Crl.A(V) 17/2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943 CRA(V) NO. 17 OF 2020** **AGAINST THE ORDER/JUDGMENT IN SC 233/2018 OF ADDITIONAL SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM DATED 5.3.2020** ## **APPELLANT/FATHER OF VICTIM:** XXX BY ADVS. V.JOHN SEBASTIAN RALPH SRI.V.JOHN THOMAS SHRI.VISHNU CHANDRAN SHRI. RALPH RETI JOHN KUM. KEERTHANA SUDEV SHRI.APPU BABU ## **RESPONDENTS/ACCUSED AND STATE:** 1 SHAJI @ SAJU, AGED 47 YEARS S/O.VELAYUDHAN, PUTHUPPILEDAM H, SKARIYAPADI BHAGOM, PINDIMANA KARA, PINDIMANA VILLAGE, PIN686692. 2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN-31. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF WOMEN AND CHILDREN THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 25.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A(V) 17/2020 2 K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------Crl. Appeal (V) No.17 of 2020 ------------------------------------Dated this the 25[th] day of February, 2022 J U D G M E N T ## Jayachandran, J. 1. The judgment of acquittal dated 5.3.2020 in S.C.No.233/2018 of the Additional Sessions Court (Special Court for the trial of cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam is under challenge in this appeal filed under the Proviso to Section 372 of the Code of Criminal Procedure. The victim's father, as her guardian, is the appellant. The offences alleged are under Sections 376(2)(i) and 376(2)(n) of the Penal Code and also under Section 5(1), read with Section 6 and Section 9(1), read with Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act). ## - The prosecution case: 2. In order to satisfy his lust, the accused, Crl.A(V) 17/2020 3 with the necessary intention, repeatedly committed penetrative sexual assault on the victim/PW1, a minor girl, aged 13 years, during the period from March, 2017 to October, 2017 by inserting his finger into the vagina of the victim, caressing her breasts and making her to hold his penis, when the victim came to the house of the accused to play with his children, thus committing the offences under Sections 376(2)(i) and 376(2)(n) of the Penal Code and also under Section 5(1), read with Section 6 and Section 9(1), read with Section 10 of the POCSO Act. 3. The prosecution paraded 15 witnesses, through whom Exts.P1 to P11 were marked. After examination under Section 313, Cr.P.C, wife of the accused was examined as DW1. 4. Disbelieving PW1/victim and finding that the medical evidence does not support the prosecution allegations, the learned Sessions Judge attached due weightage to the defence version in Crl.A(V) 17/2020 4 acquitting the accused. ## ' - Appellant s arguments: 5 . Sri.John S.Ralph, learned counsel for the appellant contended that the Sessions Court went wrong in disbelieving PW1, a minor girl, on the basis of the alleged contradictions, not touching the material aspects of the crime. It should have been found by the learned Sessions Judge that the victim was a minor girl, who had to undergo heinous sexual assault against her body; traumatic to a child of such tender age. When there exists a ring of truth in the evidence tendered by a child witness taken as a whole, minor inconsistencies on immaterial aspects should not have weighed with the learned Sessions Judge, so as to disbelieve her ultimately. The evidence of a rape victim is liable to be accepted, except in cases of glaring incongruities touching the core of the prosecution case, which is conspicuously absent in the given facts. It is also settled that a Crl.A(V) 17/2020 5 conviction can be rested on the sole testimony of a minor victim of sexual offences. Absence of hymen tear is not a factor, by itself, to render the prosecution version suspect. In the light of evidence tendered with respect to the sexual atrocities meted out against the victim, absence of hymen tear is of no moment, contends the learned counsel. The Sessions Court did not appreciate the effect of the mandatory presumption under Section 29 of the POCSO Act in the right perspective, thus resulting in an unmerited acquittal, more so when the First Information Statement (F.I.S), the statements under Section 164 of the Cr.P.C and the deposition of the victim would prove the foundational facts, sufficient enough to draw the presumption under Section 29. The court has also not reckoned the presumption under Section 30 of the POCSO Act. On such premise, the learned counsel would contend that the judgment impugned is perverse and hence, liable to be overturned. Crl.A(V) 17/2020 6 6 . Per contra, learned counsel for the first respondent/accused pointed out that there exist glaring contradictions on material