Kerala High Court
Fr.Edwin Pigarez vs State Of Kerala on 7 February, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
CRL.A NO. 1321 OF 2016
CRIME NO.135/2015 OF Puthenvelikkara Police Station,
Ernakulam
AGAINST THE JUDGMENT IN SC 203/2016 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN &
CHILDREN), ERNAKULAM
APPELLANT/2ND ACCUSED:
SILVESTER PIGARUZ
AGED 58 YEARS, S/O.JOSEPH, PATHISSERRY HOUSE,
MURINGOOR KARA, MELOOR VILLAGE, TRISSUR
DISTRICT.
BY ADVS.
Franklin Arackal A.R
I.J.AUGUSTINE(K/001547/2000)
RESPONDENT/COMPLAINANT:
KERALA STATE REP.BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA.
BY ADV SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ORDERS ON
07.02.2024, ALONG WITH CRL.A.160/2017, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Crl.A. Nos.1321 of 2016
& 160 of 2017 -: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
CRL.A NO. 160 OF 2017
Crime No.135/2015 OF Puthenvelikkara Police Station,
Ernakulam
AGAINST THE JUDGMENT IN SC 203/2016 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN &
CHILDREN), ERNAKULAM
APPELLANT/ACCUSED NO.1:
FR.EDWIN PIGAREZ
AGED 41 YEARS
S/O.JOSEPH, PATHISSERY HOUSE, AREEPPALAM
KARA,POOMANGALAM VILLAGE, THRISSUR DISTRICT
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.R.GITHESH
SRI.P.MARTIN JOSE
SRI.M.A.MOHAMMED SIRAJ
SRI.MANJUNATH MENON
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
RESPONDENT:
STATE OF KERALA
REPRESENTED BY ITS PROSECUTOR, HIGH COURT OF
KERALA ERNAKULAM
BY ADV SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ORDERS ON
07.02.2024, ALONG WITH CRL.A.1321/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Crl.A. Nos.1321 of 2016
& 160 of 2017 -: 3 :-
P.B.SURESH KUMAR & JOHNSON JOHN, JJ.
-----------------------------------------------
Crl.Appeal Nos.1321 of 2016 and 160 of 2017
-----------------------------------------------
Dated this the 7th day of February, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The appellant in Criminal Appeal No.160 of 2017 is
the first accused and the appellant in Criminal Appeal No.1321
of 2016 is the second accused in S.C.No.203 of 2016 on the
files of the Additional Sessions Court, Ernakulam (Special Court
for the trial of cases relating to Atrocities and Sexual Violence
against Women and Children). Among them, the appellant in
Criminal Appeal No.160 of 2017 stands convicted for the
offences punishable under Sections 375(a) read with Section
376(2)(i) and (n) and 375(b) read with Section 376(2)(i) of the
Indian Penal Code (IPC). He also stands convicted for the
offences punishable under Sections 3(a) and 3(b) read with
Section 4, Section 5(l) read with Section 6, Section 9(l) read
with Section 10 and Section 11(i) and 11(ii) read with Section
12 of the Protection of Children from Sexual Offences Act
(POCSO Act). The appellant in Criminal Appeal No.1321 of 2016
stands convicted for offence punishable under Section 212 IPC.
The appellants were also sentenced for the said offences except
for the offences found to have been committed by the first
accused under Sections 3(a) and 3(b) read with Section 4 and
Section 5(l) read with Section 6 of the POCSO Act in the light of
the provision contained in Section 42 of the POCSO Act. The
appellants are aggrieved by their conviction and sentence in
the said cases.
2. The accused are brothers. Among them, the
first accused was the Vicar of a Roman Catholic Church during
2014 and 2015. The victim was a parishioner attached to the
Church of which the first accused was the Vicar during the said
period. The victim was studying in Eighth Standard then.
28.03.2015 was a Saturday preceding the Palm Sunday. The
victim attended the morning prayers held in the Church on
28.03.2015 along with her mother. After the prayers, the victim
had gone missing for sometime and on search, her mother
found that the victim had been to the presbytery situated on
the upper floor of the parish hall attached to the Church in the
compound of the Church itself where the first accused was
residing. The mother of the victim then went to the presbytery
to enquire with the first accused as to the purpose for which the
victim had been there. As the mother grew suspicious, she
questioned the victim further and on such questioning, it was
revealed to her by the victim that the victim was sexually
assaulted by the first accused. Consequently, after informing
the matter to the authorities of the Diocese including the
Bishop, on 01.04.2015, the mother of the victim preferred a
complaint to Puthenvelikkara Police alleging that the victim has
been sexually assaulted by the first accused. A case was
registered by Puthenvelikkara Police on 01.04.2015 based on
the said complaint and after investigation, a final report has
been filed in the case disclosing, among others, the offences
found to have been committed by accused Nos.1 and 2 as
referred to above.
