Kerala High Court
Udayakumar vs State Of Kerala on 28 March, 2025
Criminal Appeal No.1168 of 2018
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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. 1168 OF 2018
CRIME NO.977/2015 OF VALLIKUNNAM POLICE STATION, ALAPPUZHA
AGAINST THE JUDGMENT DATED 16.07.2018 IN SC NO.360 OF
2017 ON THE FILE OF THE COURT OF SESSION, ALAPPUZHA.
APPELLANT/ACCUSED:
UDAYAKUMAR,
AGED 54 YEARS,
S/O BHASKARAN, C.NO.2878,
CENTRAL PRISON AND CORRECTIONAL HOME,
POOJAPPURA, THIRUVANANTHAPURAM,
AND RESIDED AT RAMESH BHAVANAM,
KULASHEKHARAPURAM VILLAGE, ADHINADU SOUTH
BY ADV SRUTHY K.K. (STATE BRIEF)
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. INSPECTOR OF POLICE, MAVELIKKARA.
BY ADV.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.1168 of 2018
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Dated this the 28th day of March 2025
JUDGMENT
In this appeal filed under Section 383 Cr.P.C., the appellant,
the sole accused, in S.C.No.360 of 2017 on the file of the Court of
Session, Alappuzha, challenges the conviction entered and sentence
passed against him for the offences punishable under Sections 376(2)
(f), 376(2)(i), 376(2)(j) IPC and Sections 5(m), (n) read with Section
6 of the Protection of Children from Sexual Offences Act, 2012 (the
2. The prosecution case is as follows: the accused, the
stepfather of PW4, a minor girl child aged 6 years, on 22/08/2015
during night in their house bearing door no.12/257-A, Bharanikkavu
grama panchayat, committed rape on her. The accused committed
aggravated penetrative sexual assault on PW4. Hence, the accused as
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per the final report was alleged to have committed the offences
punishable under Section 376(2)(f) IPC, Section 3 read with Section
4 and Sections 5(m), (n) read with Section 6 of the PoCSO Act.
3. Crime no.977/2015, Vallikunnam police station, that is,
Ext.P4(a) FIR was registered by PW11, the Sub Inspector of police,
Vallikunnam police station based on Ext.P4 FIS of PW5. The initial
investigation was conducted by PW8, the then Circle Inspector of
Police, Mavelikkara police station. The investigation was thereafter
taken over by PW12, Circle Inspector, Mavelikkara who on
completion of investigation submitted the final report alleging the
commission of the offences punishable under the aforementioned
Sections.
4. On appearance of the accused, the trial court after
complying with all the necessary formalities contemplated under
Section 207 Cr.P.C. and after hearing both sides, framed a charge
under Sections 376(2)(f), (i), (j) IPC and Sections 5(m) (n) read with
Section 6 of the PoCSO Act, which was read over and explained to
the accused to which he pleaded not guilty.
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5. On behalf of the prosecution, PW1 to PW12 were
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 guilty of the offences punishable under
Sections 376(2)(f)(i)(j) IPC and Sections 5(m)(n) read with Section 6
of the PoCSO Act. Hence, he has been sentenced to rigorous
imprisonment for ten years each and to a fine of ₹1,00,000/- each and
in default to simple imprisonment for two years each for the offences
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punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(j) IPC.
The substantive sentences have been directed to run concurrently. Set
off under Section 428 Cr.P.C. has been allowed. In view of the
provisions under Section 42 of the PoCSO Act, no separate sentence
has been awarded for the offence under Sections 5(m) (n) read with
Section 6 of the PoCSO Act. 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 accused/appellant by the trial court are sustainable or not.
9. Advocate Sruthy K.K. was appointed as State Brief
for the appellant. Advocate Vipin Narayan, senior Public Prosecutor
appeared for the State. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that the age of PW4, the victim girl has not been
established by the prosecution. There was delay in the matter being
reported to the police and the FIR reaching the Court. The delay has
not been explained. The accused was arrested only on 21/02/2017,
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that is, more than two years after the incident. The prosecution has no
case that the appellant/accused was absconding. No reasons have
been given by the investigating officer as to what prevented him
from arresting the appellant/accused. The place of occurrence has not
been proved as no site plan has been prepared. CW3, the mother of
PW4 was never examined before the court. CW3 despite coming to
know about the alleged incident never set the law in motion by
giving a complaint to the police. PW5 is not a reliable witness. The
doctor of the Primary Health Centre, where the child is alleged to
have been taken first has not been examined. On these grounds it was
canvassed that the appellant/accused is entitled to the benefit of
doubt and hence consequentially entitled to be acquitted.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that PW5 is a natural witness. Ext.P4 FIS makes it clear
that PW4 the victim went home from the Children’s Home on
22/08/2015 and returned only on 01/09/2015. This fact was not
disputed by the appellant/accused which would show that he did have
access to the victim at the relevant time. When PW4 returned to the
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Children’s Home on 01/09/2015, PW5 noticed some signs of
disturbance in the former and hence she took her to the doctor during
which examination the abuse was revealed. There are no reasons to
disbelieve PW4 or PW5 and hence no grounds for interference made
out, argued the Public Prosecutor.
11. I make a brief reference to the evidence on record
relied on by the prosecution in support of the case. The
appellant/accused is admittedly the stepfather of PW4, the victim
girl. PW4 deposed that she was staying as an inmate in the
Government Children’s Home, Mayithara, Cherthala. At the time of
occurrence, she was in the Government Children’s Home at
Nooranadu near Kayamkulam. According to PW4, during Onam
holidays while she was studying in the 2nd Std, she was taken to her
home by CW3, her mother and her stepfather, the accused herein,
from the Children’s Home at Nooranadu. One day, during the
holidays while she was sleeping, the accused removed her panties
and kissed her vagina and then penetrated his penis into her vagina.
Her mother was in deep sleep at that time. As she was afraid of her
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stepfather, she did not reveal the abuse by the accused to her mother.
PW4 further deposed that she had disclosed the abuse to PW5, the
care provider of the Children’s Home in whom she had confidence.
Accordingly, it was reported to the police. PW4 deposed that she felt
stomach pain and vaginal pain due to the abuse by the accused and
that she had fever also.
11.1. PW5, the care provider attached to the Government
Children’s Home, Nooranadu, deposed that PW4 was an inmate in
the Home during 2015. On 22/08/2015 CW3, the mother of PW4,
came to the Children’s Home accompanied by her husband, the
appellant/accused herein. They came to the Children’s Home for
taking PW4 to their house during Onam holidays. This was
permitted by the Home. On 01/09/2015 PW4 was brought back to
the Children’s Home from her house after the Onam holidays.
Pursuant to the same, PW4 complained of stomach and vaginal pain.
Owing to the health problems, PW4 could not attend her classes.
Therefore, PW5 took PW4 to the Primary Health Centre,
Chunakkara. After conducting pathological test of her urine, the
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doctor attached to the Health Centre opined that possibility of sexual
abuse of PW4 could not be ruled out. Therefore, CW3, the mother of
PW4, was asked to come to the Children’s Home. Accordingly,
CW3 accompanied by the appellant/accused, came to the Children’s
Home. When PW5 informed CW3 regarding the health problems
faced by PW4 after Onam holidays, the appellant/accused expressed
his unrest in the matter of remaining there. When PW5 disclosed the
whole incident to CW3, she responded by saying that she was
unaware of the same. According to PW5, PW4 has mild speech
problem. However, as she was familiar with the speech of PW4, she
could understand what the latter was expressing. Therefore, with her
assistance, the police had recorded the statement of PW4. PW5
admitted that Ext.P4 FIS was given by her to the police in connection
with the occurrence.
11.2. On going through the testimony of PW4 and PW5,
I find absolutely no reasons to disbelieve their testimony. The
appellant/accused is admittedly the stepfather of PW4. It is true that
materials have come on record to show that CW3 had been
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summoned to the Children’s Home and informed of the abuse.
However, she never took any steps to give a complaint to the police.
It is a matter of great concern that PW4, the young child, had none to
protect her, not even her mother. That appears to be the reason why
she was not interested in going to her own house and preferred to live
in the Children’s Home as deposed by PW5.
12. As pointed out by the learned counsel for the
appellant/accused, it is seen that the accused was not arrested after
the incident for a period of about two years. The records reveal that
he was arrested in the year 2017 whereas the incident took place on
22/08/2015. It is true that the investigating officer has no case that
the appellant/accused had absconded. No reasons have been
furnished for the delay in effecting the arrest of the
appellant/accused. However, defects in the investigation cannot be a
reason to disbelieve PW4 who cannot be faulted for the lacuna in the
investigation conducted by the police.
13. It is true that the doctor of the Primary Health
Centre to which PW4 was initially taken for examination has not
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been examined. But that also seems to be immaterial in the light of
the testimony of PW4 and PW5 whom I find no reasons to
disbelieve. Further, there is delay in reporting the matter. But the
delay has not proved fatal as no materials have been brought in to
show false implication. It needs to be noted that PW4 was taken to
her house by her mother and her stepfather on 22/08/2015 and was
brought back to the Children’s Home on 01/09/2015. It was thereafter
PW5 came to know the difficulties faced by PW4, pursuant to which
the child had been taken to the doctor and thereafter the FIR was
registered. Therefore, there is no inordinate delay in reporting the
matter to the police. No materials have also come on record to show
that there has been a false implication in this case.
14. Another aspect pointed out by the learned counsel
for the appellant/accused is that no site plan has been prepared in this
case. However, it has come out in evidence that Ext.P2 scene
mahazar was prepared on 05/09/2015. Thereafter, when PW10,
Village Officer, Kattanam village went to the place of occurrence to
prepare the site plan, the temporary shed in which the occurrence had
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taken place was found demolished. Therefore, PW10 issued Ext.P6
certificate stating the aforesaid facts. The non preparation of the site
plan has not affected the prosecution case in any manner. The police
ought to have taken steps expeditiously to get the plan prepared
immediately after the preparation of the scene plan. No such steps
are seen taken, which is seen to have resulted in the temporary shed
in which the incident took place being demolished. This also cannot
be the fault of PW4.
15. Yet another argument that was advanced by the
learned counsel for the appellant/accused is that the age of PW4, the
victim girl, has not been established. It is pertinent to note that the
age of the child was never in dispute before the trial court. According
to the prosecution case, PW4 was just 6 years at the time of the
incident. PW4 when examined before the court was 9 years. On
going through her testimony it is seen that voir dire was conducted
by the trial judge before her examination started. That being the
position at this late stage it cannot be conducted that the age of the
child has not been established. From the materials on record I find no
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infirmity in the findings of the trial court calling for an interference
by this Court.
Now coming to the sentence that has been imposed on the
appellant/accused. Admittedly, the appellant/accused is the stepfather
of PW4, the victim girl and hence the sentence that has been
imposed is commensurate with the crime that has been committed by
him and therefore I find no reasons to make any modifications to the
same.
In the result, the appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
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