Sudheer alias Suneer v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 CRL.A.No. 1251 of 2012 AGAINST THE JUDGMENT IN SC No.76/2012 of II ADDL.SESSIONS COURT, ERNAKULAM, DATED 26-07-2012 APPELLANT/ACCUSED : - ------------------------------------ SUDHEER @ SUNEER, S/O. ABDUL RAHMAN, CHAUTHIPARAMBIL(H), VANIYAKKAD, KOTTUVALLY VILLAGE, ERNAKULAM. BY ADVS.SRI.M.VIVEK SRI.M.R.MADHU RESPONDENT/COMPLAINANT-STATE:- -------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR. PUBLIC PROSECUTOR SMT. AMBIKA DEVI (FOR ATROCITIES AGAINST WOMAN AND CHILDREN) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2017. THE COURT ON 16.01.2018 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------Crl.Appeal No.1251 of 2012 -----------------------------------------------Dated this the 16[th] day of January, 2018 ## J U D G M E N T ## **Somarajan, J.** Appeal is against the judgment of conviction and order of sentence under Sections 376 (1) and 506(1) IPC and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, in Sessions Case No.76 of 2012, dated 26.07.2012, of the IInd Additional Sessions Court, Ernakulam. 2. A muslim minor girl, aged 14 years, was subjected to rape by her own father twice by laying her on the cot in the south western room of their house situated at Kottuvally Panchayat on a day in the month of April 2009 while her mother Subaida (CW2) and brother Naufal (CW3) were not in the house. He had also unleashed threat on her not to disclose the same to others, otherwise he would kill her and her brother and publish her nude photos in the internet. Later on she was taken to various persons and subjected to sexual assault at various places by her father. Crl.Appeal No.1251/12 2 3. On 07.03.2011, the victim accompanied by CW4 Beerankunju and CW5 Hafsath reached the North Paravoor Police Station and gave FIS, based on which a crime was registered as Crime No.346/2011 of North Paravoor Police Station, revealing the commission of offence of rape by her father and various sexual assaults on her by so many persons at the instance of her father, who had offered her to various persons for his personal gain. The investigation was took over by a special investigation team of CBCID. 4. The learned Sessions Judge, having regard to the oral and documentary evidence tendered and after hearing both the parties, found the accused guilty of offence punishable under Sections 376 (1) and 506(1) IPC and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and convicted him thereunder and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- under Section 376(1) of IPC and in default, to undergo rigorous imprisonment for two years. He was also sentenced to undergo rigorous imprisonment for one year under Section 506(1) IPC and to undergo simple Crl.Appeal No.1251/12 3 imprisonment for six months under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, with a further direction to release the fine amount to PW1 under Section 357(1) of the Cr.P.C. by its judgment of conviction and order of sentence dated 26.07.2012, against which this appeal is preferred. 5. PW1 is the victim. PW2 is her brother who turned hostile to the prosecution. PW5 is the sister of PW1's mother. PW6 is a relative who was examined by the prosecution. PW7 was examined to prove Exhibit P15 agreement, dated 19.02.2011, which was entered into based on a complaint to the Muslim-Juma Ath Committee, dated 11.02.2011. PW10 is the witness to the said agreement. PW11 is the President of the Mahal committee. Minutes of the Mahal committee are exhibited as P19 and P20, dated 16.02.2011 and 18.02.2011 respectively, by which the accused was expelled from the Juma Ath. The complaint was separately marked as Exhibit P3, seized under Exhibit P21 seizure mahazar and proved through the Secretary of the Mahal Committee, PW12. PW13 is a member of the Mahal Committee and attestor of the Crl.Appeal No.1251/12 4 seizure mahazar of minutes. PW8 and PW9 are the SubTreasury Officer and Senior Accountant of treasury examined to prove Exhibits P16 and P17. PW15 is the Doctor who treated the victim at St. Joseph's Hospital, Kothamangalam and Exhibit P23 was proved through her. PW16 was examined to prove the seizure of treatment record exhibited as P23 under Exhibit P24 seizure mahazar. PW17 is the Village Assistant who prepared Exhibit P25 Site plan. PW18 was examined to prove Exhibit P26 Ownership Certificate of the house stands in the name of Subaida, mother of the victim. PW19 was examined to prove the Birth Certificate exhibited as P27. The date of birth is stated to be on 23.08.1994. Motor cycle belonged to the accused was seized under Exhibit P28 mahazar witnessed by PW20 and it was produced by PW21. PW22 recorded the statement of the victim on 29.03.2011 under Section 164 Cr.P.C. as per Exhibit P29 order issued by CJM and the statement is separately marked as Exhibit P7. PW23 is the Skin Specialist of Mar Baselious Hospital, who consulted the victim when she was infected with sexually transmitted venereal diseases. Case sheet is produced and Crl.Appeal No.1251/12 5 marked as Exhibit P30 seized under Exhibit P31 mahazar. PW25 is the witness to the mahazar. The said document was produced by PW24. PW26 is Dr.Sheela Sadasivan, Consultant in Obstetrics and Gynecology, General Hospital, Ernakulam, who examined the victim on 08.03.2011 and issued