Ravikumar v. State of Kerala

Crl. Appeal No. 1078 of 2019 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & ## THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ## CRL.A NO. 1078 OF 2019 CRIME NO.653/2015 OF PULPALLY POLICE STATION, WAYANAD AGAINST THE JUDGMENT DATED 10.08.2016 IN SC 102/2016 OF SPECIAL COURT UNDER POCSO ACT, WAYANAD ## APPELLANT: RAVIKUMAR, C.NO. 778/2016 CENTRAL PRISON, KANNUR. BY ADV ANUROOPA JAYADEVAN(K/495/1995) STATE BRIEF ## RESPONDENT: STATE OF KERALA. BY ADV SMT.AMBIKA DEVI S, SPL. GOVERNMENT PLEADER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.11.2023, THE COURT ON 15.11.2023 DELIVERED THE FOLLOWING: Crl. Appeal No. 1078 of 2019 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------Crl. Appeal No. 1078 of 2019 --------------------------------------------------------Dated this the 15[th] day of November, 2023. ## **JUDGMENT** ## Johnson John, J **.** This appeal is filed under Section 374(2) of Cr.P.C by the sole accused in S.C. No. 102 of 2016 on the file of Additional Sessions Court-I, Kalpetta, Wayanad, through the Superintendent of Central Prison and Correctional Home, Kannur, challenging the conviction entered and the sentence passed against him for the offences punishable under Sections 376(2)(f)(i)(n), 506(ii) of IPC and Section 5(l)(m)(n) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('Act, 2012' for short). 2. The prosecution case, as per the final report, is that the accused, who is the father of a minor girl aged 8 years, committed rape and aggravated penetrative sexual assault on her in the afternoon on a day around the period of Onam vacation in 2015, in his house bearing door No. 1/335 of Mullankolly Grama Panchayat and after two days, the accused repeated the offence and also criminally intimidated the victim girl that he will kill her, if in case she discloses the incident to anyone and the accused is thereby alleged to have committed the offences as aforesaid. Crl. Appeal No. 1078 of 2019 : 3 : 3. On the basis of Exhibit P5 First Information Statement of the victim recorded by PW11 woman Civil Police Officer on 28.09.2015, PW16, the Sub Inspector of Police, Pulpally, registered Exhibit P5(a) First Information Report as Crime No. 653 of 2015 of Pulpally Police Station. 4. PW15, Inspector of Police, Pulpally, conducted the initial investigation and thereafter, PW14 took charge of the investigation in this case from 20.10.2015 and after completing the investigation, he filed the final report and the same was taken on file as S.C. No. 102 of 2016. When the accused appeared before court, he was furnished with copies of all the prosecution records. 5. After hearing both sides, charge was framed against the accused for the offences punishable under Sections 376(2)(f)(i)(n) and 506(ii) of IPC and Sections 5(l)(m)(n) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012. 6. The charge was read over and explained to the accused to which he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 16 and marked Exhibits P1 to P14 to prove the charge against the accused. Since it is found that the accused is not entitled for an acquittal under Section 232 Cr.P.C., he was called upon to enter on his defence. But, no evidence was adduced from the side of the accused. Crl. Appeal No. 1078 of 2019 : 4 : 7. On a consideration of the oral and documentary evidence on record and after hearing both sides, the learned Additional Sessions Judge, by the impugned judgment dated 10.08.2016, convicted the accused and sentenced him to undergo imprisonment for life, which shall mean imprisonment for the remainder of the accused's natural life and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default to pay the fine, to undergo simple imprisonment for three years under Section 376(2)(f) of IPC; rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and in default to pay the fine, to undergo simple imprisonment for three years under Section 376(2)(i) of IPC; rigorous imprisonment for ten years and to pay a fine of Rs.1.00,000/- (Rupees One Lakh only) and in default to pay the fine, to undergo simple imprisonment for three years under Section 376(2)(n) of IPC; and rigorous imprisonment for five years under Section 506(ii) IPC. 8. In view of Section 42 of the Act, 2012, no separate sentence was imposed for the offence under Section 5(l)(m)(n) r/w Section 6 of the Act, 2012. Substantive sentences have been directed to run concurrently. Set off has been allowed. It is further ordered to take steps for realisation of the entire fine amount from the assets of the accused under Section 421 Cr.P.C Crl. Appeal No. 1078 of 2019 : 5 : and the Government of Kerala was directed to pay Rs.3,00,000/- as compensation to PW5 within a period of 30 days from the date of receipt of a copy of the judgment, as per Rule 7(5) of the Protection of Children from Sexual Offences Rules, 2012. 9. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused by the trial court are sustainable or not. 10. Heard Smt. Anuroopa Jayadevan, the learned State Brief appearing for the appellant and the learned Public Prosecutor Smt. Bindu O.V. and perused the records. 