Raju s/o Sreedharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** **CRL.A NO. 1025 OF 2017** **AGAINST THE JUDGMENT IN SC 35/2016 OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** RAJU S/O SREEDHARAN, CONVICT.NO.1563 CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV K.P.SUJESH KUMAR, STATE BRIEF ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. SMT SHEEBA THOMAS-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.1025/2017 -:2:- J U D G M E N T Dated this the 26[th ] day of August, 2022 This appeal has been preferred under Sections 374(2) and 384 of the Cr.P.C. by the accused in S.C. No. 35/2016 on the file of the Additional Sessions Judge for the trial of the cases relating to atrocities and sexual violence against women and children, Thiruvananthapuram (for short, 'the court below') challenging the judgment of conviction and sentence dated 17/01/2017. 2. The accused faced trial for the offences punishable under Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of the Protection of Children from Sexual Offences Act (for short, 'POCSO Act'). 3. The victim was a minor girl aged only 6½ years, studying in 1[st] standard, at the time of the incident. The accused was her neighbour. The prosecution case in short is that, on a day in the month of April 2012 at 11.00 a.m. and also on 23/08/2015, the accused committed penetrative sexual assault on the victim inside her house at Pullattukari Lakshamveedu Colony in Crl.Appeal No.1025/2017 -:3:- Kazhakkuttam Village. 4. The crime was registered by the S.I of Police, Kazhakkuttam Police Station on the basis of Ext. P7 statement given by the victim. After completing the investigation, the final report was filed at the Sessions Court, Thiruvananthapuram which was later made over to the Court below for trial and disposal. 5. The accused appeared at the court below and after hearing both sides, the court below framed charge against him under Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of the POCSO 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 P10. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offences punishable under Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of the POCSO Act and he was convicted for the said offences. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 6 r/w 5(l) and (m) of the POCSO Act. No separate Crl.Appeal No.1025/2017 -:4:- sentence was awarded for the offence punishable u/s 376 of IPC. Challenging the said conviction and sentence, this appeal has been preferred. 6. Since the appellant is not represented by a lawyer, this court appointed Sri.Sujesh Kumar K.P. as crown counsel. I place on record the appreciation for the able assistance rendered by him. 7. I have heard Sri.Sujesh Kumar K.P., 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 the resultant finding as to the guilt. The counsel submitted that the conviction is based on the uncorroborated testimony of the minor victim which suffers from contradictions and omissions and there is a delay of three months in lodging the FIR, the benefit of which should go to the accused. The prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt, argued the counsel. Per contra, the learned Public Prosecutor supported the findings and verdict handed down by the court below and Crl.Appeal No.1025/2017 -:5:- argued that the prosecution has succeeded in establishing and proving the case beyond reasonable doubt. 9. The prosecution mainly relied on the evidence of PW1, PW3, PW5 and PW9 to prove the incident and to fix the culpability on the accused. PW1 is the victim and PW9 is her maternal aunt. PW5 is the teacher to whom the victim disclosed about the offence. PW3 is the doctor who examined the victim and issued Ext. P3 medical certificate. 10. PW1, the victim, deposed that on a day when she was studying in the first standard, while she was playing with her friends, the accused came there and took her inside her house, closed the doors of her house, caused her to lay on a cot and patted her private parts, licked her vagina, put his penis into her vagina and kissed her. She further deposed that, after a short while, PW9 came to the house, then the accused hid under a cot and PW9 saw her sitting naked. She further deposed that, when PW9 asked her, she told that the accused was hiding under the cot. PW9 saw the accused and she scolded him and he fled from the spot. She also gave evidence that, during the Onam vacation in the year 2015, while she was playing inside her kitchen, the Crl.Appeal No.1025/2017 -:6:- accused came there, disrobed her, kissed and licked on her vagina, kissed all over her body and caused his penis to touch her vagina. She also deposed that on both the occasions, there was nobody in the house and it was due to fear that she told her aunt that the accused did nothing. She added that, she narrated the entire incident to the counselling teacher, PW5. Subsequently, the teacher informed the matter to the police who recorded Ext.P7 statement, took her to the hospital and also informed her mother. 11. PW9, the maternal aunt of the victim deposed that, on a Sunday in the year 2012, when she went to the house of the victim, she found the doors of the house closed. When she opened the door, she saw the victim sitting naked on a cot and the accused hiding under the cot without any dress. She also deposed that, when she enquired to the victim as to whether the accused had done anything, she told that he did nothing and she scolded the accused. 12. PW5 teacher deposed that, there was a complaint that the victim had touched on the private part of another student in the school and used to use abusive words and seeing these Crl.Appeal No.1025/2017 -:7:- abnormalities, the Headmistress of the School directed her to give counselling to the victim. She further deposed that, in the counselling, the victim divulged that her neighbour named 'Kannumaman' used to touch on her private parts using his fingers after disrobing her and put his penis into her vagina. She also deposed that, she informed the same to the Headmistress who then informed the matter to the Child Line and police. 13. PW3 is the doctor, who examined PW1 on 17/11/2015 and issued Ext. P3 certificate. On examination, she found that congestion was present over the labia. Mild congestion was noted on the posterior aspect 5 O' clock position. According to her, there was evidence of digital fingering. 14. I have perused the evidence of PW1 meticulously. She clearly deposed the manner in which the accused committed sexual assault on her. She gave a reliable, consistent, and credible version of the crime which inspires confidence. She specifically deposed that, the accused disrobed her, kissed and licked on her vagina, kissed all over her body and caused his penis to touch her vagina on two occasions. It was not successfully challenged in cross-examination. Crl.Appeal No.1025/2017 -:8:- 15. 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 learned Magistrate 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. Here, there is absolutely no ground for doubting the veracity of the child witness, PW1. 16. The learned counsel for the accused submitted that the conviction was based on the sole evidence of the victim which lacks consistency and no occurrence witness was examined. The Apex Court in _**Krishan Lal v. State of Haryana**_ (AIR 1980 SC 1252) held that to seek substantial corroboration of the victim’s evidence in a rape case is to sacrifice common sense. Crl.Appeal No.1025/2017 -:9:- In _**Rafiq v. State of U.P.**_ (AIR 1981 SC 559), the Apex Court observed “hardly a sensitized judge who sees the conspectus of circumstances in its totality rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity”. 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. Here, the sexual assault has taken place at the house of the victim when there was nobody in the house. Thus, there cannot be an independent witness. Here, the evidence of PW1 is found to be genuine, credible and reliable. It can safely be relied on to prove Crl.Appeal No.1025/2017 -:10:- the incident and to fix the culpability on the accused. That apart, the evidence of PWs 5 and 9 corroborates the evidence of PW1. 17. The oral evidence of PW1 gets corroboration from the medical evidence submitted by the prosecution through PW3 and Ext. P3. The deposition of PW3 as well as the contents of Ext. P3 points that there is evidence of penetrative sexual assault. Ext.P4 would show that the accused is potent and there is nothing to suggest that the person is incapable of performing sexual acts. 18. The learned counsel for the appellant vehemently argued that, there is an undue delay of three months 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. Here, it is to be noted that the incident was Crl.Appeal No.1025/2017 -:11:- brought to light and the case was happened to be registered only when the victim was subjected to counselling in the school. Hence, the delay has been explained and there is nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay. 19. The learned counsel for the appellant lastly submitted that there is animosity between the mother of the victim 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, a mother would make a false allegation of sexual assault on her minor daughter. 20. It has come out in evidence that the accused has committed sexual assault on the victim when there was no one in her residence. There is consistency in the version regarding the overt acts done by the accused to PW1 in the first information statement, statement before the doctor, before the court as well as the statement recorded under Section 164 Cr.P.C. As stated already, PW1 clearly deposed about the sexual abuse faced by her from the accused. Ext. P6 extract of admission register shows Crl.Appeal No.1025/2017 -:12:- that the victim is a child below the age of 12 years and hence, the sexual assault is an aggravated one. Therefore, 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 376 of IPC and Sections 6 r/w 5(l) and (m) of the 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. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of ₹1,00,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 6 r/w 5(l) and (m) of the POCSO Act. 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. Accordingly, this criminal appeal stands dismissed. ## **Sd/-** ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**