Raju S/O Sreedharan, C.No.1563 vs State Of Kerala
2022 Latest Caselaw 9685 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
                      CRL.A NO. 1025 OF 2017
 AGAINST THE JUDGMENT IN SC 35/2016 OF ADDITIONAL SESSIONS
   COURT    FOR THE TRIAL OF CASES RELATING TO ATROCITIES &
           SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN,
                        THIRUVANANTHAPURAM
APPELLANT/ACCUSED:

            RAJU S/O SREEDHARAN, CONVICT.NO.1563
            CENTRAL PRISON, THIRUVANANTHAPURAM.

            BY ADV K.P.SUJESH KUMAR, STATE BRIEF



RESPONDENT:

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
            KERALA, ERNAKULAM.



            SMT SHEEBA THOMAS-PP



     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
12.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.1025/2017

                               -:2:-




                          J U D G M E N T

Dated this the 26th day of August, 2022

This appeal has been preferred under Sections 374(2) and

384 of the Cr.P.C. by the accused in S.C. No. 35/2016 on the file of

the Additional Sessions Judge for the trial of the cases relating to

atrocities and sexual violence against women and children,

Thiruvananthapuram (for short, 'the court below') challenging the

judgment of conviction and sentence dated 17/01/2017.

2. The accused faced trial for the offences punishable

under Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of

the Protection of Children from Sexual Offences Act (for short,

'POCSO Act').

3. The victim was a minor girl aged only 6½ years,

studying in 1st standard, at the time of the incident. The accused

was her neighbour. The prosecution case in short is that, on a day

in the month of April 2012 at 11.00 a.m. and also on 23/08/2015,

the accused committed penetrative sexual assault on the victim

inside her house at Pullattukari Lakshamveedu Colony in Crl.Appeal No.1025/2017

Kazhakkuttam Village.

4. The crime was registered by the S.I of Police,

Kazhakkuttam Police Station on the basis of Ext. P7 statement

given by the victim. After completing the investigation, the final

report was filed at the Sessions Court, Thiruvananthapuram which

was later made over to the Court below for trial and disposal.

5. The accused appeared at the court below and after

hearing both sides, the court below framed charge against him

under Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of

the POCSO Act. The charge was read over and explained to the

accused who pleaded not guilty. The prosecution examined PW1

to PW14 and marked Exts. P1 to P10. No defence evidence was

adduced. Considering the evidence on record, the court below

found the accused guilty for the offences punishable under

Section 376 of the IPC and Sections 4 r/w 3 and 6 r/w 5 of the

POCSO Act and he was convicted for the said offences. He was

sentenced to undergo rigorous imprisonment for ten years and to

pay a fine of ₹1,00,000/-, in default to suffer rigorous

imprisonment for six months for the offence punishable under

Section 6 r/w 5(l) and (m) of the POCSO Act. No separate Crl.Appeal No.1025/2017

sentence was awarded for the offence punishable u/s 376 of IPC.

Challenging the said conviction and sentence, this appeal has

been preferred.

6. Since the appellant is not represented by a lawyer, this

court appointed Sri.Sujesh Kumar K.P. as crown counsel. I place

on record the appreciation for the able assistance rendered by

him.

7. I have heard Sri.Sujesh Kumar K.P., the learned counsel

appearing for the appellant and Smt. Sheeba Thomas, the

learned Public Prosecutor.

8. The learned counsel for the appellant impeached the

findings of the Court below on appreciation of evidence and the

resultant finding as to the guilt. The counsel submitted that the

conviction is based on the uncorroborated testimony of the minor

victim which suffers from contradictions and omissions and there

is a delay of three months in lodging the FIR, the benefit of which

should go to the accused. The prosecution miserably failed to

prove the guilt of the accused beyond reasonable doubt, argued

the counsel. Per contra, the learned Public Prosecutor supported

the findings and verdict handed down by the court below and Crl.Appeal No.1025/2017

argued that the prosecution has succeeded in establishing and

proving the case beyond reasonable doubt.

9. The prosecution mainly relied on the evidence of PW1,

PW3, PW5 and PW9 to prove the incident and to fix the culpability

on the accused. PW1 is the victim and PW9 is her maternal aunt.

