Muhammed s/o Umer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **CRL.A.No.875 of 2015** **AGAINST THE JUDGMENT IN SC 112/2013 of ADDITIONAL SESSIONS COURT - II, KALPETTA DATED 12-06-2015** **CRIME NO.111/2013 OF Kambalakkad Police Station, Wayanad** ## **APPELLANT:** **MUHAMMED, S/O.UMMER, C.NO.484/15, CENTRAL PRISON, KANNUR** **BY ADV. ADV. ANANDAN PILLAI (STATE BRIEF)** ## **RESPONDENT:** **STATE OF KERALA, (KAMBALAKKAD POLICE STATION) CRIME NO.111/2013.** **BY ADVS. SR.PP SRI.K.B.UDAYAKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON 10.07.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.875/15 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the verdict of the Sessions Judge, Kalpetta, Wayanadu by which the appellant who is the sole accused in the case is found guilty for offences under Sections 366, 376 (2)(i) of the Indian Penal Code, 1860 (for brevity 'IPC') and also for offence under Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and was sentenced to suffer rigorous imprisonment for five years and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) for offence under Section 366 of I.P.C.; also sentenced to undergo imprisonment for life which shall mean imprisonment for the remainder of the appellant's natural life and to pay a fine of `1,00,000/- (Rupees One Lakh only) for offence under Section 376 (2)(i) of I.P.C. Entire fine amount was directed to be realized from the assets of the appellant as per Section 421 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). No separate punishment was awarded for offence under Section 5(m) read with Section 6 of POCSO Act. Crl.Appeal No.875/15 -:3:- Fine amount, if realized, was directed to be paid to victim (PW2) as compensation under Section 357(1) of Cr.P.C. 2. Case of the prosecution is that on 31/03/2013 at about 04.00 p.m., appellant had kidnapped victim (PW2), who was aged seven years at that time, from the lawful guardianship of her parents from their house to the house of the appellant bearing door no.XV/550, Kaniyambetta Grama Panchayath, with the intention to have illicit intercourse with her and committed rape on her. During the process, the appellant also committed aggravated penetrative sexual assault on the victim. 3. To prove allegations, prosecution examined PW1 to PW10 as witnesses, marked Exts.P1 to P11 documents and got identified MO1 to MO3 as material objects. After closure of prosecution evidence, the appellant was questioned under Section 313 of Cr.P.C. He denied the commission of the offence. No evidence was adduced from the side of defence. 4. Learned counsel for the appellant Sri.Anandan Pillai who was appointed as State Brief engagement argued that the case against the appellant is not proved beyond reasonable doubt. There is no eyewitness to the incident. The age of the Crl.Appeal No.875/15 -:4:- victim is not proved. There is absolutely no evidence to show that the appellant was available in his house or that the victim came to the house of the appellant. There is delay in registering the case which shows that there is fabrication. The family of the victim was on inimical terms with the appellant and they have falsely implicated the appellant. Admittedly, the father of the victim is working as a U.D. Clerk in the office of the Superintendent of Police. The appellant is falsely implicated. Moreover, even if we go by the case of the prosecution, Section 366 of I.P.C. is not at all attracted in this case. He pleaded to acquit the appellant by extending benefit of doubt. 5. On the other hand, learned counsel for the State, Sri.K.B.Udayakumar argued that the case of the prosecution is proved beyond reasonable doubt. Court below is perfectly justified in placing reliance on the evidence of PW2 who is the victim herein. PW1 corroborates her version. FIR was registered without much delay. Medical evidence fully corroborated the evidence of PW2. Ext.P11 is the Forensic Science Laboratory report proved through PW10. It shows that MO1 to MO3 which are dress including undergarments of PW2 was stained with semen. Crl.Appeal No.875/15 -:5:- The case is grave and the punishment is commensurate with the gravity of the crime. He pleaded to dismiss the appeal. 6. Evidence adduced by the prosecution, for short, are as follows: PW1 is the mother of the victim. PW2 is the victim. PW3 is a neighbour who is an attestor to Ext.P3 scene mahazar and Ext.P3 seizure mahazar for the seizure of MO1 to MO3 dresses of the victim girl. PW4 is the Doctor who examined the victim on 01/04/2013 and Ext.P4 is the report. PW5 is the Doctor who examined the appellant/accused on 01/04/2013. He issued Ext.P5 report showing potency of the appellant. PW6 proved Ext.P6 ownership certificate of the house of the appellant. PW7 is the Village Officer who prepared Ext.P7 site plan. PW8 is the Registrar of Births and Deaths and Ext.P8 is the birth certificate of the victim. PW9 is the Sub Inspector of Police who registered Ext.P1 FIR based on Ext.P1 statement of PW1 on 01/04/2013 at 12.05 a.m. PW10 is the Circle Inspector of Police who investigated the case, completed investigation and laid charge-sheet. 7. Court below came to a conclusion that the victim herein was subjected to rape and it is the appellant herein who Crl.Appeal No.875/15 -:6:- committed the said aggression on the victim. We are to decide whether the Court below is justified in convicting the appellant in the backdrop of available evidence. To decide the matter, it is essential to look into the evidence in detail. 8. PW2 is the victim. She deposed before Court that she was studying in 2[nd] Standard at the time of incident. The incident happened during vacation. She does not remember the date of incident, but it was at 04.00 p.m. PW1 is her mother. The appellant is her neighbour and she calls him Muhammedikka. She was playing ball in front of the house of Muhammedikka. Her brother took cycle and went out. He went along with Shefeek ikkaakka in another cycle. Appellant Muhammedikka told her that he would give her candies and called her inside. She went inside the house. Cartoon was played in the T.V for her. He asked her to stand by placing her hand down on the floor. She stood so. Appellant removed her pants and underwear. He penetrated the organ through which he passes urine into the organ by which she passes urine and also on her back. A white-coloured thing is stained on her body as well as dress. She herself put on the dress. She went to her home crying. As she reached the house, Crl.Appeal No.875/15 -:7:- her mother (PW1) asked her why she was crying. Then she explained what Muhammedikka had done. It is her version that earlier twice, Muhammedikka fingered at her vagina. She identified MO1 to MO3 as dresses she was wearing at the relevant time. She told the details to Doctor as well. She also showed the place of occurrence to police and gave statement. During cross-examination, she stated that there was nobody else in the house of the appellant at the time of incident. 9. PW1 is the mother of the victim. She deposed that she is residing at Mandakamoola, Kaniyambatta. At the time of incident, her daughter was only seven years of age. During the relevant time, herself, her husband and their son and daughter were residing in their house. The appellant who is standing in the dock is her neighbour. The incident happened on 31/03/2013. On that day, herself and her daughter alone were there in the house. By evening 04.00, while she was sitting in the sit out of her house, she saw her mother coming from the house of the appellant crying. The house of the appellant was at a visible distance. Her daughter went to the house of the appellant after lunch for playing. As the child was coming crying, PW1 heard the Crl.Appeal No.875/15 -:8:- appellant calling the child from his bathroom. PW1 asked her daughter why she was crying. PW2 her daughter replied that Muhammedikka had done something to her. PW1 asked her what he had done. Then PW2 told PW1 as follows: "ഞഞാൻ മൂത്രമമഞാഴഴിയ്ക്കുന്ന സ്ഥലതത്ത് മുഹമ്മദഴികഞാമന്റെ മൂത്രമമഞാഴഴിക്കുന്ന സഞാധനന മകഞാണത്ത് കുതഴി". PW1 removed the pants and undergarments of PW2 and found semen spread on the underwear and at buttock area. She removed the dress and cleansed her daughter using soap. She informed the matter to her husband. As per the direction of her husband, she informed the matter to her brother. Herself, her brother and PW2 went to Leo Hospital. Doctor told her that there is not much injury deep inside and advised them to show the victim to a Government Hospital. They came back to Kumbalakkadu Police Station. Written complaint was lodged. Ext.P1 is the said complaint which was signed by her. On next day morning, the victim was taken to District Hospital, Mananthavady. At the time of incident, her daughter was wearing a green pants, maroon undergarment and white top. She handed over those dresses to police. She identified them as MO1 to MO3. PW2 told her that the incident happened inside the house of the appellant. Crl.Appeal No.875/15 -:9:- During cross-examination, it is brought out that PW1 did not state to police that her daughter had told her that the accused penetrated the organ through which he passes urine into the organ by which PW2 passes urine. She also admitted that her husband is working in S.P office as U.D. Clerk. She denied the suggestion that she was in inimical terms with the appellant due to dispute over boundary of property. 10. PW4 is Dr.Nazeerabanu M.I. who examined PW2 who was aged seven years on 01/04/2013. Ext.P4 is the victim examination certificate issued by her. It bears her signature and seal. It is her version that PW2 was brought with allegation of sexual assault on 31/03/2013. On examination, hymen was found torn posteriorly. No fresh tear was seen. Superficial abrasions two in number over the posterior wall of the outlet was noticed. PW4 opined that there is evidence of sexual assault. She further stated that from the finding she could say that partial penetration had taken place. According to her, there is also possibility of inserting finger in the vagina. Child had given the history of putting finger in her vagina on the previous day and many occasions previously. In cross-examination, she stated that her report is not a final Crl.Appeal No.875/15 -:10:- opinion. 11. PW5 is Dr.Arun Ajay who examined the appellant on 01/04/2013. He conducted potency test on him. Ext.P5 is the potency certificate issued by him. He deposed that there is nothing to show that the appellant was incapable of performing sexual act. 12. Perusal of evidence on record would show that the following facts are proved beyond reasonable doubt in this case: i. The appellant and PW2 were neighbours. - ii. On 31/03/2013, after lunch time, PW2 was playing in front of the house of the appellant with her brother and Shefeek. iii. On 31/03/2013 at 04.00 p.m., after her brother and Shefeek left the place in two cycles, the appellant called her into his house by saying that he would give her candies. PW2 went into his house and then the appellant took her to his bathroom. She was made to remove her dresses including undergarment and to stand in a bending position with her hands down on the floor. Thereafter, the appellant inserted his penis into her vagina and back. Her body and undergarments were got wet by a white thing. She put on Crl.Appeal No.875/15 -:11:- her dress and went out of the house crying. - iv. PW2 proceeded to her house crying. PW1 her mother asked her what had happened and she told what the appellant had done to her while she was inside his house. - v. PW2 was taken to the hospital by PW1 and her brother. PW1 gave Ext.P1 FIS to police on 01/04/2013 at 12.05 a.m. based on which Ext.P9 FIR was registered. - vi. On 01/04/2013 at 04.10 p.m., PW2 was examined by PW4 and Ext.P4 is the victim examination report. PW4 opined that there is evidence of sexual assault pending chemical analysis report. - vii. On 01/04/2013 at 05.00 p.m., the appellant was examined by PW5 Dr.Arun Ajay and Ext.P5 is the potency certificate issued by him. He deposed that the appellant is capable of performing sexual acts. - viii. MO1 to MO3 are the dresses seized as per Ext.P3 mahazar. They were sent for chemical examination and Ext.P11 is the FSL report. In Ext.P11, item nos.1 and 3 are the pants and underwear of the prosecutrix. The report shows that both of them contained human spermatozoa and Crl.Appeal No.875/15 -:12:- semen. 13. It is settled law that evidence of prosecutrix stands on equal footing with that of injured witness. If her testimony inspires confidence, even corroboration is not necessary. Court can act upon her sole testimony. Learned Senior Public Prosecutor placed reliance on the decision of the Apex Court in _**Wahid Khan v. State of Madhya Pradesh**_ (AIR 2010 SC 1) to emphasize that even slightest penetration is sufficient to make out offence of rape and depth of penetration is immaterial. In this case, we do not find any reason to disbelieve the version of PW2. She deposed in categoric terms that it was the appellant who committed the sexual perversion on her. She deposed in her own words as to what the appellant had done on her. Immediately after the incident, she came to her mother crying and told the matter which is admissible as _res gestae_ under Section 6 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). Testimony of PW2 is corroborated by PW1 to that extent. Ext.P1 is given without much delay and it is relevant. Medical evidence tendered by PW4 proves that the minor girl was subjected to sexual penetration. PW5 deposed that the appellant is found capable of Crl.Appeal No.875/15 -:13:- doing sexual acts. Semen and human spermatozoa is detected in the pants and undergarment of PW2. All these evidence clearly establish the guilt of the appellant as far as offence under Section 376(2)(i) is concerned. It is also proved that the appellant deceitfully induced the minor girl to come into his house from the place where she was playing, by offering candies. Abduction is complete the moment PW2 moved from the place where she was playing. Subsequent events as detailed above shows the purpose for which the minor girl was so abducted by the appellant. It is proved that she was subsequently forced or seduced to illicit sexual intercourse by the appellant. Hence, he is liable to be punished for offence under Section 366 of I.P.C. as well. 14. Learned counsel for the appellant argued that a lenient view may be taken as far as the quantum of punishment is concerned. No violent act was done by the appellant. Prosecution case is not free from shadow of doubt. No DNA examination was conducted. He pleaded for reducing the sentence atleast to the extent that his sentence may be converted to one of life imprisonment alone and avoid the directive to remain in jail till the end of his life. But we do not find any reason to interfere in Crl.Appeal No.875/15 -:14:- the order of sentence passed by the learned Sessions Judge. Recent statutory changes made in I.P.C. and POCSO Act by the Parliament in its wisdom and the contemporary developments in society warrants stricter measures when an offence against children of tender age is proved. In this case, the appellant was 56 years of age and the victim was only 7 years at the time of incident. Appellant transgressed into the very soul of this innocent child. How this perversity might have impacted her and her family and the society at large is beyond imagination. In the result, the appeal is liable to be dismissed and we do the same. ## **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR JUDGE**