Sivadas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 7TH DAY OF JUNE 2013/17TH JYAISHTA 1935** ## **CRL.A.No. 1427 of 2012 ()** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC NO.83/2012 OF SPECIAL COURT (COURT OF SESSION), MANJERI DATED 25-09-2012** **... AGAINST THE ORDER/JUDGMENT IN CP NO.1/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,TIRUR** **.......** ## **APPELLANT(S):ACCUSED** **---------------------------------------** **SIVADAS, S/O.NARAYANAN, C.NO.985, CENTRAL PRISON, KANNUR, KALATHIL HOUSE,PAZHOOR, CHEMBIKKAL, KUTTIPURAM, MALAPPURAM DISTRICT.** **BY ADV. SRI.SANAL K.M. (STATE BRIEF)** **RESPONDENT(S):** **----------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.V.S.SREEJITJH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.1427 OF 2012 --------------------------------------Dated this the 7[th] day of June, 2013.** ## **J U D G M E N T** The accused in this case faced prosecution for the offences punishable under Sections 323, 506(I) and 376 of Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act. He was found guilty on all counts. He was, therefore, convicted and sentenced to suffer rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- with default clause of rigorous imprisonment for 15 days for the offence under Section 323 IPC. He was also sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- with default clause of rigorous imprisonment for one month for the offence under Section 506(I) IPC, and rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- with default clause of rigorous imprisonment for two months for the offence under Section 376 IPC, and simple imprisonment for a period of one month and to **Crl.Appeal No.1427/2012** **2** pay a fine of Rs.500/- with default clause of simple imprisonment for 15 days for the offence under Section 23 of the Juvenile Justice (Care and Protection of Children) Act. It was also directed that 75% of the fine recovered shall be paid to PW1. The substantive sentences were directed to run concurrently and set off as per law was allowed. 2. At the outset itself, it may be observed that this case discloses a very disturbing plight of the members of the house consisting of a mother and two daughters. The brief facts which shock the mind are as follows: 3. PWs 1 and 9 are the children of PW5. The accused is the stepfather of PW1 and the father of PW9. While PW9 was studying in the 10[th] standard, it so happened that she conveyed PW6 who was a counselor attached to the school about the pitiful state of affairs in the house and the cruelty meted out by her father on her sister PW1 and her mother PW5. PW6 informed the matter to PW10 who was a member of Kerala Women's Commission and PW10 in her turn conducted an enquiry, took statements from the inmates of the house of PW9 and then **Crl.Appeal No.1427/2012** **3** preferred Ext.P5 complaint before the Police. On the basis of Ext.P5 complaint, a crime was lodged as per Ext.P6 First Information Report by PW8. PW11 took over the investigation. He prepared Exts.P7 and P7(a) scene mahazars, recorded the statement of witnesses, completed the investigation and laid charge before court. 4. The Judicial First Class Magistrate Court-I, Tirur before whom final report was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Special Court, committed the case to Sessions Court, Manjeri. The said court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 323, 506(I) and 376 of Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 11 examined and Exts.P1 to P10 marked. 5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the **Crl.Appeal No.1427/2012** **4** incriminating circumstances brought out in evidence against him and maintained that he is innocent. It is pointed out that PW1 was his wife and PW5 was his mother-in-law. On finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. But he chose to adduce no evidence. Relying on the evidence adduced by the prosecution, which the court found sufficient enough to come to the conclusion that sexual assault has been committed on PW1 and the offence under the Juvenile Justice (Care and Protection of Children) Act has been committed against PW9, the court below found the accused guilty on all counts. The conviction and sentence as already mentioned followed. 6. The accused had preferred an appeal from Jail and Adv.Sanal K.M was appointed as State Brief to present the case of the appellant. Adv.Sanal in his well presented argument raised several contentions assailing the findings of the court below. The main contention raised by the learned counsel for the appellant is that there is considerable delay in preferring the complaint regarding the acts committed against PW1 and that **Crl.Appeal No.1427/2012** **5** has not been taken note of by the court below. As far as PW9 is concerned, there is only a solitary sexual abuse and strictly speaking, it will not amount to sexual assault. It was also contended that there is no definite evidence regarding the age of PW1 at the time of first violation. Learned counsel pointed out