Baby Raj vs State Of Kerala & Anr.

A. Badharudeen, J.

The judgment in S.C.No.129/2023 on the files of the Fast Track Special Judge, Karunagappally for the trial of offences under Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’) is under challenge in this appeal filed by the sole accused.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the prosecution. Scrutinized the verdict impugned and the evidence available.

The prosecution alleges commission of offences punishable under Sections 376(1), 376(2)(n), 506(i), 354(D)1)(i) of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 4(2) r/w 3(a), 10 r/w 9(l), 6 r/w 5(l) and 6 r/w 5(m) of the POCSO Act by the appellant/accused. The case of the prosecution is that the appellant/accused committed penetrative sexual assault on PW1, the victim.

The learned Special Judge framed charge for the said offences and recorded evidence. PWs.1 to 17 were examined and Exts.P1 to P14 were marked on the side of the prosecution. On the side of the defence, DW1 was examined. Finally, the learned Special Judge found that the appellant/accused had not committed offences punishable under Section 376(2)(n) of IPC and Section 6 r/w 5(l) of the POCSO Act and for the said offences, the appellant was acquitted. While convicting him for the other offences, viz., offences under Sections 376(1), 506(i) and 354(D)1)(i) of IPC and under Sections 4(2) r/w 3(a), 10 r/w 9(l), and 6 r/w 5(m) of the POCSO Act, he was sentenced as under:

` 5. The learned counsel for the appellant/accused argued that, serious allegation in this case is one occurred much prior to the registration of FIR. According to him, the said occurrence took place, when victim was 13 years old, but the incident was reported to the police only in the year 2022 when she had completed 16 years. In such circumstances, the evidence of PW1 ought not have been believed by the learned Special Judge to hold that the prosecution was succeeded in proving the offences found to be committed by the accused. According to him, the evidence of PW1 is flooded with material contradictions and in such view of the matter, the status of PW1 is not that of a sterling witness to act upon her sole testimony. It is pointed out further that the other witnesses examined on the side of the prosecution are closely connected with PW1, the victim, and the prosecution has not examined any independent witness to prove the prosecution allegations. It is specifically urged that, when the evidence of PWs.1 to 3 is gone through, false implication of the accused in this crime could not be ruled out, in a case where the investigation is shabby and farce. According to him, the appellant/accused, on these grounds, is entitled to get benefit of doubts.

Opposing these contentions, the learned Public Prosecutor submitted that, in the instant case, the version of PW1 was not at all shaken during cross-examination with regard to the occurrence, which started when she was aged 13 years and continued till she attained the age of 16 years. According to him, there is no delay in lodging the FIR, since the last occurrence was immediately before registration of the FIR and the first occurrence was at her tender age. According to the learned Public Prosecutor, all the available witnesses in connection with this case were examined. Therefore, non-examination of independent witnesses would not yield to take adverse inference against the prosecution. Thus, the learned Public Prosecutor pressed for confirmation of the verdict.

Adverting to the rival contentions, the points arise for

consideration are:

Here, the status of PW1 as a child, as defined under Section 2(1)(d) of the POCSO Act, is not in dispute. Otherwise, the same is proved by the evidence of PW1 and also through Exts.P8 and P14 documents tendered in evidence by PW13 and PW17, respectively, to show that the victim was a child during the period of occurrence.

Coming to the question as to whether the prosecution succeeded in proving the ingredients of the offences which the learned Special Judge found to have been committed by the accused, the evidence of PW1 is much relevant.