11. The main arguments advanced on behalf of the appellant/ accused are that (i) the victim and her mother had the ulterior motive to avoid the accused from their family life and hence, a false case was foisted against him; (ii) there is inordinate delay in filing the FIR; (iii) PW6, the mother of the victim, has no case that she witnessed the occurrence or any misbehaviour from the side of the accused towards her daughter; and (iv) no proper investigation is conducted in this case. It is also argued that the sole testimony of PW5 victim cannot be relied on to find the accused guilty of the offences alleged against him, as the testimony of PW5 is not of sterling quality. 12. The learned counsel for the appellant relied upon the Crl. Appeal No. 1078 of 2019 : 6 : dictum laid down in _**Santhosh Prasad v. State of Bihar**_ [2020 KHC 6155], in which it is held that if conviction has to be based on the sole testimony of the victim in a rape case, the deposition of the victim must be of sterling quality. It is well settled that the status of the witness would be immaterial and what would be relevant is the truthfulness of such a statement made by the witness and for that purpose, the court is required to analyse the consistency of her statement right from the beginning till the end and as to whether she was able to withstand any length of cross examination. 13. It is true that the delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses etc. are factors that would persuade a court to look for corroboration before convicting the accused based on the sole testimony of the victim. Therefore, keeping in mind the principles laid down in the aforesaid case, it is necessary to consider the arguments of the appellant that the testimony of PW1 is not of sterling quality and as to whether the testimony of PW1 suffers from any material discrepancies, inconsistencies, contradictions or embellishments or in any way inconsistent with the testimony of other prosecution witnesses. 14. A perusal of Exhibit P5 First Information Statement shows Crl. Appeal No. 1078 of 2019 : 7 : that the same is recorded on 28.09.2015 by PW11, a woman Civil Police Officer, in the presence of PW16 Sub Inspector of Police and the mother of the victim. Exhibit P5 shows that PW16, the Sub Inspector of Police, along with PW11 Woman Civil Police Officer reached the house of the victim on getting an email from the Chairman of Child Welfare Committee, Wayanad about the sexual abuse of the victim by her father and the said evidence of PW11 in chief examination is not seen challenged in cross examination. 15. The evidence of PW16, Sub Inspector of Police, also shows that PW11 recorded Exhibit P5 statement of the victim in his presence and subsequently he registered Exhibit P5(a) First Information Report. In cross examination, PW16 stated that the accused sexually abused his daughter, while the mother of the victim was away from the house for work and her younger brother had been out of the house to play. 16. In Exhibit P5 First Information Statement, PW5, the victim girl, has stated that she is studying in 4[th] standard and a few days before, her teacher asked her as to whether her parents used to beat her and then she told the teacher that while her mother and brother were not there in the house, her father used to kiss her and bite her and one week before, her father removed her dress and inserted his penis into her vagina and she further stated that her Crl. Appeal No. 1078 of 2019 : 8 : father committed the said acts while her mother and younger brother were away from the house. 17. It is further stated that when the accused committed the act, she felt pain and then she cried and blood came out from her vagina. It is stated in Exhibit P5 that three days before, she informed her mother that she has pain in her vagina and then her mother cleaned that part of her body by using hot water and thereafter, took her to a hospital at Pulpally. In Exhibit P1, the victim has stated that she could not inform her mother about the acts committed by her father as her father has threatened that he will beat and kill her if she discloses the incident to anyone. In Exhibit P5 it is stated that while the victim was studying in the 3[rd ] Standard, her father used to show her his penis. 18. When the victim girl was examined as PW5, she deposed regarding the incident more or less in the same way as stated in Exhibit P1 First Information Statement. According to PW5, while she was lying on a cot in her house due to headache, in the afternoon, the accused, who is her father, came near her, and after lying near to her in the cot, he inserted his penis into her vagina, and when she cried aloud, her father asked her to stop crying and not to inform anybody else about the occurrence and when the victim cried again, her father inflicted burn injuries above her left Crl. Appeal No. 1078 of 2019 : 9 : wrist portion with a 'beedy' used by him for smoking at that time. She would say that she sustained burn injuries on her hand and the scar of the said injury is still there on her hand. 19. According to PW5, she sought permission of her father for urinating and then her father released her and thereafter, she met her mother and informed her mother about the entire incident. She further stated that on the date of occurrence, she attended the school in the morning and returned to her house in the afternoon because of headache, and at that time, her mother was not there as she had gone to work in a quarry and her father alone was in the house. 