Sharmmilan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRL.A NO. 241 OF 2019** **AGAINST THE JUDGMENT IN SC 1232/2017 OF I ADDL.DISTRICT AND SESSIONS COURT,KOLLAM** ## **APPELLANT/ACCUSED:** SHARMMILAN AGED 32 YEARS S/O KRISHNANKUTTY, C.NO.2800, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM AND RESIDED AT RENTED FLAT OF SHERIFFKUTTY, NEAR KOTTAPPURAM MOSQUE, THAZHUTHALA CHERRI, ADICHANALLOOR VILLAGE, KOLLAM. BY ADV ADV. REMYA M.L. (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2 INSPECTOR OF POLICE SMT SHEEBA THOMAS-PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2022, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.241/2019 ## -:2:- J U D G M E N T Dated this the 2[nd ] day of March, 2022 This appeal has been preferred by the accused in SC No.1232/2017 on the file of the First Additional District and Sessions Court, Kollam against the judgment dated 21/6/2018 convicting him u/ss. 3(b) r/w 4 and 5 (i) r/w 6 of the Protection of Children from Sexual Offences Act (for short, the POCSO Act ) and S.75 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, the JJ Act). 2. The accused is the father of the victim. At the time of the incident, the victim was aged 4½ years. The accused, his wife (PW4), the victim (PW2), the brother of the victim and grandmother of the victim (PW1) were residing together at a flat bearing No.XVIII/29 of Adhichanalloor Panchayat. The prosecution case in short is that on many days prior to 11/7/2017, the accused sexually assaulted the victim at his house mentioned above by inserting his finger and buds into her anus. According to the prosecution, on 10/7/2017, PW1 took the victim and her Crl.Appeal No.241/2019 -:3:- brother to the flat of the son of PW1. On 11/7/2017, when PW1 washed the victim, she did not allow to wash on her private parts. When enquired, the victim told PW1 about the sexual assault made by the accused. Immediately PW1, PW3 (daughter-in-law of PW1) along with the victim went to the Kottiyam Police Station and made complaint to PW12, the Sub Inspector of Police. Ext.P1 is the FI statement. On the basis of Ext.P1, PW12 registered FIR against the accused u/s 376 of IPC, Ss.3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and S.75 of the JJ Act. PW15, Circle Inspector of Police, Kottiyam conducted the investigation. After completing the investigation, he filed final report against the accused before the learned Magistrate. The learned Magistrate after complying with the statutory formalities committed the case to the Court of Sessions. 3. The accused appeared at the Court below. After hearing both sides, the Court below framed charge against the accused u/ss. 3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and S.75 of the JJ Act. The charge was read over and explained to the accused who pleaded not guilty. On the side of the prosecution, PWs1 to 15 were examined and Exts.P1 to P14 were marked. On Crl.Appeal No.241/2019 -:4:- the side of the defence, Exts.D1 and D2 were marked. After trial, the Court below found the accused guilty for the offence u/ss. 3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and u/s 75 of the JJ Act and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `50,000/-, in default to suffer simple imprisonment for three months for the offence punishable u/s 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `25,000/-, in default to undergo simple imprisonment for 3 months for the offence u/s 4 of the POCSO Act. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 4. I have heard Smt.Remya M.L. (State brief), the learned counsel appearing for the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor. 5. The learned counsel for the appellant vehemently argued that the victim did not give evidence in support of the prosecution case and the evidence of PWs1, 3 and 4 relied on by the Court below to rest the conviction are hearsay and inadmissible in evidence. The counsel further submitted that the Crl.Appeal No.241/2019 -:5:- medical evidence does not support the oral testimony. The prosecution miserably failed to prove the guilt of the appellant, argued the counsel. On the other hand, the learned Public Prosecutor, Smt.Sheeba Thomas, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Ss.3(b) r/w 4 & 5 (i) r/w 6 of the POCSO Act and S.75 of the JJ Act had been established against the accused and the prosecution has succeeded in proving the case beyond reasonable doubt. 6. The prosecution mainly relied on the evidence of PWs1, 3 to 6 and 8 to prove the incident and to fix the culpability on the accused. PW1 is the grandmother of the victim who gave FI statement. PW2 is the victim. But the Court below found that she was incompetent to testify before court. PW3 is the daughterin-law of PW1. PW4 is the mother of the victim. PW5 is the Doctor who examined the victim and gave Ext.P2 report. PW6 is the Doctor who examined the accused and issued Ext.P3 potency certificate. PW8 is the Registrar of Births and Deaths attached to the Kollam Corporation. Ext.P5 birth certificate of the victim was proved through him. Crl.Appeal No.241/2019 -:6:- 7. PW1 gave evidence that on 10/7/2017, while she was washing the victim at the house of her son, the victim did not allow to wash her private parts. She further deposed that when she asked the reason, the victim replied that her father inserted his finger and buds into her anus. The victim was studying in LKG at that time. She further deposed that after washing the child, she was made to lie on a cot and when checked her private parts, she found abrasions and blackening there. PW3 is the daughterin-law of PW1. PW3 deposed that PW1 had told her what the victim had told her about the sexual assault made by the accused. She further deposed that thereafter she enquired with the victim, who confirmed with her that the accused inserted his finger and buds into the anus. She further deposed that she along with PW1 went to Kottiyam Police Station and gave complaint. PW5, the Doctor, gave evidence that on 12/7/2017 at 12.40 p.m, she examined the victim and issued Ext.P2 report. She further deposed that on examination she noted abrasion around anal sphincter. The Doctor opined that there was evidence of recent anal penetration and the findings are consistent with the history of alleged sexual assault. Crl.Appeal No.241/2019 -:7:- 8. The learned counsel for the appellant vehemently argued that this is a case where the victim was found incompetent to give evidence and the evidence given by PWs1 and 4 are only hearsay and cannot be relied on. The evidence given by PW1 would clearly show that when the victim did not permit her to wash her private parts, she asked the reason and then the victim complained that the accused sexually assaulted her by inserting his finger and buds into her anus. This conduct of the victim in complaining to her grandmother about the sexual assault on her made by the accused is relevant and can be received in evidence u/s 8 of the Indian Evidence Act since it constitutes subsequent conduct of the victim. The bare language of S.8 makes it abundantly clear that the subsequent conduct of any party to a proceeding is relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or relevant therein. The Illustration (j) to S. 8 of the Indian Evidence Act reads thus: ## _“_ _**8. Motive, preparation and previous or subsequent conduct.