PW5 is the teacher to whom the victim disclosed about the

offence. PW3 is the doctor who examined the victim and issued

Ext. P3 medical certificate.

10. PW1, the victim, deposed that on a day when she was

studying in the first standard, while she was playing with her

friends, the accused came there and took her inside her house,

closed the doors of her house, caused her to lay on a cot and

patted her private parts, licked her vagina, put his penis into her

vagina and kissed her. She further deposed that, after a short

while, PW9 came to the house, then the accused hid under a cot

and PW9 saw her sitting naked. She further deposed that, when

PW9 asked her, she told that the accused was hiding under the

cot. PW9 saw the accused and she scolded him and he fled from

the spot. She also gave evidence that, during the Onam vacation

in the year 2015, while she was playing inside her kitchen, the Crl.Appeal No.1025/2017

accused came there, disrobed her, kissed and licked on her

vagina, kissed all over her body and caused his penis to touch her

vagina. She also deposed that on both the occasions, there was

nobody in the house and it was due to fear that she told her aunt

that the accused did nothing. She added that, she narrated the

entire incident to the counselling teacher, PW5. Subsequently,

the teacher informed the matter to the police who recorded

Ext.P7 statement, took her to the hospital and also informed her

mother.

11. PW9, the maternal aunt of the victim deposed that, on

a Sunday in the year 2012, when she went to the house of the

victim, she found the doors of the house closed. When she

opened the door, she saw the victim sitting naked on a cot and

the accused hiding under the cot without any dress. She also

deposed that, when she enquired to the victim as to whether the

accused had done anything, she told that he did nothing and she

scolded the accused.

12. PW5 teacher deposed that, there was a complaint that

the victim had touched on the private part of another student in

the school and used to use abusive words and seeing these Crl.Appeal No.1025/2017

abnormalities, the Headmistress of the School directed her to

give counselling to the victim. She further deposed that, in the

counselling, the victim divulged that her neighbour named

'Kannumaman' used to touch on her private parts using his

fingers after disrobing her and put his penis into her vagina. She

also deposed that, she informed the same to the Headmistress

who then informed the matter to the Child Line and police.

13. PW3 is the doctor, who examined PW1 on 17/11/2015

and issued Ext. P3 certificate. On examination, she found that

congestion was present over the labia. Mild congestion was noted

on the posterior aspect 5 O' clock position. According to her,

there was evidence of digital fingering.

14. I have perused the evidence of PW1 meticulously. She

clearly deposed the manner in which the accused committed

sexual assault on her. She gave a reliable, consistent, and

credible version of the crime which inspires confidence. She

specifically deposed that, the accused disrobed her, kissed and

licked on her vagina, kissed all over her body and caused his

penis to touch her vagina on two occasions. It was not

successfully challenged in cross-examination. Crl.Appeal No.1025/2017

15. It is settled that, the evidence of a victim of sexual

offence is entitled to great weight, absence of corroboration

notwithstanding. It is equally settled that the statement of a child

witness should be scrutinized with great care and caution. At the

same time, it must be taken note of that, children by their

inherent nature are honest. Corroboration of the testimony of the

child witness is not a rule but a measure of caution and prudence

is a well-accepted principle [See Hari Om v. State of Uttar

Pradesh (2021) 4 SCC 345]. The learned Magistrate has tested

her competency and other ability to speak the truth and her

capacity to swear and it was only after satisfying that she was

capable of taking oath, it was administered to her and she was

examined as a prosecution witness. Here, there is absolutely no

ground for doubting the veracity of the child witness, PW1.

