Kerala High Court

Kuttappan @ Babukuttan vs State Of Kerala on 31 August, 2022

                                                                   C.R.
             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                   &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
 WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                      CRL.A NO. 1308 OF 2018
 AGAINST THE ORDER/JUDGMENT DATED 6.12.2017 IN SC 1279/2013
    OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF CASES
  RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN
                 AND CHILDREN, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:

            KUTTAPPAN @ BABUKUTTAN,
            AGED 56 YEARS
            C.NO.2277, CENTRAL PRISON, TRIVANDRUM.
            BY ADV C.K.JAYAKUMAR(K/85/2000), STATE BRIEF


RESPONDENT/COMPLAINANT:

            STATE OF KERALA,
            REPRESENTED BY DGP, HIGH COURT OF KERALA.
            BY ADVS.
            ADVOCATE GENERAL OFFICE KERALA
            SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST
            WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38)



     THIS     CRIMINAL   APPEAL    HAVING   BEEN     FINALLY   HEARD   ON
11.8.2022,     THE   COURT    ON       31.08.2022,     DELIVERED       THE
FOLLOWING:
                                                                       'C.R.'
         K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
          ------------------------------------
           Criminal Appeal No.1308 of 2018
          -------------------------------------
         Dated this the 31st day of August, 2022

                           J U D G M E N T

Jayachandran, J.

"Rape is not merely a physical assault

- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very sole of the helpless female. [State of Punjab v. Gurmit Singh and Others (1996(2) SCC 284)]

1. Rape is most foul when it is alleged to have

been committed by a father on his minor daughter.

Unfortunate are the facts involved in the instant

appeal, where the allegation is one of rape by the

accused/father on his minor daughter on several

occasions in the month of December 2012, thus

committing the offence under S.376 of the Penal Code,

as also, under Ss.5, r/w 6 and 9, r/w 10 of

Protection of Children from Sexual Offences Act,

2012.

Crl.A 1308/2018

2. Parading 15 witnesses, the prosecution adduced

evidence and got marked Exts.P1 to P12. Except

marking Exts.D1 and D2 contradictions, no evidence,

whatsoever, was adduced on behalf of the defence.

The Sessions Court found that the evidence tendered

by PW1, the victim, to be genuine and credible and

convicted the accused for all the offences charged,

which judgment is under challenge in the instant

appeal.

3. Heard Adv.C.K.Jayakumar, learned State Brief

appointed for and on behalf of the appellant and

Smt.Ambika Devi, learned Special Government Pleader

for Atrocities Against Women and Children. Perused

the records.

4. Learned counsel for the appellant argued that

the prosecution has no specific date as regards the

commission of the alleged offence. The time alleged

is so vague, as sometime during Christmas vacation

2012. That it was during Christmas vacation is not Crl.A 1308/2018

specified in Ext.P1 F.I.S, where the victim only

refers to the time when she had holidays in the

school. Learned counsel would contend that the

conduct of PW1/victim in having not revealed the

matter to her own mother is quite strange and

unbelievable. According to the prosecution, the

first incident of rape took place when the accused,

victim and her brother were sleeping together in an

afternoon. Curiously enough, the brother was not

examined at all. There was inordinate delay in

preferring the F.I.S and registering the F.I.R. The

incident allegedly took place when the victim was

studying in the 6th standard, whereas the F.I.R was

registered only when she was studying in the 7 th

standard. Even after the matter was allegedly

revealed first to PW5/nurse, there is considerable

delay in registering the F.I.R, which is not

explained at all. Ext.D1 contradiction elicited from

PW2 and Ext.D2 contradiction elicited from PW6 would

render their respective version suspect. Learned

counsel would conclude that the alleged victim is

not of a sterling quality, so as to place sole Crl.A 1308/2018

reliance upon her testimony and no corroboration,

whatsoever, is forthcoming, so as to convict the

accused. There is serious contradiction between the

version spoken of by PW14, a member of the child

line team and the version spoken to by PW5 nurse and

PW4 class teacher. Learned counsel would allege that

the victim's mother had an eye fixed on evicting the

appellant from the home-for the reason that he

caters to the needs of his first wife and the

children born in that wedlock-for which purpose,

PW1/victim was made a tool. Finally, learned counsel

pointed out that, there was no penetration,

whatsoever, even going by the evidence adduced by

PW1/victim, wherefore, the punishment under Ss.5,

r/w 6 of POCSO Act is ex facie not sustainable.

