Kerala High Court
Gopi @ Shobi vs Sub Inspector Of Police on 23 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
CRL.A NO.143 OF 2017
[AGAINST THE JUDGMENT IN S.C.NO.126/2007 OF THE COURT OF THE
ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF CASES RELATING TO
ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN,
THIRUVANANTHAPURAM, DATED 19.01.2017]
[C.P.NO.99/06 OF JFMC III, NEYYATTINKARA]
[CRIME NO.69/02 OF KOVALAM POLICE STATION]
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APPELLANT/ACCUSED:
GOPI @ SHOBI, AGED 64 YEARS, S/O.POULOSE,
HOUSE NO.305, NEELAKANDA COLONY, KOVALAM,
AVADU THURA DESOM, VIZHINJAM, THIRUVANANTHAPURAM.
BY ADVS.
SRI.V.S.BABU GIREESAN
SMT.K.PREETHA JOHN
RESPONDENTS/COMPLAINANT & STATE:
1 SUB INSPECTOR OF POLICE,
KOVALAM POLICE STATION, THIRUVANANTHAPURAM.
2 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SMT.AMBIKA DEVI S, SPECIAL GOVERNMENT PLEADER
(ATROCITIES AGAINST WOMEN & CHILDREN)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.07.2021, THE COURT ON 23.07.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.143 of 2017 - 2 -
K. Vinod Chandran & Ziyad Rahman A.A., JJ.
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Crl.A.No.143 of 2017
---------------------------------------------
Dated, this the 23rd day of July, 2021
JUDGMENT
Vinod Chandran, J.
We are faced with another instance of a neighbour,
that too a fatherly figure, turning predator by committing
rape on a child. The victim who had not even reached her
teens was thus impregnated and a female child was born to
her. The child mother and the infant were then left to feed
on the vagaries of life. The charge was under Sections 376
and 506 of the IPC. The accused was convicted and sentenced
to undergo imprisonment for life and pay a fine of
Rs.5,00,000/- [Rupees five lakhs] for the offence
punishable under Section 376 IPC, with a default sentence.
2. Sri. V.S.Babu Gireesan, learned Counsel for the
appellant, would argue that the conviction based on the
evidence of the prosecutrix alone has to be set aside. The
FIR was registered with a delay of six months. There is no
valid proof offered for the date of birth of the child.
There is a serious lacuna in the investigation insofar as
PW-13, the doctor who first examined the victim and the
doctor who is said to have treated her at the Sree Avittam
Thirunal Hospital ['SAT Hospital' for short] having not
been questioned by the police. The documents produced by
PW-13 and PW-14 were produced by them directly and not as
per a seizure carried out by the Investigating Officer
(IO). The learned Counsel would rely on H.N.Rishbud v.
State of Delhi [AIR 1955 SC 196] and State of M.P. v.
Mubarak Ali [AIR 1959 SC 707] to advance the above
contention. It is pointed out that there is more than six
months delay in registering the FIR. Babubhai v. State of
Gujarat [(2010) 12 SCC 254] is relied on to contend that
investigation has to be fair, transparent and judicious and
if it is tainted and biased, then consequent prejudice and
harassment have resulted. There is no valid proof of age
and the period of pregnancy, as deposed by the prosecutrix,
itself cannot be believed. The trial Court has erroneously
believed the evidence of the prosecutrix. To believe the
deposition of the prosecutrix, that a period of seven
months elapsed before the FIR was lodged, the Court styled
it to be a slip of the tongue, which is erroneous. It is
finally pleaded that there was no cause for awarding a fine
of Rs.5 lakhs especially looking at the amended provisions
which are not applicable, the alleged offence having been
committed in the year 2002.
3. Smt.S.Ambikadevi, learned Special Government
Pleader [Atrocities against Women and Children] points out
that though the age is not relevant, considering Section
376 as it existed at the time of commission of the offence,
the gravity of the offence has to be noticed in the context
of the young age of the child. It is argued, there is no
rule that every witness arrayed before Court had to be
questioned by the police. The learned Special GP relies on
State of Karnataka v. Yarappa Reddy [(1999) 8 SCC 715 =
1999 KHC 618] to impress upon us that the investigating
officers cannot rule the roost and it is for the Court to
appreciate the evidence before it. A faulty investigation
does not vitiate the trial argues learned G.P.
