Madhu vs The State Of Kerala
2021 Latest Caselaw 19747 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                 &
          THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
  THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                      CRL.A NO.644 OF 2016

   AGAINST THE JUDGMENT IN S.C.NO.324/2014 DATED 29.06.2016
OF THE SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST CHILDREN
      (ADDITIONAL SESSIONS COURT-I), MANJERI, MALAPPURAM
   [CRIME NO.210/2013 OF PANDIKAD POLICE STATION, MALAPPURAM]
                         -------------
APPELLANT/ ACCUSED:

          MADHU, S/O NARAYANAN,
          KUZHIYEKKAL HOUSE, VETTEKKODE, PULLANCHERY,
          MANJERI-676122.
          BY ADVS.
          SRI.K.M.FIROZ
          SMT.M.SHAJNA
          SRI.P.C.MUHAMMED NOUSHIQ


RESPONDENT/ COMPLAINANT/STATE:

          THE STATE OF KERALA,
          REPRESENTED BY THE INSPECTOR OF POLICE, PANDIKKAD,
          THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM, KOCHI-682031.
          BY PUBLIC PROSECUTOR SMT.SHEEBA THOMAS


    THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2021
THE COURT ON 23.09.2021 DELIVERED THE FOLLOWING:
 Crl.A.No.644/2016               - 2 -


                                                         "C.R"
                K.Vinod Chandran & Ziyad Rahman, JJ.
               -------------------------------------
                        Crl.A.No.644 of 2016
                ------------------------------------
                 Dated, this the 23rd September 2021

                              JUDGMENT

Vinod Chandran,J.

When a man abandons his wife and children, roving

vultures wait to prey on not only the abandoned woman, but

also the helpless children. In this case we have a

'poojari'/'komaram' (priest/oracle in a temple) taking the

abandoned woman and the three children under his wing, only

to repeatedly molest the elder girl child, that too in the

presence of her siblings. We wonder which God would accept

the obeisance and offerings of such a priest or make him a

medium?

2. We have heard learned Counsel Sri.K.M.Firoz for

the appellant/accused and Smt.Sheeba Thomas, learned Public

Prosecutor for the State.

3. Sri.Firoz took us through the charge to point

out that there is a misjoinder of charges. The Protection

of Children from Sexual Offences Act, 2012 ['POCSO Act' for

brevity] was brought into effect from 14.11.2012 and the

incident on which the first charge is levelled is prior to

the POCSO Act and requires a committal proceeding under the

Cr.P.C. This is unlike the later allegation, which raises a

charge under the POCSO Act, where the Special Court could

take cognizance of it under Section 33 of the POCSO Act. It

is also pointed out that clubbing of the charges has

resulted in grave prejudice to the accused, since the POCSO

Act by Sections 29 and 30 raises a presumption against the

accused. The rigour of a defence under the POCSO Act, which

casts a reverse burden on the accused, prejudices him

insofar as the charge under the IPC with respect to the

sole incident alleged prior to the POCSO Act. It is argued

from the evidence of PW1, the prosecutrix and PWs.6 and 10,

the two house owners, that there is no question of the

offences being committed in the respective residential

buildings as alleged, for reason of the inconsistent facts

brought forth in the evidence of these witnesses. The

deposition of PW1 does not specify the date and only speaks

of having joined the accused after the final exams of the

academic year 2012. Hence there could not have been such an

incident on 16.02.2012, before the close of the academic

year. PW6 also says that the accused had taken the house on

rent in 2012 and the victim joined him after six months.

4. There is also no allegation of a rape, i.e., a

penetrative sexual assault, having been committed in the

second house, even as per the deposition of PW1. PW1's

evidence is not believable and she is not a credible

witness. She admitted that she falsely stated the names of

her parents to the police when they were first picked up by

the police. The inconsistencies in her evidence as to how

the sexual assault was committed also require the evidence

to be treated with abundant caution. The doctor has

deposed in tune with the medical certificate, Ext.P1, that

the examination was in 2012. The time shown in Ext.P1 is

not clear and if it is 11.45 a.m, the very story of

initiation of the crime would fall apart since PW15 is said

to have been informed of the wandering woman and children

at 4.15 p.m. The dress of the accused was seized and sent

for medical examination; but no report has been produced

nor was the dress brought in evidence, which requires this

Court to take an adverse inference since the child was

apprehended on the next day of the last alleged sexual act.

