Xxx vs State Of Kerala
2022 Latest Caselaw 8164 Ker

          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. 649 OF 2021
   AGAINST THE JUDGMENT IN SC 726/2014 OF I ADDL.DIST. &
                     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 682 031

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

         BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
         AGAINST WOMEN AND CHILDREN
         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.649/2021
                              -:2:-




                         J U D G M E N T

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.

726/2014 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 6th October, 2017.

2. The accused faced trial for the offence punishable

under Section 9(n) r/w 10 of the Protection of Children from

Sexual Offences Act (for short, POCSO Act).

3. The victim was a minor girl aged 15 years at the

time of the incident. The accused is none other than the father of

the victim. The prosecution case in short is that during the year

2006 and on 30.05.2014 at about 11 p.m., and also on

02.06.2014 at 2 a.m. in the night, the accused sexually assaulted

the victim at their 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, Crl.Appeal No.649/2021

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 offences punishable under Section 9(n) r/w 10 of

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

accused who pleaded not guilty. The prosecution examined PW1

to PW6 and marked Exts. P1 to P7. No defence evidence was

adduced. Considering the evidence on record, the court below

found the accused guilty for the offence punishable under Section

9(n) of POCSO Act and he was convicted for the said offence. The

accused was sentenced to undergo rigorous imprisonment for

five years and to pay a fine of Rs.25,000/-, in default to suffer

simple imprisonment for three months under Section 10 of

POCSO Act. 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 Crl.Appeal No.649/2021

findings of the Court below on appreciation of evidence and

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 benefit of which

should go to the accused. The counsel also submitted that the

age of the victim has not been legally proved. 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

PWs 1 and 2 to prove the incident and to fix the culpability on the

accused. PW1 is the victim who gave Ext. P1 statement and PW2

is her mother.

9. PW1, the victim girl, deposed that even at the age of

7 years, the accused sexually abused her by making her to lie on

his body and he also touched her private parts. PW1 further

deposed that thereafter, he went to Gulf and after returning from Crl.Appeal No.649/2021

Gulf, he regularly sexually assaulted her by catching her breast,

buttocks and private parts at night. She narrated an incident, that

on 30.05.2014, when the accused came to sexually assault her at

night, she cried aloud, her mother woke up and together they

made him to go out of the house and closed the door. She further

deposed that, again on 02.06.2014 at about 2 a.m. while she was

asleep, the accused caught her breast, buttocks and private parts

and she cried aloud. She also deposed that the accused made a

hole in the bathroom to see her taking bath. Hence, the victim

along with PW2 went to the police station, gave Ext. P1 statement

and lodged the complaint.

10. PW2, the mother of the victim gave evidence that,

the accused is her husband and after their marriage, the accused

disturbed her elder sister and there was a case with respect to

that and after the said incident, she along with the accused

started to live separately. She deposed that, while they were so

residing with their daughter, who is the victim herein, then aged

7 years, one day the victim cried aloud at night and told her that

the accused sexually abused her. The accused went to Gulf within

a week and came back after 7 years. She further deposed that, Crl.Appeal No.649/2021

after returning from Gulf, the accused began to disturb PW1 by

catching her breast and buttocks. She also deposed that, on

30.05.2011 at 11 p.m. such an incident occurred while PW1 was

sleeping and she along with PW1 pushed the accused out of the

house and closed the door. But, on the next day, the accused

promised them that he will not repeat such things. Hence, he was

allowed to enter the house. But, again on 02.06.2014, the

accused repeated the same acts of sexual assault against PW1

and on that day also, they pushed him out of the house and

intimated the matter to the brother of the accused. She added

that, on the next day, the accused made a hole in the door of the

bathroom for peeping while PW1 was taking bath and hence, she

along with PW1 went to the police station and lodged the

complaint.

11. I have perused the evidence of PW1 meticulously.

Even though she was cross-examined at length 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

assaulted her sexually on various occassions. She gave a reliable, Crl.Appeal No.649/2021

consistent, and credible version of the crime which inspires

confidence. 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]. Here, there is absolutely no ground

for doubting the veracity of the witness, PW1.

12. 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

[(1996) 2 SCC 384], the Apex court took the view that in cases

involving sexual molestation, even discrepancies in the statement Crl.Appeal No.649/2021

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. That apart,

the evidence of PW2 corroborates the evidence of PW1. There is

nothing to doubt the evidence given by PW2.

13. 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.649/2021

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

failure to mention the exact time of occurrence with respect to

the incident which happened while PW1 was aged 7 years does

not create doubt in the prosecution case. Apart from that, PW1

has clearly stated that she was very ashamed to complain about

such acts against her father before others. Thus, there is nothing

on record to doubt about the genesis or genuineness of the

prosecution case on account of the alleged delay.

14. The learned counsel for the appellant further

submitted that the age of the victim has not been proved before

the Court below. But, no such plea was taken at the court below.

The accused is none other than the father who is supposed to

know the age of the victim. The evidence of PW1 and PW2 would

show that PW1 was a minor at the time of the incident. She

clearly deposed that the accused sexually exploited her since she

was seven years old. There is no challenge to the said evidence.

15. The prosecution evidence clearly establishes that

the accused has committed the offence punishable under Section

9(n) of POCSO Act. The court below was absolutely justified in

convicting the accused under the aforesaid provisions and no Crl.Appeal No.649/2021

interference is called for on the said findings.

16. 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. 25,000/-, in default to undergo

simple imprisonment for three months under Section 10 of

POCSO Act. Section 10 of POCSO Act prescribes punishment of

imprisonment of either description for a term which shall not be

less than five years and may extend to 10 years and shall also be

liable to fine. The accused was sentenced only with the

mandatory minimum period of punishment. 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.

In the result, the conviction and the sentence passed by

the Court below are confirmed. Accordingly, this criminal appeal

stands dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp