Muhammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 CRL.A NO. 194 OF 2019** **AGAINST THE JUDGMENT IN SC 601/2016 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST CHILDREN (ADDITIONAL SESSIONS COURT-1) MANJERI DATED 20/2/2018** ## **APPELLANT/ACCUSED (IN JAIL):** MUHAMMED AGED 54 YEARS S/O AZEEZ,C.NO 616/2017,CENTRAL PRISON AND CORRECTIONAL HOME,PALLIKKUNNU,KANNUR 670004 BY ADV BINOY KRISHNA P M (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY GOVERNMENT PLEADER 2 STATE REPT BY INSPECTOR OF POLICE, VALANCHERY. ## **OTHER PRESENT:** SMT SHEEBA THOMAS-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON 22.06.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.194/2019 ## -:2:- **==> picture [126 x 9] intentionally omitted <==** Dated this the 22[nd] day of June, 2022 This appeal has been preferred under Sections 374(2) and 383 of the Code of Criminal Procedure by the accused in S.C. No. 601/2016 on the file of the Special Court for the Trial of Offences Against Children (Additional Sessions Court – I), Manjeri (for short, the court below) challenging the judgment of conviction and sentence dated 20[th] February, 2018. 2. The accused faced trial for the offence punishable under Section 376(2)(i)(k)(n) of the IPC, Section 5(l) r/w 6 of the Protection of Children from Sexual Offences Act (for short, POCSO Act) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, the JJ Act). 3. The victim was a minor girl aged 12 years at the time of the incident. The accused is a neighbour of the victim. The prosecution case in short is that on 02.04.2016 at about 2 p.m. and for about 3 months before that date, the accused had subjected the victim to sexual abuse in the bedroom of his Crl.Appeal No.194/2019 ## -:3:- quarters at Puthanathani. 4. The crime was registered on the basis of Ext. P5 statement given by the mother of the victim to the Sub Inspector of Police, Kalpakanchery. After completing the investigation, the final report was filed at the Court of Sessions, Manjeri and was made over to the court below under the orders of Sessions Judge. 5. Though the accused was granted bail in crime stage, he was in remand in relation with the crime of sexual abuse committed by him against the sister of the victim in the present case. He was produced at the court below on production warrant. After hearing both sides, the court below framed the charge against the accused under Section 376(2)(i)(k)(n) of the IPC, Section 5(l) r/w 6 of the POCSO Act and Section 75 of the JJ Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW14 and marked Exts. P1 to P15. MO1 to MO3 were identified. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Section 9(l) r/w 10 of the POCSO Act and he was convicted for the said offence. He was found not guilty for the offence Crl.Appeal No.194/2019 -:4:- punishable under Section 376(2)(i)(k)(n) of the IPC, Section 5(l) r/w 6 of the POCSO Act and Section 75 of the JJ Act and he was acquitted for the said offences. The accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/-, in default to suffer simple imprisonment for one month under Section 9(l) r/w 10 of the POCSO Act. Challenging the said conviction and sentence, this appeal has been preferred. 6. Since the appellant is not represented by a lawyer, this court appointed Adv. Binoy Krishna P.M. as State Brief. I place on record the able assistance rendered by him. 7. I have heard Sri. Binoy Krishna P.M., the learned counsel appearing for the appellant and Smt. Sheeba Thomas, the learned Public Prosecutor. 8. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and resultant finding as to the guilt. The counsel submitted that the conviction is based on the uncorroborated testimony of the child witness which suffers from contradictions and omissions. The counsel further submitted that there is delay in lodging the FIR, the benefit of which should go to the accused. The learned Crl.Appeal No.194/2019 -:5:- counsel also submitted that there is no medical evidence to support the case of penetrative sexual assault and there are also no external injuries. Per contra, the learned Public Prosecutor, Smt. Sheeba Thomas supported the findings and verdict handed down by the court below and argued that the prosecution has succeeded in establishing and proving the case beyond reasonable doubt. 9. The prosecution mainly relied on the evidence of PWs 5, 6 and 10 to prove the incident and to fix the culpability on the accused. PW6 is the victim. PW5 is the mother of the victim who gave Ext. P5 statement and PW10 is the CDS Chairperson, Perumanna – Klari Panchayath. 10. PW6, the victim girl child, deposed that her date of birth is 22.04.2004 and she did not go to school after her 3[rd] standard as she had to look after her younger brother. She referred to the accused as Muhammed Kakka. She alleged that he put his sexual organ into her sexual organ, caught her chest and kissed on her lips. She further deposed that the accused used to put clothes in her mouth when she cried out in pain while he was doing such things on her and the accused had done like this on 5- Crl.Appeal No.194/2019 -:6:- 8 days when his wife was not there. She also deposed that when she had pain in her private parts, she told the same to her mother and mother bought ointment and applied it and she narrated the entire incident to her mother, who then informed the matter to the police. She identified MO1 to MO3 as her clothes. 11. PW5, the mother of the victim gave evidence that, the victim is her second child and her children used to go to the house of the accused. On a day in March 2016, on seeing her another daughter aged only 6 years coming from the house of the accused with sweets, when she asked the child about that, the child narrated the sexual abuse committed by the accused to her. At that time, PW6 told her that she had also suffered such violations at the hands of the accused and she did not tell the same at the relevant time as she believed that PW5 would beat her. Then she contacted PW10 and her daughters were taken to Nirbhaya Shelter Home. 12. PW10 who is the CDS Chairperson, Perumanna – Klari Panchayath deposed that, she was called by PW10 over phone on 01.04.2016 evening and told her about the incident that her two daughters were sexually abused by the accused. Thereafter, Crl.Appeal No.194/2019 -:7:- PW10 went to the residence of PW5, met the children, then contacted the Child Line and shifted the children to Nirbhaya Shelter Home. 13. I have perused the evidence of PW6 meticulously. Even though she was cross-examined at length by the learned counsel for the accused, nothing tangible could be extracted from her to create any shadow of doubt that she is not a truthful witness. She clearly deposed the manner in which the accused assaulted her sexually. She gave a reliable, consistent, and credible version of the crime which inspires confidence. In the chief examination, she clearly deposed that the accused removed her clothes, caught her chest, kissed her on lips, put his sex organ into her sex organ and thrust clothes into her mouth when she cried out of pain. 14. It is settled that, the evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. It is equally settled that the statement of a child witness should be scrutinized with great care and caution. At the same time, it must be taken note of that, children by their inherent nature are honest. Corroboration of the testimony of the child witness is not a rule but a measure of caution and prudence Crl.Appeal No.194/2019 -:8:- is a well-accepted principle [See _**Hari Om v. State of Uttar Pradesh**_ [(2021) 4 SCC 345]. The court below has tested her competency and other ability to speak the truth and her capacity to swear and it was only after satisfying that she was capable of taking oath, it was administered to her and she was examined as a prosecution witness. There is absolutely no ground for doubting the veracity of the child witness, PW6. 15. The learned counsel for the accused submitted that the conviction was based on the sole evidence of the victim and no occurrence witness was examined. In _**State of Himachal Pradesh v. Asha Ram**_ (AIR 2006 SC 381), it was held that it is well within the limits to rest a conviction based on the sole testimony of the victim, whose evidence is more reliable than that of injured witness. In _**State of Punjab v. Gurmit Singh**_ [(1996) 2 SCC 384], the Apex court took the view that in cases involving sexual molestation, even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. It was further held that, the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, Crl.Appeal No.194/2019 -:9:- the case spoken of by the victim of sex crime strikes the judicial mind as probable. As per the evidence of PW6, the sexual assault was taken place at the quarters of the accused when there was nobody at the quarters. Thus, there cannot be an independent witness. The evidence of the victim is found to be genuine, credible and reliable. It can safely be relied on to prove the incident and to fix the culpability on the accused. That apart, the evidence of PW5 would show that, on hearing of the violations suffered by the sister of the victim, the victim narrated the entire incident to PW5. There is nothing to doubt the said evidence given by PW5. 16. The learned counsel for the appellant vehemently argued that, there is delay in reporting the matter to the police and lodging the FIR. The delay in sexual offence has to be viewed differently. The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the Crl.Appeal No.194/2019 -:10:- FIR. The delay becomes fatal only in a case when there is doubt as to the genesis or genuineness of the prosecution case and here, there is nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay. 17. The learned counsel for the appellant further submitted that there is animosity between PW5 and the accused, and on account of the said animosity, the petitioner was falsely implicated. But to substantiate the said plea, there is no convincing evidence. That apart, it is quite improbable to believe that on account of the animosity between PW5 and the accused, PW5, who is the mother, would make a false allegation of sexual assault on her daughters. 18. Lastly, the learned counsel for the appellant vehemently argued that there is no medical evidence to support the prosecution case. It is true that, PW2, the doctor who examined PW6 could not find any injuries on her and there is no evidence to suggest vaginal penetration. But here it is not a case of vaginal penetration and what is alleged is that the accused put his penis into the vagina of the victim child along with other acts Crl.Appeal No.194/2019 -:11:- of sexual abuse. In such an instance, the medical evidence is not needed to establish the guilt, on the other hand, evidence on record is sufficient to prove that the accused had sexually assaulted the victim. 19. It has come out in evidence that the accused is an aged person with no children and the alleged child abuse occurred when his wife was not there in the residence. There is consistency in the version regarding the overt acts done by the accused to PW6 in the first information statement, statement before the doctor and before the court. The victim child was brought from Nirbhaya Shelter Home to give evidence before court. As stated already, PW6 clearly deposed about the sexual abuse faced by her from the accused. The accused having repeatedly done such abusive acts on 12 year aged victim girl, it becomes aggravated sexual act as defined under Section 9(l) of the POCSO Act. Hence, presumption of guilt and sexual intent could be drawn against the accused. All these facts and circumstances would prove that the accused has committed the offence punishable under Section 9(l) r/w 10 of POCSO Act. Hence, I am of the view that the court below was absolutely Crl.Appeal No.194/2019 -:12:- justified in convicting the accused under the aforesaid provisions and no interference is called for on the said findings. 20. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-, in default to suffer simple imprisonment for one month under Section 9(l) r/w 10 of POCSO Act. Section 10 of POCSO Act prescribes punishment of imprisonment of either description for a term which shall not be less than five years and may extend to 10 years and shall also be liable to fine. The accused was sentenced only with the mandatory minimum period of punishment. Considering the entire facts and circumstances of the case, I am of the view that the sentence imposed by the Court below is absolutely reasonable. In the result, the conviction and the sentence passed by the Court below are confirmed. Accordingly, this criminal appeal stands dismissed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**