Prakasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** **CRL.A NO. 615 OF 2017** **AGAINST THE JUDGMENT IN SC 560/2015 OF ADDITIONAL DISTRICT &** **SESSIONS COURT (ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN &** ## **CHILDREN)** ## **APPELLANTS:** ## **PRAKASAN** **AGED 53 YEARS, S/O. AYYAPPAN, AIRUKKUMPURAM HOUSE,T.S.R FACTORY QUARTERS, KALADY PLANTATION,AYYAMPUZHA VILLAGE** **BY ADV BALAMURALI K.P.** ## **RESPONDENTS:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031** **BY ADVS.** **SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C SMT.AMBIKA DEVI S SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN amp WELFARE OF WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2022, THE COURT ON 03.03.2022 DELIVERED THE FOLLOWING:** Crl.A No.615 of 2017 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** **-------------------------------------------** **Crl.Appeal No. 615 of 2017 ------------------------------------------Dated, this 03[rd] March 2022** ## **JUDGMENT** ## **Vinod Chandran, J.** **Shocking and appalling, is the allegation in this case of sexual molestation of a 4 year old child. The victim was the resident of a colony called the 'Palli Pady'; the workers quarters of the Plantation Corporation at Athirapally. The accused, an earlier resident of that colony and a frequent visitor committed the atrocity on the child, a neighbour to his friend. The prosecution paraded 13 witnesses before Court and marked Exts.P1 to P12 documents. The trial court convicted the accused for the offences under S.375(a) r/w 376(2(i) IPC, S.3(a) r/w S.5(m), S.6 & S.9(m) r/w S.10 of the Protection of Children from Sexual Offences Act, 2012(POCSO Act). He was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/-, under the IPC with default sentence of one year and separate sentence of 7** Crl.A No.615 of 2017 **3** **years with a fine of Rs.25000/-, under the POCSO Act, with default sentence of three months.** **2. The appeal is by the accused and Sri.Balamurali K.P, learned Counsel appearing for the accused, first points out the various inconsistencies in the FIS and the testimonies of the victim and the mother. The victim had spoken of the accused having bitten on her lips though not stated in the FIS. However, there is no injury found on the victim on medical examination. The learned Counsel emphasises the fact that if the alleged acts of digital penetration and biting of lips were committed on the tender child, definitely there would have been some injury on the victim; but even the hymen was intact. The learned Counsel argued that the victim is not a sterling witness; whose testimony can be accepted without any corroboration.** _**Santosh Prasad v. State of Bihar [(2020) 3 SCC 443]**_ **was relied on to argue that the prosecutrix failed to pass the tests prescribed for a 'sterling witness'. The victim had categorically stated in her testimony that she always knew the name of the alleged perpetrator, but the FIS of the mother speaks** Crl.A No.615 of 2017 **4** **of the child having not identified the perpetrator by name when she was told about the atrocity, at the first instance. The identification of the victim was only to the effect that he wears a black thread, which is as vague as possible. The learned Counsel also points out that there were other strangers in the vicinity, who had come from Thiruvananthapuram and there was a reasonable suspicion of some of them having committed the alleged acts, especially going by the testimony of PW2 who spoke of the victim having run away in fear, on seeing unfamiliar faces.** **3. The friend of the accused, PW3 and his wife PW4, neighbours of the victim did not support the prosecution case and were declared hostile. They denied the assertion of the prosecution that the victim was kept in their care, when the mother was not available. The mother of the victim embellished her statement before the police and stated that she had spoken of the atrocity to PW3 and had called up the accused on the same day. The above version and the further statement that the accused refused to turn up, as promised and switched off his** Crl.A No.615 of 2017 **5** **mobile phone, were not stated to the police. The learned Counsel also submits that the proof offered of the date of birth is insufficient going by the decision of this Court in** _**K.Raghavan v. State of Kerala 2021 (6) KLT 427**_ **. Ext.P2 certificate is insufficient to prove the date of birth. In support of the defence, having rebutted the presumption under S.29 of the POCSO Act, the learned Counsel points out that neither the statement under S.164 taken from the victim or the statement recorded by PW10 were produced before Court. It is argued that the same would have further discredited the testimony of the victim. The learned Sessions Judge erred in finding that the presumption under S.29 can be rebutted only if some evidence in rebuttal is adduced; unless the prosecution case is totally unbelievable. More importantly the deposition of PWs 12 and 13 are pointed out to contend that the investigation in fact was entrusted to another officer who had filed a refer report, for reason of which he was not examined. It is argued that both the accused and the mother of the victim are members of a political party belonging to two rival groups and the allegations** Crl.A No.615 of 2017 **6** **now raised are malafide, ill motivated and aimed at settling scores.** _**Upendra Pradhan v. State of Orissa [2015(11)SCC 124]**_ **was relied on to contend that when two views are possible the one favourable to the accused has to be adopted.** **4. Smt.S.Ambika Devi, learned Special Government Pleader (Atrocities against Women and Children and Welfare of Women and Children) argued that this is a case in which molestation has been proved beyond all reasonable doubt. The victim and the mother have spoken in tandem and the minor inconsistencies are irrelevant especially considering the age of the child. It is argued that the presence of the accused in the locality is established even by the hostile witnesses and so is his close association with the victim. It is pointed out that the argument regarding the absence of injuries on the victim cannot be sustained since the trial court had acquitted the accused on the charge of digital penetration. The testimony of the child witness is believable and the minor inconsistencies are to be ignored since the child is of a tender age. The child** Crl.A No.615 of 2017 **7** **witness has spoken of the acts committed on her by a person who, by his age could be treated as a father figure. The conviction and sentence are to be sustained.** **5. Ext.P1 FIS was by the mother, the child being only of four years of age. The FIS speaks of the child having complained to the mother, on her returning home after work, about the digital penetration and fellatio, the child was subjected to, by an 'uncle' who had a thread tied on his hands; who was identifiable on sight. Later, on 01.05.2015 when there was a family get-together in the colony, the accused was identified, when he was singing a song. The accused was known to the mother, PW5, and she immediately informed PWs 3 and 4, husband and wife who were her neighbours and friends of the accused. They informed PW5 that on 28.04.2015 they witnessed the the child being taken to the colony by the accused. They did not give much attention, since they thought that the accused was playing with the child, as he was wont to do. It is on their persuasion and the fear expressed by the child on seeing the accused, that PW5 made the complaint.** **6. The incident complained of happened on** Crl.A No.615 of 2017 **8** **28.04.2015 and the FIS was on 01.05.2015. Considering the circumstances of the child having identified the accused on the 1[st] there is no delay in making the complaint. PW5 the mother spoke in tandem with the FIS. The only embellishment was that the child also complained of the accused having hugged her and then committed fellatio. PW5 also spoke about having called the accused at around 9'O clock, when he promised to come to the colony. Later, he switched off the mobile phone and did not come as promised. These statements were not made to the Police, when questioned under S.161. This was recorded as an omission, in the cross-examination of the witness; proved through the I.O, PW13.** **7. PW1 was the minor victim examined before Court. After the** _**voire dire**_ **she stated about the atrocities committed on her. She identified the accused and spoke of the accused having bitten her on the lips, committed fellatio and probed her genitals with his finger. She also spoke of the exact location where the offence was committed. She spoke of the neighbours and named the children in the neighbourhood, she was friendly** Crl.A No.615 of 2017 **9** **with. She categorically stated that she complained to her mother on the same day but also spoke of having clearly identified the person. According to PW1 she pointed out the accused to her mother, in a birthday party, but she denied having seen the accused singing a song in the said party. In cross-examination she reaffirmed that she always knew the accused by name. The inconsistency emphasised by the learned Counsel for the appellant is the fact that the child was always aware of the name of the accused and hence there was no reason for the delay. We are not convinced especially considering the tender age of the child.** **8. When looking at the testimony of the mother, PW5; at least from the 1[st] of May, on which date the child pointed out the accused, which the child too admitted, she was aware of the name of that person. After an year when the child deposed in Court it is quite possible that the child would have forgotten that she had not identified the perpetrator of the crime by name at the first instance. Especially considering the short gap; of the pointing out having been made on the 3[rd] day from the** Crl.A No.615 of 2017 **10** **day on which the child was subjected to the act of depravity. The resultant attention, though negative in nature, would have clouded the mind of the child. The inconsistency according to us is irrelevant and it does not aid the accused especially when the acts committed having been clearly stated by her. An embellishment of a bite on her lips also is inconsequential since the FIS was made by the mother. If a particular act alleged was not spoken of at the first instance, the Courts could eschew the offence made out from such an act. After weighing the import of such act, in finding a particular offence, the significance of such omission and so on and so forth. In the present case even if the alleged act of a bite on the lips is completely eschewed, the offences charged are made out.** **9. PW2, a neighbour who has acquaintance with the victim and her family as also the accused, spoke of having lived in the quarters adjacent to which both the 3[rd] respondent and the accused resided. She also spoke of the family get-together, where even earlier residents of the colony came. She deposed that there were two persons** Crl.A No.615 of 2017 **11** **from Thiruvananthapuram who had come for the family gettogether and when she was talking to them, the accused came there in a bike. At that moment, the victim who was running towards her, suddenly turned and ran back. At that time, she thought that it was because of seeing the unfamiliar persons from Thiruvananthapuram. Later, when she heard about the allegations, she presumed that the victim ran back frightened on seeing the accused. She also stated that she has not seen any flaws in the conduct of the accused.** **10. PW3 and PW4 are husband and wife. PW1, the victim had said that at times when her mother goes for work she used to be left in the care of PW3 and PW4. PW3 denied the said statement, but spoke of the victim occasionally coming to his residence. PW3 denied having seen the accused playing with the child or having seen the victim being dropped in front of her house, in a bike by the accused, when the victim was visibly disturbed. However, the witness admitted to have been told on the evening of the 1[st] about the atrocity committed by the accused on her daughter. PW3 also spoke of the mother** Crl.A No.615 of 2017 **12** **(PW5) having told him about the child identifying the accused as the perpetrator, when he was singing a song. PW4 admitted that the accused was her husband's friend and had come to her house twice or thrice. She deposed that PW5 had entrusted the children, at times with her, when PW5 goes for work. She had seen the accused playing with the children of PW5, but denied having seen him placing the victim on his lap. She also admitted that after she came to know about the complaint raised, she had told her husband that she saw the accused playing with the victim; but does not remember the exact date on which she saw this.** **11. PW6, is the Consultant Gynaecologist who examined the victim. The history recorded in Ext.P2 certificate issued by her speaks specifically of the named accused having digitally penetrated her on 28.04.2015. However, Ext.P2 does not show any sign of such penetration. PW7 is the Doctor who affirmed the potency of the accused and PW8 produced Ext.P4, showing the date of birth of PW1, which, she deposed was issued based on the birth certificate of the victim kept in the** Crl.A No.615 of 2017 **13** **school. PW9 is the Village Officer, who prepared the site plan and PW10 is the WCPO, who recorded the statement of the victim. PW11, witness to the seizure mahazar turned hostile. PWs 12 and 13 are Investigating Officers.** **12. The first argument to be dealt with is the one regarding proof of date of birth of the victim. The learned Counsel for the appellant pointed out that Ext.P4 cannot be said to be primary evidence or secondary evidence under the Evidence Act as has been held in** _**K. Raghavan**_ **(supra). We perfectly agree with the learned Counsel for the appellant, but what distinguishes this case is the fact that PW5, the mother had categorically stated in evidence the age of her daughter. She also said that the child-victim was studying in LKG at the time when the incident occurred. The deposition of the mother is substantive evidence and we have to find the child victim to be a minor.