particulars in the evidence tendered by PW1. The victim was specific in her former statement with respect to the allegation that there was digital penetration over her vagina, which version was given a complete go bye in the evidence tendered before the court. It is not merely that the victim omitted to speak about digital penetration before the court, but, she repeatedly denied any such act on the part of the accused. Again, the version of the victim before the investigating agency was that when the younger daughter of the accused retires for sleep, the accused will make the victim sit on his lap and commit sexual acts. However, in the court, the specific version of the victim is that the sexual molestation took place in the hall-room of the house, in the presence of the daughters of accused. Apart from the contradictory component in the said version, the Sessions Court has rightly discounted the Crl.A(V) 17/2020 7 probability and possibility of the accused molesting a minor girl in the presence of his own daughters, submits the learned counsel. PW1/victim would specifically admit towards the end of cross examination that the accused was treating her as his third daughter, which also negates the possibility of a sexual assault of the nature referred to by the prosecution. Another important aspect, which stands against the prosecution version is the medical evidence adduced through PW3, the Gynecologist of Taluk Hospital, Kothamangalam, through whom Ext.P2 medical certificate was marked. There also, in the history, the victim would state that the accused fingered her vagina, apart from caressing her breasts. However, in Ext.P2 medical certificate, PW3 would conclude that there is no evidence of any recent or past vaginal penetration, that the hymen was in tact and that vagina does not admit a finger. Learned counsel pointed out that the evidence of PW1 cannot be taken stock of to rest a conviction in the midst Crl.A(V) 17/2020 8 of these material contradictions. No corroborating evidence is forthcoming in support of the evidence tendered by PW1, wherefore, the judgment of acquittal is well conceived, logical and reasonable. A probable defence version has been set up by virtue of the evidence tendered by DW1 – wife of the accused –, supported by the version of accused discernible from examination under Section 313, Cr.P.C. The victim used to come to the house of the accused to play with his daughters, particularly the younger one, with a mobile phone. It is the defence version that the victim showed some sexually explicit content in her mobile phone to the younger daughter of the accused, which matter was reported to DW1/mother by the elder daughter. The victim girl was cautioned firstly by DW1 and thereafter, by the accused/father in this regard. When the same was repeated, the accused seized her mobile phone and returned the same only by evening. The matter came to the notice of the father of victim. She was scolded and her mobile phone destroyed. The Crl.A(V) 17/2020 9 victim came to the house of the accused on the next day with the broken pieces of mobile phone, extending a threat to the accused that she will teach him a lesson. Apart from the evidence tendered by DW1, corroborated by the version of accused under Section 313, Cr.P.C, the defence version is also probabilised by the admission made by the victim that she used to visit the house of the accused with a mobile phone for playing with the younger daughter of the accused. Learned counsel finally reminded us of the limited scope in interfering with a judgment of acquittal, unless and until the same is perverse and the view taken is not possible at all from the attendant facts and evidence. Mere probability of another view of the matter would not constitute a sufficient reason to interfere with the judgment, going by the binding precedent of the Hon'ble Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] . In short, the defence counsel seeks dismissal of the appeal. Crl.A(V) 17/2020 10 7 . Before addressing the facts and evidence, we will first address the scope, limitation and the principles governing an appeal against acquittal. The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse. In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. The High Court should bear in mind that the trial Court had the advantage of looking at the demeanor of witnesses Crl.A(V) 17/2020 11 and observing their conduct in the Court especially in the witness-box. Unless the High Court arrives at a definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. [See in this regard: (1) Sheo Swarup v. King Emperor [AIR 1944 PC 227] , (2) Noor Khan v. State of Rajasthan [AIR 1964 SC 286] , (3) Khedu Mohton & Ors v. State of Bihar [(1970) 2 SCC 450] , (4) C.Antony v. K.G.Raghavan Nair [(2003) 1 SCC 1] , (5) Ramanand Yadav v. Prabhu Nath Jha [AIR 2004 SC 1053] , (6) Chandrappa v. State of Karnataka [(2007) 4 SCC 415] and (7) Syed Peda Aowalia v. Public Prosecutor [AIR 2008 SC 2573] ]. 