Kerala High Court
Kumaran (C-2446) vs State Of Kerala on 12 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
CRL.A NO. 814 OF 2022
CRIME NO.1435/2016 OF KONNI POLICE STATION, PATHANAMTHITTA
AGAINST THE JUDGMENT DATED 08.02.2018 IN SC NO.334 OF
2016 OF COURT OF SESSION, PATHANAMTHITTA
APPELLANT/ACCUSED:
KUMARAN (C-2446)
AGED 55 YEARS
S/O.CHELLAPPAN, CENTRAL PRISON, THIRUVANANTHAPURAM
THROUGH THE SUPERINTENDENT, CENTRAL PRISON
POOJAPPURA, THIRUVANANTHAPURAM, WAS RESIDING AT
HOUSE NO.170, WARD NO.III, ARUVAPPULAM PANCHAYATH,
KATTATHI GIRIJAN COLONY, ARUVAPPULAM VILLAGE.
ADV. A.S.FARIDIN, STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY INSPECTOR OF POLICE,
KONNI POLICE STATION
SRI.VIPIN NARAYAN, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
05.02.2025, THE COURT ON 12.02.2025 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Crl.Appeal No.814 of 2022
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Dated this the 12th day of February 2025
JUDGMENT
In this appeal filed under Section 383 Cr.P.C., the appellant
who is the sole accused in S.C. No.334 of 2016 on the file of the
Court of Session, Pathanamthitta, challenges the conviction entered
and sentence passed against him for the offences punishable under
Section 5 read with Section 6 of the PoCSO Act and Section 376(i)
IPC.
2. The prosecution case is that the accused, a distant relative
of PW1, a child of 4 years, on several days during the month of
August 2016 brought the victim child to his residence and
committed rape on the child. Hence, the accused as per the final
report is alleged to have committed the offences punishable under
Sections 363 & 376(i) IPC; Section 5(m)(l) read with Section 6 of
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the PoCSO Act and Section 75 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (JJ Act).
3. Crime No.1435/2016, Konni police station, that is,
Ext.P8 FIR, was registered by PW10, the Sub Inspector, on receipt
of Ext.P1 FIS of PW1. The case was investigated by PW11, the
then Circle Inspector, Konni police station, who on completion of
the investigation submitted the final report alleging the commission
of the offences punishable under the aforementioned sections by the
accused.
4. On appearance of the accused person before the trial
court, after furnishing with all the copies of the relevant prosecution
records, a charge under Sections 363, 376(i) IPC and Section 5(m)
(l) read with Section 6 of the PoCSO Act was framed, read over and
explained to the accused to which he pleaded not guilty. He was
discharged of the offence punishable under Section 75 of the JJ Act.
5. On behalf of the prosecution, PWs.1 to 12 were
examined and Exts.P1 to P16 were marked in support of the case.
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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 a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offences
punishable under Section 376(i) IPC and Section 5(m) of the
PoCSO Act. Hence, he has been sentenced to undergo rigorous
imprisonment for a period of 10 years and to a fine of ₹25,000/-
and in default of payment of fine to undergo rigorous imprisonment
for 6 months for the offence punishable under Section 6 of the
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PoCSO Act and rigorous imprisonment for a period of 10 years and
to a fine of ₹25,000/- and in default of payment of fine to undergo
rigorous imprisonment for 6 months for the offence punishable
under Section 376(i) IPC. The substantive sentences of
imprisonment have been directed to run concurrently. The fine, if
realised, has been directed to be paid to PW1 as compensation
under Section 357(1)(b) Cr.P.C. The accused has been acquitted
under Section 235(1) Cr.P.C. for the offences punishable under
Section 363 IPC and Section 5(l) of the PoCSO Act. 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 against the
accused/appellant by the trial court are sustainable or not.
9. Heard both sides.
10. It is submitted by the learned counsel for the
appellant/accused that there is a delay of 9 days in giving the
complaint to the police, for which no explanation has been
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furnished by the prosecution. The testimony of PW1 is not clear
and does not make out which are the offences that are alleged to
have been committed by the accused. The place of occurrence is
also not made out from the testimony of the victim. PW2 has made
substantial improvements in the box. PWs 2 and 3, close relatives
of PW1, are interested witnesses and hence not reliable. No report
of the chemical examination has been received. Hence, these
aspects were pointed out in support of the argument that the
accused is entitled to the benefit of doubt.
10.1. Per contra, it was submitted by the learned Public
Prosecutor that soon after the incident, PW1, the victim, revealed
the incident to PW2, which is admissible under Section 6 of the
Evidence Act. The conduct of PW1, admissible under Section 8 of
the Evidence Act, is also relevant because she complained of pain
on her chest and private parts to PW2 immediately after the
incident. There are no infirmities in the impugned judgment calling
for an interference by this Court, submitted the prosecutor.
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11. I briefly make a reference to the evidence on record
relied on by the prosecution in support of the case. Ext.P1 FIS
given by PW1 was recorded by PW9, Woman Sub Inspector,
Women Helpline, Pathanamthitta, in the presence of PW2.
Admittedly, PWs 2 and 3 are the relatives of PW1, the victim. In
Ext.P1 FIS, which is seen recorded in a question-and-answer
format, PW1 has stated that the accused, her neighbor, took her to
his house promising to give guava. He lifted her dress, removed her
underwear and put his private part on her private parts and licked
her private part. This caused pain to her. He also kissed her on her
cheeks and sucked on her chest. PW1 is seen to have described the
acts by pointing to her chest as well as her private parts.
12. The FIS was given on 16/08/2016 at 04:50 p.m. at which
time PW1 was only 4 years old. PW1 was examined before the
court on 25/09/2017, which is more than one year after the incident.
While PW1 was examined, she was unable to recollect the entire
acts of the accused. However, she deposed that the accused, whom
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she addresses as uncle, had sexually abused her. According to her,
the accused had kept his private part on her. Pointing to both sides
of her chest, she deposed that the accused kissed her in both places.
(.... അയാൾ മോളെ എന്തുചെയ്തു (Q) മൂത്രമൊഴിക്കുന്നിടത്ത് വച്ചു.
എന്താണ് എന്ന് പറയാനറിയില്ല (A) ഇവിടെ രണ്ടിടത്തും ഉമ്മ വച്ചു.
(child points her finger at both sides of her chest)...) She also
deposed that she had disclosed the incident to PW2.
12.1. PW2, the daughter of PW3, deposed that PW1 is her
father's niece. PW1 has two siblings. PW1's father had deserted
them. The mother of PW1 is a housemaid. After PW1's father
deserted the family, the victim child and her younger brother were
accommodated in her residence. She used to look after the affairs of
PW1. On 07/08/2016, while bathing PW1, the latter told her that
she had pain in her chest and genital area. When PW2 examined
PW1, she found that the chest and genital part of the child were
contused/bruised (കല്ലിച്ചിട്ടുണ്ടായിരുന്നു). When she enquired the
matter, PW1 told her that Kumaran uncle (accused) had pressed her
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chest, put his genital organ on her genitals and had also licked her
genital area. PW2 then informed the matter to PW3, her mother.
PW1 had also told her that the accused did the aforesaid acts at his
residence, where he is residing alone. On coming to know the
incident, there was a quarrel between her parents and the accused.
PW1 gave a statement before the Judicial First Class Magistrate
Court, Thiruvalla, in her presence and it was she who had signed
the 164 statement. The same was marked as Ext.P16. PW2 also
deposed that she had accompanied the victim child to the Taluk
Hospital, Konni, for medical examination.
12.2. PW3 is the person who had set the law in motion by
informing the police of the matter. According to PW3, PW1, the
victim child, disclosed the incident to PW2, her daughter, that the
accused had sexually abused her. Both the accused and PW1 are her
relatives. On receiving information about the sexual abuse, she
informed the police and the police had recorded Ext.P1 FIS of PW1
in which she had put her signature. In the cross-examination, her
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definite case is that it was on 7th of August that PW2 had disclosed
the incident to her.
12.3. PW8, Junior Consultant in Gynaecology, Taluk
Hospital, Konni, deposed that on 17/08/2016, she had examined
PW1 who was brought to the hospital with a history of sexual
assault by one Kumaran (accused) two weeks back. PW1 had
burning sensation while passing urine. On examination, she found
that there was labial congestion; the hymen was torn; there was
only hymenal rim present and the vagina admitted one finger. There
was vaginal congestion. Skin over the vaginal area had reddish
discoloration. There was evidence of past vaginal penetration.
According to her, the findings of the examination are consistent
with the history of the alleged sexual assault. According to her, the
conclusion was arrived at as the hymen was not intact and there
were signs of inflammation over perineum, labia majora, minora &
vagina. The medical certificate issued by her has been marked as
Ext.P6.
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13. It is true that in the box, PW1 was unable to narrate in
detail the overt acts of the accused. However, a whole reading of
her testimony gives an idea of the overt acts committed by the
accused. This is corroborated by the testimony of PW2 to whom
PW1 had disclosed the incident soon after the incident. PWs 1 and
2 were extensively cross-examined. However, nothing was brought
out to discredit their testimony. It is true that there was about 9 days
delay in informing the matter to the police. But in offences of such
nature, this delay is immaterial especially when no materials has
come on record to show that the accused has been falsely
implicated in this case. The accused seems to be a relative of the
victim as well as PWs 2 and 3 also. Therefore, there appears to be
no reason for them to falsely implicate the accused in such a crime.
It is true that though the report of the chemical examination of the
vaginal swab has not been made available, the other medical
evidences, that is, the testimony of PW8 and Ext.P6 certificate,
corroborate the prosecution case of sexual abuse of PW1. The
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person who is responsible for the sexual abuse has been identified
by PW1 as the accused. Therefore, I find that the prosecution has
succeeded in establishing the offences alleged against the accused.
There is no 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
