Mohammed Rijas vs State Of Kerala

The sole accused in S.C. No.157/2016 on the files of the Fast Track Special Court Tirur, has filed this appeal, under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 23.10.2025 in the said case. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor for the respondent. Perused the judgment under challenge and the records of the Special Court.

The prosecution case is that the appellant/accused at about 8:30 AM, on 14.09.2015, criminally trespassed into the bed room of the house building No:20/227 in Marakkara Panchayath and on several days, till 20 days prior to 14.09.2015, repeatedly committed penetrative sexual assault by penetrating his penis into the vaginal part of PW1, a minor girl, aged 11 years. Thereafter, the appellant/accused threatened to kill the victim, stating that, if she would disclose the incident to anybody. Thereby, the prosecution alleges commission of offences punishable under Sections 376(2)(i) and 376(2)(n), 450 and 506 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short) and Section 6 read with Section 5(m), 6 read with 5(l) of Protection of Children From Sexual Offences Act, (hereinafter referred to as the 'POCSO Act', for short) by the appellant/accused.

The learned Special Judge, after framing charge for the above said offences, recorded evidence and completed trial. During trial, PW1 to PW19 were examined, Exts.P1 to P21 and MO1 to MO3 were marked on the side of the prosecution. Exts. D1 to D5 were marked on the side of defence.

On appreciation of evidence, the learned Special Judge found that the appellant/accused committed offences punishable Sections 450, 376(2)(i) and 506 of the IPC as well as Section 6 read with Section 5(m) of the POCSO Act and, accordingly, the appellant/accused was convicted for the said offences and sentenced as under:-

The learned Senior Counsel Adv. P. Vijayabhanu, who argued the case for and on behalf of the appellant raised improbability in the prosecution case contending that earlier crime was registered and final report filed alleging that the accused committed repeated penetrative sexual assault on the victim for a period of two years upto 14.09.2015. Thereafter, the accused pleaded his juvenilty and on this basis further investigation carried out and supplementary final report had been filed stating that the occurrence was on 14.09.2015 and 20 days prior to that, to brought the accused as an adult man during the period of occurrence. It is submitted further that in Ext.P8, the initial medical certificate and Ext. P11 the subsequent medical certificate, prepared after examination of the victim, who was examined as PW1, none of the doctors pointed out any signs of any sexual assault. According to him, Ext.P1 FIS was lodged on 21.09.2015 and PW14, who registered the crime based on Ext.P1 deposed before the court that Ext.P1 was placed before him by CW2/PW2, CW3/PW3, CW6 and CW8 and at the time of lodging of Ext. P1, PW1 was absent. He also submitted that in this context Ext.P3, a note written by the victim, also would not be believed, otherwise the same in no way suggest any act of sexual assault. He also submitted that in the circumstances of the case, the evidence of PW1 is not of sterling quality to be acted upon and therefore, the learned Special Judge went wrong in placing reliance on the evidence of PW1 to find commission of the above offences by the appellant/accused.

The learned Senior Counsel highlighted the decision of the Apex Court reported in Rai Sandeeep v. State of NCT of Delhi [Manu/SC/0623/2012 : AIR 2012 SC 3157], decided on 07.08.2012 and in paragraph No. 15, the Apex Court explained the qualification of a sterling witness and held as under:-

According to the learned Senior counsel for the appellant/accused, in the instant case, the evidence relied on by the learned Special Judge to enter into conviction is not fully free from doubts and the accused/appellant, a tender boy, is entitled to get benefit of doubts.

Whereas the learned Public Prosecutor strongly opposed these contentions and submitted that as per the evidence given by PW19 supported by Ext.P14 birth certificate of the appellant/accused, his date of birth is shown 04.08.1997. Therefore, as on 14.09.2015 and 40 days prior to that the accused was a major. Therefore, merely the prosecution put up a case as to commission of offences, two years prior to 14.09.2015 initially to make the prosecution case unbelievable.

In order to buttress his argument, he has given much emphasis to Ext.P3, a handwritten letter produced by the prosecution alleged to be taken by PW2, the foster mother, from the bag of PW1, who is the sister of PW3, the mother of the victim on 15.09.2015 i.e., immediately after the occurrence on 14.09.2015, to show that there was commission of sexual assault by the accused. Thus, according to the learned Public Prosecutor, PW1 is a witness of sterling quality. Therefore, the prosecution case is well proved by the evidence of PW1 supported by other evidence. According to him, mere absence of corroborative evidence in the form of medical opinion would not make the prosecution case unbelievable as full penetration or rupture of hymen are not the inevitable requirement of penetrative sexual assault, as repeatedly held by the Apex Court and this Court. Accordingly, he pressed for confirmation of the judgment impugned.