8. We will now briefly scan through the evidence adduced by the prosecution : PW1 is the victim, who gave Ext.P1 F.I.S to PW9, Crl.A(V) 17/2020 12 the Woman Civil Police Officer (WCPO). Her evidence will be discussed in detail while addressing the issues. PW2 is the mother of the victim/PW1. PW3 is the Gynecologist, who examined the victim and issued Ext.P2 medical certificate. PW4 is the Doctor, who examined the accused and issued Ext.P3 potency certificate. PW5 is the Headmistress of the School where PW1/victim was studying and who reported the incident, firstly, to the child-line and, thereafter, to the police. PW6 is the Registrar of Births and Deaths, Kothamangalam, who issued Ext.P4 birth certificate of the victim/PW1. PW7 is the Secretary of Pindimana Panchayat, who issued Ext.P5 ownership certificate. PW8 is the Village Officer concerned, who prepared the site plan. As already indicated, PW9 is the WCPO, who recorded Ext.P1 FIS. PW10 is the Circle Inspector of Police, who prepared Ext.P7 scene mahazar. Ext.P8 series arrest memo, custody memo etc. were marked through him. PW11 is the Judicial First Class Magistrate concerned, who recorded Ext.P10 Crl.A(V) 17/2020 13 statement of the victim under Section 164 of the Cr.P.C. PW12 is the Sub Inspector of Police, who registered the FIR based on Ext.P1 F.I.S. PW13 is the Dy.S.P/investigating officer, who completed the investigation and filed charge sheet. PW14 & PW15 are additional witnesses, of whom the former is the class teacher of PW1, to whom the incident was first confessed by the victim. The latter was a member of the child-line team, who gave counseling to PW1 upon knowing about the incident. The evidence will be referred to in detail, based on contextual necessity. 9. It is settled that insofar as offences under Section 376 of the Penal Code, or for that matter, offences under Sections 5, 6 etc. of the POCSO Act, a conviction can be rested on the sole testimony of the victim, provided her evidence is of a sterling quality, so as to inspire confidence in the mind of the court. If not, the court has to look for corroboration of the version of the victim. Therefore, we will first Crl.A(V) 17/2020 14 examine the evidence tendered by PW1/victim, so as to ascertain whether the conclusions arrived at by the learned Sessions Judge is sustainable or not. In view of the fact that what is essentially examined in an appeal against acquittal is the sustainability of the view taken by the trial court, we will go by the reasons taken stock of by the learned Sessions Judge in acquitting the accused. ## (i) Contradiction with respect to digital penetration The specific case of PW1 while tendering evidence before the court is that the accused used to caress her breasts putting his hand inside her frock, when the victim comes to the house of the accused to play with his younger daughter by name Chippi. He would also touch her vaginal area and make her hold his penis. In the chief examination itself, PW1 would state that the accused has not inserted his finger to her vagina. Again, in cross examination, this aspect was specifically Crl.A(V) 17/2020 15 seen put to PW1. PW1 would deny that she had not given any statement to the women police officer to the effect that the accused would insert his finger to her vagina and that it is wrong, if such a statement is seen recorded. However, in Ext.P1 F.I.S, PW1 specifically stated that the accused would insert his hands through the bottom of her frock and would finger her vagina. It is pertinent to note that in tune with her former statement, PW1 would state to PW3/Gynaecologist while recording the history that the accused had inserted his finger to her vagina. Besides, PW15 – the member of the Child line team -, who counseled PW1, specifically deposed that PW1 told her about the accused inserting his finger to her vagina. It could thus be seen that the version of PW1 in respect of a material aspect is contradictory in nature, rendering her evidence suspect. We endorse the findings of the learned Sessions Judge in this regard. Crl.A(V) 17/2020 16 ## (ii) Contradiction with respect to the presence of the daughters of the accused at the time of molestation Another contradiction found by the learned Sessions Judge in disbelieving PW1 is her version with respect to the place where