Kerala High Court
Sabu vs State Of Kerala on 5 March, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal Nos.1302/2018 & 677/2019
:1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 5TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945
CRL.A NO. 1302 OF 2018
CRIME NO.360/2016 OF KUTTAMPUZHA POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.12.2017 IN SC NO.60 OF 2017 OF ADDITIONAL
DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES
& SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT/S:
SABU,
AGED 45 YEARS
S/O KUTTAPPAN, C.NO.3904, PATTASSERY KALLUNKAL HOUSE,
MAMALAKANDAM KARA, CENTRAL PRISON AND CORRECTIONAL HOME,
VIYYUR.
BY ADVS.
SRI. P.MOHAMED SABAH
SMT. SAIPOOJA
RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, ADDL. DISTRICT COURT OF
ERNAKULAM.
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SMT. BINDU O.V., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2024, ALONG WITH
CRL.A.677/2019, THE COURT ON 05.03.2024 DELIVERED THE FOLLOWING:
Crl. Appeal Nos.1302/2018 & 677/2019
:2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 5TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945
CRL.A NO. 677 OF 2019
CRIME NO.360/2016 OF KUTTAMPUZHA POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.12.2017 IN SC NO.58 OF 2017 OF ADDITIONAL
DISTRICT COURT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO
ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT:
SABU,
AGED 45 YEARS
S/O.KUTTAPPAN, PATTASSERY (KALLUNKAL) HOUSE, MAMALAKANDAM
KARA, KUTTAMPUZHA VILLAGE, C.NO.3904, CENTRAL PRISON, VIYYUR.
BY ADVS.
SRI. P.MOHAMED SABAH
SMT. SAIPOOJA
RESPONDENT:
STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.02.2024, ALONG WITH
CRL.A.1302/2018, THE COURT ON 05.03.2024 DELIVERED THE FOLLOWING:
Crl. Appeal Nos.1302/2018 & 677/2019
:3:
P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
---------------------------------------------------------
Crl. Appeal Nos. 1302 of 2018 &
677 of 2019
--------------------------------------------------------
Dated this the 5th day of March, 2024.
JUDGMENT
Johnson John, J.
The appellant is challenging the conviction and sentence passed
against him in S.C. Nos. 60 and 61 of 2017 on the file of the Additional
District and Sessions Judge, Ernakulam for the offences under Sections
376(2)(f) and 506(ii) IPC and Section 23 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 ('JJ Act' for short), as per the
impugned judgment dated 18.12.2017.
2. The prosecution case is that the accused, who is the biological
father of the minor victim girl, had subjected her to repeated sexual
intercourse during the period from June, 2010 to September, 2014 and
after investigation, four separate charge sheets were filed and the
charge sheet pertaining to the offences committed during the period
from June, 2010 to May, 2011 was taken on file as S.C. No. 61 of 2017,
and the charge sheet pertaining to the offences committed during the
period from June, 2011 to May, 2012 was taken on file as S.C. No. 60 of
2017. The charge sheet for the period from June, 2012 to May, 2013
was taken on file as S.C. No. 59 of 2017 and the charge sheet for the
Crl. Appeal Nos.1302/2018 & 677/2019
period from June, 2013 to September, 2014 was taken on file as S.C.
No. 58 of 2017.
3. When the accused was produced before the trial court, after
hearing both sides, charge was framed against the accused in all the
four cases and the trial court also allowed the petition filed by the
accused for joint trial as C.M.P No. 907 of 2017 and accordingly, all the
above 4 cases were tried jointly. From the side of the prosecution PWs 1
to 12 were examined. Exhibits P1 to P15 were marked, and no evidence
was adduced from the side of the defence.
4. After considering the oral and documentary evidence on record
and after hearing both sides, the learned Additional Sessions Judge, by
the impugned judgment dated 18.12.2017, found the accused not guilty
of the offences charged against him in S.C. Nos. 58 and 59 of 2017 and
therefore, acquitted him in those two cases. But the accused was found
guilty under Sections 376(2)(f) and 506(ii) of IPC and Section 23 of the
JJ Act in S.C. Nos. 61 and 60 of 2017 and he is convicted and sentenced
to undergo rigorous imprisonment for life and to pay a fine of
Rs.10,000/- and in default of payment of fine, to undergo rigorous
imprisonment, for two months for the offence under Section 376(2)(f) of
IPC; and to undergo rigorous imprisonment for 5 years and to pay a fine
of Rs.5000/- and in default of payment of fine, to undergo rigorous
Crl. Appeal Nos.1302/2018 & 677/2019
imprisonment for one month for the offence 506(ii) of IPC; and to
undergo rigorous imprisonment for three months for the offence under
Section 23 of the JJ Act, in S.C. Nos 61 and 60 of 2017.