**_ _xxxxx_ _(j) The question is, whether A was ravished._ Crl.Appeal No.241/2019 ## -:8:- _The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstance under which, and the terms in which, the complaint was made, are relevant._ _The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157.”_ The above Illustration squarely applies to the facts of this case. PW1 when enquired about the reluctance of the victim to allow to wash her private parts, the victim told her about the sexual assault made by the accused. This would certainly constitute a complaint relating to the crime narrating the circumstances and the manner in which she was subjected to sexual assault by the accused. The statement given by the girl of such an age in the form of imparting information would necessarily take the character of a complaint. Being the victim herself, she is a party to the proceedings within the ambit of S.8 and her complaint to the grandmother is her subsequent conduct having direct bearing on the fact in issue and, thus, admissible u/s 8. The Apex Court in _**Rameshwar v. State of Rajasthan**_ (AIR 1952 SC 54) has held that the previous statement of the raped girl to her mother, Crl.Appeal No.241/2019 -:9:- immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of S.157 of the Evidence Act. In order to come to the aforesaid conclusion, Illustration (j) to S.8 of the Indian Evidence Act was relied on. This Court in _**Thottakkara Chathan v. State**_ (2009 (2) KHC 175) has held that the conduct of a woman in complaining to her mother about the sexual assault on her is relevant since such conduct is influenced by the factum of such assault which is a relevant fact for the issue arising for decision. The Division Bench of the Madhya Pradesh High Court in _**Indru v. State of H.P.**_ (1989 KHC 1570) has held that the statement made by the prosecutrix shortly after the gruesome incident complaining to her mother narrating the circumstances and the manner in which she had been subjected to rape by the accused having direct bearing on the fact in issue is admissible as evidence u/s 8 of the Indian Evidence Act. For these reasons, I am of the view that the evidence of PW1 and PW3 can safely be relied on with the aid of S.8 of the Indian Evidence Act. 9. The evidence of PWs1 and 3 gets corroboration from Crl.Appeal No.241/2019 -:10:- the evidence of PW5, the Doctor. The evidence of PW5, the Doctor, who examined the victim, would show the history as narrated by the victim and Ext.P2 report prepared by her is a contemporaneous report prepared while examining the victim. The evidence of PW5 that there are injuries around the anal opening would prove that penetrative sexual assault was committed by the accused. 10. The learned counsel for the appellant further submitted that it has come out in evidence that PW4, the mother of the victim, was having an affair with one Mr.Navas and actually it was he who molested the child. According to the learned counsel, PW4 wanted to continue her relation with Mr.Navas and to avoid the accused from her life, a false case was foisted misusing the child. There is absolutely no evidence to show that the victim was molested by Mr.Navas and PW4 is having an affair with him. It is quite improbable and unreasonable to believe that PW1, the grandmother of the victim, would foist such a false story. It is pertinent to note that FIS was given by PW1 and not by PW4. PW4 even came to know of the disclosure made by the victim to PW1 about the sexual assault only after FIS was lodged. Crl.Appeal No.241/2019 -:11:- 11. The evidence given by PW1, 3 and 5 coupled with Ext.P2 clearly proves that the accused committed penetrative sexual assault on the victim by inserting his fingers into her anus. The evidence of PW8 coupled with Ext.P5 would prove that the victim was aged only 4½ years at the time of the occurrence. The evidence of PW6 coupled with Ext.P3 would prove the potency of the accused. Thus, the prosecution has succeeded in proving beyond reasonable doubt that the accused has committed the offence punishable u/s 3(b) r/w Ss.4, 5 (i) r/w S.6 of the POCSO Act as well as u/s 75 of the JJ Act. No interference is called for on the said finding of the Court below. 12. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for 10 years and to pay a fine of `50,000/-, in default to suffer simple imprisonment for three months for the offence punishable u/s 6 of the POCSO Act and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `25,000/-, in default to undergo simple imprisonment for 3 months for the offence u/s 4 of the POCSO Act. The counsel submitted that the sentence is excessive. Crl.Appeal No.241/2019 -:12:- 13. In _**State of M.P. v. Babulal**_ [(2008) 1 SCC 234], the Apex Court held that once a person is convicted for the offence of rape, he should be treated with heavy hands and an undeserved indulgence or liberal attitude in not awarding adequate sentence would encourage potential criminals. In _**Dhananjoy Chatterjee**_ _**v. State of West Bengal**_ [(1994) 2 SCC 220], the Apex Court held that the Court must not only keep in view the rights of the criminal, but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. In the instant case, a 4½ year old minor girl was sexually assaulted by the accused, who is her own father. I find no mitigating circumstances to interfere with the punishment imposed by the Court below on the accused. In view of the above findings, I find no reason to interfere with the conviction an sentence passed by the court below. Accordingly, the appeal stands dismissed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** **//True copy// PS to Judge**