There are glaring inconsistencies in the Section 164

statement of PW1 and that is relevant under Section 11 of

the Evidence Act. Last but not the least the mother was not

examined, despite her presence in Court at the time of

trial.

5. The learned Prosecutor relied heavily on the

evidence of PW1, the prosecutrix; fully corroborated by

PW7. The medical evidence as available in Ext.P1 further

corroborates the testimony of the prosecutrix. As against

the anomaly of date and time, the learned Prosecutor points

out the crime number shown in Ext.P1 and the time when the

FIR was registered. The 164 statement of the victim and

deposition of PW1 are not date specific and the allegation

is of the assault having been committed on several dates

and several times. Chitharanjandas v. State of West Bengal

[AIR 1963 SC 1696] is relied on to argue that no date need

be specified. As to the contradiction in Section 164

statement, it was never confronted to the victim. The only

inconsistency is insofar as Section 164 statement having

recorded sexual assault by two other persons at the

instigation of the accused. PW1 in her deposition clearly

stated that she did not say so. The learned Prosecutor also

submits that there is no prejudice caused due to the

absence of committal proceedings. In the teeth of the clear

evidence of PWs.1 and 7, the presumption under the POCSO

Act need not be invoked. There is also no evidence led by

the defence to claim prejudice in discharging the reverse

burden. In addition, it is pointed out that the accused has

made a total denial, of even the joint residence with the

mother and children, under Section 313. The deposition of

PWs 6 & 10, the house owners specifically established that

fact. This is an additional circumstance against the

accused, since he has stated a deliberate falsehood, a

clear sign of a guilty mind. The mother of the children was

not examined, though present in Court, since she showed

signs of mental disturbance and the prosecution did not

want her to mount the box in such a condition.

6. The ground of absence of committal proceedings

as against the offence alleged on 16.02.2012 cannot be

sustained. The learned Counsel has pointed out a number of

decisions of which we only refer to the relevant. Moly v.

State of Kerala (2004) 4 SCC 584 is a case in which the

enactment under which the offence was alleged, did not

have a provision similar to Section 33 of the POCSO Act.

This was the reason why, despite a designation as Special

Court under that enactment, the Hon'ble Supreme Court

interfered with the proceedings. The finding was that,

though designated a Special Court, as per the statute, the

designation can only be of a Court of Session. In that

circumstance the provisions under the Cr.P.C would have to

be scrupulously followed. Even applying the dictum, we find

the same not applicable to trial of offences alleged under

the POCSO Act. By Section 33, 'a Special Court was

empowered to take cognizance of any offence, without the

accused being committed to it for trial, upon receiving a

complaint of facts which constitute such offence, or upon a

police report on such facts' (sic). The other ground of

prejudice having been caused for clubbing of charges, also

cannot be sustained. First of all, merely by alleging

prejudice, without anything stated as to how such prejudice

was caused, the accused cannot seek for a reversal of the

conviction. Then, in any event Section 28(2) takes care of

the specific ground; which is extracted hereunder:

"28(2) While trying an offence under this Act, a Special Court shall also try an offence other than the offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial".

We say this, despite, Moly (supra) being found per incuriam

by a three judge bench on reference made, in Rattiram v.

State of M.P (2012)4 SCC 516. The larger bench held:

"66. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non- compliance with Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in State of M.P. v. Bhooraji (2001) 7 SCC 679 lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused".

The POCSO Act enables such other offences to be tried

without committal proceedings if it is to be tried in the

same trial. The grounds of prejudice urged fails also for

the reason that it is merely imaginary. We reject it at the

outset on the above reasoning and also on the appellant

having merely 'cried foul' without the particular prejudice

caused or the specific failure of justice, having been

stated or substantiated.