5. Heard Smt. Saipooja, the learned counsel for the appellant and
Smt. Bindu O.V., the learned Public Prosecutor and perused the records.
6. The point that arises for consideration is whether the conviction
entered and the sentence passed against the accused by the trial court
are sustainable or not.
7. The learned counsel for the appellant argued that there are
serious inconsistencies in the evidence of the victim and her mother and
there is inordinate delay in filing the FIR. It is argued that the
prosecution has not examined the teacher of the school to whom the
victim has first disclosed the alleged incident and that the evidence of
PW1 in cross examination would show that during the relevant period,
the accused resided in a rented house and the prosecution has no case
that the accused subjected the victim to sexual intercourse in his rented
house and therefore, the trial court ought to have found that the
testimony of PW1 is not of sterling quality.
8. In Santhosh Prasad v. State of Bihar [2020 KHC 6155], it is
held that if the conviction has to be based on the sole testimony of the
Crl. Appeal Nos.1302/2018 & 677/2019
victim in a rape case, the deposition of the victim must be of sterling
quality. It is well settled that the status of the witness would be
immaterial and what would be relevant is the truthfulness of such a
statement made by the witness and for that purpose, the court is
required to analyse the consistency of her statement right from the
beginning till the end and as to whether she was able to withstand any
length of cross examination.
9. It is true that the delay in registration of FIR, lack of medical
evidence, material inconsistencies in the statement of the victim when
compared to the statement of the other witnesses etc. are factors that
would persuade a court to look for corroboration before convicting the
accused based on the sole testimony of the victim. Therefore, in view of
the legal principles laid down in the aforesaid case, it is necessary to
analyse the testimony of PW1 in this case, for a proper appreciation of
the contentions raised by the learned counsel for the appellant.
10. PW6 was the Woman Police Sub Inspector who reached
Nirmala Orphanage functioning under St. Mary's Orphanage, Vallakom
on 24.05.2016 as per the direction of the Sub Inspector and recorded
the statement of the victim girl in the presence of Sr. Tessy and the First
Information Statement is marked as Exhibit P1. PW7 was the Sub
Inspector of Vaikom Police Station on 24.05.2016 and he deposed that
Crl. Appeal Nos.1302/2018 & 677/2019
on the basis of the report received from the child line, he deputed PW6,
Woman Sub Inspector, to record the statement of the victim and on the
basis of Exhibit P1 First Information Statement, he registered Exhibit P8
FIR in this case. The reports received from the child line are marked as
Exhibit P9 series.
11. The minor victim girl is examined as PW1. PW1 deposed that
she is now an inmate of Nirbhaya Home, Kakkanad and her date of birth
is 01.12.2001. According to PW1, her house is at Mamalakandam and
there she resided with her parents, siblings and grandmother. Her
evidence shows that she has two elder brothers and a younger sister and
during the period when she resided at Mamalakandam, her elder brother
was working at Kottayam. According to PW1, while she was residing in
her house at Mamalakandam, her father subjected her to physical and
mental harassment and during night, he used to insert his thing used for
urinating into that part of her body used for urinating.
12. PW1 also stated that she saw her father committing the very
same act against her younger sister and that her father repeated the
said acts against her during the period from June, 2010 to September,
2014. According to PW1, during 2010, she was studying in Class III at
LP School, Mamalakandam and since her father has threatened her, by
showing a knife not to disclose the matter to anybody else, she has not
Crl. Appeal Nos.1302/2018 & 677/2019
disclosed the matter to anybody else. PW1 stated that subsequently, she
disclosed the matter to her Health teacher at Vallakom School and
thereafter, a Woman Police Officer recorded her statement and she
identified her signature in Exhibit P1 First Information Statement. PW1
also stated that she has given a statement to the Magistrate regarding
the incident and the 164 statement of PW1 recorded by the Magistrate is
marked as Exhibit P2.
13. Even though, the learned counsel for the appellant argued
that there are serious contradictions and inconsistencies in the evidence
of PW1 regarding the occurrence, no proton of the previous statement of
the witness was specifically brought to her attention while cross
examining her and no proton of her previous statement is proved legally
to contradict her. It is well settled that if it is intended to contradict a
witness by her previous statement in writing, the attention of the
witness must be drawn to those parts of it before the writing is proved,
as held by the Hon'ble Supreme Court in Tahsildar Singh and another
v. State of UP [AIR 1959 SC 1012]
14. In Dasu and others v. State of Maharashtra (1985
Crl.L.J.1933), it was held that:
"In order to see whether there is a contradiction by omission it is
necessary to find out whether the two statements cannot stand
Crl. Appeal Nos.1302/2018 & 677/2019
together. It is also necessary to see whether the statement which
the witness has made in the witness-box should have been made by
him while reporting the matter soon after the incident. If the two
statements made by the witness cannot stand together and the
statements in the court is such that the witness would necessarily
have made at the time of his earlier statement, then alone omission
thereof can be considered to be a contradiction."
15. In cross examination, PW1 denied the suggestion that she
was tutored by the police regarding the matters to be deposed before
the court. It is not known to PW1 whether her elder brother Sunil was
born in the first marriage of her mother. She would say that neither her
father nor her mother told her that her elder brother Sunil is not the son
of her father. PW1 admitted that there used to be quarrel between her
elder brother Sunil and her father for many reasons and that her father
told Sunil not to lie with them in bed. But, she also clarified that her
elder brother Sunil never used to lie with them in bed. PW1 also
admitted that there occurred a quarrel between her father and elder
brother and in the said incident, both of them sustained injuries on their
face. But, she is not aware about the reason for the said quarrel.
16. According to PW1, her father is a coconut climber and mahout
and while working as a mahout, he stayed away from the house for one
month. PW1 further admitted that there used to be quarrel between the
Crl. Appeal Nos.1302/2018 & 677/2019
accused and her grandmother and while she was studying in Class III
and IV, her father, after quarrelling with her grandmother, shifted the
residence to a rented house and subsequently, returned to their house.
PW1 also stated that while she was studying in Class V and VI also, her
father shifted his residence to a rented house at Mamalakandam and
thereafter while she was studying in 6th standard, they again returned
to their house. The evidence of PW1 shows that along with the mother,
they also accompanied the father to the rented house. But her father has
not taken her elder brother and grandmother to the rented house.
17. PW2 is the mother of PW1 and according to PW2, she married
the accused after the death of her first husband. PW2 stated that Sunil is
the son born to her in her first marriage and in her marriage with the
accused, one son and two daughters were born. PW2 stated that
originally they were residing at Ponjassery and thereafter, came to
Mamalakandam. Her daughters, including the victim herein, studied at L.
P School, Mamalakandam up to the 4th Standard and thereafter, they
were admitted in a school at Vallakom.
18. According to PW2, her children stayed in a hostel while
studying at Vallakom School and it was because of the ill-treatment from
the side of the accused, she shifted the victim and her sister to the
hostel at Vallakom and that the victim and her sister used to reach the
Crl. Appeal Nos.1302/2018 & 677/2019
house only during Onam and Christmas vacations. According to PW2, the
accused used to subject the children to ill-treatment after consuming
liquor and she was not aware about the exact nature of the ill-treatment
and her children only told her that their father is behaving in a bad
manner and hence, she transferred her children to the school at
Vallakom and there at the time of counselling, they disclosed the entire
matter to the counsellor and subsequently, she was summoned to the
school and only then she came to know the entire matter from the
teachers. The 164 statement of PW2 recorded by the Magistrate is
marked as Exhibit P3.
19. In cross examination, PW2 stated that whenever the accused
reached the house after consuming liquor, there used to be quarrel
between her mother and the accused. She also admitted that there used
to be quarrel between her elder son Sunil and the accused. PW2 denied
the suggestion that the accused never committed the alleged acts and
that she is falsely deposing against the accused.
20. PW3 was the doctor who examined PW1 on 24.05.2016 at
Taluk Hospital Vaikom and issued Exhibit P4 certificate. The evidence of
PW3 and Exhibit P4 shows that the victim was brought by the police and
on examination, old torn was detected on the hymen. According to PW3,
the alleged history was intercourse several times since 8 years of age at
Crl. Appeal Nos.1302/2018 & 677/2019
her own house by her father and there is evidence of past vaginal
penetration. In cross examination, PW3 admitted that at the time of
examination, the parents of the victim were not present and she has not
obtained written consent of her parents. PW3 also admitted that the
hymen can be torn due to several reasons.