3. In the final report, there were four other accused
also. The accusation in the final report against the first accused
was that when the victim used to go the Church for prayers, the
first accused would invite her to the presbytery with the
intention of assaulting and harassing her sexually and that he
committed the same at the office room and also at the bedroom
attached to the presbytery on various occasions during 2014
and 2015. It was also the accusation in the case that the first
accused committed rape on the victim on several occasions
between 12.01.2015 and 28.03.2015. The accusation against
the fourth accused in the final report, the doctor who examined
the victim before reporting the offences to the police, was that
though the doctor had knowledge of the offences committed by
the first accused, failed to report the same to the police.
4. The Special Court, after taking the final report
into file, framed charges against the first accused for offences
punishable under Sections 376(2)(i) and (n) of IPC as also
Sections 3(a) and (b) read with Section 4, Section 5(l) read with
Section 6, Section 9(l) read with Section 10 and Section 11(i)
and (ii) read with Section 12 of the POCSO Act. Charges were
framed against accused Nos.2 and 3 for the offences
punishable under Section 212 read with Section 34 IPC and
charges were also framed against accused Nos.5 and 6 for
offences punishable under Section 212 read with Section 34 IPC
and under Section 19(1) read with Section 21 of the POCSO Act.
As far as the fourth accused is concerned, the charge against
her was for the offence punishable under Section 19(1) read
with Section 21 of the POCSO Act.
5. As the accused denied the charges, the
prosecution examined 40 witnesses as PWs 1 to 40 and proved
through them 88 documents as Exts.P1 to P88. MOs 1 to 12 are
the material objects identified by the witnesses. Exts.D1 to D3
series are the documents proved by the accused during the
prosecution evidence. Thereupon, the accused were questioned
by the Special Court as provided under Section 313 of the Code
and they denied the charges. The stand taken by the first
accused when questioned under Section 313 of the Code was
that the victim was showing some sort of affection towards the
first accused and that he ignored the same treating it to be as
an infatuation on her part. The first accused, however admitted
during his questioning under Section 313 of the Code that on
28.03.2015, the victim had come to the presbytery after the
morning prayers and also that after sometime, her mother
came to the presbytery with the victim to ascertain as to the
purpose for which the victim came to the presbytery earlier
that day. As the Special Court did not find the case to be one fit
for acquittal under Section 232 of the Code, the accused were
called upon to enter on their defence. The accused, however
chose, not to adduce any evidence. The Special Court, in the
circumstances, on an appraisal of the materials on record,
found the first and the second accused guilty of the offences
referred to in the opening paragraph of this judgment and
convicted them. Among others, the first accused was sentenced
to undergo imprisonment for the remainder of his natural life
and the second accused was sentenced to undergo simple
imprisonment for one year. The remaining accused except
accused No.4 were acquitted. Though the fourth accused was
convicted, she was released under Section 3 of the Probation of
Offenders Act, 1958. As indicated, accused Nos.1 and 2 are
aggrieved by the conviction and the sentence inflicted on them
in the said case.
6. The point that arises for consideration is
whether the conviction and sentence of accused Nos.1 and 2
are sustainable in law.
7. Heard the learned counsel for accused Nos.1
and 2 as also the learned Public Prosecutor.
8. Before referring to the various arguments
advanced by the learned counsel for the accused, it is
necessary to refer to the evidence let in by the prosecution to
prove the facts in issue. The witness examined as PW1 is the
victim herself. PW1 deposed that as the first accused was the
Vicar of her parish church, she had acquaintance with him as
she used to confess before him; that one day after the
confession, the first accused directed her to meet him, and
when she met him at the Church, the first accused called her to
his room; that when she went to his room accordingly, the first
accused embraced, kissed and touched her body. It was also
deposed by PW1 that even though she did not go to the first
accused for making confessions for sometime thereafter, she
was called by the first accused to the presbytery when she went
to the Church for Catechism class and when she went to the
presbytery accordingly, the first accused embraced and kissed
her again at his office room and such similar occurrences took
place thereafter during the month of July also. It was also
deposed by PW1 that since the first accused informed her that
he will not repeat such things later when he met her once at the
Church, she went to the first accused for confession again and
the first accused called her to his room thereafter also. PW1
deposed that when she went to his room on that occasion, the
first accused removed his clothes, embraced her and then
required her to suck his genital organ. PW1 deposed that she
did not do so and left from there. It was deposed by PW1 that
later on 12.01.2015, the first accused called her to his room
and when she went to his room, the first accused inserted his
finger into her vagina. PW1 also deposed that on another day,
during the month of February, at about 8.30 a.m., when she
was going to the school through the way near the Church, the
first accused called her to his room and when she went there,
the first accused took her to his bedroom and showed her a sex
video in a laptop and insisted her to do as shown in the video.
