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Judgment
Judgment in S.C.No.269/2009 on the files of the Additional Sessions Court - II, Ernakulam, is under challenge in this appeal at the instance of the sole accused in the above case.
Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor, in detail. Perused the judgment under challenge along with the records of the Sessions Court.
Here, the prosecution alleges commission of offences punishable under Sections 363 and 376(f) of the Indian Penal Code (for short, 'the IPC' hereinafter), by the appellant/accused.
The prosecution case is that the appellant/accused had kidnapped a 12 years aged minor girl from the public road, which is situated near the Government Girls High School, Tripunithura at about 11.00 a.m. on 09.01.2007 on his motor bike, bearing Reg.No.KL-7 AC/3706 to his house having building No.31/1673 situated in Thammanam. Thereafter, he had subjected the said girl to sexual intercourse twice at 11.00 a.m. and 2.30 p.m. to satisfy his sexual lust. On this premise, the prosecution alleges commission of the aforesaid offences, by the appellant/accused.
In this matter, the Sessions Court framed charge for the said offences and proceeded with trial. During trial, PW1 to PW23 were examined, Exts.P1 to P23 and MO1 to MO8 were marked on the side of prosecution. No defence evidence was adduced.
On appraisal of the evidence, the Sessions Court found that the accused committed offences punishable under Sections 363 and 376(f) of the IPC and sentenced the appellant/accused as under:
“In the result, the accused is found guilty for the offences punishable u/ss. 363 and 376(f) of the I.P.C and thereby he is convicted thereunder. He is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/-(Ten thousand rupees only) in default to undergo simple imprisonment for three months u/s.363 of the I.P.C and to undergo rigorous imprisonment for 10 years and to pay fine of Rs.15,000/- (Fifteen thousand rupees only) in default to undergo simple imprisonment for four months u/s.376(f) of the I.P.C. Substantive sentences shall run concurrently. The accused is entitled to get remand period set off, if any. The victim, the witness PWI is entitled to get the fine amount as compensation u/s.357(1) of the Cr.P.C, if the fine amounts are paid by the accused. authorities of the Valsalya Bhavan is empowered to collect the compensation amount for and on behalf of the minor girl, the witness PW1.”
The sum and substance of the argument advanced by the learned counsel for the appellant/accused is that the prosecution has failed to establish the age of the victim girl beyond reasonable doubt, to hold her status as that of a minor aged below 18 years. It is contended that, though Ext.P23 birth certificate was marked through PW2 and Ext.P12 School Admission Register was produced and proved through PW21, the said documents do not conclusively establish the age of the victim as 12 years on the date of the alleged occurrence. Therefore, according to the learned counsel, the prosecution has failed to prove the age of the victim, as mandated by law. He also argued that in the said circumstances, the prosecution failed to prove the offences found to be committed by the learned Sessions Judge beyond reasonable doubts and the sexual overtures, if any, to be adjudged as one with consent.
The learned Public Prosecutor has relied upon the decision of this Court in Joseph @ Sabu v. State of Kerala reported in [2026 KHC OnLine 331] to contend that the evidence adduced by the prosecution is sufficient to prove the age of the victim. In the said decision, this Court held as under:
“When the child and her mother give evidence before the court, stating the date of birth of the victim, which would substantially show that the victim is below 18 years, if the accused does not dispute the status of the victim as a child below 18 years by contending that the victim's age at the time of occurrence is above 18 years by cross-examining them and thereby, their substantial evidence would remain unchallenged, and thus, if the prosecution fails to prove the same by documentary evidence as discussed, conviction for the offence under the PoCSO Act is permissible. But when the oral testimony given by the victim and the mother has been challenged during cross-examination contending that the age of the victim is above 18 years and the prosecution fails to prove the age of the victim below 18 years by admissible documents discussed hereinabove, it is unsafe to fasten criminal culpability on the accused under the PoCSO Act, since the prosecution failed to adduce evidence to prove that the victim was aged below 18 years during commission of the offences. Explaining the legal position in the above line, it is unsafe to hold that in the instant case, the prosecution failed to prove the age of the victim below 18 years.”
It is also submitted by the learned Public Prosecutor that the evidence of PW1 regarding the occurrence coupled with the fact that Ext.P1 FIR was registered immediately on the next day of the occurrence, the prosecution established commission of offences under Sections 363 and 376(f) of the IPC beyond reasonable doubts and thus, the verdict would not require any interference.
Adverting to the rival arguments, the points arise for consideration are;
Whether the Sessions Court is right in holding that the accused committed offence punishable under Section 363 of the IPC? Section 363 of the IPC?
Whether the Sessions Court is justified in holding that the accused committed offence punishable under Section 376(f) of the IPC? 376(f) of the IPC?
Whether the verdict would require interference?
The order to be passed?
Point Nos.(i) to (iv)
The victim of this case was examined as PW1. At the outset, she deposed that she was then aged 17 years. The incident in this case occurred while she was studying in the 5th Standard at the Government Girls High School, Thripunithura. She was then residing with her foster father and mother. She was their adopted child. According to her, she had been residing in the orphanage, Valsalya Bhavan as of now. Her parents were business people. Her foster mother conducted a grinding mill and her father conducted an Ayurvedic shop. She used to come to the school on her father's scooter. The incident in this case occurred on 09.01.2007. The accused enticed her and took her away on his motorbike when she alighted from her father's scooter at about 9.30 a.m. PW1 got acquaintance with the accused as a shop keeper. PW1 and her mother used to visit the shop of the accused. The accused took PW1 on his motorbike under the guise of showing her, his residential building. Both of them entered into the house of the accused in Thammanam. Nobody was present at the house. The accused forcibly undressed the victim. Thereafter, he committed rape on her at about 11.00 a.m. Thereafter, both of them watched television. Then, the accused again had sexual intercourse with her at about 2.30 p.m. Thereafter, both of them reached the public road situated near the shop of PW1's father at about 4.30 p.m. PW1 disclosed the factum of rape to her mother. Subsequently, PW1's mother complained about the rape before the police. She had deposed about her medical examination and recording of her statements.
Supporting the version of PW1, PW2, the foster mother of PW1 deposed that the incident in this case occurred on 09.01.2007. PW1 was aged only 12 years at that time. She was dropped near the school by the husband of PW2 on a scooter. The husband of PW2 went to the school to accompany her to the house in the evening. Then, the teacher and the students disclosed the fact that PW1 had not attended the class on 09.01.2007. PW1 disclosed the factum of rape to PW2. PW2 lodged a written complaint before the police. The said complaint was marked as Ext. P1, through her.
The foster father of PW1 got examined as PW3. He deposed that he used to drop PW1 at the school on his two-wheeler. He used to drop her near the back gate of the school. He went to the school at about 3.30 p.m. to accompany PW1 to his house. Then, he came to know that PW1 was absent on the date of the incident.
PW4, a relative of PW1, who was present, when PW2 questioned PW1, deposed that PW1 disclosed the factum of rape in his presence.
The class teacher of PW1 at the Government Girls High School, Thripunithura, got examined as PW5. She deposed that PW1 was absent from school on 09.01.2007. She disclosed the said fact to the police. She further deposed that PW3 reached the school after 3.00 p.m. to accompany PW1. She then disclosed the fact that PW1 was absent on that day.
PW6, an employee of Fruits Garden, Thripunithura deposed that the accused was working as a salesman in a shop in the year 2007. He further deposed that PW2 used to visit the said shop. PW7, the owner of Fruits Garden, Thripunithura, was examined by the prosecution to establish the connection of the accused with the said shop. He deposed that the accused was employed as a salesman in his shop during the relevant period. PW8, who had acquaintance with the accused and his family deposed that the accused resided in a house owned by PW8 as a tenant along with his family.
PW14, the Revenue Officer of Cochin Corporation, deposed that the Superintendent of the Zonal Office, Vyttila, issued the ownership certificate relating to the house of the accused, which was marked as Ext.P6. PW15, the Village Officer of Thripunithura, who prepared the site plan, which was marked as Ext.P7, supported the prosecution case. PW16, the Village Officer of Nadama, who prepared the site plan, which was marked as Ext.P8 also supported the prosecution case. PW17, the Secretary of Thripunithura Municipality on 06.02.2007, who had issued the ownership certificate relating to the fruit shop, which was marked as Ext.P9.
PW18, the doctor who examined the victim, deposed that he had issued Ext.P10 certificate after examination of PW1. PW20 deposed that the fruit shop stood in his name as per the records of the Municipality.
PW21, the Headmistress of the Government Girls High School, Thripunithura, who produced the extract of the School Admission Register before the police, which was marked as Ext.P12, supported the prosecution case and issuance of Ext.P12.
PW22 examined in this case is the Circle Inspector of Police, Hill Palace Police Station, at the time of the incident in this case. He deposed that he had conducted the investigation of the case. He had prepared the scene mahazar, Ext.P4. He had seized the material objects MO6 to MO8 as per the mahazar, Ext.P5. He had took the dress of the victim into custody as per the mahazar, Ext. P3. He had arrested the accused. The motorbike was recovered pursuant to the confession statement of the accused. He had filed a report to incorporate Sections 363 and 376(1) of the IPC in the charge. According to him, he had recorded the statements of the witnesses and on completion of the investigation, he had laid the charge sheet before the court.
PW23, the Sub Inspector of Police, Hill Palace Police Station, who dealt with the case at the initial stage, deposed that he had registered the crime as Crime No.20/2007 under Sections 366A and 354 of the IPC. The FIR registered in the case got marked as Ext.P21. According to him, he had conducted the preliminary investigation of the case and he took steps to examine the victim by a medical practitioner.
In this case, the main contention raised by the learned counsel for the appellant/accused is that the age of the victim not proved by the prosecution. While addressing this contention, the age of the victim as 12 years stands proved through Exts.P23 and P12 and the evidence of PW2 and PW21, supported by the evidence of PW1 and PW2. Most importantly, on the date of examination, the age of the victim was 17 years, and this aspect was not at all challenged during cross-examination of PW1. Therefore, the age of the victim at the relevant time of occurrence, as stated to be 12 years, stands satisfactorily proved and the contra contention put by the learned counsel for the appellant/accused would not yield.
In a prosecution alleging commission of sexual molestation, the evidence given by the prosecutrix or the victim, when found to be wholly reliable and of sterling quality, the same can be the sole basis of conviction, even without any corroboration. In the instant case, PW1 had given evidence supporting occurrence. Even though PW1 was cross-examined, nothing extracted to disbelieve her version. In addition to the evidence of PW1, regarding the penetrative sexual assault committed by the accused on two occasions on 09.01.2007, the same would get corroboration from the evidence of PW18, Dr.K.P.Biju, who had examined the victim on the very next day of occurrence, i.e., on 10.01.2007, while he was working as Assistant Surgeon, Taluk Hospital, Tripunithura, and issued Ext.P10 certificate. The Doctor given evidence that penetration was taken place and it was found further that hymen not intact. He also deposed that swab taken for forensic analysis showed blood stains and during further examination, he deposed that swab contained blood stains due to injury to hymen and the injury might be due to penetration of penis. Thus, the evidence of PW1 as well as PW18, supported by other evidence would show that the appellant/accused had kidnapped PW1, a minor girl, aged 12 years, from her school at 11.00 a.m. on 09.01.2007 to his house situated in Thammanam and subjected the girl to sexual intercourse twice at 11.00 a.m. and 2.30 p.m. on the said day, and thereby he had satisfied his lust. Thus, the ingredients for the offences punishable under Sections 363 and 376(f) of the IPC have been established by the prosecution successfully without any iota of doubts, as found by the learned Sessions Judge. In such a case, the contention raised by the learned counsel for the appellant/accused that the prosecution failed to prove the offences found to be committed by the learned Sessions Judge beyond reasonable doubts, also is not acceptable.
Thus, on re-appreciation of evidence, this Court is of the view that the learned Sessions Judge rightly entered into conviction for the offences punishable under Sections 363 and 376(f) of the IPC and the said conviction does not require any interference.
Coming to the sentence, the sentence imposed is the minimum possible and in such view of the matter, reduction in sentence also cannot be considered.
In the result, this appeal fails and is dismissed by confirming the conviction and sentence imposed by the Sessions Court. Consequently, the order suspending sentence and granting bail to the appellant/accused stands cancelled and his bail bond also stands cancelled. The appellant/accused is directed to surrender before the Sessions Court to undergo the sentence, forthwith, failing which, the Sessions Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Sessions Court, for information and compliance.