5. Refuting the above allegations, learned Special

Government Pleader submitted that the evidence

tendered by PW1/victim is quite convincing,

requiring no corroboration. The allegation is made

against none other than the father of the victim and

unless and until there is a ring of truth, it is Crl.A 1308/2018

most unlikely that a daughter would choose to speak

against her father. PW1/victim was amply supported

by the evidence tendered by PW5/nurse (to whom the

incident was first revealed by the victim),

PW4/class teacher, PW9/doctor (who examined the

victim) and PW14 - the member of child line team.

According to the learned Special Government Pleader,

the judgment impugned is only to be sustained. As

regards penetration, learned Special Government

Pleader pointed out that, PW1/victim gave evidence

to the effect that the appellant/accused attempted

to insert his genitals to the victim's vagina, which

evidence is more than sufficient to hold that there

was penetration. Our attention was invited to the

definition of rape under S. 375 to point out that,

penetration 'to any extent' into the vagina would

constitute the offence. Learned Special Government

Pleader relied upon the following judgments of the

Honourable Supreme Court to buttress her argument:

(i) Rafiq v. State of U.P. [1980(4) SCC 262]

(ii) State of U.P. v. Babul Nath [1994(6) SCC 29]

(iii) State of Punjab v. Gurmit Singh and Others Crl.A 1308/2018

[1996(2) SCC 384] and

(iv) Nawabuddin v. State of Uttarakhand [2022(5)

SCC 419]

6. Having referred to the respective contentions

of the appellant and the respondents, we will start

with the evidence of PW1, the victim. The victim/PW1

deposed that, she was studying in S.N.H.S. School,

Uzhamalakkal, in the 6th Standard and she was

residing along with her father, mother and her

younger brother at Vengotkavu. Their's was a

thatched house. During Christmas vacation, her

father and mother went for job as usual. However,

her father came back by afternoon, telling that he

has no job in the post noon session, whereafter PW1,

her brother and her father went for sleep. While

sleeping, the accused/father caressed her breasts

and attempted to insert his genital to her vagina.

However, he could not penetrate. The victim cried

out of pain, whereupon, her father/accused left his

attempt. In the same house, the incident was

repeated on other days as well. Thereafter, they Crl.A 1308/2018

have shifted the residence to a tin sheet roofed

one, where also, the father/accused repeated the

same. He threatened her that, if the incident is

divulged to anybody, PW1 and her mother will be

finished off. PW1 was also afraid that her father

may assault her mother, if the incident is revealed

and hence she chose to keep it a secret. There was

an awareness class in the 6 th standard, where

incidents like the biological father behaving

indecently to children was dealt with. PW1 realised

that what her father did was wrong and she divulged

the matter to the sister (PW5/nurse), as also, to

PW4/class teacher. PW1's mother was called to the

school and the incident revealed. Thereafter, PW1

narrated the incident to her mother. Thereupon, a

complaint was filed and PW1 was subjected to medical

examination. Although PW1 initially deposed that,

she disclosed the incident to the doctor, she

corrected herself immediately. PW1 identified Ext.P1

First Information Statement (FIS) given by her.

7. In cross examination, PW1 confirmed that the Crl.A 1308/2018

accused is her biological father and that, he

bothered the least about her studies. It was

elicited that, in his first marriage, the accused

had a daughter, who is married and who have two

children. PW1 would state that her mother is

maintaining good relationship with the said daughter

of the accused and that, she used to come to her

house once in a while. A suggestion that PW1 and her

mother used to quarrel with the accused in the name

of his daughter in the first marriage is completely

denied by PW1. It is pertinent to note the manner in

which PW1 answered certain motivated suggestions of

the learned defence counsel, one among which is

extracted herein below:

"സസംഭവതത്തിന് മമുമമ്പ് അച്ഛൻ നത്തിങ്ങളളളോടടളോപസം

തളോമസത്തികമുന്നത് ളമളോൾകമ്പ് ഇഷ്ടമമുണളോയത്തിരമുന്നത്തിലല. (Q)

അളയളോ ഒതത്തിരത്തി ഇഷ്ടമളോയത്തിരമുന്നമു. ഒരമുമത്തിചമ്പ്

തളോമസത്തികളോൻ. (A)"

8. We note that PW1 answered so, not merely to the

question cited above, but also to several other

suggestions, which response we find as quite natural

and spontaneous, thereby attaching an extra element Crl.A 1308/2018

of credibility to her version. Thereafter,

suggestions to the effect that, they have shifted to

the tin roofed house to extricate the accused is

also denied by PW1. PW1 would state that she was

afraid of seeing her father and apprehensive as to

whether he would repeat the assault and would even

kill her, if the incident is disclosed to anybody.

The incident was not revealed to her mother out of

fear that her father/accused would kill her, as

also, for the reason that her mother would beat her,

once she comes to know about the same.

