Kerala High Court
Balakrishnan vs The Sub Inspector Of Police on 25 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:79491
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.A NO. 967 OF 2017
AGAINST THE JUDGMENT DATED 21.10.2017 IN SC NO.135 OF
2014 OF THE ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM
APPELLANT/5TH ACCUSED:
BALAKRISHNAN,
S/O.VIKKARI, PUTHUVALSTHALATHU HOUSE,
PUTHUVYPE, ERNAKULAM DISTRICT.
BY ADVS.
SRI.T.G.RAJENDRAN
SMT.ANN SUSAN GEORGE
SRI.T.R.TARIN
SRI.V.A.VINOD
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE,
NJARAKKAL POLICE STATION, ERNAKULAM DISTRICT -
682 056.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. 682 031.
SMT.BINDU O.V. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2024 ALONG WITH CRL.A.352/2018 AND CRL.A.239/2019,
THE COURT ON 25.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.967 of 2017 and connected cases
2024:KER:79491
-: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.A NO. 352 OF 2018
AGAINST THE JUDGMENT DATED 21.10.2017 IN SC NO.135 OF
2014 OF THE ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM
APPELLANT/1ST ACCUSED:
ROCKEY
AGED 68 YEARS, S/O.RAPHEL, SRAMBIKKAL HOUSE,
NAYARAMBALAM VILLAGE, ERNAKULAM DISTRICT.
BY ADVS.
P.MOHAMED SABAH
LIBIN STANLEY(K/250/2015)
SAIPOOJA(K/001130/2016)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY ADV.SMT.BINDU O.V. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2024 ALONG WITH CRL.A.967/2017 AND CRL.A.239/2019,
THE COURT ON 25.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.967 of 2017 and connected cases
2024:KER:79491
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.A NO. 239 OF 2019
AGAINST THE JUDGMENT DATED 21.10.2017 IN SC NO.135 OF
2014 OF THE ADDITIONAL DISTRICT & SESSIONS COURT,
ERNAKULAM
APPELLANT/2ND ACCUSED:
SINDHU
AGED 38 YEARS, W/O.BABU, PUTHUVALSTHALATHU
HOUSE, PUTHUVYPE VILLAGE, ERNAKULAM DISTRICT,
NOW UNDERGOING IMPRISONMENT IN WOMENS PRISON,
VIYOOR, THRISSUR DISTRICT, PIN - 680 010.
(F.C.NO.180).
BY ADV MANJU ANTONEY
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
NJARAKKAL POLICE STATION. (CRIME NO.1275/2012 OF
NJARAKKAL POLICE STATION), THROUGH PUBLIC
PROSECUTION HIGH COURT OF KERALA, ERNAKULAM,
PIN- 682 031.
SMT.BINDU O.V. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2024 ALONG WITH CRL.A.967/2017 AND CRL.A.352/2017,
THE COURT ON 25.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.967 of 2017 and connected cases
2024:KER:79491
-: 4 :-
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
-----------------------------------------------
Crl.Appeal Nos.967 of 2017, 352 of 2018
and
239 of 2019
-----------------------------------------------
Dated this the 25th day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The above appeals arise from S.C. No.135 of 2014
on the files of the Additional District and Sessions Court,
Ernakulam. There were five accused in the case. Accused 1, 2
and 5 among them, are the appellants in the appeals. Accused
3 and 4 in the case were though convicted and sentenced
under Section 354 IPC, they have not preferred any appeal
challenging their conviction and sentence in the case. Among
the appellants, the first accused stands convicted and
sentenced under Section 376(1) of the Indian Penal Code (IPC),
the second accused stands convicted and sentenced under
Section 109 read with Sections 354 and 376(1) IPC as also
under Section 23 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 and the fifth accused stands convicted and
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sentenced under Sections 354 and 376(1) IPC.
2. The second accused is the mother of the
victim. The father of the victim is no more. The first accused
was a regular visitor in the house of the second accused. The
fifth accused is a person running a shop in the close proximity
of the house of the victim. The case which culminated in the
conviction of the accused was one registered at the instance of
the Child Welfare Committee, Ernakulam. In the final report, it
was alleged that the victim was aged only 9 years.
