IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
CRL.A NO. 594 OF 2021
AGAINST THE JUDGMENT IN SC 362/2017 OF I ADDITIONAL DISTRICT
& SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED:
XXX
X
BY ADVS.
T.U.SUJITH KUMAR
DINESH G WARRIER
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031.
2 THE SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION, KOLLAM DISTRICT 689 695.
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN OTHER PRESENT:
SMT BINDU O V-PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON 01.07.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.594/2021 -:2:- J U D G M E NT Dated this the 1st day of July, 2022 This appeal has been preferred under Sections 374(2) of the Code of Criminal Procedure by the accused in S.C. No. 362/2017 on the file of the 1 st Additional District and Sessions Judge, Kollam (for short, 'the court below') challenging the judgment of conviction and sentence dated 19th February, 2018.
2. The accused faced trial for the offence punishable under Section 354C of IPC and Section 11(v) r/w 12 of the Protection of Children from Sexual Offences Act (for short, the POCSO Act).
3. The accused is none other than the father of the victim girl, then aged 17 years. The prosecution case is that, on 25/12/2015, 13/10/2016, and 27/11/2016, while the victim was changing her dress and taking bath, the accused with sexual intent peeped through a hole made in the door of the bathroom and in the wall of the room where she changed her dress at their Crl.Appeal No.594/2021 -:3:- house at Pathanapuram.
4. The crime was registered on the basis of Ext. P1 statement given by the victim to the Sub Inspector of Police, Pathanapuram. After completing the investigation, the final report was filed at the court below.
5. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused for the offence punishable under Section 354C of IPC and Section 11(v) r/w 12 of the POCSO Act. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW9 and marked Exts. P1 to 9. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Section 354C of IPC and he was convicted for the said offence. He was found not guilty for the offence punishable under Section 11(v) r/w 12 of POCSO Act and he was acquitted for the said offence. The accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Crl.Appeal No.594/2021 -:4:- `50,000/-, in default to suffer simple imprisonment for three months under Section 354C of IPC. Challenging the said conviction and sentence, this appeal has been preferred.
6. I have heard Sri. Sujithkumar T.U., the learned counsel appearing for the appellant and Smt. Bindu O.V., the learned Public Prosecutor.
7. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and the resultant finding as to the guilt. The counsel submitted that the conviction is based on the uncorroborated testimony of the child witness which suffers from contradictions and omissions. The counsel further submitted that there is inordinate delay in reporting the matter and lodging the FIR. The counsel also submitted that the sentence imposed is excessive. Per contra, the learned Public Prosecutor, Smt. Bindu O.V. supported the findings and verdict handed down by the court below and argued that the prosecution has succeeded in establishing and proving the case beyond reasonable doubt.
8. The prosecution mainly relied on the evidence of PW1 Crl.Appeal No.594/2021 -:5:- to prove the incident and to fix the culpability on the accused. PW1 is the victim who gave Ext. P1 statement. PW1 gave Ext. P1 First Information Statement on 28/11/2016. She deposed that, about one month prior to Ext.P1, the accused used to peep while she changes her dress and takes bath. She further deposed that, one day while she was changing her dress after her school hours, she felt the smell of liquor in the room and when she looked, she found the accused lying under the cot watching her. She also deposed that, one day while she was taking bath, her younger sister saw her father peeping through the drain and when she questioned this, he replied that it is father who has to taste their daughters first and also he had stated an example that if one plants a coconut tree, the first tender coconut is to be taken by the planter and similarly if a tree is planted, the first fruit is to be taken by the planter. She further deposed that, one night, the accused under the influence of alcohol came to her room and tried to remove her bed sheet. Hence, the victim along with PW2, the mother of the victim, went to the police station when they were unable to bear the acts of the accused, gave Ext. P1 statement and lodged the complaint.
Crl.Appeal No.594/2021 -:6:-
9. I have perused the evidence of PW1 meticulously. Even though she was cross-examined by the learned counsel for the accused, nothing tangible could be extracted from her to create any shadow of doubt that she is not a truthful witness. She clearly deposed the manner in which the accused intruded into her privacy. She gave a reliable, consistent, and credible version of the crime which inspires confidence. In the chief examination, she clearly deposed that the accused peeped while she was changing dress and taking bath on many occasions and also lied beneath the cot in the room to watch her while she changes her dress.
10. It is settled that, the evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. The learned counsel for the accused submitted that the conviction was based on the sole evidence of the victim and no occurrence witness was examined. In State of Himachal Pradesh v. Asha Ram (AIR 2006 SC 381), it was held that it is well within the limits to rest a conviction based on the sole testimony of the victim, whose evidence is more reliable than that of injured witness. In State of Punjab v. Gurmit Singh Crl.Appeal No.594/2021 -:7:- [(1996) 2 SCC 384], the Apex court took the view that in cases involving sexual molestation, even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. It was further held that, the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. Here, the evidence of the PW1 is found to be genuine, credible and reliable. It can safely be relied on to prove the incident and to fix the culpability on the accused.
11. The learned counsel for the appellant vehemently argued that, there is inordinate delay in reporting the matter to the police and lodging the FIR. The delay in sexual offence has to be viewed differently. The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim and members of her family. In a tradition bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR. The delay becomes fatal only in a case when there is doubt Crl.Appeal No.594/2021 -:8:- as to the genesis or genuineness of the prosecution case. Apart from that, PW1 has stated that she had already given a complaint in the year 2014 against the accused alleging sexual assault committed by him and the accused continued to repeat the said acts after coming out on bail, and when she was unable to bear the acts of the accused, she preferred the complaint. Thus, there is nothing on record to doubt about the genesis or genuineness of the prosecution case on account of the alleged delay.
12. The prosecution has succeeded in proving that the accused has committed the offence punishable under 354C of IPC. Hence, I am of the view that the court below was absolutely justified in convicting the accused under the aforesaid provisions and no interference is called for on the said findings.
13. What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/-, in default to undergo simple imprisonment for three months under Section 354C of IPC. Section 354C of IPC prescribes punishment of imprisonment of either description for a term which shall not be less than one Crl.Appeal No.594/2021 -:9:- year, but which may extend to three years and shall also be liable to fine on first conviction and be punished on subsequent conviction with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine. The learned counsel for the appellant argued that since the previous conviction is not properly proved before the court below, the sentence passed by the Court below is not sustainable.
14. Section 298 of Cr.P.C. prescribes the procedure to prove the previous conviction or acquittal. Section 298 of Cr.P.C reads thus:
"298. Previous conviction or acquittal how proved: - In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force,-
(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or
(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered.
together with, in each of such cases evidence as to the identity Crl.Appeal No.594/2021 -:10:- of the accused person with the person so convicted or acquitted."
15. There is nothing on record to prove the previous conviction of the accused as mandated by the aforesaid provision in this case. This Court in State of Kerala v. Jayanandan [2017 (1) KLT SN 83 (C.No. 96)] has held that, so long as the prosecution has not brought out any material in evidence on the side of the prosecution about any previous conviction, details of the cases in which the accused was involved and the cases in which he was convicted would not constitute proof as provided in clauses (a) and (b) of S.298. Since the prosecution could not prove the previous conviction of the accused as contemplated under Section 298 of Cr.P.C, the sentence passed by the court below is unjustifiable and liable to be reduced. Considering the entire facts, circumstances and peculiar nature of this case, I am of the view that the substantive sentence imposed by the Court below is to be reduced to rigorous imprisonment for a term of three years.
16. In the result, the conviction passed by the Court below is confirmed. The substantive sentence imposed by the Court below is reduced to rigorous imprisonment for a term of Crl.Appeal No.594/2021 -:11:- three years. There is no change in the fine imposed and default sentence.
This criminal appeal is allowed in part as above.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE Rp