Raman S/o Vellar 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. 506 OF 2016** **AGAINST THE JUDGMENT IN SC 666/2014 OF THE ADDITIONAL DISTRICT & SESSIONS COURT – 1 MANJERI** ## **APPELLANT/ACCUSED:** RAMAN S/O.VELLAR, C.NO.1001/15, CENTRAL PRISON, KANNUR BY ADV VINOD KUMAY C.Y (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA ## **OTHER PRESENT:** SMT SHEEBA THOMAS-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON 22.6.2022 DELIVERED THE FOLLOWING: Crl.Appeal No. 506/2016 -: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. 666/2014 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 18[th] December, 2015. 2. The accused faced trial for the offence punishable under Section 376(1) of the IPC and Section 5(l) (m) r/w 6 and Section 13(a), (b) r/w 14(3) of the Protection of Children from Sexual Offences Act (for short, the POCSO Act). 3. The victim was a minor girl aged 10 years, studying in IVth Standard, at the time of the incident. The accused is a neighbour of the victim. The prosecution case in short is that, during the period from September 2013 to 22.02.2014, on several occasions, the accused committed rape on the victim minor girl when the family members of the accused were not Crl.Appeal No. 506/2016 -:3:- available at his quarters and the accused used the child for the exhibition of her sexual organs by taking videos in his mobile phone and showed the same to the child victim and also on many occasions, the accused showed the pornographic videos to the victim and compelled her to perform as such. 4. The crime was registered on the basis of Ext. P1 complaint given by the Headmistress of the school where the victim then studied to the Sub Inspector of Police, Kadampuzha. After completing the investigation, the final report was filed at the Court of Sessions, Manjeri and was made over to the court below which was designated as the Special Court for the trial of offences against children vide OM No D7(A)78549/13 dated 01.06.2015. 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 the charge against the accused under Section 376(1) of the IPC and Section 5(l) (m) r/w 6 and Section 13(a), (b) r/w 14(3) of the POCSO Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW21 and marked Crl.Appeal No. 506/2016 -:4:- Exts. P1 to P12. MO1 and MO2 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 376 of the IPC and Section 6 of the POCSO Act, and he was convicted for the said offences. He was found not guilty for the offence punishable under Section 14(3) of the POCSO Act and he was acquitted for the said offences. The accused was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one more year under Section 6 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. Vinod Kumar C.Y. as State Brief. I place on record the able assistance rendered by him. 7. I have heard Sri. Vinod Kumar C.Y., 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 Crl.Appeal No. 506/2016 -:5:- 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 benefit of which should go to the accused. The learned counsel further submitted that the medical evidence is insufficient to prove the guilt of the accused. Per contra, the learned Public Prosecutor, Smt. Sheeba Thomas supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 376 of the IPC and Section 6 of the POCSO Act have been established against the accused and the prosecution has succeeded in establishing and proving the case beyond any reasonable doubt. 9. The prosecution mainly relied on the evidence of PWs 1, 3, 6 and 17 to prove the incident and to fix the culpability on the accused. PW3 is the victim and PW17 is her mother. PW1 is the Headmistress of the school where the victim then studied who gave Ext. P1 complaint. PW6 is the doctor who examined the victim and issued Ext. P3 medical certificate. 10. PW3, the victim girl child, deposed that she used to go to the quarters of the accused for watching TV and on many Crl.Appeal No. 506/2016 -:6:- occasions when the wife and children of the accused were not available at the quarters, the accused embraced her, kissed her, bit her lips, removed her dresses, licked her private part with his tongue, inserted his finger into her private parts, put his penis on to that part and she felt white fluid came out of his penis. She further deposed that the accused caused her to watch vulgar scenes on TV and insisted her to perform as such and also took the videos of the acts done by him and the same had been shown to her over his phone. She also deposed that there was bleeding from her private part as the result of the sexual assault met out by her and as she was threatened to be killed, she did not disclose the same to others at the relevant time and however she narrated the entire facts to the counsellors and the child line members. 11. PW17, the mother of the victim, gave evidence that she was a casual worker at a hospital and she used to go to work by 6.45 a.m. and return home by 5.30-6.00 p.m., and the victim remains alone at the quarters when she goes to work and the victim used to go to watch TV at the quarters of the accused. She further deposed that, the victim was studious till January 2014 Crl.Appeal No. 506/2016 -:7:- and thereafter the victim developed changes in her attitude and behaviour even towards PW17. She further deposed that PW2, the class teacher of PW3 informed her that PW3 was irregular in attending class by complaining of head ache and stomach pain. She further deposed that, she was informed by PW2 that, members of the child line had come and consulted the victim at the school and the victim disclosed the entire incident that happened to her to them and consequently, PW17 asked the victim about the facts and she narrated it to her. 12. PW1, the Headmistress of the school, deposed that on the request of PW2 class teacher, she informed the situation of the victim to the Block Resource Center and the victim disclosed the entire incident to the counsellors. Further, the victim herself penned and handed over the same to her through counsellors and thereupon she informed the matter to the Child Line Members and also lodged Ext. P1 complaint before PW15, S.I. of Kadampuzha Police Station. 13. PW6 is the doctor who examined PW3 on 25.02.2014 and issued Ext. P3 certificate. On examination, she could find congestion of vaginal mucosa and either side of the clitoris, Crl.Appeal No. 506/2016 -:8:- hymen ruptured, vaginal mucosal infection present. She deposed that, the victim has not attained her puberty at the time of examination and there is evidence of fingering and rubbing of penis over vulva and vagina. 14. I have perused the evidence of PW3 meticulously. Even though she was cross-examined at length by the learned counsel for the accused, nothing tangible could be extracted from her testimony 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 embraced her, kissed her, bit her lips, removed her dresses, licked her private part with his tongue, inserted his finger into her private parts, put his penis on to that part and she felt white fluid came out of his penis. 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 Crl.Appeal No. 506/2016 -:9:- 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, PW3. 16. In _**State of Punjab v. Gurmit Singh**_ [(1996) 2 SCC 384], the Apex court 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 PW3, 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. Crl.Appeal No. 506/2016 -:10:- 17. The oral evidence of PW3 gets corroboration from the medical evidence submitted by the prosecution through PW6 and Ext. P3. The evidence of PW6 and Ext. P3 would show that, there is congestion of vaginal mucosa and either side of the clitoris, hymen ruptured, vaginal mucosal infection present. She clearly deposed that there is evidence of fingering and rubbing of penis over vulva and vagina. Even though she was cross–examined at length by the learned counsel for the defence, nothing was brought out to show that what she opined was incorrect and hence, the version of PW3 that she had been sexually assaulted by the accused is corroborated and proved by the evidence of PW6 and contents of Ext. P3. 18. The learned counsel for the appellant further submitted that there is animosity between PW17 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 PW17 and the accused, PW17, who is the mother, would make a false allegation of sexual assault on her daughter. The Apex Court in _**Gurmit Singh**_ (supra) Crl.Appeal No. 506/2016 -:11:- has held that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as she is involved in the commission of rape on her. In _**Rajinder v. State of Himachal Pradesh**_ [(2009) 16 SCC 69], the Apex court held that in the context of Indian culture, a woman, a victim of sexual aggression, would rather suffer silently than to falsely implicate somebody. Any statement of rape is extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone, but the real culprit. Moreover, in this case, the crime is registered not based on the statement given by the PW17, instead, it is registered at the instance of the complaint preferred by PW1. Thus, the argument of the learned counsel for the appellant that the petitioner was falsely implicated due to the animosity must fail. 19. It has come out in evidence that the penetrative child sexual abuse occurred when there was no one at the quarters of the accused. Ext. P4 potency certificate would show that the accused was capable to perform the sexual act and Ext. P3 Crl.Appeal No. 506/2016 -:12:- certificate shows that the victim got injured by the said acts. There is consistency in the version regarding the overt acts done by the accused to PW3 in the statement before the police, doctor, counsellor and before the court as well as the statement under Section 164 Cr.P.C. As stated already, PW3 clearly deposed about the penetrative sexual abuse faced by her from the accused. Ext.P2, extract of admission register, would show that the date of birth of the victim is 30.06.2003. 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 376 of the IPC and Section 6 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. 20. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for one more year under Section 6 of the POCSO Act. Section 6 of the POCSO Act prescribes punishment of Crl.Appeal No. 506/2016 -:13:- imprisonment of either description for a term which shall not be less than ten years and may extend to imprisonment for life 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**