Jose Antony @ Anthukutty Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **CRL.A.No.1412 OF 2018** **AGAINST THE ORDER/JUDGMENT IN SC 1096/2017 DATED 05-102018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)** **CRIME NO.1041/2017 OF Perumbavoor Police Station , Ernakulam** ## **APPELLANT/ACCUSED:** **JOSE ANTONY @ ANTHUKUTTY JOSE, AGED 55 YEARS S/O.ANTONY, THANIKUNNEL HOUSE, THEKKUMMALA VEERAPPAN, COLONY BHAGOM, VAZHAKKULAM KARA, MANJALLUR VILLAGE, C.NO.4399, CENTRAL PRISON, VIYOOR, THRISSUR DISTRICT, PIN - 680 010.** **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENT/PROSECUTION/STATE:** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, (CRIME NO.1041/2017) OF PERUMBAVOOR POLICE STATION) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** ## **OTHER PRESENT:** **SMT. PUSHPALATHA . MK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2020, THE COURT ON 17-06-2020 DELIVERED THE FOLLOWING:** Crl.A. No. 1412 of 2018 -: 2 :- ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------** **Criminal Appeal No.1412 of 2018** **-------------------------------------Dated this the 17[th] day of June, 2020** ## **JUDGMENT** The conviction of the appellant and the sentence imposed on him in S.C.No.1096 of 2017 on the files of the Additional Sessions Court, Ernakulam, are under challenge in the appeal. 2. The appellant is the sole accused in the case. The victim in the case is a girl aged 9 years. The prosecution case is that between 01.10.2016 and 17.10.2016, the accused trespassed into the house of the victim on several occasions, grabbed her breast, rubbed her vagina, laid her on a table, poured liquor into her vagina and drank the liquor by licking her vagina. It is also case of the prosecution that on Crl.A. No. 1412 of 2018 -: 3 :- 17.10.2016, the accused after committing the aforesaid overt acts, took the victim to the bedroom of his house in the neighbourhood, made her lie on the cot and pressed his penis into the vagina of the victim. The offences alleged against the accused were, therefore, offences punishable under Sections 450, 376(2)(i) and 376(2)(n) of the Indian Penal Code (the IPC) and Sections 5(l) and 5(m) read with Section 6 and Sections 9(l) and 9(m) read with section 10 of the Protection of Children from Sexual Offences Act (the Act). 3. On the accused pleading not guilty of the charges, the prosecution examined 14 witnesses as PWs.1 to 14 and proved 9 documents as Exts.P1 to P9. 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, PW1 is the Crl.A. No. 1412 of 2018 -: 4 :- victim. PW2 is the mother of the victim. PW3 is the official of the local authority who issued Ext.P1 birth certificate of the victim. PW4 is a lady residing near the house of the victim. PW5 is the wife of the accused. PW6 is the doctor who examined the victim on a reference by the police. PW6 has proved Ext.P2 report of medical examination of the victim. PW7 is the doctor who issued Ext.P3 potency certificate after examining the accused. PW8 is the woman Civil Police Officer who recorded Ext.P4 First Information Statement from the victim. PW9 is the child line member at whose instance the crime was registered. PW10 is a relative of the owner of the house where the accused was residing at the time of occurrence. PW11 is the witness to Ext.P5 mahazar. PW12 is the police official who conducted part of investigation. PW12 has proved Ext.P6 address report and Ext.P7 series arrest memo, inspection memo and custody memo. PW13 is the police officer who submitted the final report in the case. PW14 is the police officer who registered Ext.P8 First Information Report. PW14 has proved Ext.P9 intimation received from the child line. Crl.A. No. 1412 of 2018 -: 5 :- 5. On an appraisal of the evidence on record, the court below found that the accused is not guilty of the offences punishable under Section 376(2)(n) of the IPC and Section 5(l) read with Section 6 of the Act. The court below, however, found that the accused is guilty of offences punishable under Sections 450 and 376(2)(i) of the IPC and Section 5(m) read with Section 6 and Sections 9(l) and 9(m) read with Section 10 of the Act. Consequently, the accused was convicted for the said offences and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year for the offence punishable under Section 450 of the IPC. The accused was also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/and in default of payment of fine, to undergo rigorous imprisonment for one year, for the offence punishable under Section 376(2)(i) of the IPC. Similarly, the accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence Crl.A. No. 1412 of 2018 -: 6 :- punishable under Section 9(l) read with Section 10 of the Act. The accused was also sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 9(m) read with Section 10 of the Act. No sentence was imposed on the accused on his conviction under Section 5(m) read with Section 6 of the Act in the light of Section 42 of the Act. The court also ordered the substantive sentences to run concurrently. The accused is aggrieved by the conviction and sentence imposed on him. 6. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 7. The point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 450 and 376(2)(i) of the IPC and Section 5(m) read with Section 6 and Sections 9(l) and 9(m) read with Section 10 of the Act. The history of the case is recorded in Ext.P2 report of medical examination by PW6 doctor as “ജ��സ� എന വ�ക� onam vacation സമയത� മറ� പലജ��ഴ� കട�യട� വ�ട�ൽ ടവച� പകൽ Crl.A. No. 1412 of 2018 -: 7 :- സമയ� ആരമ�ല�തജ��ൾ ബലമ�യ� വസ� മ�റ� ശര�രത�ൽ കയറ� ക��കകയ� മതടമ�ഴ�കന ഭ�ഗത� ലല�ഗ�ക അവയവ� ടക�ണ� ഉരസകയ� ട4യ�ടണ�. അവസ�നമ�യ� ഉപദവ�ചത� ഒര മ�സ� മമ�ണ�". Placing reliance on these recitals, the learned counsel for the appellant contended that PW1, the victim girl, who has narrated an entirely different story in the court, cannot be believed. Similarly, it was argued by the learned counsel that PW1 has stated in her evidence that when she was lying down in a cot in the house of the accused, PW4 saw her and she informed PW4, when questioned by her, that she was made to lie down in the cot by the accused. It was pointed out that PW4 has denied such an occurrence. It was also argued similarly by the learned counsel that PW1 has stated in her evidence that PW4 has informed the said occurrence to PW5, the wife of the accused. It was pointed out that PW5 also has denied the said version of the victim. According to the learned counsel, the aforesaid circumstances would indicate that the victim is not a credible witness. The submission of the learned counsel, in essence, was that in so far as the conviction of the accused is solely based on the said evidence of the victim, the same is Crl.A. No. 1412 of 2018 -: 8 :- unsustainable in law. 8. Per contra, the learned Public Prosecutor contended that PW4 is a witness who was declared hostile by the prosecution and the credibility of the victim cannot, therefore, be adjudged based on the evidence tendered by PW4. Similarly, it was argued by the learned Public Prosecutor that merely for the reason that PW5, the wife of the accused has not corroborated the version of PW1 that PW4 has informed her that the accused made PW1 lie down in a cot in his house, it cannot be said that PW1 was not speaking the truth. It was also argued by the learned Public Prosecutor that merely for the reason that PW1 has not given a complete narration of the occurrence to the doctor when she was produced for medical examination, it cannot be said that the evidence let in by PW1 is incorrect and unreliable. It was also argued by the learned Public Prosecutor that the evidence in the case has to be appreciated in the light of the presumption of guilt provided for under Section 29 of the Act and if the evidence is appreciated having regard to the said statutory provision, it can be seen that the court below was justified in Crl.A. No. 1412 of 2018 -: 9 :- convicting the accused. 9. In reply to the submission made by the learned Public Prosecutor on the basis of Section 29 of the Act, the learned counsel for the appellant submitted that Section 29 of the Act will not have any application until the prosecution proves the fundamental facts constituting the offence, and the same cannot be applied to a case like the case on hand, where the fundamental facts have not been proved by the prosecution by satisfactory evidence. 10. Having perused the materials on record and having heard the learned counsel for the parties on either side, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 450 and 376(2)(i) of the IPC and Section 5(m) read with Section 6 and Sections 9(l) and 9(m) read with Section 10 of the Act. 11. Before dealing with the contentions raised by the learned counsel for the parties, it is necessary to refer to the evidence tendered by the prosecution in the matter. PW1, the victim girl has deposed that she used to go to school at Crl.A. No. 1412 of 2018 -: 10 :- 8.30 in the morning and come back at 4.30 in the evening. She deposed that both her parents are working. PW1 deposed that her father used to drink Beer with his friend Ani in at their house. She deposed that the accused who has been identified by her in court has assaulted her. When asked about the nature of assault to which she was subjected to, PW1 deposed that the accused used to rub her vagina. She deposed that the accused used to pour Beer into her vagina and drank the same by licking her vagina. PW1 deposed that the accused did the aforesaid overt acts at their house five times. In answer to a specific question, she deposed that the aforesaid acts were committed by the accused after making her lie down on the table in the kitchen. Similarly, in answer to a specific question, she deposed that the accused used to insert his finger into her vagina every time. PW1 deposed that the accused used to lie down over her. She deposed that the last occurrence took place in the room of her sister. She deposed that on that day, the accused grabbed her breast and pushed her down. She deposed that her head then hit against the nearby window. She deposed that the accused thereafter dragged her to his Crl.A. No. 1412 of 2018 -: 11 :- house and rubbed her vagina again. PW1 deposed that while she was lying down in the cot in the house of the accused, the mother in the neighbouring house saw her. She deposed that, when questioned, she told the mother in the neighbouring house that she was made to lie down in the cot by the accused. She deposed that the mother in the neighbouring house later told the wife of the accused that she found PW1 in the house of the accused. PW1 deposed that the occurrence took place during the tenth month of 2016. PW1 deposed that she was thereafter questioned by the child line members. She deposed that it is then only, her parents and sister came to know the occurrence. Though the victim was subjected to thorough cross-examination, she has not been discredited at all at any manner. 12. PW2, the mother of the victim deposed that she came to know of the occurrence when the child line members came to her house to speak to the victim. She deposed that she is working in a private factory and her husband is a coolie. She deposed that her elder daughter is working in a textile shop. She deposed that she used to go for Crl.A. No. 1412 of 2018 -: 12 :- work at about 7.30 in the morning and come back home only at about 6 o' clock in the evening. PW2 deposed that she goes for railway cleaning work also at times and if she goes for railway cleaning work, she would come back home only after two days. PW2 deposed that the accused was residing in a rented premises near her house. She deposed that the wife of the accused was working in a hotel. She deposed that the PW1 used to go to school by about 8.30 in the morning and come back about 4 o' clock in the evening. She deposed that PW1 would be alone at home until she comes back from work. She deposed that the wife of the accused used to tell her that the accused is not a good person and she shall not therefore let PW1 to go near the accused. PW2 deposed that PW1 told the child line members, when questioned by them, that the accused assaulted her sexually. PW2 deposed that PW1 told her, when questioned, that she did not divulge the occurrence to her out of fear. PW5, as noted, is the wife of the accused. She deposed that she knows the victim girl. She deposed that when she is away from home, PW1 used to come to her house. PW5 deposed that she used to tell PW2 that the accused is not Crl.A. No. 1412 of 2018 ## -: 13 :- a good person and she shall not therefore let PW1 to go her house. PW5 deposed that PW1 has complained to her once that the accused has caught hold of her hand. She deposed that when she questioned the accused about the same, he denied such an occurrence. PW9, the child line member deposed that on 30.03.2017, she received an anonymous call to the effect that the victim is being sexually abused by a neighbour. She deposed that she immediately went to the house of the victim to question the victim and the victim then divulged to her that she was sexually abused. PW9 deposed that she has informed the matter accordingly to the police. PW10, the relative of the owner of the house where the accused was residing at the time of occurrence deposed that the accused was residing in the house at Ponjassery belonging to the son-in- law of his elder brother. It has come out that it was at that place that PW1 was residing at the time of occurrence. As in the case of PW1, the aforesaid witnesses were also not discredited in any manner in cross-examination. 13. Though the evidence tendered by victim girl has been corroborated substantially by the evidence tendered Crl.A. No. 1412 of 2018 -: 14 :- by PW2, PW5, PW9 and PW10 as regards the alleged occurrences, the only evidence available is that of the victim girl. The question therefore, is as to whether the court below was justified in convicting the accused solely based on the evidence tendered by the victim girl. 14. No doubt, the evidence of the victim in a case of this nature can be the sole basis of a conviction. But, it is trite that in order to base a conviction solely on the evidence of the victim in a case of this nature, the evidence of the victim shall be of a sterling quality. In **Rai Sandeep v. State (NCT of Delhi)** , (2012) 8 SCC 21, the Apex Court had occasion to consider the question as to who can be said to be a sterling witness. Paragraph 22 of the judgment of the Apex Court in the said case reads 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 Crl.A. No. 1412 of 2018 -: 15 :- 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 crossexamination 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 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.” The decision aforesaid has been quoted with approval by the Apex Court in its recent decision in Criminal Appeal No.264 of Crl.A. No. 1412 of 2018 -: 16 :- 2020, decided on 14.2.2020 in the context of a case under Section 376(1) of the IPC. It is evident from the aforesaid decisions that the evidence of a sterling witness is one that appears natural and consistent with the case of the prosecution qua the accused. It was held that such witnesses shall, under no circumstances, give room for any doubt as to the factum of the occurrence and the evidence shall have corelation with each and everyone of other supporting materials including expert opinions. It was also held in the said cases that such evidence should also satisfy the test applied in cases involving circumstantial evidence, viz, that there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence. To put it differently, the version of such witnesses 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. The moot question therefore, is whether the de facto complainant can be said to be a sterling witness so as to justify the conviction of the accused solely based on her evidence. Crl.A. No. 1412 of 2018 -: 17 :- 15. A careful reading of the evidence tendered by the victim discloses that the same has been natural and consistent with the case of the prosecution. She has not given room for any doubt as to the occurrences. As noted, her evidence was corroborated by the evidence tendered by the other witnesses who have supported the prosecution case. 16. True, PW1 has not narrated to PW6, the doctor who examined her, the full particulars of the sexual assault to which she was subjected to over a period of almost three weeks. Merely for that reason, according to me, it cannot be contended that the evidence tendered by PW1 is not reliable. Similarly, merely for the reason that a hostile witness did not give evidence in tune with the prosecution case, it cannot be said that the evidence tendered by the prosecution witnesses are to be ignored. True, PW1 has stated in her evidence that PW4 has informed PW5 that the accused has made her lie in a cot in his house, and PW5 denied having informed of the said matter by PW4. Merely for the reason that PW5 has stated that PW4 has not divulged the said matter to her, it cannot be said that what is stated by PW1 is incorrect. At any rate, the Crl.A. No. 1412 of 2018 -: 18 :- aforesaid are not sufficient to contend that the evidence tendered by the victim girl is not of a sterling quality. Insofar as it is found that the evidence tendered by the victim girl is reliable, trustworthy and of a sterling quality, it is unnecessary to consider the scope of Section 29 of the Act, for the case is one in which the prosecution is entitled to succeed even without the aid of any presumption. The accused has no case that the prosecution case which is found to be established does not disclose the offences for which the accused is convicted. The appeal is therefore, without merits and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR JUDGE** ds 03.06.2020