20. The evidence of PW5 shows that when her mother returned, she has shown the burn injuries on her hand and also told her about the acts committed by her father and when her mother attempted to ask the accused about the incident, she prevented her mother by saying that the accused will beat and kill them and hence, her mother has not asked anything to her father. 21. PW5 also deposed that two days after the first incident, the accused again inserted his penis into her vagina during night and at that time, her mother was preparing food and she informed her mother about the said incident only on the next day morning. The evidence of PW5 shows that her mother has taken her to a Crl. Appeal No. 1078 of 2019 : 10 : hospital and that her father used to beat her mother every day after consuming alcohol. 22. In cross examination, PW5 admitted that her father and mother used to quarrel regularly and that her father used to beat her mother. PW5 denied the suggestion that she narrated the incident to the teacher and the police as instructed by her mother, and she categorically stated that her mother has not asked her to say anything. PW5 admitted that she has not stated to the police or doctor that her father inflicted burn injuries on her with beedy. In another part of cross examination, PW5 stated that she informed her mother on the same day regarding the first incident; but, she has not informed her mother regarding the second incident on the same day. 23. PW6 is the mother of the victim and she deposed that the accused is her husband and she is a native of Karnataka State not capable of writing or reading Malayalam. But, according to PW6, she can understand Malayalam. PW6 deposed that her daughter told her that her father urinated in the part of her body used by her for urinating and she also clarified that her father urinated inside that part of her body. According to PW6, her daughter told her that her father has inserted his penis into her vagina and that when her daughter told her that she has pain in that part of her body, PW6 Crl. Appeal No. 1078 of 2019 : 11 : washed that part of her body by using warm salt water and she also took her daughter to a doctor at Pulpally for availing treatment. 24. However, PW6 admitted that she has not told the doctor about the sexual abuse of her daughter by the accused. PW6 stated that she has not questioned the accused about the incident as her daughter prevented her from doing so by saying that the accused will kill both of them and because of that fear, she has not questioned the accused. But, PW6 would say that she informed about the incident to a teacher in the school where her daughter is studying and subsequently, police came from Pulpally to record the statement of her daughter. 25. While cross examining PWs 5 and 6, the case put forward by the defence is that the accused used to beat PWs 5 and 6 and because of that enmity and with an intention to avoid the accused from the family, PWs 1 and 2 foisted this case against the accused. In cross examination, PW6 admitted that she has not heard her daughter crying when her father sexually abused her. PW6 admitted that the accused used to beat her daughter and pinch her. 26. The evidence of PW6 shows that the accused used to beat her regularly and she would say that her daughter is not in the habit of telling lies. According to PW6, there was semen in the undergarment worn by her daughter at the time of occurrence and Crl. Appeal No. 1078 of 2019 : 12 : that her daughter subsequently washed the undergarment and the same was not given to the police. PW6 categorically denied the suggestion of the defence that she is falsely deposing against the accused so as to avoid him from her life. It is pertinent to note that even though PWs 5 and 6 were seriously cross examined, no material contradictions or omissions are brought out and therefore, we find that their evidence regarding the occurrence is reliable and trustworthy. 27. PW7 was a Counsellor at Perikkalloor School and she deposed that on 18.09.2015, she received a phone call from a parent informing her that there is some problem for PW5 and when she enquired about the matter, it is learned that the said student is studying in the 4[th] standard. PW7 would say that when she contacted the class teacher, she got information that PW5 left the school on that day because of stomach pain to consult a doctor and in the afternoon she proceeded to the house of PW5 and there she met the accused and PW6 and they told her that PW5 had gone to CDC at Pattanikoop According to PW7, at that time, PW6 has not disclosed anything in detail and because of suspicion in her behaviour, subsequently she discussed the matter with PW5 in her cabin in the school and then PW5 told her that her father used to beat her and her mother after consuming liquor and that her father Crl. Appeal No. 1078 of 2019 : 13 : used to compel her to sleep with him. 28. PW5 also told PW7 that her father used to kiss her on her lips and neck and that he used to suck her breast and drink milk and inflicted pain in that part of her body used for urinating and that he used to touch on her private parts. 