that the prosecution case is that PW1 had undergone an abortion while she was in the 7[th] standard but, for the reasons best known to the prosecution, they did not produce any evidence regarding the same. So also the evidence shows that PW1 had delivered a baby while she was in the 9[th] standard and regarding that also no documents are produced. According to the learned counsel, if those documents were produced, one could have ascertained the age of the victim at the relevant time. The non production of those documents being deliberate, adverse inference needs to be drawn against the prosecution. Learned counsel then pointed out that the reason for not complaining the matter earlier, as given by PWs 1 and 5, is that they were afraid of the accused. There was no change of circumstance to take away fear and the later complaint shows that the theory of fear put forward cannot be **Crl.Appeal No.1427/2012** **6** true. 7. Drawing attention to the evidence of PWs 1 and 5, it was pointed out by the learned counsel for the appellant that according to PW1, the accused had married PW5 in 1995 when she was ten years of age while PW5 would say that she had married the accused in 1996. These inconsistencies and incongruities making the age of PW1 doubtful about the time when the first incident occurred have been omitted to be noticed by the court below. These infirmities and inconsistencies, according to the learned counsel, are sufficient to upset the conviction and sentence. Learned counsel also relied on the decision of the High Court of Delhi in _**Kanchan Dass** vs._ _**State**_ (1991 Crl. Law Journal 2036) in support of his contention that in case the extract of the school register is produced, relevant application needs to be produced. 8. Learned Public Prosecutor, on the other hand, contended that the evidence of PWs 1, 5, 6, 9 and 10 will clinchingly show that the prosecution has established its case beyond reasonable doubt. Drawing attention to the evidence of PWs 1 and 6, it is **Crl.Appeal No.1427/2012** **7** pointed out by the learned Public Prosecutor that the defence set up was that PW1 has been given in marriage to the accused and that he had not married PW5. This does not stand scrutiny at all. 9. Regarding the age of PW1 agitated by the learned counsel for the appellant, it was contended by the learned Public Prosecutor that a close reading of the evidence of PW1 would show that she was aged only 12 or 13 years when the first time she was ravished. The age given by her of the four children she got as a result of the relationship with the accused will show that the first incident was when she was 12 or 13 years of age. 10. As regards the delay in filing the complaint, it was contended by the learned Public Prosecutor that, strictly speaking, there is no delay at all. PW9, as soon as the incident in her house occurred had complained to PW6 who in turn informed PW10. PW10 had gone to the house of PW9 and taken the statements of the inmates and then preferred Ext.P5 complaint. In such circumstances, according to the learned Public Prosecutor, the delay assumes no significance. The circumstances under which the victim was placed has to be **Crl.Appeal No.1427/2012** **8** appreciated. Viewed from that angle the conviction cannot be assailed. 11. According to the learned Public Prosecutor, the court below has considered different aspects and has come to the conclusion that the offences have been made out and no grounds are made out to interfere with the same. 12. As already noticed, this case depicts a pitiful state of affairs. There is much controversy as to whether PW9 is the daughter of the accused. But that is set at rest by the evidence on record. One of the main defence set up was that the accused was married to PW1 and that PW5 was his mother-in-law. This could be seen from the statement given by him at the time of questioning under Section 313 Cr.P.C. 13. The evidence of PW6 is to the effect that while she was acting as a counsellor in the school in which PW9 studied, PW9 had occasion to meet her and told her about the agonies faced by the family at home. The evidence of PW6 is that she informed the Women's Commission about the same. Then comes to the evidence of PW10. PW10 says that on coming to know about the **Crl.Appeal No.1427/2012** **9** situation in the house of PW9, she went to the house of PW9 and recorded the statements of PWs 1, 5 and 9 and on the basis of the enquiry conducted, she filed Ext.P5 complaint. These aspects are clearly established by the evidence of PWs 6 and 10. There is no serious challenge to the versions given by PWs 6 and 10. It must twice be noticed that till a complaint is filed by PW10, the incident would have remained unknown. PW10 had set law in motion and then the shaking news came to alive. 