Kerala High Court

Kamal vs State Of Kerala on 6 October, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
      THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                     CRL.A NO. 198 OF 2020

 CRIME NO.342/2017 OF Varappuzha Police Station, Ernakulam
  AGAINST THE ORDER/JUDGMENT IN SC 1091/2017 OF ADDITIONAL
 DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN &
                    CHILDREN), ERNAKULAM
APPELLANT/ACCUSED:

         KAMAL
         AGED 34 YEARS
         S/O. DHANIRAM, BAMGRI KARA, RAMNIGANJAL VILLAGE,
         NEPPAL PIYOOTTAN DISTRICT, NOW RESIDING AT RENTED
         BUILDING OF JOHNSON D'SILVA, CHETTIVALAPPIL
         HOUSE, MOOLAMPILLY KARA, KADAMAKUDY, SOUTH
         CHITTOOR, NOW UNDERGOING IMPRISONMENT IN CENTRAL
         PRISON, VIYOOR, THRISSUR DISTRICT, PIN - 680 010.

         BY ADV S.CHANDRASEKHARAN NAIR (K/185/1998)-13009


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY CIRCLE INSPECTOR OF POLICE, NORTH
         PARAVUR POLICE STATION, THROUGH PUBLIC
         PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
         COCHIN - 682 031.

         BY ADVS.
         SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
         WOMEN AND CHILDREN AND WELFARE OF W AND C
         PUBLIC PROSECUTOR SMT.SHEEBA THOMAS

THIS CRIMINAL APPEAL HAVING      COME UP FOR ADMISSION ON
01.10.2021,  THE  COURT  ON      06.10.2021 DELIVERED  THE
FOLLOWING:
 Crl.A.No.198/2020
                                         2




                                                              "CR"

                    R.NARAYANA PISHARADI, J
                    **********************
                          Crl.A.No.198 of 2020
                   -------------------------------------
                Dated this the 6th day of October, 2021
                -------------------------------------------


                            JUDGMENT

There can never be more graver and heinous crime than the

father committing rape on his own daughter. The protector then

becomes the predator. The father is the fortress and refuge of his

daughter. Charged of raping his own daughter under his refuge

and fortress is worst than the gamekeeper becoming a poacher

and treasury guard becoming a robber (State of Himachal

Pradesh v. Asha Ram : AIR 2006 SC 381).

2. The prosecution case is that the accused, the father of

the victim girl, repeatedly committed sexual assault and rape on

her, on many days during the period from 01.06.2017 to

22.09.2017.

Crl.A.No.198/2020

3. The victim girl was aged 11 years, when she became a

prey to her father. She was studying in the fourth standard at

that time. PW5 was her class teacher. She saw the child being

very gloomy in the class. She reported the matter to PW4, the

Headmistress of the school. On 21.09.2017, PW4 informed the

matter to the Childline. On 22.09.2017, PW3, who was a member

of the Childline, reached the school and talked to the victim girl.

Then the girl revealed the acts of sexual assault committed on

her by her father.

4. PW16 WCPO recorded Ext.P1 statement of the victim

girl on 22.09.2017, in the presence of PW3. On the basis of that

statement, PW21 Sub Inspector registered Ext.P11 F.I.R. PW23

Circle Inspector conducted the investigation of the case. After

completing the investigation, he filed final report against the

accused for the offences punishable under Sections 354, 376(2)

(f), (i) and (n) and 506(i) of the Indian Penal Code and also

under Sections 5(l), (m) and (n) read with Section 6 and also

Section 7 read with 8 of the Protection of Children from Sexual

Offences Act, 2012 (for short 'the Act').

Crl.A.No.198/2020

5. The trial court framed charge against the accused only

under Sections 4, 6 and 10 of the Act and under Sections 376(2)

(f), (i) and (n) of the Indian Penal Code. The accused pleaded

not guilty and he claimed to be tried.

6. The trial court found the accused guilty of the offences

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

Penal Code and Sections 4, 6 and 10 of the Act 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.10000/- and in default of payment of fine, to undergo

rigorous imprisonment for a period of six months for each of the

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

Indian Penal Code and directed that the sentences shall run

consecutively. In view of the provision contained in Section 42 of

the Act, no separate sentence was awarded for the offences

under the Act.

