Kerala High Court
Pankajakshan Nair vs State Of Kerala on 18 February, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal Nos.1161/2018 & 416/2019 1
025:KER:1349
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 416 OF 2019
(CRIME NO.400/2014 OF Pothencode Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 27.07.2018 IN SC
NO.190 OF 2015 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN &
CHILDREN),THIRUVANANTHAPURAM)
APPELLANT/ACCUSED NO.1:
SAJI
AGED 42 YEARS
S/O VISWAMBARAN, CONVICT NO. 2897, CENTRAL PRISON
AND CORRECTIONS HOME, THIRUVANANTHAPURAM
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA(K/1605/2003)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
Crl.Appeal Nos.1161/2018 & 416/2019 2
025:KER:1349
OF KERALA, ERNAKULAM, KOCHI-682 031,
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
SHAJIN S.HAMEED
OTHER PRESENT:
SMT. NEEMA T V, SR. PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
10.02.2025, ALONG WITH CRL.A.1161/2018, THE COURT ON
18/2/2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1161/2018 & 416/2019 3
025:KER:1349
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 1161 OF 2018
CRIME NO.400/2014 OF Pothencode Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.190 OF 2015 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT(ATROCITIES &
SEXUAL VIOLENCE AGAINST WOMEN &CHILDREN),THIRUVANANTHAPURAM
APPELLANT/ACCUSED NO.2:
PANKAJAKSHAN NAIR
AGED 67 YEARS
S/O KESAVAN PILLAI, RENJITH BHAVAN, PULIYANCODE,
BHAGAVATHIPURAM, ULIYAZHTHARA VILLAGE.
BY ADVS.
D.KISHORE
MINI GOPINATH
MEERA KISHORE
R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA
Crl.Appeal Nos.1161/2018 & 416/2019 4
025:KER:1349
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM 682 031
2 THE CIRCLE INSPECTOR OF POLICE
KAZHAKUTTOM POLICE STATION, THIRUVANANTHAPURAM -
695 581.
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.02.2025, ALONG WITH CRL.A.416/2019, THE COURT ON
18/2/2025 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.1161/2018 & 416/2019 5
025:KER:1349
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
Crl.Appeal Nos.1161 of 2018 & 416 of 2019
------------------------------------
Dated this the 18th day of February 2025
COMMON JUDGMENT
P.V.BALAKRISHNAN,J
Accused Nos.1 and 2 in S.C.No.190/2015 on the files of
Additional Sessions Court for the trial of cases relating to
Atrocities and Sexual Offences against Women and Children,
Thiruvananthapuram, have filed Criminal Appeal No.416/2019
and Criminal Appeal No.1161/2018 respectively challenging the
conviction and sentence imposed by that court under Section
376(2)(i)IPC, and Section 3 r/w. Section 4 and Section 6 r/w.
Section 10 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as 'POCSO Act' for short)
upon the 1st accused and under Section 376(2)(i)IPC upon the
2nd accused.
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Prosecution case
2. The 1st accused, who is none other than the father of
the victim aged 11 years, committed rape and aggravated
penetrative sexual assault upon her several times, while staying
in their house at Uliyazhthura village. It is alleged that the 2nd
accused, who is a coconut plucker, had also committed rape and
penetrative sexual assault on the victim at a rubber plantation
situated nearby. The events came to light when the child
disclosed the matter to the sisters of the Karunalayam where
she was staying. Hence, the prosecution alleges that the
accused have committed the offences punishable under 376 IPC
and Sections 3, 4, 5(l)(m)(n), 6,9(n) & 10 of the Protection of
Children from Sexual Offences Act, 2012.
Proceedings before the trial court
3. The prosecution, in order to bring home the guilt of the
accused, examined PW1 to PW12 and marked Exhibits P1 to P19
documents. When examined under Section 313 Cr.P.C, the
accused denied all the incriminating circumstances appearing
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against them in evidence and contended that they were
innocent. Even though the accused were granted an opportunity
to adduce evidence, no evidence was adduced from their side.
