Shaiju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 11TH DAY OF JUNE 2020 / 21ST JYAISHTA, 1942 CRL.A.No.273 OF 2018** **AGAINST THE ORDER/JUDGMENT IN SC 448/2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO.1095/2013 OF Puthencruz Police Station , Ernakulam** **APPELLANT/ACCUSED:** **SHAIJU, S/O. SHAJI, AGED 26 YEARS, VETTIYARA PUTHEN VETTIL, NEAR UDAYAGIRI DEVI TEMPLE, MELE KORAVAMPADY BHAGAOM, CHITTOOR KARA, SHOLAYAR VILLAGE, PALAKKAD (DIS)** **BY ADVS. SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR** **RESPONDENT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C** **OTHER PRESENT:** **SRI. RAMESH CHAND PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-06-2020, THE COURT ON 11-06-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No. 273 of 2018 ..2.. ## **P.B.SURESH KUMAR, J.** ## **-------------------------------------** ## **Crl.Appeal No.273 of 2018** ## **--------------------------------------** ## **Dated this the 11[th] day of June, 2020** ## **JUDGMENT** The conviction of the appellant and the sentence imposed on him in S.C. No.448 of 2014 on the files of the Additional District and Sessions Judge, Ernakulam are under challenge in this appeal. 2. The second accused in the case is the appellant. The victim in the case is a girl aged 14 years. The accusation is that the second accused, with the aid and assistance of the first accused, committed penetrative sexual assault and rape on the victim girl at a place near her house. The offences alleged against the second accused were the offences punishable under Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) and Section 376(2)(i) of the Indian Penal Code (the IPC) and the offence alleged against the first accused was the offence punishable under Section 17 of the POCSO Act. Crl.Appeal No. 273 of 2018 **==> picture [20 x 8] intentionally omitted <==** 3. On the accused pleading not guilty of the charges, the prosecution examined 13 witnesses as PW1 to PW13 and proved 19 documents as Ext.P1 to Ext.P19. The prosecution has also caused PW1 to identify MO1 to MO7 material objects. The accused were thereupon questioned by the court under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that they are innocent. Since the court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter upon their defence. The accused did not adduce any evidence. 4. Among the witnesses examined, PW1 is the victim girl. She proved Ext.P1 First Information Statement and Ext.P2 statement given by her under Section 164 of the Code. She has also proved Ext.P3 seizure mahazar. PW2 is the mother of the victim girl. PW3 is the person cited by the prosecution to prove that he sold a mobile phone to the first accused. PW4 is the uncle of the victim girl. PW5 is the doctor who examined the second accused and issued Ext.P5 potency certificate. PW6 is the village official who issued Ext.P6 site Crl.Appeal No. 273 of 2018 ..4.. plan. PW7 is the Headmaster of the school where the victim girl was pursuing her studies. PW7 proved Ext.P7 extract of the school admission register containing the date of birth of the victim girl. PW8 is the witness to Ext.P8 scene mahazar. PW9 is the witness to Ext.P9 seizure mahazar. PW10 is the woman Civil Police Officer who recorded Ext.P1 First Information Statement. PW11 is the doctor who examined the victim girl. PW11 proved Ext.P10 report of medical examination. PW12 is the police official who registered Ext.P11 First Information Report. PW13 is the police official who investigated the case and filed final report in the matter. PW13 proved Ext.P12 arrest memo of the first accused, Ext.P12(a) inspection memo of the first accused, Ext.P13 arrest memo of the second accused, Ext.P13(a) inspection memo of the second accused, Ext.P14 seizure mahazar, Ext.P15 seizure mahazar, Ext.P16 report adding the particulars of the offence committed by the accused, Ext.P17 address report, Ext.P18 copy of the forwarding note and Ext.P19 chemical analysis report. 5. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the first accused. The court below, however, found that ..5.. Crl.Appeal No. 273 of 2018 the second accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and Section 3(a) read with Section 4 of the POCSO Act and convicted him for the aforesaid offences and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 376(2)(i) of the IPC. In the light of the provisions contained in Section 42 of the POCSO Act, no separate sentence was imposed on the second accused for the offence under Section 3(a) read with Section 4 of the POCSO Act. The second accused is aggrieved by his conviction and sentence. 6. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 7. The learned counsel for the appellant submitted that it has come out from the evidence of PW4, the uncle of the victim girl that when the victim girl narrated the occurrence to her parents and relatives, they had prepared a complaint and given the same to the police and it is on that complaint, the case was registered by the police. It was contended by the learned counsel that the said complaint Crl.Appeal No. 273 of 2018 ..6.. should have been the First Information Statement in the case and the same was withheld by the prosecution. According to the learned counsel, when a document of this nature is withheld by the prosecution, it affects the genuineness of the prosecution case and the appellant is entitled to be acquitted on that sole ground. The learned counsel has placed reliance on the decision of the Apex Court in **Marudanal Augusti v. State of Kerala** [(1980) 4 SCC 425], in support of the said proposition. It was pointed out by the learned counsel that the version of PW2 before the court was that PW1 told her that both accused 1 and 2 together came to the scene of occurrence to meet her, whereas, the evidence tendered by PW1 was that the accused came to the scene of occurrence to meet her separately. Placing reliance on the said inconsistency, it was argued by the learned counsel that the evidence tendered by PW1 cannot be relied upon. It is also pointed out by the learned counsel that the consistent case of the victim girl in her evidence is that she used to meet the second accused in the church. According to the learned counsel, admittedly, the second accused is a Hindu and there is no occasion for the victim girl to meet him in the Church. ..7.. Crl.Appeal No. 273 of 2018 The contention of the learned counsel for the appellant is that PW1 cannot be believed on that ground as well. It was also pointed out by the learned counsel that though the prosecution case is that the second accused has communicated with the victim girl through a mobile phone, the call details were not brought on record. According to the learned counsel, the conduct of the prosecution in not making available the call details would also create a strong suspicion about the genuineness of the prosecution case. 8. Per contra, the learned Public Prosecutor submitted that merely for the reason that PW4 has stated that a complaint has been lodged to the police, it cannot be presumed that such a complaint has been filed before the police. It was also pointed out by the learned Public Prosecutor that a suggestion regarding the complaint was put to the police official who registered the First Information Report and the same was emphatically denied by him. According to the learned Public Prosecutor, other than the evidence tendered by PW4, there is nothing to indicate that a complaint has been lodged, and insofar as no evidence is let in to prove that a complaint has been lodged, the accused cannot be heard to Crl.Appeal No. 273 of 2018 ..8.. contend that the prosecution case would collapse on that sole ground. As regards the alleged inconsistency in the evidence of PW1 and PW2, it was pointed out by the learned Public Prosecutor that if one reads the deposition of PW2 carefully, it could be seen that what PW1 told to PW2 is only that the accused have come to meet the victim girl at the place of occurrence. As regards the evidence tendered by the victim girl that she used to meet the second accused at the Church, it was argued by the learned Public Prosecutor that there cannot be a presumption that a Hindu would not go to a Church. As regards the non production of call records indicating communication between the victim girl and the second accused, it was argued by the learned Public Prosecutor that insofar as the prosecution has produced satisfactory evidence to prove the guilt of the accused, non production of the call records is irrelevant. 