14. One has to go back to the evidence of PW1 who is the child which PW5 had in her first marriage and PW9 is the child which she had in her relationship with the accused. There is slight inconsistencies regarding the year of marriage between the evidence of PWs 1 and 5. While PW1 would say that the marriage was in the year 1995 while she was aged 10 years, PW5 would say that it was in the year 1996. These inconsistencies and incongruities have not much bearing on the issue involved in the case. The prosecution sought to prove the age of PW1 by relying on Ext.P4 proved through PW4. According to the learned counsel for the appellant, Ext.P4 and the evidence of PW4 are **Crl.Appeal No.1427/2012** **10** insufficient to prove the age of the victim namely, PW1. Ext.P4 is the extract of the school register showing the date of birth of the victim as 28.03.1985. PW4 was the Headmistress in charge at the relevant time. She has spoken to the effect that the entries as per the register kept in the school show the date of birth of PW1 as 28.03.1985. It is no doubt true that she has also spoken that the entry showing the date of birth in Ext.P4 was made on the basis of the transfer certificate obtained from the earlier school where PW1 had undergone studies. It is also true that the original entry has not been produced. However, this Court had occasion to consider such a case and has held that unless and until it is shown that the document produced for proof of age suffers from serious infirmities, there is no reason as to why the extract of the school register should not be accepted as proof of age. In the light of the said principles laid down by this Court, the challenge against Ext.P4 has to fail. 15. Even though, as rightly pointed out by the learned counsel for the appellant, the documents regarding abortion and delivery undergone by PW1 have not been produced, it can have **Crl.Appeal No.1427/2012** **11** only little significance and it is not sufficient to demolish the prosecution case. PW1 has categorically stated the agonies undergone by her from the days of first assault on her while she was 12-13 years of age. As rightly pointed out by the learned Public Prosecutor, the age of the children of PW1 given by her to a large extent shows that her claim that she was ravished by the first time while she was 12 - 13 years of age is probable. At any rate, she had stated that abortion was carried out while she was in the 7[th] standard. By no stretch of imagination, it could be said that at that time she was more than 16 years of age. The evidence is also to the effect that she had delivered while she was in the 9[th] standard and thereafter she had delivered four other children, all of the accused. 16. One must remember the claim of the accused that he had married PW1. But that is not established. PW1 as well as PW5 stoutly denied the said claim. There is nothing to show that PW1 had married the accused. There is enough proof to come to the conclusion that PW9 was born to the accused through PW5. When that fact is taken note of, it is highly improbable that the **Crl.Appeal No.1427/2012** **12** claim of the accused that PW1 was given in marriage could be true. Therefore, the claim of the accused that PW1 was his wife cannot be accepted. 17. As far as the incident in which PW9 is involved, there is only a complaint of the accused having shown his private parts to the child. But he uttered certain words which are certainly objectionable and PW9 has spoken about it and it is not necessary to reproduce the same in this order. It is seen from the evidence of PWs 1 and 5 that the accused was very cruel to them and they were afraid of him. The fact that the evidence of PW5 shows that the assault on PW1 was carried out while she was at home shows the helplessness and inability of the inmates of the house to react to the acts committed by the accused. 18. The evidence of the doctor PW2 who issued Ext.P1 certificate after examining PW1 would show that PW1 was sexually assaulted and the history stated as shown in Ext.P1 goes a long way in establishing the fact that there was no marriage as claimed by the accused between him and PW1 and that PW1 was repeatedly ravished by the accused. There is no reason to **Crl.Appeal No.1427/2012** **13** disbelieve the entries in Ext.P1 and as spoken to by PW2. 19. Thus, none of the contentions raised by the learned counsel for the appellant can be accepted to assail the findings of the court below. The court below has considered various aspects in considerable detail and has come to the conclusion that the prosecution has succeeded in establishing its case. On a reading of the evidence of PWs 1, 5, 6, 9 and 10, there is no doubt true that the acts attributed to the accused have been conclusively established beyond reasonable doubt. The court below was therefore right in its finding in that regard. The conviction is only to stand. Coming to the sentence, considering the relationship between the parties and also the plight in which PWs 1, 5 and 9 were placed, it could not be said that the sentences awarded for various offences are excessive. In the result, the appeal is without merit and it is liable to be dismissed. I do so confirming the conviction and sentence passed against the accused. ## **Sd/P.BHAVADASAN JUDGE** smp