Kerala High Court

Babu vs State Of Kerala on 4 February, 2025

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

                                             2025:KER:8495
         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

                               &

        THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN

 TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946

                     CRL.A NO. 667 OF 2020

      AGAINST THE JUDGMENT DATED 06.07.2020 IN SC NO.268
 OF 2019 ON THE FILES OF THE ADDITIONAL SESSIONS COURT-I,
                           KOTTAYAM

APPELLANT/ACCUSED:

         BABU
         AGED 52 YEARS,
         S/O GEROGE, KOTTADIYIL HOUSE, KUNNAPPALLY KARA,
         MULAKKULAM VILLAGE, KOTTAYAM, PIN-686 610

         BY ADVS.
         MATHEW KURIAKOSE
         SRI.J.KRISHNAKUMAR (ADOOR)
RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         (CRIME NO 924/2018 OF VELLOOR POLICE STATION),
         REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
         OF KERALA, ERNAKULAM-682 031.

         SMT.BINDU O.V. PUBLIC PROSECUTOR
 Crl.A.No.667 of 2020




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                                    2

      THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.01.2025,      THE   COURT   ON       04.02.2025   DELIVERED   THE
FOLLOWING:
 Crl.A.No.667 of 2020




                                                                    2025:KER:8495
                                        3

             P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
                  -----------------------------------------------
                   Criminal Appeal No.667 of 2020
                  -----------------------------------------------
              Dated this the 4th day of February, 2025


                                 JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.268 of 2019 on the files

of the Court of Session, Kottayam Division, is the appellant in

the appeal. He stands convicted and sentenced for having

committed rape and penetrative sexual assault on his mentally

retarded minor child.

2. The accused in the case is the biological father

of the victim. The mother of the victim passed away during the

early childhood of the victim. Thereafter, the victim was

residing with the accused. Although the victim has an elder

brother, he was not staying with them. During October 2018,

when the victim was taken to the hospital due to a fever, the

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doctor after examining her found that she was pregnant.

Accordingly, the matter was informed to the police. The

statement of the victim was recorded thereupon on 03.10.2018

by a Women Police Officer attached to Velloor Police Station,

Kottayam and a case was registered based on the said

statement. In the statement, even though it is alleged by the

victim that one Anil had sexual intercourse with her forcibly at

a place near a stream where she had gone to wash clothes, the

investigation conducted in the case revealed that two persons

had committed rape on her including the accused. Though a

single final report was initially filed in the case against the

accused and one Gireesh, later, the charges were split and two

separate final reports were filed, one against the accused and

the other against Gireesh. The accusation in the final report

against the accused is that he had committed rape and

penetrative sexual assault on the victim one day in July 2018,

at their house.

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3. The Court of Session framed charges against

the accused under Sections 376(2)(f), 376(2)(j), 376(2)(k),

376(2)(l) and 376(2)(n) of the Indian Penal Code (IPC) and

Sections 5(j)(ii), 5(k), 5(n) and 5(l) read with Section 6 of the

Protection of Children from Sexual Offences Act, 2012 (POCSO

Act). The accused pleaded not guilty. The evidence let in by the

prosecution thereupon consists of the oral evidence of 18

witnesses examined as PWs 1 to 18 and Exts.P1 to P19

documents proved through them. Exts.D1 and D2 are the

previous statements of the witnesses proved at the instance of

the accused. MO1 series are the material objects identified by

the witnesses. Thereupon, after complying with the procedure

prescribed, the Court of Session found the accused guilty of the

charges under Sections 376(2)(f), 376(2)(j), 376(2)(k) and

376(2)(l) IPC and Sections 5(j)(ii), 5(k) and 5(n) read with

Section 6 of the POCSO Act, convicted him and sentenced him

among others, to undergo, imprisonment for life which shall

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mean imprisonment for the remainder of the natural life of the

accused. The accused was acquitted of the remaining charges.

The accused is deeply aggrieved by his conviction and

sentence in the case, hence this appeal.

4. Heard the learned counsel for the appellant as

also the learned Public Prosecutor.

5. The point that falls for consideration is whether

the conviction of the appellant and the sentence passed

against him, are sustainable in law.

6. Point. The victim gave evidence in the

proceedings as PW1. It was deposed by PW1 that sometime

during 2018, while she was studying for the Plus One course,

the accused committed rape on her. It was also deposed by

PW1 that later, the accused took her to the residence of his

friend, Gireesh and that they stayed in his house for about 15

days and during the said period, Gireesh also committed rape

on her. It was deposed by PW1 that due to a fever, she was

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taken to a hospital in Piravom by her father, where the doctors

informed her that she was pregnant and that subsequently, she

was taken to Vaikom hospital, where the doctors confirmed the

pregnancy. According to PW1, the accused directed her to tell

the police that it was one Anil who committed rape on her and

it is on that basis that she informed the police that it was Anil

who committed rape on her. It was also deposed by PW1 that

the statements made by her to the police and to the Magistrate

to that effect, are incorrect and that there is no person named

Anil. It was also deposed by PW1 that she first disclosed the

true facts to one Sruthy, attached to Nirbhaya Shelter Home

and it was thereafter that PW1 disclosed the true facts to the

police and to the Magistrate. PW1 identified Ext.P1 as the

statement given by her to the Magistrate. In cross-examination,

even though PW1 stated that it was for the purpose of

changing her residence from Nirbhaya that she stated to Sruthy

that it was her father who committed rape on her, when it was

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suggested to PW1 later that the accused had not committed

rape on her, she asserted that her statement that her father

committed rape on her, is true.

7. PW2 is the husband of the maternal aunt of the

victim. PW2 deposed that the victim never used to go alone

near the stream to wash her clothes and that she would always

be accompanied by either his wife or one Janamma, if his wife

was not available. It was affirmed by PW2 that the accused and

the brother of the victim were not on good terms and that the

brother of the victim was, therefore, not staying with the

accused and the victim. It was stated by PW2 in his evidence

that he is residing in another house in the same compound of

the house of the victim and that the victim used to sleep in the

same room along with the accused. PW4 is the wife of PW2.

PW4 gave evidence more or less on similar lines as the

evidence tendered by PW2.

8. PW5 is Sruthy referred to by the victim in her

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evidence. PW5 was the Manager of Nirbhaya Shelter Home,

Kakkanad. Her evidence was that the victim was residing in the

said shelter home during December, 2018 and that it was PW5

who counselled the victim.

9. PW8 was the Junior Consultant at Taluk

Hospital, Vaikom who examined the victim on 04.10.2018 and

issued Ext.P5 certificate. It was deposed by PW8 that what was

stated to her by the victim at the time of examination was that

one Hindi speaking person caught hold of her when she had

gone to the nearby stream to wash clothes; that she somehow

managed to escape from his hold and that she does not know

anything else. It was deposed by PW8 that on examination, her

hymen was found torn and on ultra sound scanning, 12.3

weeks intra uterine pregnancy was detected. PW9 was the

doctor attached to the Medical College Hospital, Kottayam

during October, 2018. It was deposed by PW9 that on

09.10.2018, she collected blood as well as the stillborn foetus

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of the victim and handed over the same in two separate plastic

jars to a police officer, one containing the foetus and placenta

and the other containing the blood sample. It was also deposed

by PW9 that before handing over the foetus, the jar containing

the same was filled with crystal salt for preservation. PW10 was

the doctor who conducted the potency examination of the

accused on 07.12.2018. PW10 collected his blood sample and

handed over the same to the police. It was clarified by PW10 in

his evidence that the blood sample was collected in EDTA

bottle and the same was sealed.

10. PW12 was the Woman Police Officer attached

to Velloor Police Station, Kottayam who recorded the first

statement of the victim, on the basis of the information

received from the Taluk Hospital, Vaikom. PW12 deposed the

said fact in her evidence. PW13 was the Woman Police Officer

attached to Velloor police station who recorded the additional

statement of the victim. PW13 admitted in cross-examination

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that the stand of the victim in the additional statement

recorded by her was that it was Gireesh who impregnated her.

PW14 was the police officer who collected the stillborn foetus

as also the blood sample of the victim from PW9 and handed

over the same to the investigating officer. PW15 was the police

officer who collected the blood sample of the accused from

PW10 and handed over the same to the investigating officer.

PWs 14 and 15 deposed the said facts in their evidence.

11. PW16 was the police officer who conducted the

initial investigation in the case. It was PW16 who registered the

First Information Report based on the statement furnished by

the victim. It was in terms of Ext.P10 seizure mahazar that

PW16 collected the stillborn foetus and the blood sample of the

victim from PW14, to whom the same was entrusted by PW9.

Similarly, it was in terms of Ext.P14 seizure mahazar that PW16

seized the blood sample of the accused from PW15 with whom

the same was entrusted by PW10. PW16 deposed the said facts

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in his evidence. In cross-examination, PW16 denied the

suggestion put to him that it was not the foetus of the victim

that was sent for DNA analysis. Similarly, PW16 denied the

suggestion put to him that it was not the blood sample of the

accused that was sent for DNA analysis. It was clarified by

PW16 in cross-examination that the blood sample of the

accused was collected on 07.12.2018 and that the same was

produced before the Jurisdictional Magistrate on the same day

itself. In cross-examination, when it was suggested to PW16

that the pregnancy of the victim was not medically terminated,

he denied the same, although he admitted that the documents

evidencing the same were not made available.

12. PW18 was the Assistant Director attached to

the DNA Division of the Forensic Science Laboratory,

Thiruvananthapuram. PW18 deposed that on 13.11.2018 and

11.01.2019, he received two sealed packets from the

jurisdictional court and the first packet contained five items

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consisting of foetus, liquid blood kept in two plastic vials and

two forwarding letters of PW9 and the second packet contained

two items of which, one was the sample blood of the accused

and the other was the blood sample of Gireesh. It was deposed

by PW18 that DNA was extracted from the foetus of the victim,

the blood sample of the victim as also the blood samples of the

accused and Gireesh, and on analysis, it was found that in the

absence of identical twins, the accused is the biological father

of the foetus of the victim. It was also found that Gireesh is

excluded from the paternity of the foetus of the victim. Ext.P17

is the report issued by PW18 in this regard. In cross-

examination, it was clarified by PW18 that the preservation of

foetus in a sterile plastic container containing crystal salt will

prevent further damage to the foetus.

13. The learned counsel for the accused contended

that the evidence tendered by PW1 is totally unreliable and

there cannot be any conviction based on such evidence. It was

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pointed out that the initial version of the victim was that she

was raped by one Anil and her later version was that she was

raped by the friend of the accused namely, Gireesh. It was

pointed out that although the victim stated in her evidence that

she disclosed the true facts to PW5 namely Sruthy, she did not

endorse the same. The version of PW5 in her evidence was only

that she counselled PW1 while she was staying in the shelter

home where PW5 was the Manager. According to the learned

counsel, even though it is established that the victim is a

person suffering from mental retardation, it is not safe to place

reliance on the evidence of the victim to convict a person. It

was also contended by the learned counsel that there is no

satisfactory evidence in the case to establish that the foetus of

the victim was collected for DNA analysis. Such an argument

was raised by the learned counsel since documents relating to

the medical termination of pregnancy undergone by the victim,

were not made available. It was also contended by the learned

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counsel that the collection of the blood of the accused, and the

foetus of the victim as also their transportation were not in

accordance with the guidelines prescribed. According to the

learned counsel, foetus tissue sample should be stored at 20

degree celsius and should be transported in a refrigerated

condition. The argument is that inasmuch as the collection and

transportation of the foetus tissue sample was not in

accordance with the guidelines prescribed, no reliance could be

placed on the result of the DNA analysis. It was also contended

by the learned counsel that at any rate, the sentence passed

against the accused namely, imprisonment till the remainder of

the natural life is too harsh and disproportionate a punishment

for the offences alleged to have been committed by the

accused.

14. There cannot be any doubt that it is after

medically terminating the pregnancy of the victim, her stillborn

foetus was collected for DNA analysis. True, the documents

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relating to the medical termination of pregnancy of the victim

were not produced before the jurisdictional court. As noted, it

was categorically stated by PW9 that she collected the foetus

of the victim, and the evidence in that regard given by PW9

remains unchallenged. As such, merely for the reason that the

documents relating to the medical termination of pregnancy of

the victim were not produced before the jurisdictional court, it

cannot be said that the foetus, which was subjected to DNA

analysis, was not the foetus of the victim.

15. There is nothing on record to indicate as to the

guidelines in vogue as regards collection and transportation of

foetus tissue samples and blood samples for DNA analysis. As

noted, it was PW9 who collected the foetus tissue sample of the

victim and it was PW10 who collected the blood sample of the

accused. There was no attempt to discredit the evidence given

by PW9 and PW10 as regards the collection of the foetus and

blood samples from the victim and the accused respectively.

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PW18 was the Assistant Director who issued Ext.P17 report of

the Forensic Science Laboratory after conducting the analysis

of the DNA extracted from the foetus and blood sample of the

victim as also from the blood sample of the accused. As noted,

in cross-examination, it was clarified by PW18 that the

preservation of foetus in a sterile plastic container containing

crystal salt will prevent further damage to the foetus. No

questions were put to PW18 by the counsel for the accused as

regards the factors which would affect the integrity of the

samples. There was not even a suggestion to PW18 that the

integrity of any of the samples was lost on account of improper

preservation or transportation. Needless to say, the argument

advanced by the learned counsel in this regard is only to be

rejected.

16. True, the evidence tendered by the victim as

regards the person who raped her is not consistent. But in a

case of this nature, where it is established that the victim is a

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person suffering from mental retardation, the evidence will

have to be appreciated in that background. As noted, it has

been established in the case that on an analysis of the DNA

extracted from the foetus and the blood sample of the victim as

also the blood samples of the accused and Gireesh, it was

found that the accused is the biological father of the foetus of

the victim and that Gireesh is excluded from the paternity of

the foetus of the victim. In this context, it is relevant to point

out that in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, the

Apex Court held that DNA report deserves to be accepted

unless it is absolutely dented and for non-acceptance of the

same, it is to be established that there had been no quality

control or quality assurance. If the sampling is proper, and if

there is no evidence as to the tampering of the samples, the

DNA test report is to be accepted. Paragraph 228 of the said

judgment reads thus:

"228. From the aforesaid authorities, it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non- acceptance of the same, it is to be established that there had been

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no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted."

In Mukesh, the Apex Court has also quoted with approval a

passage from the judgment in Pantangi Balarama Venkata

Ganesh v. State of A.P., (2009) 14 SCC 607, wherein the Apex

Court has referred to the evidence tendered by an expert on

the subject that the probability of two persons except identical

twins having the same DNA fingerprint is around 1 in 30 billion

world population. In the above circumstances, we are of the

view that in the absence of any material to show that Ext.P17

report is vitiated for want of quality control or quality

assurance, the same can be safely accepted. If Ext.P17 report

is accepted, it renders sufficient corroboration to the oral

evidence tendered by PW1.