4. PW-3, the mother of the victim, gave the FIS,
marked as Ext.P3. She spoke of her daughter, who was 12½
years old, having been sexually molested and impregnated by
a neighbour. The victim, according to the mother, on
30.05.2002 complained of suffocation upon which she along
with her husband took her to PW-13 doctor. The doctor
examined the victim and later summoned the mother into her
room. The doctor queried the mother as to whether any
widowers were living nearby. The mother spoke of the
accused, whose wife died 8 years back and who was addressed
by her daughter as 'father'. The doctor then informed the
mother that the victim was pregnant and has to be taken to
SAT Hospital. The parents returned home with their child
and questioned her. She confessed that some months back, on
a Saturday when there was no school and her parents were
not available in the house, the accused approached her in
the afternoon and took her to his residence. At his
residence, the accused forcefully removed her undergarments
and her cries in protest were stifled using a cloth. She
was then forcefully made to lie down on a cot and he had
sexual intercourse with her. The accused also threatened
the child with death if the incident was disclosed. On
31.05.2002, the parents took the child to SAT Hospital
where it was confirmed that the child was six months
pregnant. The child was admitted and was being continued as
an inpatient in the hospital when the FIS was given. The
mother was examined as PW-3 and she spoke in tune with the
FIS. Pertinently, she also spoke of the date of birth of
her daughter, which was stated to be 10.05.1990. There was
no challenge in cross-examination of PW-3, regarding the
date of birth.
5. PW-4 is the victim who spoke elaborately on the
incident that occurred about seven months back, before she
was examined by the doctor, PW-13. At the time of the
incident, PW-4 was studying in 6th Standard and it was a
Saturday, a holiday for the school. Her parents had gone
for work and she was reading a book in her house; when at
around 3.00 p.m. the accused came to her residence. He
asked whether she was sitting alone and invited her to his
residence. PW-4 accompanied the accused to his residence
and initially sat on the verandah. Accused invited her
inside and showed her some books, including the Bible. He
suddenly hugged her and tried to remove her dress. When she
protested loudly, he stifled her cries with a cloth pressed
to her mouth. He lifted her dress and removed her
undergarments and satiated his sexual desire. He also
threatened that if she reveals the incident to her parents,
both would be killed. It was due to the threat, she failed
to disclose the rape committed on her to her parents. The
accused continued to threaten her whenever they came across
each other. Later, when she became pregnant, she was
admitted to the SAT Hospital and she gave birth to a child
on 02.10.2002. Though certain omissions were put to her in
cross-examination, they are not material enough to
disbelieve the incident of molestation as spoken of by her.
The omissions were only concerning her statement in Court
that on reaching the house of the accused she first sat on
the verandah, that she was shown books including the Bible
and the subsequent threats levelled against her by the
accused. As far as the essential details, she spoke in tune
with the FIS and the testimony of her mother. We pause here
to reiterate that, the FIS was given by the mother on the
information given by PW-4, the daughter.
6. Of the other witnesses paraded before Court,
only a few are relevant. PW-1, a doctor, assessed the
potency of the accused, which was asserted in Ext.P1
certificate. PW-2, the Assistant Director of FSL,
Thiruvananthapuram, deposed that the dress of the victim
showed the presence of blood. This cannot be connected to
the crime since admittedly the complaint was made about six
months later and PW-4 herself admitted that the dress she
wore at the time of the incident was washed and
subsequently worn by her. PW-5 is the Principal of the
Higher Secondary School in which the victim was studying.
She produced a certificate indicating the date of birth
shown in the Admission Register. The certificate, marked as
Ext.P4, showed the date of birth to be 10.05.1990, as
spoken of by the mother, PW-3. PW-9 is the Sub Inspector
who registered the FIR. PW-10 to PW-12 are the I.Os, who at
various stages carried out the investigation. PW-13 is the
doctor who first examined the victim, through whom was
marked the referral letter issued by her to the victim. PW-
14 is the Medical Record Librarian of the SAT Hospital, who
produced the records as per the instruction of the
Superintendent of the Hospital on the directions issued by
the Court. He is the custodian of the medical records and
he produced the register showing the deliveries carried out
in the hospital between 19.09.2002 and 23.10.2002. An
extract from the Register, at Page No.150, a copy of which
verified by the Court with the original was marked as
Ext.P12. Therein, the birth of a child to the victim is
specifically shown.
7. The date of birth of the victim is not very
relevant in considering the offence under Section 376(1)
IPC. However, as stated by the learned Special Government
Pleader, it has relevance in deciding the severity of the
punishment. The mother, PW-3, has spoken of the date of
birth very specifically, which has not been challenged when
she was cross-examined. The Headmistress of the School,
PW-5, produced the extract of the Admission Register, the
date of birth in which tallies with that spoken of by the
mother, PW-3. But for some questions regarding proper
certification of the extract, nothing relevant was asked in
the cross-examination of PW-5. In Birad Mal Singhvi v.
Anand Purohit [1988 Suppl. SCC 604] it was held by the
Hon'ble Supreme Court that the entry contained in the
admission form or the school register must be shown to be
made, based on the information given by the parents or a
person having special knowledge about the date of birth of
the person concerned. The date of birth of the candidate as
contained in the document must be proved by admissible
evidence ie: by the evidence of those persons who can
vouchsafe the truth of the facts in issue. It is safe to
rely on the evidence of the mother PW-3, who is the best
person to speak on the date of birth of her daughter.
8. Another contention raised by the learned
Counsel for the appellant is that the victim had, in her
deposition, repeatedly stated that the offence of rape
alleged against the accused had occurred seven months
before she was taken to PW-13 doctor. The day on which she
was examined by PW-13 was 30.05.2002 and admittedly she
delivered a baby on 02.10.2002. The contention raised is
that the time frame of confinement, from the deposition of
PW4, is eleven months and this renders suspicious the very
allegation. We do agree with the learned Counsel that going
through the deposition it is not a mere slip of the tongue.
PW-4 repeatedly stated that the offence committed on her
was seven months before she was first examined by a doctor.
We think that unnecessary emphasis should not be given to
that aspect. When the exact date is not specified, there
could only be an approximation and here the trial was after
14 years. The doctor, PW-13, who examined her, proved the
referral letter and specifically stated that the uterus was
enlarged about 20-24 weeks size. This means that the
impregnation would have been about 5-6 months back. We do
not find any reason to disbelieve the evidence of the
prosecutrix merely on the count of the witness having
stated that it was seven months before her medical
examination that the rape occurred; which at best is only
an approximation.
9. The delay in registration of the FIR is also
reasonably explained. The child, just past twelve was
threatened by the accused for reason of which she had kept
the shameful incident to herself. Only when the pregnancy
manifested, with physical symptoms, was the child medically
examined to reveal that fact. Immediately thereafter, the
FIS was registered on getting the pregnancy confirmed at a
higher medical centre, on the very next day. There cannot
be alleged any delay in registration of FIR on the facts of
this case.
10. The next contention taken by the learned
Counsel for the appellant based on the cited decisions is
that the investigation was tardy and this has caused
prejudice to the appellant. H.N.Rishbud and Mubarak Ali
(both supra), arose from proceedings under the Prevention
of Corruption Act, 1947 which provided that any
investigation into an offence under the Act shall not be
conducted by a Police Officer below the rank of a Deputy
Superintendent of Police without an order of the Magistrate
of the First Class. The Hon'ble Supreme Court in the first
of the cited decisions, held the above provision to be
mandatory and since the major part of the investigation was
held before the permission granted by the Magistrate, the
issue was remanded to the Special Judge for appropriate
orders. There is no such prohibition discernible in the
present investigation, which affects the validity of the
investigation carried out. Babubhai (supra) was also in the
context of two FIRs registered, relating to two incidents
that were part of the same transaction. The second FIR was
quashed and an investigation was directed to be carried out
in the first FIR itself. The Hon'ble Supreme Court
emphasized that the constitutional guarantees under
Articles 20 and 21 of the Constitution of India encompassed
within its scope and ambit not only fair trial but also
fair investigation. The investigating agency has to
investigate in a fair, transparent and judicious manner and
not in a tainted or biased manner. Where ultimately failure
of justice results, the Courts would interfere.
11. We are afraid, the afore-cited decisions do
not aid the appellant herein. The contention raised by the
learned Counsel is that, because of no statement having
been taken from the doctor who examined the victim at the
first instance and the doctor, who later treated the
victim, during the period of confinement for delivery; it
caused prejudice to the accused. The prosecution produced
a reference letter issued by the doctor who first examined
the victim along with an application, numbered Crl.M.P.3149
of 2016, on 07.11.2016, filed under Section 311 of Cr.P.C
to summon the doctor as a witness. The same was allowed by
order dated 10.11.2019. Similarly, another Crl.M.P.3290 of
2016 was filed by the Prosecutor to summon the
Superintendent of the hospital in which the victim was
admitted, to produce the register to prove her delivery.
The said application, bearing Crl.M.P.No.3290 of 2016, was
allowed on 14.12.2016. This is the basis on which the
witnesses PW-13 and PW-14 were examined and Ext.P11 and
Ext.P12 were marked. Both the witnesses were summoned for a
specific purpose; PW-13 to speak on the referral letter
issued to the victim and PW-14, to produce the records of
the hospital to prove that the victim gave birth to a
child. The witnesses were summoned only for that specific
purpose and they could not have spoken beyond what is
stated in the documents produced. PW-13 was examined only
to prove the referral letter which was produced along with
the application. Insofar as the documents summoned from the
SAT Hospital, through the Superintendent, it was
specifically averred that the witness was requested to be
summoned to produce the original Register and its certified
copy to prove the delivery of the victim as on 02.10.2002.
The appellant cannot have a contention that he was caught
unawares or by surprise. We find no prejudice having been
caused to the accused insofar as the examination of PWs.13
and 14, which was done after notice to the accused and a
hearing on the applications filed under Section 311 of the
Criminal Procedure Code.
12. In Yarappa Reddy (supra), the Hon'ble Supreme
Court held that investigation is not the solitary area of
judicial scrutiny in a criminal trial and that the
conclusion of the Court cannot be allowed to depend solely
on the probity of investigation. It was held so in
paragraph 19:
"19. But can the above finding (that the
Station House Diary is not genuine) have any
inevitable bearing on the other evidence in this
case? If the other evidence, on scrutiny, is found
credible and acceptable, should the court be
influenced by the machinations demonstrated by the
Investigating Officer in conducting investigation or
in preparing the records so unscrupulously. It can
be a guiding principle that as investigation is not
the solitary area for judicial scrutiny in a
criminal trial, the conclusion of the court in, the
case cannot be allowed to depend solely on the
probity of investigation. It is well nigh settled
that even if the investigation is illegal or even
suspicious the rest of evidence must be scrutinized
independently of the impact of it. Otherwise
criminal trial will plummet to the level of the
investigating officers ruling the roost. The court
must have predominance and pre-eminence in criminal
trials over the action taken by investigating
officers. Criminal justice should not be made the
casualty for the wrongs committed by the
investigating officers in the case. In other words,
if the court is convinced that the testimony of a
witness to the occurrence is true the court is free
to act on it albeit investigating officer's
suspicious role in the case".
In H.N.Rishbud (supra), it was held that "a defect or
illegality in investigation, however serious, has no direct
bearing on the competence or the procedure relating to
cognizance or trial" (sic- para 9).
13. The contention of the appellant regarding
defect in investigation has not caused any prejudice to
him. If at all, the defects pointed out only inure to the
benefit of the accused. If the doctors were examined by the
police during the investigation and the DNA profiling also
carried out, there would possibly be available further
corroborative and scientific material. When the charge is
of rape, the Hon'ble Supreme Court has time and again held
that if the testimony of the prosecutrix is credible, that
alone is sufficient to convict the accused, vide State of
U.P. v. Chhoteylal [(2011) 2 SCC 550], Kamalanantha v.
State of T.N. [(2005) 5 SCC 194] and State (NCT of Delhi)
v. Pankaj Chaudhary [(2019) 11 SCC 575].
14. In the present case, we find the prosecutrix
to be credible and her deposition very convincing, based on
which alone the conviction can be safely entered. We also
do not find any reason to reject the evidence of the
doctor, PW-13 & PW-14, who were properly summoned by the
Court. PW-13 proved Ext.P11. She remembered the
examination; however, admitted that she could not identify
the victim or recollect her face since the examination was
conducted about 15 years back. A very independent witness
and truthful to the core. PW-14 also, produced the records
of the hospital in which the victim was an inpatient, the
extract of which was compared with the original by the
Court and marked as Ext.P12. Ext.P12 indicates the victim
had given birth to a female child on 02.10.2002.
15. The testimony of PW-4, prosecutrix,
establishes the offence alleged. The prosecutrix has
narrated the incident in the manner in which it was stated
in the FIS by her mother; which was on information supplied
by her. The mother also spoke in tandem with the FIS and
further asserted the date of birth of the victim, her
daughter. The date of birth stands further corroborated by
Ext.P4, extract of the Admission Register produced by PW-5,
the Headmistress of the school. The evidence of the
prosecutrix is corroborated by the testimony of PW-13, the
doctor, who first examined the victim, a minor child, and
detected the pregnancy. The records of the hospital,
produced by PW-14, proves that the victim gave birth to a
female child establishing the impregnation on the
commission of rape. We find no reason to interfere with the
conviction.
16. The learned Counsel for the appellant also
argued that the fine imposed/compensation awarded was
excessive and a direct result of the amendments brought
into the Indian Penal Code in 2018, which inter alia
included the incorporation of the first proviso to
subsection (3) of Section 376 IPC. The trial Judge has not
referred to the proviso to subsection (3) and in the matter
of sentencing, dealt with the issue in detail. The crime
was found to have been committed on a minor girl by a man
of 45 years, which offence, according to the trial Judge,
stood aggravated by the fact that it led to pregnancy and
delivery of a child; leaving their lives shattered. We find
no reason to interfere with the sentence passed and affirm
the same on both aspects, of imprisonment and the quantum
of fine.
The Criminal Appeal is dismissed.
Sd/-
K. Vinod Chandran
Judge
Sd/-
Ziyad Rahman A.A.
Judge
vku/-
