Kerala High Court

Abdul Salam vs The State Of Kerala on 7 January, 2025

                                             2025:KER:735

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946

                CRL.APPEAL NO. 94 OF 2014

  AGAINST THE JUDGMENT DATED 23.01.2014 IN SC NO.436 OF

           2010 OF THE SESSIONS COURT, MANJERI

APPELLANT/ACCUSED:

         ABDUL SALAM
         S/O. MUHAMMED, PERKUTHU HOUSE, EDAPATTA,
         MALAPPURAM DISTRICT.

         BY ADVS.
         SRI.BABU S. NAIR
         SMT.SMITHA BABU


RESPONDENT/STATE:

         THE STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
         COURT OF KERALA, ERNAKULAM, KOCHI-31, THROUGH
         THE CIRCLE INSPECTOR OF POLICE, MALAPPURAM,
         MALAPPURAM DISTRICT.

         SRI C N PRABHAKARAN, SR PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 26.11.2024, THE COURT ON 07.01.2025 DELIVERED
THE FOLLOWING:
                                                     2025:KER:735
                                 2
Crl.Appeal No.94 of 2014


                     P.G. AJITHKUMAR, J.
    -----------------------------------------------------------
                   Crl.Appeal No.94 of 2014
    -----------------------------------------------------------
           Dated this the 7th day of January, 2025

                             JUDGMENT

The accused in S.C.No.436 of 2010 on the files of the

Sessions Court, Manjeri is the appellant. He was convicted as per

the impugned judgment for an offence punishable under Section

376 of the Indian Penal Code, 1860 (IPC). He was sentenced to

undergo rigorous imprisonment for a period of seven years and to

pay a fine of Rs.10,000/-.

2. The prosecution was initiated with the following

allegations:

At about 10.00 p.m. on 08.09.2008 the accused committed

rape on his daughter, PW1, aged 13 years at the house of his

elder brother situated at Edapatta. He repeated committing

rape on her at their house having door No.III/35 of Ponmala

panchayat. It recurred till the last week of February 2009.

Consequently, PW1 became pregnant and delivered a girl child

at the Medical College Hospital, Kozhikode on 03.05.2009.

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3. On the appellant denying the charge, the

prosecution has examined PWs.1 to 7 and proved Exts.P1 to

P14. MOs.1 to 4 were identified. When questioned under

Section 313(1)(b) of the Code of Criminal Procedure, 1973

(Code), the appellant denied the incriminating circumstances.

He filed a statement setting out his defence. He stated that he

was unaware about the pregnancy of the victim, even when

she was taken to the Medical College Hospital. He alleged that

Mujeeb, son of PW5 was responsible for the pregnancy of PW1

and in order to save him, the appellant was implicated by PW1

under the persuasion of her mother, PW5. No evidence except

Ext.D1, a contradiction in the former statement of PW1, was

let in.

4. The trial court, after analysing the evidence in

detail, concluded that PW1 was a reliable witness and her

evidence coupled with the oral testimonies of PW4, the Doctor

and PW5, the mother, proved the guilt of the appellant beyond

doubt. The said finding and the reasons thereof are assailed in

this appeal filed under Section 374(2) of the Code.

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5. Heard the learned counsel for the appellant and the

learned Senior Public Prosecutor.

6. PW1 is the victim. She was aged 13 years at the

time of occurrence. The appellant is her father and PW5 is her

mother. PW1 was residing along with her siblings, the appellant

and her mother (PW5). Her brother, Mujeed was born to PW5 in

her first marriage. In her second wedlock of PW5 with the

appellant, PW1 and her younger sister were born. All of them

were residing together at their house at Ponmala.

7. The first incident of rape occurred at the house of

the appellant's elder brother at Edapatta. Subsequently, on a

few occasions she was subjected to sexual abuse by the

appellant at their house at Ponmala. She has narrated about

such incidents. The appellant took PW1 and her younger sister

to the house of his elder brother, stating that his younger

brother was coming home from abroad. On that day his elder

brother was absent and his sister-in-law alone was there.

8. PW1 deposed that she and her sister slept in a

room. After her sister went asleep, the appellant subjected 2025:KER:735

her to sexual intercourse despite her residence. She deposed

further that on subsequent occasions while they were at their

house at Ponmala, she was subjected to sexual intercourse by

the appellant on a few occasions during Ramadan season.

9. PW1 got impregnated. On noticing her swollen

abdomen, PW5 along with the appellant took PW1 to a Doctor at

Ponmala who noticed her to be pregnant, and instructed to take

her to the Medical College Hospital, Kozhikode. After

examination, PW4, a professor in Obstetrics and Gynaecology at

the Medical College, confirmed pregnancy. Age of the fetus was

found to be above six months. Owing to her tender age, PW1

was retained in that hospital and a child was delivered by her.

10. PW5 deposed that she along with the appellant

took PW1 on 09.03.2009 to the Doctor on noticing her

abdominal distension. After confirmation of the pregnancy by

the Doctor, PW1 told that the appellant was responsible. It is

her further version that the appellant suggested to take PW1

to some hospitals and to do the necessary. Accordingly, PW1

was taken to the Medical College Hospital, Kozhikode.

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11. PW4 was the Professor in Obstetrics and

Gynecology at the Government Medical College, Kozhikode.

She deposed that on 11.03.2009 she examined PW1 and at

that time PW1 was carrying a fetus of 26 weeks of age. She

was told by PW1 that her father was responsible for the

pregnancy. PW4 proceeded to depose that being a case of

teenage pregnancy, PW1 was retained in the hospital, and she

gave birth to a child on 30.05.2009. She was discharged from

the hospital on 03.06.2009. Ext.P5 is the certificate issued by

PW4.

12. The F.I.statement, Ext.P1 was recorded from PW1

on 13.03.2009. Based on Ext.P1, the crime was registered.

Ext.P6 is the FIR. PW7, Circle inspector of Police has

conducted the investigation and laid the charge. A potency

test of the appellant was conducted by PW3 and the certificate

in that regard is Ext.P3. In the opinion of PW3, there was

nothing to suggest that the appellant was incapable of doing

sexual acts.

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13. The proof or not of the charge against the appellant

depends on the reliability of PW1. It was on 09.03.2009 she

was examined by the Doctor and confirmed the pregnancy. On

11.03.2009 she was examined by PW4 at the Medical College

Hospital, Kozhikode. On 13.03.2009 she gave Ext.P1

statement. Going by the oral evidence, immediately on

revealing the pregnancy, PW1 told PW5 that the appellant was

responsible. PW1 claimed to have stated that fact to the

Doctor at Orchid Hospital, Malappuram, where she was

scanned and examined. That Doctor was not examined. But

PW4, who examined PW1 on 11.03.2009 stated in court that

PW1 revealed the appellant as the person responsible and

that version repeated in Ext.P1 that was given on 13.03.2009.

Thus, from the very beginning, the version of PW1 regarding

the person responsible for her pregnancy has been consistent.

14. The learned counsel would submit that PW1

accused the appellant in order to save Mujeeb, the son of PW5

in her first marriage. Various circumstances have been

pointed out by the learned counsel for the appellant and it is 2025:KER:735

submitted that since the only evidence available to implicate

the appellant with the crime is the oral testimony of PW1, any

doubt appeared in her evidence has to go in favour of the

appellant. It is submitted, only if PW1 can be termed as a

witness of sterling quality, there can be conviction. In that

regard, the learned counsel placed reliance on the decision of

this Court in Christopher v. State of Kerala [2024 KHC

7137] and a line of decisions referred to therein.

15. Inconsistencies in the evidence of PW1 highlighted

by the learned counsel for the appellant are essentially a few

improbabilities. Regarding the first incident, the narration by

PW1 was that while sleeping along with her younger sister it

occurred. That and the way in which she was allegedly abused

are said to be improbable. The incidents allegedly occurred at

their house at Ponmala were in the wee hours during Ramzan

days. All were sleeping together. PW5 used to go to kitchen at

or around 4.00 p.m. It was at that time PW1 was sexually

misused. PW1 admitted her interaction with Mujeeb which was

to the dislike of the appellant. He even warned PW5 against it.

