Kerala High Court
Xxxxxx vs State Of Kerala on 16 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.636 of 2022 -: 1 :-
2025:KER:3313
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
CRL.A NO. 636 OF 2022
AGAINST THE JUDGMENT DATED 29.05.2019 IN SC NO.171 OF
2017 OF ADDITIONALSESSIONS COURT - I, KALPETTA
APPELLANT/ACCUSED:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV Rajendran T.G
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM DISTRICT., PIN - 682031
2 THE INSPECTOR OF POLICE
MEENANGADI POLICE STATION, WAYANAD DISTRICT., PIN
- 673591
BY ADV ADVOCATE GENERAL OFFICE KERALA
OTHER PRESENT:
SMT NEEMA T V, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.01.2025, THE COURT ON 16.01.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.636 of 2022 -: 2 :-
2025:KER:3313
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal 636 of 2022
---------------------------------
Dated this the 16th day of January 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the sole accused in SC No.171/2017,
challenging his conviction and sentence imposed under Sections
376(2)(f),(n)&(i) and 506(ii) of IPC and Sections 5(l),(m)&(n)
r/w Section 6 of the Protection of Children from Sexual Offences
Act, 2012(‘POCSO Act‘ for short) by the Special Court for trial of
offences under POCSO Act and Children’s Court, Kalpetta.
2. The prosecution case is that on 7/3/2017 at about 9 am
and 4 pm, the accused, who is a close relative of the victim
(PW1) aged 10 years, committed rape/aggravated penetrative
sexual assault upon her after imparting threats to her, in the
Crl.Appeal No.636 of 2022 -: 3 :-
2025:KER:3313
plantation belonging to PW 4 situated in Ambalapady, Krishnagiri.
3. In the trial court, from the side of the prosecution, PW1
to PW13 were examined and Exhibits P1 to P19 documents and
MO1 and MO2 were marked. On examination under Section 313
Cr.P.C., the accused denied all the incriminating circumstances
appearing against him in evidence and contended that he is
innocent. From the side of the accused, no evidence was
adduced. The trial court on an appreciation of the evidence on
record, found the accused guilty and convicted him under
Sections 376(2)(f),(n)& (i)and Section 506(ii) of IPC and
Sections 5(l),(m) & (n) read with Section 6 of the POCSO. The
accused was sentenced to undergo rigorous imprisonment for life
for the remainder of his natural life and also to pay a fine of
Rs.50,000/- each for the offences under Sections 376(2)(n), 376
(2) (i) and 376(2)(f) of IPC. In case of each default, the accused
was ordered to undergo rigorous imprisonment for a period of
one year each. The accused was also sentenced to undergo
Crl.Appeal No.636 of 2022 -: 4 :-
2025:KER:3313
rigorous imprisonment for a period of five years and to pay a
fine of Rs.10,000/- under Section 506 (ii) IPC. In case of default,
the accused was ordered to undergo rigorous imprisonment for a
period of six months. No separate sentence was awarded for the
offences under the POCSO Act and the substantive sentences
were ordered to run concurrently.
4. While challenging the impugned judgment, the learned
senior Counsel for the appellant Sri T.G. Rajendran contended
that the evidence adduced by the prosecution, even if they are
accepted in toto as gospel truth, will not establish the guilt of the
accused. He argued that there is considerable unexplained delay
in lodging the FIR and the prosecution has no consistent case
regarding the incident. He submitted that the testimony of PW1
is mired with contradictions and the trial court erred in relying
upon her sole testimony to reach a conclusion of guilt against the
accused. He contended that the medical and scientific evidence
adduced in this case only supports the contention of the accused
Crl.Appeal No.636 of 2022 -: 5 :-
2025:KER:3313
that he is not involved in the crime. He argued that the
prosecution did not even examine the sister of the victim to
whom the victim has, for the first time, spoken to about the
incident and thereby has suppressed material evidence. He
contended that the evidence of PW1 being shaky and in the
absence of corroborative evidence, the conviction cannot be
sustained. He further submitted that the sentence imposed by
the trial court is highly excessive.
5. Per contra, the learned Public Prosecutor Adv.Neema
supported the impugned judgment and contended that there are
no grounds to interfere with it. She, by relying on the decision of
the Apex Court in State of H.P. v.Asha Ram [(2005) 13 SCC
766] contended that, a conviction can be founded solely upon
the testimony of the prosecutrix, if it inspires confidence and
there is no need to look for corroboration in the absence of
compelling circumstances. According to her, PW1 is a sterling
witness and the trial court was fully justified in relying upon her
Crl.Appeal No.636 of 2022 -: 6 :-
2025:KER:3313
evidence to convict the accused. She further, by relying on the
decisions of the Apex Court in Wahid khan v. State of Madhya
Pradesh.[(2010) 2 SCC 9] and Rafiq v. State of U.P.
[(1980) 4 SCC 262] contended that the absence of injuries on
the private parts of the victim is not a ground to discard the
prosecution case and even going by the relevant provisions of the
statutes, there is no requirement of penetration for attracting the
offences alleged. She also by relying on the decision in State of
Punjab v. Gurmit Singh & Others [(1996) 2 SCC 384]
argued that minor contradictions in the evidence of the ten year
old victim and the small delay in lodging the FIR cannot be taken
as a ground to throw aboard the prosecution case. According to
her, in the present case, the prosecution has explained the cause
for the delay in lodging the FIR. Hence, she prayed that this
appeal may be dismissed.
6. Before delving upon the evidence, it would only be
appropriate to discuss the material evidence let in by the
Crl.Appeal No.636 of 2022 -: 7 :-
2025:KER:3313
prosecution in this case. PW1, the victim deposed that her date
of birth is 25/3/2007 and at the relevant time, she was studying
in the V standard. She was residing in her home along with her
father, mother and sister and on the fateful day i.e. on 7/3/2017,
both her parents had gone for work While she along with the
sister, was inside the house, the accused, who is her uncle,
invited her to pluck jackfruits. She accompanied the accused and
he took her to another property. There the accused caught hold
of her hand and kissed on her cheek and thereafter laid her down
and removed her underwear and churidar pants. The accused
lifted his dhoti and inserted his penis into her vagina and there
was bleeding. She pushed the accused and ran away. While
committing the act, the accused also muzzled her mouth. In the
evening at about 4 pm, the accused threatened to kill her and
again took her and committed the same act. She came back and
told her sister about the incident. After a few days, some ladies
came there and enquired about the incident and thereafter, she
Crl.Appeal No.636 of 2022 -: 8 :-
2025:KER:3313
was taken to the hospital along with her mother and sister. She
identified her signature in Ext.P1 and stated that she had also
given Ext.P2 statement before the Magistrate. She identified her
dresses as MO1 and MO2 and stated that the delay in lodging
the complaint was only because she was afraid of her uncle. In
her cross examination, she stated that she used to accompany
the accused and his wife for plucking areca nuts and that on the
fateful day, she and her sister had not gone to the school.
7. PW2 is the Woman CPO, who recorded Ext.P1 FIS, PW3
is the father of the victim who has attested Ext.P3 scene
mahazar and PW4 is the owner of the property wherein the
incident took place.
8. PW5 is the doctor, who examined the victim on
25/3/2017. She deposed that she examined the victim and
issued an Ext.P4 report and the history of allegation noted in it
was narrated by the victim herself. On examination no external
injuries were noted and the hymen was intact. She took the
Crl.Appeal No.636 of 2022 -: 9 :-
2025:KER:3313
perineal swab and smear for examination and handed it over to
the police officer. She also stated that tearing of hymen is not
necessary in all intercourse and the external genitalia of the
victim was found normal.
9. PW7 was the headmistress of the Chingeri
Govt.L.P.School where the victim was studying. Through her
Ext.P6 certificate and Ext.P8 extract of the Admission Register of
the victim were marked. She stated that the date of the birth of
the victim was 25/3/2007.
10. PW10 is the mother of the victim. She stated that the
date of the birth of the victim is 25/3/2007 and that the accused
was residing in a shed nearby at the relevant time. She came to
know about the incident from the mouth of her daughter and she
had handed over the dresses of the victim (MO1 and MO2) to the
police and signed in Ext.P11 mahazar at that time.