3. When the accused were committed to trial on
the final report being filed in the case, the Court of Session
framed the following charges against them:
First:- That, in the month of August 2012, from the kitchen of
the house of the 2nd accused, having building number,
Elamkunnapuzha gramapancyayat XVII/341, situated on the
southern side of Beach Road, near to the Murikumpadam
Belbo Street, Vypin-Munambam State Highway, you the 1st
accused, with the knowledge and consent of the 2nd accused,
had sexual intercourse with CW2, daughter of the 2nd
accused, a girl child aged 9 years, three times repeatedly and,
thereby you have committed the offence, rape, punishable
u/s. 376 (2) (f) of IPC, within my cognizance.
Secondly:- That, in the month of May 2012, from the
same place, with the knowledge and connivance of the 2nd
accused, you the third accused, had sexual intercourse with
CW2, two times repeatedly and, thereby you have committed
the offence, rape, punishable u/s.376 (2) (f) of IPC, within my
cognizance.
Thirdly:- That, in the month of July 2012, from the north
eastern bedroom of the above house of 2nd accused, with the
knowledge and connivance of the 2nd accused, you the 4th
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accused, had sexual intercourse with CW2, two times
repeatedly and, thereby you have committed the offence,
rape, punishable u/s. 376 (2) (f) of IPC, within my cognizance
Fourthly:- That, in the months of March and April 2012,
you the 5th accused, from your shop room having building
number Elamkunnapuzha Panchayat XVII/152, situated on the
northern side of the Beach Road, Murikkumpadam Belbo
Street, with the intention of outraging the modesty, caught
the private parts of CW2 and, thereby you have committed
the offence punishable u/s. 354 of IPC, within my cognizance.
Fifthly:- That, during the same period, time and place,
you the 5th accused, had taken her to the terrace of the
above building and with the intention of committing unnatural
offence, had carnal intercourse against the order of nature
with CW2, by inserting your penis into her mouth and, thereby
also committed the offence punishable u/s. 377 of IPC, within
my cognizance.
Sixthly:- That, during the same period, time and place,
you the 5th accused, had taken CW2 to the terrace of your
above building and had sexual intercourse with her,
repeatedly, by laying her on the floor and, thereby also
committed the offence, rape, punishable u/s.376 (2) (f) of IPC,
within my cognizance.
Seventhly:- That, you the 2nd accused, being the
mother of CW2, had intentionally aided the accused A1, A3 to
5, to have sexual intercourse with CW2 and A5 to commit
unnatural offence and also received cash from the 1st and 3rd
accused and, thereby you have committed the offence,
abetment, punishable u/s. 109 r/w 354, 377, 376 (2) (f) of IPC,
within my cognizance.
Eighthly:- That, you the 2nd accused, being the mother
of CW2, had given her to the accused A1, A3 to 5, for having
sexual intercourse and, thereby you have also committed the
offence punishable u/s. 372 of IPC, within my cognizance.
Ninethly:- That, you the 2nd accused, being the mother
and bound to give protection to CW2, a girl child of 9 years,
have subjected her to unnecessary physical and mental
suffering by giving her to the accused A1, A3 to 5, for having
sexual intercourse and, thereby committed the offence
punishable u/s. 23 of the Juvenile Justice (Care and protection
of Children) Act, 2000, within my cognizance.
The accused pleaded not guilty of the charges. The
prosecution, thereupon, examined 21 witnesses as PW1 to
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PW21 and proved through them 23 documents as Exts.P1 to
P23. On the closure of the prosecution evidence, the appellants
were questioned under Section 313 of the Code of Criminal
Procedure (the Code) and they denied the incriminating
circumstances brought out in the evidence of the prosecution.
As the Court of Session did not find the case to be one fit for
acquittal under Section 232 of the Code, the appellants were
called upon to enter on their defence. At that stage, the
accused examined two witnesses on their side as DW1 and
DW2 and proved through them three documents as Exts.D1 to
D3. Thereupon, on an evaluation of the matters before it, the
Court of Session found accused 1 and 5 guilty of the offence
punishable under Section 376(1) IPC, accused 3 to 5 guilty of
the offence punishable under Section 354 IPC and the second
accused guilty of the offences punishable under Section 109
read with Sections 354 and 376(1) IPC as also under Section 23
of the Juvenile Justice (Care and Protection of Children) Act,
2000. They were accordingly convicted for the said offences
and acquitted of all the remaining charges. The first accused
was consequently sentenced to undergo imprisonment for life
and pay fine for the offence under Section 376(1) IPC.
