Kerala High Court
Xxxxx vs State Of Kerala on 3 March, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal 572 of 2021 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
CRL.A NO. 572 OF 2021
CRIME NO.122/2017 OF Meenangadi Police Station, Wayanad
AGAINST THE ORDER/JUDGMENT DATED 29.05.2019 IN SC
NO.170 OF 2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT
- I, KALPETTA
APPELLANT:
XXXXX
X
BY ADV Rajendran T.G
RESPONDENTS/STATE & COMPLAINANT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -
682 031.
2. THE INSPECTOR OF POLICE, MEENANGADI POLICE
STATION, WAYANAD DISTRICT - 673 591.
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BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
OTHER PRESENT:
SMT NEEMA T V, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.02.2025, THE COURT ON 3/3/2025 DELIVERED THE
FOLLOWING:
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RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Crl.Appeal 572 of 2021
---------------------------------
Dated this the 3rd day of March 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the sole accused in SC No.170/2017,
challenging his conviction under Sections 452, 376(2)(f),(n)&(i)
and 506(ii) of IPC and Sections 5(l)&(n) r/w Section 6 of the
Protection of Children from Sexual Offences Act, 2012('POCSO Act'
for short) and sentence imposed under the afore IPC provisions by
the Special Court for trial of offences under POCSO Act and
Children's Court, Kalpetta.
2. The prosecution case is that on 5/3/2017 at about 10.15
pm, the accused, who is a close relative of the victim (PW2) aged
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15 years, criminally trespassed into her house situated in
Oorukandy Paniya Colony and took her to a shed nearby and
committed rape/aggravated penetrative sexual assault upon her.
Thereafter, on 15/3/2017 at about 12 am, inside the house of the
accused situated in Mundavara, the accused after threatening and
intimidating her, again committed rape/aggravated sexual assault
upon her.
3. In the trial court, from the side of the prosecution, PW1 to
PW16 were examined and Exhibits P1 to P24 documents and MO1
and MO2 were marked. On examination under Section 313 Cr.P.C.,
the accused denied all the incriminating circumstances appearing
against him in evidence and contended that he is innocent. From
the side of the accused, no evidence was adduced. The trial court
on an appreciation of the evidence on record, found the accused
guilty and convicted him under Sections 452, 376(2)(f),(n)&(i)and
Section 506(ii) of IPC and Sections 5(l)& (n) read with Section 6 of
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the POCSO Act. The accused was sentenced to undergo rigorous
imprisonment for a period of five years and to pay a fine of
Rs.10,000/- under Section 452 IPC and in default, to undergo RI
for six months. The accused was also sentenced to undergo
rigorous imprisonment for life for the remainder of his natural life
and to pay a fine of Rs.50,000/- each for the offences under
Sections 376(2)(n), 376(2)(i) and 376(2)(f) of IPC. In case of each
default, the accused was ordered to undergo rigorous
imprisonment for a period of one year each. The accused was
further sentenced to undergo rigorous imprisonment for a period of
five years and to pay a fine of Rs.10,000/- under Section 506 (ii)
IPC. In case of default, the accused was ordered to undergo
rigorous imprisonment for a period of six months. No separate
sentence was awarded for the offences under the POCSO Act and
the substantive sentences were ordered to run concurrently.
4. While challenging the impugned judgment, the learned
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counsel for the appellant Adv. Tarin Rajendran contended that the
evidence adduced by the prosecution, even if they are accepted in
toto as gospel truth, will not establish the guilt of the accused. He
argued that the testimony of PW2 is shaky and the trial court has,
even without looking for corroboration, relied upon it and has
convicted the accused. He contended that the medical and
scientific evidence adduced in this case only supports the
contention of the accused that he is not involved in the crime. He
argued that the prosecution did not even examine the ladies, to
whom the victim first confided about the incident and thereby, has
suppressed material evidence. He further submitted that the
sentence imposed by the trial court is highly excessive.
5. Per contra, the learned Public Prosecutor Adv.Neema.T.V
supported the impugned judgment and contended that there are
no grounds to interfere with it. She, by relying on the decision of
the Apex Court in State of H.P. v.Asha Ram [(2005) 13 SCC
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766] contended that, a conviction can be founded solely upon the
testimony of the prosecutrix, if it inspires confidence and there is
no need to look for corroboration in the absence of compelling
circumstances. According to her, PW2 is a sterling witness and the
trial court was fully justified in relying upon her evidence to convict
the accused. She further, by relying on the decisions of the Apex
Court in Wahid khan v. State of Madhya Pradesh.[(2010) 2
SCC 9] and Rafiq v. State of U.P. [(1980) 4 SCC 262]
contended that the absence of injuries on the private parts of the
victim is not a ground to discard the prosecution case and even
going by the relevant provisions of the statutes, there is no
requirement of complete penetration for attracting the offences
alleged. Hence, she prayed that this appeal may be dismissed.
