Sainudheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 CRL.A NO. 863 OF 2017** **AGAINST THE JUDGMENT IN SC 259/2015 OF ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN)** ## **APPELLANT/ACCUSED:** SAINUDHEEN, S/O ISMAIL, KANJIRATHINKAL HOUSE, THAIPPARAMBIL BHAGOM, KAITHARAM KARA, KOTTUVALLY NORTH PARAVOOR, ERNAKULAM DISTRICT, C.NO.3006, CENTRAL PRISON AND CORRECTIONAL HOMSE P.O.VIYYOOR, THRISSUR. BY ADV LIJOY PARACKAL VARGHESE (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA (PUBLIC PROSECUTOR) C.I. OF POLICE,NORTH PARAVOOR P.S., ERNAKULAM DISTRICT BY ADVS. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN SMT.BINDU O.V. PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON 6.07.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.863/2017 ## -:2:- J U D G M E N T Dated this the 6[th ] day of July, 2022 This appeal has been preferred under Section 383 of the Code of Criminal Procedure by the accused in S.C. No. 259/2015 on the file of the Court of Additional District and Sessions Judge, Ernakulam (for short, 'the court below') challenging the judgment of conviction and sentence dated 16[th] April, 2016. 2. The accused faced trial for the offences punishable under Sections 376(2)(i) & (n), 506(II) of IPC, Section 5(l) & (n) r/w 6 of the Protection of Children from Sexual Offences Act (for short, POCSO Act) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, JJ(CPC) Act). 3. The victim was a minor girl aged less than 12 years, studying in 5[th] standard, at the time of the incident. The accused is none other than the father of the victim. The prosecution case in short is that during the period from May 2012 to April 2013, on several days, the accused repeatedly committed sexual assault Crl.Appeal No.863/2017 -:3:- on the victim by threatening her at their house situated at Kottuvally village. 4. The crime was registered by the S.I of Police, North Paravur Police Station on the basis of Ext. P1 statement given by the victim. After completing the investigation, the final report was filed at the Court below. 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 for the offences punishable under Sections 376(2)(i) & (n), 506(II) of IPC, Section 5(l) & (n) r/w 6 of the POCSO Act and Section 23 of the JJ(CPC) Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW15 and marked Exts. P1 to P14. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Section 511 of 376(l) & (n) and 506(II) of IPC, Section 18 r/w 5(l) & (n), 6 of the POCSO Act and Section 23 of the JJ(CPC) Act and he was convicted for the said offences. He was found not guilty for the offence punishable under Section 376(2)(i) & (n) of Crl.Appeal No.863/2017 -:4:- IPC and Section 5(l) & (n) r/w 6 of the POCSO Act and he was acquitted for the said offences. The accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of `10,000/-, in default to suffer rigorous imprisonment for two months under Section 511 of 376(l) & (n) of IPC, sentenced to undergo rigorous imprisonment for five years and to pay a fine of `5,000/-, in default to suffer rigorous imprisonment for one month under Section 506(II) of IPC, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of `5,000/-, in default to suffer rigorous imprisonment for one month under Section 23 of JJ(CPC) 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. Lijoy Parackal Varghese as State Brief. I place on record the able assistance rendered by him. 7. I have heard Sri. Lijoy Parackal Varghese, the learned counsel for the appellant and Smt. Bindu O.V., the learned Public Prosecutor. 8. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and Crl.Appeal No.863/2017 -: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 counsel further submitted that there is no consistency in the statement made by the victim, the dates of the occurrence of the offence are not specified and no occurrence witness was examined, the benefit of which should go to the accused. Per contra, the learned Public Prosecutor, Smt. Bindu O.V. 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 PW1, PW3 and PW8 to prove the incident and to fix the culpability on the accused. PW1 is the victim who gave Ext. P1 statement. PW3 is the teacher to whom the victim disclosed the offence. PW8 is the doctor who examined the victim and gave Ext. P5 certificate. 10. PW1, the victim girl, deposed that from her 5[th] standard onwards, the accused used to sexually assault her by catching her private parts and inserting his penis into her vagina. She gave evidence that, the first incident was on a night in the Crl.Appeal No.863/2017 ## -:6:- month of May, 2012 when her sister slept and her mother was not there in the house. She further deposed that on that night, the accused brought her down from the cot and caught her private parts, removed her dresses and tried to insert his penis into her vagina and threatened her that she will be killed, if she revealed this matter to her mother. She added that, while her mother was away from home, the accused sexually assaulted her in the same manner till her 7[th] standard and whenever she was about to disclose the same to her mother, the accused intervened and threatened her, thus, she could not inform the same to her mother. She also deposed that, she narrated the entire matter to her friends and her teacher, PW3. Subsequently, teachers informed the matter to the police who recorded Ext.P1 statement, took her to the hospital and also informed her mother. 11. PW3 teacher deposed that, in 2015 February, while she took an awareness class for the girl students of 7[th] standard regarding menstruation and sexual changes, she had stressed that even the father shall not be permitted to touch the body. She further deposed that, after the class, friends of PW1 came to her and told that PW1 was sexually assaulted by her father and on Crl.Appeal No.863/2017 -:7:- hearing this, she called PW1 and PW1 told her that “while mother was away from home, father used to sexually assault her, father used to remove her dress, catch her private parts and used to lay over her”. She also deposed that, she informed the same to the Head Master who then informed the matter to the Child Line and police, and she along with police took PW1 for medical examination. 12. PW8 is the doctor, who examined PW1 on 05/03/2015 and issued Ext. P5 certificate. On examination, she could find that, the hymen was torn old, vagina admits 2 fingers and there was evidence of penetration. 13. 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 caught her body and attempted to insert his penis into her vagina several times. 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 Crl.Appeal No.863/2017 ## -:8:- 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]. Here, there is absolutely no ground for doubting the veracity of the child witness, PW1. 15. 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. 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 Crl.Appeal No.863/2017 -:9:- 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 evidence of the PW1 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 PW3 corroborates the evidence of PW1. There is nothing to doubt the said evidence given by PW3. 16. The oral evidence of PW1 gets corroboration from the medical evidence submitted by the prosecution through PW8 and Ext. P5. The deposition of PW8 as well as the contents of Ext. P5 clearly shows that there is evidence of continuous penetrative sexual assault. Ext. P8 would show that the accused is potent and there is nothing to suggest that the person is incapable of Crl.Appeal No.863/2017 -:10:- performing sexual acts. 17. The learned counsel for the appellant vehemently argued that, the best evidence in this case is the evidence of the younger sister of PW1, who was sleeping at the house at the time of the incident but the prosecution did not examine her. I am not inclined to accept the above submission. It has come out in evidence that, the sister of PW1 was less than 10 years old at the time of the incident. That apart, the accused has no case that, she had witnessed the incident. Therefore, non-examination of the sister of PW1 has no consequence. The prosecution evidence clearly establishes that the accused has committed the offence punishable under Sections 511 of 376(l) & (n) and 506(II) of IPC, Section 18 r/w 5(l) & (n), 6 of the POCSO Act and Section 23 of the JJ(CPC) Act. The court below was absolutely justified in convicting the accused under the aforesaid provisions and no interference is called for on the said findings. 18. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of `10,000/-, in default to suffer rigorous imprisonment for two months under Section 511 of 376(l) & (n) of Crl.Appeal No.863/2017 -:11:- IPC, sentenced to undergo rigorous imprisonment for five years and to pay a fine of `5,000/-, in default to suffer rigorous imprisonment for one month under Section 506(II) of IPC, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of `5,000/-, in default to suffer rigorous imprisonment for one month under Section 23 of JJ(CPC) Act. The appellant, who sexually assaulted his own daughter aged less than 12 years, does not deserve any leniency at all. 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**