## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
**WEDNESDAY, THE 3RD DAY OF APRIL 2013/13TH CHAITHRA 1935**
**CRL.A.No. 1122 of 2006 ( )**
**--------------------------AGAINST THE JUDGMENT IN SC NO.512/2004 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC II), ERNAKULAM**
**APPELLANT(S)/2ND ACCUSED: -------------------------**
**JOSHY, S/O AUGUSTINE, KOZHIKKAKUDY HOUSE, KUTTAMANGALAM.**
**BY ADVS.SRI.P.V.ELIAS SRI.JOSHY (PARTY)**
**RESPONDENT(S)/COMPLAINANT: --------------------------**
**STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**R1 BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2013 ALONG WITH CRL.A.NO.1148/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**BKA**
## **P.BHAVADASAN, J.**
-----------------------------------------Crl.A. Nos.1122 & 1148 of 2006 -----------------------------------------Dated this the 03[rd] day of April, 2013
## **J U D G M E N T**
Three persons were prosecuted for the offences punishable under Sections 376 and 372 of IPC. Among them the first and second accused were found guilty of the offence punishable under Section 376 of IPC. A3 was acquitted of all charges. The first and second accused who were found guilty of the offence punishable under Section 376 were convicted and sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs. 3,000/- with a default clause of six months each.
2. A3 used to run an institution by name “Save Kids” which housed handicapped children and other children also. PWs 1 and 2 who are the daughters of PW3 were also admitted in the said institution. PW3's wife is no more now. PWs 1 and 2 were brought back home for giving certain medicines. At that time PW1 complained of severe back
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pain. On enquiry, she said that she was fisted on the back by the Secretary of the institution namely Joshy. On further enquiry, she revealed that in November, 2000, the first accused had committed sexual assault on PWs 1 and 2 and they were subjected to sexual intercourse. That was repeated several time by both the first and second accused. On 16.03.2001, the wife of PW3 laid Ext.P6, First Information Statement. PW8 recorded Ext.P6, First Information Statement and registered crime as per Ext.P6(a), FIR. He prepared Ext.P2, scene mahazar. He had PWs 1 and 2 examined by PW9 who furnished Exts.P11 and P12 reports. PW8 seized the clothes worn by the victim as per Ext.P7 mahazar. After the arrest of the accused, dress was seized as per Ext.P2 mahazar. The clothes seized during investigation were sent for chemical analysis and Ext.P9 is the report. Investigation was then taken over by PW10 who recorded statement of witnesses and obtained necessary records. His successor in office, PW11 completed
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investigation and laid charge before the court.
3. The JFCM Court-I Perumbavoor before whom the final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a court of sessions, the case was committed to the Sessions Court, Ernakulam under Section 209 of Cr.P.C.. The said court made over the case to Additional Sessions Court (Adhoc-II), Ernakulam for trial and disposal.
4. The latter court on getting records and on appearance of the accused framed charges for the offences punishable under Sections 376 and 372 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 11 and had Exts. P1 to P12 marked. MOs 1 to 3 were got identified and marked. After the close of the prosecution evidence the accused were questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence against them and maintained that they were
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innocent.
5. The first accused in his defence stated that from 1999 onwards he has been staying far away and thereafter he has not gone to the institution run by the third accused. He is not familiar with the institution at all. The second accused also disowned any familiarity with the institution and took the stand that PWs 1 and 2 were total strangers to him. Finding that the accused could not be acquitted under Section 232 of Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence.
6. The lower court found the evidence of PW1 cogent and convincing and also found that the evidence of PW1 got sufficient corroboration at the hands of PW9, the doctor who has examined the victim and issued Exts. P11 and P12 certificates. On the basis of these items of evidence, the court below came to the conclusion that the offences have been made out. Accordingly, accused Nos. 1 and 2 were found guilty.
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6. These appeals have been in the list for hearing for a long number of days. When the matter was taken up today for hearing, there was no representation either the appellant or on behalf of the appellant. In the light of the decision reported in **Panduranga v. State of Karnataka [2013 (1) KLT 874],** this Court took pain to go through the records with the help of the learned Public Prosecutor and evaluated the evidence.
8. The main issue seems to be the identity of the persons concerned. Both the first and second accused would say that they had nothing to do with the institution and they had never gone there. However, the prosecution case is that the first accused was the secretary and the second accused was also closely associated with the institution and they had sexually abused PWs 1 and 2.
