Vijayan vs State Of Kerala
2021 Latest Caselaw 21606 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
      THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                   CRL.A NO. 394 OF 2020
AGAINST THE JUDGMENT IN SC NO.258/2015 OF THE SPECIAL COURT
 FOR TRIAL OF OFFENCES UNDER POCSO ACT & CHILDREN'S COURT
     (ADDITIONAL SESSIONS COURT-I), KALPETTA, WAYANAD
APPELLANT/ACCUSED:

         VIJAYAN
         AGED 42 YEARS
         S/O SREEDHARAN,CHIREKKAPARAMBATH
         HOUSE,MADOORKUNNU,KRISHNAGIRI AMSOM,
         VAKERI.P.O,WAYANAD DISTRICT,PIN-673592.
         BY ADVS.
         ADITHYA RAJEEV
         SMT.FERHA AZEEZ


RESPONDENT/COMPLAINANT/STATE:

         STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA,KOCHI-682031.
         BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
         AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.10.2021, THE COURT ON 02.11.2021 DELIVERED THE FOLLOWING:
  Crl.Appeal.No.394 of 2020

                                        2


                 R. NARAYANA PISHARADI, J
        ----------------------------------------------------
                   Crl.Appeal.No.394 of 2020
       -----------------------------------------------------
                Dated this the 2nd day of November, 2021



                                  JUDGMENT

The appellant is the sole accused in the case

S.C.No.258/2015 on the file of the Additional Sessions Court-I,

Kalpetta.

2. The appeal is directed against the judgment of the trial

court, convicting and sentencing the accused for the offences

punishable under Sections 376(2)(i) and 376(2)(n) of the Indian

Penal Code and also under Sections 5(l) and 5(m) read with

Section 6 of the Protection of Children from Sexual Offences Act,

2012 (for short 'the POCSO Act').

3. The prosecution case, in short, is as follows: The victim girl

was aged four years at the time of the incident. The victim and the

accused were neighbours. The accused used to give fruits and

toffee to the child and to take her to his house. On the morning of

24.06.2014, he committed penetrative sexual assault on the child

at his house. He has done such act on several occasions before Crl.Appeal.No.394 of 2020

that date also.

4. The child used to go to the Anganavady. On 24.06.2014,

PW1, the Anganavady teacher, found the victim girl making a boy

to lick her vagina. When she asked the girl who had taught her to

do so, the child told her that it was "Viyaya" (the accused). PW1

informed the matter to the grandmother of the victim girl and the

Childline. As per the information given by the Childline, the police

went to the Anganavady and recorded Ext.P1 statement of PW1.

On the basis of Ext.P1 statement, PW11 Additional Sub Inspector

registered case against the accused as Crime No.382/2014 of the

Meenangadi Police Station under Section 376 of the Indian Penal

Code.

5. The initial investigation of the case was conducted by

PW18 Circle Inspector. After completing the investigation of the

case, PW13 Circle Inspector filed charge-sheet against the accused

for the offences punishable under Section 376(2)(i) of the Indian

Penal Code and also under Section 5(m) read with Section 6 of the

POCSO Act.

6. The trial court framed charge against the accused for the

offences punishable under Sections 376(2)(i) and 376(2)(n) of the Crl.Appeal.No.394 of 2020

Indian Penal Code and also under Sections 5(l) and 5(m) read with

Section 6 of the POCSO Act. The accused pleaded not guilty and he

claimed to be tried.

7. The prosecution examined the witnesses PW1 to PW19 and

marked Exts. P1 to P18 documents. No evidence was adduced by

the accused.

8. The trial court found the accused guilty of all the offences

charged against him and convicted him thereunder. The trial court

sentenced the accused to undergo rigorous imprisonment for a

period of ten years and to pay a fine of Rs. 25,000/- and in default

of payment of fine, to undergo rigorous imprisonment for a period

of one year under each count for the offences punishable under

Sections 376(2)(i) and 376(2)(n) of the Indian Penal Code. No

separate sentence was awarded for the offences under the POCSO

Act. The trial court directed that the substantive sentences of

imprisonment shall run concurrently.

9. Aggrieved by the conviction entered against and the

sentence imposed on him by the trial court, the accused has

preferred this appeal.

Crl.Appeal.No.394 of 2020

10. Heard learned counsel for the appellant and the learned

Public Prosecutor and also perused the records.

11. Out of the 19 witnesses examined by the prosecution, the

material witnesses are PW1 to PW3, PW7, PW14 and PW15. PW1 is

the Anganavady teacher. PW2 is the victim girl. PW3 is the

grandmother of PW2. PW7 is the doctor who examined PW2 at the

hospital on 19.07.2014 and issued Ext.P5 medical certificate. PW14

is the father of the victim girl. PW15 is a member of the Childline.

12. Before discussing the evidence of the material witnesses

in the case, it is to be noted that the specific allegations made

against the accused in the charge framed against him by the trial

court are that, (1) he licked the vagina of the victim and (2) he put

his penis into her mouth and vaginal area and thereby he

committed rape and penetrative sexual assault on the victim girl.

Testimony of the Victim Girl

13. The victim girl was aged four years at the time of the

alleged incident. At the time of examination before the trial court,

she was aged nine years.

14. PW2, the victim girl, has stated in examination-in-chief

as follows: The incident happened when she was studying in the Crl.Appeal.No.394 of 2020

Anganavadi. She was four and a half years old then. Her date of

birth is 02.02.2010. Her father is a lorry driver. She is residing in

the house with her parents and grandparents. The house of the

accused is near her house. She used to call him "Viyaya". His

actual name is Vijayan. The accused used to give her fruits and

toffee. He used to take her to his house. The accused removed her

panties and touched on her vagina with his hand. She is afraid of

the wife of the accused and therefore, reluctant to state the

matters. The accused did not commit anything else. She had told

the incident to the Anganavady teacher. The doctor had examined

her. PW2 identified the accused present in the court as the person

called by her as "Viyaya" .

15. On cross-examination, PW2 has stated that the accused

used to come to her house. She stated that it was when she was

urinating that the accused used to remove her panties. She does

not correctly remember the old matters. She had seen the wife of

the accused on the date of giving the testimony. The accused and

his wife are her neighbours. PW2 denied the suggestion made to

her that the accused did not touch her vagina. Crl.Appeal.No.394 of 2020

16. A close scrutiny of the evidence of PW2 would show that

the only statement made by her with regard to the acts of the

sexual assault committed on her by the accused is that he touched

her vagina with his hands. This is the substantive evidence given

by PW2 with regard to the sexual assault made on her by the

accused. PW2 specifically stated that the accused did not commit

any other act. She has not stated before the court that the

accused licked her vagina or put his penis into her mouth or the

vaginal area.

17. PW2 was aged nine years at the time of giving evidence

before the trial court. The nature of the evidence given by PW2

indicates that, if the accused had sexually assaulted her in any

other manner, she would have given evidence in the court in that

regard also. It cannot be found that PW2 did not disclose before

the court other acts of sexual assault committed on her by the

accused due to fear of the wife of the accused.

18. There is no reason to disbelieve the evidence of PW2

that the accused touched on her vagina with his hand. The very

fact that PW2 has not spoken to anything else to make her

testimony in tune with the prosecution case against the accused Crl.Appeal.No.394 of 2020

would indicate that she was not tutored at the time of giving

evidence before the trial court.

Evidence of PW1

19. PW1 was the teacher of PW2 in the Anaganavady. She

has given evidence in examination-in-chief as follows: On

24.06.2014, in the afternoon, she saw the victim girl making a boy

to lick her vagina. She was shocked to see the act of the victim

girl. She asked her the child who taught her to do so. The victim

girl told her that it was the accused who taught her so. The victim

girl told her that the accused had licked her vagina several times in

the morning. The victim girl also told her that the accused made

the semen from his penis to fall on her face. PW1 informed the

matter to the grandmother of the child and also the ICDS

Supervisor. The members of the Childline came to the Anganavady

and as per the information given by them, the police came and

recorded her statement. PW1 identified her signature in Ext.P1

statement given to the police.

20. It is not necessary to discuss the evidence given by PW1

in the cross-examination. The reason is that her evidence does not

corroborate the statement of the victim girl that the accused Crl.Appeal.No.394 of 2020

touched her vagina with his hand. PW1 has not given any evidence

to the effect that the victim girl told her that the accused touched

her vagina with his hand. With regard to the other acts alleged to

have been done by the accused, the statement of PW1 cannot be

used to corroborate the testimony of PW2 in the absence of any

evidence given by PW2 herself in that regard.

Evidence of PW3, PW14 and PW15

21. PW3 is the grandmother of PW2. She has stated that the

date of birth of PW2 is 02.02.2010. She has given evidence that,

on getting information from PW1, she asked PW2 about the matter

and then PW2 told her that the accused had removed her panties

and licked her vagina and put her penis into her mouth.

22. The father of the victim girl was examined as PW14. He

stated that the date of birth of the child is 02.02.2010. He is a

lorry driver. His wife is deaf and mentally ill. He has given

evidence that when he came to know about the incident, he asked

his daughter about it and then PW2 told him that the accused had

licked her vagina and put his penis into her mouth.

23. PW15 was the member of the Childline who had talked

with the victim girl. Her evidence is that the child told her that the Crl.Appeal.No.394 of 2020

accused made her to touch on his penis and that he put his penis

into her mouth.

24. The statement of a witness in the trial court about facts

which he has perceived by his senses is substantive evidence. In

the absence of any substantive evidence, no question of using

other evidence for corroboration arises.

25. Since PW2 herself has not given any evidence with

regard to any such acts of sexual assault, the evidence of these

witnesses with regard to such acts committed on her by the

accused, cannot be used to corroborate the testimony of PW2.

26. However, as already found, even in the absence of

corroboration, there is no sufficient ground to disbelieve the

testimony of PW2 that the accused touched her vagina with his

hand. The fact that PW2 did not give evidence regarding the other

acts of sexual assault alleged to have been committed on her by

the accused does not mean that her whole testimony is liable to be

discarded. If the evidence given is trustworthy and the substratum

of the prosecution case remains intact, then the court would

uphold the prosecution case to the extent it is considered reliable

and safe. It is the duty of the court to separate grain from chaff. Crl.Appeal.No.394 of 2020

Where chaff can be separated from grain, it would be open to the

court to convict an accused notwithstanding the fact that the

evidence has been found to be deficient on some aspects.

Medical Evidence

27. PW7 is the doctor, who examined PW2 at the hospital on

19.07.2014 at 15:00 hours and issued Ext.P5 medical certificate.

PW7 has given evidence that PW2 was brought to her with the

history of sexual assault by the person by name Vijayan. PW7 has

stated that, on clinical examination, no external injury was found

on the body of PW2 and no consent was given for detailed internal

examination. Therefore, there is also no medical evidence to find

that there was vaginal penetration made on PW2.

Proof of Age of the Victim

28. PW2 has stated that her date of birth is 02.02.2010.

PW3 and PW14, the grandmother and the father of the victim,

have given evidence that her date of birth is 02.02.2010.

29. PW17 is the Secretary of the Sultan Battery Grama

Panchayat. He produced Ext.P12 extract of the birth register in

respect of PW2 before the court. Ext.P12 would show that the date

of birth of the child is 02.02.2010.

Crl.Appeal.No.394 of 2020

30. The evidence of PW2, PW3 and PW14 and the entries in

Ext.P12 would clearly prove that the date of birth of the victim girl

is 02.02.2010 and that she had completed four years of age at the

time of the incident.

Offences Proved Against the Accused

31. As already found, the only act of sexual assault proved

to have been committed by the accused on PW2 is that he touched

her vagina with his hand. The question is what offences have been

committed by the accused by doing such act.

32. The trial court has convicted the accused for the

offences punishable under Sections 376(2)(i) and 376(2)(n) of the

Indian Penal Code and also under Sections 5(l) and 5(m) read with

Section 6 of the POCSO Act.

33. The prosecution has not proved that the accused put his

penis into the mouth or vagina of PW2 or that he licked her vagina.

It follows that conviction of the accused by the trial court under

Sections 376(2)(i) and 376(2)(n) of the Indian Penal Code and

under Sections 5(l) and 5(m) read with Section 6 of the POCSO Act

is liable to be set aside.

Crl.Appeal.No.394 of 2020

34. Section 7 of the POCSO Act states that, whoever, with

sexual intent touches the vagina, penis, anus or breast of the child

or makes the child touch the vagina, penis, anus or breast of such

person or any other person, or does any other act with sexual

intent which involves physical contact without penetration is said to

commit sexual assault. There cannot be any doubt that it was with

sexual intent that the accused touched the vagina of the child with

his hand. This act constitutes the offence of sexual assault as

defined under Section 7 of the POCSO Act.

35. Section 9(m) of the POCSO Act deals with aggravated

sexual assault on a child below twelve years. The act committed by

the accused on PW2, who was a child below twelve years,

constitutes the offence under Section 9(m) of the POCSO Act. It

follows that the accused is liable to be convicted for the offence

under Section 9(m) of the POCSO Act.

Sentence to be Imposed

36. Section 10 of the POCSO Act states that, whoever,

commits aggravated sexual assault shall be punished with

imprisonment of either description for a term which shall not be

less than five years but which may extend to seven years, and Crl.Appeal.No.394 of 2020

shall also be liable to fine.

37. Considering the facts and circumstances of the case, it

would be proper to impose the minimum sentence of imprisonment

and also a sentence of fine of Rs.25,000/- on the accused for the

offence under Section 9(m) read with Section 10 of the POCSO Act.

38. Consequently, the appeal is allowed in part and it is

ordered as follows:

(i) Conviction of the appellant/accused by the trial court for

the offences under Sections 376(2)(i) and 376(2)(n) of the Indian

Penal Code and under Sections 5(l) and 5(m) read with Section 6

of the POCSO Act and the sentence imposed on him by the trial

court for those offences are set aside.

(ii) The appellant/accused is found guilty of the offence

punishable under Section 9(m) read with Section 10 of the POCSO

Act and he is convicted thereunder.

(iii) The appellant/accused is sentenced to undergo rigorous

imprisonment for a period of five years and to pay a fine of

Rs.25,000/- (Rupees twenty five thousand only) and in default of

payment of fine, to undergo rigorous imprisonment for a period of

three months for the offence punishable under Section 9(m) read Crl.Appeal.No.394 of 2020

with Section 10 of the POCSO Act.

(iv) The appellant/accused is entitled to get set off under

Section 428 Cr.P.C.

39. The Registry shall send a copy of this judgment

immediately to the Superintendent of the jail in which the

appellant/accused is detained.

Sd/-R. NARAYANA PISHARADI JUDGE lsn