Crl.Appeal Nos.967 of 2017 and connected cases
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Likewise, the second accused was sentenced to undergo
rigorous imprisonment for 10 years and pay fine for the
offence punishable under Section 109 IPC read with Section
376(1) IPC, rigorous imprisonment for one year and pay fine for
the offence punishable under Section 109 read with Section
354 IPC and rigorous imprisonment for six months and pay fine
for the offence punishable under Section 23 of the Juvenile
Justice (Care and Protection of Children) Act, 2000. Similarly,
the fifth accused was sentenced to undergo rigorous
imprisonment for 7 years and pay fine for the offence
punishable under Section 376(1) IPC and rigorous
imprisonment for one year and pay fine for offence punishable
under Section 354 IPC. The appellants are aggrieved by their
conviction and sentence in the said case, hence these appeals.
4. Heard Adv.Saipooja, the learned counsel for
the first accused, Adv.Manju Antoney, the learned counsel for
the second accused and Adv.T.G.Rajendran, the learned
counsel for the fifth accused. The learned Public Prosecutor
addressed arguments on behalf of the State.
5. The point that falls for consideration is
whether the conviction of accused 1, 2 and 5 and the sentence
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passed against them in the case are sustainable in law.
6. The learned counsel for the first accused
raised four contentions. The first and foremost of which was
that the testimony of the victim is not reliable as it is not of a
sterling quality. It was also contended by the learned counsel
that the investigation in the case was faulty and improper. It
was further contended by the learned counsel that the Child
Welfare Committee and its officers made attempts to create a
false case against the first accused. Lastly, it was contended
by the learned counsel that at any rate, the subject crime
being a crime committed prior to the amendment made to
Section 376 IPC in terms of Criminal Law (Amendment) Act,
2013, the punishment inflicted on the first accused is too
harsh, especially having regard to the fact that the first
accused is a person aged 74 years.
7. The learned counsel for the fifth accused
adopted all the contentions taken by the learned counsel for
the first accused. In addition, it was contended by the learned
counsel that the fifth accused is the next door neighbour of the
victim, who runs a shop, and in spite of that, the victim did not
implicate him in the First Information Statement. According to
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the learned counsel, the evidence tendered by the victim as
against the fifth accused, in the circumstances, is liable to be
rejected. That apart, it was also contended by the learned
counsel that the specific case of the prosecution is that the
fifth accused committed rape on the victim twice, once inside
the shop and on another occasion on the terrace of the shop
building. It was argued by the learned counsel that it has come
out in evidence that the fifth accused is a person working in
the Naval Base, Ernakulam and the shop is one run by the wife
of the fifth accused. According to the learned counsel, it is
impossible, therefore, for the fifth accused to commit rape on
the victim as alleged by the prosecution. It was also contended
by the learned counsel that there is no allegation in the charge
as regards the dates on which and the time at which the fifth
accused committed rape on the victim and without there being
any such particulars in the charge, the Court of Session acted
illegally in convicting the fifth accused.
8. The learned counsel for the second accused
contended that the conviction of the second accused under
Section 109 IPC is unsustainable in law inasmuch as the proved
facts do not show that the second accused intentionally aided
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the first accused to commit sexual intercourse with the victim.
The learned counsel also contended that the punishment is too
harsh in the light of the background of the parties.
9. In the light of the various contentions raised
by the learned counsel for accused 1, 2 and 5, it is necessary
to delve deep into the evidence let in by the prosecution. PW1
is the victim in the case. PW1 deposed that while she was
residing with her mother at Murikkumpadam, the first accused
used to visit their house and commit sexual intercourse with
her mother. The conduct aforesaid of the first accused was
expressed by the victim in her own words by stating that the
first accused used to penetrate his sexual organ into the
vagina of her mother and also hold her breasts. It was deposed
by the victim that the first accused used to commit the same
acts on her as well at their house. It was deposed by the victim
that the fifth accused was a person running a shop in the
neighbourhood of their house and that he also committed the
same acts on her twice as done by the first accused, once
inside his shop and on another occasion on the terrace of the
shop building, after making her lie down and removing her
clothes. It was deposed by the victim that when the first
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accused committed the acts aforesaid, her mother was present
in the house and even though she cried out of pain, her mother
did not take it seriously. It was further deposed by the victim
that when she complained to her mother about the pain on her
private parts also, her mother did not respond. It was deposed
by the victim that when the first accused used to commit such
acts, her mother would stand at the door to ensure that her
brother is not coming. It was deposed by the victim that she
complained to her Anganwadi teacher and also to the Child
Welfare Committee about the pain on her private parts and her
inability to walk properly. It was admitted by the victim that
Ext.P1 is the statement given by her before the Child Welfare
Committee. PW1 also confirmed that Ext.P2 is the statement
given by her before the Magistrate. The victim identified
accused 1 and 5 in the dock. In cross-examination, the victim
conceded that she is unable to recollect the dates when the
first accused assaulted her. She however, stated that she was
taken to the Child Welfare Committee on 24.08.2012.
10. PW2 was an Asha Worker attached to
Puthuvype Public Health Centre. PW2 deposed that she met
the victim when PW2 went to the Anganwadi near the
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residence of the victim to give polio vaccine to children during
February, 2012 and when she enquired with the victim as to
the reason for not wearing an undergarment, the victim told
PW2 that that she is not wearing an undergarment as
instructed by her mother so as to enable the visitors of her
mother to commit sexual assault on the victim as well. It was
deposed by PW2 that she informed the matter to the
Anganwadi teacher and also to the Health Inspector. PW3 is
the Anganwadi teacher referred to by PW2 in her evidence.
PW3 gave evidence on similar lines of the evidence given by
PW2. PW10 is the Health Inspector referred to by PW2. She
also gave evidence on similar lines of the evidence tendered
by PW2. In addition, it was deposed by PW10 that on the basis
of the information given by PWs 2 and 3, PW10 went to the
school of the victim and informed the matter to her
headmistress and from the school, the matter was informed to
the Child Welfare Committee.
11. PW9 was the Gynaecologist attached to the
General Hospital, Ernakulam during 2012. PW9 deposed that
on 18.08.2012, he did a gynaecology examination on the
victim on the basis of the request of the Child Welfare
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Committee, Ernakulam and no ailments could be detected.
Ext.P4 is the certificate issued by PW9 in this regard. It was
clarified by PW9 in his evidence that it is only when they are
informed that the patient is a rape victim, will a certificate be
issued in the proper form as issued in respect of rape victims,
indicating that he was not informed of the fact that the girl was
a victim of sexual abuse. PW13 was a Gynaecologist attached
to St.Joseph's Hospital, Kothamangalam. PW13 deposed that
on 24.01.2013, she examined the victim who was brought
there from Dharmagiri Vikas Centre at the instance of Child
Welfare Committee, Ernakulam, with the history of sexual
abuse, and on examination, it was noticed that her hymen was
absent, vaginal introitus open and yellowish discharge coming
from within mild candidiasis from the vaginal introitus and she
issued Ext.P6 certificate opining that the victim was sexually
abused.
12. PW15 was the president of Kothamangalam
Dharmagiri Vikas Society which is a women and children
welfare centre. PW15 deposed that while the victim was
staying at the Centre, she complained about irritation in her
private parts and it was accordingly that she was taken first to
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Dharmagiri St.Josephs Hospital. It was also deposed by PW15
that later the victim was taken to Kottayam Medical College
also for treatment.
13. PW16 was the chairperson of the Child Welfare
Committee, Ernakulam during 2012. She deposed that it was
she who took the statement of the victim and forwarded the
same to the police. PW16 identified Ext.P1 as the statement
given by the victim and Ext.P9 as the covering letter issued by
her. It was clarified by PW16 that the victim was initially sent to
the Government Girls Home and later to Dharmagiri Vikas
Centre, Kothamangalam and thereafter to SOS Village, Aluva
by the Child Welfare Committee. Even though it was stated by
PW16 in the cross-examination of accused 1, 2 and 4 that the
victim was brought to the Child Welfare Committee on
13.08.2012, it was stated by PW16 in the cross-examination of
the fifth accused that she does not remember the date on
which the victim was brought before the Child Welfare
Committee. It was clarified by PW16 that the victim was taken
to the General Hospital and also to St.Joseph's Hospital as she
was not well, indicating that it was not for the purpose of
obtaining an opinion on the question whether the victim was
Crl.Appeal Nos.967 of 2017 and connected cases
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subjected to sexual abuse, she was sent to the said hospitals.
14. PW17 was the police officer who conducted
the investigation and submitted the final report in the case.
PW17 deposed the said fact in his evidence. It is seen that
when the matter was taken up before the Court of Session, the
Public Prosecutor filed an application under Section 173(8) of
the Code for further investigation and the same was allowed.
PW18 was the police officer who conducted further
investigation in the case. It was thereupon that the statement
of PW16, the chairperson of the Child Welfare Committee was
recorded and the certificates of examination of the victim by
PW9 and PW13 were seized and produced before the court by
PW18. PW19 was the police officer who took over the
investigation from PW18. PW19 filed the supplementary final
report after the further investigation.
15. As noted, two witnesses were examined on the
side of the accused as DW1 and DW2. Among them, DW2 was
the Associate Professor of Kottayam Medical College who
examined the victim when she was taken there for treatment.
It was deposed by DW2 that she examined the victim on
06.02.2013 and issued Ext.D3 certificate. According to DW2,
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even though the victim was brought to her with a history of
sexual abuse, on examination, there were no injuries anywhere
on her body and DW2 did not, therefore, give any opinion on
the question whether the victim was subjected to sexual
abuse.
16. It is based on the evidence discussed in the
preceding paragraphs that the Court of Session arrived at the
conclusion referred to in paragraph 3 above. Even though the
specific case of the prosecution was that the victim was a
minor girl aged 9 years, accused 1 and 5 are convicted only
under Section 376(1) IPC as the prosecution failed to prove the
age of the victim.
17. Let us now consider the point. Ext.P4
certificate issued by PW9 does not help the prosecution in any
manner. As clarified by PW15, Ext.P6 certificate was not one
issued by PW13 on a reference made by the Child Welfare
Committee for opinion on the question whether the victim was
subjected to sexual abuse. Ext.P6 was a certificate issued
when the victim was taken to PW13 for treatment when there
was a yellowish discharge from her vagina. Be that as it may,
PW13 examined the victim on 24.01.2013. It was immediately
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thereafter on 06.02.2013, DW2 examined the victim. DW2 did
not issue a certificate opining that the victim was subjected to
sexual abuse. PW13 is a private doctor, whereas DW2 is an
Associate Professor attached to the Government Medical
College Hospital, Kottayam. Since DW2 did not give any
opinion that the victim was subjected to sexual abuse, despite
the fact that she noticed during her examination that the
hymen of the victim was not intact, we are of the view that it is
not safe to place reliance on Ext.P6 certificate issued by PW13
to hold that the victim was subjected to sexual abuse. In other
words, there is no medical evidence to corroborate the case of
the prosecution that the victim was subjected to sexual abuse
by several persons. Needless to say, in order to prove the case
of sexual abuse, prosecution has only the oral evidence
tendered by the victim.
18. No doubt, 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 a rape victim, such
evidence shall be of 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
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witness. Paragraph 22 of the judgment of the Apex Court in the
said case relied on by the learned counsel for the first accused
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."
As evident from the decision of the Apex Court, before acting
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upon the sole testimony of a victim in a case of rape to convict
the accused, it should be ensured that the version of the victim
on the core spectrum of the crime is truthful and remained
intact all throughout, right from her first statement till her
deposition in the Court, and that the same shall, under no
circumstances, give room for any doubt as to the factum of the
occurrence.
19. The evidence adduced by the prosecution in
the case reveals that after the death of the father of the victim,
the second accused, viz, the mother of the victim was leading
a wanton life and the first accused was a regular visitor in her
house. The evidence also reveals that the fifth accused was
running a shop in the close proximity of the house of the
victim. Even though PW2 deposed that the victim informed her
about the sexual abuse to which she was subjected to, it is not
clear from the evidence of the said witness as to what was the
information that was passed on to her by the victim. But, what
is discernible from the evidence of PW2 is that she entertained
a doubt as to whether the victim was subjected to sexual
abuse by the visitors at her house and it was that information,
she passed on to PW3. It has come out that PW3 passed on the
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said information to PW10, the Health Inspector. As noted, the
stand taken by PW10 was that she passed on the information
gathered from PW2 to the Headmistress of the school where
the victim was pursing her studies then. The Headmistress of
the school was not examined in the proceedings. What was
stated by PW10 in her evidence is only that when she informed
the matter to the Headmistress, PW10 made arrangements for
counselling the victim through the Child Welfare Committee.
The Chairperson of the Child Welfare Committee who was
examined as PW16 categorically stated that the victim had not
divulged anything about sexual abuse initially and that it was
at a later point of time that she disclosed that she was
subjected to sexual abuse and rape by those who visited her
mother. It was at that point of time, the Child Welfare
Committee recorded the statement of the victim and
forwarded the same to the police. As noted, Ext.P9 is the
communication addressed by PW16 to the police. Ext.P9
indicates that the statement was forwarded to the Circle
Inspector of Police, Njarakkal on 24.08.2012 and he, in turn
forwarded the same to the Sub Inspector of Police, Njarakkal
on 01.09.2012 and the case was registered on 03.09.2012.
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Even though the police took steps thereupon to record the
statement of the victim under Section 164 of the Code, the
police had not taken steps to conduct the medical examination
of the victim. The explanation offered by PW17, the
investigating officer in this regard is that steps were not taken
to conduct medical examination of the victim since she was
subjected to the same by PW9 earlier on 18.08.2012 at the
instance of the Child Welfare Committee. The question whether
the victim in this case can be considered as a sterling witness
needs to be examined in the above background.
20. We have scrutinised, thoroughly, the evidence
in the case. We do not find any reason to disbelieve the
evidence tendered by the victim as regards the alleged acts of
rape committed on her by accused 1 and 5. As noticed, among
them, the first accused is a person who used to visit the house
of the victim regularly and the fifth accused was a person
running a shop in the close proximity of the house of the
victim. True, the victim has not specifically mentioned the
name of the fifth accused in Ext.P1. A close reading of Ext.P1
would indicate that the essence of the same is that those who
are visiting the house of the victim are subjecting her to sexual
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abuse and that her mother is not protecting her. The
perpetrators are described generally in Ext.P1 as "ച ടന ർ". Of
course, it is stated therein that the first accused used to visit
everyday. According to us, inasmuch as Ext.P1 statement
pertains to the events that were taking place in her house, the
omission on her part in mentioning the name of the fifth
accused, is not of much significance. We take this view for the
reason that the victim has not only mentioned the name of the
fifth accused in Ext.P2 statement given under Section 164 of
the Code, but also mentioned therein the background in which
the fifth accused committed rape on her, including the
particulars of the places at which the fifth accused committed
rape on her. The evidence tendered by the victim was
consistent with her previous statements in Exts.P1 and P2 and
the materials brought out in the cross-examination, do not give
any room for doubt as to the factum of the overt acts
attributed to accused 1 and 5. On the other hand, the evidence
of the victim appeared to us to be truthful and natural in the
background in which the victim was brought up. Needless to
say, the victim in the case can be regarded as a sterling
witness and her evidence can certainly be acted upon.
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21. It is trite that if the investigation in a case is
faulty, the evidence in the case will have to be scrutinised
independently of the faulty investigation; otherwise criminal
trial will descend to the investigating officer ruling the roost
and if the court is convinced that the evidence of an
eyewitness is true, it is free to act upon such evidence. It is
apposite in this context to refer to the judgment of the Apex
Court in State of Karnataka v. K.Yarappa Reddy, (1999) 8 SCC
715). Paragraph 19 of the said judgment reads thus:
"19. But can the above finding (that the station house diary is
not genuine) have any inevitable bearing on the other
evidence in this case? If the other evidence, on scrutiny, is
found credible and acceptable, should the Court be influenced
by the machinations demonstrated by the investigating officer
in conducting investigation or in preparing the records so
unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial scrutiny in a
criminal trial, the conclusion of the court in the case cannot
be allowed to depend solely on the probity of investigation. It
is well-nigh settled that even if the investigation is illegal or
even suspicious the rest of the evidence must be scrutinized
independently of the impact of it. Otherwise the criminal trial
will plummet to the level of the investigating officers ruling
the roost. The court must have predominance and pre-
eminence in criminal trials over the action taken by
investigating officers. Criminal justice should not be made a
casualty for the wrongs committed by the investigating
officers in the case. In other words, if the court is convinced
that the testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating officer's
suspicious role in the case."
Reverting to the facts, we are of the opinion that this case
could have been investigated in a better manner. We have
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already indicated that despite the statement given by the
victim that she was subjected to sexual abuse by the visitors in
her house, steps were not taken for her medical examination.
As already indicated, the lame excuse stated by the
investigating officer for not doing so was that the victim was
examined by PW9 earlier. Had the investigating officer been
vigilant in the investigation, it would have been very easy for
him to come to the conclusion that PW9 was never informed
when the victim was taken to him that she is a victim of child
abuse. Similarly, no material is placed before the court from
which it could be inferred as to the circumstance under which
the care and protection of the victim was taken over by the
Child Welfare Committee and the purpose for which her
custody was taken over. There are serious lapses in the
conduct of the case on behalf of the prosecution as well. A lot
of facts which needed clarification to enable the court to come
to a right conclusion on the factual aspects of the case, are left
unclarified. Be that as it may, the question is whether the
accused are entitled to the benefit of such faulty investigation
and faulty prosecution. According to us, inasmuch as the
evidence tendered by the victim was found acceptable and
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satisfied the requirements of law, such lapses cannot enure to
the benefit of the accused. The argument advanced by the
learned counsel for the first accused in this regard is only to be
rejected and we do so.
22. It is seen that the contention that the Child
Welfare Committee and its officers have made attempts to
create a false case against the first accused is pressed solely
based on the fact that PW16, the Chairperson of the Child
Welfare Committee came to give evidence in the case, without
bringing the records. If the first accused was prejudiced on
account of the said conduct of PW16, he should have resorted
to the recourse available to him under law to remedy the
same. Without taking recourse to such courses of action, the
first accused cannot be heard to contend that any prejudice
has been caused to him.
23. As noticed, one of the arguments advanced by
the learned counsel for the fifth accused is that the fifth
accused was employed elsewhere; that his wife is running the
shop located in the close proximity of the house of the victim
and that the case set out by the prosecution that the fifth
accused committed rape on the victim inside the shop and also
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on the terrace of the shop building is therefore, not believable.
There is no satisfactory evidence in the case to show that the
fifth accused was employed elsewhere. The categoric evidence
given by the victim is that the fifth accused is running the shop
and it is only when he goes to the market, his wife would be
present at the shop. This part of the evidence of the victim is
not seen cross-examined by the counsel for the fifth accused. If
that be so, the fifth accused cannot be heard to contend that
the case of the prosecution, qua the fifth accused, is not
believable. Another argument advanced by the learned
counsel for the fifth accused relates to the non-mentioning of
the date and time of the alleged occurrences by the victim.
The charge as against the fifth accused is that he committed
rape on the victim during the months of March and April, 2012.
True, the victim has not stated in her evidence the period
during which and the time at which the fifth accused
committed rape on her. We do not think that merely on
account of that reason, the evidence tendered by the victim is
liable to be rejected, especially when the fifth accused has no
case that any prejudice has been caused to him on account of
the omission on the part of the victim in specifying the dates
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on which and time at which the alleged acts of rape were
committed by him. In cases of this nature, where girls of tender
age are compelled to have sexual intercourse with several
people from time to time, it is unreasonable to expect from
them, the precise dates on which a particular individual had
sexual intercourse with them [See Chittaranjan Das v. State of
W.B., AIR 1963 SC 1696]. The aforesaid contention of the fifth
accused, in the circumstances, is also liable to be rejected.
24. The argument advanced by the learned
counsel for the second accused is that the facts proved in the
case, even assuming that the same would establish the guilt of
accused 1 and 3 to 5, do not show that the second accused
abetted the crime committed by the said accused. As noted,
the charge against the second accused is that she intentionally
aided accused 1 and 3 to 5 to have sexual intercourse with her
daughter. As already noticed, the age of the victim has not
been proved in the case. The evidence reveals that the first
accused committed rape on the victim forcefully in the
presence of the second accused and the second accused used
to receive money from him and others after permitting them to
have sexual intercourse with the victim. The evidence also
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reveals that the brother of the victim had once assaulted the
first accused and the second accused would therefore stand at
the door of the house when the first accused and others used
to commit rape on the victim to ensure that the brother of the
victim is not coming. The argument advanced by the learned
counsel is that one could be said to be intentionally aiding the
commission of a thing, in the context of the offence of
abetment, only if he does so by any act or illegal omission.
According to the learned counsel, the fact that the offence was
committed in the presence of the second accused would not
amount to an act or illegal omission to constitute abetment.
Likewise, it was argued that the fact that the second accused
collected money from the first accused and others for having
permitted them to have sexual intercourse with the victim,
would also not amount to an act in order to constitute
abetment, since the same is admittedly done after the
commission of the crime. It was argued by the learned counsel
that though the second accused was obliged morally to
prevent the first accused from committing rape on her
daughter, the omission on the part of the second accused to do
so, cannot be regarded as an illegal omission in order to attract
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the offence punishable under Section 107 IPC. The relevant
portion of Section 107 IPC reads thus:
107. Abetment of a thing
A person abets the doing of a thing, who--
First -- Instigates any person to do that thing; or
Secondly -- Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
Thirdly -- Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1:-- xxx xxx xxx
Illustration
xxx xxx xxx
Explanation 2:-- Whoever, either prior to or at the time of
the commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitate the commission
thereof, is said to aid the doing of that act.
No doubt, as rightly contended by the learned counsel, one
could be said to be intentionally aiding the commission of a
thing only when he does so by any act or illegal omission.
Black's Law Dictionary defines the word "Aid" thus:
"Aid. To support, help, assist or strengthen. Act in cooperation
with; supplement the efforts of others. State v. Upton, lowa,
167 N.W.2d 625, 628"
Similarly, the said dictionary defines "Aid and abet" thus:
"Aid and abet. Help, assist, or facilitate the commission of a
crime, promote the accomplishment thereof, help in
advancing or bringing it about, or encourage, counsel, or
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incite as to its commission. State v. Fetters, lowa, 202 N.W.2d
84, 90. It comprehends all assistance rendered by words acts,
encouragement, support, or presence, actual or constructive,
to render assistance if necessary."
In the light of the meaning of the word "aid" as also its
meaning in the context of the offence of abetment as referred
to above, we have no doubt in our minds that the proved
conduct of the second accused in the case would establish that
the second accused intentionally aided the commission of the
crime, for her conduct in facilitating the accused in committing
the crime in her own house in her presence, that too, by
ensuring that her son who is against such acts, does not come
in the way, would amount to an act that would fall within the
scope of Section 107 IPC. It is all the more so, in the light of
Explanation 2 to the Section which clarifies that whoever,
either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and
thereby facilitate the commission thereof, is said to aid the
doing of that act. The contention of the learned counsel for the
second accused, in the circumstances, is only to be rejected
and we do so.
25. What remains to be considered is the
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argument advanced by the learned counsel for accused 1 and
2 that the sentence imposed on them is harsh and excessive.
No doubt, the crime which is the subject matter of the case
was one committed prior to the Criminal Law (Amendment)
Act, 2013. The mandatory minimum sentence prescribed for
the offence then under Section 376 IPC was only imprisonment
for a period of seven years and fine. In the light of the proviso
to Section 376(1), as it stood then, the court had even power
to impose a sentence for imprisonment for a term less than
seven years for adequate and special reasons to be
mentioned. The materials on record indicate that the parties
come from the rustic background and the first accused was
aged about 60 years at the time of the occurrence. As noted,
the occurrence took place in the year 2012. From the materials
available, it can also be inferred that social and economic
circumstances must have prompted the second accused to
lead a wanton life after the death of her husband. In the
circumstances, we are of the view that any punishment above
the minimum mandatory punishment would be too harsh in a
case of this nature.
In the result, Crl.A.Nos.352 of 2018 and 239 of 2019
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are allowed in part, confirming the conviction of the appellants
and reducing the sentence imposed on them to rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.10,000/- each and in default of payment of fine to undergo
imprisonment for a period of three months, for the offences for
which they were found guilty. Crl.A.No.967 of 2017 is
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
YKB/Ds/Mn
