Kerala High Court

Xxx vs State Of Kerala on 1 July, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                      CRL.A NO. 594 OF 2021
AGAINST THE JUDGMENT IN SC 362/2017 OF I ADDITIONAL DISTRICT
                     & SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED:

         XXX
         X

         BY ADVS.
         T.U.SUJITH KUMAR
         DINESH G WARRIER


RESPONDENTS/STATE & COMPLAINANT:

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031.

2 THE SUB INSPECTOR OF POLICE, PATHANAPURAM POLICE STATION, KOLLAM DISTRICT 689 695.

BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN

OTHER PRESENT:

SMT BINDU O V-PP

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON 01.07.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.594/2021

J U D G M E NT

Dated this the 1st day of July, 2022

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

the Code of Criminal Procedure by the accused in S.C. No.

362/2017 on the file of the 1 st Additional District and Sessions

Judge, Kollam (for short, 'the court below') challenging the

judgment of conviction and sentence dated 19th February, 2018.

2. The accused faced trial for the offence punishable

under Section 354C of IPC and Section 11(v) r/w 12 of the

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

POCSO Act).

3. The accused is none other than the father of the

victim girl, then aged 17 years. The prosecution case is that, on

25/12/2015, 13/10/2016, and 27/11/2016, while the victim was

changing her dress and taking bath, the accused with sexual

intent peeped through a hole made in the door of the bathroom

and in the wall of the room where she changed her dress at their Crl.Appeal No.594/2021

house at Pathanapuram.

4. The crime was registered on the basis of Ext. P1

statement given by the victim to the Sub Inspector of Police,

Pathanapuram. After completing the investigation, the final report

was filed at the court below.

5. The accused appeared at the court below. After

hearing both sides, the court below framed charge against the

accused for the offence punishable under Section 354C of IPC and

Section 11(v) r/w 12 of the POCSO Act. The charge was read over

and explained to the accused who pleaded not guilty. The

prosecution examined PW1 to PW9 and marked Exts. P1 to 9. No

defence evidence was adduced. Considering the evidence on

record, the court below found the accused guilty for the offence

punishable under Section 354C of IPC and he was convicted for

the said offence. He was found not guilty for the offence

punishable under Section 11(v) r/w 12 of POCSO Act and he was

acquitted for the said offence. The accused was sentenced to

undergo rigorous imprisonment for five years and to pay a fine of Crl.Appeal No.594/2021

`50,000/-, in default to suffer simple imprisonment for three

months under Section 354C of IPC. Challenging the said

conviction and sentence, this appeal has been preferred.

6. I have heard Sri. Sujithkumar T.U., the learned counsel

appearing for the appellant and Smt. Bindu O.V., the learned

Public Prosecutor.

7. 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 child

witness which suffers from contradictions and omissions. The

counsel further submitted that there is inordinate delay in

reporting the matter and lodging the FIR. The counsel also

submitted that the sentence imposed is excessive. Per contra, the

learned Public Prosecutor, Smt. Bindu O.V. supported the findings

and verdict handed down by the court below and argued that the

prosecution has succeeded in establishing and proving the case

beyond reasonable doubt.

8. The prosecution mainly relied on the evidence of PW1 Crl.Appeal No.594/2021

to prove the incident and to fix the culpability on the accused.

PW1 is the victim who gave Ext. P1 statement. PW1 gave Ext. P1

First Information Statement on 28/11/2016. She deposed that,

about one month prior to Ext.P1, the accused used to peep while

she changes her dress and takes bath. She further deposed that,

one day while she was changing her dress after her school

hours, she felt the smell of liquor in the room and when she

looked, she found the accused lying under the cot watching her.

She also deposed that, one day while she was taking bath, her

younger sister saw her father peeping through the drain and

when she questioned this, he replied that it is father who has to

taste their daughters first and also he had stated an example that

if one plants a coconut tree, the first tender coconut is to be

taken by the planter and similarly if a tree is planted, the first

fruit is to be taken by the planter. She further deposed that, one

night, the accused under the influence of alcohol came to her

room and tried to remove her bed sheet. Hence, the victim along

with PW2, the mother of the victim, went to the police station

when they were unable to bear the acts of the accused, gave Ext.

P1 statement and lodged the complaint.

Crl.Appeal No.594/2021

9. I have perused the evidence of PW1 meticulously. Even

though she was cross-examined by the learned counsel for the

accused, nothing tangible could be extracted from her to create

any shadow of doubt that she is not a truthful witness. She

clearly deposed the manner in which the accused intruded into

her privacy. She gave a reliable, consistent, and credible version

of the crime which inspires confidence. In the chief examination,

she clearly deposed that the accused peeped while she was

changing dress and taking bath on many occasions and also lied

beneath the cot in the room to watch her while she changes her

dress.

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

offence is entitled to great weight, absence of corroboration

notwithstanding. The learned counsel for the accused submitted

that the conviction was based on the sole evidence of the victim

and no occurrence witness was examined. 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 Crl.Appeal No.594/2021

[(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 evidence of the PW1 is found to be

genuine, credible and reliable. It can safely be relied on to prove

the incident and to fix the culpability on the accused.

11. The learned counsel for the appellant vehemently

argued that, there is inordinate delay 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 Crl.Appeal No.594/2021

as to the genesis or genuineness of the prosecution case. Apart

from that, PW1 has stated that she had already given a complaint

in the year 2014 against the accused alleging sexual assault

committed by him and the accused continued to repeat the said

acts after coming out on bail, and when she was unable to bear

the acts of the accused, she preferred the complaint. Thus, there

is nothing on record to doubt about the genesis or genuineness of

the prosecution case on account of the alleged delay.

12. The prosecution has succeeded in proving that the

accused has committed the offence punishable under 354C of

IPC. 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.

13. What remains is the sentence. The court below

sentenced the accused to undergo rigorous imprisonment for five

years and to pay a fine of Rs.50,000/-, in default to undergo

simple imprisonment for three months under Section 354C of IPC.

Section 354C of IPC prescribes punishment of imprisonment of

either description for a term which shall not be less than one Crl.Appeal No.594/2021

year, but which may extend to three years and shall also be liable

to fine on first conviction and be punished on subsequent

conviction with imprisonment of either description for a term

which shall not be less than three years, but which may extend to

seven years and shall also be liable to fine. The learned counsel

for the appellant argued that since the previous conviction is not

properly proved before the court below, the sentence passed by

the Court below is not sustainable.

14. Section 298 of Cr.P.C. prescribes the procedure to

prove the previous conviction or acquittal. Section 298 of Cr.P.C

reads thus:

"298. Previous conviction or acquittal how proved: - In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any law for the time being in force,-

(a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or

(b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered.

together with, in each of such cases evidence as to the identity Crl.Appeal No.594/2021

of the accused person with the person so convicted or acquitted."

15. There is nothing on record to prove the previous

conviction of the accused as mandated by the aforesaid provision

in this case. This Court in State of Kerala v. Jayanandan [2017

(1) KLT SN 83 (C.No. 96)] has held that, so long as the prosecution

has not brought out any material in evidence on the side of the

prosecution about any previous conviction, details of the cases in

which the accused was involved and the cases in which he was

convicted would not constitute proof as provided in clauses (a)

and (b) of S.298. Since the prosecution could not prove the

previous conviction of the accused as contemplated under