11. PW11 was the CI of Meenangadi at the relevant time.
He deposed that on 26/3/2017 he took over the investigation in
Crl.Appeal No.636 of 2022 -: 10 :-
2025:KER:3313
this case and prepared Ext.P3 scene mahazar. At 4 pm on that
day, he seized the dresses worn by the victim as per Ext.P11
mahazar and arrested the accused at 11 pm after preparing
Ext.P12 arrest memo. Thereafter, he took the accused for
medical examination and obtained Ext.P13 certificate and later
collected the extract of the Admission Register, Possession
Certificate and Site plan and produced them before the court. He
also submitted Ext.P17 forwarding note and obtained Ext.P18 FSL
report. After completing the investigation, he laid the charge.
12. PW13 is the Medical Superintendent of General Hospital,
Kalpetta. Through him, after identifying the signature of Dr.
Sibin, Ext.P13 Potency Certificate of the accused was marked. He
stated that on examination, Dr.Sibin has opined that there is
nothing to suggest that the accused was incapable of performing
sexual acts.
13. While appreciating the evidence in this case, it is to be
seen that the prosecution case solely rests upon the ocular
Crl.Appeal No.636 of 2022 -: 11 :-
2025:KER:3313
evidence of PW1. The trial court has placed reliance upon this
testimony to reach a conclusion of guilt against the accused. On
an evaluation of evidence of PW1, it can be seen that she has
given a vivid description of the incident that took place on the
fateful day. PW1’s evidence reveals that on 7/3/2017 at about 9
am, the accused had taken her to another property in the guise
of plucking jackfruits and had sexually abused her. PW1 has
specifically deposed the manner in which the accused committed
the act and thus violated her. She also stated that at 4 pm on the
same day, the accused again came to her and after threatening
to kill her, took her and committed the very same act.She told
her sister about the incident immediately and subsequently some
ladies and police came to her and asked her about the incident.
Even though PW1 has been cross examined in extenso, her
version regarding the crux of the events remains unshattered. It
is to be seen that the recitals in Ext.P1 FIS given by the victim,
also tallies in material particulars with the incident.
Crl.Appeal No.636 of 2022 -: 12 :-
2025:KER:3313
14. The evidence on record goes to show that the FIS was
given at 6 pm on 25/3/2017 followed by registration of Ext.P19
FIR. Thereafter, the victim was examined by PW5, the doctor, at
9.05 pm on the very same day and Ext.P4 report was issued. It is
pertinent to note that, in Ext.P4 the history of the incident was
recorded by the doctor as sexual assault by the accused who was
named therein and the evidence of PW5 categorically shows that
the history was narrated by the victim herself. The afore fact
also lends considerable support to the evidence of PW1 regarding
the incident. It is further to be seen that on the very same day
at about 10.50 pm the statement of the victim under Section 164
Cr.P.C (Ext.P2) was recorded by the Magistrate. While giving the
statement, the victim has specifically narrated the incident which
took place in the morning and the same also tallies in material
particulars with the testimony of PW1.
15. It is true that in Ext.P2 statement, the victim has stated
that in the evening while she was taken by the accused to
Crl.Appeal No.636 of 2022 -: 13 :-
2025:KER:3313
another property and when her dress was tried to be removed,
she had run away. It is also true that in Ext.P2, she had stated
that in the morning she was taken to the property by the accused
and his wife and that during examination in the court, PW1 has
denied giving such statements. Now the question to be
considered is whether these contradictions are material
contradictions affecting the core of the prosecution case. On an
anxious consideration of the afore question and the materials on
record, we are of the view that these contradictions brought out
in evidence cannot be considered as material ones affecting the
core of the prosecution case and they are only minor aberrations
in evidence, which naturally occur in the course of recording the
evidence. As stated earlier, it is to be seen that PW1, who is a
child aged about 10 years, has given a graphic description of the
incident which took place in the morning and evening of the
fateful day before the court and the same is also well
corroborated by the recitals in Ext.P1 FIS. It is to be taken note
Crl.Appeal No.636 of 2022 -: 14 :-
2025:KER:3313
that on 25/3/2017, after coming to know about the incident, the
child was under a hectic and tumultuous schedule and after
recording the FIS, she was taken on the very same day to the
doctor for medical examination and thereafter, to the Magistrate
and that too in the late night about 11 pm for recording her
statement. The situations narrated afore undoubtedly will rattle,
cause anxiety and make the child nervous resulting in such
variations creeping in Ext.P2 and if so, the said reason alone
cannot be considered as a ground to disbelieve the testimony of
the victim. In other words, we may say that such minor
discrepancies are bound to occur while recording the statement
of a small child in such a hectic manner as described afore and
no much weightage can be given to the same.
16. Moving further, it is true that in the present case there
is some delay in lodging the FIR. As stated earlier, the incident
took place on 7/3/2017 and the FIR has been lodged only on
25/3/2017. But a perusal of Ext.P1 FIS would show that the
Crl.Appeal No.636 of 2022 -: 15 :-
2025:KER:3313
victim has specifically stated that it is only because of the threat
imparted by the accused who is her close relative and neighbour,
she had not disclosed the events to anyone. Even during
examination, PW1 specifically stated that, it is only because of
the fact that she is afraid of the accused, the incident was not
reported to anyone. As stated earlier, even though PW1 has
been cross examined extensively, nothing has been brought out
to discredit her testimony on this aspect. If so, we find no
reason to disbelieve PW1 in this regard and hence we are of the
view that the prosecution has satisfactorily explained the delay
in lodging the FIR.
17. Now we may deal with the medical evidence adduced by
the prosecution The evidence of PW5 coupled with Ext.P4 would
go to show that no external injuries were noted on the victim,
the hymen was intact and that the external genitalia was normal.
No seminal stains were also detected in the dress worn by the
victim and no human spermatozoa was detected in the perineal
Crl.Appeal No.636 of 2022 -: 16 :-
2025:KER:3313
smear and swab taken by the doctor. But, it is to be taken note
that PW5 has specifically deposed that tearing of hymen is not at
all necessary in a sexual intercourse. It is also pertinent to note
that the samples were taken nearly 18 days after the incident,
thus ruling out any chances of detection of human spermatozoa
from the body of the victim. Even if the matter stands thus, it
would be apt to take note that the definition of ‘rape’ and
‘penetrative sexual assault’ also does not contemplate a full or
complete insertion/penetration and even slightest penetration is
sufficient. Going by Section 375 IPC and Section 3 of POCSO
Act, penetration to any extent is sufficient to constitute the
offences and if so, in the present case even if the medical and
scientific evidence, as stated afore, does not give a positive
indication of sexual assault, the same is not a ground to discard
the prosecution case. (See Wahid Khan’s case & Rafiq’s case
(cited supra) and State of Himachal Pradesh v. Manga Singh
[(2019) 16 SCC 759].
Crl.Appeal No.636 of 2022 -: 17 :-
2025:KER:3313
18. It is true that in the present case there is no
corroborative piece of evidence in support of the testimony of
PW1. As stated earlier, there is lack of scientific and medical
evidence and the prosecution has also not examined the sister of
PW1 to whom she opened her mind for the first time regarding
the incident. But it is a settled law that a 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
and her testimony is vital unless there are compelling reasons
which necessitate looking for corroboration of her statement. If
the testimony of the victim inspires confidence and is found to be
reliable there is no impediment for the courts in acting upon it.
While analysing such an evidence, minor contradictions or
insignificance discrepancies in the statement of a prosecutrix
should not be taken as a ground for throwing out an otherwise
reliable prosecution case. Unless an offence has really been
Crl.Appeal No.636 of 2022 -: 18 :-
2025:KER:3313
committed, a girl or woman would be extremely reluctant even to
admit that such an incident had taken place which is likely to
reflect on her chastity. The same principle is also applicable in the
case of parents, where the victim is a minor. [See Asha Ram’s
case, Wahid Khan’s case, Gurmit Singh‘s case, Rafiq’s case and
Manga Singh’s case (all cited supra)]. Further, in the case on
hand, the child being a destitute and neglected one, left to fend
for herself can never depose falsity and that too regarding a
sexual assault made upon her. Hence, considering the evidence
of PW1 in the light of the above legal principles, we have no
hesitation to find that there is a ring of truth in her testimony
regarding the incident and we find her testimony wholly reliable
and can be acted upon even without corroboration.
19. The upshot of the afore discussions on evidence is that,
the prosecution has proved beyond reasonable doubt that the
accused has, on 7/3/2017, committed rape/aggravated sexual
assault upon PW1, aged 10 years, repeatedly in the morning and
Crl.Appeal No.636 of 2022 -: 19 :-
2025:KER:3313
evening of that day. The trial court has properly appreciated the
evidence on record and has arrived at a correction conclusion of
guilt against the accused. The appellant could not bring out any
material evidence which would enable this Court to interfere with
the said conclusion. Therefore, the challenge raised on merits
fails and the conviction arrived at by the trial court stands
confirmed. Now the question to be considered is whether the
sentence imposed by the trial court is just and proper. As stated
earlier, the trial court has sentenced the accused to undergo
rigorous imprisonment for life for the remainder of his natural life
and also to pay a fine of Rs.50,000/- each for the offences under
Sections 376(2)(n), 376(2)(i) and 376(2)(f) of IPC. In case of
each default, the accused was ordered to undergo rigorous
imprisonment for a period of one year each. The accused was
also sentenced to undergo rigorous imprisonment for a period of
five years and to pay a fine of Rs.10,000/- under Section 506 (ii)
IPC. In case of default, the accused was ordered to undergo
Crl.Appeal No.636 of 2022 -: 20 :-
2025:KER:3313
rigorous imprisonment for a period of six months. In the light of
Section 42 of the POCSO Act, no separate sentence was awarded
for the offences under the said Act. Considering the facts and
circumstances of this case, the manner of perpetrating the
crime, its gravity, the fact that the victim has not suffered any
physical injuries in the assault, the age of the accused, his
chances for reformation, etc. we are of the view that the
substantive sentences of imprisonment imposed by the trial court
is on a higher side and the same can be modified and reduced.
Considering the fact that Section 6 of the POCSO Act prescribes a
minimum sentence of 20 years and in the light of Section 42 of
the said Act, we are of the view that the appellant/accused can
be sentenced to undergo rigorous imprisonment for a period of
twenty years each and to pay a fine of Rs.50,000/- each for the
offences punishable under Section 5 (l),5(m) & 5(n) read with
Section 6 of the POCSO Act and no separate sentence need be
awarded for the offences under Sections 376(2)(f), 376(2)(i) and
Crl.Appeal No.636 of 2022 -: 21 :-
2025:KER:3313
376(2)(n) of IPC. In case of each default, the appellant/accused
shall undergo rigorous imprisonment for a period of one year.
We are also of the view that the sentence of imprisonment
imposed on the appellant/accused under Section 506 (ii) of IPC
can be reduced to one of rigorous imprisonment for a period of
one year and to pay a fine of Rs.10,000/- . In case of default in
payment of fine, the appellant/accused shall undergo rigorous
imprisonment for a period of two months. The fine amount, if
realised, shall be disbursed to the victim(PW1) and the
substantive sentences shall run concurrently.
In the result, this appeal is allowed in part as follows:
i) The conviction of the appellant/accused under Sections 376(2)
(f), 376(2)(n), 376(2)(i) and 506(ii) of IPC is confirmed.
ii) The conviction of the appellant/accused under Sections 5(l),
iii) The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of twenty years each and to pay a fine
Crl.Appeal No.636 of 2022 -: 22 :-
2025:KER:3313of Rs.50,000/- each for the offences punishable under Section 5
(l),5(m) & 5(n) read with Section 6 of the POCSO Act. In case of
each default, the appellant/accused shall undergo rigorous
imprisonment for a period of one year.
iv) The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of one year and to pay a fine of
Rs.10,000/- under Section 506 (ii) of IPC. In case of default in
payment of fine, the appellant/accused shall undergo rigorous
imprisonment for a period of two months.
v) The substantive sentences shall run concurrently and set off is
also granted.
vi) The fine amount , if realised, shall be paid to PW1.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
[ad_1]
Source link