9. The evidence regarding the incident is confined to PW1 even though PW2 another victim was examined in court, the court on conducting voire dire test found the
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witness to be incompetent witnesses and therefore the witness was not examined. In other words, the evidence regarding sexual assault alleged to have been committed by the first and second accused remains confined to the testimony of PW1. Of course, there is the evidence of PW9, the doctor who had examined PWs 1 and 2. However, PW9 could not examine PW2 as she was non co-operative and therefore no serious examination was conducted with respect to PW2. However, PW9 examined PW1 and has issued Ext.P12 certificate.
10. Since the evidence of incident is confined to the testimony of PW1, it is absolutely necessary that her evidence is referred to. She would say that while studying in the 5[th] standard, she failed and she had to wind up her studies and thereafter she and her sister were taken to the institution run by the third accused. She would say that there were other children also in the institution. According to this witness, she, her sister and another girl used to sleep
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in the same room. She identified accused Nos. 1 and 2 in the box. She would assert that they were closely associated with the running of the institution, but she is unable to say what exactly are the post held by them in the institution. She would say that in the night almost everyday, the second accused used to come near her and violate her body. She also says that the same thing happened to her sister also. She then goes on to say that the first accused also did the same thing to her. She would then say that one day she was taken home by her parents. There, PW2 had severe back pain and on enquiry, they revealed the agony they had undergone in the institution run by the third accused. The mother to whom the information was conveyed according to PW1 passed on the information to their father who is examined as PW3. In cross examination, the witness deposed that the room in which they slept was not usually bolted. Even though she was cross examined at length regarding the incident as spoken to by her, no
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inconsistencies or contradictions were brought out by the defence.
11. PW2 as already stated was found to be an incompetent witness. PW3 is the father of PWs 1 and 2. He came to know about the incident from his wife who is no more to whom the incident was conveyed by PWs 1 and 2. He then says about having laid Ext.P6, First Information Statement and having taken the children for medical examination.
12. The next item of evidence which goes against accused is the testimony of PW9 and Ext.P12. PW9 is the doctor who had examined PWs 1 and 2. As already referred to she was unsuccessful in examining PW2. However she carefully examined PW1 and had issued Ext.P12 certificate. She found that there was tear on the hymen and vigina admitted two fingers easily. She was of the opinion that PW1 was subjected to sexual intercourse. She also deposed that in her examination she noticed that both victims were
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slightly mentally retarded. She however, reserved her final opinion pending chemical examination. But however, she is definite that there is clear evidence of penetration as she was able to notice the tear of hymen and vagina admitted two fingers easily.
13. The attempt of the defence shows that there could not have been proper identification failed because PW1 has categorically stated that she was able to identify both the persons when they committed act on her. It is no doubt true that she would say that there was no light in the room but she would say that she was familiar with them and she could easily identify them.
14. The evidence of PW1 and PW9 are sufficient to show that PW1 has been sexually assaulted. There is no suggestion to PW1 as to why she should falsely implicate the accused namely A1 and A2. Even though A1 and A2 had a case that they had nothing to do with the institution and the evidence of PWs 1 and 6 are clinching enough to show that
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## **Crl.A. Nos.1122 & 1148 of 2006**
they were associated in running of the institution. Of course, PW4 who was examined by the prosecution to prove the association of the first accused with the institution turned hostile. So it could not be said that there was no attempt by the prosecution to adduce the independent evidence. Whatever that be, there is nothing to disbelieve PW3 when he says that he had occasion to see both A1 and A2 in the institution run by the third accused.
15. On a careful scrutiny of the evidence of PW1, it can be seen that there is no infirmity in her evidence and it is found to be cogent, convincing and credit worthy. There is nothing to show that she had any oblique motive to falsely implicate the accused persons and the fact that they have been sexually assaulted is clear from the evidence of PWs 1 and 9 taken along with Ext.P12. It was the above items of evidence which had persuaded the court below to come to the conclusion that there is clinching evidence as against A1 and A2 to show that they had committed the offences as
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alleged against them. The finding of the court below is based on the appreciation of the evidence and it must be remembered that the court below had the opportunity to watch the demeanor of the witnesses also. There is nothing to show that the findings of the court below are perverse or contrary to the evidence on record. The view taken by the court below seems to be a reasonable and possible view and is based on the evaluation of the evidence adduced in the case.
The result is that there are not grounds made out to interfere with the conviction and sentence of the first and second accused passed by the court below. These appeals are without merits and are accordingly dismissed.
**Sd/P.BHAVADASAN, JUDGE**
ds
//True copy//
P.A. To Judge
