Sivan vs State Of Kerala

The judgment dated 07.03.2014 in S.C.No.567/2013 on the files of the special court for the trial of cases under the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) is under challenge in this appeal and the appellant is the sole accused therein.

Heard the learned counsel for the appellant and the learned Public Prosecutor in detail.

I have gone through the verdict impugned as well as the evidence available.

Here the prosecution alleges the commission of offences punishable under Section 376 of the Indian Penal Code (for short “IPC”) as well as under Sections 3, 4, 5 (n), 6, 9 (m) (n) and 10 of the POCSO Act by the accused, who is none other than the father of the victim. The occurrence, as per the prosecution allegation, was at 3.00 pm on 13.04.2013 and thereafter, on 19.04.2013.

The learned Special Judge framed charge for the said offences. Then, tried the matter. During the trial, PW1 to PW15 were examined and Exts.P1 to P16 were marked. No defence evidence was adduced. Thereafter, the learned Special Judge found that the appellant / accused had committed the offences punishable under Sections 5 r/w 6 and 9 r/w 10 of the POCSO Act and accordingly, he was convicted and sentenced as under:

While assailing the verdict impugned, the learned counsel for the appellant/accused submitted that the prosecution evidence is insufficient to prove the offences found to be committed by the accused and therefore, the learned Special Judge went wrong in finding that the accused had committed the offences punishable under Sections 5 r/w 6 and 9 r/w 10 of the POCSO Act. It is also submitted that, that part, the age of the victim also was not proved by the prosecution in the manner known to law. Therefore, the verdict impugned is liable to be interfered to record acquittal of the appellant/accused.

The learned Public Prosecutor strongly supported the prosecution case and submitted that the age of the victim is properly proved. That apart, the prosecution successfully proved the case against the appellant/accused and therefore, the verdict would not require any interference. The learned Public Prosecutor has placed decision of the apex court in State of U.P vs .Krishna Master & Ors [(2010) AIR (SC) 3071] to contend that minor discrepancies in the evidence are not fatal to the prosecution. Similarly, another decision in Sarwan Singh vs. State of Punjab [2002 (7) Supreme 85] also has been placed referring paragraph 9 to contend that when case of the accused was not put to PW1, the victim, the same could not be considered for any purpose. Another decision of the apex court in Deepak Kumar Sahu vs. State of Chhattisgarh [(2025) AIR (SC) 3763] also has been placed by the learned Public Prosecutor to contend that in case of rape, the sole evidence of the prosecutrix, which is cogent and consistent would be sufficient to prove the guilt of the accused. Another decision of the apex court in Ganesan vs. State represented by its Inspector of Police [(2020) AIR (SC) 5019] also has been placed to substantiate that, as per the settled proposition of law, even there can be conviction based on sole testimony of victim, however, she must be found to be reliable and trustworthy. Another decision of this Court reported in xxxx vs. State of Kerala [ 2026 KHC OnLine 721] where this Court also considered the required evidence to prove the offence of sexual molestation, and held in paragraph 20 as under:

Adverting to the rival submissions, the following points arise for consideration:-

Whether the learned Special Court is right in holding that the appellant /accused committed the offence punishable under Section 5 r/w 6 of the POCSO Act ?

Whether the special court went wrong in holding that the appellant/accused committed the offence punishable under Section 9 r/w 10 of the POCSO Act ?

Whether the verdict impugned requires interference in any manner ?

Order to be passed ?

In this case, on 24.04.2013, PW1 went to Kuruppampady Police Station and had lodged Ext.P1 FIS, before the then Sub Inspector, alleging sexual molestation of PW2 (the minor child) by her father. The statement so given (Ext.P1) was recorded with the assistance of PW12 who was a WCPO of the same station, during the relevant period. PW10, the Sub Inspector had then registered Ext.P1 (a) FIR on the basis of Ext.P1 FIS. Child was sent to Kuruppampady Government Hospital with police escort for medical examination. PW10 had inspected the place of occurrence and prepared Ext.P6 scene mahazar. PW13, the Circle Inspector had taken over the investigation from PW10. He had questioned the witnesses and recorded their statements. PW13 had arrested the accused at 9.30 am on 25.04.2013 from Puthumana Mavin Chuvadu and had prepared Ext.P11 arrest memo and Ext.P12 inspection memo evidencing the arrest. Ext.P13 custody memo was also prepared by PW13 for the arrest. Accused was taken to Perumbavoor Government Taluk Headquarters Hospital for potency test. After medical examination, he was produced before JFCM-I, Perumbavoor along with remand report. Then request was given to the Head Master of the school where PW2 was studying, to get certificate to prove her date of birth. Then PW13 had obtained ownership certificate of the house issued by PW9, the Grama Panchayath Secretary upon request. Statements of PW1 and 2 were got recorded under Section 164 Cr.PC upon request by PW13. At the time of medical examination, vaginal swap, smear and nail clippings of the victim were taken and forwarded for chemical examination. Then PW13 finalized the investigation and he had submitted the final report before the Special Court.

