Sreekala @ Kala vs State Of Kerala

These are appeals at the instance of accused Nos.1 to 4 in S.C.No.1581/2018 on the files of the Fast Track Special Court, Kattakkada, challenging the judgment dated 18.10.2024 in the said case.

2 . Heard the learned State Brief Adv.Dhanalakshmi V.K. appearing for the appellant/2^nd accused in Crl.A.No.2451/2024, the learned counsel for the appellants in the other appeals, and the learned Public Prosecutor appearing for the State of Kerala, in detail. Perused the verdict impugned along with the records of the Special Court.

Here, the prosecution alleges commission of offences punishable under Sections 366A, 376(1) and 376D r/w 34 of the Indian Penal Code (for short, ‘the IPC’ hereinafter) and under Sections 4 r/w 3(a), 6 r/w 5(g) and 5(j)(ii) and 17 r/w 16 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the PoCSO Act’ hereinafter), and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the SC/ST Act’ hereinafter), by the accused persons.

The prosecution case in brief is that with the intention of committing penetrative sexual assault and rape on the female child, who belonged to Scheduled Caste community, and in furtherance of the common intention of the accused persons, who did not belong to either Scheduled Caste or Scheduled Tribe, to earn money by presenting her to different persons, on one day before 25.12.2015, at about 8.00 a.m., at the north-western bedroom of Soumya Bhavan, bearing No.VP-IX/478, near Kavinpuram - Peruvikkonam Road, Vilappil Village, the 4^th accused committed rape and penetrative sexual assault on the child with the assistance of the 1^st accused. Thereafter, on several days from 2016 onwards, during the daytime, at Melepoithalavilakom House, bearing No.MP-VII/28, Kuttikkadu, near Kuttikkadu–Kariyamcode Road, Poongodu, Meppukkada Desom, Malayinkeezhu Village, the 4^th accused committed rape and penetrative sexual assault on her in the presence of the 1^st accused. In 2016, the 3^rd accused took her in an autorickshaw bearing registration No. KL-01-AW-5998 to House No.MP-III/376 at Vishnupuram, near the road from Malayinkeezhu towards Manchadi, Malayinkeezhu Village, where the 2^nd accused, a friend of the 1^st accused, was residing. At the northern-side bedroom of the said house, four identifiable persons, who were acquainted with the 2^nd accused, committed rape and penetrative sexual assault on her in the presence of the 2^nd accused. Thereafter, on one day in February 2017, during the daytime, in the same house, in the presence of the 2^nd accused, four identifiable persons committed rape and penetrative sexual assault on her. On another day, the 3^rd accused took her in the same autorickshaw to Payarathalamele Puthen Veedu, bearing House No.MP-IX/65, near ESSAR Petrol Pump, Blocknada Junction, Malayinkeezhu - Ooruttambalam Road, Malayinkeezhu Village. At about 12 noon, at the northern-side bedroom of the said house, the 3^rd accused committed rape and penetrative sexual assault on her. On this premise, the prosecution alleges commission of the above offences, by the accused persons.

The learned Special Judge took cognizance of the matter and proceeded with the trial. During trial, PW1 to PW36 were examined and Exts.P1 to P58 as well as MO1 to MO13 were marked on the side of prosecution. No defence evidence was adduced.

On evaluation of the evidence, the learned Special Judge found that the appellants/accused Nos.1 to 4 committed offences punishable under Sections 366A, 376(1) and 376D r/w 34 of the IPC and under Sections 4 r/w 3(a), 6 r/w 5(g) and 17 r/w 16 of the PoCSO Act, and accordingly, they were sentenced as under:

The main contention raised by the learned counsel for the 3^rd accused is that only one occurrence was spoken by PW1 as regards to penetrative sexual assault allegedly committed by the 3^rd accused and the said occurrence took place at the house of PW12. When PW12 was examined, she turned hostile to the prosecution and did not support the prosecution case regarding any type of sexual molestation alleged by the prosecution. Therefore, the evidence of PW1 as to commission of penetrative sexual assault by the 3^rd accused, against PW1, could not be believed. Further, the evidence of PW1 is not of sterling quality.