PW1 testified that she was born on 14.09.2006 and she had given statement regarding the occurrence before the Kollam East Police at the child friendly room of the Police Station on 06.12.2022. According to her, she had given statement in the presence of Jayakumari, sister of her father, and she identified Ext.P1 as the statement so given. According to her, when Ext.P1 was recorded, she was studying in the 10th standard. She further deposed that, since her parents were living separately, she had been residing with her grandparents since she was studying in the 3rd standard. Baby (accused), a nearby resident who had no children, was a family friend. Further, he used to visit her house and was married. His wife used to invite her to their house, and she used to go there. Then, Baby used to catch on her private parts and continued the same. While she was studying in the 4th standard, Baby brought her to his house and given sweets. Then he took her to the room where he had been laying. By the time she became partially unconscious though she could remember the subsequent events. According to her, Baby then laid her on the bed, removed her panties and put his penis into her vagina causing her severe pain. When she cried aloud, he masked her mouth with his hand and threatened to kill her if she would divulge the incident to anybody. He continued the said acts until she reached the 7th standard. While studying in the 7th standard, she attained puberty and thereafter stayed at her aunt’s house. Later, when she attended a class in the school, there was a class regarding ‘good touch’ and ‘bad touch’. Then she understood that touching a person’s private parts was wrong. According to her, when she was studying in the 9th standard while she was returning from school along with her friend, Shehna, from the railway overbridge at Kollam, the accused approached them on his bike and stopped near them. He then asked her to enter the bike, stating that he would drop her at her house. She refused to heed the demand of the accused, but he repeatedly compelled her. Then her friend intervened and sent him back. Later, she had informed the above overt acts to another friend, while she was studying in the 10th standard. Thereafter, that friend informed the same to her mother, who, in turn, informed Blazy, the class teacher. On the next day, when she went to school, she was given counseling in a separate room, where she disclosed the entire overt acts. Thereafter, the school authorities informed her family members about the incident, who came to know about the same only at that juncture. Thereafter, the counselling teacher reported the incident to Childline and the police station. PW1 further deposed that she had not disclosed the incident earlier because the accused had threatened to kill her. She also stated that she had given a statement before the Magistrate regarding the incident.

During cross-examination, she admitted that she had been studying in Vimalahridaya Girls Higher Secondary School during the period. She stated further that she did not disclose in Ext.P1 statement regarding the class whereby she was made aware of ‘good touch’ and ‘bad touch’. She admitted that there was a case between her parents before the Family Court, Kollam. When it was pointed out to her that, she had not mentioned in Ext. P1 about the assault allegedly committed on her, while she was studying in the 10th standard, she stated that the omission might have occurred due to tension. She reiterated that she had been subjected to sexual assaults as stated above. She also stated that she did not state in Ext.P1 regarding counselling, as stated before the Court. During cross-examination, it was suggested to PW1 that due to animosity between her aunt, Jayakumari, and the accused, a case was foisted at her instance, it was emphatically denied by PW1. During further cross-examination, she reiterated that the accused inserted his penis into her vagina and the accused repeatedly touched on her private parts.

PW2, the counselling teacher examined in this case, corroborated the testimony of PW1 regarding the counselling provided to her, the disclosure of the incident, and the class conducted at the school on ‘good touch’ and ‘bad touch’.

PW3, the mother of the classmate of PW1, was examined on the side of prosecution. She deposed in support of the prosecution. Her version was that, when she visited the house of PW1, during Onam in 2022, PW1 told her that an uncle residing nearby was assaulting her. Accordingly, she informed the class teacher about the matter, and the class teacher agreed to do the needful thereafter. According to PW3, the mother of PW1 abandoned her and her father had been laid up. Therefore, she used to go to the house to give something to PW1 and also whenever PW1 faced with puzzles. During cross-examination, PW3 testified that PW1 had not disclosed any further details regarding the occurrence to her.

Ext.P2 tendered in this case is the scene mahazar prepared on 08.12.2022 and PW4 who signed in Ext.P2 supported its preparation at the house of Baby Raj (accused herein).

Dr. Anila G., the Consultant O & G at Government Victoria Hospital, Kollam was examined as PW5 to prove the medical examination of PW1. According to her, at 3.30p.m. on 06.12.2022, the Sub Inspector of Police, Kollam East brought PW1 for medico-legal examination, and accordingly, she had conducted the medico-legal examination and issued Ext.P4 medical certificate which would bear her signature and official seal. According to her, during examination, PW1 disclosed that the accused used to catch on her body, while she was studying in the 3rd standard and when she had been studying in the 4th class, he put his penis into her vagina and thereafter, he had taken her on threat to his house and caught hold on her breast and vagina and continued the same till 7th standard. She also deposed that PW1 understood ‘bad touch’ from a class attended by her and she had disclosed the same to her aunt.

Ext.P5 is the ownership certificate tendered in evidence through PW6, Revenue Officer, Kollam Corporation and according to him, the house was owned by the accused and Usha Rajan. PW7 examined in this case is the Headmistress of Vimalahridaya Girls HIgher Secondary School. On her instruction, PW2, Counselor in the school had given counselling to PW1.

In order to prove the potency of the accused to find out whether he is capable of performing sexual acts, Ext.P6 certificate in the above line was tendered in evidence through PW9, Dr. Swathy, Casualty Medical Officer, District Hospital, Kollam. The said aspect is not in dispute.

Supporting the evidence of PW1, her friend, PW10 also testified regarding a part of the occurrence. According to her, when she was studying in the 9th standard and while she was walking along with PW1, the accused approached them near the railway bridge at Chemmam Mukku (Kollam) and compelled PW1 to enter into his bike. She also deposed about the repeated compulsion and her interference to sent him back. The bike so used by the accused was taken into custody as per Ext.P7. Ext.P7 is tendered in evidence through PW11, who is a signatory to it.

Regarding the recording of Ext P1 statement given by PW1, PW12, the Grade ASI attached to Kollam East Police Station had given evidence. During her examination, one omission in Ext.P1 to the effect that PW1 become partially unconscious was elicited. Similarly, the evidence given by PW1 that she understood that touching on the private parts was wrong from the class when ‘good touch’ and ‘bad touch’ were taught, was also denied. In fact the same were not material omissions in the form of contradictions to disbelieve the version of PW1. PW14 and PW15 investigated this crime and they had given evidence supporting the investigation. It was through PW16, the then Village Officer of Kollam East village, Ext.P13, scene plan, showing the place of occurrence as plot No.6 in Ext.P13 was tendered in evidence.

Here, as already pointed out, the main contention raised by the learned counsel for the appellant is that the penetrative sexual assault spoken by PW1 was occurred while she was studying in the 4th standard, and according to PW1 sexual assault continued till she reached the 7th standard. However, when she was studying in the 7th standard, she attended a class regarding ‘good touch’ and ‘bad touch’ and thereafter, only on 06.12.2022 the present case was registered. According to the learned counsel, the delay of nearly three years in disclosing the initial incident and the last incident that occurred, while she was in the 4th standard remains completely unexplained. Therefore, the evidence of PW1 regarding the sexual overt acts done by the accused could not be believed. In this regard, going through the evidence of PW1, it is stated that the accused started to catch on her private parts, when she was studying in the 3rd standard and while she was studying in the 4th standard, he had brought her to his room and subjected her to penetrative sexual assault. According to her, thereafter, he continued the same until she reached the 7th standard on threatening that if she would disclose the same to anybody, she would be killed. The reason for non-disclosure of the occurrence spoken by PW1 was the threat offered by the accused and also her lack of understanding regarding the seriousness of the overt acts done by the accused. This seems to be a reasonable explanation in the facts of this particular case. Therefore, the contention raised by the learned counsel for the appellant that the delay in disclosing the occurrence, failed to be explained and prosecution case spoken by PW1 is not liable to be accepted cannot be counternanced in view of the particular nature of this case, where the evidence of PW1 as regards the commission of repeated penetration and assault found to be reliable and of sterling quality.

Here DW1 was examined to prove the relation between the families of DW1 and the accused but, his evidence found to be of no credit by the learned Special Judge and on reading the evidence of DW1, the said finding is only to be justified.

It is well settled law that, in cases of sexual molestation, if the evidence of the victim is found to be wholly reliable and of sterling quality, the same can be the sole basis of conviction even without corroboration. It is true that, PW5 who examined the victim and issued Ext.P4 certificate did not notice any injury on the body of PW1 and the reason is obvious. That is to say, the last occurrence was at the age of 13 years and the examination was when she completed 16 years of age. Therefore, the medical evidence in this case is of least significance.

In view of the above, the finding entered by the learned Special Judge holding that the appellant/accused had committed offences punishable under Sections 376(1), 506(i), 354(D)1)(i) of IPC and Sections 4(2) r/w 3(a), 10 r/w 9(l) and 6 r/w 5(m) of the POCSO Act is only to be justified. Therefore, the conviction does not require any interference.

As far as the sentence is concerned, since the sentence imposed by the Special Court for the offence under Sections 4(2) r/w 3(a), 10 r/w 9(l) and 6 r/w 5(m) is the statutory minimum and no reduction in sentence is practically possible, the sentence is also liable to be confirmed.

In the result, this appeal fails and is dismissed by confirming the conviction and sentence imposed by the Special Court.

Since the appellant/accused is in Jail, no other orders are required.

Registry is directed to forward a copy of this judgment to the Special Court, for information and further steps.