PW1 deposed that the first accused thereupon removed her
dress, laid her on the bed and inserted his penis into her vagina
by lying over her body. It was also deposed by PW1 that the
first accused had sex with her in the similar manner on several
occasions during the month of March in his room thereafter. It
was also deposed by PW1 that the first accused did so with her
last on 28.03.2015, after the morning prayer. PW1 deposed that
on 28.03.2015, her mother having found that she had been to
the room of the first accused, took her to the first accused to
enquire with him as to the purpose for which she had been
there and since her mother was not convinced with the
explanation offered by the first accused, the victim was
questioned by her mother on returning home and it is then that
she informed her mother the true facts. PW1 deposed that she
was subjected to medical examination once before the
registration of the case, and once after the registration of the
case. PW1 also deposed that she gave Ext.P1 statement before
the Magistrate. PW1 identified the first accused in the court.
Ext.P1 is the statement given by PW1 under Section 164 of the
Code, and the evidence tendered by PW1, insofar as it relates
to the core of the prosecution allegations is consistent, with her
version in Ext.P1. Even though the learned counsel for the first
accused cross-examined PW1 thoroughly, the attempt during
the cross-examination was to establish that PW1 was deposing
falsehood in Court, and if at all there was any physical
relationship between the victim and the first accused, it was
consensual. The suggestion made to PW1 during cross-
examination was that since the first accused refused her love
proposal, the victim has deposed falsely against him.
9. PW2 is the mother of the victim. PW2 gave
evidence on similar lines of the evidence given by PW1 as
regards the events that took place on 28.03.2015 after the
victim was traced out by PW2. In addition, PW2 also deposed
that she informed the matter on the same day itself to the
Bishop of the Diocese and to a few priests as also a nun known
to her and submitted Ext.P2 complaint to the police on
01.04.2015. PW2 also identified her signature in Ext.P3
statement given under Section 164 of the Code. The said
evidence of PW2 has not been discredited in any manner in her
cross-examination by the counsel for the first accused.
10. PW3 was an Altar boy attached to the Church,
working for the first accused and a schoolmate of the victim
and her brother, Christopher. PW3 deposed that food was being
delivered to the first accused from the house of his friend who
was examined as PW4 and that PW3 used to get the food for
the first accused from the house of PW4 occasionally. PW3
deposed that on 28.03.2015, he went to the presbytery for
giving food to the first accused which he had collected from the
house of PW4 and while coming back, PW3 saw the victim and
her mother with the first accused at the presbytery. PW3 also
deposed that the mother of the victim was crying then. It was
deposed by PW3 that after providing food at the presbytery, he
went to a river near the Church where his friends, including
Christopher and PW4 were baiting. PW4 affirmed that it is from
his house food was being delivered to the first accused and that
on 28.03.2015, food was provided by PW3 to the first accused
at the request of PW4, as PW4 was going for taking the bait. It
was also deposed by PW4 that after providing food to the first
accused on the said date, PW3 came back to the place where
he was baiting and informed PW4 that PW3 saw PW1 and PW2
at the presbytery and also that PW2 was crying then.
11. PW5 was a Catechism teacher attached to the
Church who had acquaintance with PW1 and PW2 as also the
first accused. PW5 deposed that she saw one day, the victim
talking to the first accused near the office room of the first
accused for a fairly long time and that PW5 advised the victim
that she shall not do so as it is not good for her as also for the
first accused. PW10 is another Catechism teacher attached to
the Church. PW10 also gave evidence on the similar lines of the
evidence tendered by PW5.
12. PW6 was the Manager of the School where the
victim was pursuing her studies during 2014 and 2015. PW6
had acquaintance with the first accused and she deposed that
since the first accused was absent from the Church, she made
enquiries and having found out the reason, PW6 enquired with
PW2 as to what happened, when she came to the school and
PW2 informed her that the first accused had committed sexual
assaults on the victim.
13. PW7 is a parishioner of the Church. PW7
deposed that on 28.03.2015, the first accused met PW7 at his
residence and informed him that a lady and her daughter came
to the presbytery and abused him alleging that the first
accused spoiled her daughter, and the stand taken by the first
accused then was that he did not do anything wrong with the
daughter of the lady. It was also deposed by PW7 that while
they were talking, the first accused received a call from the
office of the Bishop requiring the first accused to meet the
Bishop and after meeting the Bishop, the first accused came to
the house of PW7 again on the afternoon of the same day at
about 3.30 p.m. along with the son of the brother of PW7, Ajith
Thomas. It was also deposed by PW7 that the first accused
came to the house of PW7 on the succeeding day also and
informed PW7 that the lady and her daughter had been to a
doctor and when PW7 asked the first accused as to the reason
for his fear, the first accused informed PW7 that he committed
a mistake and that he has sinned. PW9 is the son of the brother
of PW7. It is PW9 who took the first accused to the office of the
Bishop on 28.03.2015. PW9 affirmed the facts deposed by PW7.