The learned counsel for accused Nos.1 and 4 argued that, in the instant case, in fact, Crime No.1010/2017 was registered first, based on the statement given by PW1, the victim herein, alleging commission of sexual molestation by one Vishnu Sagar, who maintained a relationship with her. At the time of giving statement, she did not speak anything against the accused persons initially, but in a subsequent statement, she disclosed the occurrence, as alleged by the prosecution against the accused persons. According to him, the instant case, in fact, is a retaliatory measure at instance of PW1, since the 1^st accused informed the illicit relationship between PW1 and Vishnu Sagar to her mother. The learned counsel also submitted that the evidence of PW1 is not of sterling quality and the same is not wholly reliable to act upon. Therefore, the learned counsel pressed for interference in the verdict impugned.

The learned State Brief appearing for the appellant/2^nd accused in Crl.A.No.2451/2024 zealously argued that, as far as the 2^nd accused is concerned, (who is a lady), the allegation mainly against her is abetment of the crime done by accused Nos.1, 3 and 4 with the aid of Section 17 r/w 18 of the PoCSO Act. According to the learned State Brief, in order to prove the status of PW1 as a child, the prosecution has to establish the same by convincing evidence. In the instant case, age of the victim not properly proved, even though PW19 was examined and Ext.P8 School Admission Register to show her status as a child during the period of occurrence, was let in evidence. It is also submitted that even though the prosecution allegation is that the 2^nd accused was the friend of the 1^st accused, in fact, no convincing evidence forthcoming to substantiate the same. Therefore, the prosecution miserably failed to prove the allegation levelled against the 2^nd accused. As such, the finding entered by the learned Special Judge as against the 2^nd accused would require interference.

All the learned counsel argued in particular that the prosecution failed to establish the authenticity of the places of occurrence in a convincing manner and that the prosecution case was riddled with reasonable doubts. Therefore, the appellants are entitled to benefit of doubts, and the impugned verdict is liable to be set aside giving benefit of doubt to the appellants.

The learned Public Prosecutor vehemently opposed the contentions and submitted that the prosecution mainly relied on the evidence of PW1, which is supported by the evidence of PW2 and the other witnesses. He further submitted that the hostility of PW12 with regard to the commission of rape by the 3^rd accused at her house would not, by itself, render the evidence of PW1, unbelievable which was otherwise wholly reliable, to prove the acts of sexual molestation levelled against the 3^rd accused. He submitted further that other contentions raised by the appellants/accused, also bereft of merits. Therefore, he pressed for confirmation of the impugned verdict.

Adverting to the rival arguments, the points arise for consideration are;

The order to be passed?

In this case, the prosecution case is that with the intention of committing penetrative sexual assault and rape on the female child, who belonged to Scheduled Caste community, and in furtherance of the said common intention of the accused persons, who did not belong to a Scheduled Caste or Scheduled Tribe, to earn money by presenting her to different persons, one day before 25.12.2015, at about 8.00 a.m., at the north-western bedroom of Soumya Bhavan, bearing No. VP-IX/478, near Kavinpuram - Peruvikkonam Road, Vilappil Village, the 4^th accused committed rape and penetrative sexual assault on the child with the assistance of the 1^st accused. Thereafter, on several days from 2016 onwards, during the daytime, at Melepoithalavilakom House, bearing No. MP-VII/28, Kuttikkadu, near Kuttikkadu–Kariyamcode Road, Poongodu, Meppukkada Desom, Malayinkeezhu Village, the 4^th accused committed rape and penetrative sexual assault on her in the presence of the 1^st accused. In 2016, the 3^rd accused took her in an autorickshaw bearing registration No.KL-01-AW-5998 to House No.MP-III/376 at Vishnupuram, near the road from Malayinkeezhu towards Manchadi, Malayinkeezhu Village, where the 2^nd accused, a friend of the 1^st accused, was residing. At the northern-side bedroom of the said house, four identifiable persons, who were acquainted with the 2^nd accused, committed rape and penetrative sexual assault on her in the presence of the 2^nd accused. Thereafter, on one day in February 2017, during the daytime, at the aforesaid house, in the presence of the 2^nd accused, four identifiable persons committed rape and penetrative sexual assault on her. On another day, the 3^rd accused took her in the aforesaid autorickshaw to Payarathalamele Puthen Veedu, bearing House No. MP-IX/65, near ESSAR Petrol Pump, Blocknada Junction, Malayinkeezhu -Ooruttambalam Road, Malayinkeezhu Village. At about 12 noon, at the northern-side bedroom of the said house, the 3^rd accused committed rape and penetrative sexual assault on her.

