Kerala High Court
George @ Shaji vs State Of Kerala on 27 March, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal No. 12/2017 :1:
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 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
CRL.A NO. 12 OF 2017
CRIME NO.558/2012 OF KANNAMALI POLICE STATION, ERNAKULAM
JUDGMENT DATED 03.09.2016 IN SC NO.573 OF 2013 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO
ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM
APPELLANT/ACCUSED PERSON:
GEORGE @ SHAJI
AGED 41 YEARS, S/O JOY, KURISUPARAMBU VEEDU, KANNAMALY,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.K.R.VINOD
SRI.S.ARAVIND
MS.JENCY SUSAN JOSE
SRI.V.SRI NATH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
BY ADVS.
SMT. BINDU O.V., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2024, THE
COURT ON 27.03.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 12/2017 :2:
P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
---------------------------------------------------------
Crl. Appeal No. 12 of 2017
--------------------------------------------------------
Dated this the 27th day of March, 2024.
JUDGMENT
Johnson John, J.
The appellant is the sole accused in S.C. No. 573 of 2013 on
the file of the Additional District and Sessions Judge, Ernakulam and
he is challenging the conviction and sentence passed against him
for the offences under Sections 376 (1) of IPC and Section 67B(e)
of Information Technology Act, 2000 ('Act, 2000' for short) as per
the impugned judgment dated 03.09.2016.
2. The prosecution case, as per the final report, is that the
accused, who is the biological father of the minor victim girl,
subjected her to sexual intercourse forcibly at 4.30 p.m., on
21.10.2010. and thereafter, he continued to subject her to sexual
intercourse on several days for a period of one year and he also
recorded the above act of rape in his mobile phone and thereby,
caused others to see the same and he is thereby, alleged to have
committed the offences punishable under Section 376 (1) IPC and
Section 67B(e) of the Act, 2000.
3. Based on Exhibit P1, First Information Statement of the
victim dated 17.07.2012 recorded by PW10, Exhibit P9 FIR was
registered and thereafter, PW11, Circle Inspector of Mattancherry,
conducted the investigation and filed the final report and the same
was taken on file as S.C. No. 573 of 2013.
4. When the accused appeared before court, he was
furnished with copies of all the prosecution records and after
hearing both sides, charge was framed against the accused for the
offences punishable under Section 376 (1) of IPC and Section
67B(a) and (e) of the Act, 2000.
6. The charge was read over and explained to the accused to
which he pleaded not guilty. Thereafter, the prosecution examined
PWs 1 to 12 and marked Exhibits P1 to P16 and MOs 1 to 3 to
prove the charge against the accused. After the closure of the
prosecution evidence, the accused was questioned under Section
313(1)(b) Cr.P.C regarding the incriminating circumstances
appeared against him in the evidence of prosecution. The accused
denied all those circumstances and stated that he is innocent.
Since it is found that it is not a fit case to acquit the accused under
Section 232 Cr.P.C., he was asked to enter on his defence. But, no
evidence was adduced from the side of the accused.
7. After considering the oral and documentary evidence on
record and after hearing both sides, the learned Additional Sessions
Judge, by the impugned judgment dated 03.09.2016, convicted the
accused and sentenced him to undergo rigorous imprisonment for
life and to pay a fine of Rs.25,000/- and in default of payment of
fine, to undergo rigorous imprisonment for another 5 months for
the offence under Section 376(1) IPC. The accused is also
sentenced to undergo rigorous imprisonment for 5 years and to pay
a fine of Rs.50,000/- and in default of payment of fine, to undergo
rigorous imprisonment for another 10 months for the offence under
Section 67B(e) of Act, 2000.
8. The point that arises for consideration in this appeal is
whether the conviction entered and the sentence passed against the
accused by the trial court are sustainable or not.
9. Heard Sri. Rahul S., the learned counsel representing the
learned counsel for the appellant on record, and the learned Public
Prosecutor, Smt. Bindu O.V. and perused the records.
10. The main argument advanced on behalf of the appellant/
accused is that the sole testimony of PW1 cannot be relied on to
find the accused guilty, especially in view of the fact that PW2, the
mother of the victim, has not supported the prosecution case. It is
argued that the testimony of PW1 is not of sterling quality and that
there is inordinate delay in filing the FIR. It is also argued that the
conviction of the accused for the offence under Section 67B(e) of
the Act, 2000 is not based on any legally acceptable evidence and
that there is no reliable evidence in this case to connect the accused
with MO1, mobile phone, and MO2, memory card.
11. The learned counsel for the appellant relied upon the
dictum laid down in Santhosh Prasad v. State of Bihar [2020
KHC 6155], in which it is held that if conviction has to be based on
the sole testimony of the 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.
12. 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, keeping in mind the principles laid down in the aforesaid
case, it is necessary to consider the arguments of the appellant that
the testimony of PW1 is not of sterling quality and as to whether
the testimony of PW1 suffers from any material discrepancies,
inconsistencies, contradictions or embellishments or in any way
inconsistent with the testimony of other prosecution witnesses.