14. PW8 who is the grandaunt of the victim and a
nun, deposed that on coming to know of the incidents, PW8 had
the occasion to talk to the victim and the victim affirmed that
she has been sexually assaulted by the first accused. It was
also deposed by PW8 that it is on the advice of PW8 that the
victim was taken to a doctor by her parents and after taking the
victim to the doctor, her father informed PW8 that the doctor
told him that the victim has been sexually assaulted several
times. It was also deposed by PW8 that the relatives of the first
accused met her thereupon and requested her to settle the
case amicably and PW8 informed them that it is not possible.
PW8 identified the second accused in the dock as the brother of
the first accused who had met her with the request to settle the
case. PW12 was the Bishop of the Diocese during the relevant
time. PW12 deposed that the first accused was working as a
Vicar of the Church since July 2012 and that the parents of the
victim along with the victim met PW12 on 28.03.2015 and
complained that the first accused sexually assaulted the victim.
PW12 deposed that he talked to the victim and the parents
separately and thereafter called the first accused to his house,
and even though the first accused denied the allegation, PW12
suspended the first accused from his office temporarily. Ext.P10
is the circular issued in this regard by the Diocese.
15. PW17 was the doctor who examined the first
accused and issued Ext.P13 potency certificate. PW17 deposed
the said fact in his evidence. PW20 was a doctor attached to the
Taluk Hospital, North Paravur who conducted the medical
examination of the victim. PW20 deposed that on a reference
by the Sub Inspector of Police, Puthenvelikkara, she examined
the victim and issued Ext.P16 certificate of medical
examination. It was deposed by PW20 that the condition of the
hymen of the victim was "torn old" and there was evidence of
penetration.
16. PW25 is the Registrar of Birth and Death
attached to Kodungallur Municipality and she deposed that it
was she who issued Ext.P31 birth certificate. In Ext.P31, the
name of the child is shown as the name of the victim and the
name of her father is shown as Raphel Ouso Kaithathara and
the name of her mother is shown as Sheela Thomas
Thadikkaran. The evidence tendered by PW25 has not been
challenged by the first accused.
17. PW30 was the Sub Inspector of Police attached
to Puthenvelikkara Police Station as on 01.04.2015. PW30
deposed that on the said day, at about 4.45 p.m., PW2
submitted Ext.P2 complaint, and Ext.P41 First Information
Report was registered on the basis of Ext.P2 complaint. PW34 is
the police officer who commenced the investigation in the case,
PW35 is the police officer who continued the investigation and
PW37 is the police officer who concluded the investigation in
the case and submitted the final report. The said police officers
gave the details of the investigation conducted by them in their
evidence.
18. The first and foremost question to be
considered is whether the prosecution has established that the
victim was a child at the time of the occurrence, in terms of the
provisions contained in the POCSO Act. In Ravinder Singh
Gorkhi v. State of U.P., (2006) 5 SCC 584, after referring to the
earlier decisions in Birad Mal Singhvi v. Anand Purohit, 1988
Supp SCC 604, Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC
673, Updesh Kumar v. Prithvi Singh, (2001) 2 SCC 524, Ramdeo
Chauhan v. State of Assam, (2001) 5 SCC 714, Umesh Chandra
v. State of Rajasthan, (1982) 2 SCC 202 and Bhoop Ram v.
State of U.P., (1989) 3 SCC 1, the Apex Court held that
determination of the date of birth of a person before a court of
law, whether in a civil or criminal proceedings, would depend
upon the facts and circumstances of each case. It was also held
by the Apex Court in Ravinder Singh Gorkhi that in the absence
of any statutory provision dealing with the manner in which the
age has to be proved in a proceedings, the age has to be
proved by producing any document falling within the scope of
Section 35 of the Indian Evidence Act. Paragraphs 21 and 23 of
the judgment in the said case read thus:
"21. Determination of the date of birth of a person before a
court of law, whether in a civil proceeding or a criminal
proceeding, would depend upon the facts and circumstances
of each case. Such a date of birth has to be determined on
the basis of the materials on records. It will be a matter of
appreciation of evidence adduced by the parties. Different
standards having regard to the provision of Section 35 of the
Evidence Act cannot be applied in a civil case or a criminal
case.
xxxxxxx
23. Section 35 of the Evidence Act would be attracted both in
civil and criminal proceedings. The Evidence Act does not
make any distinction between a civil proceeding and a criminal
proceeding. Unless specifically provided for, in terms of
Section 35 of the Evidence Act, the register maintained in the
ordinary course of business by a public servant in the
discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law of the
country in which, inter alia, such register is kept would be a
relevant fact. Section 35, thus, requires the following
conditions to be fulfilled before a document is held to be
admissible thereunder: (i) it should be in the nature of the
entry in any public or official register; (ii) it must state a fact
in issue or relevant fact; (iii) entry must be made either by a
public servant in the discharge of his official duty, or by any
person in performance of a duty specially enjoined by the law
of the country; and (iv) all persons concerned indisputably
must have an access thereto."
Ext.P31 is an extract issued under Section 17(1)(b) of the
Registration of Births and Deaths Act, 1969 and Rule 8 of the
Kerala Registration of Births and Deaths Rules, 1999. Section
17 of the statute referred to above reads thus:
"17. Search of births and deaths register.--(1) Subject to any
rules made in this behalf by the State Government, including
rules relating to the payment of fees and postal charges, any
person may--
(a) cause a search to be made by the Registrar for any
entry in a register of births and deaths; and
(b) obtain an extract from such register relating to any
birth or death:
Provided that no extract relating to any death, issued
to any person, shall disclose the particulars regarding the
cause of death as entered in the register.
(2) All extracts given under this section shall be
certified by the Registrar or any other officer authorised by
the State Government to give such extracts as provided in
section 76 of the Indian Evidence Act, 1872 (1 of 1872), and
shall be admissible in evidence for the purpose of proving the
birth or death to which the entry relates."
As evident from the extracted provision, any person can make a
search of registers maintained under the statute and obtain an
extract of the same and all extracts given under the said
provision shall be admissible in evidence for the purpose of
proving the birth or death to which the entry relates. In the
circumstances, it can be concluded that Ext.P31 extract of the
Register of Birth and the evidence tendered by PW25, the
Registrar of Birth and Death attached to Kodungallur
Municipality prove beyond doubt that the date of birth of the
victim is 21.09.2000 and that she was a child in terms of the
provisions contained in the POCSO Act during 2014 and 2015.
The question is answered in the affirmative.
19. The next question is whether the prosecution
has established beyond reasonable doubt that the first accused
has committed rape on the victim as defined under Section 375
IPC and sexual assaults as also sexual harassments as defined
in the POCSO Act. As seen from the evidence let in by the
prosecution, in order to prove the allegation of rape, sexual
assault and sexual harassment, the prosecution relies on only
the evidence tendered by the victim. Reliance is placed on the
evidence of the remaining witnesses only for the purpose of
corroborating the evidence tendered by the victim. There
cannot be any doubt to the proposition that the evidence of a
rape victim can be the sole basis of a conviction. But, it is trite
that in order to base a conviction solely on the evidence of the
rape victim, such evidence shall be of a sterling quality. In Rai
Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, the Apex
Court had occasion to consider the question as to who can be
said to be a sterling witness. Paragraph 22 of the judgment of
the Apex Court in the said case reads thus:
"In our considered opinion, the "sterling witness" should be of a
very high quality and calibre whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at
the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well as
all other such similar tests to be applied, can it be held that such
a witness can be called as a "sterling witness" whose version can
be accepted by the court without any corroboration and based
on which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said
version in material particulars in order to enable the court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged."
It is evident from the aforesaid decision that the evidence of a
sterling witness is one that appears natural and consistent with
the case of the prosecution qua the accused; that such
witnesses, under no circumstances, shall give room for any
doubt as to the factum of the occurrence and that the evidence
shall have co-relation with each and everyone of other
supporting materials including expert opinions. To put it
differently, the version of such witnesses on the core spectrum
of the crime should remain intact while all other attendant
materials, namely, oral, documentary, and material objects
should match the said version in material particulars. The moot
question therefore, is whether the victim in the case on hand
can be said to be a sterling witness so as to justify the
conviction of the first accused solely based on her evidence.
20. We have read the evidence tendered by PW1
meticulously and we do not find any reason, whatsoever, to
disbelieve the evidence given by her as referred to in detail
above. It is relevant in this context to note that even though it
was suggested to PW1 during cross-examination that she was
deposing falsehood in court, which she denied emphatically, the
cross-examination of the victim by the learned counsel for the
first accused, especially her statement "എന ശ രരകമ യ അചൻ
ബനന ടമ ൾ ഞ ൻ ബഹള ന ചടല. ഞ ൻ എ ന യ പര തന ടട ഇല. എനക' അചമന ' ഭയങര
മ*ഹമ യരന എന അത' അചമന ' പറഞമ ൾ അത' അചൻ നരസച എന അതനന ത ർന' അചമന ടള
മ4ഷ6 ക രണ കള യ മപ ല സല മറ നമ ഴ പറയ ൻ ഇ യ യത ണ' എന പറഞ ൽ നശരയല. അചൻ
എമ ' പലമ ഴ എന ഇഷമ മണ എ ' മ? 4 ചട ഒര പ ശ6 മ തമ ണ' ഞ ൻ ഇഷമ ണ' എന
പറഞത'." indicates that the attempt of the first accused was to
establish, in the alternative, that the physical relationship
between him and the victim was consensual. Inasmuch as it is
established that the victim was a child below the age of 16
years during 2014 and 2015, it is immaterial whether their
physical relationship was consensual. Even though the part of
the deposition of the victim as referred to above is not recorded
as questions and answers, from the deposition, the questions
put to the victim could certainly be inferred, and it appears to
us that the first accused has in fact not disputed the fact that
there was a physical relationship between him and the victim.
