Kerala High Court
Sivanandhan (C. No. 3281) vs State Of Kerala on 21 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CRL.A NO. 243 OF 2022
CRIME NO.3642/2014 OF KARUNAGAPALLY POLICE STATION, KOLLAM
AGAINST THE JUDGMENT DATED 31.01.2019 IN SC NO.388 OF
2015 ON THE FILE OF THE COURT OF SESSION, KOLLAM
APPELLANT/ACCUSED:
SIVANANDHAN (C. NO.3281)
AGED 70 YEARS
S/O.PARAMU, CENTRAL PRISON, THIRUVANANTHAPURAM
THROUGH THE SUPERINTENDENT, CENTRAL PRISON,
POOJAPPURA, THIRUVANANTHAPURAM, WAS RESIDING AT
TATTASSERIL HOUSE, PULIYOOR VANCHI, VADAKKUM MURI,
THODIYOOR VILLAGE.
SRI.K.K.RAJEEV, STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY ADDL. SUB INSPECTOR OF POLICE
KARUNAGAPALLY POLICE STATION
SRI.VIPIN NARAYAN, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
17.02.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
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2
C.S.SUDHA, J.
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Crl.Appeal No.243 of 2022
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Dated this the 21st 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.388 of 2015 on the file of the
Court of Session, Kollam, challenges the conviction entered and
sentence passed against him for the offence punishable under
Section 4 of the PoCSO Act.
2. The prosecution case is that on 08/11/2014 at 02:00 p.m.,
the accused enticed PW1, a minor boy child aged 4 years, by giving
him sweets, took him to the house bearing door no.III/265,
Thodiyoor Panchayat and committed unnatural offence by thrusting
his penis into the mouth of the child. Therefore, as per the final
report/charge sheet, the accused is alleged to have committed the
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offences punishable under Section 377 IPC and Section 4 of the
PoCSO Act.
3. Crime No.3642/2014, Karunagappally police station,
that is, Ext.P7 FIR, was registered by PW14, the then Sub
Inspector, on receipt of Ext.P1 FIS of PW1 recorded by PW12,
WCPO attached to the said station. PW14 conducted the initial
investigation in this case. Thereafter, the investigation was taken
over by PW13, Additional Sub Inspector of police, Karunagappally,
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, the jurisdictional
magistrate after complying with all the formalities contemplated
under Section 209 Cr.P.C., committed the case to the Court of
Session, Kollam. The case was taken on file as S.C. No.388/2015.
Thereafter, the case was made over to the Additional District and
Sessions Judge-I, Kollam, for trial and disposal. On appearance of
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the accused before the trial court, a charge under Section 377 IPC
and Section 3 read with Section 4 of 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 14 were
examined and Exts.P1 to P9 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. Exts.D1 to D7 are
the contradictions brought out in the testimony of the prosecution
witnesses.
7. On a consideration of the oral and documentary
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evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offences
punishable under Section 377 IPC and Section 3 read with Section
4 of the PoCSO Act and hence convicted him for the said offences.
He has been sentenced to undergo rigorous imprisonment for a
period of 7 years and to a fine of ₹50,000/- and in default of
payment of fine to undergo simple imprisonment for 3 months for
the offence punishable under Section 4 of the PoCSO Act. No
separate sentence was awarded under Section 377 IPC in the light
of Section 42 of the PoCSO Act. Out of the fine amount, if realised,
₹30,000/- has been directed to be paid as compensation to PW1
under Section 357(1) Cr.P.C. Set off has been allowed. 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. As per the letter dated 31/01/2025, the Superintendent,
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Central Prison & Correctional Home, Poojappura,
Thiruvananthapuram, has reported that on 21/11/2024, the
appellant/accused was released on the expiry of his sentence and on
payment of fine. However, as the appeal is required to be heard and
disposed of on merits, both sides were heard.
10. I make a brief reference to the evidence relied on by the
prosecution in support of the case. PW1, the victim child, deposed
that on the date of the incident he had gone to the house of one
Jasin to play. However, as Jasin was not there in his house, he went
to play with the baby in the house of the accused which is situated
nearby. While he was playing there, the accused came and took him
to the front side of the car parked in the car porch and thrust the
penis of the accused into his mouth. The accused also gave him
sweets. He returned home and told his parents about the incident.
His father immediately made a complaint to the police.
10.1. PW2, the mother of PW1, deposed that on 08/11/2014
at 02:00 p.m., her son came home and told them that the accused
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had given him sweets and thrust his penis into his mouth. On
questioning the accused, he denied the incident. They immediately
went to the police station and gave a complaint. PW2 identified her
signature in Ext.P1 FIS.
10.2. PW3, a neighbor of PW1 and PW2, deposed that on
08/11/2014 at 01:40 p.m., he saw PW1 and two other children
playing in the house of one Riyad. On the said day, he had also seen
the accused standing outside his shop. In the evening he came to
know that the accused had sexually assaulted PW1.
10.3. PW4 residing on the eastern side of the house of the
accused deposed that on the said day at about 01:30 - 01:45 p.m.
when he came home for taking lunch, he saw the accused standing
in the car porch of the house situated on the western side of the
house of the accused. PW1 was also seen in the company of the
accused. In the evening he came to know that the accused had
sexually assaulted PW1.
10.4. PW5 deposed that he was doing masonry work in the
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house of PW2 during the time of the occurrence. On the said day,
after taking meals, while he was resting, he saw PW1 coming home
crying. The child had gone to the shop of the accused to purchase
sweets. He saw the child washing his mouth and vomiting. The
parents of PW1 asked the child the reason and then he heard the
child telling them that the accused had inserted his penis into the
mouth of the child. Immediately, the parents of the child took him
to the house of the accused and questioned the act of the accused.
The accused denied the incident. A scuffle ensued. Thereafter, the
parents gave a complaint to the police.
10.5. PW6, another neighbor of the accused and PW2,
deposed that she has only hearsay knowledge about the incident.
According to her, on the said day while she was sleeping inside her
house, she heard someone shouting outside. When she came out of
her house, she saw a small crowd which consisted of PW2 and her
husband also. When she enquired the matter, she was told that the
accused had sexually assaulted PW1.
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10.6. PW7, a doctor attached to Taluk Hospital,
Karunagappally, deposed that on 08/11/2014 at 08:10 p.m., he had
examined PW1 and issued Ext.P2 report. No external injuries were
seen. The child had come to the hospital with a history of unnatural
sexual offence.
10.7. PW12, WCPO, Karunagappally police station, deposed
that she had recorded Ext.P1 FIS of PW1 at which time the parents
of the child were also present. PWs 14 and 13 are the officers who
conducted the investigation in this case.
On going through the testimony of the material prosecution
witnesses, including PW1, the victim, I find no infirmities or
inconsistencies in their testimony. Nothing was brought out to
discredit the testimony of PW1 or the other material prosecution
witnesses. I do not find any infirmity in the findings of the trial
court calling for an interference by this Court. Thus the appeal sans
merit is dismissed.
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Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
NP