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

Whether the Special Court is justified in

finding that the accused committed the offence under Section 450 of the IPC ?

Whether the Special Court is justified in finding that the accused committed the offence under Section 376(2)(i) of the IPC ?

Whether the Special Court is justified in finding that the accused committed the offence under 506 of the IPC ?

Whether the Special Court is justified in finding that the accused committed the offence under Section 6 read with 5(m) of the POCSO Act ?

Whether the verdict of the Special Court

would require interference?

Order to be passed?

Point Nos. 1 to 6: In this case, the age of the victim, as a minor during the relevant time is not disputed or else the same is proved by the prosecution through PW12 and PW8 with support of Ext. P2, copy of SSLC certificate and Ext.P10 birth certificate of PW1.

Regarding the occurrence, the crucial evidence is that of PW1 and according to PW1, in connection with the repeated sexual assaults, a complaint was written in her handwriting and given to the police. PW1 deposed that she was raped by her neighbor Rijas @ Muthu. At that time, she was studying at GUP School Randathani. According to her, she had father, mother, brother and four elder sisters. The incident had occurred, while she was residing at the house of her mother’s younger sister and she used to call her as Mummy. Since her mother’s sister had no children, she was taken by her mother's sister and had been residing along with her at her house. The husband of her Mummy was employed in Dubai. Her Mummy was working in the Post Office and she used to go to her work place at 8 AM and come back at 4 - 5 PM. While she was studying in 4^th standard the accused tried to keep her in his custody. He attempted to hold her hand and after closing her mouth pulled her into the bedroom and attempted to make her to lay on the bed, after locking the door. But she saved herself. While she was studying in 5^th standard also the accused entered into the house of Mummy and attempted to assault her, but she escaped from him. Thereafter while she was studying in 6^th standard, at 8:30 AM, on 14.09.2015, when she had entered into the house of Mummy for taking her books to go to school, after returning from the Madrassa, the accused also entered into the house by following her, then he pulled her into the room by closing her mouth and locked the door. Then he made her to lay on the bed and removed her pants and panties, the accused also removed his pants and underwear then penetrated his penis into her urinary part. She felt pain and thereby she cried. At the time the accused closed her mouth, thereby she bit on his hand and raised hue and noise, thereby the accused stood up and left from there. Before leaving from there the accused also threatened to kill her, if she would disclose the overt acts to anybody. Thus she did not tell the incident to anybody. The accused committed the above acts on several times till 20 days prior to 14.09.2015 and on 14.09.2015. After the incident on 14.09.2015, she wrote a letter to the accused alerting that if he would continue his acts, she would tell the incident to the inmates of her house. Then she put that letter into her bag. While her Mummy inspecting her bag the letter was found. Thus, her Mummy informed the same to child line. On 21.09.2015, the police reached the house of the Mummy and she identified Ext.P1 the written complaint made by her. The room where the occurrence took place was shown to the police by PW1 and the dresses worn by her at the time of incident were also shown to the police by PW1. The dresses were identified by her as MO1 to MO3. She also identified Ext.P3 letter which was written by her and kept in her bag after the last incident to give it to the accused as a warning to him. Thereafter the accused was arrested and had shown to her and she identified the accused. She also identified the accused at the dock. She further stated that the sister of the accused was studying along with her in 4^th standard. When she visited the house of accused to play with his sister, the accused alone was in that house and he also attempted to assault her in that house, but she herself rescued.