6. Before delving into the evidence, it would only be
appropriate to discuss the material evidence let in by the
prosecution in this case. PW1 is the mother of the victim. She
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deposed that the date of birth of the victim is 3/3/2002 and the
victim was studying in 10th standard during the incident. The
accused is her sister's husband and she came to know about the
rape from her husband. Her daughter also told her about it. She
identified MO1 and MO2 as the dresses worn by the victim and her
signature in Ext.P1 mahazar, by which they were seized. In her
cross examination, she stated that she had returned to her house
after completing a three month tenure of work in Calicut and it is
at that time, her daughter narrated to her about the incident.
7. PW2 is the victim in this case. She deposed that she is at
present in Nirbhaya Home at Kaniyambata and that her date of
birth is 28/6/2007. The accused is her uncle and the incident took
place while she was studying in 10th standard. At about 10 pm,the
accused entered her house and called her outside, while she was
sleeping with her mother's sister. Thereafter, the accused dragged
her to the shed nearby and at that time all the inmates of the
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house were asleep. Inside the shed, the wife of the accused was
sleeping in an inebriated condition. The accused forcefully removed
her dress and inserted his penis into her vagina. When she
shouted, the accused gagged her mouth and threatened to kill her
if she disclosed the events to anyone. When the accused released
her, she went back to her house. On another day, while she and
her sister had gone to attend a function in the house of the
accused and while they were sleeping, the accused took her to
another room and again committed the similar acts. After that, she
returned back to her room. She did not disclose the incident to
anyone since she was afraid of the accused and his threats. Later
she disclosed the events to some ladies who came to her house.
Thereafter, the police came and recorded her statement which is
Ext.P2. She also gave Ext.P3 statement before the Magistrate.
During cross-examination, she stated that she was sleeping in the
middle of her mother and sister and her father was sleeping
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nearby. In her re-examination, she stated that her date of birth is
3/3/2002 and that what she had stated earlier is not correct. She
further stated that she was 15 years at the time of the incident.
8. PW3 is the Gynecologist, who examined PW2, and issued
Ext.P4 report. She stated that she examined the victim on
25/3/2017 and the allegation, as narrated by the victim, was
sexual assault by Ananthan. She also stated that on examination,
she found no external injuries on the victim and her hymen was
intact. She added that there can be penetration without rupture of
hymen.
9. PW 4 is the father of the victim. He deposed that the date
of birth of PW2 is 3/3/2002 and that he had signed as a witness in
Ext. P5 scene mahazar.
10. PW6 is the WCPO, who recorded Ext.P2 FIS of the victim
on 24/3/2017. PW11 is the Village Officer, who prepared Ext.P11
site plan.
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11. PW12 was the headmistress of Meenangadi Govt LP
School on 4/4/2017. She deposed that the victim was a student in
her school during the period from 28/6/2007 till 7/5/2011 and that
her date of birth is 3/3/2002. Through her, Ext.P12 certificate
showing the date of birth and Ext.P13 extract of the Admission
Register were marked.
12. PW13 is the police officer who registered Ext.P14 FIR on
the basis of Ext.P2. PW14 is the doctor, through whom Ext.P15
potency certificate of the accused issued by one Dr.Sibin, was
marked. PW15 is the village assistant, through whom Ext.P16 site
plan was marked.
13. PW16 is the investigating officer in this case. He deposed
that he took over the investigation on 25/3/2017 and on the very
same day prepared Ext.P5 & P6 scene mahazars. He also seized
the dresses of the victim as per Ext.P1 mahazar and collected
Ext.P4 victim examination report from PW3. On 26/3/2017 he
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arrested the accused after preparing Ext.P17 document and
conducted his potency test. The samples collected by the doctor
were seized as per Ext.P7 mahazar and was forwarded to the court
as per Ext.P21 property list. He also prepared and sent Ext.P22
forwarding note to the court and received Ext.P23 FSL report .
Later after collecting all other relevant documents, he filed the
charge-sheet. During cross examination, he stated that he
received the complaint from Child Welfare Committee and on that
basis, recorded the statement of the victim.
14. The materials on record show that PW2, the victim, is the
star witness in this case and the trial court has wholly relied upon
her evidence to find the accused guilty. An appraisal of her
evidence shows that she has given a graphic description of the
events, which took place on two occasions i.e., one inside a shed
near her house and the other inside the house of the accused. Her
evidence reveals that while she was sleeping inside her house
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along with her mother and sister, the accused had entered her
house and had called her outside. Thereafter, the accused dragged
her to the shed nearby and had sexually abused her. Her evidence
also reveals that, when she cried aloud, the accused had gagged
her and threatened to kill her. It is also discernible from her
evidence that on another occasion when she and her family
members had gone to attend a function in the house of the
accused and while they were sleeping, the accused had taken her
to another room and had again violated her. Her evidence also
reveals that it is only because of the fact that she was afraid of the
accused and his threats, she had not disclosed the events to
anyone. Even though PW2 has been subjected to roving cross-
examination, her version regarding the core of the events spoken
to by her remains credible and cogent. The embellishments, which
had been brought out during cross examination, such as not giving
a statement to the police regarding the fact that the accused had
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opened the door and had come inside, and that he had dragged
her to the shed, are only minor ones not affecting the credibility of
the witness. At this juncture, we will also take note of the fact that
the recitals in Ext.P2 FIS tallies in material particulars with the
incident and the same lends much support to PW2's version.
15. The evidence on record further goes to show that
immediately after the registration of the FIR, on the very next day
itself, the victim was examined by PW3. Her evidence coupled with
Ext.P4 would go to show that the victim herself has narrated the
history of the incident to her, as sexual assault, by Ananthan. The
afore fact also lends considerable support to the evidence of PW2
regarding the incident and the involvement of the accused. It is
true that PW3 has not noted any external injuries on the victim
and that her hymen was intact at the time of examination. But,
PW3 has specifically deposed that there need not be any rupture of
hymen during penetration. It is also to be kept in mind that the
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physical examination on the victim was conducted only 10 days
after the last assault, and if so chances of finding external injuries
were very bleak. At this juncture, we will also take note of the fact
that the definition of 'rape' and 'penetrative sexual assault' do not
contemplate a full or complete insertion /penetration and even a
slightest penetration is sufficient to constitute the offence. Going
by Section 375 IPC and Section 3 of POCSO Act, penetration to any
extent is sufficient to constitute the offences and if so, in the
present case even if the medical evidence, as stated afore, does
not give a positive indication of sexual assault, the same is not a
ground to discard the prosecution case. (See Wahid Khan's case
& Rafiq's case (cited supra) and State of Himachal Pradesh v.
Manga Singh [(2019) 16 SCC 759].
16. It is true that in the present case, there is no
corroborative piece of evidence in support of the testimony of PW2.
The question, therefore that arises for consideration, is whether
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this Court has to look for corroboration or can rely upon the sole
testimony of the prosecutrix. It is now well settled that a
conviction can be founded on the testimony of the prosecutrix
alone unless there are compelling reasons for seeking
corroboration. The evidence of a prosecutrix is more reliable than
that of an injured witness and her testimony is vital unless there
are compelling reasons which necessitate looking for corroboration
of her statement. If the testimony of the victim inspires confidence
and is found to be reliable there is no impediment for the courts in
acting upon it. While analysing such evidence, minor contradictions
or insignificant discrepancies in the statement of a prosecutrix
should not be taken as a ground to defenestrate an otherwise
reliable prosecution case. Unless an offence has really been
committed, a girl or woman would be extremely reluctant even to
admit that such an incident had taken place which is likely to
reflect on her chastity. [See Asha Ram's case, Wahid Khan's
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case, Rafiq's case, Manga Singh's case (all cited supra)].
Hence, considering the evidence of PW2 in the light of the above
legal principles, we have no hesitation to find that there is a ring of
truth in her testimony regarding the events and we find her
testimony wholly reliable and can be acted upon even without
corroboration.
17. The evidence on record further goes to show that the
victim at the time of occurrence was aged 15. PW1, PW2 and PW4
have specifically given evidence that the date of birth of the victim
is 3/3/2002. It is to be taken note that there is no substantial
challenge from the side of the accused regarding this fact. Apart
from the above, the evidence of PW12 coupled with Ext.P13
extract of the Admission Register also confirms the fact that the
date of birth of the victim is 3/3/2002. Further, the evidence of
PW14 coupled with Ext.P15 certificate would go to show that there
is nothing to suggest that the accused was incapable of performing
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sexual acts at the relevant time.
18. The upshot of the afore discussions on evidence is that,
the prosecution has proved beyond reasonable doubt that the
accused has, on 5/3/2017 trespassed into the house of PW2 and
has committed rape/aggravated sexual assault upon her The
prosecution has also proved that on 15/3/2017 the accused had
again committed rape/aggravated sexual assault upon PW2 inside
the house of the accused. The trial court has properly appreciated
the evidence on record and has arrived at a correct conclusion of
guilt against the accused. The appellant could not bring out any
material evidence which would enable this Court to interfere with
the said conclusion. Therefore, the challenge raised on merits fails
and the conviction arrived at by the trial court stands confirmed.
Now the question to be considered is whether the sentence
imposed by the trial court is just and proper. As stated earlier, the
trial court has sentenced the accused to undergo rigorous
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imprisonment for a period of five years and to pay a fine of
Rs.10,000/- under Section 452 IPC and in default, to undergo
rigorous imprisonment for six months. It has also sentenced the
accused to undergo imprisonment for life for the remainder of his
natural life and to pay a fine of Rs.50,000/- each for the offences
under Sections 376(2)(n), 376(2)(i) and 376(2)(f) of IPC. In case
of each default, the accused was ordered to undergo rigorous
imprisonment for a period of one year each. The accused was
further sentenced to undergo rigorous imprisonment for a period of
five years and to pay a fine of Rs.10,000/- under Section 506 (ii)
IPC. In case of default, the accused was ordered to undergo
rigorous imprisonment for a period of six months. In the light of
Section 42 of the POCSO Act, no separate sentence was awarded
for the offences under the said Act. Considering the facts and
circumstances of this case, the manner of perpetrating the crime,
its gravity, the fact that the victim has not suffered any physical
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injuries in the assault, the age of the accused, his chances for
reformation, etc. we are of the view that the substantive sentences
of imprisonment imposed by the trial court is on a higher side and
the same can be modified and reduced. Considering the fact that
Section 6 of the POCSO Act prescribes a minimum sentence of 20
years and in the light of Section 42 of the said Act, we are of the
view that the appellant/accused can be sentenced to undergo
rigorous imprisonment for a period of twenty years each and to
pay a fine of Rs.50,000/- each for the offences punishable under
Sections 5(n) & 5(l) read with Section 6 of the POCSO Act and no
separate sentence need to be awarded for the offences under
Sections 376(2)(f), 376(2)(i) and 376(2)(n) of IPC. In case of each
default, the appellant/accused shall undergo rigorous
imprisonment for a period of one year. We are also of the view
that the sentence of imprisonment imposed on the
appellant/accused under Section 506(ii) of IPC can be reduced to
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one of rigorous imprisonment for a period of one year and to pay a
fine of Rs.10,000/-. In case of default in payment of fine, the
appellant/accused shall undergo simple imprisonment for a period
of two months. We are of further view that the sentence imposed
on the appellant/accused under Section 452 IPC is also on the
higher side and the same can be reduced to one of rigorous
imprisonment for a period of one year and to pay a fine of
Rs.10,000/-. In case of default, the appellant/accused shall
undergo simple imprisonment for a period of two months. The fine
amount, if realised, shall be disbursed to the victim(PW2) and the
substantive sentences shall run concurrently.
In the result, this appeal is allowed in part as follows:
i) The conviction of the appellant/accused under Sections 376(2)
(f), 376(2)(n), 376(2)(i), 452 and 506(ii) of IPC is confirmed.
ii) The conviction of the appellant/accused under Sections 5(l)&
5(n) of the POCSO Act is also confirmed.
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iii) The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of twenty years each and to pay a fine
of Rs.50,000/- each for the offences punishable under Section 5
(l)& 5(n) read with Section 6 of the POCSO Act. In case of each
default,the appellant/accused shall undergo rigorous imprisonment
for a period of one year.
iv) The appellant/accused is sentenced to undergo rigorous
imprisonment for a period of one year and to pay a fine of
Rs.10,000/- under Section 506 (ii) of IPC. In case of default in
payment of fine, the appellant/accused shall undergo simple
imprisonment for a period of two months.
v) The appellant/accused is also sentenced to undergo rigorous
imprisonment for a period of one year and to pay a fine of
Rs.10,000/- under Section 452 IPC .In case of default the
appellant/accused shall undergo simple imprisonment for a period
of two months.
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vi) The substantive sentences shall run concurrently and set off is
also granted.
vii) The fine amount, if realised, shall be paid to PW2 as
compensation under Section 357(1)(b) Cr.P.C.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