she was allegedly molested by the accused and particularly with respect to the presence of the daughters of the accused. In Ext.P1 F.I.S, the specific version of PW1 is that the younger daughter of the accused by name, Chippi, would go to sleep in the afternoon, whereupon the accused would make the victim sit on his lap and molest her. PW1 is specific that she used to go to the house of the accused on holidays. However, her version before the court is not merely different altogether, but prevaricating too. In cross examination, PW1 would state that the daughters of the accused were always present, whenever she went to the house of the accused. When PW1 reiterated in cross examination that the accused molested her in the presence of his daughters, she was Crl.A(V) 17/2020 17 confronted with her former statement above referred. She admitted of having given such a statement to the Woman Police Officer. Nevertheless, she immediately slips back to her statement that the atrocious acts were done by the accused in the presence of his two daughters. According to PW1, herself, accused and his two daughters would sit together in the hall room, watching the television. While his daughters concentrate on the TV, the accused would caress her breasts through her frock and would also touch her vaginal area. PW1 would reiterate that she was molested in the same hall room in all the three occasions, while all of them were watching TV. We cannot but approve the findings of the learned Sessions Judge in respect of this contradiction as well. We also approve the learned Sessions Judge discounting the probability and possibility of the victim being molested by the accused in the presence of his own daughters, especially when his elder daughter is studying for graduation and his younger Crl.A(V) 17/2020 18 daughter is one year older than the victim. ## - (iii) Probability of the defence version: The accused set up a defence case to the effect that the victim used to come to his house for playing with his younger daughter. She used to come with a mobile phone and once showed some sexually explicit content to his younger daughter. The elder daughter reported the matter to the wife of the accused/DW1, who cautioned the victim in this regard. When the same was repeated, DW1 informed the matter to the accused and the accused also cautioned her. Since the victim again came to the house of the accused with mobile phone, the accused seized the same and returned it only by evening. This matter came to the notice of the father of the victim and he destroyed the mobile phone, after which, the victim came to the house of the accused with the broken pieces of the mobile phone and extended a threat that she will teach him a lesson. As per the defence version, this false case is foisted Crl.A(V) 17/2020 19 against the accused accordingly. 10. In support of the above version, DW1 – wife of the accused - was examined, who vouched in favour of the defence version. Besides the same was spoken of by the accused in examination under Section 313 of the Cr.P.C. Besides, PW1, during cross examination, would admit that she used to come to the house of the accused with the mobile phone, although she would deny the specific incident as alleged by the defence. The learned Sessions Judge, acting upon the evidence tendered by DW1, the version of the accused under Section 313 of the Cr.P.C and the above admission of DW1 found that the defence version is probable. We cannot find anything wrong in the said finding of the learned Single Judge, since the view taken by the learned Judge is probable and logical. 11. Another factor, which throws suspicion on the evidence tendered by PW1, is that she had not divulged the sexual assault alleged to have been Crl.A(V) 17/2020 20 made by the accused even to her mother, during the entire period from March, 2017 to October, 2017. Ext.P1 F.I.S is preferred only on January, 2018. No explanation is forthcoming as regards this aspect in the evidence tendered by PW1. PW2/mother would state in chief examination that the accused threatened the victim/PW1 and hence, she did not disclose the matter to PW2/mother. However, PW1 has no such version. 