The trial court, on an evaluation of the evidence on record and
after hearing both sides, found the 1st accused guilty of
committing offences punishable under Section 376(2)(i) of IPC
and convicted him thereunder. He was sentenced to undergo
rigorous imprisonment for life, which shall mean imprisonment
for the remainder of his natural life, and to pay a fine of
Rs.1,00,000/- under Section 376(2)(i) of IPC. In case of default,
he was ordered to undergo R.I. for one year. He was further
found guilty of committing the offences punishable under
Sections 4 & 6 of the POCSO Act and was convicted thereunder,
and sentenced to undergo rigorous imprisonment for five years
and to pay fine of Rs.50,000/- under Section 10 of the POCSO
Act. In case of default, he was ordered to undergo S.I. for six
months. The 2nd accused was also found guilty and convicted
under Section 376(2)(i) of IPC and was sentenced to undergo
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rigorous imprisonment for a period of ten years and to pay a
fine of Rs.1,00,000/-. In case of default, he was sentenced to
undergo simple imprisonment for a period of one year. But, the
2nd accused was found not guilty under Sections 6 & 10 of the
POCSO Act. No separate sentence was imposed for the offences
under Sections 4 and 6 of POCSO Act upon the 1st accused. The
fine amount, if realised, was ordered to be paid as
compensation to the victim under Sections 357 (1)(b) Cr.P.C.
Prosecution evidence
4. PW1 is a victim in this case. She stated that she had
given Ext.P1 FIS to the police from the Child Welfare Committee
Office at Poojappura. Her date of birth is 5/6/2003 and when
she gave the statement, she was studying in V Standard in GSS,
Ayiroorpara. While she was studying in IV Standard, her father
who is a carpenter had left her mother. While she was residing
with her parents, her father used to take her to the room and
would make her lie on his body. Thereafter, he would place his
urinating part on her corresponding part and the event first
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occurred while she was studying in IV Standard. She had
studied in IV Standard for two years and it was in her 2nd term,
such things occurred. He used to insert his fingers into her
vagina, press her chest and commit fellatio. Since he threatened
her, she was afraid to disclose this fact to anyone. The events
used to occur during day time and her father had repeated the
acts till he left her mother. He also used to show porn photos
on a mobile phone and will ask her to imitate the same. Apart
from her father, a person by name, Amaran, who was of the age
of her grandfather, who used to come to pluck coconuts, had
also sexually abused her. He had taken her to a rubber
plantation and had removed her dress, and inserted his penis
into her vagina and mouth. She was afraid to disclose these
events even to her mother and ultimately, told her while she
was in Karunalayam. She identified the person by name Amaran
as the 2nd accused in the dock and stated that she had also
given Ext.P2 statement before the Magistrate. In her cross-
examination, PW1 stated that she was having pain and bleeding
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at that time and it was only because she was afraid of her
father, she did not disclose it to anyone. While she was in
Karunalayam, the sisters asked her why she was depressed and
at that time she disclosed the events to them. They in turn
called her mother and then she divulged the same to her.
5. PW2 is the mother of the victim. She deposed that the
date of birth of PW1 is 5/6/2003 and she is aware of the facts in
this case. Her daughter used to regularly request her to send
her to a boarding school and accordingly, she sent her daughter
to Karunalayam. One day, the sisters called her and informed
her that her daughter was having some problems since she is
regularly found in a mournful mood. When she went to
Karunalayam, the sisters informed her that the victim's father
and another person had abused her daughter and when she
enquired with her daughter, she disclosed the events. She could
understand that her daughter did not reveal anything to her
since she was afraid of her father's threats. She also identified
Amaran as the 2nd accused in the dock. In her cross
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examination, she stated that at the time when she gave the
statement to the police, she was not on good terms with her
husband. Her Ration card, Aadhar card, ID card, Certificates,
Birth certificate of her children, etc. were taken away by her
husband and she had filed a case to get it back. Later, she
withdrew from the case when she felt that she would not get
relief. Her husband used to come in an inebriated condition
regularly and physically harass her and she even had to give a
complaint to the police. It was in April 2014, she left her
daughter in Karunalayam and it was during the recess after the
III Standard examination, that her daughter was abused. It was
during the recess after the V standard examination, she took
her daughter to Karunalayam and her daughter told her about
the incident three years thereafter. Till the time her daughter
was with her, she was very active and it was only after reaching
Karunalayam that she started to show psychological distress.
Her daughter was also very attached to her father. She further
stated that Amaran has another name by Pankajakshan and he
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also works as a security guard in a school.
6. PW3 is the Assistant Surgeon, Taluk Hospital,
Chirayankeezhu through whom Ext.P3 and Ext.P4 potency
certificates of the 2nd and 1st accused respectively were
marked.
7. PW4 was the Headmistress of the Government Higher
Secondary School, Ayiroorppara during 30/5/2011 to
30/5/2016. She stated that as per her instructions, the senior
assistant of the school had issued Ext.P5 extract of the
Admission Register and as per the said document, the date of
birth of the victim is 5/6/2003. The victim was given admission
to 1st standard on 1/6/2009 and the entries were made in the
Register as per the birth certificate. In her cross examination,
she stated that the signature in Ext.P5 is not that of hers and it
is that of the senior assistant.
8. PW5 is the village officer, who prepared Ext.P6 and
P6(a) scene plans. PW6 is a witness to Ext.P7 and P8 scene
mahazars. PW7 is the SHO, who registered Ext.P9 FIR after
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receiving the FIR in Crime No.596/2014 from Poojappura Police
Station. PW8 is the police officer, who completed the
investigation and laid the charge. PW9 is the SI of police,
Poojappara, who registered Ext.P10 FIR.
9. PW10 is the police officer, who conducted a major
portion of the investigation. He arrested the second accused,
after preparing Ext.P11 to P13 documents, and prepared Ext.P8
scene mahazar. Later on 11/5/2014, he arrested the first
accused after preparing Exts.P15 to P17 documents and also
prepared Ext.P7 mahazar.
10. PW11 is the SI attached to City Vanitha Police Station.
She deposed that on 6/5/2014 she went to the office of the
Child Welfare Committee and recorded Ext.P1 statement and
entrusted the same to the SHO, Poojappura Police station.
11. PW12 is the Deputy Superintendent, who was in
charge of the Superintendent, Women & Children Hospital,
through whom Ext.P19 wound certificate was marked. He stated
that Dr.Dhanya Sukumaran was working in this hospital on
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6/5/2014 and Ext.P19 was issued by her, and it contains her
signature and seal. As per Ext.P19, Dr.Dhanya had examined
the victim aged 11 years who came with an alleged history of
sexual assault. On examination, it was noted that her hymen
was torn completely and there was evidence of vaginal
penetration.
Contentions of the appellants
12. The learned counsel for the first accused
Adv.Dheerendra Krishnan K.K. and the learned counsel for the
second accused Adv.D.Kishore contended that the accused have
been falsely implicated in this case at the instance of PW2 and
her paramour. They argued that the charge framed is not
specific and is defective, since it does not even mention the
proximate time/period when the offences were allegedly
committed and the same has caused considerable prejudice to
the accused. They also argued that even going by the
prosecution case, the alleged offences have been committed
much before the coming into force of the POCSO Act and prior
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to the amendment made in 2013 to Section 375, and hence the
conviction and sentence imposed by the trial court cannot be
sustained. They submitted that the prosecution has suppressed
the material evidence by not examining the matron of
Karunalayam, to whom the victim allegedly first confided. They
argued that Ext.P5 certificate has not been proved as required
by law and it is only a copy from an extract taken and not an
extract from the Admission Register. The learned counsel relied
on the decision in Rajan v. State of Kerala (2021 KHC 375)
and contended that such a copy will not satisfy the requirement
of law, as contemplated under Section 76 of the Indian Evidence
Act. Hence, according to them, the prosecution has not let in
any credible evidence to prove the age of the victim. They
further argued that no reliance can be placed on Ext.P19, since
the opinion is not conclusive and the same cannot be relied
upon to prove penetrative sexual assault. The learned counsel
for the second accused, by relying on the decision in State of
Kerala v. Itty (2024 KHC OnLine 1657), also added that the
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testimony of a child witness without corroboration especially
when there are doubts about its reliability must not be acted
upon. He submitted that the evidence of PW1 is not at all
believable, since she has not divulged anything to her mother.
He further submitted that, PW1's evidence has been recorded by
the trial court without conducting the voir dire test and the
same also is fatal. He also submitted that the trial court has
jointly tried the case of the second accused with the first
accused, even though the allegation against the second accused
reveals a distinct offence, and has thereby violated the
provisions of Sections 218 and 223 of Cr.P.C causing
considerable prejudice to him. He further, by relying on the
decisions in Jayan & others v. State of Kerala (2021 6 KHC
400) and Biju v. State of Kerala (2024 KHC 1198),
contended that the identification of the second accused by the
victim for the first time in the court cannot be accepted. Hence,
they prayed that these appeals may be allowed.
Contention of the Prosecutor
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13. Learned Senior Public Prosecutor Adv.Neema T.V.
argued that the prosecution has proved its case beyond
reasonable doubt. She contended that there is no vagueness in
the charge and the period during which the victim was assaulted
has been specifically stated in it. She argued that the evidence
of PW1 and PW2 would reveal that the offences had been
perpetrated after the POCSO Act came into force, while the
victim was studying in the 4th standard and the FIS had been
lodged while the victim was studying in the 5th standard. She
also argued that PW1 is a sterling witness and no corroboration
is required for her evidence. She, by relying on Sections 215
and 464 of Cr.P.C, submitted that no prejudice has been caused
to the accused, even if there is an error in the proceedings
before the trial court or in framing charge, the same is not fatal.
She contended that the oral testimony of PW1 is well supported
by the evidence of PW12 and Ext.P19, the medical evidence
adduced in this case. Hence, she prayed that these appeals may
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be dismissed.
Evaluation of evidence
14. In the present case, the prosecution places heavy
reliance on the evidence of PW1, the victim, to prove its case.
An appraisal of her evidence would show that she has given a
vivid description of the manner in which she was abused by the
first accused and the second accused. Her evidence reveals that,
while she was studying in the 4th Standard, the first accused
had taken her to a room and had made her lie upon him.
Thereafter he inserted his penis and finger into her vagina and
fondled her chest. He also committed fellatio and threatened her
with dire consequences if she discloses the events to anyone. It
is also discernible from her evidence that the first accused has
committed the afore acts till he left his wife. As regards the
second accused, the evidence of PW1 reveals that he had taken
the victim to a rubber plantation nearby and thereafter had
removed her dress and inserted his penis into her vagina. He
also committed acts of fellatio. The victim positively identified
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the second accused in the dock and stated that she has pre
acquaintance with him, since he used to regularly come for
plucking coconuts. Even though a roving cross examination was
conducted by the learned counsel for the accused, nothing has
been brought out to discredit her testimony regarding the crux
of events spoken to by her and also the identification of the
second accused made by her.
15. As stated earlier, the events got unfurled only when
the victim spoke to the matron of Karunalayam, who, in turn,
informed the Child Welfare Committee and the mother of the
victim. It is from the office of C.W.C., the first information
statement (Ext.P1) of the victim was recorded by the police on
6/5/2014. The recitals in Ext.P1 FIS would go to show that it
tallies in material particulars with the testimony of PW1
regarding the core of the events which transpired. Likewise,
Ext.P2-Section 164 statement given by the victim before the
Magistrate on 11/12/2014 also corroborates with her evidence
and no contradictions or material omissions have been brought
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out by the accused. Further, the evidence of PW12 coupled with
Ext.P19 wound certificate, (which was marked without any
objections from the side of the accused) also lends much
credence to the testimony of PW1 regarding her being sexually
abused by the accused. Ext.P19 clearly goes to show that at
the time when the victim was examined by the doctor, ie, on
6/5/2014, her hymen was completely torn and there was
evidence of vaginal penetration. Even though it is stated in
Ext.P19 that, "final opinion is pending chemical analysis", the
doctor, after assessing the entire physical/bodily
characteristics/attributes including the private parts of the
victim and conducting tests, has opined that there is evidence of
vaginal penetration. Further, even after PW12 has been cross
examined in extenso, nothing has been brought out which would
cast a cloud over the opinion given by the Chief Medical Officer
of the Women and Children hospital, who issued Ext.P19.
16. Coming to the contention of the learned counsel for
the appellants that it is highly unsafe to rely on the sole
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testimony of PW1 in the absence of corroboration, we are of the
view there is no merit in it. It is true that PW1 has not spoken
about the events to her mother while she was residing with her
and that she had disclosed it only while staying in Karunalayam.
But the evidence of PW1 clearly goes to show that she was
under a looming threat from the first accused while she was
staying in her house along with her parents, disabling her from
disclosing the events to anyone. It is only when the sisters in
Karunalayam noticed her depression and questioned her, the
victim had opened up her mind to them.In such circumstances,
her conduct can never be considered as a factor to doubt her
credibility. Further, as stated earlier, PW1 has withstood the
strenuous cross examination from the side of the accused and
no material contradictions or omissions could be brought out
from the side of the accused. Her testimony of sexual abuse
also is well supported by the medical evidence adduced in this
case. On an evaluation of evidence of PW1, we have no doubt
in our mind that there is a ring of truth in her testimony. It is to
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be kept in mind that it is not the quantity of witness, but the
quality of witness which weighs in the court. If the testimony of
a solitary witness is wholly reliable and the witness is of sterling
quality, the same can undoubtedly be relied upon by the courts
to convict the accused. (See Allil Mollah v. State of West
Bengal [(1996) 5 SCC 369], Amar Singh v. State(NCT of
Delhi) [(2020) SCC OnLine 826]. If so, we see no
impediments in placing reliance upon her testimony.
17. Coming to the next contention of the appellants that,
the offences under the POCSO Act and under Section 376(2)
(i)&(n) IPC will not be attracted in the present case since, the
crime has been committed much prior to the introduction of the
POCSO Act and the afore provisions in IPC, we are of the view
that there is some merit in them. A perusal of the court charge
goes to show that no specific date, month or year of the
commission of the offence has been stated in it. Instead, what is
stated is that the first accused has sexually assaulted and
committed rape upon the victim, while she was studying in the
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3rd standard and the second accused has committed the afore
acts while the victim was studying in the 4th Standard. The
evidence of PW1 coupled with Ext.P1 would go to show that
Ext.P1 has been lodged by her while she was studying in the 5th
Standard. But her evidence shows that she has not spoken
about the period during which she was abused. Even though she
would say that the first accused had abused her for the first
time while she was studying in the 4th Standard during her
second term and that the abuse continued till her father left her
mother, she did not state anything regarding when the second
accused abused her. Now going by the evidence of PW2, it is
during the end of completing her 3rd Standard and after the
exams, her husband has abused PW1. Her evidence also reveals
that she is not sure about the year or month in which the events
transpired. It is also pertinent to note that during cross
examination, PW2 went on to say that it is after three years of
the incident, her daughter has revealed about it. It cannot be
disputed that the prosecution is duty bound to prove the period
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during which the crimes have been perpetrated and that those
crimes fall within the ambit of the law prevailing at that time in
order to prosecute the accused. As stated earlier, the evidence
on record goes to show that there is no consistency in the
evidence regarding the period during which the crimes were
committed and going by the evidence of PW2, it is nearly three
years before the disclosure by PW1, the offences have been
perpetrated. It is to be taken note that the POCSO Act was
brought into effect only on 14/11/2012 and the provisions under
Section 376(2)(n)(i) of IPC have been incorporated only on
3/2/2013. If so, we have no hesitation in coming to a finding
that there are no materials to convincingly establish that the
offences under the POCSO Act and Section 376(2)(n), (i) IPC
are attracted in this case . Resultantly, we find that the
conviction of the accused under the afore provisions cannot be
sustained.
18. Be that as it may, in the present case, as stated earlier,
the prosecution has, without any doubt, proved that the accused
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have committed sexual intercourse with the victim. The charge
framed against the accused by the trial court also clearly states
that the accused have committed penetrative sexual assault and
rape repeatedly upon the victim while she was studying in III
and IV Standard. The charge also specifies the offence with
which the accused are charged i.e, Section 376 IPC. It is true
that in the court charge, it has been mistakenly stated that the
minor girl was aged 11 at the time of commission of the crime.
It is also true that no specific date or time is mentioned in the
court charge as to when the crime was committed, since the
same cannot be discerned from the minor victim who was
subjected to repeated sexual assault. But, as stated earlier, all
the other material particulars of the offence required to be
stated in the charge have been put to the accused and they
have participated in the full-fledged trial conducted thereafter.
There is nothing on record to show that the accused were
misled by the minor error that has crept in the court charge or
that it has occasioned a failure of justice. At this juncture, we
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will also keep in mind Section 215 of Cr.P.C, which states that no
error in stating either the offence or the particulars to be stated
in the charge and no omission to state the offence or those
particulars shall be regarded at any stage of the case as
material, unless the accused was in fact misled by such error or
omission, and it has occasioned to failure of justice.
19. As regards the contention of the appellants that no
reliance can be placed on Ext.P5 since the same has not been
proved as required by law and that the prosecution has failed in
proving the age of the victim, we are of the considered view
that there is no merit in it. It is true that, from the evidence of
PW4 it is discernible that Ext.P5 was prepared by the senior
assistant in the school and also that the same has been signed
by him. But, even if Ext.P5 is eschewed, we are of the view that
there is sufficient credible evidence in the form of the oral
testimonies of PW1 and PW2 to prove the age of the victim.
Both PW1 and PW2, have in one voice, categorically stated that
the date of birth of PW1 is 5/6/2003. It is very pertinent to note
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that not a single question has been raised by the accused
disputing the afore version of PW1 and PW2 when they were
cross-examined. Further, we also do not find any reason to
disbelieve PW2, who is the mother of the victim, on this aspect.
At this juncture, we would take note of the fact that even when
PW1 was examined in the trial court she was aged only 14 and
again, there is no quarrel regarding the same from the side of
the accused. It has been held in Biju v. State of Kerala [2024
(2) KHC 297], that there is nothing under the POCSO Act,
which would indicate that the unchallenged oral testimony of the
mother of the victim cannot be taken as proof of date of birth of
the victim. It is also held that the provisions of the J.J.Act,
dealing with documents that can be relied upon to prove the age
of a juvenile for the purposes of that Act do not preclude a court
from considering a question regarding the age of a victim under
the POCSO Act from placing reliance on other evidences
admissible as per the Evidence Act. If so, we are of the view
that the afore principle can also be adopted in the present case
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and the unchallenged evidence of PW2 can be relied upon to
reach a conclusion that the date of birth of the victim is
5/6/2003. This, in turn, means that the accused can be found
guilty of committing an offence punishable under Section 376(2)
(f)of IPC as it stood before the substitution brought into that
Section with effect from 3/2/2013.
20. The contention of the appellants that non conducting
voir dire test on PW1 is fatal to the prosecution case, also does
not have any legs to stand. It is a settled law that the
preliminary examination is conducted by the court only to
ensure that the witness is capable of understanding the nature
of questions put to him/her and he/she is able to give rational
answers. The mere fact that the voir dire test is not conducted
does not affect the credibility of the evidence furnished by the
witness. If the court after taking evidence finds that the witness
is capable of giving cogent, convincing and rational answers,
then the witness is a competent witness under Section 118 of
the Evidence Act. [See Lalu v. State of Kerala (2015 KHC
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535) and Mirajul Islam Sheik v. State of Kerala [(2017)
SCC OnLine Ker 24107]. In the present case, on an appraisal
of the evidence of PW1, we have no doubt in our mind that she
is a witness, who is capable of understanding the nature of
questions put to her, and able to give rational answers. If so, we
find that the probative value of the evidence furnished by her
need not be defenestrated, solely for this reason.
21. As far as the contention raised by the learned counsel
for the second accused by relying on Sections 218 and 223
Cr.P.C that the second accused cannot be jointly charged and
tried with the first accused and that it has caused considerable
prejudice in the minds of the court, we find no merit in them.
First of all, we would point out that even though such a
contention of prejudice has been raised by the second accused,
there is nothing on record to substantiate the same. The records
go to show that the second accused has actively participated in
the entire trial and has extensively cross examined the
prosecution witnesses without any objection. Secondly, going by
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Section 465 Cr.P.C., no finding, sentence or order passed by a
competent court shall be reversed in appeal on account of any
error, omission or irregularity in the proceedings before or
during trial under this Code, unless a failure of justice has, in
fact, been occasioned thereby. [See Nasib Singh v. State of
Punjab & Anr.[(2022) 2 SCC 89]. If so, in the absence of any
material to show that any prejudice has been caused to the
defence of the accused, thereby resulting in failure of justice, no
much weightage can be given to the afore contention.
22. The upshot of the afore discussions on evidence is
that, even though the prosecution has failed to prove that the
accused have committed the offences under the POCSO Act or
under Section 376(2)(i),(n) of IPC, they have proved beyond
reasonable doubt that the accused have committed an offence
punishable under Section 376(2)(f)of IPC (as it stood before the
substitution of the Sections with effect from 3/2/2013). This, in
turn, means that the conviction and sentence imposed upon the
accused by the trial court are liable to be set aside and instead,
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they are liable to be convicted under Section 376(2)(f) of IPC
and we do so.
23. Now coming to the question of sentence, considering
the nature of offence, its gravity, the age of the victim, the fact
that the first accused is the father of the victim, the further fact
that the second is the senior citizen, and the facts and
circumstances of the case, we are of view that the
appellants/accused can be sentenced to undergo rigorous
imprisonment for a period of ten years and to pay fine of Rs.1
lakh each under Section 376(2)(f) IPC. In case of default, each
of the appellants/accused shall undergo simple imprisonment for
a further period of one year.
In the result, these appeals are allowed in part as follows:
i) The conviction and sentence imposed on the
appellants/accused in S.C. No.190/2015 by the Additional
Sessions Court for the trial of cases relating to Atrocities and
Sexual Offences against Women and Children,
Thiruvananthapuram, are set aside.
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ii) Instead, the appellants/accused are convicted under
Section 376(2)(f) IPC and are sentenced to undergo rigorous
imprisonment for a period of ten years and to pay a fine of Rs.1
lakh each under Section 376(2)(f) IPC. In case of default, the
appellants/accused shall undergo simple imprisonment for a
further period of one year.
iii) In case the fine is realised, the same shall be paid to
PW1 as compensation under Section 357(1)(b) Cr.P.C.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
P.V.BALAKRISHNAN
dpk JUDGE
