Kerala High Court
Devarajan, S/O.Nagarajan, ... vs State Of Kerala on 27 January, 2025
Crl.Appeal No.611 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO. 611 OF 2020
CRIME NO.914/2016 OF TANUR POLICE STATION, MALAPPURAM
AGAINST THE JUDGMENT DATED 08.05.2019 IN SC NO.850 OF
2016 OF SPECIAL COURT UNDER POCSO ACT, MANJERI
APPELLANT/ACCUSED:
DEVARAJAN, AGED 28 YEARS,
S/O.NAGARAJAN,
C.NO.305/19,
CENTRAL PRISON, KANNUR.
Adv. RESMI NANDANAN (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
22.01.2025, THE COURT ON 27.01.2025 DELIVERED THE
FOLLOWING:
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C.S.SUDHA, J.
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Crl.Appeal No.611 of 2020
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Dated this the 27th day of January 2025
JUDGMENT
In this appeal filed under Section 383 Cr.P.C, the
appellant who is the sole accused in S.C.No.850/2016 on the file
of the Special Court for the Trial of Offences Against Children
(Additional Sessions Court - I) Manjeri, challenges the conviction
entered and sentence passed against him for the offences
punishable under Sections 376(2)(f)(i)(n) IPC and Sections 5(n)
read with Section 6 of the POCSO Act.
2. The prosecution case is that PW5, a minor girl
aged 14 years, while studying in the VIIIth standard, went for a
brief stay at her sister's matrimonial home during the mid-summer
vacation in May 2016. She was sexually abused and raped by the
accused, who is none other than her sister's husband, pursuant to
which she conceived and delivered a child. Therefore, the accused
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as per the final report was alleged to have committed the offences
punishable under Section 376(2)(n) IPC and Section 5(n) read
with Section 6 of the PoCSO Act. Crime no.717/2016,
Panniyankara Police Station was registered, that is, Ext.P18 FIR
by PW13, the then Sub Inspector based on Ext.P3 FIS of PW5,
the victim, which was recorded by PW3, Sub Inspector,
Chemmangad Police Station. PW14, Circle Inspector, Kasaba,
Kozhikode, conducted the initial investigation in the case. As the
crime was committed within the limits of Tanur Police Station,
Malappuram, he sent the FIR to the said police station. PW11,
the then Sub Inspector, Tanur Police Station deposed that on
01/11/2016 he received Ext.P18 FIR, based on which he
registered crime no.914/2016, that is, Ext.P9 FIR and submitted
the same to his superior authority. PW12, Circle Inspector, Tanur
police station took over the investigation and conducted the
investigation of the case. PW17, Circle Inspector, Tanur,
completed the investigation and submitted the final report before
the court alleging the commission of the offences punishable
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under the aforementioned Sections by the accused.
3. On appearance of the accused, the trial court
framed a charge for the offences punishable under Section 376(2)
(i)(n) IPC and Section 5 (l) (n) read with Section 6 of the PoCSO
Act, which was read over and explained to the accused to which
he pleaded not guilty.
4. On behalf of the prosecution, PW1 to PW17
were examined and Exts. P1 to P23 were got 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. regarding the
incriminating circumstances appearing against him in the
evidence of the prosecution. The accused denied those
circumstances and maintained his innocence.
5. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused.
6. 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 376(2)(f)(i) and (n) of IPC and Section
5(n) read with Section 6 of the PoCSO Act. Hence the trial court
proceeded to convict the appellant/accused under Section 235(2)
of Cr.P.C for the aforesaid offences, thus - "...So the convict is
sentenced with rigorous imprisonment for 10 years and a fine of
Rs.50,000/-. In default of payment of fine amount, Rigorous Imprisonment
for 6 months for the offence punishable 376(2)(f)(i)(n) of IPC and in the
alternative, he is also sentenced with rigorous imprisonment for 10 years
and fine of Rs.50,000/-, in default of payment of fine amount, Rigorous
Imprisonment for 6 months for the offence punishable under Section 6 r/w
5(n) of POCSO Act. The fine, if remitted shall be disbursed to the victim.
The convict is entitled to set off U/s.428 Cr.P.C....". Aggrieved, the
present jail appeal has been filed.
7. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the appellant/accused by the trial court are sustainable or
not.
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8. Adv. Resmi Nandanan was appointed as State
Brief. Heard both sides.
9. According to PW5, during the night of
15/05/2016, the accused raped her. When she started crying, the
accused ran out. She then went to the toilet and washed herself.
She was frightened/scared and so did not reveal the incident to her
sister or others. Two days thereafter, the accused repeated the
same act. The next day accompanied by her sister; she returned
home. However, she never disclosed the incident to her sister.
About 3 to 4 months thereafter, she felt uneasiness and pain in her
abdomen. She revealed the incident to the nurse at her school who
advised her to conduct a urine test. Thereafter, the police came to
her school at which time she gave Ext.P3 FIS. She was produced
before the doctor to whom she disclosed the incident. The doctor
after a thorough check up confirmed that she was pregnant. She
was thereafter produced before the magistrate before whom she
gave Ext.P5, her 164 statement.
9.1. PW1 and PW2 are the two doctors who had
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examined PW5. Ext.P1 is the certificate issued by PW1
confirming that the victim was pregnant. Thereafter, PW5
delivered a male child. Ext.P23 certificate issued from the
Forensic Science Laboratory shows the result of the DNA
examination conducted as to the paternity of the child. Ext.P23
proves that the accused is the father of the child delivered by
PW5. Thus, the scientific evidence corroborates and supports the
prosecution case of sexual abuse of PW5 by the accused herein.
Therefore, the offences, for which the appellant/accused has been
charged, has been clearly established. I find no reason(s) to
disbelieve the testimony of the PW5 in the light of Ext.P23. I do
not find any infirmity in the findings of the trial court and so the
conviction of the accused of the offences punishable under
Section 376(2) (f)(i)(n) IPC and Section 5(n) read with Section 6
of the PoCSO Act is confirmed.
10. The offence under Section 376 (2)(f)(i)(n) IPC
is punishable with rigorous imprisonment for a term which shall
not be less than 10 years but which may extend to imprisonment
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for life, which shall mean imprisonment for the remainder of that
person's natural life, and shall also be liable to fine.
The offence under Section 5(n) of the PoCSO Act is punishable
as it stood then with rigorous imprisonment for a term which shall
not be less than 10 years but which may extend to imprisonment
for life and fine. As per Section 42 of the PoCSO Act, where an
act or omission constitutes an offence punishable under the Act
and also under Sections 166A, 354A, 354B, 354C, 354D, 370,
370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB, 376E, Section 509 IPC or Section 67B of the Information
Technology Act, 2000, then, notwithstanding anything contained
in any law for the time being in force, the offender found guilty of
such offence is liable to punishment under the Act or under the
IPC as provides for punishment which is greater in degree. At the
risk of repetition I once again refer to the sentence portion of the
trial court judgment which reads- ....So the convict is sentenced with
rigorous imprisonment for 10 years and a fine of Rs.50,000/-. In default of
payment of fine amount, Rigorous Imprisonment for 6 months for the
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offence punishable 376(2)(f)(i)(n) of IPC and in the alternative, he is also
sentenced with rigorous imprisonment for 10 years and fine of Rs.50,000/-,
in default of payment of fine amount, Rigorous Imprisonment for 6 months
for the offence punishable under Section 6 r/w 5(n) of POCSO Act. The
fine, if remitted shall be disbursed to the victim. The convict is entitled to
set off U/s.428 Cr.P.C.....". In the light of Section 42 of the PoCSO
Act, the trial court could not have passed the sentence in the
alternative. The accused was liable to be sentenced only for the
offence under Section 376 (2)(f)(i)(n). However, the trial court
has erroneously awarded imprisonment in the alternative for the
offence under Section 5(n) read with Section 6 also, which is
apparently a mistake. Therefore, it is clarified that the
appellant/accused shall undergo rigorous imprisonment for 10
years and to fine of ₹50,000/- and in default to rigorous
imprisonment for six months for the offence punishable under
Section 376(2)(f)(i)(n) IPC. In the light of Section 42 of the
PoCSO Act, no separate sentence is passed under 5(n) read with
Section 6 of the PoCSO Act. To the said extent the impugned
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judgment shall stand modified.
The appeal is partly allowed as afore stated.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