13. Exhibit P1, First Information Statement, is seen recorded
on 17.07.2012 by PW10, Sub Inspector of Kannamaly Police
Station, and his evidence shows that he recorded the statement of
the victim in the presence of a Women Civil Police Officer. The
victim girl, when examined as PW1, deposed that now she is an
inmate of Vikas Bhavan, Kothamangalam and that while she was
residing with the accused at Kannamaly, he sexually assaulted her
during January, 2010. According to PW1, the accused is her father
and on 21.01.2010, at about 4 p.m., when she came back from the
school, her grandmother has gone to the church and subsequently,
the accused who came there, asked her to change the dress for
going to the church and while she was changing her dress, the
accused entered the room, caught her and forcibly laid her to the
bed and thereafter, subjected her to sexual intercourse.
14. According to PW1, the accused also threatened her not
to disclose the matter to her mother and if in case she discloses the
matter to the mother, he will finish her mother. According to PW1,
thereafter also, the accused subjected her to sexual intercourse on
several days for the next one year and all the said incidents
occurred in their house at Kannamaly. Thereafter, the wife of the
elder brother of her father told her that the sexual acts between her
and the accused are seen in the internet by the friends of the elder
brother of her father and when her mother came to know about the
same, she disclosed the matter to her mother and subsequently, the
police questioned her. PW1 also identified her signature in Exhibit
P1 First Information Statement and Exhibit P2 statement recorded
by the Magistrate under Section 164 Cr.P.C.
15. In cross examination, PW1 denied the suggestion that she
has given Exhibit P2, statement to the Magistrate as directed by the
police. She also denied the suggestion that she made the said
statement as instructed by her uncle. PW1 admitted that she
reached the court along with a Sister of Vikas Bhavan Orphanage.
But, she denied the suggestion that she was tutored by the said
sister regarding the matters to be deposed before the court.
16. PW5 is the wife of the elder brother of the accused. PW5
deposed that she is residing at Kannamaly and on 16.07.2012, she
came to know from her husband that obscene videos of the accused
and PW1 are there in the internet and thereafter, she informed the
matter to the father of the accused and the mother of the victim.
According to PW5, when they questioned PW1, it is revealed that
the accused sexually abused the victim.
17. It is true that PW2, the mother of the victim, turned
hostile to the prosecution and deposed that when she questioned
PW1 on getting information from PW5 regarding the obscene
videos, PW1 has told her that no such incident occurred. Even
though PW2 admitted her signature in Exhibit P3, 164 statement,
and deposing before Magistrate about her husband subjecting PW1
to sexual assault, she would say that she made the said statement
as instructed by the police.
18. PW4 is the brother of PW2. According to PW4, the
accused and PW2 were in love when PW2 was aged 18 years and at
that time, the accused refused to marry PW2 and thereafter, left the
native place and subsequently, returned and married PW2, while
PW1 was studying in class IX.
19. PW6 was the doctor who examined the victim on
17.07.2012 and issued Exhibit P5 certificate stating that there is
evidence of vaginal penetration. PW7 was the doctor who examined
the accused on 18.07.2012 and issued Exhibit P6, potency
certificate, stating that on examination, there was nothing to
suggest that he is incapable of performing sexual acts.
20. It is pertinent to note that the evidence of PW1 before
the court tallies on all material particulars with Exhibit P1, First
Information Statement, and Exhibit P2, 164 statement recorded by
the Magistrate. It is true that there is delay in reporting the matter
to the police and registering the FIR. But, in this connection, it is to
be noted that according to PW1, the accused has threatened her not
to disclose the incident to her mother and if in case she discloses
the incident, he will finish her mother. The evidence of PW1
regarding the occurrence is also supported by the evidence of PWs
4 and 5 and medical evidence of PW6 and Exhibit P5 medical
certificate.
21. 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]. It cannot be disputed that the testimony of the victim of
sexual assault is more reliable than that of an injured witness, and
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 assault alone to
convict an accused where her testimony inspires confidence and is
found to be reliable.
22. Considering the age of the victim girl and the fact that
the incident occurred in her house, while she was alone and that the
accused is her biological father and that he threatened the victim
after the incident not to reveal the matter to anybody else and that
he will finish her mother, if she discloses the incident to her, we find
that in cases of this nature, it cannot be expected that the police
would be immediately informed by the victim ignoring the threat
from the accused, who is none other than her father who is residing
with her and therefore, considering the above facts and
circumstances, we find that there is no unexplained delay in
registering the FIR and the argument of the appellant in this regard
cannot be accepted.
23. In this case, the sexual assault 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 tendered by PW1 appeared to us to be
natural and consistent with the case of the prosecution. Even
though PW1 was seriously cross examined, the core spectrum of the
crime remained intact and she categorically denied the suggestion
that she was tutored by the police and the Sister from the
orphanage who accompanied her to the court. PW1 has not given
any room for any doubt as to the material particulars deposed by
her, especially in relation to the sexual assault committed on her by
her father. The evidence tendered by PW1 has correlation with each
and every other supporting evidence. Therefore, we have no doubt
in our minds that PW1 can certainly be regarded as a sterling
witness.