In order to establish the prosecution case, the victim was examined as PW1. According to her, in 2017, she went for employment at a tea shop near her residence at Vilappilsala Kavinkoottam. She studied up to the 7^th standard at St.Xavier’s School, Pallimukku, and resided with her mother, grandmother, grandfather, two brothers and a sister. According to her, her father passed away 23 years earlier. She was forced to take up employment at the tea shop as her mother was ailing and the family faced difficulty even in procuring sufficient food. She also deposed that she went to nearby houses and textile shops seeking employment and that she belonged to the Hindu Pulaya community. She gave Ext.P1 statement before the Women Sub-Inspector of Police, Nedumangad, at the office of the DySP, Nedumangad. PW1 further deposed that, in 2016, on several occasions, the 1^st accused took her in an autorickshaw to her rented house at Kuttikkadu, Meppukada, where the 4^th accused was present. According to her, the 1^st accused invited strangers to the house and offered her to them, and they sexually assaulted her. She further deposed that, on such occasions, the 4^th accused also sexually assaulted her and that, thereafter, the 3^rd accused took her to the house at Chappath. PW1 also deposed that the 1^st accused taken PW1 to the rental house of the 2^nd accused and therein, she was subjected to repeated sexual intercourse by 4 to 5 persons. Again, PW1 deposed that the 2^nd accused brought her in an autorickshaw to a place near the temple at Kudumankadavu, where she found a 40-year-old man wearing a light-coloured shirt and a blue-coloured dhoti. He had given money to the 2^nd accused, who, in turn, directed her to go with him. The said person then took her to a lodge in Nedumangad, where he committed sexual intercourse with her and thereafter invited other persons to engage in sexual acts with her. Accordingly, she ran away from the lodge and reached her aunt’s house. In her statement under Section 164 of the Code of Criminal Procedure also, PW1 stated about the repeated penetrative sexual assault. According to PW1, after the aforesaid incidents, while she resided with her aunt at Kavinpuram, she felt tired and began to vomit. She went to Nirthalayam Hospital, i.e., Government Ayurveda College Hospital for Women and Children, Poojappura, Thiruvananthapuram (Ayurveda and Allopathy). During the medical examination, it was found that she had pus cells in her urine. She experienced difficulty and pain in her abdomen. Thereafter, she went to her mother's house and resided there. An ASHA Worker named Sunitha resided near her house. Suspecting pregnancy, the said ASHA Worker conducted a card test, which revealed that PW1 was pregnant. Since her mother did not believe the same, she was taken to a private hospital at Kattakada, where her pregnancy was confirmed. Her mother questioned her regarding the paternity of the child. At the same time, accused Nos.1 to 3 threatened her with dire consequences in the event of disclosure of the incidents to anyone. Earlier, she lodged a case as Vilappilsala Police Station Crime No.1010/2017 against one Vishnu Sagar @ Kannan. She was in love with him. When she became pregnant, accused Nos.1 and 2 required her to state that the said Vishnu Sagar was responsible for her pregnancy. They threatened to kill her if she did not lodge such a case. During cross-examination by the 1st accused, PW1 admitted that she gave statements before the doctor and the learned Magistrate that she was in love with Vishnu Sagar and that he took her to his house and assaulted her. She also gave a statement to the doctor that she had a sexual relationship with the said Vishnu Sagar and that they last engaged in sexual intercourse before the ‘Attukal Ponkala’. In the present case, after giving Ext.P1 F.I. Statement regarding the incident at the office of the DySP, Nedumangad, she identified the photographs of all four accused persons. Before the Court, she identified MO1 to MO3 as the full-sleeved shirts of the 4^th accused and MO4 as his black pants. She also identified MO5 as the DVD player and MO6 series, consisting of five CDs, as the CDs recovered by the police. She further identified MO7 as the bed cover recovered from the bedroom of A1 and A4. According to her, the 4^th accused committed rape on her while MO7 was spread over the bed.

