Gopi @ Shobi v. Sub Inspector of Police, Kovalam Police Station, Thiruvananthapuram & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** ## **CRL.A NO.143 OF 2017** **[AGAINST THE JUDGMENT IN S.C.NO.126/2007 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM, DATED 19.01.2017]** **[C.P.NO.99/06 OF JFMC III, NEYYATTINKARA]** **[CRIME NO.69/02 OF KOVALAM POLICE STATION]** **---------** ## **APPELLANT/ACCUSED:** **GOPI @ SHOBI, AGED 64 YEARS, S/O.POULOSE, HOUSE NO.305, NEELAKANDA COLONY, KOVALAM, AVADU THURA DESOM, VIZHINJAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.S.BABU GIREESAN SMT.K.PREETHA JOHN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 SUB INSPECTOR OF POLICE, KOVALAM POLICE STATION, THIRUVANANTHAPURAM.** - **2 THE STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SMT.AMBIKA DEVI S, SPECIAL GOVERNMENT PLEADER (ATROCITIES AGAINST WOMEN & CHILDREN)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.07.2021, THE COURT ON 23.07.2021 DELIVERED THE FOLLOWING:** **Crl.Appeal No.143 of 2017 - 2 -** **K. Vinod Chandran & Ziyad Rahman A.A., JJ. ------------------------------------------Crl.A.No.143 of 2017 --------------------------------------------Dated, this the 23[rd] day of July, 2021** ## **JUDGMENT** **Vinod Chandran, J.** **We are faced with another instance of a neighbour, that too a fatherly figure, turning predator by committing rape on a child. The victim who had not even reached her teens was thus impregnated and a female child was born to her. The child mother and the infant were then left to feed on the vagaries of life. The charge was under Sections 376 and 506 of the IPC. The accused was convicted and sentenced to undergo imprisonment for life and pay a fine of Rs.5,00,000/- [Rupees five lakhs] for the offence punishable under Section 376 IPC, with a default sentence.** **2. Sri. V.S.Babu Gireesan, learned Counsel for the appellant, would argue that the conviction based on the evidence of the prosecutrix alone has to be set aside. The FIR was registered with a delay of six months. There is no valid proof offered for the date of birth of the child. There is a serious lacuna in the investigation insofar as PW-13, the doctor who first examined the victim and the** **Crl.Appeal No.143 of 2017 - 3 -** **doctor who is said to have treated her at the Sree Avittam Thirunal Hospital ['SAT Hospital' for short] having not been questioned by the police. The documents produced by PW-13 and PW-14 were produced by them directly and not as per a seizure carried out by the Investigating Officer (IO). The learned Counsel would rely on** _**H.N.Rishbud v. State of Delhi**_ **[** _**AIR 1955 SC 196**_ **] and** _**State of M.P. v. Mubarak Ali**_ **[** _**AIR 1959 SC 707**_ **] to advance the above contention. It is pointed out that there is more than six months delay in registering the FIR.** _**Babubhai v. State of Gujarat**_ **[** _**(2010) 12 SCC 254**_ **] is relied on to contend that investigation has to be fair, transparent and judicious and if it is tainted and biased, then consequent prejudice and harassment have resulted. There is no valid proof of age and the period of pregnancy, as deposed by the prosecutrix, itself cannot be believed. The trial Court has erroneously believed the evidence of the prosecutrix. To believe the deposition of the prosecutrix, that a period of seven months elapsed before the FIR was lodged, the Court styled it to be a slip of the tongue, which is erroneous. It is finally pleaded that there was no cause for awarding a fine of Rs.5 lakhs especially looking at the amended provisions** **Crl.Appeal No.143 of 2017 - 4 -** **which are not applicable, the alleged offence having been committed in the year 2002.** **3. Smt.S.Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children] points out that though the age is not relevant, considering Section 376 as it existed at the time of commission of the offence, the gravity of the offence has to be noticed in the context of the young age of the child. It is argued, there is no rule that every witness arrayed before Court had to be questioned by the police. The learned Special GP relies on** _**State of Karnataka v. Yarappa Reddy**_ **[(1999) 8 SCC 715 =** _**1999 KHC 618**_ **] to impress upon us that the investigating officers cannot rule the roost and it is for the Court to appreciate the evidence before it. A faulty investigation does not vitiate the trial argues learned G.P.** **4. PW-3, the mother of the victim, gave the FIS, marked as Ext.P3. She spoke of her daughter, who was 12½ years old, having been sexually molested and impregnated by a neighbour. The victim, according to the mother, on 30.05.2002 complained of suffocation upon which she along with her husband took her to PW-13 doctor. The doctor examined the victim and later summoned the mother into her** **Crl.Appeal No.143 of 2017 - 5 -** **room. The doctor queried the mother as to whether any widowers were living nearby. The mother spoke of the accused, whose wife died 8 years back and who was addressed by her daughter as 'father'. The doctor then informed the mother that the victim was pregnant and has to be taken to SAT Hospital. The parents returned home with their child and questioned her. She confessed