9. Here, we notice that in the F.I.S, the reason

for non disclosure is stated to be that she was

afraid of her mother beating her. However, in court,

PW1 would state that, she was threatened by her

father to be finished off, if the incident is

divulged to anybody. She was also apprehensive that

her father would beat her mother. However, in cross

examination, it is also elicited that, PW1/victim

was apprehensive that her mother would beat her, if

she comes to know about the incident. We, therefore, Crl.A 1308/2018

conclude that the reason stated in the F.I.S has

been elicited in cross, supplemented by two

additional reasons indicated above. We do not find

any contradiction, much less any material

contradiction, in the above version of PW1, so as to

discount her trustworthiness.

10. It was clarified during cross examination that

the sister to whom the incident was first divulged

was the school nurse. The teacher was told about the

incident subsequently. PW1 specifically stated that,

she mustered the courage to divulge the incident to

the sister/nurse and the teacher only after

undergoing counselling. PW1 realised during

counselling that a father who would maul her

daughter sexually would be punished. Here, we notice

that, by referring to counselling, the witness meant

the class taken by PW5/nurse. Upon coming to know

about the incident from the teacher, PW1's mother

questioned the accused, followed by a quarrel

between them. The following suggestion and its

answer is also pertinent, which is extracted here Crl.A 1308/2018

below:

"അമ്മ ളചളോദത്തിചളപളോൾ അച്ഛൻ വളടര വത്തിഷമത്തിചച

ഇറങ്ങത്തി ളപളോയത്തിളലല. (Q) അച്ഛൻ വളടര ളദഷഷ്യതത്തിൽ

അമ്മടയ ചചീതടയളോടക വത്തിളത്തിചത്തിടച

ഇറങ്ങത്തിളപളോരമുന്നതളോണ് കണത്. (A) Question repeats

ളദഷഷ്യതത്തിലളോണ് ളപളോയത്. (A)"

11. PW1 thereafter deposed that, her father left

her house and came back after few days. Whenever her

father comes to the house, PW1 will be put to the

house of her mother's sister. When her father came

back to her house after a gap, the fact was informed

to the school, whereupon the childline was informed

and the case was filed, deposed PW1. Thereafter, PW1

was taken to Nirbhaya and she came from Nirbhaya to

give evidence.

12. PW2, the victim's mother, confirmed her date of

birth as 14.05.2001 and deposed that she was

studying in the 6th Standard when the incident took

place. PW2 was not aware of her husband's sexual

advances to her daughter/PW1. She was called by

PW4/class teacher and required of her to keep an eye Crl.A 1308/2018

on her husband. PW2 questioned the accused based

upon the information, whereupon he left the house.

After six months, the accused came back. Since the

accused was present, PW1 did not want to stay in the

house, wherefore, she was put in her sister's house.

When PW1 hesitated to stay even at PW2's sister's

house, PW2 enquired with her about the matter,

whereupon PW1 narrated the incident to PW2/mother.

In cross examination, it is elicited that the

accused was a driver and his income was spent in her

family. Expenses for the marriage of the daughter of

accused in his first wife were spent by her mother

and not by the accused. PW2 is not aware as to

whether the accused had given any property or gold

in connection with that marriage. PW2 used to

quarrel with the accused, when he comes intoxicated

with alcohol. Then the accused would leave the house

for 5-6 months, during which period, the expenses

will be met by the income generated by PW2. A

suggestion to the effect that PW2 and PW1 were

inimical to the accused for maintaining relationship

with his first wife and for catering to their Crl.A 1308/2018

expenses is stoutly denied by PW2. According to PW2,

there was no interaction between the first wife of

the accused and herself. PW2 came to know about the

incident when she was informed by the school

teacher. Ext.D1 is a contradiction marked through

PW2 on the basis of her former statement to the

effect that, she did not question her husband after

coming to know about the incident, in order to find

out the truth. We do not find this contradiction as

a material one, which would affect the credibility

of the version spoken of by PW2. For not preferring

a complaint immediately, PW2 explained that she had

to take care of her daughter and she has to think as

to what is to be done. PW2 clarified that the case

was initiated from the school and not by her. To a

question, PW2 answered that, she feels that the

accused would have done as alleged by PW1, since his

character is bad. PW2 agreed that the return of

accused to the house is the reason for preferring

the complaint. Had he not returned, PW1/victim would

have lived along with PW2 and she need not have to

go to Nirbhaya and no case would have been Crl.A 1308/2018

instituted.

13. We notice that the version of PW2/mother is at

variance with that of PW1/daughter, insofar as it

pertains to the dissemination of information as

regards the incident to PW2/mother is concerned.

