Sharmmilan vs State Of Kerala
2022 Latest Caselaw 2271 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                     CRL.A NO. 241 OF 2019
AGAINST THE   JUDGMENT IN SC 1232/2017 OF I ADDL.DISTRICT AND
                     SESSIONS COURT,KOLLAM
APPELLANT/ACCUSED:

         SHARMMILAN
         AGED 32 YEARS
         S/O KRISHNANKUTTY, C.NO.2800, CENTRAL PRISON AND
         CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM
         AND RESIDED AT RENTED FLAT OF SHERIFFKUTTY, NEAR
         KOTTAPPURAM MOSQUE, THAZHUTHALA CHERRI,
         ADICHANALLOOR VILLAGE, KOLLAM.
         BY ADV ADV. REMYA M.L. (STATE BRIEF)


RESPONDENT/COMPLAINANT:

    1    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA
    2    INSPECTOR OF POLICE
         SMT SHEEBA THOMAS-PP

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.02.2022, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.241/2019

                                -:2:-




                           J U D G M E N T

Dated this the 2nd day of March, 2022

This appeal has been preferred by the accused in SC

No.1232/2017 on the file of the First Additional District and

Sessions Court, Kollam against the judgment dated 21/6/2018

convicting him u/ss. 3(b) r/w 4 and 5 (i) r/w 6 of the Protection of

Children from Sexual Offences Act (for short, the POCSO Act ) and

S.75 of the Juvenile Justice (Care and Protection of Children) Act,

2000 (for short, the JJ Act).

2. The accused is the father of the victim. At the time of

the incident, the victim was aged 4½ years. The accused, his wife

(PW4), the victim (PW2), the brother of the victim and

grandmother of the victim (PW1) were residing together at a flat

bearing No.XVIII/29 of Adhichanalloor Panchayat. The prosecution

case in short is that on many days prior to 11/7/2017, the

accused sexually assaulted the victim at his house mentioned

above by inserting his finger and buds into her anus. According to

the prosecution, on 10/7/2017, PW1 took the victim and her Crl.Appeal No.241/2019

brother to the flat of the son of PW1. On 11/7/2017, when PW1

washed the victim, she did not allow to wash on her private parts.

When enquired, the victim told PW1 about the sexual assault

made by the accused. Immediately PW1, PW3 (daughter-in-law

of PW1) along with the victim went to the Kottiyam Police Station

and made complaint to PW12, the Sub Inspector of Police. Ext.P1

is the FI statement. On the basis of Ext.P1, PW12 registered FIR

against the accused u/s 376 of IPC, Ss.3(b) r/w 4 and 5 (i) r/w 6 of

the POCSO Act and S.75 of the JJ Act. PW15, Circle Inspector of

Police, Kottiyam conducted the investigation. After completing

the investigation, he filed final report against the accused before

the learned Magistrate. The learned Magistrate after complying

with the statutory formalities committed the case to the Court of

Sessions.

3. The accused appeared at the Court below. After

hearing both sides, the Court below framed charge against the

accused u/ss. 3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and S.75

of the JJ Act. The charge was read over and explained to the

accused who pleaded not guilty. On the side of the prosecution,

PWs1 to 15 were examined and Exts.P1 to P14 were marked. On Crl.Appeal No.241/2019

the side of the defence, Exts.D1 and D2 were marked. After trial,

the Court below found the accused guilty for the offence u/ss.

3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and u/s 75 of the JJ Act

and he was convicted for the said offence. He was sentenced to

undergo rigorous imprisonment for 10 years and to pay a fine of

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

months for the offence punishable u/s 6 of the POCSO Act and

sentenced to undergo rigorous imprisonment for 7 years and to

pay a fine of `25,000/-, in default to undergo simple

imprisonment for 3 months for the offence u/s 4 of the POCSO

Act. Aggrieved by the said conviction and sentence, the accused

preferred this appeal.

4. I have heard Smt.Remya M.L. (State brief), the learned

counsel appearing for the appellant and Smt.Sheeba Thomas, the

learned Public Prosecutor.

5. The learned counsel for the appellant vehemently

argued that the victim did not give evidence in support of the

prosecution case and the evidence of PWs1, 3 and 4 relied on by

the Court below to rest the conviction are hearsay and

inadmissible in evidence. The counsel further submitted that the Crl.Appeal No.241/2019

medical evidence does not support the oral testimony. The

prosecution miserably failed to prove the guilt of the appellant,

argued the counsel. On the other hand, the learned Public

Prosecutor, Smt.Sheeba Thomas, supported the findings and

verdict handed down by the court below and argued that

necessary ingredients of Ss.3(b) r/w 4 & 5 (i) r/w 6 of the POCSO

Act and S.75 of the JJ Act had been established against the

accused and the prosecution has succeeded in proving the case

beyond reasonable doubt.

6. The prosecution mainly relied on the evidence of

PWs1, 3 to 6 and 8 to prove the incident and to fix the culpability

on the accused. PW1 is the grandmother of the victim who gave

FI statement. PW2 is the victim. But the Court below found that

she was incompetent to testify before court. PW3 is the daughter-

in-law of PW1. PW4 is the mother of the victim. PW5 is the

Doctor who examined the victim and gave Ext.P2 report. PW6 is

the Doctor who examined the accused and issued Ext.P3 potency

certificate. PW8 is the Registrar of Births and Deaths attached to

the Kollam Corporation. Ext.P5 birth certificate of the victim was

proved through him.

Crl.Appeal No.241/2019

7. PW1 gave evidence that on 10/7/2017, while she was

washing the victim at the house of her son, the victim did not

allow to wash her private parts. She further deposed that when

she asked the reason, the victim replied that her father inserted

his finger and buds into her anus. The victim was studying in LKG

at that time. She further deposed that after washing the child,

she was made to lie on a cot and when checked her private parts,

she found abrasions and blackening there. PW3 is the daughter-

in-law of PW1. PW3 deposed that PW1 had told her what the

victim had told her about the sexual assault made by the

accused. She further deposed that thereafter she enquired with

the victim, who confirmed with her that the accused inserted his

finger and buds into the anus. She further deposed that she

along with PW1 went to Kottiyam Police Station and gave

complaint. PW5, the Doctor, gave evidence that on 12/7/2017 at

12.40 p.m, she examined the victim and issued Ext.P2 report. She

further deposed that on examination she noted abrasion around

anal sphincter. The Doctor opined that there was evidence of

recent anal penetration and the findings are consistent with the

history of alleged sexual assault.

Crl.Appeal No.241/2019

8. The learned counsel for the appellant vehemently

argued that this is a case where the victim was found

incompetent to give evidence and the evidence given by PWs1

and 4 are only hearsay and cannot be relied on. The evidence

given by PW1 would clearly show that when the victim did not

permit her to wash her private parts, she asked the reason and

then the victim complained that the accused sexually assaulted

her by inserting his finger and buds into her anus. This conduct

of the victim in complaining to her grandmother about the sexual

assault on her made by the accused is relevant and can be

received in evidence u/s 8 of the Indian Evidence Act since it

constitutes subsequent conduct of the victim. The bare language

of S.8 makes it abundantly clear that the subsequent conduct of

any party to a proceeding is relevant if it is in reference to such

proceeding or is in reference to any fact in issue therein or

relevant therein. The Illustration (j) to S. 8 of the Indian Evidence

Act reads thus:

"8. Motive, preparation and previous or subsequent conduct.

xxxxx

(j) The question is, whether A was ravished.

Crl.Appeal No.241/2019

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstance under which, and the terms in which, the complaint was made, are relevant.

The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant, as a dying declaration under section 32, clause (1), or as corroborative evidence under section 157."

The above Illustration squarely applies to the facts of this case.

PW1 when enquired about the reluctance of the victim to allow to

wash her private parts, the victim told her about the sexual

assault made by the accused. This would certainly constitute a

complaint relating to the crime narrating the circumstances and

the manner in which she was subjected to sexual assault by the

accused. The statement given by the girl of such an age in the

form of imparting information would necessarily take the

character of a complaint. Being the victim herself, she is a party

to the proceedings within the ambit of S.8 and her complaint to

the grandmother is her subsequent conduct having direct bearing

on the fact in issue and, thus, admissible u/s 8. The Apex Court in

Rameshwar v. State of Rajasthan (AIR 1952 SC 54) has held

that the previous statement of the raped girl to her mother, Crl.Appeal No.241/2019

immediately after the occurrence, is not only admissible and

relevant as to her conduct, but also constitutes corroboration of

her statement under the provisions of S.157 of the Evidence Act.

In order to come to the aforesaid conclusion, Illustration (j) to S.8

of the Indian Evidence Act was relied on. This Court in

Thottakkara Chathan v. State (2009 (2) KHC 175) has held

that the conduct of a woman in complaining to her mother about

the sexual assault on her is relevant since such conduct is

influenced by the factum of such assault which is a relevant fact

for the issue arising for decision. The Division Bench of the

Madhya Pradesh High Court in Indru v. State of H.P. (1989 KHC

1570) has held that the statement made by the prosecutrix

shortly after the gruesome incident complaining to her mother

narrating the circumstances and the manner in which she had

been subjected to rape by the accused having direct bearing on

the fact in issue is admissible as evidence u/s 8 of the Indian

Evidence Act. For these reasons, I am of the view that the

evidence of PW1 and PW3 can safely be relied on with the aid of

S.8 of the Indian Evidence Act.

9. The evidence of PWs1 and 3 gets corroboration from Crl.Appeal No.241/2019

the evidence of PW5, the Doctor. The evidence of PW5, the

Doctor, who examined the victim, would show the history as

narrated by the victim and Ext.P2 report prepared by her is a

contemporaneous report prepared while examining the victim.

The evidence of PW5 that there are injuries around the anal

opening would prove that penetrative sexual assault was

committed by the accused.

10. The learned counsel for the appellant further

submitted that it has come out in evidence that PW4, the mother

of the victim, was having an affair with one Mr.Navas and actually

it was he who molested the child. According to the learned

counsel, PW4 wanted to continue her relation with Mr.Navas and

to avoid the accused from her life, a false case was foisted

misusing the child. There is absolutely no evidence to show that

the victim was molested by Mr.Navas and PW4 is having an affair

with him. It is quite improbable and unreasonable to believe that

PW1, the grandmother of the victim, would foist such a false

story. It is pertinent to note that FIS was given by PW1 and not

by PW4. PW4 even came to know of the disclosure made by the

victim to PW1 about the sexual assault only after FIS was lodged. Crl.Appeal No.241/2019

11. The evidence given by PW1, 3 and 5 coupled with

Ext.P2 clearly proves that the accused committed penetrative

sexual assault on the victim by inserting his fingers into her anus.

The evidence of PW8 coupled with Ext.P5 would prove that the

victim was aged only 4½ years at the time of the occurrence.

The evidence of PW6 coupled with Ext.P3 would prove the

potency of the accused. Thus, the prosecution has succeeded in

proving beyond reasonable doubt that the accused has

committed the offence punishable u/s 3(b) r/w Ss.4, 5 (i) r/w S.6

of the POCSO Act as well as u/s 75 of the JJ Act. No interference is

called for on the said finding of the Court below.

12. What remains is the sentence. The court below

sentenced the accused to undergo rigorous imprisonment for 10

years and to pay a fine of `50,000/-, in default to suffer simple

imprisonment for three months for the offence punishable u/s 6

of the POCSO Act and sentenced to undergo rigorous

imprisonment for 7 years and to pay a fine of `25,000/-, in default

to undergo simple imprisonment for 3 months for the offence u/s

4 of the POCSO Act. The counsel submitted that the sentence is

excessive.

Crl.Appeal No.241/2019

13. In State of M.P. v. Babulal [(2008) 1 SCC 234], the

Apex Court held that once a person is convicted for the offence of

rape, he should be treated with heavy hands and an undeserved

indulgence or liberal attitude in not awarding adequate sentence

would encourage potential criminals. In Dhananjoy Chatterjee

v. State of West Bengal [(1994) 2 SCC 220], the Apex Court

held that the Court must not only keep in view the rights of the

criminal, but also the rights of the victim of crime and the society

at large while considering imposition of appropriate punishment.

In the instant case, a 4½ year old minor girl was sexually

assaulted by the accused, who is her own father. I find no

mitigating circumstances to interfere with the punishment

imposed by the Court below on the accused.

In view of the above findings, I find no reason to interfere

with the conviction an sentence passed by the court below.

Accordingly, the appeal stands dismissed.

Sd/-

                                       DR. KAUSER EDAPPAGATH
                                               JUDGE
Rp                         //True copy//
                            PS to Judge