that some months back, on a Saturday when there was no school and her parents were not available in the house, the accused approached her in the afternoon and took her to his residence. At his residence, the accused forcefully removed her undergarments and her cries in protest were stifled using a cloth. She was then forcefully made to lie down on a cot and he had sexual intercourse with her. The accused also threatened the child with death if the incident was disclosed. On 31.05.2002, the parents took the child to SAT Hospital where it was confirmed that the child was six months pregnant. The child was admitted and was being continued as an inpatient in the hospital when the FIS was given. The mother was examined as PW-3 and she spoke in tune with the FIS. Pertinently, she also spoke of the date of birth of her daughter, which was stated to be 10.05.1990. There was** **Crl.Appeal No.143 of 2017 - 6 -** **no challenge in cross-examination of PW-3, regarding the date of birth.** **5. PW-4 is the victim who spoke elaborately on the incident that occurred about seven months back, before she was examined by the doctor, PW-13. At the time of the incident, PW-4 was studying in 6[th] Standard and it was a Saturday, a holiday for the school. Her parents had gone for work and she was reading a book in her house; when at around 3.00 p.m. the accused came to her residence. He asked whether she was sitting alone and invited her to his residence. PW-4 accompanied the accused to his residence and initially sat on the verandah. Accused invited her inside and showed her some books, including the Bible. He suddenly hugged her and tried to remove her dress. When she protested loudly, he stifled her cries with a cloth pressed to her mouth. He lifted her dress and removed her undergarments and satiated his sexual desire. He also threatened that if she reveals the incident to her parents, both would be killed. It was due to the threat, she failed to disclose the rape committed on her to her parents. The accused continued to threaten her whenever they came across each other. Later, when she became pregnant, she was** **Crl.Appeal No.143 of 2017 - 7 -** **admitted to the SAT Hospital and she gave birth to a child on 02.10.2002. Though certain omissions were put to her in cross-examination, they are not material enough to disbelieve the incident of molestation as spoken of by her. The omissions were only concerning her statement in Court that on reaching the house of the accused she first sat on the verandah, that she was shown books including the Bible and the subsequent threats levelled against her by the accused. As far as the essential details, she spoke in tune with the FIS and the testimony of her mother. We pause here to reiterate that, the FIS was given by the mother on the information given by PW-4, the daughter.** **6. Of the other witnesses paraded before Court, only a few are relevant. PW-1, a doctor, assessed the potency of the accused, which was asserted in Ext.P1 certificate. PW-2, the Assistant Director of FSL, Thiruvananthapuram, deposed that the dress of the victim showed the presence of blood. This cannot be connected to the crime since admittedly the complaint was made about six months later and PW-4 herself admitted that the dress she wore at the time of the incident was washed and subsequently worn by her. PW-5 is the Principal of the** **Crl.Appeal No.143 of 2017 - 8 -** **Higher Secondary School in which the victim was studying. She produced a certificate indicating the date of birth shown in the Admission Register. The certificate, marked as Ext.P4, showed the date of birth to be 10.05.1990, as spoken of by the mother, PW-3. PW-9 is the Sub Inspector who registered the FIR. PW-10 to PW-12 are the I.Os, who at various stages carried out the investigation. PW-13 is the doctor who first examined the victim, through whom was marked the referral letter issued by her to the victim. PW14 is the Medical Record Librarian of the SAT Hospital, who produced the records as per the instruction of the Superintendent of the Hospital on the directions issued by the Court. He is the custodian of the medical records and he produced the register showing the deliveries carried out in the hospital between 19.09.2002 and 23.10.2002. An extract from the Register, at Page No.150, a copy of which verified by the Court with the original was marked as Ext.P12. Therein, the birth of a child to the victim is specifically shown.** **7. The date of birth of the victim is not very relevant in considering the offence under Section 376(1) IPC. However, as stated by the learned Special Government** **Crl.Appeal No.143 of 2017 - 9 -** **Pleader, it has relevance in deciding the severity of the punishment. The mother, PW-3, has spoken of the date of birth very specifically, which has not been challenged when she was cross-examined. The Headmistress of the School, PW-5, produced the extract of the Admission Register, the date of birth in which tallies with that spoken of by the mother, PW-3. But for some questions regarding proper certification of the extract, nothing relevant was asked in the cross-examination of PW-5. In** _**Birad Mal Singhvi v. Anand Purohit**_ **[1988 Suppl. SCC 604] it was held by the Hon'ble Supreme Court that the entry contained in the admission form or the school register must be shown to be made, based on the information given by the parents or a person having special knowledge about the date of birth of the person concerned. The date of birth of the candidate as contained in the document must be proved by admissible evidence ie: by the evidence of those persons who can vouchsafe the truth of the facts in issue. It is safe to rely on the evidence of the mother PW-3, who is the best person to speak on the date of birth of her daughter.