29. In cross examination, PW7 stated that she discussed the matter with PW5 for about one hour in her cabin in the school and noted the points. But, PW5 has not stated the exact dates on which she was sexually assaulted by the accused. The doctor who examined PW5 at Taluk Head Quarters Hospital, Sulthan Bathery on 29.09.2015 and issued Exhibit P6 certificate, is examined as PW8. According to PW8, the victim stated to her that her father rubbed his penis on her pubic area and also threatened to beat her, if in case she discloses the matter to the mother. 30. The evidence of PW8 shows that since the victim was aged only 8 years, she was doubtful regarding the hymen and hence she referred the victim to the Government Medical College Hospital, Calicut. 31. PW9 was the doctor who examined the victim at Medical College Hospital, Calicut on 30.09.2015 and issued Exhibit P7 certificate. According to PW9, the alleged history given by the police is that the child has undergone sexual contact by her father Crl. Appeal No. 1078 of 2019 : 14 : 3-4 times since a month and that the child had pain abdomen and pain along micturition, bleeding from vagina and that the victim told her that she has been assaulted by her father and that her father had inserted his penis and finger into her vagina. 32. According to PW9, on examination, her hymen was found intact and no injuries noted. In cross examination, PW9 stated that partial penetration or rubbing of penis in vagina may not cause hymen tear. 33. On the basis of the evidence of PWs 8 and 9 doctors that on examination, the hymen of the victim was found in tact and no injuries noted, the learned counsel for the appellant argued that the prosecution has not adduced sufficient evidence to prove penetrative sexual assault. But, it is in evidence that the victim was aged only 9 years at the time of occurrence and further PW9 doctor has clarified in cross examination that partial penetration or rubbing of penis in vagina may not cause hymen tear. 34. In _**Chenthamara v. State of Kerala**_ [2008 (4) KLT 290], it was held that penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina would constitute rape, if penis gets physical contact in that process of access with any of the external portions of Crl. Appeal No. 1078 of 2019 : 15 : the female genital organ, such as, vulva, labia majora etc. 35. In _**Tarkeshwar Sahu v. State of Bihar**_ [(2006) 8 SCC 560], the Hon'ble Supreme Court held that penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence under Section 376 IPC. 36. Therefore, in view of the definition of 'rape' under Section 375 IPC and 'penetrative sexual assault' in Section 3 of the Act, 2012, which clearly indicates that even the slightest penetration into vulva or labia majora would constitute rape and penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape, we find that the contention of the appellant in this regard is not legally sustainable. 37. The then Village Officer of Pulpally, who prepared Exhibit P8 scene plan, is examined as PW10. PW12 is a witness to Exhibit P9 scene mahazar. 38. PW13 deposed that she is working as a teacher in the Government Higher Secondary School, Perikkalloor and that she was the class teacher of 4[th] Standard during 2015 and that PW5 is her student. According to PW13, PW7, the Counsellor in the school came to the class on 18.09.2015 to enquire about PW5 and on that Crl. Appeal No. 1078 of 2019 : 16 : day, PW5 and her mother had obtained her permission to take PW5 to the hospital to avail treatment for stomach pain. 39. According to PW13, the subsequent three days were holidays for the school and thereafter, PW5 came to the school on 22.09.2015 and on that day, PW7 came to the class and took PW5 to her cabin. The evidence of PW13 shows that PW5 returned after one hour and in the afternoon, she enquired the matter to PW5 and then PW5 told the witness that her father used to drink her milk, remove her undergarments and touch on her private parts. The evidence of PW13 shows that she has not questioned the victim in detail and when she enquired the victim as to whether her mother is aware, the victim told her that her father used to do such things to her after closing the door and further she is afraid of her father. According to PW13, the mother of the child told her that there is misbehaviour towards the child from the side of the father and the evidence of PW13 further shows that she felt that PW6 is attempting to conceal something. 40. It is well settled that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances as held by the Hon'ble Supreme Court in _**Rafiq v. State of U.P.**_ [1980 (4) SCC 262]. Crl. Appeal No. 1078 of 2019 : 17 : ## 41. Further the decision in **Maju @ Manu v. State of Kerala** **I.L.R. 2020 (3) Kerala 292,** shows that the date of birth shown in the certificate of the victim from the school can be accepted as conclusive proof of her age in a criminal proceeding. In the said case, it was also held that eventhough the Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 apply strictly only for determination of the age of a child in conflict with law, the statutory provisions therein can certainly be the basis for determining the age of even a child, who is a victim of crime. 42. PW2 was the Headmistress of the Government Higher Secondary School, Perikkalloor and her evidence shows that PW5 is a student in her school and that she issued Exhibit P2 extract of the admission register which shows the date of birth of PW5 as 13.12.2005. PW3 was working as UD Clerk in Perikkalloor Government Higher Secondary School and he witnessed the seizure of Exhibit P2 extract of admission register by the Investigating Officer after preparing Exhibit P3 seizure mahazar. PW3 identified his signature in Exhibit P3 mahazar before court. 