16. The learned counsel for the accused submitted that

the conviction was based on the sole evidence of the victim

which lacks consistency and no occurrence witness was

examined. The Apex Court in Krishan Lal v. State of Haryana

(AIR 1980 SC 1252) held that to seek substantial corroboration of

the victim's evidence in a rape case is to sacrifice common sense. Crl.Appeal No.1025/2017

In Rafiq v. State of U.P. (AIR 1981 SC 559), the Apex Court

observed "hardly a sensitized judge who sees the conspectus of

circumstances in its totality rejects the testimony of a rape victim

unless there are very strong circumstances militating against its

veracity". In State of Himachal Pradesh v. Asha Ram (AIR

2006 SC 381), it was held that it is well within the limits to rest a

conviction based on the sole testimony of the victim, whose

evidence is more reliable than that of injured witness. In State of

Punjab v. Gurmit Singh [(1996) 2 SCC 384], the Apex Court

took the view that in cases involving sexual molestation, even

discrepancies in the statement of the prosecutrix should not,

unless the discrepancies are of fatal nature, be allowed to throw

out an otherwise reliable prosecution case. It was further held

that, the courts cannot cling to a fossil formula and insist upon

corroboration even if, taken as a whole, the case spoken of by the

victim of sex crime strikes the judicial mind as probable. Here,

the sexual assault has taken place at the house of the victim

when there was nobody in the house. Thus, there cannot be an

independent witness. Here, the evidence of PW1 is found to be

genuine, credible and reliable. It can safely be relied on to prove Crl.Appeal No.1025/2017

the incident and to fix the culpability on the accused. That apart,

the evidence of PWs 5 and 9 corroborates the evidence of PW1.

17. The oral evidence of PW1 gets corroboration from the

medical evidence submitted by the prosecution through PW3 and

Ext. P3. The deposition of PW3 as well as the contents of Ext. P3

points that there is evidence of penetrative sexual assault. Ext.P4

would show that the accused is potent and there is nothing to

suggest that the person is incapable of performing sexual acts.

18. The learned counsel for the appellant vehemently

argued that, there is an undue delay of three months in reporting

the matter to the police and lodging the FIR. The delay in sexual

offence has to be viewed differently. The delay in a case of sexual

assault cannot be equated with a delay in a case involving other

offences since several factors weigh on the mind of the victim

and members of her family. In a tradition bound society like ours,

particularly in rural areas, it would be quite unsafe to throw out

the prosecution case merely on the ground that there was a delay

in lodging the FIR. The delay becomes fatal only in a case when

there is doubt as to the genesis or genuineness of the

prosecution case. Here, it is to be noted that the incident was Crl.Appeal No.1025/2017

brought to light and the case was happened to be registered only

when the victim was subjected to counselling in the school.

Hence, the delay has been explained and there is nothing on

record to doubt about the genesis or genuineness of the

prosecution case on account of the alleged delay.

19. The learned counsel for the appellant lastly submitted

that there is animosity between the mother of the victim and the

accused, and on account of the said animosity, the petitioner was

falsely implicated. But to substantiate the said plea, there is no

convincing evidence. That apart, it is quite improbable to believe

that on account of the animosity, a mother would make a false

allegation of sexual assault on her minor daughter.

20. It has come out in evidence that the accused has

committed sexual assault on the victim when there was no one in

her residence. There is consistency in the version regarding the

overt acts done by the accused to PW1 in the first information

statement, statement before the doctor, before the court as well

as the statement recorded under Section 164 Cr.P.C. As stated

already, PW1 clearly deposed about the sexual abuse faced by

her from the accused. Ext. P6 extract of admission register shows Crl.Appeal No.1025/2017

that the victim is a child below the age of 12 years and hence,

the sexual assault is an aggravated one. Therefore, presumption

of guilt and sexual intent could be drawn against the accused. All

these facts and circumstances would prove that the accused has

committed the offence punishable under Section 376 of IPC and

Sections 6 r/w 5(l) and (m) of the POCSO Act. Hence, I am of the

view that the court below was absolutely justified in convicting

the accused under the aforesaid provisions and no interference is

called for on the said findings.

What remains is the sentence. The court below sentenced

the accused to undergo rigorous imprisonment for ten years and

to pay a fine of ₹1,00,000/-, in default to suffer rigorous

imprisonment for six months for the offence punishable under

Section 6 r/w 5(l) and (m) of the POCSO Act. Considering the

entire facts and circumstances of the case, I am of the view that

the sentence imposed by the Court below is absolutely

reasonable. Accordingly, this criminal appeal stands dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp