Jayantha Poojari vs The State Of Kerala

The sole accused in S.C. No.427/2013 on the files of the Additional Sessions Court – I, Kasaragod, has filed this appeal, under Section 374(ii) of the Code of Criminal Procedure, 1908 challenging the conviction and sentence imposed by the Special Judge, against him, as per the judgment dated 19.05.2018. The State of Kerala is the respondent herein.

This appeal has been filed originally by Adv. Sri. T. Madhu for and on behalf of the appellant and later he had relinquished the vakalath and Adv. Sri. T.G. Rajendran filed fresh vakalath. Thereafter, it is submitted by Adv. T.G. Rajendran, the learned counsel for the appellant that despite issuance of notice and acceptance of the same, the appellant did not turn up. Accordingly, he reported 'no instructions' from the appellant.

In view of the above, in order to dispose of this appeal on merits, Smt. Rekha S., Senior Counsel, who worked for the last five years as Senior Public Prosecutor of the State of Kerala, is appointed as State Brief. Heard Smt. Rekha S., the learned State Brief and the learned Senior Public Prosecutor for the respondent in detail. Perused the judgment under challenge and the records of the Special Court.

The crux of the allegation is that, at 6.00 p.m., on 03.05.2013, the accused, an autorickshaw driver, subjected PW4, a minor victim, aged 17 years, to penetrative sexual assault. Thereby, the prosecution alleges commission of offences punishable under Sections 366A and 376 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short) as well as under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act', for short), by the appellant/accused.

The learned Special Judge, recorded evidence after framing charge for the above said offences and completed trial. During trial, PW1 to PW13 were examined, Exts.P1 to P16 and MO1 series were marked on the side of the prosecution. On the side of the defence, DW1 to DW4 were examined.

On analysis of evidence, the learned Special Judge found that the appellant/accused had committed offences punishable under Sections 376(1) of the IPC and under Sections 4 of the POCSO Act. Accordingly, the appellant/accused was convicted for the said offences and sentenced as under:-

The learned State Brief specifically argued four points to unsustain the verdict. The first point argued is that PW4, the victim, though initially given evidence supporting the prosecution, when she was examined in chief and was subjected to cross examination, later when she was recalled and cross-examined, she had denied the evidence given earlier. Therefore, the evidence of PW4 extracted during cross examination, after recalling her would substantiate the fact that the occurrence itself is false. For the said reason alone, the verdict is liable to be set aside. Secondly, it is argued that the accused has a specific case that he had been falsely implicated in this case and he suffered injuries when he was assaulted by a group of persons and for which crime was registered as discernible from the evidence of DW1 to DW4. Thirdly, it is pointed out that even though Ext.P2 birth certificate was tendered in evidence through PW2, the Secretary of Vorkady Grama Panchayath to prove the date of birth of the victim examined as PW4 as 08.02.1996, there is name difference in Ext.P2. According to the learned State Brief, PW5, the sister of PW4 when recalled and re-examined stated that PW4 had no name as stated in Ext.P2. Similar evidence also given by PW4, when she was cross examined after her recall. Thus the contention raised by the learned State Brief is that, the age of the victim as a minor is not proved. Fourthly, a contention also raised disputing the jurisdiction of the police and the Special Court to deal with the case on the submission that as per the scene plan, the place of occurrence is within the State of Karnataka. Accordingly, the learned State Brief submitted that the appellant is liable to be acquitted.

Repelling these contentions, it is pointed out by the learned Senior Public Prosecutor that, in fact, PW4, the victim was examined as early on 26.02.2016 and thereafter, an attempt was made to recall her for further cross examination. But when the learned Special Judge dismissed the petition, the appellant herein filed Crl.M.C No. 2876/2016 before this Court and as per order dated 23.05.2016 therein, this Court allowed the petition which led to recalling and further cross examination of PW4. According to the learned Senior Public Prosecutor, going by the order dated 23.05.2016 in Crl.M.C. No. 2876/2016 in paragraph No. 4, this Court fixed certain parameters for cross examination of PW4, on her recall; but the same were not followed by the Special Court and thereafter, on her further cross examination, she had denied the allegations spoken during her earlier examination on 26.02.2016. It is submitted that a witness, after giving evidence in support of the party who produced and the said witness, when recalled for further cross examination, speaks against the party who produced the witness, changing the earlier version, the inference to be drawn is that the witness was won over by the other side. Be it so, the said evidence could not be believed or to be acted upon. In this connection, the learned Senior Public Prosecutor placed a decision of this Court in Ramesh v. State of Kerala reported in [2026 Supreme(Online)(Ker) 67825] wherein paragraph No. 15, this Court considered a similar case and hesitated to act upon the evidence of the victim, when she had given contra version when she was recalled and cross examined again on 11.03.2014, after her original examination on 05.11.2013. According to the learned Senior Public Prosecutor, the same ratio would apply to the facts of this case. It is argued by the learned Senior Public Prosecutor that PW4, the victim, and PW5, the sister of the victim were won over by the accused at a later point of time. Therefore, the evidence tendered by them after their recall, in negation to the evidence earlier given, cannot be accepted or acted upon.

Regarding the name difference in Ext.P2, it is submitted that the name appears in Ext.P2 and the name of the victim are having similarity with an addition of 'th' in Ext.P2. Therefore, this aspect also would not stand in the way of the prosecution. According to him, the evidence of DW1 to DW4 regarding the assault suffered by the accused, in fact, is an occurrence, after this occurrence. According to him, knowing commission of rape by the appellant, people gathered therein and assaulted him. Then the evidence of DW1 to DW4 is of no relevance. Therefore, the verdict is liable to be confirmed.

In view of the rival submissions, the points arise for consideration are:

Point Nos. 1 to 4:- In this case, in order to prove the age of the victim as a 'child' as defined under Section 2(1)(d) of the POCSO Act, Ext.P2, birth certificate was tendered in evidence through PW2, the Secretary of Vorkady Grama Panchayat showing her date of birth as 08.02.1996. In the birth certificate, her name shown as 'xxxxxth' (7 letters), but her name is 'xxxxx' (5 letters). 'xxxxx' in Ext.P2 birth certificate and her name are one and the same, though 'th' could be additionally found in Ext.P2, as suffix. It is relevant to note that in Ext.P2, the parents' names also were stated without any ambiguity and therefore, merely because PW5 the sister of PW4, when she was recalled and cross-examined in similar way as that of PW4 stated that PW4 had no name as stated in Ext.P2, the same is not a reason to hold that Ext.P2 certificate is not the birth certificate of PW4, the victim. If so, by best evidence, the prosecution succeeded in proving that PW4 is a 'child' as defined under Section 2(1)(d) of the POCSO Act. Otherwise during examination of PW4 and PW5 and other witnesses nothing extracted to hold that PW4 was not a child, at the time of occurrence. Therefore, the said contention could not be accepted.

PW4, the victim, who was aged 19 years, as on 26.02.2016, when initially examined, she deposed in support of prosecution allegations. According to her, she was residing at Thalakki and she had another name as 'yyyyy'. She studied upto tenth class in Mudippura School, Karnataka. She had gone to purchase of vegetables on 03.05.2013. While she was waiting at Salathur Bus Stand, the accused reached there in an autorickshaw and informed that he was going to Bakkaravayal. Then she entered into the autorickshaw. She alone was in the autorickshaw. When the autorickshaw reached Nandharavayal, the autorickshaw entered into bye-lane. In fact, she did not want to go in that bye-lane. Soon the autorickshaw reached on a hill. Then the accused had taken her from the autorickshaw to the hill and thereby she made noise. Then he had removed her churidar pant and shuddy; and mounted over her; and then he inserted his penis into her vagina for ten minutes. Then people gathered therein. Soon in another autorickshaw, she was brought to her house. She had informed the same to PW5 and PW6 and accordingly she was taken to the hospital. She had given statement to the police regarding the occurrence and it was through her, Ext.P4, her statement, so given was tendered in evidence. According to her, she had shown the place of occurrence to the police and she identified MO1 series, four in numbers, as the dress worn by her at the time of occurrence. She identified the accused at the dock, after identifying him at the police station. Though she was cross examined, she reiterated her earlier versions without any ambiguity. Thus the evidence of PW4 is candid and consistent when she was examined on 26.02.2016.

It is relevant to note that after her initial examination on 26.02.2016, defence had attempted to recall and cross examine her further. But the petition filed in this regard was disallowed by the Special Court. But the appellant/accused filed Crl.M.C. No. 2876/2016, as pointed out by the learned Senior Public Prosecutor, before this Court and this Court allowed the petition on condition, as stated in paragraphs 4 of the order, which is extracted as under:-

Although the order of this Court was to facilitate cross examination of PW4, regarding matters omitted or the facts touching upon which should be mentioned in detail, as mandated above, when PW4 was cross-examined, as permitted by this Court, the opportunity was used to negate her evidence already recorded. During further cross-examination, PW4 had denied the extra 'th' in her name and according to her, she did not remember the accused and there was no occurrence of sexual assault. According to her, she had given statement to the effect that the accused committed rape on her, as threatened by somebody. Thus this is a case wherein the evidence of PW4, when she was examined on 26.02.2016 was fully in support of prosecution without any contradictions and ambiguity. But during further cross-examination, after her recall, PW4 negated her earlier evidence.

In this connection, it is relevant to refer the evidence of PW1, the doctor who had examined PW4 soon after the occurrence. PW1, the Doctor, Jyothi. S, who worked as Consultant Gynecologist, Government General Hospital, Kasaragod deposed that she had examined the victim, at 11.30 p.m., on 03.05.2013, came with history of alleged sexual assault at 06.30 p.m., on 03.05.2013. Her evidence is that “on examination, there is an injury on the vagina with abrasion of 1 x 1 cm on the right side of the vagina with opinion that there is evidence of vaginal penetration.”

During cross examination also, she stated that “when there is sufficient evidence of vaginal penetration, no need of examination of her cloths. I came to conclusion that there is vaginal penetration on the basis of rupture of hymen.” At the same time, during cross examination, PW1 agreed to the possibility that hymen may be ruptured by accidental fall or introduction of foreign body other than penis.

Thus, this is a case, wherein the candid version of PW4, when she was examined on 26.02.2016 is to the effect that the accused raped her. This version is fortified by the medical evidence given by PW1 which would show that there was evidence of vaginal penetration when PW4 was examined after five hours of the occurrence. It is true that PW5, the sister of PW4 initially supported intimation given by PW4 regarding the commission of rape by the accused also, when she was re-called and cross-examined again on 09.06.2017, denied the same in similar way as done by PW4.

Apart from these, PW6, an attester to Ext.P5 was examined to prove the same. He deposed supporting Ext.P5 seizure mahazar prepared while seizing MO1 series. PW7, an attester to the Ext.P6 scene mahazar also supported the same. Sri.Satheesh Kumar, the then Civil Police Officer attached to the Manjeshwaram Police Station was examined as PW8. He was an attestor to Ext.P7 seizure mahazar as per which the auto rickshaw involved in this case was seized. Sri. Mohanan, the then ASI of Police, Manjeshwaram who registered this case as per Ext.P8 FIR was examined as PW9 and he supported this aspect.

Dr. Rajesh, the then Assistant Surgeon, Government Hospital, Kasaragod who conducted the potency test on the accused was examined as PW10 to prove Ext.P9, certificate of potency of the accused. He had given evidence that the appellant was capable of performing sexual acts. Sri. Ranjith, the then Inspector of Police, Kumbla, the Investigating Officer was examined as PW11. He testified that he had conducted investigation, effected the arrest of the accused, recorded the statements of the persons acquainted with the facts of this case. Ext.P10, the memo of arrest, Ext.P11 the inspection memo and Ext.P12, the report showing the true and full name and address of the accused were let in evidence through him. Ext.P13, the report for adding Section 366A of the IPC. Ext.P14 is the forwarding note. Ext.P15, the chemical examination report also proved through him. Sri.Bijulal, the then Sub Inspector of Police, Manjeshwaram was examined as PW12. According to him, he had inspected the place of occurrence and prepared Ext.P6 scene mahazar. Ext.P16 is the property list. PW13, Sri. Sibi Thomas, the then Inspector of Police, Kumbla, who filed the final report before the court on the completion of the investigation gave evidence in this regard.

Apart from that in this case, the evidence of DW1 to DW4 was discussed by the learned Special Judge in paragraph No. 25 of the judgment impugned, which reads as under:-

Going by the evidence of DW1 to DW4, the finding of the learned Special Judge is only to be justified. While addressing the contentions raised by the learned State Brief, it is held that the evidence of PW4 and PW5, given after their recall cannot be acted upon for the reasons pointed out by the learned Senior Public Prosecutor. That is to say, when a witness, after giving evidence in support of the party who produced, and the said witness, when recalled for further cross examination, speaks against the party who produced the witness, changing the earlier version, the inference to be drawn is that the witness was won over by the other side. Be it so, the said evidence could not be believed or to be acted upon or the same lacks its probative value. Same is the position with regard to the name difference in Ext.P2, as Ext.P2 substantially proved the age of PW4, to hold her status as a child at the time of occurrence, in a case where, her age was only 19 years when she was examined on 26.02.2016, for which no challenge was raised. False implication of the appellant also could not be found as argued by the State Brief, since the accused suffered assault subsequent to this occurrence. Regarding the jurisdictional issue, in fact, the available evidence would substantiate that the occurrence was within the State of Kerala, within the jurisdiction of Manjeshwar police station and the territorial jurisdictional issue not at all raised before the trial court. As far as the question of territorial jurisdiction is concerned, since the same would not take in inherent lack of jurisdiction, that cannot be considered at the appellate stage. Then this contention also must fail. Thus all contentions advanced by the learned State Brief are found against.

Summing up, on re-appreciation of evidence, it is held that the prosecution successfully established commission of offences under Section 376(1) of the IPC and Section 4 of the POCSO Act, as found by the learned Special Judge. Hence the conviction is liable to sustain.

Coming to the sentence, seven years imprisonment was imposed for the offence punishable under Section 376(1) of the IPC and no sentence was imposed for the offence under Section 4 of the POCSO Act, in view of Section 42 of the POCSO Act. The minimum sentence provided for the offence under Section 4 of the POCSO Act is seven years prior to its amendment with effect from 16.08.2019 (thereafter the sentence enhanced to minimum 10 years). Be it so, the sentence imposed herein is the bare minimum prescribed. In such view of the matter, the sentence imposed also does not require any interference. Accordingly, the sentence imposed is confirmed.

In the result, this Criminal Appeal fails and is accordingly dismissed, confirming the verdict impugned.

The bail bond executed by the appellant/accused shall stand cancelled. The order suspending sentence and granting bail to the appellant/accused stands vacated, with direction to the appellant/accused to appear before the Special Court forthwith to undergo the sentence, failing which the Special Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Special Court concerned for information and compliance.