During cross examination, she had admitted that she was aware about the incident happened to her when she was writing the Ext.P3 Letter, and during the relevant period, the accused was studying in college. She and the accused were relatives. The house of accused was situated at 60 meter distance from the left side of the house of her Mummy. She admitted that the mother of accused was always in the house as she did not go to any job. The house of her grand mother also situated on the right side of her Mummy’s house. Mummy’s younger sister had been residing along with her grandmother. Ext.P1 was written by her at the house of her Mummy in presence of the persons from child line and her Mummy. The women police also in her house at that time thereby she handed over the complaint written in her handwriting to the police. Since the police asked her to write her name, father’s name and place and then told her to write what was the occurrence, she wrote Ext.P1 complaint. But she did not remember whether she went to police station on the date of Ext.P1. But she admitted that she went to the police station 2-3 times. She also stated that she gave her additional statement for 2 or 3 times but she did not remember the exact dates on which she gave her statements. She admitted that she bit on the palm of the hand of accused for 2 or 4 times. On 14.09.2015 also she bit on his hand which caused pain to him. She reiterated that she wrote in the complaint, and also stated to police and to the Magistrate that she was assaulted by the accused on several days till 20 days prior to 14.09.2015 and on 14.09.2015. But she did not state the date on which she was assaulted prior to 20 days before 14.09.2015. She was taken to Tirur Government Hospital and another hospital. During re examination she deposed that the 1^st incident of sexual assault was while she was studying in 6^th standard. She answered in cross examination that the incident was happened while she was studying in her 4^th standard was only with regard to the 1^st attempt. During further cross examination she affirmed that she did not state in Ext.P1 that the sexual assault was caused to her while she was studying in her 6^th standard. She also stated that she did not remember whether she had made a statement to Magistrate that the incident like earlier stated was started while she was studying in her 5^th standard. The above portion in the statement given by her to the Magistrate is marked as Ext.D1.

In order to prove the date of occurrence, the prosecution had relied on the evidence of PW1 victim, PW2 the foster mother, who is the sister of the mother of PW1, PW3 and PW4, the parents of the victim, PW14, who registered the FIR, PW18, the Investigating officer and Ext.P1 and Ext.P3. PW2 is the sister of the mother of PW1 and was the foster mother of PW1, PW1 called her as Mummy. Her evidence is that she had no children. Thus she took PW1 at the age of 3 years and she fostered her. Her husband was abroad. The accused Rijas who was the neighbor of her house sexually assaulted PW1. Rijas was the grand child of her mother in law. According to her, she had been residing in Randathani and she had been working as Postal Assistant during the period of occurrence. The accused sexually assaulted PW1 at her house while PW1 was studying in her 6^th standard. But PW1 did not tell the incident to her. She used to keep the books in the bag as per the time table in every day. On 15^th morning, when she was putting the books in the bag, a letter found in the bag was taken by her. By the time, PW1 was in Madrassa. She read the letter and it was written as “if repeated this I would tell your father and you should be beaten by your father, so don’t repeat it”. She also wrote “Okey” “Rijas”. She identified the said letter, marked as Ext.P3. Due to stress, she immediately went to her family house and had shown the letter to her mother then she went to office and come back early at 3 PM from the office. Thereafter, she enquired about the letter to PW1 and she told the incident and she cried while disclosing the same. PW1 further told her that the accused also threatened to kill her. PW1 told her about the incident that in the previous day morning after Mummy was going to office, when she came to her house after her Madrassa class for taking her bag from the house, when she opened the door the accused reached behind her and entered into the house, closed her mouth and took her to the bedroom. Then he had removed her pants then he pressed his penis into the urinary part of PW1. When she felt pain she had bitten on the hand of accused. She also told that the accused done similar acts on prior occasions. When she was asked, why she didn’t tell the incident to her, PW1 told her that due to scared condition and fear she did not tell the incident. On the next day, she met the father of the accused at his house and informed about the incident, but, they denied the incident. Thus she returned from there and on 19^th she had informed the occurrence to the child line and on 20^th the child line officials reached at the house and her child wrote the incident in a paper then she along with the mother of the child, the sister of PW2, went to Kalpakanchery Police station and gave the complaint written by the child. On 21^st the police reached at her house and recorded the statement of the child and her statement. The police searched the room which was shown to them by the child in presence of witnesses. Her office staff Radhesh and her neighbor Abdul Rahiman were present at the time. Thereafter, the child was taken by a woman police to the police station. Then she was taken to Hospital, Tirur and she was also produced before the Magistrate, to record her statement. After two days, PW1 was taken to Medical College Hospital Kozhikode. The dress of the victim was also produced to the police and she identified the MO1 to MO3 as the dress of PW1 before the court. The photograph of the accused was also shown to PW1 from the phone of the police. PW3 the mother of PW1 and sister of PW2 fully supported the evidence of PW1 and PW2.

The father of PW1 examined as PW4 deposed that he had 6 children. PW1 was his 5^th child. PW3 is his wife and PW2 is the younger sister of his wife. The accused is the relative of his wife and is a neighbor of his wife’s house. PW1 was residing along with PW2. While his daughter was studying at her 6^th standard, PW3 called him, and informed the occurrence. He identified the accused before court. During cross examination, he deposed that during the period of occurrence, he was abroad and he returned on knowing the occurrence and then went to police station.

PW5 examined in this case is the counsellor in Child Line, Malappuram worked in the year 2015. She testified that on 20.09.2015 she along with CW6 (PW16) Anwar, CW8 Rasheed went to the house of PW2, who is the sister of PW3 at Randathani on the basis of a complaint received on 19.09.2015 on the allegation that the survivor was sexually assaulted by a person in the neighboring house. When they reached at the house, PW1 to PW3 were present there. They told him that their relative and neighbor, named Rijas, sexually assaulted PW1.

Ext. P4, mahazar prepared pertaining to the room of the house where the occurrence took place and Ext.P5, Mahazar pertaining to production of the dress of the victim were tendered in evidence through PW6.

Ext.P6 sketch plan was tendered in evidence through PW6, the then Village Officer of Marakkara Village, which is identified by him before court.

PW8, the Secretary of Marakkara Grama Panchayath deposed that as per the request of the CI of police Valanchery he had issued Ext.P7, the ownership certificate of house No:20/277 of Marakkara Grama Panchayath and according to him, the said house was owned by Mujeeb Rahman.K, Kalody House.

PW9, the CPO, who recorded the statement of PW1, testified that that while she was working as the CPO in Kalpakanchery PS, at 12 noon on 21.09.2015, she had recorded the statement of PW1 .Thereafter she produced her before the District Hospital Tirur for medical examination and she submitted the medical examination report to the investigation officer. In cross examination she admitted that PW2 was present while taking the statement of PW1.

PW10, examined in this case is the doctor who examined PW1. Her evidence is that on 21.09.2015 while she was working as the Gynecologist Doctor in District Hospital Tirur, as per the request of the police at Kalpakanchery Police station, she had examined the victim girl aged 10 years, who had been produced before her at 6:30 PM accompanied by WCPO 4237 Sathi and her guardian, with the consent of the guardian of the victim. The history of sexual assault was stated by the child as “a neighbor Rijas K.P committed rape on several times for two years and most recent incident was on 14.09.2015 time was at morning, place was in the home. She gave the history of penetration into the vulva”. On examination there ware no physical injuries, no genital injuries, swab and smear were taken. She had referred the child to Medical College Calicut for expert opinion. After examination she had issued the certificate which got identified by her as Ext.P8.

PW13, the doctor at the Medical College Hospital Kozhikode, who had examined PW1, testified that during 2015 while she was working as the Assistant Professor of Govt. Medical college Kozhikode she had examined the survivor in this case at 6 PM on 22.09.2015, at the request of the CI of police Valanchery Police station. The alleged history stated by police was that neighbour Rijas raped her. The victim also stated the history in the same line. On physical examination and local examination all were normal, no injuries, hymen intact, foarchette and posterior commissure intact. Vaginal examination could not done due to pain to the victim. Vaginal smears and swabs were taken. Final opinion noted in Ext.P8 that she could say after receiving pending analysis report. The certificate issued by her got identified as Ext.P11.

PW14, the SI of police Kalpakanchery Police station deposed that on 21.09.2015 while he was working as the SI of police in Kalpakanchery PS, he had registered Ext.P12 FIR based on Ext.P1 complaint of PW1 submitted before him by PW2, PW3, CW6 (PW16) and CW8 together and the investigation was conducted by PW18.

PW15, the doctor who had examined the accused, and issued Ext.P13 certificate of potency stating that the above person was incapable of performing sexual act, testified so in support of the prosecution.

PW16, the Child Line Co-ordinator, deposed that during 2015, while he was working as the Child Line Coordinator Malappuram, on 20.09.2015 he got an information through Toll Free number 1098, that the victim wanted to get a counseling. Thus the Child Line team members Rashid and Siji went to the residence of the child in Randathani and gave counseling to her. From the counseling they revealed that the victim was subjected sexual assault on several time by a neighbour named Rijas. This incident was informed to her as the coordinator of the institution. Thereafter he along with the victim, her mother and younger sister of her mother and Child Line member Rashid went to the police station and gave intimation to the police.

PW18, the CI of police, who investigated the case, deposed that while he was working as the CI of police Valanchery on 21.09.2015 took the investigation of this case. On that day at 12 noon he visited the place of occurrence. He prepared Ext.P4 mahazar pertaining to the place of occurrence as shown by PW1. The place of occurrence was at the bedroom of the house No:20/227 of Marakkara Grama Panchayath at the north of a mud road proceeding from the Chathaparamb Harijan Colony at Randathani. On that day at 12:30 PM he had seized the dress worn by the victim at the time of incident as per Ext.P5. He then produced the same before the court as per Ext.P15 property list. He identified MO1 to MO3 items of dress. The said items were forwarded to Forensic lab for chemical examination along with forwarding note which got identified as Ext.P16. On 22.09.2015 at 10AM he seized Ext.P3 letter produced by CW6 (PW16) as per Ext.P9 seizure mahzar and the same was forwarded to the court in form No:15 which got identified as Ext.P17. PW1 was produced for medical examination before PW10 and PW13 and obtained the medical certificates as per Ext.P8 and Ext.P11 on 11.11.2015,. The accused who surrendered before the District Court Manjeri was taken into police custody then produced for potency examination on 11.11.2015 and obtained the examination report as per Ext.P13. The sketch of the place of occurrence was obtained from PW7 and the ownership certificate was obtained from PW8. The above documents were identified by him before court as per Ext.P6 and P7. The forensic report got identified by him as Ext.P18.

Here the main contention raised by the learned Senior Counsel is by stressing the improbability of the prosecution case and according to him, earlier, the allegation was that on 14.09.2015 and two years prior to that, the accused sexually abused her. Thereafter, the period was reduced for 20 days prior to 14.09.2015 and on 14.09.2015. In fact, this challenge is of no much significance, since PW1 had a consistent case that as on 14.09.2015, she was subjected to penetrative sexual assault, by the accused, despite doing the same 20 days prior to 14.09.2015. In fact, commission of sexual intercourse on 14.09.2015 alone is sufficient to find penetrative sexual assault, though the other days prior to 14.09.2015 would have impact to find commission of repeated penetrative sexual assault by the accused.

In this case, Ext.P3 is very relevant. Ext.P3 is a letter written and kept at the bag of the victim by herself with a warning to the accused, though the same would not show overt acts of the accused in detail. At the same time, Ext.P3 would give an inference that the accused had subjected PW1 to sexual overtures and she was aggrieved of the same. It is pertinent to note that PW2, the foster mother, when verified the bag took the same on the very next day, and accordingly, the crime was registered. Be it so, Ext.P3 is a valid piece of evidence to show that after the occurrence on 14.09.2015, the victim was forced to write Ext.P3. It is true that in Exts.P8 and P11, the signs of penetrative sexual assault not found by the doctors. In this connection, the learned Senior Counsel also conceded that penetration, even in, slightest degree without rupture of hymen on the vaginal orifice including vulva would suffice the requirement of penetration. Here PW1 categorically deposed penetration of the penis of the accused to her vagina. In such view of the matter, this contention also would not yield.

Addressing the contention raised by the learned Senior Counsel, the question arises is, whether the evidence of PW1 is of sterling quality to be acted upon, in the absence of medical evidence ? In this regard, the legal position argued by the learned Senior Counsel relying on the decision in Rai Sandeep (supra) is not in dispute. In this decision, precisely, the Apex Court held that

alleged.” At the same time, trivial omissions or inconsistencies in the evidence of a child witness would not be reckoned to treat the child witness as not a witness of sterling quality. When the over all evidence given by a minor witness, a victim of sexual molestation would inspire the confidence of the court, the child witness to be treated as a witness of sterling quality.

In the instant case, the evidence of PW1, extracted in detail, supported by the other evidence would show that PW1 is a witness of sterling quality and what she had deposed regarding the repeated sexual molestation at the hands of the appellant/accused to be held as true and correct. Thus on re-appreciation of evidence, this court cannot find that the evidence given by PW1 is having anything to indicate false implication or untruth, to call herself as a witness of not sterling quality. Therefore, none of the contentions raised by the learned Senior Counsel for the appellant/accused to be found in his favour. The necessary consequence is that the conviction entered into by the learned Special Judge is liable to confirmed.

Coming to the sentence, three years is the maximum sentence imposed upon the accused for the offence punishable under Section 450 of the IPC, two years is the maximum sentence imposed upon the accused for the offence punishable under Section 506 of the IPC and ten years is the maximum sentence imposed upon the accused for the offences punishable under Section 6 read with 5(m) of the POCSO Act. Considering the gravity of offences found to be committed by the appellant/accused, the sentence also found to be reasonable and reduction in sentence also cannot be considered. Accordingly, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail.

In the result, this criminal appeal stands dismissed. The conviction and sentence imposed upon the appellant/accused stand confirmed. All interlocutory applications pending in this appeal stand dismissed.

Since the accused is in jail, the Registry is directed to forward a copy of this judgment to the Jail Superintendent and the Special Court concerned, for information and compliance.