** **8. Another contention raised by the learned Counsel for the appellant is that the victim had, in her** **Crl.Appeal No.143 of 2017 - 10 -** **deposition, repeatedly stated that the offence of rape alleged against the accused had occurred seven months before she was taken to PW-13 doctor. The day on which she was examined by PW-13 was 30.05.2002 and admittedly she delivered a baby on 02.10.2002. The contention raised is that the time frame of confinement, from the deposition of PW4, is eleven months and this renders suspicious the very allegation. We do agree with the learned Counsel that going through the deposition it is not a mere slip of the tongue. PW-4 repeatedly stated that the offence committed on her was seven months before she was first examined by a doctor. We think that unnecessary emphasis should not be given to that aspect. When the exact date is not specified, there could only be an approximation and here the trial was after 14 years. The doctor, PW-13, who examined her, proved the referral letter and specifically stated that the uterus was enlarged about 20-24 weeks size. This means that the impregnation would have been about 5-6 months back. We do not find any reason to disbelieve the evidence of the prosecutrix merely on the count of the witness having stated that it was seven months before her medical examination that the rape occurred; which at best is only** **Crl.Appeal No.143 of 2017 - 11 -** **an approximation.** **9. The delay in registration of the FIR is also reasonably explained. The child, just past twelve was threatened by the accused for reason of which she had kept the shameful incident to herself. Only when the pregnancy manifested, with physical symptoms, was the child medically examined to reveal that fact. Immediately thereafter, the FIS was registered on getting the pregnancy confirmed at a higher medical centre, on the very next day. There cannot be alleged any delay in registration of FIR on the facts of this case.** **10. The next contention taken by the learned Counsel for the appellant based on the cited decisions is that the investigation was tardy and this has caused prejudice to the appellant.** _**H.N.Rishbud**_ **and** _**Mubarak Ali**_ **(both supra), arose from proceedings under the Prevention of Corruption Act, 1947 which provided that any investigation into an offence under the Act shall not be conducted by a Police Officer below the rank of a Deputy Superintendent of Police without an order of the Magistrate of the First Class. The Hon'ble Supreme Court in the first of the cited decisions, held the above provision to be** **Crl.Appeal No.143 of 2017 - 12 -** **mandatory and since the major part of the investigation was held before the permission granted by the Magistrate, the issue was remanded to the Special Judge for appropriate orders. There is no such prohibition discernible in the present investigation, which affects the validity of the investigation carried out.** _**Babubhai**_ **(supra) was also in the context of two FIRs registered, relating to two incidents that were part of the same transaction. The second FIR was quashed and an investigation was directed to be carried out in the first FIR itself. The Hon'ble Supreme Court emphasized that the constitutional guarantees under Articles 20 and 21 of the Constitution of India encompassed within its scope and ambit not only fair trial but also fair investigation. The investigating agency has to investigate in a fair, transparent and judicious manner and not in a tainted or biased manner. Where ultimately failure of justice results, the Courts would interfere.** **11. We are afraid, the afore-cited decisions do not aid the appellant herein. The contention raised by the learned Counsel is that, because of no statement having been taken from the doctor who examined the victim at the first instance and the doctor, who later treated the** **Crl.Appeal No.143 of 2017 - 13 -** **victim, during the period of confinement for delivery; it caused prejudice to the accused. The prosecution produced a reference letter issued by the doctor who first examined the victim along with an application, numbered Crl.M.P.3149 of 2016, on 07.11.2016, filed under Section 311 of Cr.P.C to summon the doctor as a witness. The same was allowed by order dated 10.11.2019. Similarly, another Crl.M.P.3290 of 2016 was filed by the Prosecutor to summon the Superintendent of the hospital in which the victim was admitted, to produce the register to prove her delivery. The said application, bearing Crl.M.P.No.3290 of 2016, was allowed on 14.12.2016. This is the basis on which the witnesses PW-13 and PW-14 were examined and Ext.P11 and Ext.P12 were marked. Both the witnesses were summoned for a specific purpose; PW-13 to speak on the referral letter issued to the victim and PW-14, to produce the records of the hospital to prove that the victim gave birth to a child. The witnesses were summoned only for that specific purpose and they could not have spoken beyond what is stated in the documents produced. PW-13 was examined only to prove the referral letter which was produced along with the application. Insofar as the documents summoned from the** **Crl.Appeal No.143 of 2017 - 14 -** **SAT Hospital, through the Superintendent, it was specifically averred that the witness was requested to be summoned to produce the original Register and its certified copy to prove the delivery of the victim as on 02.10.2002. The appellant cannot have a contention that he was caught unawares or by surprise. We find no prejudice having been caused to the accused insofar as the examination of PWs.13 and 14, which was done after notice to the accused and a hearing on the applications filed under Section 311 of the Criminal Procedure Code.** **12. In** _**Yarappa Reddy**_ **(supra), the Hon'ble Supreme Court held that investigation is not the solitary area of judicial scrutiny in a criminal trial and that the conclusion of the Court cannot be allowed to depend solely on the probity of investigation. It was held so in paragraph 19:** _**“19. But can the above finding (that the Station House Diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can**_ **Crl.Appeal No.143 of 2017 - 15 -** _**be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in, the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case”.**_ **In** _**H.N.Rishbud**_ **(supra), it was held that “** _**a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial**_ **” (sic- para 9).** **13. The contention of the appellant regarding defect in investigation has not caused any prejudice to him. If at all, the defects pointed out only inure to the** **Crl.Appeal No.143 of 2017 - 16 -** **benefit of the accused. If the doctors were examined by the police during the investigation and the DNA profiling also carried out, there would possibly be available further corroborative and scientific material. When the charge is of rape, the Hon'ble Supreme Court has time and again held that if the testimony of the prosecutrix is credible, that alone is sufficient to convict the accused, vide** _**State of U.P. v. Chhoteylal**_ **[** _**(2011) 2 SCC 550**_ **]** _**, Kamalanantha v. State of T.N.**_ **[** _**(2005) 5 SCC 194**_ **] and** _**State (NCT of Delhi) v. Pankaj Chaudhary**_ **[** _**(2019) 11 SCC 575**_ **].** **14. In the present case, we find the prosecutrix to be credible and her deposition very convincing, based on which alone the conviction can be safely entered. We also do not find any reason to reject the evidence of the doctor, PW-13 & PW-14, who were properly summoned by the Court. PW-13 proved Ext.P11. She remembered the examination; however, admitted that she could not identify the victim or recollect her face since the examination was conducted about 15 years back. A very independent witness and truthful to the core. PW-14 also, produced the records of the hospital in which the victim was an inpatient, the extract of which was compared with the original by the** **Crl.Appeal No.143 of 2017 - 17 -** **Court and marked as Ext.P12. Ext.P12 indicates the victim had given birth to a female child on 02.10.2002.** **15. The testimony of PW-4, prosecutrix, establishes the offence alleged. The prosecutrix has narrated the incident in the manner in which it was stated in the FIS by her mother; which was on information supplied by her. The mother also spoke in tandem with the FIS and further asserted the date of birth of the victim, her daughter. The date of birth stands further corroborated by Ext.P4, extract of the Admission Register produced by PW-5, the Headmistress of the school. The evidence of the prosecutrix is corroborated by the testimony of PW-13, the doctor, who first examined the victim, a minor child, and detected the pregnancy. The records of the hospital, produced by PW-14, proves that the victim gave birth to a female child establishing the impregnation on the commission of rape. We find no reason to interfere with the conviction.** **16. The learned Counsel for the appellant also argued that the fine imposed/compensation awarded was excessive and a direct result of the amendments brought into the Indian Penal Code in 2018, which** _**inter alia**_ **Crl.Appeal No.143 of 2017 - 18 -** **included the incorporation of the first proviso to subsection (3) of Section 376 IPC. The trial Judge has not referred to the proviso to subsection (3) and in the matter of sentencing, dealt with the issue in detail. The crime was found to have been committed on a minor girl by a man of 45 years, which offence, according to the trial Judge, stood aggravated by the fact that it led to pregnancy and delivery of a child; leaving their lives shattered. We find no reason to interfere with the sentence passed and affirm the same on both aspects, of imprisonment and the quantum of fine.** **The Criminal Appeal is dismissed.** **Sd/K. Vinod Chandran Judge Sd/Ziyad Rahman A.A. Judge** **vku/-**