Sanil. K. James vs State Of Kerala
2025 Latest Caselaw 4406 Ker

Kerala High Court

Sanil. K. James vs State Of Kerala on 24 February, 2025

Author: P.B.Suresh Kumar

Bench: P.B.Suresh Kumar

                                                   2025:KER:15154

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

                                  &

        THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN

MONDAY, THE 24TH DAY OF FEBRUARY 2025/5TH PHALGUNA, 1946

                     CRL.A NO. 439 OF 2024

  CRIME NO.174/2015 OF PEECHI POLICE STATION, THRISSUR

      AGAINST THE JUDGMENT DATED 11.05.2017 IN SC NO.295

     OF 2015 OF ADDITIONAL DISTRICT COURT, THRISSUR

APPELLANT/ACCUSED:

         SANIL. K. JAMES
         AGED 43 YEARS
         S/O. JAMES K. JOHN, KUTTIKAL HOUSE, KARUKACHAL,
         NEDUMKANDOM DESOM, KARUKACHAL VILLAGE, KOTTAYAM
         DISTRICT., PIN - 686540

         BY ADV SHAJIN S.HAMEED

RESPONDENT/STATE:

         STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
         OF KERALA, ERNAKULAM., PIN - 682031

         BY ADV. SMT.BINDU.O.V., PUBLIC PROSECUTOR
     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
18.02.2025,   THE    COURT   ON       24.02.2025   DELIVERED   THE
FOLLOWING:
                                                           2025:KER:15154
CRL.A NO. 439 OF 2024

                                 -: 2 :-




       P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
            -----------------------------------------------
              Criminal Appeal No.439 of 2024
            -----------------------------------------------
         Dated this the 24th day of February, 2025


                         JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.295 of 2015 on the files

of the Court of the Additional Sessions Judge-I, Thrissur, is the

appellant in the appeal. He stands convicted and sentenced for

offences punishable under Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (POCSO Act) and

Section 376(2) (i) and (n) of the Indian Penal Code (IPC).

2. The victim was a minor girl. Her father passed

away a few years prior to the alleged occurrences which are the

subject matter of the case. She was residing with her mother,

her elder sister and her maternal grandparents. Since the 2025:KER:15154 CRL.A NO. 439 OF 2024

mother of the victim was working during the time of the alleged

occurrences as a home nurse, the victim was being taken care

of by her maternal grandparents. The accused was a Pastor in

the Salvation Army Church near the residence of the victim.

The victim and the members of her family used to attend the

said church. On 02.02.2015, the victim disclosed to one of her

teachers that she is being sexually assaulted by the accused. In

the light of the disclosure aforesaid, the teacher produced the

victim before the Child Welfare Committee, Thrissur. The Child

Welfare Committee took the statement of the victim and

forwarded the same to Peechi Police. On the said statement,

Peechi Police registered a case and the final report was filed

after investigation before the Special Court for trial of cases

under the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989, alleging that, on various

dates between 25.12.2013 and 14.01.2015, the accused

committed sexual assaults on the victim.

2025:KER:15154 CRL.A NO. 439 OF 2024

3. The Special Court framed charges against the

accused under Sections 4 and 6 of the POCSO Act, Section 376

of IPC and Section 3(1)(xi) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989. The

accused pleaded not guilty. The prosecution, thereupon,

adduced evidence to prove the charges framed against the

accused. The evidence consists of the oral testimonies of 16

witnesses examined as PWs 1 to 16 and Exts.P1 to P32

documents proved through the witnesses. After the

examination of the witnesses, at the stage of hearing under

Section 232 of the Code of Criminal Procedure (the Code), the

Special Court for trial of cases under the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, transferred

the case to the Special Court constituted under the POCSO Act,

and the said court concluded the proceedings holding that the

accused is guilty of the offences punishable under Sections 4

and 6 of the POCSO Act as also Section 376(2) (i) and (n) of IPC.

Accordingly, the accused was convicted and sentenced among 2025:KER:15154 CRL.A NO. 439 OF 2024

others, to undergo imprisonment for life for the offence

punishable under Section 376(2) of IPC. But in the light of

Section 42 of the POCSO Act, no separate sentence was

awarded to the accused for the offences punishable under the

POCSO Act since Section 376(2) provides for a punishment

which is greater in degree. The accused was acquitted of the

charge under Section 3(1)(xi) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities), 1989. 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. The victim gave evidence in the case as PW1.

PW1 deposed that she was born on 03.09.2001; that her family

belongs to the Christian denomination "Salvation Army 2025:KER:15154 CRL.A NO. 439 OF 2024

Church"; that they used to attend for prayers in the church of

the said denomination at Paykkandam; that the appellant was

the Pastor attached to the said church; that he was residing

with his family in a house located near the church and that her

family was maintaining a close relationship with the appellant

and his family. PW1 deposed that on the day previous to

Christmas, she had been to the church along with her

grandmother and at about 10 p.m. as she was leaving the

church, the wife of the appellant who was in the church then,

directed her to get some water from the house of the appellant

and when PW1 proceeded to the house of the appellant to fetch

water, the appellant was present in the house and he then held

on her chest and kissed her after embracing her. It was

deposed by PW1 that later on a day during 2014, when she

went to the house of the appellant to hand over vegetables

entrusted to her by her grandmother, the appellant wanted her

to accompany him to the church in the pretext that there is

some work there and when she accompanied him, the 2025:KER:15154 CRL.A NO. 439 OF 2024

appellant committed rape on her. PW1 also stated in her

evidence, the various acts committed on her by the appellant

then in the church. It was the version of PW1 that even though

she attempted to push the appellant aside while he was

committing rape on her, she could not do so. It was also the

version of PW1 that she did not divulge the said incident to

anyone as she was directed by the appellant not to do so. It

was deposed by PW1 that later, the appellant raped her once in

her house as well. It was deposed by PW1 that thereupon on

14.03.2015, the appellant came to her house with his family to

wash clothes as there was no water on the said day in their

house and he had raped her on that day also when his wife was

outside the house of PW1. It was deposed by PW1 that she

disclosed about the sexual assaults committed by the appellant

to her teacher, Hima on 02.02.2015 at the school and the

teacher took her to the Child Welfare Committee on 05.02.2015

along with the President of the Parent Teacher Association of

the school, her maternal grandparents as also the grand-uncle 2025:KER:15154 CRL.A NO. 439 OF 2024

and that it was PW1 who gave Ext.P1 statement before the

Child Welfare Committee. Likewise, it was deposed by PW1 that

later a woman police officer came to her house and recorded

her statement. PW1 identified Ext.P2 as the statement recorded

by the woman police officer at her house. It was also deposed

by PW1 that she gave a statement to the Magistrate also

thereafter and identified Ext.P3 as the statement given by her

before the Magistrate. PW1 identified the appellant in court as

the person who committed rape and sexual assaults on her. It

was also deposed by PW1 in her evidence that her family

belongs to Vedar community, which is a scheduled caste

among Hindus and that they changed her faith later to

Salvation Army Church.

7. PW3 is the mother of PW1. PW3 gave evidence

more or less on similar lines as the evidence tendered by PW1.

PW3, however, conceded that she had only the information that

was passed on to her by the victim as regards the rape and

sexual assaults committed by the appellant. PW4 is Hima, the 2025:KER:15154 CRL.A NO. 439 OF 2024

teacher referred to by the victim in her evidence. PW4 deposed

that it is she who gives counselling to students in the school;

that on 02.02.2015 at about 10.30 a.m., the victim came to her

and informed that she wants to disclose something

confidentially and started crying after hugging PW4. It was

deposed by PW4 thereupon that PW1 told her that the

appellant used to touch her private parts, show her obscene

videos from his mobile etc. and that PW4 took the victim to the

Child Welfare Committee in the light of the said disclosure

along with the close relatives of the victim and the President of

the Parent-Teacher Association of the school, as also stated by

the victim in her evidence. It was deposed by PW4 that on the

victim being produced before the Child Welfare Committee, her

statement was recorded there. In cross-examination, PW4

clarified that the victim had not disclosed to her that she was

raped by the appellant, even though PW4 conversed with her

from 10.30 a.m. to 12.30 p.m. on that day. It was also clarified

by PW4 in cross-examination that the victim was found to be 2025:KER:15154 CRL.A NO. 439 OF 2024

tensed and frightened at the time when she made the

disclosure to her. It was further clarified by PW4 in cross-

examination that the victim informed her that the appellant

called her on 02.02.2015 over phone and informed her that he

would come to her house on 03.02.2015.

8. PW5 was the consultant Gynaecologist

attached to the General Hospital, Thrissur, who examined the

victim on 07.02.2015 and issued Ext.P4 certificate. It was

deposed by PW5 that the victim told her that she was being

assaulted by the appellant for almost two years. It was

deposed by PW5 that the hymen of the victim was found torn

and the tear was found to be old, on examination. Although

PW5 deposed that no injury was noted by her on the perineum

and vulva of the victim, there was evidence of past vaginal

penetration.

9. PW6 was the woman police officer referred to

by PW1 in her evidence, who recorded Ext.P2 statement, and

she deposed the said fact in her evidence. PW7 was the 2025:KER:15154 CRL.A NO. 439 OF 2024

Headmistress of the School where the victim was pursing her

studies. PW7 proved the abstract of the School Admission

Register of the victim and deposed based on the same that the

date of birth of the victim is 03.09.2001.

10. PW13 was the member of the Child Welfare

Committee, who recorded Ext.P1 statement from the victim.

PW13 affirmed the said fact in her evidence and deposed that it

was she who forwarded Ext.P1 statement to the police for

appropriate action. PW14 was the police officer who registered

the First Information Report based on Ext.P1 statement. PW14

affirmed the said fact in his evidence. PW15 was the police

officer who conducted a substantial part of the investigation in

the case and PW16 was the police officer who concluded the

investigation in the case. PW15 and PW16 gave evidence as

regards the various steps taken by them in the course of the

investigation.

11. It is based on the evidence discussed above

that the Special Court arrived at the conclusion that the 2025:KER:15154 CRL.A NO. 439 OF 2024

appellant is guilty of the offences punishable under Sections 4

and 6 of the POCSO Act and Section 376(2) (n) and (i) of IPC.

The first and foremost contention taken by the learned counsel

for the appellant was that the evidence tendered by the victim

is not reliable and trustworthy and the same cannot, therefore,

be the sole basis of a conviction. According to the learned

counsel, the evidence of the victim does not appear to be real

and natural, as even according to the victim, she had not raised

any objection against the various acts allegedly committed by

the appellant for a continuously long period of time and anyone

in her position would have certainly raised objections against

such conduct especially when she was sufficiently matured,

even though she was a minor at the relevant time. It was also

contended by the learned counsel that at any rate, the age of

the victim has not been proved by the prosecution in

accordance with law and that therefore, the conviction of the

appellant under Sections 4 and 6 of the POCSO Act is

unsustainable. It was also contended by the learned counsel 2025:KER:15154 CRL.A NO. 439 OF 2024

that the sentence imposed on the appellant is too harsh and

grossly disproportionate to the gravity of the offences alleged

against him. The appellant was convicted and sentenced to

undergo twenty years rigorous imprisonment earlier in a similar

case and it was while he was undergoing imprisonment in that

case that he was convicted in the case on hand. The sentence

in the earlier case was modified by this Court to ten years

rigorous imprisonment as per the judgment in Crl.Appeal

No.392 of 2016. Another contention taken by the learned

counsel therefore, was that the Special Court ought to have, in

the circumstances, directed the sentence awarded to the

appellant in this case to run concurrently with the previous

sentence, in the light of the provision contained in Section 427

of the Code.

12. We have examined the contentions aforesaid of

the learned counsel for the appellant. In order to prove the

allegations of sexual assaults and rape, the prosecution relies

only on the evidence of the victim. Reliance is placed on the 2025:KER:15154 CRL.A NO. 439 OF 2024

evidence of the remaining witnesses only for the purpose of

corroborating the evidence tendered by the victim. There

cannot be any doubt that the evidence of a rape victim can be

the sole basis of a conviction. But, in order to base a conviction

solely on the evidence of a rape victim, the evidence of the

victim shall be of sterling quality. The evidence of a sterling

quality is one that appears natural and consistent with the case

of the prosecution qua the accused; that under no

circumstances, such witnesses shall give room for any doubt as

to the factum of the occurrence and that the evidence shall

have co-relation with each and every other supporting

materials, including expert opinions. To put it differently, the

version of such witnesses on the core spectrum of the crime

should remain intact while all other attendant materials,

namely, oral and documentary should match with the said

version in material particulars [See Rai Sandeep v. State

(NCT of Delhi), (2012) 8 SCC 21]. The pointed question, 2025:KER:15154 CRL.A NO. 439 OF 2024

therefore, is whether the victim in the case on hand can be said

to be a sterling witness.

13. We have perused the evidence tendered by

PW1 meticulously. The evidence of PW1 has to be appreciated

in the social background in which she was living at the relevant

time. As noted, her father was no more and her mother was not

residing with her at the relevant time. It has come out from the

evidence of the victim that she and the members of her family

were very much attached to the activities in the church and

were very close to the appellant, who was a Pastor in the

church and his family. It has also come out in evidence that it

was a regular affair for the victim and the members of her

family to visit not only the church but also the house of the

appellant and the appellant and his family also used to visit the

house of the victim. The victim has narrated in her evidence in

a very convincing manner, the sequence of events involving

sexual assaults and rape to which she was subjected to from

the day prior to Christmas in the year 2013 till the date she 2025:KER:15154 CRL.A NO. 439 OF 2024

disclosed about the same to PW4. As noted, before she gave

evidence in the case, she gave Ext.P1 statement to the Child

Welfare Committee, Ext.P2 statement to the police and Ext.P3

statement to the Magistrate. The evidence tendered by PW1

was consistent with all the three previous statements referred

to above and even though the victim was exhaustively cross-

examined by the counsel for the accused, nothing could be

brought out to discredit her evidence. The evidence of the

victim was free from contradictions and omissions despite the

three previous statements referred to above. The said evidence

appears to us to be fully natural and consistent with the case

of the prosecution qua the appellant. The victim did not give

room for any doubt as to the factum of the occurrences. It is

relevant in this context to point out that it has come out in the

evidence that the family of the victim belonged to the

scheduled caste 'Vedar' among Hindus and that they changed

their faith to Christianity and joined Salvation Army Church.

There is nothing on record to indicate that the victim or any of 2025:KER:15154 CRL.A NO. 439 OF 2024

the members of her family had any sort of ill-will towards the

appellant so as to falsely implicate him in a case of this nature,

especially when he was a Pastor in the Church to which they

changed their faith. Further, the evidence of the victim was

corroborated in material particulars by the evidence tendered

by PW4, the teacher in the school. The evidence tendered by

PW4 that the victim could not control her emotions when she

informed her about the sexual assaults as also sexual

harassments committed by the appellant, appears to us to be

real and natural. As noted, the victim made the disclosure as

referred to above to PW4 on 02.02.2015. Even though the

victim and PW4 did not disclose in their evidence the occasion

for the victim to make such a disclosure, the occasion was

brought to light by the appellant himself in the cross-

examination of PW4 that he called the victim on 02.02.2015

and informed her that he would be coming to her house on

03.02.2015. The appellant has no case that PW4 has an axe to

grind against him for any reason whatsoever. As such, we do 2025:KER:15154 CRL.A NO. 439 OF 2024

not find any reason to disbelieve the evidence tendered by

PW4 which is very much consistent with the case of the

prosecution qua the appellant. Further, the evidence tendered

by PW4 as regards the occasion for the victim girl to make a

disclosure to her as regards the sexual assaults committed by

the accused on her makes the evidence of PW4 real, natural

and convincing. That apart, the evidence tendered by PW1 has

been corroborated by the evidence of PW5, the doctor who

examined the victim after she made the disclosure to PW4. As

noted, PW5 has categorically stated in her evidence that the

victim disclosed to her that she was being assaulted sexually

by the appellant for about two years and that she found, on

examination, that there was evidence of past vaginal

penetration. In the light of the discussion aforesaid, we do not

find any infirmity in the finding rendered by the Special Court

that the appellant committed rape and sexual assaults on the

victim repeatedly.