Be that as it may, even de hors the same, as already indicated,
the evidence tendered by the victim establishes beyond
reasonable doubt that it was the first accused who committed
rape and sexual assaults on the victim and also harassed her
sexually. We hold so as we find that the evidence tendered by
the victim appeared to us to be very much real and natural and
she has not given room for any doubt as to the factum of the
occurrences, and the evidence tendered by her has co-relation
with each and every other supporting materials including the
expert opinion given by PW20, the doctor who conducted the
medical examination of the victim. As noticed, it was deposed
categorically by PW20 that she found evidence of sexual
intercourse when the victim was examined. In other words, the
evidence of the victim on the core spectrum of the crime
remained intact and all other attendant materials, namely, oral,
documentary, and material objects match the said version in
material particulars. We hold so also in the light of the evidence
tendered by PW5 and PW10 Catechism teachers, the evidence
tendered by PW2, the mother of the victim which, in turn, is
corroborated by the evidence tendered by PW3 who gave food
to the first accused on 28.03.2015, the evidence tendered by
PW6, the Manager of the school where the victim was pursuing
her studies during the relevant time, the evidence tendered by
PW7 and PW9 parishioners, the evidence tendered by PW8, the
grandaunt of the victim who is a nun, the evidence tendered by
PW12, the Bishop of the Diocese and the evidence tendered by
PW31 that MO9 towel belonging to the victim was seized from
the presbytery. In other words, we are of the view that the
findings rendered by the Special Court that the first accused
has committed rape and sexual assaults on the victim and also
that he harassed the victim sexually more than once are
perfectly in order. The first accused has no case that the
evidence tendered by PW1, if believed, the ingredients of the
various offences for which he was found guilty would not be
made out. If that be so, the findings rendered by the Special
Court that the accused is guilty of the offences punishable
under Sections 376(2)(i) and 376(2)(n) IPC and Sections 4, 6,
10 and 12 of the POCSO Act are in order.
21. As regards the second accused, as noted, the
allegation against him is that he had harboured the first
accused from legal punishment. It was brought out in evidence
that it is in the car owned by the second accused that the first
accused left Thrissur on the night of 01.04.2015 for Bangalore
and flew to Dubai on 02.04.2015. It was also brought out
through the evidence let in by PW22, the Nodal Officer of the
telecom company namely, Bharti Airtel and Ext.P24 call details
that the second accused travelled with the first accused to
Bangalore on 01.04.2015. It is on the basis of the said evidence
that the Special Court found the second accused guilty of the
offence punishable under Section 212 IPC. It is trite that in
order to establish the offence under Section 212 IPC, it must be
established that the person concerned has harboured or
concealed the offender by providing shelter or otherwise with
the knowledge that he is an offender or has reason to believe to
be an offender. The evidence tendered by PW22 indicates that
the first accused travelled to Bangalore on the night of
01.04.2015. The crime in the case was registered only on that
day, and there is nothing on record to indicate that the second
accused knew the registration of the crime. The only material
available to attribute knowledge to the second accused of the
fact that the first accused was an offender or has reason to
believe the first accused to be an offender is the evidence
tendered by PW8, the grandaunt of the victim, who deposed
that the second accused met the grandaunt and requested her
to settle the case amicably. According to us, merely from the
fact that the second accused met PW8 and requested her to
settle the case, it cannot be inferred that the second accused
had the knowledge that the first accused was an offender or
has reason to believe that the first accused is an offender,
especially since there was no crime registered against the first
accused at that point of time. In the circumstances, according
to us, conviction of the second accused under Section 212 IPC is
unsustainable. We take this view also for the reason that the
possibility of the first accused giving to the second accused an
entirely different picture about the allegations, and the
possibility of the second accused believing the version of the
first accused cannot be ruled out, especially since the first
accused was a priest then commanding respect from the
members of the community including his friends and relatives.
22. Let us now deal with the arguments advanced
by the learned Senior Counsel for the first accused. It was
argued vehemently by the learned Senior Counsel that going by
the evidence tendered by PW2, she had no occasion
whatsoever to know the particulars of the sexual assaults and
sexual harassments committed by the first accused on the
victim, but the crime is one registered based on Ext.P2
complaint lodged by her. It was pointed out by the learned
Senior Counsel that serious allegations are seen made against
the first accused in Ext.P2 complaint which is admittedly, one
prepared by a lawyer and the allegations therein can be
considered, therefore, only as figments of imagination. It was
argued by the learned Senior Counsel that inasmuch as a
complaint in the nature of Ext.P2 has already been preferred, it
can certainly be inferred that the victim was made to give
evidence in the case in tune with the allegations in the
complaint and the evidence tendered by PW2, therefore, cannot
be believed at all. It was also argued by the learned Senior
Counsel that even though several witnesses have been
examined on the side of the prosecution to prove that PW2 had
disclosed the occurrences to them, none deposed about the
occurrences in court. It was also argued by the learned Senior
Counsel that it has come out from the evidence of PW34 that
the victim was taken to a Counsellor for counselling before the
registration of the crime and that the said Counsellor was
neither cited nor examined in the case. According to the
learned Senior Counsel, inasmuch the victim was subjected to
counselling before the registration of the crime, the non-
examination of the Counsellor as a witness in the case is fatal to
the prosecution case. It was also argued by the learned Senior
Counsel that there is no satisfactory evidence in the case to
prove that the victim was a child under the POCSO Act during
the relevant period during which she was allegedly subjected to
sexual assaults and sexual harassments by the first accused.
The argument advanced by the learned Senior Counsel in this
regard is that in the light of the decision of the Apex Court in
Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, the age of
the victim in a case of this nature is to be established in
accordance with the provisions contained in Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2015, and
going by the provision contained in the said statute, the birth
certificate issued by the competent authority cannot be
accepted in evidence, if the date of birth of the child could be
proved by producing a Date of Birth Certificate from the school
or the matriculation or equivalent certificate from the
concerned examination board, if available and only if the said
documents are not available, a Birth Certificate could be
produced to prove the age of the victim. It was also argued
alternatively by the learned Senior Counsel that even
otherwise, there is no evidence in this case that Ext.P31 is the
extract of the Register of Birth of the victim. Alternatively, it
was argued by the learned Senior Counsel that the punishment
imposed on the first accused is too harsh and disproportionate
to the gravity of the offences alleged.
23. No doubt, the case which culminated in the
final report is one registered based on Ext.P2 complaint lodged
by PW2. But, while considering the argument advanced by the
learned Senior Counsel for the first accused, it has to be kept in
mind that PW2 had no direct knowledge about the acts of
sexual assaults and sexual harassments committed by the first
accused on the victim, and the information by PW2 regarding
the same is only from the information furnished to her by her
daughter, the victim. The fact that on 28.03.2015, PW2 went to
the presbytery with the victim to ascertain from the first
accused as to the purpose for which the victim had been there
after the prayers in the Church, is not disputed by the first
accused. The version of PW2 in this regard was that the stand
taken by the first accused then was that he has not done
anything to the victim and that since PW2 was not convinced
about the said stand of the first accused, she questioned the
victim further and it was then that the victim disclosed to her
that the first accused committed sexual assaults on her. It was
also deposed by PW2 that when the victim gave a few
indications about the sexual assaults, she did not ask anything
further. One has to understand the limitations of a mother to
obtain information of this nature from a minor daughter under
the circumstances in which she is placed, as in the case on
hand. As such, the allegations made in Ext.P2 complaint are to
be understood as the inferences PW2 has drawn from the
information furnished to her by the victim. True, the evidence
let in by the victim is not exactly as stated by her mother in
Ext.P2 complaint. But, the same, according to us, is not a
reason to reject the evidence tendered by the victim as false as
the evidence tendered by the victim, in essence, cannot be said
to be inconsistent with the Ext.P2 complaint, especially when
the same is found to be real and natural and corroborated in
material particulars by the evidence tendered by the other
witnesses. It is too much, in the peculiar facts of this case, to
contend that merely for the reason that PW2 lodged Ext.P2
complaint, the victim was made to give tutored evidence.
Ext.P2 complaint need be considered only as a document, on
the basis of which the criminal law was set in motion by a
relative of the victim. Needless to say, the argument of the
learned Senior Counsel that the evidence tendered by the
victim has to be understood as one given in tune with the
Ext.P2 complaint is only to be rejected and we do so.
24. There is no substance in the argument of the
learned Senior Counsel that the witnesses examined on the side
of the prosecution to prove that PW2 had disclosed to them, the
particulars of the sexual assaults and sexual harassments
committed by the first accused on the victim, did not disclose
anything regarding the same in their evidence. The contention
aforesaid was taken by the learned Senior Counsel in the
context of the evidence tendered by PW6, the Manager of the
school, PW8, the nun who is the sister of the grandmother of
the victim and PW12, the Bishop of the Diocese. The aforesaid
witnesses are not witnesses examined by the prosecution for
the purpose as alleged by the first accused, but are witnesses
examined to prove the subsequent events, and their evidence
cannot be ignored, merely for the reason that they have not
tendered any evidence regarding the particulars of the sexual
assaults and sexual harassments committed on the victim by
the first accused. True, it has come out in evidence that the
victim was taken to a Counsellor immediately after the
incidents took place on 28.03.2015, and the Counsellor has not
been cited or examined in the case. No doubt, the Counsellor
could have been examined, but merely for the reason that the
Counsellor was not examined, on the facts and circumstances
of this case, it cannot be said that the prosecution has to fail.
