Gopalakrishnan v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942** ## **CRL.A.No.109 OF 2019** **AGAINST THE JUDGMENT IN SC 388/2013 DATED 21-12-2018 OF ADDITIONAL SESSIONS COURT-I, KOTTAYAM** ## **APPELLANT/ACCUSED:** **GOPALAKRISHNAN, AGED 56 YEARS, S/O.RAMAN, THAVALATHIL HOUSE, THULAPPALLY KARA, KOLLAMULA VILLAGE.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE** ## **RESPONDENTS/STATE AND COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 THE SUB INSPECTOR OF POLICE ERUMELI POLICE STATION - 686 002.** **R1-2 BY SMT.AMBIKA DEVI S, SPL.GP SRI.RAMESH CHAND PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **09-07-2020, THE COURT ON 13-07-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.109 of 2019 **2** ## **P.B.SURESH KUMAR, J.** **----------------------------------------------Criminal Appeal No.109 of 2019** **------------------------------------------Dated this the 13[th] day of July, 2020** ## **J U D G M E N T** The sole accused in S.C.No.388 of 2013 on the files of the First Additional Sessions Court, Kottayam is the appellant in this appeal, which is preferred challenging his conviction and sentence in the said case. 2. The accusation in the case is that from the year 2010 till 30.06.2012, the accused committed rape on the de facto complainant and her daughter aged 11 years, at their house situated at Erumeli, and thereby committed the offence punishable under Section 376 of the Indian Penal Code (the IPC). Crl.Appeal No.109 of 2019 **3** 3. On the accused pleading not guilty of the charges levelled against him, the prosecution examined 10 witnesses on its side as PWs.1 to 10 and proved 14 documents as Exts.P1 to P14. PW3 examined on the side of the prosecution has identified the material object in the case, MO1. 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. The accused denied the same and maintained that he is innocent. 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 did not adduce any evidence. 4. Among the witnesses examined on the side of the prosecution, PW1 is the Headmistress of the school, where the daughter of the de facto complainant was pursuing her studies. PW2 is the person cited by prosecution to prove the scene mahazar. PW3 is the daughter of the de facto complainant. PW4 is the doctor **4** Crl.Appeal No.109 of 2019 who examined the de facto complainant and her daughter and issued Exts.P1 and P2 certificates. PW5 is the doctor who examined the accused and issued Ext.P3 certificate. PW6 is the village officer who issued Ext.P4 scene plan. PW7 is the police official who recorded Ext.P5 First Information Statement and registered Ext.P6 First Information Report. PW8 is the investigating officer who conducted part of the investigation. PW8 proved Ext.P7 scene mahazar, Ext.P8 seizure mahazar, Ext.P9 seizure mahazar, Ext.P10 address report, Ext.P11 arrest memo, Ext.P12 forwarding note and Ext.P13 FSL report. PW9 is the police official who completed the investigation in the case and filed the final report. PW9 proved Ext.P14 correction report. PW10 is the de facto complainant. 5. On an appraisal of the materials on record, the court below found the accused guilty of the offence punishable under Section 376 of the IPC and convicted him for the said offence and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of **5** Crl.Appeal No.109 of 2019 Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years. 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 appellant contended that the conviction of the appellant which is solely based on the evidence of the daughter of the de facto complainant is unsustainable, for the same is inconsistent with the remaining evidence let in by the prosecution and also vitiated by contradictions, exaggerations and embellishments. The learned counsel has elaborated the said submission referring to the facts and circumstances of the case. It was also argued by the learned counsel that the impugned judgment is vitiated by non-application of mind, for despite the evidence given by the de facto complainant that her physical relationship with the accused was consensual, the court below found that the accused has committed rape on her as well. **6** Crl.Appeal No.109 of 2019 8. Per contra, the learned Public Prosecutor submitted that the evidence tendered by the daughter of the de facto complainant is consistent with the remaining evidence tendered by the prosecution and that the contradictions, exaggerations and embellishments highlighted by the learned counsel for the appellant which do not pertain to the core aspect of the evidence are liable to be ignored by the court. 9. Having heard the learned counsel for the parties and having perused the materials on record, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 376 of the IPC. 10. Before dealing with the contentions raised by the learned counsel for the parties on either side, it is necessary to refer to the evidence tendered by the prosecution to prove the guilt of the accused. The evidence tendered by the prosecution to prove the guilt of the accused are mainly the evidence of the Headmistress of Crl.Appeal No.109 of 2019 **7** PW3, the evidence of PW3, the evidence of the doctor who examined PW3 and the evidence of the de facto complainant. 11. PW1, the Headmistress of PW3 has deposed that the girl informed her when questioned, on observing that she is spending money for sweets beyond her ability, that she is getting money from one Gopalakrishnan and when she questioned further, the girl informed her that the said person used to touch her private parts. She deposed that she immediately informed the matter to the Child Welfare Committee and they in turn talked to the mother of the girl. PW1 deposed that later, Childline members have informed her that the said person has been abusing both the mother and the daughter. The daughter of the de facto complainant has deposed as PW3 that her father is a heart patient; that the accused used to come to her house; that the accused misbehaved with her when she was alone in the house one day when she was studying in 4[th] standard; that she was working in the Crl.Appeal No.109 of 2019 **8** kitchen at that time; that the accused made her lie down on a cot by force; that he removed her dress and applied his mouth to her vagina and also that he has inserted his genital organ into her vagina. She also deposed that the accused did the aforesaid acts on two other occasions as well and in one of such occasions, the accused did so after sending away her younger siblings to buy sweets. PW3 deposed that she told the above incident to her mother as also to her teacher. She also deposed that the accused used to give her money for buying sweets. 12. PW4 deposed that she examined PW3 on 15.07.2012 and issued Ext.P1 certificate. PW4 deposed that on examination, the hymen of PW3 was found torn and her vagina admitted one finger. PW4 deposed that she found evidence of penetration on examination. PW4 deposed that the daughter of the de facto complaint was brought to her on the allegation that a person named Gopalakrishnan has raped her twice almost an year back. PW10, the mother of the victim girl, deposed that the **9** Crl.Appeal No.109 of 2019 accused used to come to her house; that the accused used to give money to PW3 for buying sweets and that she came to know of the incidents of abuse on PW3 by the accused from PW1 and that she has accordingly lodged Ext.P5 statement. 13. As pointed out by the learned counsel for the appellant, the court below found that the accused has committed rape on PW10 and her daughter. It is seen that PW10 had no case while giving evidence that the accused committed rape on her. On the other hand, on a specific question put to her in cross examination, she has admitted that the physical relationship she had with the accused was consensual. As such, the finding rendered by the court below that the prosecution has proved that the accused has committed rape on PW10 is incorrect and unsustainable. 14. Coming to the case of the prosecution as regards PW3, as noted, the evidence given by PW1 is only that PW3 told her that the accused used to touch her private parts. Similarly, the evidence tendered by PW10, **10** Crl.Appeal No.109 of 2019 the mother of PW3 in this regard is that she came to know of the incidents of abuse from PW1. Of course, the doctor who examined PW3 on 15.07.2012 deposed as PW4 that her hymen was found torn and her vagina admitted one finger. A reading of the evidence tendered by PW4 reveals that it is on account of the aforesaid facts, she came to the opinion that there was evidence of penetration. In **Sasi v. State of Kerala** [2019 KHC 465], a Division Bench of this court, following the decision of the Apex Court in **Lillu @ Rajesh v. State of Haryana** [AIR 2013 SC 1784], held that finger test is not a sure test to give an opinion suggesting penetration. It was also held in the said case that rupture of hymen is also no indication for penetration. In the light of the said decisions, the evidence tendered by PW4 may not be of any use to the prosecution. In other words, as regards the core aspect of the case relating to rape, the only evidence available is the evidence of PW3. No doubt, if PW3 could be treated as a sterling witness, a conviction can certainly be founded on the same. In **Rai** Crl.Appeal No.109 of 2019 **11** **Sandeep v. State (NCT of Delhi)** , (2012) 8 SCC 21, the Apex Court held thus: “In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any Crl.Appeal No.109 of 2019 **12** missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” It is evident from the aforesaid decision that a sterling witness is one whose evidence is natural and consistent with the case of the prosecution qua the accused and that such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrence and the evidence shall have co-relation with each and everyone of other supporting materials including expert opinions. To put it differently, the version of such witnesses on the core **13** Crl.Appeal No.109 of 2019 spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary, and material objects should match the said version in material particulars. 15. True, the evidence tendered by PW3 if believed and trusted, makes out a case of rape. The moot question therefore, is as to whether PW3 can be said to be a sterling witness. In the matter of considering the said question, a few admissions made by PW3 during cross examination assume relevance. It is relevant in this context to note that the mother of PW3 was having an extra marital affair with the accused. The mother of PW3 has admitted the said fact in her evidence. It is admitted by PW3 in crossexamination that the accused used to visit her house; that he was very cordial to her parents; that it is her mother who brought the accused to her house for the first time; that the accused used to purchase clothes for her mother; that her father does not like the relationship between her mother and the accused; that she was not maintaining a cordial Crl.Appeal No.109 of 2019 **14** relationship with her mother; that she likes her father; that she also does not like the relationship between the accused and her mother; that she does not like the accused; that she does not like anybody other than her friends coming to her house. To a specific question put to her in crossexamination, PW3 stated that she narrated the sexual assault to which she was subjected to, to PW1 and that she has not concealed anything from PW1. Similarly, to a specific question put to her in cross examination as to whether any amount has been borrowed from the accused in connection with the construction of their house, her answer was that she does not know as to whether her father has borrowed any money from the accused. She, however, admitted that one day during June 2012, the accused came and demanded the money borrowed. She also admitted that since the money was not returned, the accused came with his wife on another day for the said purpose. The aforesaid evidence prima facie shows that the accused was not a person liked by PW3 on account of Crl.Appeal No.109 of 2019 **15** the relationship he maintained with her mother. Needless to say, the evidence tendered by PW3 needs to be examined carefully before any conviction is founded solely on the same. 16. It is seen that the specific case of PW3 is that she narrated the sexual assaults to which she was subjected to by the accused to her mother. PW10, the mother of PW3, however, pleaded ignorance of the same. May be it is a case where PW10 is lying in view of her relationship with the accused. But, the possibility of the said evidence of PW3 being incorrect also cannot be ruled out. Further, it is admitted by PW3 that she narrated the sexual assaults to which she was subjected to PW1, her teacher. PW1 has stated in her evidence that what was informed to her by PW3 is that the accused used to touch her private parts. The evidence aforesaid of PW1 throws a doubt as to the correctness of the evidence tendered by PW3 that the accused had sexual intercourse with her, especially since it was clarified by PW3 that she has **16** Crl.Appeal No.109 of 2019 narrated everything to PW1 and that she has not concealed anything from her. Similarly, it is seen that the case of PW3 is that the accused has committed rape on her for the second time during April 2012, whereas what was informed by her to PW4, the the doctor when she was produced before her for medical examination on 15.07.2012 was that one Gopalakrishnan has abused her about an year back. If as a matter of fact, there was an incident during April 2012, there was no reason why PW3 should give a statement to the doctor that the incident took place an year back. Similarly, it was deposed by PW8, the investigating officer that PW3 has not stated him that the accused has abused her twice, whereas the specific case of PW3 while giving evidence was that the accused has committed sexual assault on her thrice. The facts and circumstances aforesaid cast a serious doubt as to the correctness of the evidence tendered by PW3. I take this view also for the reason that PW3 was aged 18 years when she gave evidence, and natural innocence one would expect from a Crl.Appeal No.109 of 2019 **17** child witness cannot be expected from her. 17. The maxim _falsus in uno, falsus in omnibus_ (false in one thing, false in everything) does not apply to Indian scenario, of there would be hardly any witness in India whose evidence does not contain a grain of untruth or 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. The defence of the accused in the case is that the parents of PW3 had borrowed amounts from him in connection with the construction of their house; that the same was not returned when demanded; that there was a quarrel between the accused and the parents of PW3 in connection with this dispute and that the case is one foisted against him on account of this reason. True, the materials on record reveal that the parents of PW3 have borrowed amounts from the accused in connection with the construction of their house and that they have not returned the amount borrowed when demanded, and further that Crl.Appeal No.109 of 2019 **18** there was a quarrel between the parties on account of this reason. But I am unable to accept the defence aforesaid viz, that it is on account of this dispute that the complaint was instituted against the accused, for it is categorically established by the prosecution, especially through the evidence of PW1, that the case was one registered at the instance of PW1. In other words, the evidence tendered by PW3 cannot be completely ignored. 18. In this context, it is relevant to refer to the evidence tendered by PW1. As noted, it was stated by PW1 that the girl informed her when questioned, on observing that she is spending money for sweets beyond her ability, that she is getting money from one Gopalakrishnan and when she questioned further, the girl informed her that the said person used to touch her private parts. She also stated that she immediately informed the matter to the Child Welfare Committee and they, in turn, talked to the mother of the girl. PW1 also stated that Childline members have later informed her that the said person was abusing both Crl.Appeal No.109 of 2019 **19** the mother as also the daughter. If as a matter of fact, the allegation levelled against the accused is totally baseless, there is no reason why PW3 should narrate such a case to PW1. At the same time, as I found earlier, the materials on record are not sufficient to inspire confidence to hold that the case of sexual intercourse spoken to by PW3 is correct. Needless to say, the accused should get the benefit of doubt. At the same time, in the light of the evidence tendered by PW1, I am convinced that the accused used to sexually assault the victim girl. Since the alleged incidents took place prior to Act 13 of 2013 and the Protection of Children from Sexual Offences Act, 2012, the accused can be convicted only under Section 354 of the IPC. 19. In the aforesaid facts and circumstances, the conviction of the appellant is liable to be altered to one under Section 354 of the IPC. The maximum sentence provided for the said offence during the relevant period being two years, I am of the view that the accused shall be imposed the said sentence to secure the ends of justice. Crl.Appeal No.109 of 2019 **20** In the result, the appeal is allowed in part. The conviction of the appellant is altered to one under Section 354 of the IPC and he is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, and in default of payment of fine, to undergo simple imprisonment for three months. The impugned judgment will stand modified accordingly. Sd/- **P.B.SURESH KUMAR, JUDGE.** DK/YKB