** **13. One another contention raised by the learned Counsel for the appellant is regarding the investigation having been entrusted to one Jose M.P, Assistant Sub Inspector as revealed from Ext.P6. It was argued that the** Crl.A No.615 of 2017 **14** **said officer had conducted an investigation and had filed a refer report, finding the allegations to be untrue, which was suppressed. We have looked at Ext.P6 FIR, which has been registered by PW12 and it was PW12, who noticed the name of the ASI in column number 32. His deposition clearly speaks of his visit to the scene of occurrence immediately after the registration of the FIR. Nothing prevented the Sub Inspector, a superior officer from taking up the investigation, though in the FIR he had initially authorised an ASI. Further, nothing prevented the accused from summoning the ASI or seeking for the refer report from the jurisdictional court, if one had been filed, as alleged. We have to emphasize that if such a final report had, in fact, been filed, the same would have been part of the record. The contention, we are afraid, is without any basis and made casually.** **14. The next contention is of the S.164 statement and the statement recorded by the WCPO, PW10, having not been produced before Court. The learned Special Government Pleader points out that both the statements recorded from the victim, clearly implicated the accused** Crl.A No.615 of 2017 **15** **and the prosecution did not produce it, because it was felt that the same was not required. We do not rely on such submissions before Court as long as they are not produced before Court. But, here too, it is worth observing that, if there was any discrepancy in the above mentioned statements, the accused could have sought direction from the Court for production of such statement; which the accused did not seek during trial. Similarly there was nothing produced to prove the enmity of the mother of the victim and what remained were the bland suggestions made in cross-examination.** **15.** _**Santosh Prasad**_ **(supra) was a case in which there was delay in registering a complaint, the FIS and the medical report not supporting the prosecution case and there occurring variations in the version of the prosecutrix. None of these factors exist in the present case. The alleged incident was on 28.04.2015 and both the victim and her mother said that on the very same day the victim complained to her mother. The accused was pointed out after three days on the 1[st] of May, at a function held in the colony. The discrepancy with respect to the child** Crl.A No.615 of 2017 **16** **having identified the accused by name at the first instance itself is not so significant as to rubbish the entire prosecution case; especially considering the tender age of the child. The incident and the complaint being quite proximate and the delay of three days having been explained, as one occasioned for a proper identification of the accused, the delay is inconsequential.** **16. The acts committed on the victim were not such as to cause injuries on the child. As was pointed out by the learned Special Government Pleader, on the aspect of digital penetration the accused stood acquitted. As far as the charge of fellatio is concerned the accused was rightly convicted. It cannot be said that the alleged acts would have caused visible injuries on the body of the child. The medical evidence or the lack of it does not aid the accused. The medical report Ext.P2 immediately after the registration of the FIS, with the history stated, corroborates the allegation against the accused as raised by the victim and the mother. The version of the prosecutrix is consistent with that in the** Crl.A No.615 of 2017 **17** **FIS and corroborated by the version of PW5, the victim's mother. The evidence of the prosecutrix inspires confidence, is trustworthy and unblemished and we have no hesitation in finding her to be a 'sterling witness'. We do not think the learned trial court ruled that the presumption under S.29, can be rebutted only on the accused leading evidence. What was observed was that the accused by cross-examination has not been successful in raising a cloud of disbelief and there was also no evidence led to discredit the prosecution case. We perfectly agree with the learned trial Judge.** _**Upendra Pradhan**_ **(supra) has no application since we do not doubt the credit worthiness of the victim. We confirm the conviction and affirm the sentence passed on the accused. Appeal would stand dismissed.** **Sd/K.VINOD CHANDRAN, Judge** **Sd/-** **C.JAYACHANDRAN, Judge** **jma/lgk**