According to PW2, she was called to the School and

PW4/class teacher required of her to keep an eye on

her husband, whereas PW1 would state that PW2/mother

was detailed about the incident by PW5/nurse, in the

presence of PW4/class teacher. If that be so, the

version of PW2 that the incident was narrated to her

by PW1, when PW1 expressed hesitation to stay even

at PW2's sister's house, cannot be reconcilled. We

are, however, of the opinion that the variance

between the respective versions of PW1 and PW2 is

not with respect to the incident constituting the

charge against the accused, but with respect to the

manner in which PW2/mother got information about the

incident. Again PW2/mother has no direct knowledge

of the incident, except as spoken to by PW5/nurse,

PW4/class teacher and PW1/victim. Therefore, we Crl.A 1308/2018

discount the above.

14. PW3 turned hostile. He stated that the accused

and his family are residing in a land purchased from

PW3's mother's youngest sister.

15. PW4 is the class teacher of PW1. She deposed

that, she knows Sheela sister (PW5) and that she was

informed by her that PW1 was sexually molested by

her father. PW4 summoned PW2/mother and spoke to her

about the matters disclosed by sister Sheela. In

cross examination, it is elicited that PW4 did not

speak to PW2/mother, but it was PW5/nurse (sister)

who spoke. Upon coming to know about the incident,

PW4 informed the Headmaster.

16. PW5 is sister Sheela. She is the Junior Public

Health Nurse attached to the Uzhamalakkal

Sreenarayana Higher Secondary School during 2013-

2014. She used to screen the children on a weekly

basis to ascertain any health problem or

abnormality. She used to take classes about sexual Crl.A 1308/2018

abuse of children to pupils belonging to classes 5

to 8. PW1, while studying in the 6 th standard,

attended one such class. On the following day, she

came to PW5 and told her that her father attempted

to sexually abuse her. He used to touch her vagina

and breast. PW5 spoke to PW2/mother when she was

summoned. When PW1 informed that she is no more

willing to stay in her house, she was shifted to

childline. In cross examination, PW5 deposed that

all the facts divulged to her was informed to

PW2/mother, but PW5 does not know whether she came

to know about the incident first through PW5. The

disclosed facts were informed to the class teacher

and the Headmaster on the date on which it was

spoken to by PW1 and that, PW5 spoke to PW2/mother

in the presence of PW4 class teacher. PW5 is aware

that childine activist by name Lilly came to the

school upon receiving the information and they have

questioned the child about the incident, which was

in her presence. She did not instruct PW2/mother to

prefer a complaint before the police. PW5 has no

information as to whether PW1 had any animosity to Crl.A 1308/2018

her father/accused. PW5 denied a suggestion to the

effect that PW1 had animosity to her father/accused.

17. PW6 is the Headmaster attached to S.N.H.S.

School, Uzhamalakkal. He issued Ext.P3 school

certificate in proof of the age of PW1, as per

which, the date of birth of PW1 is 17.05.2001. PW1

took admission in the said school in the 6 th

standard. We straight away notice that Ext.P3

school certificate is not issued from the school

first attended by the victim and therefore, the same

cannot vouch the age of the victim, as held in Alex

v. State of Kerala [2021 (4) KLT 480]. Nevertheless,

we notice that the age of PW1 in the instant case is

proved by the deposition of her mother/PW2, where

the date of birth is specifically spoken to as

14.05.2001, which aspect is not seen challenged

also.

18. PW6 deposed that, he gave statement to the

police about the incident and that, he had informed

the matter to the childline. In cross examination, Crl.A 1308/2018

it was, however, elicited that, it was not PW6 who

informed the childline. Ext.D2 is a contradiction

marked through PW6 to the effect that he had

informed the childline. This contradiction, however,

according to us, is not a material one, affecting

the core of the prosecution case. PW6 was first

informed about the incident by PW4 class teacher and

PW5 sister. Simultaneous with the information to

PW6, the childline was also informed. Witness would

add that, he came to know about the incident when

childline officials came. Lilly teacher is a H.S.A.

having special training in counseling. It was

childline officials who informed the police and not

PW6, deposed PW6.

19. PW7 is the Village Officer concerned, who

issued Ext.P4 scene plan. PW8 is a witness to Ext.P2

scene mahazar.

20. PW9 was the CMO attached to the WMC Hospital,

Thycaud. He examined PW1 on 04.08.2013 as requested

by the investigating officer and issued Ext.P5 Crl.A 1308/2018

medical certificate. PW1 was examined by the

Gynecologist in the presence of PW9. On examination,

the vulva was found normal and the hymen intact.