9. The point arising for consideration is whether the prosecution has proved the guilt of the second accused under Section 376(2)(i) of IPC and Section 3(a) read with Section 4 of the POCSO Act. 10. PW7, the Headmaster of the school where the Crl.Appeal No. 273 of 2018 ..9.. victim girl was pursuing her studies has produced the extract of the school admission register containing the date of birth of the victim girl. Ext.P7 is the said document. In terms of Ext.P7, the date of birth of the victim girl is 18.12.1998. The date of occurrence in the case is 27.10.2013. It is seen that in cross examination of PW7, it was brought out by the accused themselves that the entry relating to the date of birth of the victim girl in Ext.P7 was entered on the basis of her birth certificate. In other words, going by the evidence tendered by PW7 and Ext.P7 extract of the school admission register, the victim girl has not completed the age of 16 years at the time of the alleged occurrence. In the absence of any other evidence to prove the age of the victim girl, in the light of the decision of this Court in **Maju @ Manu v. State of Kerala** (2020 (3) KHC 22), Ext.P7 can be accepted as conclusive proof of the age of the victim girl. If that be so, the only question is as to whether the second accused had sexual intercourse with the victim girl as alleged by the prosecution. 11. As regards the occurrence, the only evidence tendered by the prosecution is the evidence of PW1. The remaining witnesses have been examined by the prosecution Crl.Appeal No. 273 of 2018 ..10.. only to prove the facts which are relevant in the matter of adjudicating the facts in issue. The question therefore, is as to whether the evidence tendered by PW1 could be believed, for it is trite that if the evidence of a rape victim is found reliable and acceptable, the same can be the sole basis for a conviction. 12. The victim girl as PW1 deposed that she was studying in St.John's Jacobite Syrian High School in IX Standard during 2013. She deposed that she was residing with her parents and elder sister then. She deposed that her father is a tapping worker and her mother is a company employee. She deposed that her family belongs to Pentecostal faith. She deposed that she knows the accused as she used to see them in the Church and in other places where prayer meetings are held. She deposed that there was a prayer meeting one day in her house and the first accused came for that meeting. She deposed that while she was serving tea to those who were assembled for prayer meeting, the first accused told her that he likes her. She deposed that thereafter, the first accused used to talk to her on her way to the school. She deposed that the first accused gifted a mobile phone to her and used to Crl.Appeal No. 273 of 2018 ..11.. speak through the phone thereafter. She deposed that once the first accused wanted her to come on the top of the nearby hill and she went to that place accordingly. PW1 deposed that on that day the first accused embraced her, grabbed her breast and kissed her. She deposed that thereafter, the first accused removed her dress and had sexual intercourse with her. PW1 deposed that the first accused thereafter told her that he video graphed their sexual intercourse and threatened her that he will publicize the same, if she narrates the occurrence to anybody. PW1 deposed that the first accused has committed the aforesaid acts on two more occasions. She deposed that after sometime, the second accused called her in that mobile phone and introduced him as the friend of the first accused. PW1 deposed that the second accused was known to her as he used to come for wiring work in a nearby house. PW1 deposed that the second accused also told her that he likes her. She deposed that she liked the second accused also and they used to talk over telephone thereafter. She deposed that one day, the second accused wanted her to come to the hill near her residence and she accordingly went to that place. She clarified that it was on 27.10.2013 at about 2.45 p.m.. She Crl.Appeal No. 273 of 2018 ..12.. deposed that the second accused also, on that day, undressed her and had sex with her. PW1 deposed that she entertained a doubt as to whether she was pregnant and accordingly, she informed the occurrences to her mother and later, she lodged a police complaint. She identified Ext.P1 First Information Statement and Ext.P2 statement given by her under Section 164 of the Code. The defence of the second accused as revealed from the suggestion put by his counsel to the victim girl is that the second accused has no connection whatsoever with the victim girl and that she is uttering falsehood in court. The victim girl has emphatically denied the aforesaid suggestion. Further, she has also clarified in cross-examination that the second accused is a person who is engaged in wiring work and she used to see him working in the house of one Manoharan. The defence has not established any reason for the victim girl to falsely implicate them in a case of this nature. Further, the evidence tendered by PW1 is corroborated by the evidence of PW2, the mother of the victim girl, that the victim girl told her that the accused had sexual intercourse with her. The