As to occurrence, the crucial witness is PW2, the victim. PW2 deposed that, during the period of occurrence, she had resided with her mother, elder sister and younger brother and also she deposed that while she was studying at V^th Standard, the father also was with her. She deposed further that father caught hold on her both breasts and he caught hold on her genital area. Then he had pierced his penis into her vagina after removing her shaddy. According to her, it was so done by the father, when the mother went to the hospital. Thereafter, when her younger brother came and found that the house was locked, the father did not open the door. PW2 testified further that the accused on the first occasion fondled on her private parts. On the second occasion i.e. on 19-4-2013 he had put his penis inside her vagina.

In this case, PW1 examined by the prosecution is the mother of PW2 and the wife of the appellant / accused, who infact, given Ext.P1 FIS, which led to registration of this crime. PW1 given evidence that she along with her children were residing together at the time when the incident occurred and she also reiterated that the date of birth of PW2 as 31.12.2001. PW6, the brother of PW2 and the son born to PW1 in her first marriage also supported the prosecution case to the extend known to him. Similarly PW3, who is none other than the elder sister of the mother of the accused also supported the prosecution case.

Supporting penetrative sexual assault spoken by PW2, Dr.Seena Abbobacker got examined as PW4 also given evidence stating that she had examined PW2 on 24.04.2013, while she working as Junior Consultant (D &G), District Taluk Hospital, Perumbavoor and on examination, it was found that hymen was torn, vagina admits one finger, which according to PW4 was evidence of penetration. She also supported Ext.P4 certificate issued in this regard. Although PW4 was cross examined, nothing elicited to shake the medical opinion spoken by her.

The Special Court addressed the evidence of PW1 to PW6. It was also found by the Special court that no reasons whatsoever otherwise available to hold that PWs 1, 3 and 6 had falsely implicated the appellant/accused raising allegations of aggravated sexual assault done by the accused against his own daughter. This finding found to be justifiable.

Further, it was found by the Special Court that

In this case, the age of the victim was proved through the evidence of PW14, the Registrar of Birth and Death, Muvattupuzha Municipality by production of Ext.P15, attested copy of the page containing entry No.3982 in the register of Births of Muvattupuzha Municipality pertaining to the year 2001. PW14 given evidence that, as per Ext.P15, 31.12.2001 is the date of birth of PW2. Apart from the evidence of PW14, the evidence of PW11, the Headmistress of Kodanadu Mar Augen High School was examined and Ext.P10 attested copy of the admission register pertaining to PW2 was tendered in evidence. Ext.P9 is the certificate so issued based on Ext.P10 entries and as per which also the date of birth of the victim is 31.12.2001. Even though the learned counsel for the appellant / accused argued that the age of the victim was not proved, in fact the age of the victim, as a child, as defined under Section 2 (1)(d) of POCSO Act is fully established by the prosecution. Therefore the contention raised by the learned counsel for the appellant / accused that the juvenility of the victim not proved found to be unsustainable.

Coming to the second contention raised by the learned counsel for the appellant/accused, it is well settled that, in cases of sexual molestation, if the evidence of the prosecutrix is found to be wholly reliable and of sterling quality, the same can form the sole basis for conviction. In the instant case, PW2 deposed in categorical terms regarding the acts of sexual molestation, including penetrative sexual assault committed by the appellant/accused, who is none other than her father. In support of the said version, PW4, the doctor, who had examined the victim, after the occurrence on 24.04.2013, also opined that there was evidence of penetration on examination of PW2 as the hymen was torn, vagina would admit one finger. In view of the above discussion, the contention raised by the learned counsel for the appellant could not be found favoured. Be it so, the learned Special Judge is right in holding that the accused committed the offence punishable under Section 5 r/w 6 as well as under Section 9 r/w 10 of the POCSO Act. Therefore, the conviction doesn’t require any interference.

Though the learned counsel for the appellant/accused canvassed for reduction of sentence, the sentence imposed by the Special Judge is the minimum prescribed under law. Then no inference in the sentence to be considered. Therefore, the verdict would not require interference and the same is confirmed.

In the result, the appeal fails and is accordingly dismissed. Conviction and sentence imposed by the Special Judge are confirmed.

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