The posterior portion was normal and vagina admits

only the tip of the finger. The alleged history, as

spoken of by PW9, is sexual abuse by the victim's

father by touching the vagina with his penis. There

is no history of penetration spoken of. PW9 deposed

that in a case of sexual abuse, penetration is

possible even without rupture of hymen. The

redness, contusion etc. caused due to vaginal

penetration will vanish after 3-4 days, deposed PW9.

In cross examination, it was elicited that there was

no evidence of any recent or past vaginal

penetration and that there was no evidence of recent

sexual intercourse. There existed nothing suggesting

penetration to vulva. PW9 would state that, he had

not examined the victim personally, but she was

examined in his presence. In re-examination, PW9

would state that, he had examined the victim and had

referred the victim to the Gynecologist only for

detailed examination, since she was under the age of Crl.A 1308/2018

18 years.

21. PW10 was the C.M.O of the District Hospital,

Nedumangad. He examined the accused and issued

Ext.P6 potency certificate. PW11 is the Women Sub

Inspector attached to the Thiruvananthapuram City

Vanitha Helpline. She recorded the first information

Ext.P1 FIS on 04.08.2013, which was forwarded to the

S.H.O. of Aryanad Police Station. The reason for

initial non disclosure, as stated in Ext.P1 F.I.S,

was put to PW11 and she affirmed of PW1 having given

a statement to the effect that she was afraid of her

mother beating her. It was also put to PW11 that a

statement to the effect that her father would kill

her if the matter is disclosed to her mother, was

not given to her.

22. PW12 was the S.H.O. of Aryanad Police Station,

who recorded Ext.P7 FIR on 04.08.2013 pursuant to

Ext.P1 FIS. PW13 was the Secretary of Uzhamalakkal

Grama Panchayath as on 07.08.2013 and he issued

Ext.P8 ownership certificate in respect of house of Crl.A 1308/2018

the accused and the victim. As per Ext.P8, the

building stands in the name of PW2/mother,

Chandrika. PW14 is Lilly, a team member of the

childline, who went to S.N.H.S. school in July 2013

pursuant to the information given by PW5 Sheela and

spoke to PW1. The child told her that from December

2012 onwards, she was sexually abused by her father

and that the matter was not disclosed to anybody,

since she was threatened by her father. PW1 also

told her that her father quarreled with her mother

and resided separately for a period of six months,

whereafter he came back. PW1 got scared when he

came back and hence, he informed the matter to the

school authorities. After conversing with PW1, both

PW1 and PW2/mother were summoned to the childline.

Information was given to the child Welfare

Committee. Since it was found that the victim was

not safe in her residence, she was shifted to

Nirbhaya Shelter Home. According to PW14, it was she

who informed PW6, the Headmaster of the school.

PW14 would state that, for a period of six months,

the child did not disclose the matter to anybody out Crl.A 1308/2018

of fear. It was also elicited that, PW2/mother was

aware of the incident when PW14 spoke to her at

childline. The incident was referred to the childine

when the accused/father came back. When her father

came back, the child got frightened and the matter

was accordingly informed to PW5 Sheela. PW14 would

state that, PW5 Sheela, PW6 Headmaster and herself

came to know about the incident on the same day,

which statement cannot be true going by the evidence

tendered by other witnesses; all the same not very

material according to us.

23. PW15 is the investigating officer who was the

Circle Inspector of Aryanad Police Station. He spoke

about the various formalities in the investigation,

about preparation of Ext.P2 scene mahazar, about

arrest of the accused, about obtaining Ext.P6

potency certificate of the accused, Ext.P3 age

certificate of the victim and Ext.P8 ownership

certificate of the residential building and also

about filing final report upon conclusion of

investigation. PW15 would depose in cross Crl.A 1308/2018

examination that the incident took place when the

victim was studying in the 6th standard during

Christmas vacation. The awareness class was taken

immediately after 10th September. PW15 would admit

that the FIS was given after six months from the

date on which the child disclosed the matter to the

school teacher. The teacher informed the matter to

the childline, which, in turn, informed the matter

to the police. PW5 Sheela and the officials of the

childline came to know about the incident on

different days and not on the same date.

24. Having scanned through the entire evidence, we

are of the opinion that the prosecution case has

been successfully driven home. Subject to the

objections on the part of the defence, which will be

dealt with separately hereunder, we find the

evidence tendered by PW1/victim to be trustworthy

and liable to be acted upon. A ring of truth

pervades all through out her version. She

categorically spoke of the sexual advances made by

her father, which occurred for the first time during Crl.A 1308/2018

the Christmas vacation, while she was studying in

the sixth standard. She specifically spoke of the

overt acts. Credibility surfaces from her honest

version that there was no penetration as such,

although there was an attempt. PW1 deposed that the

aggression continued even after they shifted their

residence to a tin roofed one. It is true that

corroboration by medical evidence is not

specifically forthcoming. However, we are of the

opinion that corroboration by medical evidence is

practically impossible in the given facts, having

regard to the nature of allegations levelled. As

already indicated, there was no penetration. The

specific allegation is with respect to caressing her

breasts, touching her vagina and an attempt to

insert the penis to the vagina, the last among which

was, however, unsuccessful, even according to PW1.

Except for the third overt act, if successful, there

could be little medical evidence to support the

prosecution version. Nevertheless, we note that

Ext.P5 certificate issued by PW9/Doctor also

supports the prosecution version to the limited Crl.A 1308/2018

extent of the history recorded therein, that is

sexual abuse by the father, with the history of

touching the vagina with his penis.

25. Corroboration to the victim's version lies in

the evidence adduced by PW5/nurse. It is PW5 to whom

PW1 first disclosed the incident, pursuant to a

class taken by PW5. According to PW1, this

emboldened her to divulge her sufferings to PW5. PW5

immediately informed PW4/class teacher, as also,

the medical officer and PW6/Headmaster. PW5

withstood the heat of cross examination and the

veracity of her evidence adduced is not eroded

during the course of cross examination. Upon receipt

of information from PW5, PW4 summoned the victim's

mother (PW2) and PW5 detailed the advances made by

the accused on the victim, in the presence of

PW4/class teacher. We find the evidence of PW5

credible. The version of PW1 is also supported by

the evidence tendered by PW4/class teacher, who

corroborated the version of PW5. The versions of PW4

and PW5 find further corroboration from the evidence Crl.A 1308/2018

adduced by PW6/Headmaster.

26. Again, we also find that the evidence tendered

by PW14/Lilly, a team member of the Childline, also

supports the prosecution version. She conversed with

the victim in July, 2013 at the school, pursuant to

which the Childline informed the Child Welfare

Committee and shifted the victim to the Nirbhaya

Shelter Home. In cross examination, PW14 would state

that it was she who informed PW6/Headmaster, which

version - although in variance with the version

spoken to by PWs 4, 5 and 6 - is only to be

discounted, as it concerns only a peripheral aspect

of the prosecution case. Another dichotomy in the

version of PW14 is with respect to her knowledge

spoken of to the effect that PW2/mother was aware of

the incident, pretty earlier through PW1/victim. Her

version to the extent that PW2/mother was aware of

the incident much before PW14 came to know about it

is true and correct. The complaint was filed after a

period of 6 months, when the accused came back and

started residing along with PW2 and PW1. However, Crl.A 1308/2018

her version that it was through PW1/victim that

PW2/mother came to know about the incident is only

her impression of the matter, without any direct

knowledge of the same and hence not of any moment.

27. We will now refer to the specific defence

contentions raised. The primary contention is that

there was inordinate delay in reporting the incident

to the Police, even after it was allegedly detected

in the form of a disclosure made by PW1/victim to

PW5/Nurse. It is true that there is delay in

preferring Ext.P1 F.I.S. However, the prosecution

has explained the delay. According to the

prosecution, the incident first occurred during

Christmas vacation of the year 2006, when PW1/victim

was studying in the sixth standard. It was disclosed

to PW5/nurse when she was studying in the sixth

standard itself, as spoken of by PW5. According to

PW5, the matter was informed to PW4/class teacher

and PW6/Headmaster. Going by the version of

PW4/class teacher, PW2/mother was summoned and she

was informed about the sexual advances made by the Crl.A 1308/2018

accused on the victim in the presence of PW5/nurse.

PW2/mother questioned the accused on the information

received, whereupon the accused picked up a quarrel,

got enraged and left the house, presumably to the

house of his first wife. Thereafter, he used to come

only occasionally for a day or two, on which

occasions, the victim will be shifted to their

relative's house in the neighbourhood. After six

months, the accused came back to the house of the

victim and PW2, and started residing therein. The

victim was again fearsome and apprehensive, which

she spoke of in her examination in cross. The matter

was hence informed to the school, which, in turn,

informed the Child Line, which triggered the

registration of the crime, pursuant to the First

Information Statement given on 4.8.2013.

28. We find that the delay is quite normal. The

victim is the daughter and the accused is none other

than her father. We perfectly understand the

embarrassment and dilemma of PW2/mother in

proceeding with the matter legally, which she spoke Crl.A 1308/2018

of in cross examination. She also said that but for

the accused returning to their home after 6 months,

a formal complaint would not have been preferred. It

was on the return of the accused, thereby

instilling fear in the minds of PW1 and PW2, that

the matter was again informed to the School

authorities, which led to the registration of the

crime through Child Line. The social ostracism,

which may fall upon the entire family, the stigma,

agony and the disrepute to the victim all persuaded

PW2/mother from proceeding legally. We find that the

delay is properly explained.