21. PW4 was the Secretary of Kuttampuzha Grama Panchayat
who issued Exhibit P5 ownership certificate of house bearing No. 11/297.
According to PW4, he also issued the birth certificate of the victim girl
and the same is marked as Exhibit P6. The evidence of PW4 and Exhibit
P6 shows that the date of birth of the victim is 01.12.2001. The then
Village Officer of Kuttampuzha Village, who prepared Exhibit P7 site
plan, is examined as PW5.
22. PW8 deposed that on 24.05.2016, he was in charge of the
Circle Inspector in Vaikom Police Station and since the place of
occurrence in Crime No. 966 of 2016 of Vaikom Police Station was
within the limits of Kuttampuzha Police Station, he forwarded the case
file to Kuttampuzha Police Station. PW10 was the Sub Inspector of
Kuttampuzha Police Station who re-registered the case as Crime No. 360
of 2016 of Kuttampuzha Police Station and the said FIR is marked as
Exhibit P10.
Crl. Appeal Nos.1302/2018 & 677/2019
23. PW9 deposed that on 24.05.2016, while working as a Woman
Police Constable in Vaikom Police Station, she produced the victim for
medical examination in Vaikom Taluk Hospital. PW11 was the Circle
Inspector who conducted the investigation of this case from 25.05.2016
and Exhibit P12 is a report filed by him regarding the correct address of
the accused. The arrest memo, inspection memo and custody memo of
the accused are marked as Exhibit P13 series. The scene mahazar
prepared by PW11 is marked as Exhibit P14.
24. PW12 was the Circle Inspector of Kothamangalam Police
Station, who conducted the investigation of this case from 26.05.2016.
According to PW12, he has taken steps for recording the 164 statement
of the victim and also filed a report for adding Section 506(ii) IPC before
the court. The evidence of PW12 further shows that he completed the
investigation and filed the final report.
25. The learned counsel for the appellant argued that the
evidence of PW3, doctor, would show that she has not obtained the
written consent of the parents of the victim before conducting the
examination and therefore, there is violation of Section 164A of Cr.P.C.
The evidence of PW9, Woman Police Constable, would show that the
victim was an inmate of Nirmala Orphanage, Vallakom and it was from
there she produced the victim before the Taluk Hospital, Vaikom for
Crl. Appeal Nos.1302/2018 & 677/2019
medical examination as per the direction of the Station House Officer. It
is true that there is nothing in evidence to show that either PW9 or PW3
doctor has obtained the written consent of the parents of the victim
before conducting the medical examination. But, it is pertinent to note
that there is nothing in the evidence of PWs 1 and 2 to show that the
medical examination of PW1 was conducted without their consent.
26. It cannot be disputed that Section 27 of the Protection of
Children from Sexual Offences, 2012 and Section 164(A) Cr.P.C are
intended to safeguard the interest of the minor victim and therefore, in
the absence of any material to indicate that any prejudice is caused to
the accused in conducting the medical examination of the victim without
a written consent from PW2, her mother, the same cannot be accepted
as a ground to discard the evidence of PW3 and Exhibit P4 medical
certificate.
27. The learned counsel for the appellant argued that the
evidence of PW3 in cross examination would show that hymen can be
torn due to several reasons and therefore, on the basis of the findings in
Exhibit P4 certificate, it is not possible to arrive at a finding that the
victim is not virgin and there is no satisfactory evidence in this case to
prove that there was penetration sufficient to constitute sexual
intercourse. In this connection, the learned counsel for the appellant also
Crl. Appeal Nos.1302/2018 & 677/2019
pointed out that the definition of 'rape' under Section 375 IPC and
'penetrative sexual assault' in Section 3 of the Protection of Children
from Sexual Offences Act, 2012 came into force subsequent to the date
of occurrence in this case and therefore, the same is not applicable for
deciding the question of penetration sufficient to constitute the sexual
intercourse necessary to the offence of rape as provided in the
explanation to Section 375 of IPC prior to the Criminal Law Amendment
Act, 2013.
28. The evidence of PW1 clearly shows that the accused used to
insert his thing used for urinating into that part of her body used for
urinating during night. The relevant portion of the evidence of PW1
before the court is extracted below:
"രാത്രി കിടക്കുമ്പോൾ പപ്പയുടെ മൂത്രമൊഴിക്കുന്ന അവയവം
എന്റെ മൂത്രമൊഴിക്കുന്ന അവയവത്തിൽ കയറ്റും."
