Kerala High Court
Thomas @ Joshy vs State Of Kerala on 28 March, 2025
Criminal Appeal No.437 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.A NO. 437 OF 2020
AGAINST THE JUDGMENT DATED 18/03/2020 IN SC NO.102 OF
2015 ON THE FILE OF THE COURT OF SESSION, KOTTAYAM.
APPELLANT/ACCUSED:
THOMAS @ JOSHY,
AGED 37 YEARS,
S/O. THOMMY, PUTHENPURAKAL VEEDU,
NAKRAL, PUTHUVAL BHAGOM, PERUNNA WEST KARA,
CHANGANACHERRY.
BY ADVS.
GEORGE SEBASTIAN
SRI.BOBBY JOHN
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH CORUT OF KERALA, ERNAKULAM - 682 031.
BY ADV.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.437 of 2020
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Dated this the 28th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused, in S.C.No.102 of 2015 on the file of the
Court of Session, Kottayam, challenges the conviction entered and
sentence passed against him for the offences punishable under
Sections 376(2)(f), 376(2)(i), 376(2)(j), 376 (2)(k) and 376 (2)(n) IPC
and Sections 5(l), (m) and (n) read with Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (the Act).
2. According to the prosecution case, the accused ; PW1
his wife and the victim child aged 10 months were living together in
their house bearing door no.324/I, Paippadu panchayat. On various
days during the month preceding 24/01/2015 ; on 24/01/2015 at
06:30 a.m. and on 25/01/2015 at 09:15 p.m., the accused committed
digital rape and cunnilingus on his infant girl child. He also put his
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penis inside her mouth and thus as per the final report, the accused
has committed the offences punishable under Sections 376C(a),
3762(f), (i), (j), (k), (n) and Section 377 IPC ; Section 3(a) read with
Section 4, Sections 5(l),(m),(n) read with Section 6 of the Act.
3. Crime no.327/2015, Changanacherry police station, that
is, Ext.P7 FIR was registered by PW8, Senior CPO, Changanacherry
police station, based on Ext.P1 FIS of PW1, the mother of the victim
child. The investigation was conducted by PW9, Circle Inspector of
Police, Changanacherry police station, who on completion of the
investigation submitted the final report before the trial court.
4. On appearance of the accused, the trial court after
complying with all the necessary formalities contemplated under
Section 209 Cr.P.C., framed a charge under Sections 376(2)(f),
376(2)(i), 376(2)(j), 376 (2)(k), 376 (2)(n) and 377 IPC ; Sections
3(a) and 3(d) read with Section 4 and Sections 5(l), (m),(n) read with
Section 6 of the Act, which was read over and explained to the
accused to which he pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW9 were
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examined and Exts.P1 to P10 were marked in support of the case.
After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence of
the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced on behalf of the accused.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment found the accused not guilty of the offence punishable
under Sections 377 IPC and hence he was acquitted of the said
offence under Section 235(1) Cr.P.C. However, he has been found
guilty of the offences punishable under Sections 376 (2)(f), 376(2)(i),
376(2)(j), 376(2)(k), 376(2)(n) IPC and Sections 5(l),(m),(n) read
with Section 6 of the Act. Hence, he has been sentenced to rigorous
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imprisonment for ten years and to a fine of ₹30,000/- and in default
to simple imprisonment for six months for the offence punishable
under Section 6 of the Act. In view of Section 42 of the Act, no
separate sentence has been awarded for the remaining offences. Set
off under Section 428 Cr.P.C. from 09/02/2015 to 10/04/2015 has
been given. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed against
the appellant/accused by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that the contents of Ext.P1 FIS is a figment of
imagination of the police. The materials on record show that the
relationship between PW1 and her husband, the accused herein, was
quite strained. There were disputes between them as PW2, the mother
of PW1 had given spurious gold ornaments as gift to their infant
child. The accused has been falsely implicated at the instigation of
PW2. The medical evidence does not support the prosecution case.
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According to PW1, the child was initially taken to a hospital at
Mavelikkara. However, no records from the said hospital has been
produced. This was the best evidence but the same has been
suppressed and hence an adverse inference has to be drawn. Further,
the authorities of the hospital at Mavelikkara was bound to inform
the police when the child was taken to the said hospital for treatment.
However, no such information was given. None of the neighbours of
PW1 in whose house she is alleged to have taken refuge was
examined in support of her case. The only witness examined is PW2,
who is none other than the mother of PW1, who was residing far
away from the place of occurrence. It was also pointed out that the
trial court wrongly relied on the contents of Ext.P1 FIS which were
never spoken to/deposed by PW1 in the box. Only those matters
deposed by PW1 in the court would be substantive evidence and not
the contents of FIS which was never deposed by PW1 in the box.
The signature in Ext.P1 FIS is in Malayalam. However, PW1 in her
testimony has signed in English. This has not been clarified or
proved. Hence, for these reasons, the accused/appellant is entitled to
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the benefit of doubt, goes the argument.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that the materials on record are satisfactory and sufficient
to prove the offences charged against him. There is no infirmity in
the findings of the trial court calling for an interference by this Court.
11. In Ext.P1 FIS PW1 states thus: on 24/01/2015 in
the morning while she was preparing coffee in her kitchen, she heard
her child crying and when she rushed to the room she found her
husband, the accused, standing naked near the bed. The child was
lying on her side. Her husband asked her to give milk to the child.
She went back to the kitchen to fetch milk and when she returned she
found her child sleeping. She took her child in her arms. She noticed
some fluid around the vagina and the thighs of the child. When she
attempted to wipe it off, the accused suddenly took a towel of the
baby and wiped it off. PW1 also deposed that the accused
masturbates and arouses himself before engaging in sexual
intercourse with her. She realised that the accused after
masturbating, had placed his penis on the vagina of the child when he
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was on the verge of ejaculation.
11.1. The next incident happened during the night of
25/01/2025. On the said day when she entered the room, she found
the accused holding his penis in his right palm and placing it on the
mouth of the minor child. She also found the accused putting his
finger in the vagina of the child. She was shocked on seeing this and
hence she pushed the accused down, by which time the semen had
already fallen on the mouth of the child. PW1 cried out loudly, at
which time, the accused manhandled her. When she ran out of the
room, the accused closed the door and locked it from inside. Hearing
her cries, when her neighbours came, she was reluctant to reveal the
incident to her neighbours as the culprit was her husband and
therefore she told them that there was a quarrel with respect to the
ornaments gifted by her mother. Thereafter, her sister-in-law, that is,
the wife of the brother of the accused took her to their house. In
Ext.P1 FIS she has also stated that the accused is a pervert; that he
masturbates before having sexual intercourse with her; that he had
told her that if a boy child is born to them he would kill both of them;
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that he had told her to wear revealing clothes when his friends come
and take money from them.
11.2. PW1 in the box more or less stands by her version
in Ext.P1 FIS. She reiterated that the accused had committed sexual
perversions on her child, committed digital rape, cunnilingus and had
also placed his erected penis in the mouth of the victim girl. The
other facts stated by her in the FIS like asking the accused her to
wear revealing clothes etc., was not deposed by her in the box.
However, PW1 stands by the prosecution case of digital rape,
cunnilingus and placing penis in the mouth of the child. It is true that
there was some delay in PW1 reporting the matter to the police.
However, as rightly pointed out by the trial court, in offences of this
nature, delay is quite natural because it is after much deliberation and
consultation with other family members, a decision to set the law in
motion would be taken. PW1 in Ext.P1 FIS says that this
consultation process caused delay in giving the complaint to the
police. There are no reasons to disbelieve PW1 especially when the
accused is none other than the father of the victim and the husband of
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PW1.
12. Now coming to the medical evidence. PW3,
Consultant Gynecologist, Government Hospital, Changanacherry
deposed that on 02/02/2015 she examined the infant child and had
issued Ext.P2 certificate. The mother had narrated the history as rape
by the father, oral sex and digital rape. On examining the child, she
found the hymen to be absent. The vagina admitted one finger.
There was tenderness over vagina. No other injury was noted. In her
opinion there was no evidence of recent sexual assault. When PW3
was asked regarding the tenderness seen on the vagina, she deposed
that forceful medical examination might have caused it. To a
suggestion that the absence of hymen and tenderness on vagina was
due to sexual assault, answered in the affirmative. PW3 in the cross
examination deposed that if there is a recent injury, the hymen would
be found torn. If there is habitual sexual assault, then the hymen
would be absent. She did not notice any torn hymen. She further
deposed that some babies are born without hymen. She did not
collect vaginal swab and smear as there was no history of recent
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sexual assault. Referring to the aforesaid medical evidence, it was
submitted that the same does not support the prosecution case.
13. No materials have come on record to show whether the
child was born with or without a hymen. However, the vagina
admitted a finger. The victim was only a child aged 10 months or so.
Had there been no sexual assault/abuse, this situation was quite
unlikely. Therefore, I find that the medical evidence does support the
case of sexual assault/abuse.
14. It is true that no records from the hospital at
Mavelikkara where the child was initially taken has been produced
before this Court. This is the fault of the investigating officer and a
flaw in the investigation. That flaw in the investigation is no ground
to disbelieve the entire prosecution case, in the light of the testimony
of PW1, whom I find no reasons to disbelieve.
15. It is true that the signature of PW1 in Ext.P1 is in
Malayalam and the signature of PW1 in her testimony is in English.
PW1 when examined was shown Ext.P1 FIS. PW1 identified her
signature, pursuant to which, the FIS was marked as Ext.P1. This
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aspect is not seen challenged in the cross examination. That being
the position, Ext.P1 FIS also stands proved.
16. As noticed earlier, it is true that all the facts stated
in Ext.P1 has not been deposed by PW1 in the box. However, the
main points of sexual abuse of the child by the appellant/accused is
clearly spoken to by the witness in the box, which has not been
discredited in any way. Hence, I find no reasons to disbelieve PW1.
The incident took place in the year 2015. The imprisonment that has
been awarded is the minimum that was liable to be imposed at that
point of time. I find no infirmity in the findings of the trial court
calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
SD/-
C.S.SUDHA
JUDGE
ak
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