T. Santhosh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **CRL.A.No.798 OF 2015** **AGAINST THE ORDER/JUDGMENT IN SC 160/2013 DATED 30-03-2015 OF SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST CHILDREN, THALASSERRY** **CRIME NO.791/2012 OF Dharmadam Police Station, Kannur** **APPELLANT/3RD ACCUSED:** **T.SANTHOSH** **AGED 35 YEARS S/O. VASU, CHETTIAM VEEDU COLONY, THEKKALAMUKKU P.O., EDACHERRY, KANNUR DISTRICT** **BY ADVS. SRI.SOJAN MICHEAL SMT.JENCY MICHEAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADV.SMT.S.AMBIKA DEVI, SPECIAL PP FOR ATTROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON 16.08.2019 DELIVERED THE FOLLOWING:** -:2:- Crl.Appeal No.798/15 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the 3[rd] accused in SC No.160/2013 of the Special Judge for the Trial of Offences against Children by which the appellant had been convicted for having committed the offence u/s 376 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of `1 lakh, in default of payment of fine, to undergo rigorous imprisonment for a period of one year. 2. Prosecution alleged that the minor girl aged 13 years was continuously raped by accused 1 to 4, the last of which was on 23/11/2012. First accused is her father, 2[nd] accused is her brother, who is a juvenile and 3[rd] accused is the uncle. 4[th] accused is another uncle who died during the pendency of the trial and the case against the 5[th] accused has been stayed. The harassment against the victim came to light when the class teacher had come to know about the plight of the victim from her classmates. The matter was informed to the Headmaster of the Crl.Appeal No.798/15 -:3:- School at whose instance the information was given to Dharmadam Police Station and a crime came to be registered based on the First Information statement (FIS) given by the victim. Ext.P1 is the FIS. 3. In order to prove the case, prosecution examined PW1 to PW19 and relied upon Exts.P1 to P26. MO1 to MO4 were the material objects that were identified. The defence examined DW1 and DW2 and Exts.D1 to D5 were marked. Exts.X1 and X2 were also marked on the defence side. During 313 questioning, the appellant denied the incriminating circumstances against him. The court below however acquitted the first accused as the victim during evidence did not make any allegation against him. 4. Learned counsel for the appellant argued that the Court below failed to appreciate the evidence properly. The evidence of the prosecutrix itself suffers from material contradictions and omissions and there is absolutely no supporting evidence to corroborate her version. There was no medical evidence to substantiate the case put up by the prosecution and therefore the appellant is entitled for an acquittal. Crl.Appeal No.798/15 -:4:- 5. On the other hand, learned Special Public Prosecutor for atrocities against women and children Smt.S.Ambika Devi while supporting the judgment of the trial Court submitted that a minor girl was put to serious sexual harassment including rape by none other than the family members and when her statement gives a clear narration of the events that occurred over a period of time, there is no reason to disbelieve her version. She also placed reliance on the judgment of the Apex Court in _**Aman Kumar and another v. State of Haryana**_ [(2004) 4 SCC 379] wherein the Apex Court held that the evidence of a victim of rape stands on a higher pedestal than an injured witness. 6. There cannot be any dispute about the legal position that had emerged over a period of time. It is settled law that the testimony of a prosecutrix in an offence of rape can be acted upon even without corroboration in material particulars. Her evidence stands on a higher pedestal than that of an injured witness and that she is not an accomplice in the crime. Only in instances where the Court finds it difficult to accept the version of the prosecutrix on its face value, there is necessity for searching on evidence either direct or circumstantial which would lend Crl.Appeal No.798/15 -:5:- assurance to her testimony. 7. As far as the age of the victim is concerned, there is no dispute about the fact that she is a minor. The evidence consists of the oral testimony of PW6, the Headmaster of the School and Ext.P5, the extract of admission register maintained in the school. That apart, there is no substantial challenge to the age of the victim. 8. In order to consider whether the offence had been committed, primarily reference is to be made to the manner in which the issue came to light. 9. PW2 is the classmate of the victim. She deposed that while proceeding to school, she found that the victim had not properly combed her hair. When she asked her, she said that her brother had harassed her. She did not give water when he asked for it and therefore she was harassed. On that day, they had school only till noon. The victim told her that she was not going home. Her father and her brother told her that she will be given money if she lies down with them. PW2 and her friends informed the matter to their teacher. The victim feared to go home and asked them, whether she could go to her friends house. She also Crl.Appeal No.798/15 -:6:- told that father and her brother will not permit her to go to class and they used to harass her. Her uncle used to lie down along with her and peep while she used to have her bath. Teacher called PW1 and questioned her. Ext.D1 is a contradiction which has been marked with reference to her previous statement wherein she stated that the handicapped uncle invites her for lying down with him and she is harassed and he used to peep while she was taking bath. PW2 stated that she does not remember having stated so. 10. PW18 was the teacher of Higher Government Secondary School at Palayad. She knew the victim. She was studying in her class during 2012. She disclosed certain matters to her on 23[rd] November, 2012. The class was functioning only till noon. She was also in charge of Class VIII C. A few students of her class came to her and informed that the victim is not going to her house and there is some problem. She immediately went to her class and victim was sitting alone. She asked the victim what the issue was. The victim was about to cry. She said that her brother was waiting with a few of his friends at home and if she cooperates, she will be given `200/-. PW18 thereafter asked the Crl.Appeal No.798/15 -:7:- victim one by one. At that time, she informed that her brother used to physically harass her. When she asked whether anybody else used to do so, she stated that her uncles, father and brother had on several occasions harassed her. At the time when she used to take her bath or changed the clothes, they used to physically touch her and sexually harass her. When the victim stated that she will not go home, PW18 mentioned the same to her colleague teacher and informed the Headmaster. Thereafter Headmaster called the ward member, PTA Vice President and the victim's mother, who all came to the school. After that, they proceeded to the police station. Two of the ward members, block panchayath president, the victim and herself proceeded to the police station. The women police had taken her statement and the girl was entrusted to the house of Block Panchayat President. When she was asked whether the victim had given statement to the police that the victim's uncles have sexually harassed the girl, her answer was that though she did not use the word sexual, what she intended was sexual harassment. 11. PW6 was the Headmaster of the school during 2012 at Palayad High School. He deposed that victim PW1 was studying in Crl.Appeal No.798/15 -:8:- the school during the relevant time. He was informed by CW2 (PW18) that the victim does not want to go to her house and when she asked, she was told that the girl was being sexually harassed. He thereafter discussed the matter with other teachers and called the PTA President. Since he was not at station, he called the Vice President. He came. Girl's mother was called. Similarly, the Block Panchayat President Baby Sarojam and the ward member were also called. They asked the victim about the issue and thereafter he had sent them to the police station for giving complaint. 12. PW5 is the mother of the victim. She also confirmed the fact that she was called from the school where the victim was studying. She deposed that herself along with the victim had gone to the house of A3 (appellant) in the month of August during Onam time. Victim stayed there for about 2 days. She was not told that the victim suffered any harassment during the relevant time. She had come to know about it only after the case. She was not told that the victim was harassed by her father, brother and uncles. She is residing at Palakkad on account of the torture by 5[th] accused. The 5[th] accused had harassed her while she was young. Crl.Appeal No.798/15 -:9:- Even after marriage, he used to peep on her. In their house, there are two rooms. One of the room is occupied by herself and husband. Children resides in the other room. When Sudheer (another uncle) comes, he used to sleep in the room of the children. She had one more daughter. She committed suicide by self immolation. It is on account of the harassment by 5[th] accused. She had come to know about it only after the death of her daughter. She had come to know about the same from Reshma, her sister's daughter. She also identified MO1 to MO4, the dress of the victim. During cross-examination, she stated that the appellant was residing in a shed until 2004 for about 3 months. Thereafter, he shifted to Vadakara. Accused 1 and 3 are not in good terms. A3 does not come home. In her house, her husband's mother and children were residing. Husband's mother was usually there in the house. She had come to know about the harassment on the victim after the case when she reached the police station. She further stated that she resided at Vadakara Edacherry house for two days and the victim stayed for another two days and on the third day, she took her back. Victim did not tell her that A3 had harassed her at Vadakara. Ext.P1 is the FIS. In Crl.Appeal No.798/15 -:10:- the FIS she stated that while she was studying in the 6[th] standard, her father and her bother used to physically harass her. Father used to have ganja and liquor and during night he used to come and harass her. During that time, he used to caress on her chest and used to kiss her. While she was bathing, he used to come and look at her. Her brother also used to catch hold of her while she was studying in 6[th] standard and he used to kiss and rape her. At that time, her brother was 15 years. During day time, she used to run away from the house. She was threatened that if she tells somebody else about the same, she will be killed. Therefore, she did not mention it to any one. Her sister also had told her that their father had harassed her also. That apart, her uncles Santhosh and Sudhir had also harassed her sister. Sister committed suicide only on account of the said harassment. She was psychically tortured when she did not agree to the demands of her father and brother. She stated that her brother had harassed her on a Saturday during the previous month. At times, she used to have pain on her private parts. On 23/11/2012, her father and her mother's elder brother Abijith had gone for work. When she was about to go to school in her uniform, 2[nd] accused Crl.Appeal No.798/15 -:11:- scolded and abused her and physically harassed her. On seeing this, grandmother scolded him. She cried aloud and people from the neighbourhood came and scolded her brother. At that time, she went out of her house along with her friends. She proceeded to the school and she told her friends Megha, Athulya, Aruna and Shaniba that her brother and father used to harass her, who told the incident to the teacher. Teacher asked her as to what happened and she informed the same in detail. Teacher called her mother and she was also informed. The FIS was recorded by PW17 and he registered Crime No.791/2012. Ext.P16 is the FIR. 13. PW8 was working as Consultant at General Hospital, Thalasserry. She deposed that on 23/11/2012, she had examined the victim involved in crime No.791/2012 of Dharmadam Police Station and issued Ext.P7 certificate. In the history, she stated of sexual harassment by her father, brother and uncles. On her examination, it was noticed that hymen was torn. She had not attained menarche. Vaginal examination admitted two fingers and she opined that there is evidence of vaginal penetration and the final opinion was pending chemical examination. According to the defence, the name Santhosh was inserted at the instance Crl.Appeal No.798/15 -:12:- of some one else. Apparently it is in Ext.P7 that she stated that her uncles Santhosh and Sudhi used to behave improperly towards her along with her father and brother from Standard IV itself and her brother and Santhosh had done it on several occasions at her house. 14. PW3 is a witness to Ext.P3 scene mahazar. PW4 is an attestor to Ext.P4 scene mahazar with reference to the house of A3 at Vadakara. PW7 is an attestor to Ext.P6 by which the victim's mother had handed over the material objects to the police which are identified as MO1 to MO4. PW9 had examined the appellant and Ext.P8 is the certificate wherein he opined that the appellant is capable of performing sexual act. PW10 had identified the signature of Dr.Aigiu, who had issued Ext.P9 certificate. This is with reference to the medical examination of Arun Kumar. PW11 was the Judicial First Class Magistrate at Koothuparamba on 3/12/2012. She recorded the 164 statement of the victim. PW12 is the Village Office Assistant who prepared the site plan Ext.P10. PW13 is the Grama Panchayat Secretary who had issued Ext.P11 to prove the ownership of the building belonging to the appellant. PW14 is the Grama Panchayat Secretary who had given Ext.P12 Crl.Appeal No.798/15 -:13:- certificate stating that the owner of the building No.8/115 is Bindu T.Kannan, mother of the victim. PW15 is the Special Village Officer who had prepared Ext.P13 plan with reference to the house of the victim. PW16 was the investigating officer who arrested the 3[rd] accused. Ext.P14 is the arrest memo and Ext.P15 is the inspection memo. He also deposed that victim had taken him to a place at Andalloor, the building in which it is stated that she was sexually assaulted, but it was already demolished. During cross-examination, the suggestion was that A3's house was demolished 10 years back and when it was noticed that the said building was not available and the police is unable to justify that she was harassed at that house, police had made up a story that she was harassed in another place, in the house at Edacherry which he denied. PW19 is the investigating officer who continued the investigation. He marked the forwarding of Ext.P19 with reference to the materials collected by Dr.Suja. Ext.P20 is the FSL report. MO1 to MO4 were sent for chemical analysis as per Ext.P21 forwarding note and the report is Ext.P21. In Ext.P22, item 4 contained human semen. During cross-examination, he stated that in the 164 statement, the victim has not stated that Crl.Appeal No.798/15 -:14:- she was harassed at Edacherry House. He also admitted that PW2 has given Ext.D1 statement. The uncle who is handicapped is the 4[th] accused. 15. The medical evidence adduced in the case would prove that the victim was raped and MO4, her dress even contained particles of semen. But, there is no evidence to prove the source of human spermatozoa. The chemical analysis report of the vaginal swab, vaginal smear and pubic hair does not contain any human spermatozoa. From the nature of evidence and the factual circumstances, the only question to be considered is whether the victim can be believed or not. 16. PW1 is the victim. She deposed about the incident by which she had a fight with her brother on 23/11/2012. Her narration does not disclose any sexual advances by her brother on the said day. But she refers to the fact that her brother threatened her that by evening when she returns home, he will take care of her. He even stated that his friend will come and she should show him and half the money will be given to her. She refers to the fact that when she saw her friend PW2, she told her plight and her friend informed their teacher, who informed the Crl.Appeal No.798/15 -:15:- same to the Headmaster and the Headmaster informed the same to the Block Panchayat president and Member. Her mother was called and finally she was taken to the police station where she gave Ext.P1 complaint. She further stated that from 4[th] standard onwards, she was physically and sexually harassed by A2, A3 and A5. A3 had harassed her on several occasions. That was at the house at Andalloor and also at A3's house at Thazhekkavu and thereafter at A3's wife house at Vadakara. It was during the Onam vacation of 2012 that for the last time, A3 had tortured her at A3's wife's house. On that day, while she was taking her bath, A3 got into the bathroom and she was raped and on several occasions at his house at Thazhekkavu, he had done the same thing. She further stated that her father (1[st] accused) had not harassed and she stated so before the police on account of the anger she had against her father. Though counsel for A3 extensively cross- examined the victim, nothing has been brought out to discredit her evidence. 17. This is a case in which a minor girl was sexually abused, physically and mentally tortured by her own uncles and her brother and she had to disclose it at a stage when the Crl.Appeal No.798/15 -:16:- harassment became intolerable. There is no reason to doubt her testimony. She withstood cross-examination by the counsel for accused. 18. The main contention urged by the learned counsel for the appellant is that while giving Ext.P1 statement, no reference was made to any harassment by her uncles. Evidence in the case would show that the 5[th] accused in the case was the Vice President of PTA and he was also present when the minor girl was taken to the Police Station. Probably she did not want to implicate her uncles as she was afraid of his presence. But when she was taken to the Doctor, she had clearly narrated the harassment by her uncles also which is evident from the testimony of the Doctor who is examined as PW8, supported by the entries in Ext.P7. That apart, while giving statement and further statement to the Magistrate u/s 164, she had clearly stated about the involvement of the appellant. In the 164 statement, she had not stated that she was harassed at Edacherry house. But from her evidence, it is rather clear that, on several occasions, A3 had committed rape on her. When the evidence of the prosecutrix can be believed, there is no reason to search for corroboration. We do not think Crl.Appeal No.798/15 -:17:- that any circumstance had been brought out by the defence to take a different view from what has been found by the trial Court. 19. Though the 3[rd] accused was not named in the FI statement, during further statement given to PW19 on 24/11/2012, she had deposed regarding the involvement of the 3[rd] accused which she had stated in Ext.P2, the 164 statement given to the Magistrate as well. The argument is that when in Ext.P2 it was alleged that the 3[rd] accused harassed the victim while she was studying in the 4[th] standard, and the same was committed in the house of the 3[rd] accused whereas in Ext.P2, there is no allegation of harassment during Onam holidays at the house of the 3[rd] accused. It is therefore contended that 3[rd] accused was later implicated falsely. Learned counsel further submits that PW1's version cannot be believed on account of the aforesaid discrepancies and further in Ext.P1 and while being questioned by the police, she had made specific allegations against her father which she conveniently omits, while being examined before Court. It is further stated that in her evidence she stated that she was harassed at the house of the 3[rd] accused at Andallor and Thazhekkavu while she was studying in the 7[th] Crl.Appeal No.798/15 -:18:- standard whereas in Ext.P2 it was stated that she was harassed by the 3[rd] accused while she was studying in 4[th] standard at the house at Andalloor Thazhekkavu. The said building was demolished in the year 2004 which was admitted by PW5 and no attempt had been made to investigate on the said facts. Exts.D4 and D5 were the petitions filed by the appellant's wife and appellant to the Kannur District Police Team to investigate on the fact that the hut at Andalloor Thazekkavu was demolished in the year 2004 and DW2 while deposing before Court stated that no such investigation was conducted. PW19 has also stated that the mahazar of the hut was not prepared as the same was demolished. It is submitted that as the hut is demolished in the year 2004, the alleged harassment of the victim at the said place is highly unbelievable as during the relevant time, the victim might be 3 or 4 years old. Defence also has a case that the 5[th] accused was on loggerheads with the 3[rd] accused on account of property disputes. The 5[th] accused attacked the 3[rd] accused and his mother Sarada few days before registration of FIR and they were hospitalized. The wound certificate is marked as Exts.D2 and D3. Therefore, his contention is that it is at the instance of 5[th] Crl.Appeal No.798/15 -:19:- accused and CW13 the Block Panchayath President that the case had been implicated against the appellant. 20. We do not think that any of these circumstances would lend any assistance to the appellant to probablise his non involvement in the crime. The minor girl has no axe to grind against her uncle. A person who is to protect her has turned predator. Such instances shock the conscience of law abiding citizens and right thinking people. Hence the accused does not deserve any sympathy. We do not find any reason to interfere with the conviction or sentence. Appeal is dismissed. **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR JUDGE**