The above evidence of PW1 in chief examination is not seen specifically
challenged in cross examination.
29. In Chenthamara v. State of Kerala [2008 (4) KLT 290], it
was held that penile vaginal entry namely actual passing of penis into
the vagina, is not essential to constitute rape and even penile access
towards vagina, without there being any entry of penis into the vagina
Crl. Appeal Nos.1302/2018 & 677/2019
would constitute rape, if penis gets physical contact in that process of
access with any of the external portions of the female genital organ,
such as, vulva, labia majora etc.
30. It is true that no offence under Section 376 IPC can be made
out, unless there was penetration to some extent. However, it is well
settled that a slight degree of penetration of the penis into vagina is
sufficient to hold the accused guilty for the offence under Section 375
IPC punishable under Section 376 IPC. In Tarkeshwar Sahu v. State
of Bihar [(2006) 8 SCC 560], the Honourable Supreme Court held
thus:
To constitute the offence of rape neither Section 375 IPC nor the
explanation attached thereto require that there should necessarily be
complete penetration of the penis into the private part of the
victim/prosecutrix. In other words to constitute the offence of rape it is not
at all necessary that there should be complete penetration of the male
organ with emission of semen and rupture of hymen. Even partial or
slightest penetration of the male organ within the labia majora or the vulva
or pudenda with or without any emission of semen or even an attempt at
penetration into the private part of the victim would be quite enough for
the purpose of Sections 375 and 376 IPC. That being so it is quite
possible to commit legally the offence of rape even without causing any
injury to the genitals or leaving any seminal stains.
31. In this case, the evidence of PW1 that the accused used to
insert his penis into her vagina during night is supported by the evidence
Crl. Appeal Nos.1302/2018 & 677/2019
of PW3, doctor, and Exhibit P4, medical certificate, which shows past
vaginal penetration and old torn to hymen. Even though, PWs 1 to 3
were seriously cross examined, no material contradiction or omission
was brought out and therefore, we find that the evidence of PW1
regarding the occurrence is reliable and trustworthy and the contention
of the appellant that the prosecution has not established penetration
sufficient to constitute sexual intercourse, is not legally sustainable.
32. On the basis of the evidence of PWs 1 and 2 in cross
examination that the accused after quarrelling with the grandmother of
the victim resided in a rented house during the relevant period, it is
argued that since the prosecution has no case that the accused
subjected the victim to sexual intercourse in the rented house, the
accused is entitled to the benefit of reasonable doubt. The learned
counsel for the appellant pointed out that the specific case of the
prosecution is that the accused subjected the victim to sexual
intercourse in a house having building No. 11/297 of Kuttampuzha
Grama Panchayat. It is true that PW1 has admitted that her father, while
working as a mahout, stayed away from the house for one month and
that after quarrelling with her grandmother, the accused shifted the
residence to a rented house and subsequently returned to their house.
The fact that the accused stayed away from the house for short periods
Crl. Appeal Nos.1302/2018 & 677/2019
or that he shifted the residence to a rented house for a short duration
after quarrelling with the grandmother of the victim by itself is not
sufficient to show that he has no access to the victim during the period
of occurrence and therefore, we find that the contention of the appellant
in this regard cannot be accepted.
33. Another contention of the appellant is that there is delay in
registering the FIR. It was pointed out that the alleged period of
occurrence in S.C. No. 61 of 2017 was from June, 2010 to May 2011 and
the alleged period of occurrence in S.C. No. 60 of 2017 was from June,
2011 to May, 2012 and that the FIR in this case was registered only on
24.05.2016. The evidence of PW7, the then Sub Inspector of Vaikom
Police Station, clearly shows that he received Exhibit P9 series reports
from the child-line regarding the sexual abuse of the victim by her father
and accordingly, he directed PW6, Woman Police Sub Inspector, to
record the statement of the victim and further the evidence of PW2, the
mother of the victim, also shows that because of the ill treatment from
the side of the accused, she shifted the victim and her sister to a hostel
at Vallakom and that the victim studied only upto 4 th standard in L.P
School, Mamalakandam and thereafter, the victim and her sister were
admitted in a school at Vallakom and after the victim was transferred to
the school at Vallakom, she disclosed the entire matter to a counsellor in
Crl. Appeal Nos.1302/2018 & 677/2019
the school at the time of counselling and the teacher also informed PW2
regarding the incident, and the evidence of PW2 shows that the victim
has not disclosed the entire incident to her previously and she came to
know the entire incident from the teachers and therefore, considering
the facts and circumstance of the case, we find that there is no
unexplained delay in registering the FIR.