12. The cumulative effect of the two material contradictions above referred, the possibility/ probability of the defence case and non disclosure of the sexual assault to PW2/mother leads to the conclusion that PW1 is not a witness of a sterling quality, so as to rest a conviction based on her sole testimony. This impels us to look for corroboration, if any, in support of the prosecution version, as spoken to by PW1. Crl.A(V) 17/2020 21 ## Medical Evidence does not support the prosecution case 13. Ext.P2 is the medical certificate issued by PW3 Gynaecologist. In page no.2 of Ext.P2, it is seen recorded that, - (i) the victim's hymen was in tact - (ii) the appearance of labia/clitoris is normal and that vagina admits only top of a finger. - (iii) In the concluding remark, PW3 found that her vagina does not admit a finger. It could thus be seen that that part of the prosecution charge, which alleges digital penetration is not substantiated by Ext.P2 medical certificate. 14. As is trite, what is to be looked into while appreciating an appeal against acquittal is to ensure whether the view taken by the trial court is a possible one, based on the evidence on record. Whether a different view/conclusion is possible is wholly immaterial, unless and until Crl.A(V) 17/2020 22 it is found that the view taken by the Sessions Court is not sustainable at all. We cannot find any misreading or misappreciation of evidence. We cannot say that the judgment impugned is perverse in any manner, whatsoever. Nor could we find any failure of justice occasioned by the impugned judgment. 15. Before parting with the judgment, we will also deal with the appellant's contention based on Section 29 of the POCSO Act. Section 29 is extracted herein below: “29. Presumption as to certain offences.— Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” It is the submission of the learned counsel for the appellant based on Section 29 of the Act that reverse burden is cast on the accused to prove Crl.A(V) 17/2020 23 that they have not committed the offences under Sections 3, 5, 7 and 9 of the Act, the only precondition being that the accused is prosecuted for committing or abetting or attempting to commit any of the offences above referred. According to the learned counsel, the accused persons herein failed to discharge the reverse burden and therefore, they are liable to be convicted for the offences alleged. 16. We cannot accept the above contention of the learned counsel. The argument, if accepted on its face value, is pregnant with the peril of accepting every prosecution charge, where offences under Sections 3, 5, 7 and 9 of the Act are canvassed, irrespective of its merits. Section 29 only creates an exception to the ordinary rule of innocence available to the accused in a criminal trial and puts the onus on the accused to rebut the presumption and establish his innocence. However, this presumption will operate only if the foundation Crl.A(V) 17/2020 24 to the prosecution case is laid by leading legally admissible evidence. The statutory presumption under Section 29 cannot be understood to mean that in every case when a person is prosecuted for the specified offences, the prosecution version should be taken as gospel truth. The presumption will not mitigate the primary duty of the prosecution to establish the foundational facts constituting the offence, which duty is static on the shoulders of the prosecution. Once the same is done, the burden shifts to the accused by virtue of Section 29 of the Act to prove that he had not committed or abetted or attempted to commit the offence, as the case may be. Our conclusions afore referred are in accord with the following judgments of the Hon'ble Supreme Court, where presumption under various statutes have been analysed and interpreted: (1) K.Veeraswami v. Union of India [(1991) 3 SCC 655] , (2) State of Maharashtra v. Wasudeo Ramachandra Kaidalwar [(1981) 3 SCC 199], (3) Noor Aga v. State of Punjab [(2008) 16 SCC Crl.A(V) 17/2020 25 417], (4) Kumar Exports v. Sharma Carpets [(2009) 2 SCC 513] , (5) Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513], (6) Chandran & Others v. State of Kerala and Others [AIR 2011 SC 1594], (7) Naresh Kumar v. State of Himachal Pradesh [AIR 2017 SC 3859] and (8) Gangadhar @ Gangaram v. State of Madhya Pradesh [AIR 2020 SC 3656] . These decisions were taken note of and discussed by a learned Single Judge of this Court in Justin @ Renjith & Another v. Union of India [ILR 2020 (4) Ker 679] . To the same effect is the judgment of another learned Single Judge of this Court in David v. State of Kerala [2020 (4) KHC 717 : 2020 Crl.LJ 3995] . We, therefore, reject the said contention of the appellant on the legal premise. On factual premise also, we find that the accused persons have rebutted the presumption under Section 29 by virtue of the evidence and circumstances already discussed, which are given due weightage in confirming the impugned judgment. Crl.A(V) 17/2020 26 In the light of above discussion, this victim appeal fails and the same is hereby dismissed. Sd/K.VINOD CHANDRAN JUDGE Sd/C.JAYACHANDRAN JUDGE jg