7. Now we venture to deal with the evidence on

merits. On 01.03.2013 at about 4.15 p.m, Circle Inspector

of Police (PW15), Vanitha (Women) Cell, Malappuram was

informed by a Child-line personnel that a woman and four

children were wandering at a place called Kunnummel. PW15,

along with two Woman Civil Police Officers (WCPOs); one of

whom was examined as PW13, went to the spot and brought

them to the Vanitha Cell. On enquiry it was revealed that

the woman rescued, showed signs of acute mental illness and

displayed violent tendencies. The elder child was

questioned when she revealed that the woman was her

mother's sister and that they were staying along with the

accused who was a 'komaram' (Oracle) in a temple. The

child also revealed that the accused who was living along

with the woman, had sexually molested her for the last one

year. Immediately the child was taken to the Manjeri Police

Station and produced before the Station House Officer with

a report marked as Ext.P10. PW9, the Sub Inspector of

Police, based on Ext.P10 report, registered Ext.P9 FIR. The

woman turned out to be the biological mother of the three

children and showed signs of mental illness. On the orders

of the CJM, Manjeri, she was taken to the Mental Health

Centre at Kuthiravattom, Kozhikode along with the youngest

child. The other children, on directions of the Child

Welfare Committee (CWC), were admitted to the Government

Juvenile Home at Vellimadukunnu. The evidence of PW15 was

fully corroborated by the evidence of PW13, who also heard

the victim speaking about the allegations of sexual assault

on her, by the accused.

8. PW1 is the victim, who speaks of having stayed

along with her two siblings and mother, with the accused

and his son. Her parents were estranged and the three

children were staying with the mother in a rented

accommodation. Her mother developed a relationship with one

Reji, who put her and her sister in an Orphanage, from

where they were attending school. Her brother was staying

with their mother. After the final examination of the 6 th

Standard, both the girl children were taken out of the

Orphanage, by the accused and brought to a house rented out

from PW6. When the two girl children reached the house,

their mother and brother were found to be residing there

with the boy child of the accused. It is when they were

staying in the house of PW6, that the atrocities against

PW1 commenced.

9. The accused along with his child and the mother

of PW1 used to sleep upstairs, while the three siblings

slept in a room downstairs. The accused at that time was a

priest in a temple and usually came home drunk in the

night. He used to regularly assault the mother and children

and also used to sexually molest PW1. She categorically

stated that she was sexually molested numerous times. In

the night, the accused used to knock on their door; which,

her brother used to open out of fear, since otherwise the

accused created a ruckus. Inside the room, the accused used

to stifle her cries with a cloth pushed into her mouth and

immobilize her, by tying her hands on the back. Then he

used to tear off her dress and do obscene things to her.

She specifically stated, he used to lie on her breasts and

insert his genitals into hers. The accused used to

repeatedly do it each night and also on several nights. If

she does not comply, he used to beat her with a stick. She

complained to her mother, who merely asked her to suffer,

since the accused comes home drunk. Then, they shifted to

another house, a single storeyed one, where the atrocities

continued. They stayed there only for a few days. Later,

when the mother and children were waiting at the bus stop

for the accused to arrive, the Police accosted them and

took them to the Police Station. She specifically stated

that the names of her parents were wrongly stated on the

specific instruction of the accused. She deposed that she

informed the Malappuram Police about the sexual harassment,

she was subjected to, by the accused at the house of PW6

and PW10.

10. She not only withstood searching cross-

examination but resisted the suggestions with an uncanny

resilience; probably arising only out of the abject ravage

her body was subjected to. In cross-examination she said

that she was not molested on the first day, when she was

brought to the house of PW6. Then a specific question was

put by the defence as to 'after how many days the accused

molested her', to which she replied 'after one week'. She

resisted an attempt to elicit a specific date or time,

which is only natural since during that time she was not

even going to school. When she was questioned whether she

had spoken to anybody else, she stoutly denied it and added

that the accused had threatened to kill her if she divulged

what she is subjected to. She also said that she suffered

injuries and when she was questioned as to why she did not

approach a doctor, she answered that it was out of fear of

the accused. Again, the defence questioned the girl,

whether anybody saw her being sexually assaulted to which

she categorically stated that her brother witnessed it. PW7

is the brother, who spoke in tandem with the evidence of

PW1. The instances of, the accused knocking on the door,

entering inside, stifling his sister with a cloth pushed

into her mouth, tearing of her clothes and committing the

sexual act while the two siblings cowered in fear, at the

corner of the room, was spoken of by the brother (PW7) too,

another minor child. The other sibling who too might have

witnessed the act is a still younger child. PW1 also spoke

of herself, the other children and the mother being picked

up from the roadside by the Police and she admitted to have

not only wrongly stated her parents' name but also about

her native place; for fear of the accused.

