibit P1. According to PW1, while she was studying in 8[th] Standard, they were residing at Kuriyodu and that her father used to return at about 6.30-7 am., after the work and by that time, her mother will not be available in the house as she has to go for collecting the latex. 19. PW1 stated that one morning, at about 7 am., her father returned after rubber tapping and at that time, she was alone in the house and she was sleeping. Her evidence further shows that her father forcibly raped her after removing her dress and closing her mouth. PW1 has also narrated the way in which the accused committed the overt act and her evidence further shows that after the incident, the accused also threatened her that he will kill herself and her mother, if in case she discloses the incident to anybody else. PW1 stated that because of fear, she could not Crl. Appeal No. 36/2019 : 9 : disclose the matter to anybody else, especially in view of the threat from the side of the accused that he will kill herself and her mother. 20. The evidence of PW1 shows that the accused also raped her on several other days and subsequently in 2014, they shifted their residence to Perayam and they were residing in a shed and during that period also, her father raped her several times. PW1 deposed that while she was studying in 8[th] Standard, the accused used to rape her in the morning while her mother was away from the house. PW1 also narrated the incident that occurred on 25[th] December, wherein her father caught on her breast and vagina and forcibly inserted his penis into her vagina. 21. PW1 would say that subsequent to the said incident, two persons came to her school for counselling on 29[th] December and she narrated the entire facts to the said persons and after counselling, on the same day evening, she also disclosed the entire facts to her mother. The evidence of PW1 shows that she narrated the incident to her mother as per the advice from the councillors and thereafter on 30[th] December, her statement was recorded by the police. PW1 also identified her signature in Exhibit P1 FI Statement and MOs I to IV as the dress worn by her. In cross examination, PW1 stated that the accused raped her for the first time while she was studying in 6[th] Standard and there was no other house near their house at that time. Crl. Appeal No. 36/2019 : 10 : 22. PW1 admitted that her father used to manhandle her and her mother after consuming alcohol. But, she categorically denied the suggestion that she is falsely deposing against the accused because of that enmity with the ulterior motive to avoid the accused from their life. 23. The mother of the victim is examined as PW2. It is true that PW2 is not a witness to the occurrence; but her evidence tallies with all other material particulars regarding the different places where she lived with PW1. PW2 also deposed that the accused is a rubber tapper and he used to return after work by 6 am in the morning and by that time, she used to go to collect latex from the rubber and therefore, her daughter and the accused will be alone in the house. 24. PW2 stated that her daughter narrated the overt acts of the accused to her after returning from the school and she stated that her daughter has narrated the incident to others in the school. In cross examination, PW7 stated that she is illiterate and she has not gone to school. She cannot say the year of her marriage or her exact age. It is true that PW2 has no case that she witnessed any incident in which the accused misbehaved to her daughter. But, it is pertinent to note that the specific case of PW1 is that her father committed the overtacts while her mother was away from the house and therefore, the contention of the appellant that PW2 has not supported the prosecution case, cannot be accepted. Crl. Appeal No. 36/2019 : 11 : 25. While cross examining PWs 1 and 2, the case put forth by the defence is that this case is foisted against the accused with an intention to avoid the accused from the family of PWs 1 and 2. But, it is pertinent to note that both PWs 1 and 2 categorically denied the said suggestion and further, the defence has also not adduced any evidence to prove that PWs 1 and 2 had any enmity or motive to implicate the accused falsely in a serious case of this nature. 26. On a careful consideration of the evidence of PWs 1 and 2 and the facts of this case, I find that their evidence regarding the occurrence is reliable and convincing and even though they were cross examined seriously, no material contradictions or omissions are brought out. 27. PWs 3 and 4 are witnesses to Exhibit P3 scene mahazar. PW5 was the Village Officer of the Palode Village, who prepared Exhibit P4 scene plan. PW6 was the Headmistress of the SKV Higher Secondary School, Nanniyode and her evidence shows that the victim was the student of the said school. PW6 identified her signature in Exhibit P5 certificate and also deposed that the date of birth of the victim is 09.12.2002 as per the admission register and that the entries in the admission register are made after verifying the official documents. The evidence of PW6 regarding the date of birth of the victim as per Exhibit P5 certificate is not challenged in cross examination. Crl. Appeal No. 36/2019 : 12 : 28. PW7 deposed that the victim and her parents are known to her. According to PW7, the victim is the daughter of the sister of her husband. According to PW7, while the victim and her family resided at Kuriyodu, they also used to reside occasionally at her house at Perayam. PW7 stated that the accused used to behave in a bad manner towards the victim and in cross examination, PW7 stated that once she saw the accused kissing the private parts of the victim and at that time, the victim was only aged 9 years and therefore, she has not taken the matter seriously. 29. PWs 8 and 9 are witnesses to Exhibit P6 mahazar. PW10 is the doctor who conducted a potency test of the accused and issued Exhibit P8 potency certificate stating that there was nothing to suggest that the person examined is impotent. The evidence of PW10 in this regard is not challenged in cross examination. 30. PW11 is the doctor who examined the victim on 31.12.2015 and issued Exhibit P9. The evidence of PW11 and Exhibit P9 shows that there is evidence of vaginal penetration and that the victim herself has stated the alleged history of sexual assault as follows: “6ആ� ക�സ�ൽ പഠ�ക�നത� മ�തൽ അചൻ ശ�ര�ര�കമ�യ� ഉപദ�വ�ക�കയ�� ല��ഗ�ക ബനത�ൽ . ഏർപ%ട�ത�കയ�� പ'യ)� വര�ന� എല� ��വസവ�� . ല��ഗ�കമ�യ� ബനപ%ട�റ�ണ/ ഭ�ഷണ�പ%ട�ത�യ�ണ/ .” അചൻ പ'യ�%�ക�നത/ Crl. Appeal No. 36/2019 : 13 : 31. It is well settled that 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 as held by the Hon'ble Supreme Court in _**Rafiq v. State of U.P.**_ [1980 (4) SCC 262]. The evidence of PW6 Headmistress and Exhibit P5 certificate regarding the date of birth of the victim is not seen challenged in cross examination and therefore, it can be seen that the victim was below the age of 13 years during the period of occurrence. 32. Further the decision in **Maju @ Manu v. State of Kerala I.L.R. 2020 (3) Kerala 292,** shows that the date of birth shown in the certificate of the victim from the school can be accepted as conclusive proof of her age in a criminal proceeding. In the said case, it was also held that eventhough the Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 apply strictly only for determination of the age of a child in conflict with law, the statutory provisions therein can certainly be the basis for determining the age of even a child, who is a victim of crime. 33. The testimony of the victim of sexual assault is more reliable than that of an injured witness, unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an Crl. Appeal No. 36/2019 : 14 : accused where her testimony inspires confidence and is found to be reliable. In the absence of any serious contradiction, omission or exaggeration in the evidence of PW1 before court and since her evidence tallies with her statement in Exhibit P1 First Information Statement, we find that her evidence regarding the occurrence inspires confidence and it can be relied upon even without seeking further corroboration. 34. In this case, the evidence of PW1 is supported by the evidence of PW2, who is none other than the mother of the victim and also the evidence of PW11 doctor and Exhibit P9 medical certificate of the victim. It has come out in evidence that the alleged incident was brought to light only when the victim girl disclosed the incident to the childline workers who reached her school for counselling. 35. The learned counsel for the appellant advanced arguments that there is delay in registering the FIR. It was pointed out that the last incident of rape occurred on 25.12.2015 and that Exhibit P1 FI statement was given only on 30.12.2015. But, we do not think that this delay is fatal in the facts and circumstances as it is brought out in evidence that the victim girl was able to disclose the incident only at the time of counselling by the childline workers, who reached her school. In cases of these nature, it cannot be expected that the police would be informed immediately by the victim, especially in view of the fact that the Crl. Appeal No. 36/2019 : 15 : victim is a young girl aged around 13 years and that the assailant is her father. 36. Further, in this case, the sexual abuse took place in the house of the victim while her mother had gone to work and it cannot be imagined that the daughter would cook up such a false story against her father in the absence of any serious grudge or hostility towards him before occurrence. 37. Therefore, on a careful re-appreciation of the entire evidence, we find that the trial court was right in convicting the accused for the offences under Sections 376(2)(i), 506(i) of IPC and Section 9 r/w Section 10 of the Act, 2012. Now, the next question to be considered is regarding the quantum of sentence imposed on the accused by the trial court. It cannot be disputed that the sentence should be proportionate to the gravity of offences and that it is the duty of the court to award appropriate sentence. 38. Considering the facts and circumstances, the nature of the offences and the manner in which the accused herein committed offences against his own minor daughter, we find that the court below has awarded appropriate sentence, especially in view of the fact that sexual violence is a dehumanising act and unlawful intrusion on the right of privacy and sanctity of a female. Therefore, we find that the lower court has considered all the relevant aspects before awarding appropriate sentence and hence, Crl. Appeal No. 36/2019 : 16 : we find no reason to interfere with the sentence imposed on the accused by the trial court. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional Sessions Judge in S.C. No. 388 of 2016. Interlocutory applications, if any pending, shall stand closed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv