Muhammadali v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 CRL.A NO. 74 OF 2019** **AGAINST THE JUDGMENT DATED 21.11.2018 OF THE SPECIAL COURT FOR THE TRIAL OF OFFENCES UNDER POCSO ACT, THALASSERY IN SC 458/2013** ## **APPELLANT/ACCUSED:** MUHAMMADALI AGED 53 YEARS S/O.SULAIMAN HAJI, SEAEVEETTIL VAYENTE VALAPPIL HOUSE, ITTAMMAL, MADAYI, KANNUR DISTRICT. BY ADV T.V.JAYAKUMAR NAMBOODIRI ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C SMT BINDU O V- PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING: Crl.A.No.74/2019 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.A.No.74 of 2019 ------------------------------------Dated this the 24[th] day of September, 2021 ----------------------------------------------- ## **J U D G M E N T** The appellant is the sole accused in the case S.C.No. 458/2013 on the file of the Special Court for the trial of offences under the POCSO Act at Thalassery. 2. The appellant/accused challenges the judgment of the trial court in the above case, convicting and sentencing him for the offences under Sections 9(i) and 9(m) read with 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act'). 3. The prosecution case, in short, is as follows: The victim was a girl aged only five years at the time of the occurrence. On 11.01.2013, after reaching home from the school, she went to the house of the accused to play with his Crl.A.No.74/2019 3 daughter. Then, between 15:30 and 18:30 hours, the accused induced the victim girl and brought her inside his house on promising that he would give her ice cream. The accused then removed her panties and put his finger into her vagina and thus committed sexual assault on her. 4. PW1, the grandmother of the victim girl, gave Ext.P1 statement to the police on 16.01.2013 with regard to the incident. On the basis of that statement, Crime No.36/2013 of the Pazhayangadi Police Station was registered against the accused for the offences under Section 377 of the Indian Penal Code and Section 4 of the Act. 5. The victim girl was taken to the Medical College Hospital at Pariyaram on 16.01.2013. PW6 doctor examined her and issued Ext.P6 certificate. 6. After completing the investigation of the case, chargesheet was filed against the accused for the offences punishable under Section 377 of the Indian Penal Code and also under Section 3 read with 4 of the Act. Crl.A.No.74/2019 4 7. The trial court framed charge against the accused for the offences mentioned above. He pleaded not guilty and claimed to be tried. 8. The prosecution examined PW1 to PW11 and marked Exts.P1 to P11 documents and MO1 to MO3 material objects. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. No evidence was adduced by the accused. 9. The trial court found the accused not guilty of the offences punishable under Section 377 of the Indian Penal Code and Section 3 read with 4 of the Act and acquitted him of those offences. The trial court found the accused guilty of the offences punishable under Sections 9(i) and 9(m) read with 10 of the Act and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/- for the above offences and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. The trial court directed that, if the fine amount was realised, it shall be paid as compensation to the Crl.A.No.74/2019 5 victim girl through her grandmother. 10. This appeal is filed by the accused challenging the conviction entered against and the sentence imposed on him by the trial court as above. 11. Heard the learned counsel for the appellant and also the learned Public Prosecutor and perused the records. 12. Conviction of the accused by the trial court is challenged by the learned counsel on the following grounds: (1) There is unexplained delay in giving information regarding the incident to the police and it is fatal to the case of the prosecution. (2) The testimony of the victim girl is the result of tutoring and it cannot be relied upon. (3) The prosecution has suppressed the evidence of material witnesses. (4) Medical evidence does not fully support the prosecution case. 13. Out of the 11 witnesses examined by the prosecution, the material witnesses are PW1, PW2, PW5 and PW6. PW2 is the victim girl. PW1 is her grandmother. PW5 was the Attender in the hospital in which PW2 was at first examined by the doctor. PW6 is the doctor who examined PW2 at the Medical College Crl.A.No.74/2019 6 Hospital, Pariyaram and issued Ext.P6 certificate. 14. The testimony of PW1, PW2 and PW5 has been narrated in the judgment of the trial court. Therefore, it is not necessary to reproduce the same here. 15. The alleged incident was on 11.01.2013. PW1, the grandmother of the victim girl, gave Ext.P1 first information statement regarding the incident to the police on the evening of 16.01.2013. 16. Considering the nature of the case and the other facts and circumstances, delay of five days in reporting the matter to the police cannot be considered as inordinate delay. The mother of the victim girl was no more. Her father was residing separately in another house. PW1 and PW2 were the only persons who were residing in their house at the relevant time. PW1 was aged more than 60 years at the time of the alleged occurrence. She is a rustic village woman. These circumstances, by themselves, explain the delay in reporting the matter to the police. Crl.A.No.74/2019 7 17. Delay, per se, is not a mitigating circumstance for the accused in a case of sexual assault. Delay in lodging the F.I.R cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once there is explanation for the delay in lodging the F.I.R, the court is only to see whether such explanation is satisfactory or not. Mere delay in lodging the F.I.R does not in any way render the prosecution version brittle. 18. Moreover, when PW1 was in the witness box, no question was put to her in the cross-examination by the defence, with regard to the delay in reporting the matter to the police. When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. It is a settled legal proposition that in case question is not put to the witness in crossexamination who could furnish explanation on a particular point, the correctness or legality of the said fact/issue could not be raised (see **Paulmeli v. State of Tamil Nadu : (2014) 13 SCC** Crl.A.No.74/2019 8 ## **90** ). 19. I have carefully perused the testimony of PW2. When she gave evidence in the court, she was eleven years old. She has deposed that the accused removed her panties and touched on her vagina. At the end of her examination-in-chief, the trial court specifically asked a question to her, what was the act done by the accused. Then also, PW2 would only say that the accused touched on her vagina. She has not given any evidence that the accused committed any other act towards her or on her body. 20. On a careful scrutiny of the testimony of PW2, I find that there is no basis for the contention raised by the defence that she is a tutored witness. If she had been tutored by any person, she would have given evidence before the court in tune with the allegations raised against the accused by the prosecution or atleast she would have deposed in tune with the evidence given by PW1 before the court. The very fact that she did not give evidence in such manner indicates that her evidence is natural and it is not the result of tutoring. The testimony of PW2 does not contain any traces of tutoring. Crl.A.No.74/2019 9 21. On an anxious consideration of the testimony of PW2, I find no sufficient ground to disbelieve her statement that the accused removed her panties and touched on her vagina. There is an impression of truth in her evidence in this regard. 22. There is no basis for the contention of the accused that the prosecution has suppressed material evidence in not examining the two boys who were playing at the house of the accused. PW1 has deposed that, when she went to the house of the accused in search of PW2, two young boys were found playing there. They were not examined as witnesses by the prosecution. PW2 has not given any evidence that it was when she was playing with the two boys that the accused took her with him. Therefore, the boys who were playing in the compound of the house of the accused cannot be regarded as material witnesses. As rightly pointed out by the trial court, they were also not witnesses who had occasion to see the offensive act committed by the accused. Non-examination of such witnesses who had no occasion to witness the act committed by the accused is not a serious infirmity in the prosecution case (See Crl.A.No.74/2019 10 ## **State of Orissa v. Thakara Besra : AIR 2002 SC 1963** ). 23. PW1 has given evidence that, on 12.01.2013, she took PW2 to the Government Hospital at Muttam. Her evidence in that regard is corroborated by the testimony of PW5, the Attender in that hospital. PW1 has also stated that the doctor in that hospital examined PW2. It has come out in evidence that the doctor had made entries in the outpatient register. The doctor who examined PW2 in that hospital could not be examined by the prosecution because she was abroad at the time of the trial of the case. But the evidence of PW1 or PW5 cannot be a substitute for the evidence which could have been given by that doctor, regarding the injuries, if any, found on the private parts of PW2. The prosecution could have proved the entries in the outpatient register by examining another doctor who is acquainted with the handwriting or the signature of the doctor who made such entries. No such step was taken by the prosecution. The outpatient register seized by the investigating officer was not even produced before the court. Crl.A.No.74/2019 11 24. PW6 doctor had examined PW2 at 19.00 hours on 16.01.2013 at the Pariyaram Medical College and issued Ext.P6 certificate. She had noted the following injuries on PW2. (1) Healed laceration on hymen right side associated with pain. (2) Small laceration at junction of hymen and labia minora right side. (3) Laceration on the lower part of hymen. 25. Medical evidence, as mentioned above, has got not much significance in this case. The prosecution did not bring out, through the evidence of PW6, the age of the injuries found on the private part of PW2. The victim was examined by the doctor after five days of the alleged incident. Medical evidence with regard to such injuries, which was available on examination of the victim girl by a doctor on the next day of the incident, which could have been produced by the prosecution, was not produced. In such circumstances, in the absence of any substantive evidence given by the victim girl that the accused committed some act inflicting or causing injuries on her private parts, the medical evidence adduced as above by the prosecution pales into insignificance. Crl.A.No.74/2019 12 26. As noticed earlier, the only evidence given by PW2 against the accused is that he removed her panties and he touched on her vagina. In the absence of any substantive evidence to prove any other act committed by the accused causing injury on her private part or on any other part of her body, the accused is entitled to get the benefit of doubt in respect of the offence under Section 9(i) read with 10 of the Act. 27. However, the above finding does not provide any escape route for the accused. The evidence of PW2 establishes the fact that the accused removed her panties and touched on her vagina. Such an act by the accused amounts to sexual assault as defined under Section 7 of the Act. 28. Section 7 of the Act provides that, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The act of the accused touching on the vagina of PW2 after removing her panties amounts to Crl.A.No.74/2019 13 sexual assault as defined under Section 7 of the Act. 29. Section 9 of the Act narrates acts which amount to aggravated sexual assault. As per Section 9(m) of the Act, sexual assault on a child below 12 years amounts to aggravated sexual assault. 30. In the instant case, there is no dispute with regard to the fact that the victim girl was only five years old at the time of the occurrence. There is also Ext.P7 extract of the birth register which shows that her date of birth is 11.07.2007. It is established by the prosecution that the accused touched on the vagina of PW2, who was aged below 12 years. His act amounts to aggravated sexual assault which is punishable under Section 10 of the Act with a minimum sentence of imprisonment of five years. 31. The discussion above leads to the conclusion that the prosecution was not able to establish beyond reasonable doubt that the accused committed an offence punishable under Section 9(i) read with 10 of the Act. But, the prosecution could establish beyond reasonable doubt that he committed the offence Crl.A.No.74/2019 14 punishable under Section 9(m) read with 10 of the Act. 32. The trial court has imposed rigorous imprisonment for a period of seven years on the accused for the offences under Section 9(i) and (m) read with 10 of the Act. Considering the facts and circumstances of the case, the sentence of imprisonment imposed on the accused by the trial court for the offence under Section 9(m) read with 10 of the Act can be reduced to rigorous imprisonment for a period of five years. 33. The trial court has imposed a sentence of fine of Rs.50,000/- on the accused. The amount of fine imposed on the accused is excessive and it is liable to be reduced to Rs.10,000/-. 34. In the result, the appeal is allowed in part and it is ordered as follows: (i) Conviction of the appellant/accused by the trial court under Section 9(i) read with 10 of the Act is set aside. (ii) Conviction of the appellant/accused by the trial court under Section 9(m) read with 10 of the Act is confirmed. (iii) In supersession of the sentence imposed on the appellant/accused by the trial court, he is sentenced to undergo Crl.A.No.74/2019 15 rigorous imprisonment for a period of five years for the offence under Section 9(m) read with 10 of the Act. (iv) The sentence of fine imposed on the appellant/accused by the trial court is modified and reduced. He is sentenced to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of one month for the offence under Section 9(m) read with 10 of the Act. (v) The appellant/accused is entitled to get set off under Section 428 Cr.P.C. (vi) If the fine amount is realised, it shall be paid as compensation to PW1, for and on behalf of PW2. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/lsn