29. Another defence contention is with respect to

the date of birth of PW1/victim, which is not proved

by Ext.P3 school certificate issued by PW6, inasmuch

as Sree Narayana Higher Secondary School was not the

school first attended by PW1/victim. We find merit

in the defence's contention and the legal position

in this regard is settled by the judgments of this

Court in 1) Reju v State of Kerala [2020 KHC 2271],

2) Rajan v. State of Kerala [2021 (4) KLT 274], Crl.A 1308/2018

3) Alex v. State of Kerala [2021 (4) KLT 480] and

4) Raghavan v. State of Kerala [2021(6) KLT 427].

However, the age of the victim has been proved,

despite the shortcoming with respect to Ext.P3. The

victim's age has been specifically spoken of by her

mother/PW2 as 14.5.2001. The requirement of law is

sufficiently met when her mother speaks of the same,

especially when the same is not challenged in cross

examination. The said contention is, therefore,

rejected.

30. The next contention is on the count that PW1 is

not a witness of sterling quality, so as to place

sole reliance upon her testimony to convict the

accused. Corroboration is not forthcoming and

therefore, the judgment of conviction cannot be

sustained is the contention. We have already

discussed this aspect while dealing with the

intrinsic worth of the evidence tendered by PW1, as

also, the corroborative evidence available by

virtue of the testimonies of PWs.4, 5 and 14 and

Ext.P5 medical certificate, to the extent it does. Crl.A 1308/2018

Therefore, this contention is also dismissed.

31. The fourth contention is with respect to the

dichotomy of the versions spoken of by various

witnesses as regards the dissemination of the

information regarding the incident. According to

PW1/victim, the incident was first divulged to

PW5/Nurse. PW5/Nurse in turn informed the matter to

PW4/Class Teacher and PW6/Headmaster. PW4/Class

Teacher informed PW2, the mother of PW1/victim.

However, PW14 would state that PW2/mother was aware

of the incident through PW1/victim. We have

discussed this aspect also earlier and we do not

find much merit in the defence contention. As

indicated earlier, PW14 is not a person having

direct knowledge as regards the person through whom

PW2 came to know about the incident and it can only

be taken that what she spoke of is only her

impression.

32. Simultaneous with this point, we also deal with

another point, again pertaining to the dichotomy of Crl.A 1308/2018

the version between PW1 and PW2 as regards their

relationship with the first wife and daughter of the

accused. While PW1 would depose that her family is

maintaining good relationship with the daughter of

the accused through his first wife and that she used

to come to their house once in a while, PW2/mother

would maintain that she is not keeping any

relationship, whatsoever, with her. Here again, we

find that the inconsistency surfaces on a peripheral

aspect, not touching the core of the prosecution

case and hence, not liable to be taken stock of, to

disbelieve the prosecution case.

33. What remains now is the contention with respect

to the absence of penetration. Going by the

prosecution allegations, the offence is of rape

under S.376 of the Penal Code, as also, under Ss. 6

and 10 of the POCSO Act, which are not attracted,

according to the defence.

34. The offence was first committed during

December, 2012, at which point of time, the Crl.A 1308/2018

definition of rape as per S.375 of the Penal Code

stood thus:

"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

First.-- Against her will.

Secondly.--Without her consent. Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-- With or without her consent, when she is under sixteen years of age.

Explanation -- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception - Sexual intercourse by a man with his Crl.A 1308/2018

own wife, the wife not being under fifteen years of age, is not rape."

It could be seen from the above that the essential

overt act required is sexual intercourse, which by

virtue of Explanation 1, stands clarified that

penetration is sufficient, thereby meaning that an

ejaculation-in culmination of the sexual

intercourse-is not a legal requirement.

35. The POCSO Act came into force on 19.6.2012 and

S.7 defines "sexual assault" thus:

"7. Sexual assault.--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."

36. S.3 defines "penetrative sexual assault" and

the same, insofar as it is applicable to the instant

facts, is extracted herein below:

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if

--

(a) he penetrates his penis, to any extent, Crl.A 1308/2018

into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) xxx

(d) xxx"

37. Having taken note of the requirements of the

offences canvassed, we refer to the facts once again

in the present context. The specific version of PW1

in chief examination as regards penetration is that

the accused/father attempted to insert his genitals

on her vagina, but it did not enter/penetrate. The

version of PW5 is also significant to some extent,

since the victim disclosed the matter to her for the

first time. The version of PW5 in this regard is of

a much lesser degree that the accused/father used to

touch her vagina. In view of this apparent

inconsistency, we also perused PW1's version in

Ext.P1 F.I.S, where PW1 would state that her

father/accused kept his genitals on her vagina,

whereupon she woke up and cried. We, therefore,

discount the version of PW5 that the overt act is

only to the extent of the accused touching the Crl.A 1308/2018

vagina of the victim. In doing so, we reckon the

history as recorded in Ext.P5 medical certificate as

well.

