Kerala High Court
Prince vs State Of Kerala on 3 October, 2024
Crl.A.No.85 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.A NO. 85 OF 2016
AGAINST THE JUDGMENT DATED 18.01.2016 IN SC NO.285 OF
2013 OF ADDITIONAL DISTRICT & SESSIONS COURT (ATROCITITES &
SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN), ERNAKULAM.
CRIME NO.10/2013 OF MARADU POLICE STATION, ERNAKULAM.
APPELLANTS/ACCUSED:
1 PRINCE,
AGED 39 YEARS,
S/O.GEORGE JOSEPH, VALIYAVEETTIL HOUSE, THYKOODAM,
VYTTILA, NOW RESIDING RENTED HOUSE OF ONE GEORGE,
KAITHOUTTUNGAL HOUSE, MARTINPURAM, MARADU.
2 VIJITHA V.J.,
W/O.PRINCE, VALIYAVEETTIL HOUSE, THYKOODAM, VYTTILA,
NOW RESIDING RENTED HOUSE OF ONE GEORGE,
KAITHOUTTUNGAL HOUSE, MARTINPURAM, MARADU.
BY ADVS.
SRI.NAGARAJ NARAYANAN
SRI.BENOJ C AUGUSTIN
SMT.J.KASTHURI
SRI.SAIJO HASSAN
SRI.SEBIN THOMAS
SRI.VIVEK V. KANNANKERI
SRI.VISHNU BHUVANENDRAN
Crl.A.No.85 of 2016
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RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR (SR.)
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
24/09/2024, THE COURT ON 03/10/2024 DELIVERED THE FOLLOWING:
Crl.A.No.85 of 2016
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C.S.SUDHA, J.
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Criminal Appeal No.85 of 2016
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Dated this the 03rd day of October 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellants who are accused in S.C.No.285/2013 on the file of the Court of Session, Ernakulam, challenge the conviction entered and sentence passed against them for the offences punishable under Section 377 IPC; Sections 8 and 21 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the JJ Act).
2. The prosecution case is as follows:- the 2nd accused, the wife of the 1st accused was the tuition teacher of PW3, the victim. On 09/03/2013 sometime between 10:00 a.m. and 07:00 p.m. when PW3 a girl child of seven years had gone to the house of the accused for tuition, the 1st accused outraged her modesty by lifting her frock Crl.A.No.85 of 2016 4 2024:KER:72976 and with sexual intention groped her private parts and also kissed on her face and lips. The 1st accused also made her hold his penis. The 2 nd accused due to her enmity to PW3 as she had revealed the incident to PW4, her mother, on 11/03/2013 beat on her back with a stick. Hence, as per the charge sheet the accused were alleged to have committed the offences punishable under Section 377 read with Section 34 IPC as well as Sections 4 and 8 of PoCSO Act and Section 23 of the JJ Act.
3. On the basis of Ext.P3 complaint of PW4 and Ext.P9 statement of PW3 crime no.10/2013, Maradu police station, that is Ext.P8 FIR was registered by PW8, Grade Sub Inspector of the said police station. Thereafter, PW7, the then Sub Inspector, Maradu police station, conducted the investigation and submitted the final report alleging the commission of the aforesaid offences by the accused persons.
4. On appearance of the accused persons before the trial court, a charge under Section 377 IPC and Section 8 of the PoCSO Act was framed against the 1st accused and a charge under Section 23 of the JJ Act and Section 21 of the PoCSO Act was framed against the 2 nd accused, which was read over and explained to the accused persons to Crl.A.No.85 of 2016 5 2024:KER:72976 which they pleaded not guilty.
5. On behalf of the prosecution, PWs1 to 9 were examined and Exs.P1 to P9 were got marked on the side of the prosecution in support of the case. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. The accused persons denied all those circumstances and maintained their innocence.
6. As the trial Court did not find it a fit case to acquit the accused persons under Section 232 Cr.P.C, they were asked to enter on their defence and adduce evidence in support thereof. On behalf of the accused DW1 was examined. No documentary evidence was produced by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the 1st accused guilty of the offence punishable under Section 8 of the PoCSO Act and the 2nd accused guilty of the offence punishable under Section 23 of the JJ Act. The 1st accused has been found not Crl.A.No.85 of 2016 6 2024:KER:72976 guilty of the offence punishable under Section 377 IPC and the 2 nd accused for the offence punishable under Section 21 of the PoCSO Act and so have been acquitted under Section 235(1) Cr.P.C. for the said offences. The 1st accused has been sentenced to rigorous imprisonment for four years and to a fine of ₹10,000/- and in default of payment of fine to undergo rigorous imprisonment for two months. Set off under Section 428 Cr.P.C. has been allowed. The 2nd accused has been sentenced to a fine of ₹5000/- and in default to undergo simple imprisonment for one month. It has also been directed that if the fine amount is realized, it shall be paid to PW3 as compensation under Section 357(1) Cr.P.C. Aggrieved, both the accused have come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against accused persons by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the accused persons/appellants that the evidence/materials on record is totally Crl.A.No.85 of 2016 7 2024:KER:72976 unsatisfactory to establish the prosecution case. There is no medical evidence to support the case. The present false case has been given as a counter blast to the complaint given by the accused persons to the police against PW4 and her husband. If PW4, the mother of PW3, the child, is to be believed, she had sent her child for tuition even after she came to know of the alleged incident and allowed her ward to remain in the custody of the 2nd accused. Had an incident as alleged by the prosecution in fact taken place, PW4 would never have permitted her child to be in the custody of the accused. This itself would show that the incident alleged is false. Moreover, the testimony of DW1 would prove that the accused was never present at his house during the relevant time. Hence, the trial court grossly erred in finding the accused persons guilty and convicting them, goes the argument. Per contra, it was submitted by the learned Public Prosecutor that the evidence on record is sufficient and satisfactory to prove the offences alleged against the accused and that there is no infirmity in the findings of the trial court calling for an interference by this court.
11. I briefly refer to the evidence on record relied on by the prosecution to prove the case. PW1, Consultant Gynaecologist, Crl.A.No.85 of 2016 8 2024:KER:72976 Government Hospital, Ernakulam deposed that on 26/03/2013 at about 05:00 p.m. she had examined PW3, aged 7 years and had issued Ext.P1 certificate. She was told by PW3 that - "one Prince embraced her, kissed and touched her tongue with his tongue and also lay over her". On examination she did not find any injuries.
11.1. PW3, the victim, deposed that she was aged seven years and studying in the 2nd standard at the time of the incident. She used to go to the house of the accused for tuition and that the 2 nd accused was her tuition teacher. One day when she went for tuition, Prince the 1st accused kissed, embraced and groped her breast. The 1 st accused had removed his undergarment and exhibited himself. He also touched her private parts. She was beaten by the 1 st accused and the 2nd accused.
11.2. PW4, the mother of PW3, deposed that her child had some difficulty in speech and hearing and therefore she had sent her for tuition to the 2nd accused. On a day two weeks before 19/03/2013, PW3 came home from tuition and told her that - "Prince had embraced and kissed her". PW3 being a young girl child, they had initially decided not to complain. However, the accused persons kept Crl.A.No.85 of 2016 9 2024:KER:72976 telling her that PW3 was imagining things and lying. They repeatedly contacted her over the telephone and kept reiterating that the incident was a figment of imagination of PW3. The accused persons also filed a petition before the police alleging that they were being threatened by PW4 and her husband. In such circumstances, they approached the police on 19/03/2013 and gave Ext.P3 complaint, whereupon the police recorded the statement of PW3.
11.3. PW9 a neighbour of PW3 and PW4 deposed that she also used to send her son for tuition to the house of the accused. PW3 was also a student of the 2nd accused. She came to know about the incident from PW4. The tuition time is usually from 04:30 pm to 07:00 pm. Occasionally she used to pick up her son as well as PW3 from the tuition class. Sometimes it was PW4 who would bring the children home. On a Saturday, she had taken her son to the tuition class in the morning and taken him back in the evening. On the said day both the accused were present at home.
11.4. PW5, Sub Inspector, Women Cell, deposed that on 19/03/2013 at 06:00 p.m. she received Ext.P3 complaint from PW4 to the effect that PW3, her daughter, had been sexually assaulted. She Crl.A.No.85 of 2016 10 2024:KER:72976 recorded Ext.P9 statement of PW3 and forwarded the same along with Ext.P3 and Ext.P4 covering letter to the Maradu police.
11.5. PW8, Grade Sub Inspector, Maradu police station, deposed that on receipt of Ext.P3 and Ext.P9 statement on 19/03/2013, he registered Ext.P8 FIR.
11.6. PW7, the then Sub Inspector, Maradu, deposed that on 20/03/2013 he had taken over investigation in the case. He had prepared Ext.P5 scene mahazar, arrested the accused persons as per Ext.P6 series arrest memos. He completed the investigation and submitted the charge sheet before the court.
12. The accused examined DW1 to prove his case of alibi. DW1 deposed that he is doing electrical wiring works and that he has workers working under him. Ext.D1 is the register maintained by him which contains the details of his workers and the payment of wages. The details of the attendance of his workers on 09/03/2013 is available at pages 12 and 13 of Ext.D1, which were marked as Ext.D1(a). According to DW1, the 1st accused, his worker, had reported for work on 09/03/2013 and was at the worksite from morning till evening. On the said day, they were engaged in electrical Crl.A.No.85 of 2016 11 2024:KER:72976 works at a Church. He had in fact produced Ext.D1 register before the police also but the latter refused to accept it because by that time the 1st accused had already been arrested. DW1 also deposed that the duty time of his workers was from 08:30 a.m. to 06:00 p.m.
13. As stated earlier, the prosecution case is that the 1st accused had groped PW3, kissed her and had exhibited himself. In such circumstances, there would not be any visible marks or injury etc which would be revealed in the medical examination. Therefore, the absence of any medical evidence in this case would not mean that the prosecution case is false. It was further pointed out that there was inordinate delay in reporting the matter to the police and registering the crime. The incident took place on 09/03/2013. But Ext.P3 complaint was given only on 19/03/2013 and that too after the accused had complained to the police against PW4 and her husband. Therefore, the argument is that the present false case is only a counterblast to the complaint given by the accused to the police. The trial court was not inclined to accept the aforesaid argument advanced on behalf of the defence in the light of the explanation given by PW4 for the delay. PW8 admitted the receipt of a complaint from the Crl.A.No.85 of 2016 12 2024:KER:72976 accused persons alleging criminal intimidation by the husband of PW4. PW8 deposed that he had enquired into the complaint and thereafter had closed it. If the accused persons had any complaint(s) or grievance that their complaint had not been properly enquired into or investigated by the police, they ought to have taken necessary steps regarding the same. However, no such steps were taken at any point of time by the accused persons. PW4 has given an explanation for the delay. According to her, though on 09/03/2013 itself PW3 had informed her about the incident, they did not want to give a complaint taking into account the future of PW3, a young girl child. However, the accused persons constantly kept harassing them by saying that PW3 was imagining things and lying about the incident. The accused persons even went to the extent of filing a complaint before the police alleging criminal intimidation. This constrained them to give a complaint regarding the incident, that is, Ext.P3 on 19/03/2013.
14. As rightly pointed out by the trial court, it is quite natural for the parents not to rush to the police when their young girl child is assaulted due to the social stigma that follows. Most of them would resort to the same only as a last resort. Therefore, the trial Crl.A.No.85 of 2016 13 2024:KER:72976 court was right in accepting the explanation furnished for the delay in filing the complaint.
15. To substantiate the argument of improbability of the incident, my attention was drawn to the testimony of PW4 in her cross examination where she stated thus - "... ... ... സസഭവ ശശഷവവസ PW3 tuition നന ശപപയയരവനവശവപ (Q). ഞപന ശ പദയകപനപയയ അവയട ട നശ പള ഏതപയപലവസ വനതട ഇനന ഇവയട ഇരവനന പഠയകട" എനന പറഞ പപകപരസ ഞപന ടകപചയടന അവയട നയര*യ (A)... ... ..." This roughly translated would read thus - "... ... ... Did PW3 go for tuition after the incident (Q). When I went there to ask, they said, 'as you have come today, let the child sit here and study.' So, I let my child stay there. ... ... ...". Therefore referring to this testimony of PW4 it was argued that, had the incident actually taken place, PW4 would never have left her child in the company of the accused persons. But PW4 has also deposed that after the incident, the accused persons kept repeating/reiterating that her daughter was lying about the incident and imagining things. It may be that the parents were not sure and seems to have been vacillating as to whether to give a complaint or not. But when the accused persons kept accusing PW3 of lying and went to the extent of complaining to the Crl.A.No.85 of 2016 14 2024:KER:72976 police, they decided to take recourse to law. This is quite a plausible explanation given by PW4, which I find no reasons to disbelieve or discard.
16. The accused takes up a case of an alibi and to establish the same, he has examined DW1, his employer. However the trial court was not inclined to accept the defence case as the accused was found to have no consistent case. During the time of cross examination of PW4, the suggestion put to her was that on the date of the incident, the 1st accused was employed at a Hero Honda showroom at Vyttila and was alleged to have been present in the showroom for the whole day. But when the accused was questioned under Section 313(1)(b) Cr.P.C., he took up a case that on the date of the alleged incident, he was working under DW1 and that date he was on duty in the office of DW1 at Vyttila. However, according to DW1, the 1 st accused was engaged in electrical works at a Church. The trial court, therefore, was not inclined to accept the case of the accused due to the inconsistent stand taken.
17. Further, the trial court found that the place of occurrence was just 3 kms away from the place of work of the Crl.A.No.85 of 2016 15 2024:KER:72976 accused. DW1 admitted that one could reach the residence of the accused within 15 minutes or so from the place of work. DW1 also admitted that with his permission, workers could go out during work time. Therefore, the trial court relying on the dictum in D.N.Pandey v. State of Uttar Pradesh, AIR 1981 SC 911 found that it was not impossible for the accused to have reached his house. In the said decision the Apex court has held that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of crime by reason of his presence at another place and therefore the plea can succeed only if it is shown that the accused was so far away at the relevant time when he could never be present at the place where the crime was committed. It was also found relying on the dictum in State of Maharashtra v. Narasing Rao, AIR 1984 SC 63 that when a plea of alibi is taken, it must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. These aspects were not satisfied in the case and therefore the trial court rightly declined the plea of alibi taken up by the 1st accused in this case. I find no infirmity in the said findings also.
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18. PW3, the victim has clearly deposed that the 1st accused had sexually assaulted her by groping her private parts. She also deposed that she was physically assaulted by the 2 nd accused, her tuition teacher. There is absolutely no reason why PW3 should depose falsehood against the accused persons. The trial court was therefore right in concluding on the basis of the materials on record that the accused persons had committed the aforesaid offences. I do not find any infirmity in the findings of the trial court.
19. The learned counsel for the accused persons/appellants also submitted that in case this Court confirms the conviction of the accused persons, the substantive sentence of imprisonment imposed on the 1st accused may be reduced considerably in the light of the fact that he has no criminal antecedents and as he is a first offender. The 1st accused has been found guilty for the offence punishable under Section 8 of the PoCSO Act as per which a person who commits sexual assault is liable to the punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and fine. The trial court has sentenced the 1st accused to rigorous imprisonment for a Crl.A.No.85 of 2016 17 2024:KER:72976 period of four years. Therefore, taking into account the fact that the 1 st accused is a first offender, I am of considered opinion that the minimum sentence of three years prescribed in the Section would serve the ends of justice.
In the result, the appeal is partly allowed. The conviction of the 1st accused for the offence punishable under Section 8 of the PoCSO Act and the 2nd accused for the offence punishable under Section 23 of the JJ Act is confirmed. However, the substantive sentence of imprisonment imposed on the 1 st accused is reduced from four years to three years. To the said extent, the appeal shall stand allowed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak