Kerala High Court
Xxxxx vs State Of Kerala on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2024:KER:78297
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
CRL.A NO. 941 OF 2021
AGAINST THE JUDGMENT DATED 25.05.2019 IN SC NO.424
OF 2018 ON THE FILES OF THE SPECIAL COURT FOR ATROCITIES
AGAINST WOMEN AND CHILDREN, KASARAGOD
APPELLANT/1ST ACCUSED:
XXXXX
BY ADV RAMESH .P
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 0310.
SMT.BINDU O.V. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.10.2024, THE COURT ON 23.10.2024 DELIVERED THE
FOLLOWING:
Crl.Appeal No.941 of 2021 2024:KER:78297
-: 2 :-
P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.941 of 2021
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Dated this the 23rd day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The first accused in S.C. No.424 of 2018 on the files of
the Special Court for Atrocities against Women and Children,
Kasaragod, is the appellant is the appeal. He stands convicted and
sentenced for the offences punishable under Section 376 (2) (f) and
(n) of the Indian Penal Code (IPC) and also under Section 5(l) and (n)
read with Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act).
2. The appellant is none other than the father of the
victim. The second accused in the case is the mother of the victim.
The appellant has two other wives and the victim is one of the seven
children of the appellant in his wedlock with the second accused.
The second accused was though charged for the offences
punishable under Sections 17 and 21 of the POCSO Act and Section
109 of IPC, she was found not guilty of the charges.
3. The victim was born on 31.03.2001. The case was
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registered based on the information furnished by the victim to the
authorities of the school where she was pursuing her Plus Two
Course. The victim was aged 16 at the time of registration of the
case. The victim was pursuing the said course by staying in the
hostel attached to the school. The investigation in the case revealed
commission of the offences by the appellant punishable under
Section 376 and Section 506 (ii) IPC and under Section 5(l) and (n)
read with Section 6 of the POCSO Act. Accordingly, the final report in
the case was filed before the Special Court. The allegation against
the appellant in the final report is that the appellant subjected the
victim to sexual assault and rape continuously for about seven
years, at their residence located at the place called Pallam and
thereafter, she was subjected to sexual assault by the appellant
again on 11.12.2017 at their residence located at the place called
Nellikkunnu. It was also alleged that the appellant had threatened
the victim that she would be done away with, if she discloses the
incidents of sexual assault to anyone.
4. After affording an opportunity of hearing to the
appellant, the Special Court framed charges against the appellant
under the provisions referred to above to which the appellant
pleaded not guilty. The prosecution, thereupon examined 13
witnesses as PW1 to PW13 and proved through them 17 documents
Crl.Appeal No.941 of 2021 2024:KER:78297
as Exts.P1 to P17. On the closure of the prosecution evidence, the
appellant was questioned under Section 313 of the Code of Criminal
Procedure (the Code) and he denied the incriminating circumstances
brought out in the evidence of the prosecution. The stand taken by
the appellant when questioned under Section 313 of the Code was
that the victim had a relationship with a boy belonging to a different
religion and since he warned the said boy against continuing the
relationship, the victim maintained hatred towards the appellant and
it is on account of the said reason that she falsely implicated him in
such a case. As the Special Court did not find the case to be one fit
for acquittal under Section 232 of the Code, the appellant was called
up to enter on his defence. The appellant chose not to adduce any
evidence. Thereupon, on an evaluation of the evidence on record,
the Special Court found the appellant guilty of the offences
punishable under Section 376(2)(f) and (n) and Section 506 (ii) IPC
and under Section 5(l) and (n) read with Section 6 of the POCSO Act.
He was accordingly convicted for the said offences and sentenced
among others to imprisonment for the remainder of his natural life
under Section 376(2)(f) and (n) IPC. The appellant was however
acquitted of the charge under Section 506 (ii) IPC. In the light of
Section 42 of the POCSO Act, no separate sentence was passed
against the appellant for the offence punishable under Section 6 of
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the POCSO Act. The appellant is aggrieved by his conviction and
sentence in the said case.
5. Heard the learned counsel for the appellant as also
the learned Public Prosecutor.
6. The essence of the elaborate arguments advanced
by the learned counsel for the appellant is that the evidence
tendered by the victim in the case as PW1 is not reliable and
trustworthy. According to the learned counsel, the said evidence is
highly improbable and too artificial. The learned counsel did not
dispute the fact that the medical evidence in the case corroborates
the prosecution allegations, but according to him, inasmuch as the
victim was maintaining a relationship with a boy, no reliance can be
placed on the medical evidence. It was also argued by the learned
counsel that at any rate, the sentence passed against the appellant
is grossly disproportionate to the offences alleged against him.
7. The learned Public Prosecutor submitted that a
close reading of the evidence tendered by the victim would show
that her evidence is real and natural and inasmuch as the evidence
tendered by the victim has been corroborated in all material
particulars by the other witnesses examined on the side of the
prosecution, the Special Court cannot be found fault with for having
held that the appellant is guilty of sexual assault and rape.
Crl.Appeal No.941 of 2021 2024:KER:78297
As regards the sentence, it was submitted by the learned Public
Prosecutor that inasmuch as the appellant is none other than the
father of the victim, the punishment inflicted cannot be said to be
disproportionate to the gravity of the offence, especially since, the
victim was subjected to sexual assault by the appellant for a
considerably long period, that too, during the minority of the victim.
8. The points that fall for consideration are whether
the conviction of the appellant and the sentence imposed on him is
sustainable in law and if not, the reliefs to which the appellant is
entitled to.
9. In the nature of the arguments advanced by the
learned counsel for the appellant, it is necessary to scrutinise
meticulously the evidence tendered by the victim. As noted, the
victim was examined in the proceedings as PW1. It was deposed by
PW1 that the appellant used to assault her sexually right from the
period during which she was pursuing her studies in the third
standard. According to her, the appellant was initially in the habit of
touching her breasts and vagina with sexual intent and later, he
used to lick her vagina while sleeping when they were residing in
the house located at Pallam. It was deposed by PW1 that it was
while she was in the seventh standard, the appellant started
penetrating his penis into her vagina. PW1 explained in her
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evidence in detail as to how the appellant committed the various
sexual acts on her during the said period. It was deposed by PW1
that the appellant continued the said acts till her SSLC examination
which was held in March, 2017. It was deposed by PW1 that she
joined for her Plus Two course thereupon in Arabic College,
Kasaragod and she was staying in the hostel during 2017. It was
deposed by PW1 that she came from the hostel to attend the
engagement ceremony of her elder sister when the family was
residing at their residence at Nellikkunnu on 10.12.2017 and during
that occasion, in the early morning hours of 11.12.2017, the
appellant came near her while she was sleeping and touched her
breasts with sexual intent and she resisted that attempt and came
back to the hostel on the same day itself. It was deposed by PW1
that after a few days, while other inmates in the hostel started
leaving to their respective houses for Christmas holidays, she had
not shown any interest to do so and when the warden of the hostel
ascertained from her as to the reason for the same, she informed
the warden about the assaults committed on her by the appellant. It
was deposed by PW1 that the warden, in turn, informed the matter
to the Principal of the College and thereupon, PW1 was taken by the
warden and the Principal of the College to the Child Welfare
Committee and her statement was recorded by the police at the
Crl.Appeal No.941 of 2021 2024:KER:78297
office of the Child Welfare Committee. PW1 affirmed in her evidence
that it was she who gave Ext.P1 First Information Statement to the
police on 21.12.2017 and Ext.P2 statement to the Magistrate on
22.01.2018.
10. PW3 is the Principal of the Arabic College,
Kasaragod where PW1 was pursuing her Plus Two Course. PW3 gave
evidence on similar lines on which PW1 gave evidence. PW7 was
the Women Civil Police Officer who recorded Ext.P1 statement at the
office of the Child Welfare Committee, Kasaragod. She deposed the
said fact in her evidence.
11. PW9 was the doctor who conducted the medical
examination of PW1. PW9 deposed that she examined the victim
who was brought to her by the police on 22.12.2017 with the
alleged history of sexual assault. It was deposed by PW9 that the
history as spoken to her by the victim was that "എന ഉപ അഷറഫ എന
പല തവണ ആയട ഉപ ന ല ഗ എന മതന ഴ ക ഭ ഗതന ഉള ലലക കയറ ഉപദവകനണ.
ഇത ഞ ൻ ഏകല-ശ 7 -ആ ക സ പഠ കല2 ൾ മതൽ തടങയത ണ. ആ-8 ഞങൾ ത സചര
പള Quarters ൽ വച പ നട ഇലപ ൾ ത സക നനലക Quarters ൽ വച . ഇത
ഞ ൻ 1 - 2 പ വശ8 എന ഉമലയ ട സചപ ചരന. പലC ഉമ എന തന പറയകയ ഉപ നന
ക ടകണ എന പറയകയ നചയ. ലല ഗക പനഡന അവസ ന യ നട ത 10 -ആ ക സൽ
പഠ കല2 ഴ , 17.12.2017 ന റൽ പ ടച ലവ-ന പ ചരന. പല തവണ ഉമ വയകയ ഉപ ന
ന വ എന വ യലലക ഇടകയ നചയരന." It was deposed by PW9 that on
Crl.Appeal No.941 of 2021 2024:KER:78297
examination, the hymen of the victim was found partially torn and
that the tear was an old one. It was deposed by PW9 that her
findings were consistent with the history of sexual assault and the
alleged time of occurrence. It was deposed by PW9 that there is
clinical evidence of vaginal penetration as the hymen was torn
partially at two directions. Ext.P7 is the certificate of medical
examination issued by PW9.
12. The question before us is whether the prosecution
has established beyond reasonable doubt that the first accused
committed rape on the victim as defined under Section 375 IPC and
sexual assault as defined in the POCSO Act. As seen from the
evidence let in by the prosecution, in order to prove the allegation of
rape and sexual assault, the prosecution relies only on the evidence
tendered by the victim. Reliance is placed on the evidence of the
remaining witnesses only for the purpose of corroborating the
evidence tendered by the victim. There cannot be any doubt to the
proposition that the evidence of a rape victim can be the sole basis
of a conviction. But, it is trite that in order to base a conviction
solely on the evidence of the rape victim, such evidence shall be of
a sterling quality. In Rai Sandeep v. State (NCT of Delhi), (2012) 8
SCC 21, the Apex Court had occasion to consider the question as to
who can be said to be a sterling witness. Paragraph 22 of the
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judgment of the Apex Court in the said case reads thus:
"In our considered opinion, the "sterling witness" should be of a
very high quality and calibre whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at
the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be
and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as
the sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well as
all other such similar tests to be applied, can it be held that such
a witness can be called as a "sterling witness" whose version can
be accepted by the court without any corroboration and based
on which the guilty can be punished. To be more precise, the
version of the said witness on the core spectrum of the crime
Crl.Appeal No.941 of 2021 2024:KER:78297
should remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the said
version in material particulars in order to enable the court trying
the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the charge
alleged."
It is evident from the aforesaid decision that the evidence of a
sterling witness is one that appears natural and consistent with the
case of the prosecution qua the accused; that such sterling
witnesses, under no circumstances, shall give room for any doubt as
to the factum of the occurrence and that the evidence shall have co-
relation with each and every other supporting materials including
expert opinions. To put it differently, the version of such witnesses
on the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary, and material
objects should match the said version in material particulars. The
moot question therefore, is whether the victim in the case on hand
can be said to be a sterling witness.
13. The learned counsel for the appellant contended
that inasmuch as the victim and her six siblings were residing in a
small house at Pallam and inasmuch as the victim used to sleep in
the room in which her mother, two of her sisters as also her younger
brother were sleeping, it is impossible for the appellant to commit
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the sexual assaults as has been alleged against him. It was also
contended by the learned counsel that if as a matter of fact, the
appellant had subjected the victim to sexual assault and rape
continuously for several years as alleged by the prosecution, she
would have certainly complained about the same to her mother or
to any of her sisters, and inasmuch as there was no such complaint,
a serious doubt is cast as to the veracity of the evidence tendered
by the victim. We are not impressed by the arguments advanced by
the learned counsel for the appellant. During cross-examination,
when PW1 was questioned as to whether she made a statement to
the police that when the appellant was attempting to commit sexual
assault on her during a night, her elder sister switched on the light
and the appellant then left the room forthwith, she not only replied
that she made such a statement to the police, but also stated that
the appellant was not residing thereafter with them in their family
house for about six months and he was residing with his second wife
Ayisha during that period. The said evidence reveals that the
circumstances in the house where the family of the victim was
residing at Pallam was not a hindrance at all for the appellant to
commit the alleged sexual acts. It was deposed by the victim in her
evidence that the appellant used to beat her if she did not agree to
his demands for sexual favours and it is on account of that reason
Crl.Appeal No.941 of 2021 2024:KER:78297
that she had not disclosed to others the sexual assaults committed
by the appellant. The relevant portion of the deposition reads thus:
"പറഞതലപ നല സമത ച നലങ ൽ തല റണ യ രന. ഉപനയ ലപട ച ട ണ ആ സ യ ഞ ൻ
ആ വ വര ആലര ട പറയ ത ര ത."
In the light of said evidence of PW1, the victim cannot be found fault
with for not having divulged to others the sexual assaults committed
by the appellant during her childhood. That apart, it has come out in
evidence that even though she complained about the same to her
mother, the latter did not take it seriously. What could be gathered
from the evidence tendered by the victim is that during her early
childhood, she did not understand the gravity of the nature of the
acts committed by the appellant who is none other than her father
and the fear of him prevented her from disclosing the same to
others. But, when she grew up, she understood the seriousness of
the nature of the acts and resisted the attempt made by the
appellant and had to complain about the sexual assaults committed
by him at a stage when she had no option but to disclose the sexual
assaults to prevent further such assaults on her at the instance of
the appellant.
14. It is relevant in this context to note that the stand
taken by the appellant at the time of his examination under Section
313 of the Code was that the victim was in a relationship with a boy
belonging to a different religion and it is since the appellant
Crl.Appeal No.941 of 2021 2024:KER:78297
intervened in their relationship and warned the boy against
continuing the same that the victim lodged the false complaint
against the appellant. The said case was however not put to the
victim when she was cross-examined by the appellant. We have
meticulously read the evidence tendered by the victim, and we find
the same to be real and very much natural and we do not find any
reason to doubt the veracity of her evidence and she can certainly
be treated as a sterling witness. If that be so, the finding rendered
by the Special Court that the appellant is guilty of the offences
punishable under Sections 376(2)(f) and (n) of IPC and Section 5(l)
and (n) read with Section 6 of the POCSO Act is in order.
15. As noted, one of the contentions raised by the
learned counsel for the appellant is that the sentence imposed on
the appellant is too harsh and grossly disproportionate to the gravity
of the offences found to have been committed by him. As pointed
out by the learned Public Prosecutor, the offences committed by the
appellant are grave in nature especially since it is found that the
appellant has committed rape and penetrative sexual
assault on his biological daughter. But it is seen that the appellant
was aged 59 years when he was convicted and sentenced. Having
regard to the age of the appellant, we are of the view that
imprisonment for a period of 20 years without remission would be
Crl.Appeal No.941 of 2021 2024:KER:78297
appropriate sentence to be passed against the appellant.
In the result, the appeal is allowed in part confirming the
conviction of the appellant and modifying the sentence passed
against him to imprisonment for a period of 20 years without
remission.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
YKB