34. Further it is in evidence that the victim girl was aged only 9
years at the time of occurrence and that the accused also threatened her
with a knife not to disclose the incident to anybody else. We find that in
cases of this nature, it cannot be expected that the police would be
informed immediately by the victim, especially in view of the fact that
the victim is a young girl aged only 9 years and that the assailant is her
father.
35. It is well settled that corroboration as a condition for judicial
reliance on the testimony of a prosecutrix is not a matter of law, but a
guidance of prudence under given circumstances as held by the Hon'ble
Supreme Court in Rafiq v. State of U.P. [1980 (4) SCC 262].
36. The testimony of the victim of sexual assault is more reliable
than that of an injured witness, unless there are compelling reasons
which necessitate looking for corroboration of her statement, the court
should find no difficulty in acting on the testimony of the victim of sexual
Crl. Appeal Nos.1302/2018 & 677/2019
assault alone to convict an accused where her testimony inspires
confidence and is found to be reliable. In the absence of any serious
contradiction, omission or exaggeration in the evidence of PW1 before
court and since her evidence tallies with her statement in Exhibit P1 First
Information Statement and Exhibit P2, 164 statement recorded by the
Magistrate, we find that her evidence regarding the occurrence inspires
confidence and it can be relied upon even without seeking further
corroboration.
37. The evidence of PW1 that her date of birth is 01.12.2001 is
not challenged in cross examination. Further the evidence of PW4,
Panchayat Secretary, and Exhibit P6, birth certificate, also shows that
the date of birth of the victim is 01.12.2001 and the said evidence of
PW4 is also not challenged in cross examination. We find that Exhibit P6
birth certificate of the victim and the evidence of PW4 proves beyond
reasonable doubt that the date of birth of PW1 is 01.12.2001 and that
she was a minor at the time of occurrence.
38. In this case, the evidence tendered by PW1 is natural and
consistent with the case of the prosecution. Even though PW1 was
seriously cross examined, the core spectrum of the crime remained
intact throughout the cross examination, and PW1 has not given any
room for any doubt as to the material particulars deposed by her,
Crl. Appeal Nos.1302/2018 & 677/2019
especially in relation to the sexual assault committed on her by her
father. Further, in this case, the sexual abuse took place in the house of
the victim and it cannot be imagined that a young girl of her age would
cook up such a false story against her father in the absence of any
serious grudge or hostility towards him before the occurrence. The
evidence of PW1 in this case has correlation with each and every other
supporting evidence, including the expert opinion given by the doctor
who examined her. Therefore, we have no doubt in our minds that PW1
can certainly be regarded as a sterling witness.
39. Therefore, on a careful re-appreciation of the entire evidence,
we find that the trial court has rightly convicted the accused for the
offences under Sections 376(2)(f) and 506(ii) IPC and Section 23 of the
JJ Act.
40. The learned counsel for the appellant, relying on the dictum in
Mohd. Firoz v. State of Madhya Pradesh [2022 KHC 6432],
submitted that considering the family background and other
circumstances from which the accused comes, the maximum sentence of
imprisonment for life imposed on him for the offence under Section
376(2) (f) of IPC may be reduced as the minimum sentence for the said
offence is only 10 years. In Mohd. Firoz v. State of Madhya Pradesh
[2022 KHC 6432], it was held that the maximum punishment prescribed
Crl. Appeal Nos.1302/2018 & 677/2019
may not always be the determinative factor for repairing the crippled
psyche of the offender and balancing the scales of retributive justice
and restorative justice. Therefore, in the circumstances of the case, we
deem it appropriate to modify the sentence of imprisonment for the
offence under Section 376(2)(f) IPC to be for a period of 20 years
without any remission.
41. In view of Section 427 Cr.P.C and the fact that both the cases
are with respect to the offences committed by the accused against the
same victim, we also deem it appropriate to order that the sentence in
both cases shall run concurrently. The sentence imposed by the trial
court for the remaining offences shall stand confirmed.
In the result both the appeals are partly allowed to the aforesaid
extent alone. Interlocutory applications, if any pending, shall stand
closed.
sd/-
P.B. SURESH KUMAR,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
