DINNY GEORGE SUNNY v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** ## **CRL.A.No.385 OF 2019** **(AGAINST CONVICTION AND SENTENCE PASSED BY THE ADDITIONAL SESSIONS JUDGE I,(SPECIAL COURT) PATHANAMTHITTA IN SC NO.85/2016 BY JUDGMENT DATED 26-12-2018)** **APPELLANT/ACCUSED:** **DINNY GEORGE SUNNY, AGED 25 YEARS S/O.SUNNY GEORGE, PUTHUVELI VEEDU, KULATHUNKAL, MANGARAM MURI, KONNI VILLAGE.** **BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK SMT.ANJU ANILKUMAR** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **SMT PUSHPALATHA M .K – PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2020, THE COURT ON 30-06-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.385 of 2019 2 ## **P.B.SURESH KUMAR, J.** **--------------------------------------------------** **Criminal Appeal No.385 of 2019 -------------------------------------------------Dated this the 30[th] day of June, 2020** ## **J U D G M E N T** The sole accused in S.C.No.85 of 2016 on the files of the Additional Sessions Court-I, Pathanamthitta is the appellant in the appeal, and the appeal is directed against his conviction and sentence in the said case. 2. The victim in the case is a girl aged 14 years. The accusation is that on 07.11.2014, with the intention of seducing the victim girl to illicit intercourse, the accused abducted her to the premises of a school and had sexual intercourse with her and thereby committed the offences punishable under Sections 366 and 376 of the Indian Penal Code (the IPC) and Section 3 read with Section Crl.Appeal No.385 of 2019 3 4 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). 3. On the accused pleading not guilty of the charges, the prosecution examined 19 witnesses as PWs1 to 19 and proved 27 documents as Exts.P1 to P27. The witnesses examined on the side of the prosecution have also identified the material objects in the case namely MO.1 and MO.2. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution and the accused denied the same and pleaded innocence. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused thereupon examined a witness on his side as DW1. 4. Among the witnesses examined on the side of the prosecution, PW1 is the father of the victim girl. PW1 proved Ext.P1 First Information Statement, on the basis of which the crime was registered. PW2 is the victim girl. She Crl.Appeal No.385 of 2019 4 proved Ext.P2 statement given by her under Section 164 of the Code. PW3 is a person who is plying an auto-rickshaw near the residence of the victim girl. PW4 is a friend of the accused. PW5 is the witness to Ext.P3 scene mahazar. PW6 is the witness to Ext.P4 scene mahazar. PW7 is the village official who prepared Ext.P5 scene plan. PW8 is the village official who prepared Ext.P6 scene plan. PW9 is the doctor who examined the victim girl on 08.11.2014. PW9 proved Ext.P7 report of medical examination. PW10 is the doctor who examined the accused and issued Ext.P8 Potency certificate. PW11 is the Registrar of Births and Deaths who issued Ext.P9 Birth Certificate of the victim girl. PW12 is the Secretary of the local authority who issued Ext.P10 certificate concerning the ownership of place of occurrence. PW13 is the nodal officer of Bharathi Airtel Ltd. PW13 proved Ext.P11 letter, P12 certificate and P13 call list. PW14 is the Nodal officer of Vodafone Cellular Ltd who proved Ext.P14 letter, P15 certificate and P16 call list. PW15 is the police official who is the witness to P17 seizure Crl.Appeal No.385 of 2019 5 Mahazar. PW16 is the police official who is the witness to Ext.P18 seizure Mahazar. PW17 is the police official who recorded the statement of the victim girl. PW18 is the police official who registered Ext.P19 First Information Report . He has also proved Ext.P20 property list and Ext.P21 report. PW19 is the Investigating officer in the case. PW19 has proved Ext.P22 property list, Ext.P23 report, Exts.P24 and P25 property lists, Ext.P26 forwarding note and Ext.P27 report of the Forensic Science Laboratory. 5. On an appraisal of the materials on record, the court found that the accused is guilty of the offences punishable under Sections 366 and 376 of the IPC and Section 3 read with Section 4 of the POCSO Act. Accordingly, the accused was convicted for the said offences and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for fifteen days for the offence punishable under Section 366 of the IPC. Similarly the accused was Crl.Appeal No.385 of 2019 6 sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month under Section 376 of the IPC. The accused was also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month under Section 4 of the POCSO Act. The court also ordered the substantive sentences imposed on the accused to run concurrently. As noted, the accused is aggrieved by his conviction and sentence. 6. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 7. The learned counsel for the appellant pointed out that the conviction of the appellant is solely based on the evidence tendered by the victim girl and the doctor who examined the victim girl. It was argued by the learned counsel that the evidence given by the victim girl which is not in tune with Ext.P2 statement given by her Crl.Appeal No.385 of 2019 7 before the Magistrate under Section 164 of the Code ought not have been acted upon by the Court. It was also argued by the learned counsel that it was necessary for the doctor who examined the victim girl to give reasons in support of the conclusion arrived at by her as recorded in Exhibit P7 report in terms of Section 164A of the Code and in the absence of any reason in support of the conclusion therein, the court below below ought not have accepted the said evidence. 8. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the evidence tendered by the victim girl is natural, consistent and trustworthy and the court below cannot, therefore, be found fault with for having placed reliance on the same. It was also pointed out by the learned Public Prosecutor that merely for the reason that reasons have not been stated by the doctor in Ext.P7 report in support of the conclusion arrived at therein, the report is not liable to be rejected in toto. Crl.Appeal No.385 of 2019 8 9. The point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 366 and 376 of the IPC and Section 3 read with Section 4 of the POCSO Act. 10. I shall first consider the contention advanced by the learned counsel for the appellant as regards the reliability of the evidence tendered by the victim girl as PW2. She deposed that she fell in love with the accused while studying in 9[th] standard and she went along with the accused to some places on 06.11.2014 without attending her morning tuition. PW2 deposed that her tuition teacher informed her absence in the tuition class to her mother and there was some fuss in her house concerning the same. She deposed that when the accused called her on that day evening, she told him about the fuss and the accused then asked her to leave the house. She deposed that when she was not ready to obey the said direction, the accused compelled her to do so. PW2 deposed that accordingly, she went to the nearby road where the accused was waiting. Crl.Appeal No.385 of 2019 9 She deposed that the accused then required her to accompany him. She deposed that she was reluctant to accompany him and the accused then compelled her to do so. She deposed that she accompanied the accused accordingly to St.Thomas School and sat in the veranda of the school for some time. She deposed that while so, the accused kissed her, removed her pant and undergarment and penetrated his genital organ into her vagina after removing her clothes and after mounting on her body. She deposed that they sat in the veranda of the school for sometime thereafter. She deposed that after sometime, she slept in the veranda of the school and later when they felt cold, they went to the kitchen of the school. She deposed that next day morning, while they were sitting on the steps of the school, an elderly person came to the school and on seeing him, they went to the nearby rubber estate. She deposed that thereafter when they were about to move to the house of the accused, they saw two elderly people and on seeing them they went back to the rubber estate. She Crl.Appeal No.385 of 2019 10 deposed that there was an old building and a well in the rubber estate. PW2 deposed that the accused then called someone over his phone and told him that they are going to die. PW2 deposed that thereafter they sat on the wall around the well keeping their legs inside the well. PW2 deposed that someone then came there and requested them not to jump into the well. She deposed that the accused then told him that he would jump into the well. PW2 deposed that her relatives who came there in the meanwhile pulled them down then from the wall of the well. She deposed that she gave Ext.P2 statement to the Magistrate. In cross examination, the victim girl has admitted that her father is a short tempered person and she went along with the accused for living with him. Apart from the aforesaid admission, nothing else was elicited by the accused in cross examination from the victim girl which would affect in any manner the credibility of the evidence tendered by the victim girl as to what happened during those days. Crl.Appeal No.385 of 2019 11 11. PW1, the father of the victim girl has stated that his daughter was found missing by about 7.30 p.m. on 07.11.2014 and he accordingly lodged a complaint to the police. In cross examination, PW1 admitted that when he went to the police station on the next day, somebody informed the police that his daughter is found near St.Thomas School and when he went to that place, there was a crowd, and he found the victim girl and the accused sitting on the wall around the well embracing each other after posing a threat that they would jump into the well. PW3, a neighbour of the victim girl deposed that he saw the victim girl in the company of the accused by about 7 o'clock in the evening on 7/11/2014. PW18 Police official who registered the first information report in the case deposed that by about 11 p.m. on 7/11/2014, the father of the victim girl came to the Police station and complained that his daughter is missing. He also deposed that later, the relatives and the people in the locality found the victim girl in the company of the accused and both of them were Crl.Appeal No.385 of 2019 12 accordingly brought by them to the Police station. If one analyses the evidence tendered by the victim girl in the backdrop of the evidence tendered by PW1, PW3 and PW18, there is no scope for any doubt that the accused has abducted the victim girl with a view to seduce her to illicit intercourse, to St.Thomas School by about 7 p.m. on 7/11/2014, stayed back in the premises of the school throughout that night, moved to the nearby rubber estate in the morning and attempted to jump into the well in the rubber estate together, when people in the neighbourhood saw them. 12. As noted, the attempt of the accused during cross examination was to bring on record that the victim girl has gone with the accused on her own volition and therefore, if at all anything has happened during that night, the same can only be consensual. Insofar as the fact that the victim girl was a child at the relevant time is not in dispute, the question as to whether the alleged sexual intercourse is consensual is not of any relevance. The only Crl.Appeal No.385 of 2019 13 question remaining therefore is as to whether the evidence tendered by the victim girl that the accused had sexual intercourse with her could be believed. 13. At the outset, I must notice that the suggestion made by the counsel for the accused during the cross-examination of the victim girl that the accused had no sexual intercourse with her was emphatically denied by the victim girl. Be that as it may. According to the learned counsel for the appellant, the evidence tendered by the victim girl that the accused had sexual intercourse with her cannot be believed, for in the statement given by her under Section 164 of the Code, she had an entirely different version as regards the sexual intercourse. It was pointed out by the learned counsel that in Ext.P2 statement, the victim girl has stated that the physical relationship she had with the accused continued up to the stage of ejaculation, whereas she did not state anything about ejaculation in her evidence before the court. It is seen that the prosecution has not proved the report of the examination of swab and Crl.Appeal No.385 of 2019 14 smear collected from the body of the victim girl, though the report was very much available in the records, and it is seen that it is taking advantage of the said fact that the accused has taken up the contention that the version of the victim girl in Exhibit P2 is incorrect and therefore a witness who is telling lies cannot be believed, especially in a case of this nature where the conviction mostly would be based on the sole testimony of the victim. In so far as the prosecution has not produced the report of the examination of swab and smear collected from the body of the victim girl, it can certainly be presumed that the report if produced would have been against prosecution. The moot question therefore is as to whether the court should reject the evidence tendered by the victim girl in toto merely on account of the said reason. 14. The maxim _falsus in uno, falsus in omnibus_ (false in one thing, false in everything) does not apply to Indian scenario, for there would be hardly any witness in India whose evidence does not contain a grain of untruth or Crl.Appeal No.385 of 2019 15 at any rate exaggerations, embroideries or embellishments. In India, the duty of the court is to scrutinise the evidence carefully, separate the grain from the chaff and find the truth of the matter. I have read meticulously the evidence tendered by the victim girl. The evidence appears to be very natural and consistent. There is no reason why the victim girl should state about the sexual intercourse, if actually there was no sexual intercourse at all. I take this view also for the reason that the same is consistent with the evidence tendered by PW9, the doctor who examined the victim girl immediately after the alleged occurrence. PW9 has stated that the hymen of the victim girl was found torn on examination and that the tear appeared to her to be one caused within 24 hours. It was also stated by PW9 that there was evidence of penetration. The learned counsel for the appellant submitted that the evidence given by PW9 that she found evidence of penetration on examination of the victim girl is based on the finger test claimed to have been conducted by her. It was argued vehemently by the Crl.Appeal No.385 of 2019 16 learned counsel, placing reliance on the decision of this Court in **Sasi v. State of Kerala** (2019 KHC 465) that finger test is not a satisfactory test to arrive at the conclusion as to whether there was penetration. According to the counsel, in so far as the doctor has reported evidence of penetration solely based on finger test, it has to be inferred that there is no evidence of penetration. It was also argued by the learned counsel based on the decision of this court in **Sasi** that simply because the hymen of the victim girl was found torn, it cannot be inferred that there was penetration. It is unnecessary to consider the arguments advanced by the learned counsel based on the decision of this court in **Sasi,** for, I do not propose to rely on the opinion given by PW9 for the purpose of this case. As far as the present case is concerned, as noted, the victim girl was subjected to medical examination on the subsequent day of the alleged sexual intercourse and in a case of this nature, according to me, the evidence tendered by PW9 that the hymen of the victim girl was found torn and the tear Crl.Appeal No.385 of 2019 17 appeared to her to be one caused within 24 hours would stare at the accused. 15. It is unnecessary to consider the contention raised by the learned counsel for the appellant placing reliance on sub-section (3) of Section 164A of the Code, for, I have not relied on the conclusion arrived at by PW9 in Ext.P7 report to concur with the findings of the court below. The appeal is therefore, without merits and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE** PV/YKB