24. The learned counsel for the appellant argued that the
evidence of PW1 would show that the sexual relationship with the
accused can only be consensual. It is pointed out that there is
nothing to show that there was any resistance from her side and
that the sexual relationship continued for about one year and
Exhibit P1 statement was given only when PW5 has informed about
the obscene video of PW1 and the accused circulating in the
internet.
25. The accused herein is the biological father of the victim
and the occurrence was inside their house and therefore, the mere
act of helpless resignation in the face of inevitable compulsion,
quiescence, non-resistence or passive giving in, when volitional
faculty is either clouded by fear or vitiated by duress, cannot be
deemed to be 'consent' as understood in law and the consent, on
the part of a woman as a defence to an allegation of rape, requires
voluntary participation, not only after the exercise of intelligence,
based on the knowledge, of the significance and moral quality of the
act, but after having freely exercised a choice between resistance
and assent, as held in Rao Harnarain Singh Sheoji Singh v.
State [1958 Crl. Law Journal 563] and Uday v. State of
Karnataka [(2003) 4 SCC 46]. It is well settled that the consent in
order to relieve an act of a criminal character, like rape, must be an
act of reason, accompanied with deliberation, after the mind has
weighed as in a balance, the good and evil on each side, with the
existing capacity and power to withdraw the assent according to
one's will or pleasure.
26. In this case, the evidence of PW1 clearly shows that the
accused entered her room, while she was changing the dress and
he forcibly laid her on the bed and then subjected her to sexual
intercourse and that he also threatened her that if in case she
discloses the incident to anybody else, he will finish her mother and
therefore, according to us, in a situation of this nature, the conduct
on the part of the victim girl in surrendering before the accused as
and when desired by him cannot be said to be unusual or abnormal
and such surrender cannot be construed as consensual acts of
sexual intercourse and therefore, the contention of the appellant in
this regard is not sustainable and we find no reason to interfere
with the finding of the trial court that the accused committed the
offence under Section 376(1) of IPC and considering the facts and
circumstances and the nature of the offence, we also find no reason
to interfere with the sentence imposed by the trial court for the
offence under Section 376(1) of IPC.
27. The learned counsel for the appellant argued that the
finding of the trial court that the accused committed the offence
under Section 67B(e) of the Act, 2000 is without any legally
acceptable evidence to connect the accused with MO1 mobile
phone, and Mo2, memory card. It is pertinent to note that the
specific case of the prosecution is that the accused recorded the
sexual acts in his mobile phone and caused others to see the same.
The evidence of PW11, the then Circle Inspector of Mattancherry
Police Station, shows that he seized MO1, mobile phone, said to be
used by the accused, when the same was produced by PW2, as per
Exhibit P4 mahazar on 19.07.2012.
28. In cross examination, PW11 admitted that he has not
produced any document to prove the IMEI number of the mobile
phone or as to who was the subscriber of the SIM card used in the
said mobile phone. Even though PW11 deposed in cross
examination that he also produced the memory card of the mobile
phone, he cannot say, which company manufactured the same or its
capacity.
29. PW12 was working as a Civil Police Officer in Cyber Cell,
Cochin and according to him, he copied the video clipping in the
memory card of a mobile phone to a CD as per the direction of the
Circle Inspector. At the time of examination of PW12 before the
court, MO3, CD, could not be played before the court as it was
found broken. In cross examination PW12 admitted that only if
scientific examination is conducted in Cyber Forensic Lab, it can be
ascertained as to whether the obscene video in MO2, memory card,
was recorded by using MO1, mobile phone. PW12 also cannot say
the date on which MO2, memory card, was activated.
30. As noticed earlier, PW2 has turned hostile to the
prosecution. According to PW2, she has not stated to the police that
one mobile phone of her husband is lost and she also cannot
remember the mobile number of her husband. There is nothing in
the evidence of PW2 to show that MO1 is the mobile phone of the
accused.
31. Therefore, we find force in the argument of the learned
counsel for the appellant that the prosecution has not adduced any
legally acceptable evidence to connect the accused with MO1,
mobile phone, and MO2, memory card. Therefore, we find that the
finding of the trial court that the accused committed the offence
under Section 67B(e) of the Act, 2000 is not legally sustainable and
the same is liable to be set aside.
32. Therefore, while confirming the conviction and sentence
imposed against the appellant/accused for the offence under
Section 376(1) of IPC, the conviction and sentence passed against
him for the offence under Section 67B(e) of the Act, 2000 is set
aside.
In the result, this appeal is allowed in part as above.
Interlocutory applications, if any, pending shall stand closed.
sd/-
P.B. SURESH KUMAR,
JUDGE.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
APPENDIX
APPELLANT'S ANNEXURE:
ANNEXURE A1: THE ORIGINAL OF THE DEATH CERTIFICATE ISSUED BY ST.
ANTONY'S CHURCH, KANNAMALY, KOCHI.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
PS To Judge
rv