The prosecution examined PW3 and PW10 to prove the circumstances relating to the residence and movements of PW1 and her acquaintance with the accused. PW3 deposed that PW1 was the daughter of her elder sister. In 2017, PW2 resided at the Housing Colony at Kavinpuram. According to her, she came to know about the incident from PW1. During cross-examination, PW3 deposed that, while PW1 was residing with her, the 1^st accused came to Chappath Junction and sent PW1 in an autorickshaw, stating that she was being sent for a job. At the same time, she admitted that she did not inform the police about the said incident.

PW10 deposed that PW1 was his younger sister. According to him, she worked at a textile shop at Peyad and at a tea shop at Kavinpuram. As she was late in attending the textile shop, she was sent out from there. His grandmother resided at Kavinpuram and his aunt resided at Nooliyodu. The 1^st accused, who was one of his relatives, used to take PW1 from his house periodically. PW1 resided at Kavinpuram and used to return at about 9.00 p.m. It was stated that she had work until that time. However, he turned hostile to the prosecution and deposed that he did not give any statement to the police to the effect that, in 2015, the 1^st accused took PW1 to her house at Kavinpuram, where the 4^th accused, who resided with her as her husband, sexually assaulted PW1.

The evidence of PW4 assumes significance to the circumstances surrounding the presence of the accused and others at the place of occurrence and the police proceedings at the said place. PW4 deposed that he was a cable technician with Star Vision in 2018 and that he went to Kuttikadu, Mini Estate Road, Meppukada, to repair a cable connected to the electric posts. While he was doing his work, he saw the local people and the accused gathered there. The police asked him to disclose his name and address. He furnished the details and left the place. When he enquired about the matter with the police, he came to know that he was cited as a witness to the incident that took place there. He admitted that he witnessed the incident in which the 1^st accused was taken away by the police. He also admitted that he gave the cable connection to the house of the 1^st accused. However, he turned hostile to the prosecution and deposed that he did not give any statement to the police to the effect that he saw a young man residing in the house of the 1st accused and a young girl also present in the said house. He further denied the suggestion of the prosecution that he knew that a girl was sexually assaulted in the house.

PWs 5 and 6 were examined by the prosecution to establish the residence of the 1^st accused in the rented house at Meppukada and the circumstances surrounding the police visit to the said house. PW5 testified that, he had resided near the house of one Valsala at Meppukada, Malayinkeezhu. In 2018, Valsala rented out the building to the 1^st accused. He came to know that the police reached the said house and that the 1st accused was an accused in a case relating to the sexual assault of a girl. During cross-examination, he categorically deposed that the 1^st accused resided in Valsala’s house as a tenant. PW6 also corroborated the evidence regarding the residence of the 1^st accused in the said rented house and the circumstances surrounding the said house.

PW12 was examined by the prosecution to prove the circumstances relating to the alleged residence of PW1 and the involvement of the 3^rd accused in the alleged chapati business. She deposed that, in 2016, she resided at Anappad, near Blocknada, Malayinkeezhu, in a rented house. She denied the prosecution allegation that she conducted a chapati business there. She also turned hostile to the prosecution by denying the allegation that the 3^rd accused distributed chapatis. According to her, she did not give any statement to the police to the effect that, on one day in 2015, at about 10.00 a.m., the 3^rd accused reached the house with a girl. She also denied giving any statement to the effect that, when she returned to the house at Anappad after chapati distribution, she saw the said girl and the accused coming out of the bedroom of the house. She denied the prosecution allegation that she questioned their aforesaid acts and understood that the 3^rd accused engaged in sexual intercourse with the girl. She denied her prior statement to the effect that she came to know that PW1 had not attained majority and that the 3^rd accused presented her to many persons and obtained money from them.

PW18, the Caretaker of Nirbhaya Home, Poojappura, in 2017, deposed that PW1 was an inmate of the home. She accompanied PW1 in connection with the preparation of the scene mahazars in this case. In her cross-examination, she deposed that she went to the places at Kattakada and Vilappilsala only in connection with the preparation of the scene mahazars.

PW25 examined in this case was the WCPO of Neyyattinkara Police Station. She deposed that, as per the directions of PW35, she recorded the additional statement of PW1 at the Janamaithri Hall of the office of the DySP, Nedumangad. She was also an attestor to Ext.P16, the seizure mahazar prepared by PW35 on 17.08.2017 while taking into custody the rent agreement executed by PW12 in favour of Prema Kumari. At the time of cross-examination, PW25 deposed that Ext.P16 was prepared at the office of the DySP, Nedumangad, and that the handwriting therein was hers. She further deposed that, when the rent agreement was produced by CW14, Prema Kumari, PW32 and PW35 were also present.

PW35 prepared Ext.P50, the scene mahazar of the said place. Ext.P50 showed that the place of occurrence was the bedroom of house No.M.P.IX/65, Payarathalamele Puthen Veedu, situated opposite to the ESSAR petrol pump, 200 metres south of Blocknada, Malayinkeezhu village. PW21, the Malayinkeezhu Village Officer, prepared Ext.P12, the scene plan, with regard to the place of occurrence. Ext.P50 also showed that it was prepared in the presence of PW12. PW16 was cited as an attestor to Ext.P50. PW16 turned hostile to the prosecution by deposing that he was not a signatory to Ext.P50. In this regard, PW35 admitted that PW1 was not present at the time of preparation of Ext.P50.

PW2 was examined by the prosecution to corroborate the evidence of PW1 regarding her relationship with Vishnu Sagar and the circumstances surrounding the case.

It is well settled law that in cases of sexual molestation, the evidence of the victim alone is sufficient to find the guilt of the accused, if the same is wholly reliable and of sterling quality. In the instant case, the evidence of PW1 found to be wholly reliable and her status is that of a sterling witness. The movements of PW1 was supported by the evidence of PW3 and PW10 and other witnesses, viz., PW4, PW5 and PW6.

In this case, potency of the 3^rd accused was proved through PW29, who had given Ext.P20 certificate stating that “there is nothing to suggest that the person cannot perform sexual act”.

On re-appreciation of the evidence, this Court is of the view that the learned Special Judge rightly found commission of offences punishable under Sections 366A, 376(1) and 376D r/w 34 of the IPC as well as under Sections 4 r/w 3(a), 6 r/w 5(g) and 17 r/w 16 of the PoCSO Act and the contentions raised by the learned counsel for the appellants could not be accepted to upset the verdict impugned. Therefore, the conviction imposed by the learned Special Judge could not be interfered.

Coming to the sentence, on going through the sentence imposed by the Special Court in parity with the seriousness of the offences and taking into consideration of the manner in which the offences were committed, no reduction in sentence also is necessary. Therefore, the sentence also is confirmed.

Hence, these appeals fail and are dismissed by confirming the conviction and sentence imposed by the Special Court. Since the appellants/accused Nos.1 to 4 are 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.