2025:KER:15154 CRL.A NO. 439 OF 2024

14. As noted, although the appellant was found

guilty of the charges under Sections 4 and 6 of the POCSO Act,

he was not sentenced for the said offences in the light of the

provision contained in Section 42 of the said statute. The

appellant was sentenced only for the offence punishable under

Section 376(2) (n) and (i) of IPC on the basis of the finding that

he committed rape repeatedly on a woman under 16 years of

age. No doubt, the age of the victim needs to be established to

make out a case under Section 376(2) inasmuch as it is alleged

that the victim at the relevant time was under the age of 16

years. But, inasmuch as it was found that the appellant had

committed rape on the victim repeatedly, in the absence of any

case for the appellant that he indulged in sexual intercourse

with the victim with her consent and inasmuch it was found

that the appellant had committed rape on the victim against

her will repeatedly, the appellant is liable to be convicted, at

any rate, for the offence punishable under Section 376(2) (n)

IPC. It is therefore, unnecessary to examine the contention 2025:KER:15154 CRL.A NO. 439 OF 2024

raised by the learned counsel for the appellant that the

prosecution failed to prove the age of the victim.

15. Coming to the contention raised by the learned

counsel as regards the sentence, the minimum punishment

prescribed for the offence punishable under Section 376(2) of

IPC at the time of commission of the offence was only ten

years. Similarly, at the relevant time, the minimum punishment

prescribed for the offence punishable under Section 6 of the

POCSO was also ten years. Having regard to the nature of the

accusation and other facts and circumstances, we are of the

view that ten years rigorous imprisonment in the place of

twenty years rigorous imprisonment imposed by the Special

Court would meet the ends of justice for the conviction of the

appellant under the provisions referred to above.

16. Now, let us consider the contention taken by the

learned counsel for the appellant based on the provision

contained in Section 427 of the Code, which is identical to the

corresponding provision in Section 467 of the Bharatiya Nagarik 2025:KER:15154 CRL.A NO. 439 OF 2024

Suraksha Sanhita, 2023 (BNSS). Ext.P32 is the judgment

rendered by the Special Court convicting and sentencing the

appellant in the previous case. It was Ext.P32 judgment that

was modified by this Court in Crl.Appeal No.392 of 2016.

Section 427(1) of the Code reads thus :

"427. Sentence on offender already sentenced for another offence.--(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."

In the light of the extracted provision, when a person already

undergoing a sentence of imprisonment is sentenced on a

subsequent conviction to imprisonment, such imprisonment

shall commence at the expiration of the imprisonment to which

he has been previously sentenced, unless the court directs that

the subsequent sentence shall run concurrently with such 2025:KER:15154 CRL.A NO. 439 OF 2024

previous sentence. In other words, in a case of this nature, the

court is empowered to order the sentence passed against the

appellant to run concurrently with the previous sentence. The

question is whether the court would be justified in issuing such

a direction, in the case on hand. There is no straitjacket formula

to decide this question. The discretion conferred on the court

has to be exercised on the facts and circumstances of each

case judicially and there is no cut and dried formula for the

court to follow in the matter of issue or refusal of a direction

within the contemplation of Section 427(1) [See V.K. Bansal v.

State of Haryana, (2013) 7 SCC 211]. The salutary principle

in this regard is the totality of the sentences.

17. In both cases, the accused was charged under

Sections 4 and 6 of the POCSO Act and under Section 376(2)

IPC. In the present case, the offence was committed over a

period commencing from December 2013 to January 2015. It is

during the same period that the identical offence has been

committed by the accused in the previous case. In other words, 2025:KER:15154 CRL.A NO. 439 OF 2024

the offences were committed ranging in the same time period.

The only difference is that the victims are different, although

they were of almost the same age. The accused has to undergo

imprisonment for a period of 20 years, if the benefit of Section

427 of the Code is not extended to him. Inasmuch as it is found

that the appropriate punishment to be imposed on the accused

for having committed rape on the victim repeatedly in the

previous case under Section 376(2) IPC is ten years

imprisonment, even though the victims of the offences are two

different persons, we are of the view that the benefit of Section

427 of the Code ought to be extended to the accused and the

sentences imposed on him shall be ordered to run concurrently,

as otherwise, the sentence would be disproportionate to the

gravity of the offences committed by him.

In the result, the criminal appeal is allowed in part

and the sentence imposed on the accused is limited to ten

years. It is also directed that the sentence in this case shall run

concurrently with the sentence passed against him in S.C. 2025:KER:15154 CRL.A NO. 439 OF 2024

No.284 of 2015 on the files of the I Additional Sessions Court,

Thrissur. The impugned judgment will stand modified to that

extent.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

Mn