Exhibit P32 certificate. Vaginal swab and pubic hairs from the victim were taken and sent for examination. Exhibit P33 is the final opinion in which no spermatozoa was detected. PW27 is the Doctor who conducted potency and issued a certificate exhibited as P34. The specimen sent by Dr.Sheela (PW26) was subjected to chemical examination and report produced and marked as Exhibit P35. PW29 is the Judicial Magistrate of First Class, Perumbavoor, who recorded the statement of PW1, PW3 and PW5, exhibited as P6, P12 and P14 respectively, under Section 164 Cr.P.C. PW30 is the Sub Inspector of Police who recorded Exhibit P5 FIS, but it was taken down by a Head Constable, one Joy, attached to the said Police Station. Exhibit P36 FIR was registered on 07.03.2011 at 8.35 p.m. PW31 is the Circle Inspector of Police who had conducted initial investigation from Crl.Appeal No.1251/12 6 08.03.2011 to 30.05.2011 and handed over the investigation to the CBCID. PW32 is the Detective Inspector, CBCID, who took the investigation on 30.05.2011 and PW33 is the DYSP CBCID who laid the final report. 6. Regarding the age of victim, the prosecution had produced the birth certificate of CW1, the victim, exhibited as P27, issued by PW19, the Officer attached to the Registrar of Births and Deaths in the Aluva Municipality, the statutory body empowered to register births and deaths, wherein the date of birth of the victim, CW1, is stated as 23.08.1994, which would show that, as on the date of commission of offence, she was only a minor aged about 14 years. The prosecution allegation is that on a day in April 2009 while her mother and brother were away from the house, the accused committed rape on her. 7. The learned Sessions Judge had given much reliance on the oral evidence tendered by the prosecutrix and found the accused guilty of offence punishable under Sections 376(1) and 506(1) IPC and also under Section 23 of Juvenile Justice (Care and Protection of Children) Act, 2000, with the Crl.Appeal No.1251/12 7 aid of attending circumstances. Needless to say that in the matter of commission of rape or sexual assault on women, minor children, there may not be any direct independent witness other than the victim/prosecutrix and hence high probative value has to be given to the oral deposition of the prosecutrix/victim, taking into consideration the vulnerable conditions of the victim, who had been subjected to sexual assault. 8. The settled position of law in the matter of S.376 IPC is that the conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. The legal position was settled in _**State of Himachal Pradesh v. Asha Ram (2006 KHC 157 = AIR 2006 SC 381 = 2006 SCC (Crl.) 296 = 2005 (13) SCC 766)**_ . The Apex Court had taken note of the shocking increase of sexual assault on minor girls and have given more reliability to the evidence of a prosecutrix than that of an injured witness. The relevant portion of paragraph 2 of the judgment in _**Asha Ram's case (supra)**_ is extracted below for reference: Crl.Appeal No.1251/12 8 “.... It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” 9. The Apex Court had also considered various decisions on the point in paragraph 17 to 21 which are extracted below for reference: Crl.Appeal No.1251/12 9 “17. In the case of _Bharwada Bhoginbhai Hirjibhai_ v. _State of Gujarat_ , AIR 1983 SC 753, this Court pointed out that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? It was further pointed out that on principle the evidence of a victim of sexual assault stands on a par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be selfinflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. The aforesaid observation was made by this Court because of the following factors: ( _1_ ) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. ( _2_ ) She would be conscious of the danger of being ostracised by the society or being looked down by the society including her own family members, relatives, friends and neighbours. ( _3_ ) She would have to brave the whole world. ( _4_ ) She would face the risk of losing the love and respect of her own husband and Crl.Appeal No.1251/12 10 near relatives, and of her matrimonial home and happiness being shattered. ( _5_ ) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. ( _6_ ) It would almost inevitably and almost invariably result in mental torture and suffering to herself. ( _7_ ) The fear of being taunted by others will always haunt her. ( _8_ ) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. ( _9_ ) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. ( _10_ ) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. ( _11_ ) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. ( _12_ ) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 18. In the case of _Rafiq_ v. _State of U.P. (1980 (4) SCC 262),_ V.R. Krishna Iyer, J. speaking for the Court Crl.Appeal No.1251/12 11 observed at SCC p. 265, para 5 as under: “Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying lifestyles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.” 19. In the case of _Madan Gopal Kakkad_ v. _Naval Dubey (1992 (3) SCC 204),_ it was pointed out at SCC p. 218 that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. In the case of _Ranjit Hazarika_ v. _State of Assam_ (1998 (8) SCC 635), this Court held that nonrupture of hymen or absence of injury on victim’s private parts does not belie her testimony. This Court Crl.Appeal No.1251/12 12 further held that the opinion of the doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence. 20. In the case of _State of Punjab_ v. _Gurmit Singh_ (1996 (2) SCC 384), this Court pointed out at SCC p. 403: “Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend _assurance_ to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must Crl.Appeal No.1251/12 13 be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 21. In the case of _State of Rajasthan_ v. _N.K._ the accused, (2000 (5) SCC 30), the observation made in _Gurmit Singh case_ (supra) was reiterated. The Court further observed in para 9 at SCC p. 38 as under: “Having heard the learned counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the Crl.Appeal No.1251/12 14 prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.” 10. Going by the principles laid down in the above said decisions, the courts are duty bound to give more reliability to the oral testimony of a prosecutrix, especially when she is a minor, and it is not at all permissible to have a study with the aid of spectacles fitted with lenses tinged with doubt, disbelieve or suspicion. But, when there is inherent material abnormalities or vital improbabilities or material inconsistencies, it is permissible to seek for corroboration before acting on the sole testimony of the prosecutrix. The improbabilities/inconsistencies brought out should be of that nature to make the version of the prosecutrix unacceptable due to inherent abnormality tainted with either enmity or tutoring. 11. PW1 prosecutrix had given oral evidence narrating the commission of offence of rape committed by her father on Crl.Appeal No.1251/12 15 a day in the month of April 2009. The version given by her that she had been subjected to rape twice by her father on that day when her brother and mother were not in the house. By 10.00 a.m. she took a bath in the bathroom. It has been video-graphed by her father in his mobile phone and it was shown to her as a device to induce her to his lust. She was also threatened by him with the evil consequences by publishing the video clippings in the internet and that he would kill her and her brother. She had been forcibly taken to the bed and committed rape on her. The main challenge against the deposition of PW1 prosecutrix is that (1) It is shrouded with inconsistencies and improbabilities and hence not reliable. (2) Nothing was whispered at the time of FIS regarding the commission of offence by her father and the omission thereof is material, fatal to the prosecution. (3) There is inordinate delay in registering the FIR. (4) It was disclosed by her only after the lapse of a considerable period, in and around two years, and hence lacks in _bona fides._ 12. Going by the FIS it is clear that the allegation of commission of rape on her by her father is not disclosed in the Crl.Appeal No.1251/12 16 FIS. But, the statement alleged to have been given by the victim before the police, exhibited as P5, would clearly show that she had narrated so many incidents by which she had been subjected to rape and sexual assault by various persons at different places at the instance of her father. He had taken her to various places, lodge room, secluded places and offered her to various persons for his personal gain. She had gone up to the extent of stating that her father had taken so many girls for his personal gain under the guise of providing opportunity in serials and cinemas. She was a minor aged only 16 years at the time when she had given Exhibit P5 FIS. The mental stress of a young girl while giving FIS before the police narrating various episodes in which she had been subjected to rape and sexual assault by different persons at different places, that too under the instigation of her father, by which she became vulnerable to sexually transmitted diseases has to be taken into consideration under the given circumstances. It would be quite natural for a young girl to have some omissions to state about one or two incidents by which she had been subjected to rape. She had narrated ever Crl.Appeal No.1251/12 17 so many incidents by which she had been subjected to rape by various persons at different places and the omission to state about the commission of offence of rape by her father two years prior to the FIS under the given circumstances is quite natural, though it is material in nature. The settled principle is that the omission of material fact would normally fatal to the prosecution. But, in the instant case, there is lawful excuse for the failure of the victim to disclose the said fact at the time of FIS, firstly on account of her tender age, secondly on account of her ailment as she has been infected by sexually transmitted diseases at her tender age, and thirdly she was under high mental distress on account of the threat from her father and that she had been taken to various places by her father and offered to various persons at different places for a pretty long period by subjecting her in physical and mental cruelty. The FIS further shows that she had also disclosed that she had been taken to the Avenue Centre, Panampilly Nagar, Ernakulam, in a room in the second floor, wherein she had been sexually assaulted by a person aged 35 years. On the same day by 8.30 p.m., she had been Crl.Appeal No.1251/12 18 taken to another flat and again she was subjected to rape by that person. She was taken back to her house by her father by 10.30 p.m. on that day and threatened her not to disclose the same to any other person and otherwise with the evil consequence that he would kill herself and her brother. After one week, she was again taken to another flat near to Amrita Hospital and she has been sexually assaulted by another person. She was taken back by 10.30 a.m. Thereafter she was taken to various Hotels and flats situated in Kadavanthra, Palarivattom, Chalakkudy, Athirappally, Munnar, Bangalore, Thrissur - Maprandum, Mysore, Ootty, Thammanam, Kakkanad, Thiruvananthapuram, Kannur and offered to various persons. Then again she was taken on 01.01.2011 to Coimbatore Railway Station and entrusted with two persons, who in turn took her in a red colour car to a house. She has been subjected to rape by twelve persons within a span of three days. Thereafter she has been locked in a room for three days. She escaped from that place with the help of a boy and came to Palakkad, then to the house of her grandmother and disclosed everything before them, then Crl.Appeal No.1251/12 19 proceeded to the Police Station and had given the FIS. It is not at all necessary that FIS should be a full contained text what actually happened to the victim/prosecutrix. There may be omissions when there are several incidents of commission of rape on the victim by several persons at several places for a long period and hence omission to disclose and state about one or two incidents of same crime is not fatal to the prosecution and it cannot be used to brush aside the ocular evidence given by the prosecutrix or to shake the credibility of her oral evidence. 13. In fact, there is no inconsistency whatsoever, except the omission to state about the alleged incident in the FIS by the victim, in the oral evidence tendered by her as PW1. It is also not possible to trace out the medical evidence or the presence of semen or spermatozoa with respect to the incident which happened admittedly in and around two years back. On the other hand, the rupture of hymen admitting two fingers and that she has been infected with two sexually transmitted venereal diseases would show that she has been subjected to sexual intercourse by several persons. Crl.Appeal No.1251/12 20 14. Exhibit P3 is the complaint made by her before the Mahal Committee. Exhibits P19 and P20 are the minutes of the Mahal Committee. Exhibit P15 agreement was entered at the instance of Mahal Committee signed by the prosecutrix and the accused which would also support the prosecution case. PW1 is the witness to Exhibit P15 agreement. PW11 is the President of Mahal Committee. Exhibit P3 complaint was seized under Exhibit P21 seizure mahazar and minutes were seized under Exhibit P22 seizure mahazar. The complaint exhibited as P3 and Exhibit P15 agreement signed by the accused and the victim would give sufficient corroboration to the oral testimony of PW1, the prosecutrix. Exhibit P23 is the treatment record seized under Exhibit P24 mahazar, witnessed by PW16. PW15 Doctor who attended the victim/prosecutrix while she was working as Gynecologist at St. Joseph's Hospital, Kothamangalam, had deposed that she had treated the prosecutrix. The victim was infected with two sexually transmitted diseases which is recorded in Exhibit P23 as STD. Frequent sexual contact is also recorded therein. After examining the victim and based on the rupture of hymen and Crl.Appeal No.1251/12 21 opening in the vaginal area, she is of the opinion that it is suggestive of that she had undergone sexual intercourse frequently. 15. The reason advanced by the appellant that the nude video graphs taken by the father has not been seized by the investigation team may not be sufficient to reject the oral testimony of the prosecutrix once found to be truthful and reliable. There may be failure on the part of the investigating officer to procure all possible evidence, especially the video graphs taken in a mobile phone, and failure may not, by itself, vitiate the oral evidence of the prosecutrix, if found to be otherwise reliable and acceptable. It is also submitted by the appellant that the fact that the gap in between the bathroom and the door has not been mentioned in the scene mahazar is also not having much relevance. No investigation was conducted with respect to the relationship of the victim with one Salim is also not fatal to the prosecution once the evidence of the prosecutrix is found to be reliable and acceptable. 22 Crl.Appeal No.1251/12 16. Hence there is no compelling reason for seeking corroboration to the oral testimony of PW1, the prosecutrix. The oral evidence tendered by the prosecutrix is found to be truthful and trustworthy and inspires confidence and is found to be reliable. Hence, the finding of guilt of accused under Sections 376(1) and 506(1) of IPC and under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, deserves no interference by this Court. 17. The sentence awarded reflects a proper balance in between the mitigating and aggravating circumstances and hence does not call for any interference by this court. In the result, the appeal is dismissed. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-