25. In Sunil v. State of Haryana, (2010) 1 SCC 742,
the Apex Court has refused to accept the school leaving
certificate of the victim in a case of rape to prove the age of the
prosecutrix, by observing thus:
"25. The prosecution also failed to produce any admission
form of the school which would have been primary evidence
regarding the age of the prosecutrix. The school leaving
certificate produced by the prosecution was also procured on
12-9-1996, six days after the incident and three days after the
arrest of the appellant. As per that certificate also, she joined
the school in the middle of the session and left the school in
the middle of the session. The attendance in the school of 100
days is also not reliable. The prosecutrix was admitted in the
school by Ashok Kumar, her brother. The said Ashok Kumar
was not examined. The alleged school leaving certificate on
the basis of which the age was entered in the school was not
produced."
Jarnail Singh is a case involving rape of a minor, and the only
evidence let in, in that case to prove the age of the victim was
the school records indicating the date of birth of the victim, and
the same was acted upon to convict the accused, and the
conviction was affirmed in appeal by the High Court. It was,
however, contended before the Apex Court in Jarnail Singh,
placing reliance on the decision of the Apex Court in Sunil that
it was not established in Jarnail Singh that the victim was a
minor. In the aforesaid factual background, it was held that
even though the Rules framed under the Juvenile Justice (Care
and Protection of Children), Act 2000 apply strictly only to
determine the age of a child in conflict with law, the statutory
provisions therein can certainly be the basis for determining the
age, even of a child who is a victim of a crime, for there is
hardly any difference insofar as the issue of minority is
concerned, between a child in conflict with law and a child who
is a victim of a crime, and affirmed the conviction of the
accused in the said case on that basis. The judgment in Jarnail
Singh, according to us, cannot be understood as laying down a
proposition that the age of the minor victims in cases of rape
and sexual assaults, is hereafter to be established only in
accordance with the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 or in terms of the subsequent
legislation namely, the Juvenile Justice (Care and Protection of
Children) Act, 2015 which replaced the said legislation,
notwithstanding the provisions contained in the Evidence Act
and the various judgments of the Apex Court rendered prior to
Jarnail Singh, as has been referred to herein-above in paragraph
18. The argument advanced by the learned Senior Counsel that
the date of birth of the victim should have been proved by the
prosecution in terms of Section 94 of the Juvenile Justice (Care
ad Protection of Children) Act, 2015, is therefore only liable to
be rejected.
26. PW37 is the police officer who concluded the
investigation in the case. PW37 deposed in his evidence, among
others, that it is he who collected the Birth Certificate of the
victim (the extract of the Register of Birth) and produced the
same before the Special Court. PW37 was not cross-examined
on that part of the evidence tendered by him. The first accused
has no case that Ext.P31 is not the extract of the Register of
Birth in respect of which evidence was let in by PW37. That
apart, as already noticed, the evidence tendered by PW25 has
not been challenged in cross-examination by the first accused
on any aspect whatsoever. The argument that there is nothing
to connect the victim with Ext.P31 extract of the Register of
Birth, is also therefore without any substance.
27. No doubt, rape is a crime which has a severe
effect on women and the society. A victim of rape suffers from
trauma and has to live with it for the rest of her life. Rape is not
only a physical offence, rather it is a psychological offence as
well. It is an infringement of a person's right to live a dignified
life. At the same time, the court cannot ignore the basic
principle of sentencing viz, that the sentence imposed should
never exceed that which can be justified as appropriate or
proportionate to the gravity of the crime considered in the light
of its objective circumstances. The purpose behind this principle
is to strike down extremely harsh punishments which are
disproportionate to the crime itself. Having regard to the fact
that there would certainly be more heinous crimes than the one
involved in this case to award the sentence of life imprisonment
for rape, we deem it appropriate to modify the sentence
imposed on the first accused for the offence of rape, to rigorous
imprisonment for a period of 20 years, instead of imprisonment
for the remainder of the natural life imposed by the Special
Court on the first accused.
In the result, Crl.A.No.1321 of 2016 is allowed, the
conviction of the second accused is set aside and he is
acquitted. Crl.Appeal No.160 of 2017 is allowed in part,
affirming the conviction of the first accused and modifying the
sentence for the offence of rape to rigorous imprisonment for a
period of 20 years without remission, instead of imprisonment
for the remainder of his natural life.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOHNSON JOHN, JUDGE.
Mn
