Krishnan Kutty v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 CRL.A NO. 446 OF 2018** **AGAINST THE JUDGMENT IN SC 1016/2014 OF THE SESSIONS** **COURT, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **KRISHNAN KUTTY, AGED 49 YEARS S/O NARAYANAN, NARAYANA MANDIRAM, KUZHIVILA PUTHEN VEEDU, PATHIRAPALLY, KUDAPPANAKUNNU, THIRUVANANTHAPURAM DISTRICT, CONVICT NO-9823, CENTRAL PRISON THIRUVANANTHAPURAM** **BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANOOP SATHYAN ANANTHAKRISHNAN A. KARTHA REMYA M. MENON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADVS. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **01.06.2023, THE COURT ON 16.06.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.446 of 2018 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-----------------------------------------------** **Crl. Appeal No.446 of 2018 ----------------------------------------------Dated this the 16[th] day of June, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.1016 of 2014 on the files of the Sessions Court, Thiruvananthapuram. The appellant is the sole accused in the case. 2. The accusation against the appellant in the police report is that he has committed rape on his minor daughter, who was residing in a Child Care Home after the death of her mother, during September 2011 and December 2013, when the accused was permitted to take her to their house from the Child Care Home. The offences alleged against the accused are the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Section 4 of the Protection 3 Crl.Appeal No.446 of 2018 of Children from Sexual Offences Act, 2012 (the POCSO Act). 3. On the accused pleading not guilty of the charges framed against him, the prosecution examined 18 witnesses as PW1 to PW18 and proved 21 documents as Exts.P1 to P21. The prosecution has also caused the witnesses examined on its side to identify MO1 to MO3 material objects. 4. 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 against him. The accused denied the same. Since the trial court did not consider 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 two witnesses on his side as DW1 and DW2 and proved two documents as Exts.D1 and D2 through them. 5. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl. She proved Ext.P20 First Information Statement given under Section 154 of the Code and Ext.P2 statement given under Section 164 of the Code. PW2 is the care taker of the Child Care Home where the victim 4 Crl.Appeal No.446 of 2018 girl was residing during December, 2013 and January, 2014. PW3 is a teacher of the school where the victim girl was pursuing her studies during January, 2014. PW4 is the counsellor attached to the said school. PW7 is the Co-ordinator of the Child Helpline, Thiruvananthapuram. PW9 is the doctor who conducted potency test on the accused. PW9 proved Ext.P7 potency certificate issued by him. PW11 is the doctor who conducted the medical examination of the victim girl. PW11 proved Ext.P9 report of medical examination. PW13 is the woman Sub Inspector of Police who recorded Ext.P20 First Information Statement. PW17 is the police officer who conducted investigation in the case and PW18 is the police officer who laid the final report in the case. 6. The trial court found the accused guilty of the offences punishable under Section 376 of the IPC and Section 4 of the POCSO Act and he was, accordingly, convicted and sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 4 of the POCSO Act. No separate punishment was imposed on the accused for the offence punishable under Section 376 IPC. It is aggrieved by Crl.Appeal No.446 of 2018 5 the conviction and sentence that the accused has preferred this appeal. 7. Heard Adv.M.P.Madhavankutty, the learned counsel for the accused as also Adv.Ambika Devi S., the learned Special Public Prosecutor. 8. The first and foremost argument advanced by the learned counsel for the accused was that the charges in respect of the first episode of the occurrences that took place during September 2011 and second episode of the occurrences that took place during December 2013, could not have been clubbed together in the light of the mandatory provision contained in Section 218 of the Code, especially since the amendment to Section 376 of the IPC to its present form and the introduction of the POCSO Act were much after the first episode of the occurrences. According to the learned counsel, the trial in the case is therefore vitiated. 8.1. It was also argued by the learned counsel for the accused that although the first episode of the occurrences were alleged to have taken place during September 2011, the same were disclosed by the victim girl to PW2 only during 6 Crl.Appeal No.446 of 2018 January 2014, after the second episode of the occurrences alleged to have taken place, even though the victim girl had gone along with the accused to their house on several occasions in between. According to the learned counsel, the said conduct on the part of the victim girl creates serious doubt as to the genuineness of the prosecution case. It is all the more so, according to the counsel, since the prosecution has no case that the accused threatened the victim girl in any manner, preventing her from disclosing the same to anyone till December 2013. The learned counsel attempted to reinforce the said point contending that even though the victim girl is stated to have disclosed the alleged occurrences to PW2 on 17.01.2014, the matter was reported to the police only on 20.01.2014. In order to strengthen the said argument, the learned counsel has also pointed out that though the series of events stated to have taken place in between 17.01.2014 and 20.01.2014 involve officials, there is no documentary evidence for establishing the said events. 8.2. It was also argued by the learned counsel for the accused that PW1, the victim girl cannot be said to be a Crl.Appeal No.446 of 2018 7 sterling witness so as to justify the conviction in a case of this nature, solely based on her testimony. After referring to a few decisions of the Apex Court which define the requirements for a witness to be regarded as a sterling witness, the learned counsel pointed out a few reasons to bring home the said argument. The first and foremost reason pointed out by the learned counsel was that though the version of PW1 in her First Information Statement regarding the occurrences that took place during September 2011 does not disclose any element of rape, she has improvised the said version substantially in her evidence in a such a manner that the accused had committed rape on her during September 2011 as well. Another reason pointed out by the learned counsel is that even though PW1 has meticulously stated the finer details of the occurrences in her evidence, she could not recollect the date on which the accused had committed rape on her for the first time during December 2013. Yet another reason pointed out by the learned counsel is that even though PW1 deposed that she did not go with her father after September 2011 till December 2013, Ext.D1 would show that the victim was taken by the accused 8 Crl.Appeal No.446 of 2018 on many occasions between September 2011 and December 2013. 8.3. The next argument was that the evidence tendered by the witnesses PW2, PW3 and PW4 were not consistent as regards the sequence of events that took place after 17.01.2014 till 18.01.2014. 8.4. The next argument was that there is no medical evidence to fit in the allegation of rape. The learned counsel elaborated the said argument pointing out that if as a matter of fact, the victim was raped after a long gap of 2 years, there is every chance for injuries in her private parts and no injury was noted by the doctor on her body at the time of medical examination. The learned counsel attempted to reinforce the said argument pointing out that even though it is stated in Ext.P9 report of medical examination that a final opinion could be given only after the chemical analysis of the vaginal smear and swab, a final opinion of the doctor is not seen to have obtained by the prosecution. 8.5. The next argument was that if as a matter of fact, the victim had divulged the occurrences that took place 9 Crl.Appeal No.446 of 2018 during December 2013 on 17.01.2014 to PW2, her conduct in not disclosing the same to her fellow staff and in letting PW1 go to school even thereafter, are not consistent with the normal human conduct and the said circumstances would make the evidence of PW2 unworthy of any credit. 8.6. The next argument was that having regard to the facts and circumstances of this case, the non-examination of the sister and maternal grandmother of the victim girl is fatal to the prosecution case, as the evidence of such witnesses would have probabilised the defence of the accused that he was implicated falsely in the case at the instance of PW2 for having claimed the amount borrowed from him. 9. Per contra, the learned Special Public Prosecutor supported the conviction of the accused and the sentence imposed on him. 10. We have perused the materials on record and considered the contentions put forward by the learned counsel on the either side. 11. The point arising for consideration is whether the prosecution has established the guilt of the accused under 10 Crl.Appeal No.446 of 2018 Section 376 IPC and Section 4 of the POCSO Act and if so, whether the sentence imposed on the accused is proportionate to the gravity of the guilt established. 12. The point: The accused is the father of the victim girl and she was living in a Child Care Home along with her younger sister, after the death of their mother. The victim girl and her sister used to be taken to their house by the accused during their vacations. They were taken to their house by the accused during September, 2011 and December, 2013. These facts are not in dispute. 13. The prosecution is relying on the oral testimony of the victim girl as also the evidence tendered by PW2, PW3, PW4, PW7 and PW11 and Exts.P2, P7, P9 and P20 to establish the guilt of the accused. 14. It is trite that a conviction can be found on the testimony of a prosecutrix alone, in a case under Section 376 of IPC, unless there are compelling reasons for seeking corroboration [See **State of H.P. v. Asha Ram** , (2005) 13 SCC 766]. No doubt, the evidence of the prosecutrix in such cases is of a sterling quality. In **Rai Sandeep v. State (NCT of Delhi)** , 11 Crl.Appeal No.446 of 2018 (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 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 missing link in the chain of circumstances to 12 Crl.Appeal No.446 of 2018 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 a witness whose evidence is natural and consistent with the case of the prosecution _qua_ the accused and 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 case 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 13 Crl.Appeal No.446 of 2018 remain intact while all other attendant materials, namely, oral, documentary, and material objects should match the said version in material particulars. 15. Keeping in mind the principles aforesaid, let us now consider the evidence tendered by PW1, the victim girl. The victim girl was aged 14 years at the time when she gave evidence. She deposed that she was living with her younger sister in the Child Care Home as her father was unable to look after them after the death of their mother and that they were permitted to go to their house only during holidays. She deposed that during September 2011 when the accused took them to their house, the accused slept by her side, dragged her towards him, removed her clothes and touched her private parts. PW1 deposed that when she cried owing to pain, the accused left her and that she felt something entering her private part and it was then that she started crying. She deposed that the accused repeated the said acts on the subsequent days as well. PW1 deposed that the accused took her again on 19.12.2013 to his brother's house and on that day, when she was sleeping on the floor, the accused came 14 Crl.Appeal No.446 of 2018 near her, touched her body, forcefully undressed her and inserted his genital organ into her vagina. PW1 deposed that when she cried due to pain, the accused asked her not to make noise and threatened her that if she informs any one, she would be killed and that he would commit suicide. PW1 deposed that on the next day the accused took her to the house of one of their relatives and later to their own house. She deposed that the accused repeated the same acts on the following days also. PW1 deposed that she did not reveal the above incidents to any one, due to the threat posed by the accused. PW1 deposed that a few days later, she was told by PW2, the care taker in the Child Care Home who used to sleep with her, that she made some utterances about the assaults committed by the accused on the previous night in her sleep and when PW2 enquired the reason for the same, PW1 revealed to PW2, the assaults committed on her by the accused. PW1 deposed that on the following day, as she was found moody in the class, PW3 enquired with her the reason for the same and on enquiry, PW1 revealed the incidents to her as well. PW1 deposed that she was then taken by PW3 to PW4 15 Crl.Appeal No.446 of 2018 and she narrated the incidents to PW4 too. She deposed that thereafter, a few persons from the child help line made enquiries with her as regards the incidents and she was thereupon shifted to Mahila Mandiram. PW1 deposed that she gave Ext.P20 First Information Statement to PW13 and later Ext.P2 statement in Court. 16. As noted, the prosecution case consists of a series of sexual assaults that took place during September, 2011 as also during December, 2013. As rightly pointed out by the learned counsel for the accused, there are a few omissions in Ext.P20 First Information Statement as regards the occurrences alleged to have taken place during September, 2011. In Ext.P20, the version of the victim girl as regards the occurrences alleged to have taken place during September, 2011 reads thus: "ഞ�ൻ 5-)0 ക�സ�ൽ പഠ�കന സമയ� ഓണ�വധ�ക� (2011- സസപ���ബർ) എസനയ� അന�യത�സയയ� അചൻ വ ട�ല#യ� കട�സ&�ണലപ�യ�. അന ര�ത� ഞ�നറങ�ക�ടകന സമയത� എസ/ ല0ഹത� ആലര�പ�ട�കനത�യ� ലത�ന�. ഞ�ൻ സഞട�ത�ര�ഞ� ലന�ക�യല5�ൾ അചൻ എലന�ട� "മ�ണ�സത &�ടനറങ�ലക�" എന . പറഞ�ട� എസന സ&ട�5�ട�ച&�ടന ര�വ�സ# ഉണർനല5�ൾ എസ/ ല0ഹത� ഡസസ�ന� ഉണ�യ�രന�ല. എന�കന� ല0ഹ� മഴവൻ ഭയങര ലവ0നയ�യ�രന. അചസനന�ണ� . സBയസതനറ�യ�ല ഞ�ൻ അചലന�സട�5� എസ/ വ ട�ലണ�യ�രന 0�വസങള�സ#ല�� അചസനലന�ട� ഇങസനതസനയ�ണ� സപരമ�റ�യത�.” 16 Crl.Appeal No.446 of 2018 However, while giving evidence as PW1, the victim girl has also stated that she felt something being inserted into her private part and it is on account of the said reason that she started crying. The relevant portion of the deposition of PW1 in this regard reads thus: " ഞങൾ ഉറങ�യ ലGഷ� എസ/ അടത� ആലര� വന� &�ടകനത�യ� ലത�ന�. ഞ�ൻ സപസടന� സഞട� ത�ര�ഞ ലന�കലK�ൾ അത� അചന�ണ� എന� മനസ�#�യ�. ഞ�ൻ . . അചലന�ട� തറയ�ൽ ലപ�യ�&�ടക�ൻ പറഞ അചൻ എസ/ അടത� &�ടക&യ�യ�രന . അചൻ എലന�ട� മ�ണ�സത &�ടക�ൻ പറഞ അചൻ എസന അചസ/ അടലതയ� . ലBർത� &�ടത�യല5�ൾ ഞ�ൻ അചസ/ ക& തട� മ��� അചലന�ട� ഞ�ൻ എഴലന�� ലപ�വ�ൻ പറഞ. അചൻ എസ/ dress അഴ�ച. അചൻ എസ/ സനഞ�ല�, മതസമ�ഴ�കന ഭ�ഗത� സത�ട. എന�ക� ലവ0ന എടത. ഞ�ൻ &രഞല5�ൾ അചൻ . എഴലന�� ലപ�യ� ആ0T� എസ/ മതസമ�ഴ�കന ഭ�ഗത� &ട�യള എലന� സ�ധന� &യറ� ലപ�വനതലപ�സ# ലത�ന�. അല5�ഴ�ണ� എന�ക� ലവ0ന�ക&യ� &രയ&യ� സBയത�. പ�ന ടള എല� 0�വസങള�ല� എസന ലമൽ പറഞ പ&�ര� അചൻ ഉപദവ�ച�രന” .” That apart, in Ex.P2 statement given by the victim girl under Section 164 of the Code, even though she has only generally stated therein that the accused used to commit sexual assaults on her during vacations and even though she referred to the occurrences that took place during December, 2013, she has not specifically referred to the occurrences alleged to have taken place during September, 2011. Even though the 17 Crl.Appeal No.446 of 2018 aforesaid omission has not been proved by the accused in accordance with the procedure prescribed for the same, inasmuch as the victim girl was only expressing what she felt on the relevant day, while giving the improved version, we are of the view that it may not be safe to hold that the accused has committed rape on the victim girl during September, 2011. We take this view also having regard to the fact that it has come out in evidence that the victim girl has gone to her house with the accused on several occasions after 2011 as also 2013 and she has not complained about any sexual assaults till January, 2014. 17. Be that as it may, coming to the occurrences alleged to have taken place during December, 2013, the evidence of the victim girl in court appeared to us to be natural and consistent with the case of the prosecution. As noted, the victim girl was aged 14 years and had already attained puberty before giving evidence in the case. Even though the victim girl was cross-examined on every aspect of her evidence, it appeared to us that she gave matured replies to all questions put to her and she has not created any situation which would 18 Crl.Appeal No.446 of 2018 cast doubt on the veracity of her evidence on the core aspect of the case. A reading of the cross-examination of the victim girl would show that she was aware of the seriousness of the matter she was dealing with in court and was very firm in her stand. We draw the said inference from the manner in which she handled complex questions put to her by the learned counsel for the accused during cross-examination. The only suggestion put to the victim girl by the learned counsel for the accused for having given evidence of this nature against her own father, is that she was giving evidence as instructed by someone else. We are unable to accept the said stand of the accused, as no girl in the age group of the victim girl would give evidence in the nature of one given by her against her own father, even if someone instructs her to do so, whatever be the consideration. We take this view also for the reason that the stand of the victim girl all throughout the evidence that she has no one other than her father to take care of her since her mother is no more, is consistent. 18. Let us now see the nature of the remaining evidence let in by the prosecution. PW2 deposed that during 19 Crl.Appeal No.446 of 2018 December 2013 vacation, even though the victim girl was reluctant to go to her house, as the accused informed PW2 that the victim girl has to be taken to a doctor for treatment, she permitted the accused to take the victim girl home on 19.12.2013. PW2 deposed that they came back to the Child Care Home on 30.12.2013. PW2 deposed that one day thereafter she heard the victim girl making some utterances in her sleep as regards the assaults committed by the accused, and when PW2 enquired about the same on the next day, the victim girl disclosed that the accused used to assault her sexually during vacations and that she has not divulged the same to anyone as he threatened her that she will be done away with, if she discloses the same to anyone. PW2 deposed that later on the same day PW3 required to meet her in the school and when she met PW3 in the school, PW3 informed her that the victim girl is disturbed and that she needs counselling. PW2 deposed that she was asked to come to the school again on the next day and on the next day namely 18.12.2013, when she went to the school, PW3 and PW4 talked to the victim girl in her presence and the victim girl divulged to them the sexual 20 Crl.Appeal No.446 of 2018 assaults committed by the accused on her. She deposed that the victim girl was thereafter shifted to the Mahila Mandiram. 19. PW3 deposed that when the victim girl came to the school after the 2013 Christmas holidays, she found her to be disturbed, and when she enquired with her the reason, the victim girl did not disclose the same. PW3 deposed that she had therefore given a counselling to the victim girl on 17.01.2014 and that she was not answering the questions, but only weeping in the course of the counselling. PW3 deposed that as she found that the victim girl was mentally disturbed, she required PW2 to come to the school. She deposed that PW2 came to the school on the next day and when she informed PW2 that the victim girl is mentally disturbed, PW2 told her that she also noticed the same and informed PW3 that the victim girl was making some utterances while sleeping. PW3 deposed that the matter was accordingly informed to PW4 and the Principal of the school and as directed by the latter, PW2 was required to be present in the school again on the next day and on that day, when PW3 talked to the victim girl in the presence of PW2 and PW4, the victim girl disclosed to them 21 Crl.Appeal No.446 of 2018 that the accused was committing sexual assaults on her from the year 2011. PW3 deposed that the victim girl has informed her that the accused has committed sexual assaults on her during 2013 December vacation also. She deposed that thereupon the principal of the college informed the matter to the child help line officials and also to the officials of Mahila Mandiram which was running the Child Care Home. She deposed that she had talked to the victim girl again during afternoon on that day at the Child Care Home in the presence of PW2, PW4 and PW7 and then the victim girl had told them that she did not divulge the incidents owing to the threat of the accused. 20. PW4 deposed that PW3 had informed her on 17.01.2014 about the victim girl and that a counselling was conducted for her on the next day in the presence of PW2 and PW3. PW4 deposed that in the course of the counselling, the victim girl divulged to her that the accused committed sexual assaults on her on several occasions. PW4 deposed that she had talked to the victim girl on that day afternoon at the Child Care Home in the presence of PW2, PW3 and PW7 also and she 22 Crl.Appeal No.446 of 2018 revealed to them about the sexual assaults committed by the accused at that time also. 21. PW7 deposed that on 18.01.2014 she had talked to the victim girl on receiving information from the school that she was subjected to sexual assaults by the accused, and the victim girl informed her that the accused has been assaulting her sexually since 2011 September vacation onwards. PW7 deposed that the victim girl has also informed her that the accused had threatened to kill her and to commit suicide, if she discloses the same to anyone. PW7 deposed that she reported the matter to the Child Welfare Committee and the victim girl was accordingly shifted to Mahila Mandiram on 20.01.2014 and the matter was informed to the Police. 22. As noted, Pws.2, 3, 4 and 7 were examined by the prosecution to prove the sequence of events that took place after the victim girl was dropped back by the accused at the Child Care Home on 30.12.2013. Even though there were a few trivial discrepancies in the evidence tendered by the said witnesses, especially, the evidence tendered by PW2, the care taker of the Child Care Home, the evidence tendered by the 23 Crl.Appeal No.446 of 2018 said witnesses as regards the various events that took place after 30.12.2013 up to the registration of the crime, have not been discredited by the accused in their cross-examination. There was no suggestion from the side of the accused as regards PWs.3, 4 and 7 for having tendered evidence in the case in the manner aforesaid. Of course, there was a suggestion to PW2 that she borrowed some money from the accused and it is to avoid repayment of the same that she made the victim girl to give evidence against him in the case. Having regard to the totality of the facts and circumstances of the case, we are not impressed by the defence aforesaid attempted to be set up by the accused, as it is PW3 who found out from the victim girl that she was subjected to sexual assaults by the accused and PW2 had no role in it, except supporting the evidence of PW3 that victim girl made some utterances on the previous day night while sleeping. 23. PW11 deposed that on 20.01.2014, she examined the victim girl and issued Ext.P9 certificate. She deposed that she was informed by the victim girl that her father used to commit sexual assault on her when she was 24 Crl.Appeal No.446 of 2018 taken home during vacations and that the last of such assaults took place during December, 2013. PW11 deposed that on examination, she found the hymen of the victim torn and it is based on the information furnished to her by the victim girl and the physical examination conducted on the victim girl that PW11 certified in Ext.P9 that there is evidence of past vaginal penetration. The evidence tendered by PW11 also corroborates fully the case spoken to by the victim girl. 24. In the light of the discussion aforesaid, we are of the view that the victim girl can certainly be regarded as a sterling witness and the trial court was justified in holding that the accused is guilty of the offences punishable under Section 376 of IPC and Section 4 of the POCSO Act for the occurrences that took place during December, 2013. 25. As noted, the first and foremost argument advanced by the learned counsel for the accused was that the charges in respect of the first episode of the occurrences that took place during September, 2011 and second episode of the occurrences that took place during December, 2013 could not have been clubbed together in the light of the mandatory 25 Crl.Appeal No.446 of 2018 provision contained in Section 218 of the Code, especially since the amendment to Section 376 of IPC to its present form and the introduction of the POCSO Act were much after the first episode of the occurrences, and the trial in the case is therefore vitiated. Section 464 of the Code provides categorically that no finding, sentence or order by a court of competent jurisdiction shall be deemed to be invalid merely on the ground of any error, omission or irregularity in the charge including misjoinder of charges unless, in the opinion of the court of appeal, a failure of justice has in fact been occasioned thereby. Assuming that there was a legal impediment in clubbing the charges in respect of the occurrences that took place during September, 2011 and during December, 2013, in the light of the provision contained in Section 464 of the Code, the trial cannot be said to be vitiated on account of the same, since the accused has no case that a failure of justice has occasioned on account of the same. We take this view also for the reason that we have not affirmed the finding rendered by the trial court that the accused has committed rape on the 26 Crl.Appeal No.446 of 2018 victim girl during September, 2011. The argument aforesaid is, therefore, rejected. 26. As noted above, we have not affirmed the finding rendered by the trial court that the accused has committed rape on the victim girl during September, 2011. As evident from the sequence of events narrated by the victim girl as also the remaining witnesses whose evidence have been referred to in the preceding paragraphs, we do not think that there is any delay at all in lodging the First Information Report so as to doubt the genuineness of the case. The circumstances of the case afford sufficient explanation for the delay on the part of the victim girl in disclosing the occurrences to others and the delay of a few days on their part in reporting the matter to the police. We have given our reasons for holding that the victim girl can certainly be regarded as a sterling witness and we do not find that the various circumstances pointed out by the learned counsel for the accused are reasons sufficient to change the said stand. We have already found that the evidence tendered by PW2, PW3 and PW4 were not discredited in any manner by the accused insofar as the same 27 Crl.Appeal No.446 of 2018 relates to the sequence of events spoken by them from 30.12.2013 to 20.01.2014 and we do not, therefore, find any substance in the arguments advanced by the learned counsel as regards the acceptability of their evidence. Similarly, we do not find any merit in the argument advanced by the learned counsel for the accused that there is no medical evidence to fit in the allegation of rape. Merely for the reason that no injury was noted by the doctor on the body of the victim girl at the time of medical examination, it cannot be inferred that she was not subjected to sexual assault when there is other evidence which would establish beyond doubt the possibility of sexual assaults on her. There is also no substance in the argument that merely for the reason that PW11 has not given a final opinion, her evidence in court that she found evidence of past vaginal penetration on examining the victim girl is not worthy of any credit. Similarly, we do not find any merit in the argument advanced by the learned counsel that the nonexamination of the sister and maternal grandmother of the victim girl is fatal to the prosecution case, especially in the peculiar facts of this case. 28 Crl.Appeal No.446 of 2018 27. Even though the learned counsel for the accused persuasively argued that the sentence imposed on the accused is grossly disproportionate to the gravity of the offences, having regard to the facts and circumstances of the case, especially the fact that the accused is none other than the father of the victim girl, we find that the sentence imposed on the accused cannot be said to be not proportionate to the gravity of the offences. In the result, the appeal is dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 02.06.2023