7. Conviction entered against and the sentence imposed on

him by the trial court are challenged in this appeal by the

accused.

Crl.A.No.198/2020

8. Heard learned counsel for the appellant and the learned

public prosecutor. Perused the records.

9. Learned counsel for the appellant has very fairly

submitted that there are no legal grounds worthy enough to

challenge the conviction entered against the accused. However,

learned counsel has vehemently contended that the sentence

imposed on the accused by the trial court is harsh and

unreasonable. He invited the attention of this Court to the

provisions contained in Section 31 of the Code of Criminal

Procedure, 1973 (for short 'the Code') and contended that the

trial court should not have imposed consecutive sentences of

imprisonment on the accused.

10. Learned Public Prosecutor has contended that the

sentence imposed on the accused by the trial court is only just

and proper in the circumstances of the case, especially when the

accused is the father of the victim girl.

11. Inspite of the fact that no serious challenge has been

raised by the learned counsel for the appellant to the conviction

entered against the accused by the trial court, this Court has the Crl.A.No.198/2020

obligation to consider the merits of the conviction (See Jeetu v.

State of Chattisgarh : (2013) 11 SCC 489).

Testimony of the Prosecutrix

12. When the victim girl was examined as PW1, she was

aged 13 years. She has narrated before the trial court the acts

of sexual assault committed on her by her father. The trial court

has narrated her testimony in detail in the impugned judgment

and it is not necessary to reproduce the same here.

13. The testimony of PW1 establishes that the accused

had sexually molested her even on the previous day of the date

on which she narrated the incident to her class teacher. Ext.P1

statement was recorded before there was any opportunity for

tutoring or concoction.

14. No contradiction or omission in the testimony of PW1,

with reference to Ext.P1 first information statement given by her

to the police or Ext.P8 statement given by her to PW15

Magistrate under Section 164 of the Code has been brought out

in evidence and legally proved. Exts.P1 and P8, the former

statements, fully corroborate the testimony of PW1 in the court. Crl.A.No.198/2020

15. The testimony of PW1 can be accepted on its face value

without any hesitation. There is an impression of truth in her

testimony. The statements made by her, right from the point of

revealing the matter to the childline member till deposing before

the trial court, are consistent. There are no traces of tutoring in

her testimony. Implicit reliance can be placed upon her

testimony. PW1 qualifies to be treated as a sterling witness as

envisaged in Rai Sandeep alias Deepu v. State (AIR 2012 SC

3157) and Ganesan v. State (AIR 2020 SC 5019).

Medical Evidence

16. PW22 is the doctor who examined the victim girl at

17.00 hours on 23.09.2017 at the District Hospital and issued

Ext.P12 medical certificate. Her evidence, along with the entries

in Ext.P12 certificate, shows that the hymen of the victim girl was

found torn and that there was evidence of penetration. Medical

evidence corroborates the testimony of PW1 that she was

subjected to rape.

Proof of Age of the Victim

17. Ext.P17 is the copy of the relevant page of the Crl.A.No.198/2020

admission register which was kept in the school in which PW1

was studying. It shows that her date of birth is 12.08.2005. This

document was proved through PW4, the Headmistress of the

school. The original admission register had been produced before

the trial court and verified by that court.

18. PW4 has given evidence that PW1 was studying in that

school from Class I onwards. Her evidence in that regard is

corroborated by the entry in Ext.P17 which shows the date of

admission of the child in the school as 15.05.2013. It was

brought out in the cross-examination of PW4 that it was the

mother of PW1 who filled up and gave the application for

admission of the girl in the school.

19. The mother of PW1 could not be examined by the

prosecution as she had left the family. Inspite of coercive steps

taken, her presence could not be procured during the trial of the

case.

20. This is a case in which the defence did not dispute the

fact that the victim girl was aged below 16 years at the relevant

time. Further, if the date of birth entered in the records of the Crl.A.No.198/2020

school first attended by the child is available, it can be treated as

final and conclusive. Ext.P17 is from the school in which PW1 was

first admitted and which was first attended by her. It is sufficient

proof of the age of the child. The prosecution had established

that PW1 was aged below 16 years at the relevant time.

21. In the above circumstances, conviction of the accused

by the trial court, for the offences he was charged against by the

court, is legal and proper. There is no sufficient ground to

interfere with the conviction entered against the accused by the

trial court.

Consecutive Sentences of Imprisonment

22. The trial court has sentenced the accused to undergo

rigorous imprisonment for a period of ten years and to pay a fine

of Rs.10,000/- and in default of payment of fine, to undergo

rigorous imprisonment for a period of six months on each count

for the offences punishable under Sections 376(2)(f), (i) and (n)

of the Indian Penal Code and directed that the sentences shall

run consecutively.

Crl.A.No.198/2020

23. Learned counsel for the appellant invited the attention

of this Court to the provisions contained in Section 31(1) of the

Code and contended that the direction given by the trial court

that the sentences of imprisonment imposed on the accused shall

run consecutively is illegal and improper.

24. Section 31(1) of the Code states that, when a person is

convicted at one trial of two or more offences, the Court may,

subject to the provisions of Section 71 of the Indian Penal Code

(45 of 1860), sentence him for such offences, to the several

punishments prescribed therefor which such Court is competent

to inflict; such punishments when consisting of imprisonment to

commence the one after the expiration of the other in such order

as the Court may direct, unless the Court directs that such

punishments shall run concurrently. Section 31(2) of the Code

provides that, in the case of consecutive sentences, it shall not

be necessary for the Court by reason only of the aggregate

punishment for the several offences being in excess of the

punishment which it is competent to inflict on conviction of a

single offence, to send the offender for trial before a higher court. Crl.A.No.198/2020

The proviso to this provision states that, (a) in no case shall such

person be sentenced to imprisonment for longer period than

fourteen years; and (b) the aggregate punishment shall not

exceed twice the amount of punishment which the Court is

competent to inflict for a single offence.

25. The provisions contained in Section 31 of the Code

are attracted only in cases where two essentials are satisfied,

namely, (i) a person is convicted at one trial and (ii) the trial is

for two or more offences. It is only when both these conditions

are satisfied that the Court can sentence the offender to several

punishments prescribed for the offences committed by him,

provided the Court is otherwise competent to impose such

punishments. What is significant is that such punishments as the

Court may decide to award for several offences committed by the

convict when comprising imprisonment shall commence one after

the expiration of the other in such order as the Court may direct

unless the Court in its discretion orders that such punishment

shall run concurrently. The proviso to Section 31(2) of the Code

mandates that, in no case can the person so sentenced be Crl.A.No.198/2020

imprisoned for a period longer than 14 years and the aggregate

punishment shall not exceed twice the punishment which the

Court is competent to inflict for a single offence.

26. Section 31 of the Code relates to the quantum of

punishment which may be legally passed when there is (a) one

trial and (b) the accused is convicted of "two or more offences".

In Section 31(1) of the Code, since the word "may" is used, when

a person is convicted for two or more offences at one trial, the

Court may exercise its discretion in directing that the sentence

for each offence may either run consecutively or concurrently.

The words "unless the Court directs that such punishments shall

run concurrently" occurring in sub-section (1) of Section 31 of

the Code, indicates that a discretion is vested in the Court to

direct that the punishment shall run concurrently, when the

accused is convicted at one trial for two or more offences. It is

manifest from Section 31 of the Code that the Court has the

power and discretion to issue a direction for concurrent running

of the sentences when the accused is convicted at one trial for

two or more offences. Discretion to order running of sentences Crl.A.No.198/2020

concurrently or consecutively is judicial discretion of the Court

which is to be exercised as per the established law of sentencing.

The Court, before exercising its discretion under Section 31 of

the Code, is required to consider the totality of the facts and

circumstances of the case against the accused. It is left to the full

discretion of the Court to order the sentences to run concurrently

in case of conviction for two or more offences. Whether a

direction for concurrent running of sentences ought to be issued

in a given case would depend upon the nature of the offence or

offences committed and the facts and circumstances of the case.

The discretion has to be exercised along the judicial lines and not

mechanically (See O.M.Cherian v. State of Kerala : AIR 2015

SC 303).

27. The power to award suitable sentences for several

offences committed by an offender cannot be disputed. The order

in which such sentences shall run can also be stipulated by the

Court awarding such sentences. So also the Court is competent

in its discretion to direct that punishment awarded shall run

concurrently and not consecutively.

Crl.A.No.198/2020

28. Recently, in Sunil Kumar v. State of U.P : (2021) 5

SCC 560, the Apex Court has held as follows:

"Thus, it is beyond a shadow of doubt that Section 31(1) Cr.P.C vests complete discretion with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct".

29. With regard to the limitations prescribed under the

proviso to Section 31(2) of the Code, in Muthuramalingam v.

State : AIR 2016 SC 3340, the Constitution Bench of the

Supreme Court has held as follows:

Crl.A.No.198/2020

"A careful reading of sub-section (2) would show that the same is concerned only with situations where the Courts awarding the sentence and directing the same to run consecutively is not competent to award the aggregate of the punishment upon conviction for a single offence. The proviso further stipulates that in cases falling under sub-section (2), the sentence shall in no case go beyond 14 years and the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to award. Now in cases tried by the Sessions Court, there is no limitation as to the Court's power to award any punishment sanctioned by law including the capital punishment. Sub-section (2) will, therefore, have no application to a case tried by the Sessions Court nor would sub-section (2) step in to forbid a direction for consecutive running of sentences awardable by the Court of Session".

(emphasis supplied)

30. The dictum laid down by the Constitution Bench as

above makes it clear that the limitations prescribed under the

proviso to Section 31(2) of the Code are not applicable when the

case is tried and the sentence is imposed by a Court of Session. Crl.A.No.198/2020

31. The single transaction rule has no application to

Section 31(1) of the Code. In Sunil Kumar (supra), the Apex

Court has held as follows:

"In a given case, after such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with 'single transaction' cannot be imported for dealing with the question at hand."

32. Now, the only question is whether the trial court has

exercised its discretion properly in directing that the sentences of

imprisonment imposed on the accused under the three

sub-clauses of Section 376(2) of the Indian Penal Code shall run

consecutively.

33. The trial court has observed that, the accused being

the biological father of the child, was expected to protect her but

he had forgotten that solemn duty and made his daughter a tool

to satisfy his perverted lust, that too repeatedly. Therefore, the

trial court found that the accused did not deserve any leniency in Crl.A.No.198/2020

the matter of punishment.

34. It cannot be found that the trial court has exercised its

discretion in an illegal or improper manner. It is evident that the

victim was 11 years old and dependent on her father. Instead of

offering her protection and support, he perpetrated continuous

sexual assault on her. One cannot even imagine the trauma the

child would have suffered. The indelible imprint which the

incestuous act has left in her mind cannot be ignored. She may

feel the mental agony and pain for years to come.

35. In Asha Ram (supra), the Apex Court has observed as

follows:

"Here is the case where the crime committed by the respondent not only delicts the law but it has a deleterious effect on the civilized society.

Gravity of the crime has to be necessarily assessed from the nature of the crime. A crime may be grave but the nature of the crime may not be so grave. Similarly, a crime may not be so grave but the nature of the crime may be very grave. Ordinarily, the offence of rape is grave by its nature. More so, when the perpetrator of the crime is the father against his own daughter it is Crl.A.No.198/2020

more graver and the rarest of rare, which warrants a strong deterrent judicial hand. Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of hapless woman. This is more so when the perpetrator of the grave crime is the father of the victim girl. Father is a fortress, refuge and the trustee of his daughter. By betraying the trust and taking undue advantage of trust reposed in him by the daughter, ....... he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives".

36. In Madan Gopal Kakkad v. Naval Dubey : (1992) 3

SCC 204, the Apex Court has observed as follows:

"Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy Crl.A.No.198/2020

prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms. We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand".

(emphasis supplied)

37. This is a case in which the trial court could have

imposed on the accused a sentence of imprisonment for life,

which is statutorily defined as imprisonment for the remainder of

natural life, for the offences under the three sub-clauses of

Section 376(2) of the I.P.C. But, the trial court has imposed on

the accused only the minimum sentence of imprisonment

provided under law.

38. Considering the facts and circumstances of the case, I

find no sufficient ground to interfere with the sentence imposed

on the accused by the trial court and also the direction given by

the trial court that the sentences shall run consecutively. Crl.A.No.198/2020