Kerala High Court
Anil @ Mathai vs State Of Kerala on 7 April, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 7TH DAY OF APRIL 2025 / 17TH CHAITHRA, 1947
CRL.A NO. 24 OF 2023
CRIME NO.1024/2019 OF KOTTARAKKARA POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 30.11.2021 IN SC NO.764 OF
2020 OF COURT OF SESSION, KOLLAM
APPELLANT/ACCUSED:
ANIL @ MATHAI,
AGED 46 YEARS
S/O PODIYAN, C. NO.4736, CENTRAL PRISON &
CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM
AND RESIDED AT LAKSHAM VEEDU COLONY, VILANGARA,
UMMANNOOR VILLAGE THROUGH THE SUPERINTENDENT,
CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM.
ADV.RESHMA E, STATE BRIEF
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2 THE INSPECTOR OF POLICE,
KOTTARAKKARA POLICE STATION - 691506.
SRI.VIPIN NARAYAN, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
01.04.2025, THE COURT ON 07.04.2025 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Crl. Appeal No.24 of 2023
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Dated this the 7th day of April 2025
JUDGMENT
In this appeal filed under Section 383 Cr.P.C., the
appellant, who is the sole accused in S.C. No.764 of 2020 on the
file of the Court of Session, Kollam, challenges the conviction
entered and sentence passed against him for the offences punishable
under Section 376(2)(f)(i) IPC and Section 3(a) read with Section 4
and Section 5(n) read with Section 6 of the Protection of Children
from Sexual Offences (PoCSO) Act.
2. The prosecution case is that the accused, the paternal
uncle of PW1, a minor girl, with the intention to commit rape,
trespassed into her residential house bearing no.XIX/228 in
Vilangara Leksham Veedu Colony, Vilangara Muri, Ummannoor
Grama Panchayat, and raped her while she was sleeping in the hall
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room of her house. Hence, as per the final report, the accused is
alleged to have committed the offences punishable under Sections
450, 324 & 376(2)(f)(i) IPC and Section 3(a) read with Section 4
and Section 5 read with Section 6 of the PoCSO Act.
3. Crime No.1024/2019, Kottarakkara police station,
that is, Ext.P9 FIR, was registered by PW12, the Sub Inspector,
Kottarakkara, based on Ext.P1 FIS of PW1 which was recorded by
PW11, Sub Inspector, Vanitha Cell, Kottarakkara. PW13, CI,
Kottarakkara, conducted the initial investigation. Investigation was
thereafter taken over by PW14, DySP, Kottarakkara, who
conducted part of the investigation. PW15 and PW16, DySP,
Kottarakkara, conducted the further investigation and on
completion of the investigation, PW16 submitted the final report
before the court.
4. On appearance of the accused before the trial
court, a charge under Sections 450, 376(2)(f)(i) IPC and Section
3(a) read with Section 4 and Section 5(m)(n) read with Section 6 of
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the PoCSO Act was framed, read over and explained to the accused
to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 16 were
examined and Exts.P1 to P13 were marked in support of the case.
After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced by the accused.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment acquitted the accused under Section 235(1)
Cr.P.C. for the offences punishable under Section 450 IPC and
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Section 5(m) read with Section 6 of the PoCSO Act. However, he
has been found guilty of the offences punishable under Section
376(2)(f)(i) IPC and Section 3(a) read with Section 4 and Section
5(n) read with Section 6 of the PoCSO. He has been sentenced to
rigorous imprisonment for a period of 12 years each and to fine of
₹50,000/- each and in default to undergo rigorous imprisonment for
a period of one year each for the offences punishable under Section
376(2)(f) and (i) IPC. No separate sentence has been imposed under
Section 3(a) read with Section 4 and Section 5(n) read with Section
6 of the PoCSO Act in view of Section 42 of the PoCSO Act. The
substantive sentences have been directed to run concurrently. The
fine amount, if realized, has been directed to be paid to PW1. Set
off under Section 428 Cr.P.C. for the period from 14/05/2019 till
the date of judgment, that is, 30/11/2021, has been given.
Aggrieved, the present jail appeal has been filed.
8. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
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against the appellant/accused by the trial court are sustainable or
not.
9. As per order dated 17/01/2023, Adv.Laiju Nissa
M.M. was appointed as State Brief for the appellant/accused.
However, on several posting dates, there was no representation on
behalf of the appellant and hence on 13/01/2025, Adv.Reshma E.
was appointed as State Brief.
10. Heard both sides.
11. It is submitted by the learned counsel for the
appellant/accused relying on the dictum in Rai Sandeep @ Deepu
v. State of NCT of Delhi, 2012 KHC 4419: 2012 (8) SCC 21 that
the sole testimony of PW1 based on which the trial court convicted
the accused is not of sterling quality and hence the trial court went
wrong in relying on the uncorroborated and inconsistent testimony
of PW1 to find the accused guilty of the offences alleged against
him.
11.1. Per contra, it was submitted by the learned
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Public Prosecutor that the materials on record are sufficient to
prove the prosecution case and that there is nothing to disbelieve or
discredit the testimony of PW1 and therefore, no grounds for
interference is made out.
12. I briefly refer to the evidence on record relied on
by the prosecution in support of the case. Ext.P5 extract of the birth
register proved through PW6 shows the date of birth of PW1 to be
12/10/2004. Therefore, PW1 at the time of the incident in the year
2018 was only about 14 years old and hence a minor.
13. PW1 when examined deposed that while she was
studying in the Ist standard, her mother passed away and therefore
she was under the care and protection of PW2, her father and her
grandmother, who is now no more. She was staying in a convent
from VIth standard onwards and during the school vacation period,
she used to stay at her house in Vilangara Leksham Veedu Colony.
According to PW1, the accused, her paternal uncle, used to come
and stay at her house occasionally. In 2018 during the school
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vacation period, she came to her house at Vilangara Leksham
Veedu Colony. One day during the night, she was sleeping in the
hall room of her residence in which room the accused and her
grandmother were also sleeping. While she was asleep, she felt
somebody groping her chest and abdomen and when she woke up,
she saw the accused. When she tried to cry out loudly, the accused
asked her to remain silent and after removing her pant, he partially
penetrated his penis into her vagina. According to PW1, her
grandmother had visual and hearing impairment and therefore
though she was in the very same room, she did not come to know
about the incident. She never disclosed the incident to her relatives
as she was afraid of the accused as he had threatened to do away
with her if she disclosed the incident to anyone. She also deposed
that PW2, her father, and PW10, her brother, were not present in
the house at the relevant time. According to PW1, her father used to
sleep in the streets in a drunken condition and her brother had gone
to the house of her aunt on the date of the occurrence. She also
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deposed that at the time of the incident, nobody else apart from the
accused was present in the hall room of her residence. She denied
the defence suggestion that the room had been left open and that
she misunderstood the accused to be the person who abused her
only because he also used to sleep in the very same room. PW1
stood by her case in the cross-examination that it was infact the
accused who had sexually abused her by partially inserting his
organ into her vagina.
13.1. PW2, father of PW1, deposed that the accused is
his brother. According to PW2, his wife had passed away 10 years
back and he was residing alone in the house at Vilangara Leksham
Veedu Colony. After the death of his wife, as there was nobody to
look after the affairs of PW1, he got her admitted in a convent
where she was staying and studying. During the school vacation,
PW1, his daughter, used to come and stay in his house. He never
knew about the rape committed by the accused. He only came to
know about the incident when PW1 gave a complaint to the police.
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13.2. PW3, a close relative of PW1, deposed that PW1
used to come and stay in her house during vacations. According to
PW3, she never knew about the sexual assault and that PW1 had
not disclosed the incident to her. However, she came to know about
the complaint given to the police alleging rape by the accused.
13.3. PW10 is none other than the brother of PW1.
PW10 deposed that in the year 2019, he came to know from PW2,
his father, about the sexual abuse of his sister by the accused. PW10
deposed that during 2018, he was not permanently staying at his
house as he was engaged in practicing Chendamelam. He also
deposed that his father was also not permanently staying in the
house as he was engaged in catering job. PW10 deposed that during
school vacations, PW1 used to come and stay at their house. He
deposed that his grandmother had visual and hearing impairment.
PW10 also deposed that the accused used to behave in a rude
manner to his sister especially while he was drunk.
13.4. PW9, Junior Consultant, Taluk Hospital,
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Kottarakkara, deposed that on 15/04/2019, she had examined PW1
aged 13 years who had come to the hospital with a history of sexual
abuse by one Jagadeeshan. She had issued Ext.P8 report. She
deposed that on examining PW1 there was no evidence of recent
vaginal penetration. The injury seen on the body could have been
sustained during the course of the sexual abuse committed by
Jagadeeshan. In the cross-examination, she deposed that PW1 was
examined relating to an incident that took place on 15/04/2019. She
also deposed that neither the victim nor anybody else had informed
her that the victim had been sexually abused before 15/04/2019
also. PW9 in Ext.P8 has recorded that the hymen on examination of
PW1 was found to be intact.
14. It is true that to PW9, the doctor, PW1 has only
revealed the incident of sexual abuse which took place on
15/04/2019. However, that is immaterial because the duty of the
doctor is to examine the victim and give necessary treatment if
required and also give a report regarding the examination and not to
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find out or ascertain the person(s) who had abused the victim. In
Ext.P1 FIS seen recorded on 15/04/2019 at 16:10 hours, PW1 in
detail has referred to the incident of rape by the accused which took
place while she had completed her VIIth standard. Thereafter, on
15/04/2019, her neighbor Jagadeeshan is alleged to have gone to
her house enquiring about her father. She replied that her father had
left for work. Initially Jagadeeshan went out, but immediately
thereafter came back into the room and using force made her lie on
the cot inside the room. She tried to cry out for help. Jagadeeshan
closed her mouth and removed her leggings, her panties and
penetrated her. She pushed him aside and tried to beat him at which
time he poked her with a pin on her left wrist and right palm.
Jagadeeshan also told her that in case she revealed the incident to
anybody, her brother Manu would be killed. She pushed him aside
and went to the house of Lilly and Sreevidhya and revealed the
incident to them (എന്റെ ലില്ലി വല്യമ്മച്ചിയുടെ വീട്ടിൽ പോയി
വല്യമ്മച്ചിയോടും മാമി ശ്രീവിദ്യയോടും ജഗദീശന്റെ കാര്യം പറഞ്ഞു). From
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there, she was taken by Lilly and Vikraman uncle and other
relatives to the Vanitha Cell, Kottarakkara, for giving the
complaint. Jagadeeshan had abused her on the said day at 07:20
a.m.
15. The medical examination of PW1 was conducted
apparently after the registration of the FIR and so the examination
was relating to both the instances of rape. There need not be a
separate medical examination for the two instances of rape referred
to in the FIS. It is true that neither the date nor the year of abuse by
the accused is specifically mentioned in Ext.P1 FIS. But, PW1
when examined stated that it was in a day in the year 2018 that she
had been abused by the appellant/accused. The testimony of PW2,
her father, and PW10, her brother, also show that PW1 was home
during the summer vacations in the year 2018. It has also come out
in evidence that the appellant/accused also used to sleep in the
room in which PW1 was sleeping. It is true that PW1 has deposed
that her grandmother was also present in the room when the abuse
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took place. However, PW1 as well as PW10 have consistently
deposed that their grandmother had visual and hearing impairment.
This part of their testimony has not been cross-examined or
discredited in any way and therefore the visual and hearing
impairment seems to have prevented the grandmother from
witnessing or hearing or reacting to the incident. PW1 was
extensively cross-examined. Though the learned counsel for the
appellant/accused submitted that there are several inconsistencies
and contradictions in her statement to the police as well as in her
164 statement, none of the so called inconsistencies or
contradictions have been put to the witness or proved in any
manner known to law. That being the position, there is no reason to
disbelieve PW1.
16. Admittedly, the appellant/accused was none other
than the paternal uncle of PW1. Absolutely, no materials have been
brought in to show that there was any reason(s) for PW1 to make a
false allegation against her uncle. That being the position, I find no
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infirmity in the findings of the trial court calling for an interference
by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