38. However, the fact remains that there was no

penetration as such, although there was an attempt.

The medical evidence adduced vide Ext.P5 also

supports our conclusion, since the victim's vulva

was normal, hymen intact and the vagina admits only

the tip of a finger. In the circumstances, we find

that the offence as defined under S.375 is not

attracted; instead an attempt to commit the offence

under S.375 cognizable under S.511 is attracted. As

it is well settled, a crime contemplates four phases

- intention, preparation, attempt and

commission/accomplishment. In the instant facts, the

commission, insofar as the offence under S.375 is

concerned, is unsuccessful. However, an attempt is

quite clear. The medical evidence is also in support

thereof. Here, we also notice that absence of a

separate charge under S.511 of S.375 is of no

consequence in view of the provision in sub-Section Crl.A 1308/2018

(3) of Section 222 of the Code.

39. The Hon'ble Supreme Court had occasion to deal

with a similar situation recently in State of Madhya

Pradesh v. Mahendra @ Golu [2021 SCC Online (SC)

965], where the Hon'ble Supreme Court held that the

action of the accused in stripping the prosecutrixes

and himself and rubbing his genitals against those

of the victims was indeed an endeavour to commit

sexual intercourse. The Hon'ble Supreme Court went

on to hold that the acts of the accused were

deliberately done with manifest intention to commit

the offence and were reasonably proximate to the

consummation of the offence; that the act exceeded

the stage beyond preparation, but preceded actual

penetration. Observing thus, the Hon'ble Supreme

Court upheld the conviction under S.511 of S.375.

The fact situation is more or less similar and the

judgment is on all fours. We, therefore, conclude

that the offence attracted is under Ss.511 and 375

of the Penal Code.

Crl.A 1308/2018

40. Now coming to the POCSO Act, it is true that

S.3 contemplates penetration of penis "to any

extent" into the vagina. However, the above

definition does not obviate the legal necessity of a

penetration as such, however negligible the extent

be, which in this case is found lacking. As already

taken note of, all what is there is an attempt of

penetration, but unsuccessful. Therefore, we find

that the offence of penetrative sexual assault under

S.3 of the POCSO Act is not attracted. However, the

offence of sexual assault under S.7 of the POCSO Act

is very much attracted. By virtue of S.9(n), the

offence of aggravated sexual assault punishable

under S.10 of the Act is also attracted.

41. In view of the finding of guilt with respect to

S.511 of S.375 of the Penal Code and also under S.9,

read with S.10 of the POCSO Act, what remains is the

question of appropriate sentence. S.511 contemplates

a punishment which may extend to one-half of the

punishment stipulated for the principal offence, the

attempt of which has been found against the accused. Crl.A 1308/2018

In the instant case, the principal offence charged

is one under S.375, punishable under S.376 of the

Penal Code. Inasmuch as the victim/PW1 was aged only

11 years at the time of commission of the offence,

her date of birth being 14.5.2001, the offence

attracted is one under S.376(2)(f) of the Penal

Code, which prescribes a punishment of not less than

10 years, but, which may be for life and also fine.

In this context, it is relevant to note the language

employed in S.511, that is to say, commit an offence

'punishable' by this Court with imprisonment for

life. We take note that S.376(2) is an offence

'punishable' with imprisonment for life. Even the

offence under S.376(1), which is not as aggravated

as the one under S.376(2) is punishable with

imprisonment for life. Therefore, for the purpose of

S.511, the punishment provided for the offence has

to be taken as imprisonment for life. Now, the

question is how to reckon one-half of that

punishment, which prescribes imprisonment for life,

for which we take recourse to S.57 of the Penal

Code, which is extracted herein below: Crl.A 1308/2018

"57. Fractions of terms of punishment.- In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years."

Thus reckoned, one-half of the punishment provided

will be rigorous imprisonment for a period of 10 years

for the offence under S.376(2) of the Penal Code.

42. Coming to the offence of aggravated sexual

assault under the POCSO Act, the punishment

prescribed under S.10 is imprisonment for a period

not less than 5 years, but which may extend

to 7 years and also fine. Here again, the punishment

to be reckoned for the purpose of S.511 shall be

imprisonment for a period of 7 years and one-half of

the same will be imprisonment for a period of three

years and six months. However, in view of S.42 of