43. The testimony of the victim of sexual assault is more reliable than that of an injured witness, unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the Crl. Appeal No. 1078 of 2019 : 18 : testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. In the absence of any serious contradiction, omission or exaggeration in the evidence of PW5 before court and since her evidence tallies with her statement in Exhibit P5 First Information Statement, we find that her evidence regarding the occurrence inspires confidence and it can be relied upon even without seeking further corroboration. 44. The evidence of PWs 2 and 3 and Exhibit P2 extract of the admission register regarding the date of birth of the victim is not seriously challenged in cross examination and therefore, it can be seen that the victim was aged only 9 years during the period of occurrence. 45. The learned counsel for the appellant advanced arguments that there is delay in registering the FIR. It was pointed out that it is revealed from the evidence of PW7 that the last incident was prior to 18.09.2015 and that Exhibit P5(a) First Information Statement was registered only on 28.09.2015. But, we do not think that this delay is fatal in the facts and circumstances. As pointed out earlier, it is in evidence that the victim girl was aged only 9 years at the time of occurrence, and because of fear that the accused will kill her and her mother, she prevented her mother from Crl. Appeal No. 1078 of 2019 : 19 : questioning the accused about the incident and subsequently, her mother informed the Counsellor in the school, and only when the Counsellor interacted with the victim girl and subsequently, informed the police, the First Information Statement of the victim was recorded on 28.09.2015. In cases of this nature, it cannot be expected that the police would be informed immediately by the victim, especially in view of the fact that the victim is a young girl aged only 9 years and that the assailant is her father. 46. In this case, the evidence of PW5 is supported by the evidence of PW6, who is none other than the mother of the victim and also the evidence of PW7 Counsellor in the school and PW13 who was the class teacher of the victim girl in the school. Further the evidence of PW5 victim is also corroborated by the evidence of PWs 8 and 9 doctors who examined the victim and Exhibits P6 and P7 medical certificates issued by them. It has come out in evidence that the alleged incident was disclosed by the victim girl to her mother, PW6, and because of fear that the accused will kill the victim and her mother, the victim girl has prevented her mother from questioning the accused about the incident. It is also in evidence that PW6, the mother of the victim has informed PW7 Counsellor in the school where the victim is studying and that during counselling, the victim girl has disclosed the entire facts Crl. Appeal No. 1078 of 2019 : 20 : about the sexual assault committed by her father. 47. Further in this case, the sexual abuse took place in the house of the victim while her mother had gone to work and it cannot be imagined that a young girl of her age would cook up such a false story against her father in the absence of any serious grudge or hostility towards him before the occurrence. 48. The evidence tendered by PW5 appeared to us to be natural and consistent with the case of the prosecution. The core spectrum of the crime remained intact throughout the cross examination. PW5 has not given any room for any doubt as to the material particulars deposed by her, especially in relation to the sexual assault committed on her by her father. The evidence tendered by PW5 has correlation with each and every other supporting evidence, including the expert opinion given by the doctors who examined her. Therefore, we have no doubt in our minds that PW5 can certainly be regarded as a sterling witness. 49. Therefore, on a careful re-appreciation of the entire evidence, we find that the trial court was right in convicting the accused for the offences punishable under Sections 376(2)(f)(i)(n), 506(ii) of IPC and Section 5(l)(m)(n) r/w Section 6 of the Act, 2012. 50. Now the next question to be considered is regarding the Crl. Appeal No. 1078 of 2019 : 21 : quantum of sentence imposed by the trial court on the accused. Relying on the dictum in _**Mohammed Firoz v. State of Madhya**_ _**Pradesh**_ [2022 KHC 6432] it was submitted that considering the family background and other circumstances from which the accused comes, the sentence of imprisonment for the reminder of his life may be reduced, as the minimum sentence for the offence punishable under Section 376(2)(f) IPC is only ten years. In the circumstances of the case, we deem it appropriate to modify the sentence of imprisonment for the offence punishable under Section 376(2)(f) IPC to be for a period of 20 years without any remission. The sentence imposed by the trial court for the remaining offences shall stand confirmed. In the result, the appeal is partly allowed to the aforesaid extent alone. Interlocutory applications, if any pending, shall stand closed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv