Muhammed v. State of Kerala and Inspector of Police, Valancheri

## **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. 193 OF 2019** **AGAINST THE JUDGMENT IN SC 462/2016 OF ADDL.DISTRICT & SESSIONS COURT- I, MANJERI** ## **APPELLANT/ACCUSED:** MUHAMMED AGED 55 YEARS S/O AZEEZ, C. NO 616/2017, CENTRAL PRISON, KANNUR BY ADV ADV.SUMITHA S (STATE BRIEF) ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2 STATE REPT. BY THE INSPECTOR OF POLICE, VALANCHERI BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN SMT.SHEEBA THOMAS THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON 22.06.2022DELIVERED THE FOLLOWING: Crl.Appeal No.193/2019 -:2:- **==> picture [118 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. 462/2016 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 19[th] July, 2017. 2. The accused faced trial for the offence punishable under Section 376(2)(f) of the IPC and Section 5(l) and (m) r/w 6 of the Protection of Children from Sexual Offences Act (for short, POCSO Act) 3. The victim was a minor girl aged 6 years, studying in LKG, at the time of the incident. The accused is a neighbour of the victim. The prosecution case in short is that on 31.03.2016 at about noon, and on several times and days before the said date, the accused had subjected the victim to sexual intercourse and Crl.Appeal No.193/2019 -:3:- sexual abuse in the bedroom of his quarters at Puthanathani. 4. The crime was registered on the basis of Ext. P8 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. The accused was on remand ever since his arrest. He was produced at the court below on production warrant. After hearing both sides, the court below framed charge against the accused under Section 376(2)(f) of the IPC and Section 5(l) and (m) r/w 6 of the POCSO Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to 13 and marked Exts. P1 to 15. MO1 was 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(m) r/w 10 of POCSO Act and he was convicted for the said offences. He was found not guilty for the offence punishable under 376(2)(f) of the IPC and Section 5(l) and (m) r/w 6 of the POCSO Act and he was acquitted for the said offences. The accused was sentenced to undergo Crl.Appeal No.193/2019 -:4:- simple imprisonment for five years and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for one month under Section 9(m) r/w 10 of 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. Sumitha S. as State Brief. I place on record the able assistance rendered by her. 7. I have heard Smt. Sumitha S., 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 a delay of three days in lodging the FIR, the benefit of which should go to the accused. The learned 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 Crl.Appeal No.193/2019 -:5:- 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 9, 10 and 11 to prove the incident and to fix the culpability on the accused. PW9 is the victim. PW10 is the mother of the victim who gave Ext. P8 statement and PW11 is the CDS Chairperson, Perumanna – Klari Panchayath. 10. PW9, the victim girl child, deposed that accused had sexually abused her at the quarters occupied by the accused. She referred to the accused as Muhammed Kakka. She alleged that he bit her lips, caught on her breast and in between her legs. She deposed that when she cried, he thrust clothes into her mouth. She further deposed that he put his penis into her vagina and she cried when she felt pain. She also deposed that accused had done like this on 5-6 occasions. She narrated the entire incident to her mother, who then informed the matter to the police. 11. PW10, the mother of the victim gave evidence that, she works as a nurse attending women after delivery and leaves Crl.Appeal No.193/2019 -:6:- home early in the morning and returns only by evening after her work. When she took PW9 for bath, PW9 complained of pain and asked her not to touch on her breast and narrated the entire incident that happened to her. PW10 also could learn that accused had abused her elder daughter also. Then she contacted PW11 and her daughters were taken to Nirbhaya Shelter Home. PW10 also identified MO1 cloth of the victim child. 12. PW11 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, PW11 went to the residence of PW10, met the children, then contacted the Child Line and shifted the children to Nirbhaya Shelter Home. 13. I have perused the evidence of PW9 meticulously. Even though she was cross-examined 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 Crl.Appeal No.193/2019 -:7:- the crime which inspires confidence. In the chief examination, she clearly deposed that the accused bit her lips, caught on her breast and in between her legs and when she cried, he thrust clothes into her mouth and put his penis into her vagina. 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 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, PW9. 15. The learned counsel for the accused submitted that the conviction was based on the sole evidence of the victim and no Crl.Appeal No.193/2019 -:8:- 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, the case spoken of by the victim of sex crime strikes the judicial mind as probable. As per the evidence of PW9, 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 PW10 would show that, the victim narrated the entire incident to her when she took the victim for bath. There is Crl.Appeal No.193/2019 -:9:- nothing to doubt the said evidence given by PW10. 16. The learned counsel for the appellant vehemently argued that, there is an undue delay of three days 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 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 PW10 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 Crl.Appeal No.193/2019 -:10:- that on account of the animosity between PW10 and the accused, PW10, 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 PW9 could not find any injuries on her vagina, perineum or thighs and reported that hymen was intact 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 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 PW9 in the first information statement, statement Crl.Appeal No.193/2019 -:11:- before the doctor and before the court as well as the statement under Section 164 Cr.P.C. The victim child was brought from Nirbhaya Shelter Home to give evidence before court. As stated already, PW9 clearly deposed about the sexual abuse faced by her from the accused. Ext. P2 report shows that the victim is a child below the age of 10 years. Sexual assault is an aggravated one. 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(m) r/w 10 of POCSO Act. Hence, I am of the view that the court below was absolutely 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 simple imprisonment for five years and to pay a fine of Rs. 5000/-, in default to undergo simple imprisonment for one month under Section 9(m) 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 Crl.Appeal No.193/2019 -:12:- 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**