evidence tendered by PW1 is corroborated further by the evidence tendered by PW4, the uncle of the victim girl. PW4 ..13.. Crl.Appeal No. 273 of 2018 gave evidence to the effect that he used to see the first accused talking to the victim girl on her way to the school alone. The evidence tendered by PW11, the doctor who examined the victim girl that the victim girl was brought before her by the police alleging that two persons have committed rape on her and that on examination she found the evidence of penetration also corroborates the evidence tendered by PW1. If one analyses the evidence tendered by PW1 in the backdrop of the evidence tendered by PW2, PW4 and PW11, it can be seen that she was speaking only the truth in court. I have, therefore, no hesitation to hold that the evidence tendered by the victim girl is truthful and reliable. 13. Now I shall deal with the contentions raised by the learned counsel for the appellant. True, during crossexamination, PW4, the uncle of the victim girl has stated as follows: “അത�ന ശ�ഷ� പഞ�യത� മ�മർ ശ�കബ��യ� സ�സ�ര�ച ശ�ഷ��ണ� പര�ത� മ��ടതത� . ശ�രമത ഉള ചർചയ�ൽ മ�മർ ശ�കബ� ഉണ�യ�രന. പര�ത� ഞങൾ . എഴത� മ��ടതത�ണ� ആ പര�ത� കട�യ�ശ-�ച�യ ശ�ഷ� ഞങളമട വ1ട�ൽ മവച�ണ� എഴത� തയ�റ�ക�യത�. അന�ൻ Crl.Appeal No. 273 of 2018 ..14.. ഏ-�യ�സ�ണ� പര�ത�യ�ൽ ഒപ�ട മ��ടതത�. ആ പര�ത� station ൽ മ��ടക���യ� ഞ�ന� അ��യന� ഭ�ര;യ� എമ= ��ന� ഉണ�യ�രന. ആ പര�ത�യമട അട�സ��ത�-�ണ� ഈ ശ�സ� എടതത�.” It is on the basis of the aforesaid evidence that the learned counsel for the appellant has contended that the first complaint lodged by the victim girl was withheld by the prosecution. As rightly contended by the learned Public Prosecutor, though PW4 has asserted that a complaint has been prepared and given to the police, there is no satisfactory evidence to show that such complaint has been given to the police. True, PW4 has stated that it is based on that complaint that the case was registered. Insofar as it is revealed that the case is not registered on the complaint referred to by PW4, but on the statement given by the victim girl under Section 154 of the Code, the statement aforesaid could only be the belief of PW4. In the absence of any satisfactory evidence to show that a complaint has been given by the victim girl as referred to by PW4, I am of the view that the contention raised by the learned counsel for the appellant in this regard is liable to be rejected. ..15.. Crl.Appeal No. 273 of 2018 In **Marudanal Augusti** , it was observed by the Apex Court that the entire fabric of prosecution case would collapse if the First Information Report is held to be fabricated or brought into existence long after the occurrence. The said judgment, according to me, may not have any application to the facts of the present case, for, the case advanced by the appellant that the First Information Report in the case is fabricated, is found against. 14. Similarly, I do not find any inconsistency in the evidence tendered by PW1 and PW2 as pointed out by the learned counsel for the appellant. The portion of the evidence relied on by the learned counsel for the appellant to contend that the evidence tendered by PW1 and PW2 are inconsistent reads thus: “അവർ രണ ശപര� �-യ�ൽ ഒന�ച�ണ� വനത� എന�ണ� ��ൾ എശന�ട� പറഞത�.” While giving the aforesaid evidence, PW2 was only narrating what PW1 has told her. As pointed out by the learned counsel for the appellant, the version of PW1 is that the accused have come to the place of occurrence on different occasions. Merely for the reason that PW2 has stated that PW1 has told her that Crl.Appeal No. 273 of 2018 ..16.. both the accused came to the scene of occurrence together, it cannot be said what PW1 has stated is incorrect. The possibility of PW2 misunderstanding PW1 as to her statement cannot be ruled out. Further, insofar as it was found that the evidence tendered by PW1 is reliable and trustworthy, the argument aforesaid lacks merit. Similarly, there cannot be a presumption that a Hindu would not go to a Church and therefore, the contention that PW1 has to be disbelieved since she deposed that she has seen the second accused who is a Hindu in a Christian Church, is also liable to be rejected. True, the prosecution could have made available the call records. But merely for the reason that the prosecution has not made available the call records, it cannot be said that the prosecution has not proved its case, especially when it was found on other evidence that the prosecution has established its case. For the aforesaid reasons, I do not find any merit in the Criminal Appeal and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR JUDGE** ds 05.03.2020