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Although it was suggested that PW1 lied along with Mujeeb

and she was therefore scolded by the appellant, it was denied

by her.

16. It appears from the evidence that the appellant did

not like PW1 interacting with Mujeeb closely. Along with that

the version of PW5 to the effect that it was Mujeeb and not

the appellant who was looking after the house hold affairs is

highlighted. Those matters were relied in support of the

defence plea that in order to save Mujeeb, the appellant was

falsely implicated. Yet another aspect pointed out is that no

scientific test like DNA examination was conducted and it was

with an oblique motive of screening Mujeeb from the

prosecution.

17. The aforementioned contentions are strongly

refuted by the learned Public Prosecutor. It is submitted that

the evidence of PW1 is blemish free. She being the daughter,

it cannot be expected that she falsely implicate the appellant.

Except suggestions by the appellant, there is no evidence or

circumstance to even remotely probabilise the defence plea.

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Accordingly, the learned Senior Public Prosecutor would

submit that the findings of the trial court are quite convincing

and devoid of any infirmity.

18. Decisions of the Apex Court which dealt with the

question concerning reliability of the victim of a sexual offence

have been encapsulated by a Division Bench of this Court in

the judgment in Christopher (supra). The relevant part of

that judgment is extracted below:

"26. In Nirmal Premkumar and another v. State, represented by Inspector of Police [(2024) SCC OnLine SC 260], the Apex Court while elucidating the principles that are to be borne in mind while appreciating oral testimony, it was observed as under in paragraph No. 11 of the judgment:

"11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz. : (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence."

27. In State of H.P. v. Raghubir Singh [(1993) 2 SCC 622] , the Apex Court held that there is no legal compulsion 2025:KER:735

to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

28. In Rai Sandeep v. State (NCT of Delhi) [(2012) 8 SCC 21], under what circumstances can a witness be categorized as a sterling witness, the Apex Court had held as under:

22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-

examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other 2025:KER:735

supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.

29. In State of Maharashtra v. Chandraprakash Kewalchand Jain [(1990) 1 SCC 550], the Apex Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under in paragraph No.16:

"16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a 2025:KER:735

victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

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30. In State of Punjab v. Gurmit Singh[(1996) 2 SCC 384], the Apex Court held that in cases involving sexual harassment, molestation etc., the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court went on to observe as under in paragraph Nos. 8 & 21:

"8. .................... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ........................... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court 2025:KER:735

just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ................................. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

................................ Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

xxxxx xxxxx xxxxxx

21. ............................ The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

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31. In State of Orissa v. Thakara Besra [(2002) 9 SCC 86], the Apex Court held that rape is not mere physical assault, rather it often destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case, and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

32. In Krishan Kumar Malik (supra), the Apex Court emphasized the duty of the court to differentiate between genuine cases from frivolous and concocted ones. It was held that the role of courts in such cases is to see whether the evidence available before the court is enough and cogent to prove the guilt of the accused. It was held as follows in paragraphs Nos. 31 and 32 of the judgment:

31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her 2025:KER:735

evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.

33. After evaluating all the past precedents, the Apex Court in Nirmal Premkumar (supra) held that in cases where witnesses are neither wholly reliable nor wholly unreliable, the Court should strive to find out the true genesis of the incident. The Court can rely on the victim as a "sterling witness" without further corroboration, but the quality and credibility must be exceptionally high. The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistencies excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, could make it difficult for a conviction to be recorded." (emphasis supplied)

19. Evidence of PW1 has to be approached in the light

of the propositions of law laid down in the aforesaid decisions.

As stated, the version of PW1 from the very beginning has

been that the appellant was responsible for her pregnancy.

The inconsistencies pointed out by the learned counsel with 2025:KER:735

respect to the place and circumstances in which the sexual

abuse occurred are not very significant and cannot have the

effect of discrediting PW2 altogether. What PW5 stated about

the reaction of the appellant while telling him about the

pregnancy is quite relevant. He wanted to take her to some

hospital and do the needful, obviously abortion of the fetus.

The appellant being the father, his concern can be inferred.