11. PW2 is the doctor who examined the prosecutrix

and Ext.P1 is the report of medical examination. In Ext.P1

and the deposition, the date of examination was stated to

be 01.03.2012; an obvious mistake. Ext.P1 shows the crime

No.201/13 which establishes the year. Further, as pointed

out by the learned Prosecutor, the woman and children were

picked up at 4.15 p.m, as per the deposition of PW13 and

PW15. The FIR at Ext.P9 was registered at 9.00 p.m (21.00

hours) and the report of medical examination was after

that, at 11.45 p.m. The time noted in Ext.P1 is also

11.45 p.m and there is nothing anomalous in the time

recorded. The doctor categorically spoke of the genitalia

of the victim admitting two fingers and the hymen having

been torn irregularly. The opinion was clearly that the

victim showed evidence of sexual acts.

12. PW3 verified the potency of the accused and

found that there was nothing to suggest that he was

incapable of performing the sexual act. PW4, H.M of a

school produced the certified copy of the extract of the

Admission Register of PW1, which showed the date of birth

of PW1 to be 23.08.1998. PW5 is the Secretary of the Grama

Panchayat, who proved the ownership of the two residential

houses where the alleged offences were committed. Ext.P4 is

the ownership certificate of PW6 and Ext.P5, the ownership

certificate of PW10. PW6 deposed that he is known by the

name 'Kunjanikakka', which was the reference made by PW1.

He stated that a tiled two storeyed building was rented out

to the accused in 2012. The accused standing in the dock

was identified and it was his statement that the accused

lived there, with his wife and children for one year. The

neighbours used to tell him about frequent quarrels arising

from the rented house for which reason he forced vacation

of the same. He also said that there were two girl children

living in the house and they came there after about six

months from the commencement of the rental arrangement.

PW10 is the owner of the second house. He deposed that the

house, having an asbestos roof, was rented out to the

accused, identified to be one standing in the dock; who

stayed there for about a week along with two girl children

and two boys.

13. PW8 prepared the sketch plans of both the

houses, marked as Ext.P7 and P8. PW9 is the Sub Inspector

of Police, who registered the FIR. PW11 is the victim's

biological father who admitted that the three children were

born to him in his marriage with their mother. He also

vouched that he was estranged from his wife and after that

the children were staying with their mother. Strangely

enough, the prosecution did not elicit the date of birth

from the father. This lapse is one we encounter daily and

we have today raised a suo motu case on this aspect of the

indifference and incompetence displayed by the Prosecutors

resulting in the offenders going scot free. PW12 is the

WCPO who took the victim's statement from the Juvenile Home

and PW14, the Magistrate who took the 164 statement of PW1

and 7, respectively marked as Ext.P11 and P12. PW16 was a

witness to the scene mahazar (Ext.P13) and PW17

re-registered the FIR (Ext.P1). PW18 and PW19 are the

Investigating Officers.

14. The first question to be considered is whether

the age of the victim has been proved. A Division Bench of

this Court in Rajan v. State of Kerala, 2021 (4) KLT 274

has held that certified copy of the extract of the

Admission Register of a school cannot be valid proof of

date of birth. The learned Prosecutor points out that as

per the Juvenile Justice (Care and Protection) Act, 2015

there is only requirement of a Birth Certificate issued

from the school for proving the age of a juvenile in

conflict with law which can be adopted for the victim in a

rape case as held by the Hon'ble Supreme Court in Jarnail

Singh v. State of Haryana [2013) 7 SCC 263]. We have to

notice that the offence herein was committed long before

the JJ Act, 2015 came into force. As on the date of

commission of the offence, Juvenile Justice (Care and

Protection of Children) Rules 2007 under the repealed Act

was in force. As per the Rules existing then, inter alia

the Birth Certificate of the school first attended was held

to be valid proof in Jarnail Singh. In Alex v. State of

Kerala 2021 (4) KLT 480 it was held that since the POCSO

Act does not contain a provision to determine the age of a

victim, the proof has necessarily to be in accordance with

the rigour of the requirement as insisted by the earlier JJ

Act and Rules, which were adopted by the decision in

Jernail Singh. Para 20 of Alex(supra) is extracted here

under:

"20. Though under the Act of 2015, there is no requirement of the certificate to be from the School first attended, the Hon'ble Supreme Court has specifically referred to the Rules of 2007 and imported the same procedure in the case of minor victims as in the case of minor children in conflict with law. A Division Bench of this Court in Crl.Appeal No.50 of 2017 [Rajan K.C. v. State of Kerala] after referring to the Rules of 2007 and the Act of 2015, held: " we would think that the said rigour (in the Rules of 2007) has to be applied in cases where the determination of the age of a minor victim arises; so as to not prejudice the accused" (sic). The rigour noticed is of the requirement of the extract of the School Register to be from the school first attended. The Act of 2015 is one intended for the protection of the juveniles in conflict with law, just as the criminal justice system ensures no prejudice being caused to the accused. The rigorous requirement made by the Hon'ble Supreme Court, while importing the requirement of the Rules of 2007, specifically of the date of birth of even a victim being determined with the certificate from the school first attended has to survive the repeal of the Rules of 2007 and we cannot be diluting the

requirement. This also is in consonance with the principle of 'ante litem motam'."

The certified copy of the extract of the admission register

falls short of proving the date of birth of the victim

since it is not one issued by the school first attended.

15. We have already held there was no prejudice

caused to the accused for reason of clubbing an offence

under Section 376(2) with an offence under the POCSO Act,

going by the specific provision in Section 28(2) of the

POCSO Act. In fact, the offence of rape committed on a

minor aged below 12 years would attract Section 376 of the

IPC and the provisions of the POCSO Act. In that

circumstance, when the offences, which arise from the very

same act, are tried together and the age of the victim is

not proved, it is not as if the offence under the IPC

charged against the accused would fall to the ground since

no committal proceedings have been carried out under the

Cr.P.C. Ordinarily, the offence under Section 376 IPC would

have to be subjected to committal proceedings under the

Cr.P.C. When taking cognizance of a charge under the POCSO

Act, the designated Special Court is empowered to try any

offence, charged at the same trial. Otherwise, every trial

under the POCSO Act will have to wait till the committal

proceeding is over and that would defeat the very purpose

of the enactment which envisages speedy disposal of the

cases. It cannot also be the position that once the age is

not proved, the offence under Section 376 would fail for

reason of no committal proceedings having been taken under

the Cr.P.C.

16. The charge speaks of an instance on 16.02.2012

and several, between 16.02.2013 to 28.02.2013. In fact, the

very first report made by PW15, Ext.P10, on the basis of

which FIR was registered, speaks of continuous physical and

sexual assault for a period of one year; without specifying

any dates. Section 164 statement and the deposition of the

prosecutrix, PW1, is also to the said effect. The

prosecutrix at no time specified any dates. The prosecutrix

spoke of the sexual assault having commenced in the house

rented out from PW6 and continued in the house rented out

from PW10; occupied only for a short period. The

prosecutrix was also specific insofar as she having been

taken out from the Orphanage after her final exams in the

6th Standard, which can be safely inferred to be in the

middle of 2012. The evidence of PW6 is that he gave the

house on rent to the accused in 2012 and after about six

months, the two girl children joined the family residing in

that house. PW10's evidence is also to the effect that the

family of the accused stayed in his house for about a week

by the end of February. Though the charge specifically

speaks of certain dates, we do not see such dates having

been stated by anybody. The defence has also not

cross-examined any of the witnesses, including the I.O on

the dates specified in the charge. The charge, though with

specified dates, is explicit and is of continued sexual

assault of the penetrative kind on the victim by the

accused, who is in the status of her guardian. Analysing

Section 221(2) of the earlier Code, which in pari materia

provision is available in Code of Criminal Procedure, 1973

as Section 212(1), the Hon'ble Supreme Court in

Chittaranjan Das held:

"It is true that sub-section (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed".

Mere irregularity in charge does not prejudice the accused

so long as he was aware of what was expected to be

defended. We quote from the decision of a Division Bench of

this Court in Surendran v. State [2021 (3) KLT 205]:

"22. A4 raised the allegation specifically relying on Vinubhai R Patel [2018 (2) KLT OnLine 3123 (SC) = (2018) 7 SCC 743]. In Dalbir Singh v. State of U.P [2004 (1) KLT OnLine 1300 (SC) = 2004 (5) SCC 334] which was relied on in the cited decision, a three Judge Bench resolved the conflict between two Division Bench decisions of the Hon'ble Supreme Court. In 1994 considering an appeal against conviction under S.302, it was concluded that the charge was not established. Examining the question whether conviction could be under S.306 for which no charge was framed; it was held that having regard to the evidence adduced by the prosecution, the cross-examination of witnesses as well as the questions put under S.313 Cr.PC, it was established that the accused had enough notice of the allegations which could form the basis of the conviction under S.306. Later in 1997 on the identical issue, referring to S.322 it was found that the two offences are of distinct and different categories; ie: homicidal death and abatement of suicidal death. The three Judge Bench approved the earlier decision in Lakhjit Singh v. State of Karnataka [1993 (1) KLT OnLine 1065 (SC) = 1994(Suppl.1)SCC 173], referring to Chapter XXXV of Cr.PC which deals with irregular proceedings and their effect. S.464 was noticed to find that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conclusion or order of a competent Court unless the appellate or revisional Court finds a failure of justice having been occasioned thereby. What is 'relevant to be examined is whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the same facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself' (sic. Para 17)".

17. One other contention raised by the learned

Counsel for the appellant is that at least in the second

house, there is no specific statement by PW1, as to a

penetrative sexual assault having been committed on her. We

immediately reject the contention since the victim had

spoken of the repeated acts committed on her in graphic

detail. She also speaks of herself being subjected to such

acts repeatedly on a day and continuously on several days

in both the rented premises. We do not think that at every

point, when repeated penetrative sexual assault is alleged,

there should be a graphic description by the victim, in

Court, of the details of such assault. In addition to the

trauma of being subjected to a penetrative assault, that

too by a person far older in age and having the status of a

guardian, the Courts cannot but insist on the trauma being

re-visited when examined in Court for the purpose of a

successful prosecution. However, that cannot lead to an

insistence that when continuous and repeated sexual assault

forms the gravamen of the accusation; the witness should be

called upon to state every detail of each of such traumatic

instances of abject depravity. We cannot, at all,

countenance the ground raised on that count by the learned

Counsel for the appellant.

18. The learned Counsel for the appellant has a

further contention regarding the omissions, pointed out

from the statement of the prosecutrix, recorded by the

Magistrate under Sec. 164 of Cr.P.C. It is the contention

that the omission of important facts affecting the

probability of the case, is a relevant fact under Sec.11 of

the Evidence Act to judge the veracity of the accusations.

The learned Counsel relies on Laxman v. State of

Maharashtra, 1974 3 SCC 704; Ram Kumar Pande v. State of

M.P., (1975) 3 SCC 815 and Sujit Biswas v. State of Assam,

(2013) 12 SCC 406 to counter the argument raised by the

learned Prosecutor that the prosecutrix, in the box, was

never confronted with the statement. It is submitted that

the procedure under Sec.145 of the Evidence Act even if not

complied with, the court has a duty to examine the

omissions and inconsistencies pointed out.

19. Laxman (supra) was a case in which, omissions

were pointed out in previous statements made before the

Executive Magistrate and in the enquiry during committal

proceedings. There, the omission was insofar as the

inculpatory circumstance against one of the accused not

having been mentioned by the eye witness in the previous

statements. The court considered the issue as to extent to

which the eye witness had seen the incident and how much

can be reasonably attributed to conjecture, surmises or

imagination on his part. The learned Judges specifically

referred to the observation of Prof.Munsterberg in a book

titled, 'On The Witness Stand', based on experiments

conducted of unexpected pre-planned episodes being enacted

before persons who were then asked to recount it. The

result in recantation, was that there were actions

attributed to the participants of which not even the

slightest trace existed and the essential parts were

completely eliminated from memory. The Professor concluded

so:

"We never know whether we remember, perceive, or imagine". Witnesses cannot, therefore, be branded as liars in toto and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The astute Judge can separate the grains of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. It is sound common-sense to refuse to apply mechanically, in assessing the worth of necessarily imperfect human testimony, the maxim "falsus in uno falsus in omnibus".

20. Ram Kumar Pande and Sujit Biswas (both

supra) were cases in which a crucial fact was not mentioned

in the FIR. FIR, was noticed to be a previous statement

which can strictly be used only to contradict or

corroborate the maker. In Ram Kumar Pande, the father of

the murdered boy made a first information statement and an

important fact regarding the occurrence was omitted, which

was held to be affecting the probability of the case and

relevant under Sec.11 in judging the veracity of the case.

Sujit Biswas followed Ram Kumar Pande. A statement recorded

under Sec.164 can be used for corroboration and

contradiction. It has to be noticed that the defence did

not confront the prosecutrix with any of the statements,

but one. That one statement, was the sexual molestation by

two others, brought by the accused, which was denied by the

victim. PW14, the Magistrate who recorded it, having marked

the statement at Ext.P11, we looked into the same. The

first statement made before the police and the deposition

before court of the victim does not reveal such an

allegation. The prosecutrix also denied making such a

statement before the Magistrate. We do not think that this

is an omission which could lead to the very veracity of the

accusation being doubted. Falsus in Uno Falsus in Omnibus

is a principle which is not accepted in India and as the

learned Professor observed 'the astute judge in

considering, the necessarily imperfect human testimony,

sifts the grains of truth from the chaff of exaggerations

and improbabilities, to decide on what is prudently

acceptable'.

21. The victim admits that she disclosed incorrect

details of parents before the police, which is explained to

be out of sheer fear of the accused. As to two others

having molested her, she denied the statement. The

Magistrate also was not questioned on this aspect and even

if we assume the statement was made; it could only have

been due to an over anxiety on the part of the victim, who

was subjected to repeated sexual acts of abject depravity

by a person more than twice her age and who was in the

status of a guardian; with no aid received from the mother,

who was indifferent to the protest raised by the poor

victim. The essentials of repeated sexual molestation and

the manner in which it was carried out has been

consistently stated by the victim at the initial stage to

the police, who rescued her from the streets and then to

the Doctor and the Magistrate; which also has been deposed

before court. There is no question of any adverse inference

being drawn since absence of scientific evidence, as

revealed from the dress, cannot by that alone result in the

acquittal of the accused. We find no reason to accept the

contention raised by the appellant based on Section 11 of

the Evidence Act since we find the victim to be a credible

witness and the slight deviation in previous statement to

be not significant enough to discredit her or her

testimony.

22. PW1, prosecutrix, was picked up from the

street with her two siblings and the son of the accused;

shepherded by an almost insane mother. The mental state of

the mother, a shame on society, is quite understandable

from the stress of having been abandoned, with three

children and no means of food or shelter; for which alone

the children were subjected to physical, mental and sexual

torture. No mother can remain sane in the said

circumstances. We also do not find any reason to fault the

prosecution for having not examined the mother in Court;

grossly unnecessary in the teeth of the evidence of PW1 and

PW7. The graphic description of PW1 is fully corroborated

by PW7, her brother, who unfortunately witnessed rape on

his sister, that too repeatedly and by their guardian.

23. The medical evidence also does not aid the defence. Had

the medical examination proved the virginity of the

prosecutrix, then definitely it would have aided the

accused. However, the examination having revealed that the

prosecutrix had been habituated to sexual act, definitely

it corroborates the testimony given by her. In addition, as

rightly pointed out by the learned Prosecutor, the

deliberate falsehood stated by the accused under Section

313, points to his complicity and reveals the guilty mind.

The accused said that he does not know the mother of the

prosecutrix while there was overwhelming evidence as to the

accused residing with the mother and children and his own

child, as a family. We find no reason to accept any of the

contentions of the appellant. We find that the evidence

establish that the victim was subjected to repeated rape by

the accused, that too of the penetrative kind. Though the

age of the victim was not proved, she was a school going

child, temporarily kept away from her studies. She, along

with her mother and siblings, was sheltered by the accused,

who stands in the status of her guardian. On the question

of the charge, under the POCSO Act, the age of the victim

having not been proved, the accused has to be acquitted of

the charges under the POCSO Act. There cannot be a

conviction also under Section 376(2) IPC for the same

reason. However, the offence of rape having been proved,

the accused is liable to be convicted under Section 376(1).

Considering the special relationship the accused had with

the victim and the status of a guardian, we are of the

opinion that the maximum sentence of life imprisonment

would have to be imposed on the appellant. We hence partly

allow the appeal, acquitting him of the charges under the

POCSO Act and under Section 376(2) IPC; but convict him

under Section 376(1) IPC and sentence him with life

imprisonment. Ordered accordingly.

Sd/-

K. Vinod Chandran Judge

Sd/-

Ziyad Rahman A.A.

Judge vku/-

APPENDIX OF CRL.A.No.644/2016

APPELLANT'S ANNEXURE ANNEXURE TRUE COPY OF THE JUDGMENT DATED 29.6.2016 IN SESSIONS CASE NO.324/2014 ON THE FILE OF THE SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST CHILDREN (ADDITIONAL SESSIONS COURT-1) MANJERI.