Subramanyan vs State Of Kerala

The sole accused in S.C No.369/2020 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act'), Palakkad dated 13.12.2023, has preferred this appeal challenging the conviction and sentence imposed against him in the said case dated 13.12.2023.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the respondent/prosecution. Perused the verdict impugned and the evidence available.

In this case the prosecution alleges commission of offences punishable under Sections 342, 354 B, 376 AB, 354A(1)(i) r/w 354A(2) of the Indian Penal Code (for short 'IPC') and Section 4 r/w 3(b), 3(c) r/w 4, 5(m) r/w 6, 12 r/w 11(vi) of the POCSO Act by the appellant/accused.

The allegation of the prosecution is that, at about 10.00 a.m. on 07.12.2019, the accused, a senior citizen, who is the neighbour of the victim (PW1) took her to his home on the premise of providing guava fruit and thereafter, she was subjected to penetrative sexual assault.

The learned Special Judge framed charge for the said offences and proceeded with the trial. During trial, PW1 to PW11 were examined and Exts.P1 to 22 were marked on the side of the prosecution. During cross-examination of PW1, Exts.D1 and D2 contradictions were marked on the side of the defence.

On appreciation of evidence, the learned Special Judge found that the accused had committed offences punishable under Sections 342 and 376AB of the IPC and Section 5(m) r/w S.6(1), 3(b) r/w 4(1) of the POCSO Act, while acquitting the accused/appellant for the other offences. Accordingly, he was convicted for the said offences and sentenced as under:

vi) ln addition to the compensation above awarded, since the same is inadequate in the opinion of this Court, this Court makes recommendation to the District Legal Services Authority, Palakkad under Sec.357-A(3) of Cr.P.C. for awarding adequate compensation to the survivor PWl, after due enquiry.

The learned counsel for the appellant/accused raised multiple contentions to unsustain the verdict. The first point argued is that, in this case the FIR was registered after delay of 10 days and the delay is not properly explained. According to him, there is not even a whisper in the First Information Statement, as to how the delay occurred. Even though during examination, PW1 deposed that the accused threatened to kill her and put her on the nearby well, if she would have disclosed the incident to anyone, in the statements given to the Police and before the Magistrate, this reason for the delay is not disclosed. Therefore, the reasons offered by PW1 to the delay in lodging the FIR is a material omission. According to him, this aspect is fortified by the evidence of PW6, the Police Officer, who recorded Ext.P1 FIS. PW1 had denied given such a statement. The second contention raised is that the age of the victim is not properly proved to hold her as a 'child' under Section 2(d) of the POCSO Act. It is submitted further that the disclosure allegedly made by the victim to PW2 and others did not show any impact and in such circumstances, the mother of PW1 did not know about the incident before 10 days of registering the FIR, particularly, when, PW1 had told to PW2 regarding the incident and date of occurrence itself, would show serious doubt in the prosecution case.

Thirdly, it is pointed out that, even though the victim was a neighbour of the accused, PW1 could not even describe the structure of the house where she allegedly was subjected to molestation. She pretended ignorance regarding the nature of the door and the roof of the house, though she stated that the floor of the house was made of soil. It is submitted that penetration as spoken by PW1 is an absolute lie.

Fourthly, it is submitted by the learned counsel for the accused that PW1's evidence is not wholly reliable or PW1 is not a witness of sterling quality to act upon the same, particularly when the medical opinion given by the Doctor, who was examined as PW3 and issued Ext.P2 Medical Certificate would show that 'hymen intact'.

Lastly, it is submitted by the learned counsel for the appellant/accused is that, in this case Ext.P12, Potency Certificate issued was not tendered in evidence by examining its author to prove the contents thereof and it was tendered in evidence through PW6. Therefore, the contents thereof was not proved and as such there is no evidence before this Court to hold that the accused/appellant is capable to performing sexual acts. Therefore, he sought for interference in the verdict impugned.

The learned Public Prosecutor vehemently opposed these contentions. It is submitted that proof of potency of the accused, cannot be raised at the appellate stage without raising any objection when Ext.P12-Potency Certificate was tendered in evidence through PW6, and without disputing the genuineness of the contents of Ext.P12. Therefore, the contention at the instance of the learned counsel for the accused/appellant that the prosecution failed to prove the potency of the accused/appellant cannot be countenanced.

According to the learned public Prosecutor, the explanation given by PW1 as regards to the threat at the instance of the accused is the reason for the delayed registration of FIR. If at all the same is found as an omission, 10 days delay in reporting and registering the crime is not so fatal to the prosecution in cases of sexual molestation. The learned Public Prosecutor submitted that the other contentions also could not sustain. Therefore, he pressed for confirmation of the verdict impugned.

Adverting to the rival contentions, the points arise for consideration are:

Whether the Special Court is in right in holding that the accused/appellant committed offence punishable under Section 342 of IPC?

Whether the Special Court is justified in holding that the accused/appellant committed offence punishable under Section 376 AB of IPC?

Whether the Special Court went wrong in holding that the accused/appellant committed offence punishable under Section 5(m) r/w 6 of POCSO Act?

Whether the Special Court erred in holding that the accused/appellant committed offence punishable under Section 3(b)) r/w 4(1) of POCSO Act?

Whether the impugned verdict requires interference?

Order to be passed.

PW1 examined in this case is the child survivor aged 12 years, at the time of her examination. PW2 is PW1's friend, in front of whose house PW1 was allegedly enticed and kidnapped by the accused. PW3 conducted the Medico - Legal examination of PWl and issued Ext.P2 medical certificate. PW4, the Village Officer of Pudussery East Village office prepared Ext.P3 scene plan. PW5 is the mother of PW1. Her evidence regarding the alleged incident is hearsay, as she had no direct knowledge of the occurrence. She also attested Ext.P6 Scene Mahazar. PW6, the Sub Inspector of Police, Walayar Police Station registered Ext.P7 FIR. PW7 is the teacher of PW1 to whom she had made the disclosure for the first time on 16.12.2019. PW8 is the Headmistress of the school in which PW1 was studying and he produced Ext.P15 School Admission Register Extract in proof of the date of birth of PW1. PW9, the Panchayath Secretary produced the ownership certificate in respect of the place of occurrence. PW10, the Civil Police Officer of Walayar Police Station recorded the First Information Statement of PW1 with Ext.P1 and also recorded the additional statements under section 161 of Code of Criminal Procedure (for short 'Cr.P.C'). PW11 the Investigating Officer carried out the major part of the investigation and ultimately laid the charge sheet.

Here the overt acts of the accused, which led to finding of guilt by the learned Special Judge, is confined to that of PW1. PW1 deposed that the occurrence was in between 10 am and 12.00 noon on 07.12.2019. According to her, the accused who was hailing from the very same locality approached them, promised guava fruits to her and asked her to come with him to pull down some Guava fruits. On reaching his house, the accused had pulled down some guava fruits and gave her. When PW1 was about to go back to her house, the accused told her that he would get a cover for her and asked her to come inside. When PW1 got inside his house, he locked the door from inside. He asked her to remove her trouser and inner wear and she complied. He then went inside and came back wearing a lungi with design of flowers. He then played some Tamil songs on the television. He sat on a chair and made her sit on his lap, inserted his finger into her vagina for some time, and when she cried out of pain, he had released her. She found some white colour substance being splashed on the floor. He threatened her that she would be killed and thrown into some well if she would tell the incident to anyone. When she came back, she found PW2 and told her what happened. The incident had happened on a Saturday. She admitted that she had lodged Ext.P1 First Information Statement. When questioned by the learned Special Public Prosecutor as to whether she had seen him at any later point of time, she answered that on the next Saturday, while she was playing with PW2 the accused similarly approached her and called her, but she did not go with the accused. She disclosed the matter to her class teacher (PW7) who passed the information to her mother. The mother came to know of the incident from PW7. She had given similar statements to the doctor as well as to the Judicial Magistrate. She identified the accused at the dock. According to her, at the relevant time she was studying in the third standard in Sai Nikethan School.

PW2 examined in this case, the friend of PW1 and the occurrence was while PW1 and PW2 were playing together. She deposed that in terms of evidence given by PW1 and according to her on return from the house of the accused, PW1 was crying and when she enquired about the same, she had disclosed the overt acts done by the accused.

PW10, the Civil Police Officer of Walayar Police Station, who was deputed by PW6 at 8:15 p.m. over telephone to record a statement in connection with a child abuse by her neighbour at a place called Kongampara, deposed that as authorised, he had proceeded to the house of PW1 from her house which she stated to be only 10 minutes away. According to her she started from her house at 8:00 p.m. and as per the FIS it was recorded at 8:30 p.m. on 16.12.2019.

PW7, the class teacher of the victim testified that herself, the principal and the PTA president had together gone to the house of PW1 and they had talked to her and that they were told by the mother that she would go to the police station to prefer a complaint.

In this case, Ext.P15 is the school admission extract tendered in evidence through PW8, the Head Master of Sai Nikethan English Medium School, showing the date of birth of PW1 as 03.06.2011. Even though, it is argued by the learned counsel for the accused/appellant, the age of the victim was not proved by the prosecution to treat her as child as defined under Section 2(d) of the POCSO Act, the evidence of PW8 supported by Ext.P15 categorically established that, at the time of occurrence, the victim was a child. Apart from that, Ext.P19, Birth Certificate of victim was also proved through the evidence of PW11, to establish the date of birth of the victim as 03.06.2011. Thus the challenge raised by the learned counsel for the appellant in this regard must fail.

The next question to be considered is whether there is a delay in lodging FIR and the same is fatal to the prosecution as argued by the learned counsel for the appellant. Evidently, the occurrence was on 07.12.2019 and FIR was lodged on 17.12.2019 on recording the FIS given by PW1 on 16.12.2019. It is true that, PW1 did not disclose the occurrence for 10 days to anybody other than PW2. PW2, another minor, a friend of PW1, also not disclosed the same to anybody, might be because of her tender age. PW1 deposed that when she went to the school, Mubarak teacher found her as gloomy and in a disgraced condition, then he asked her the reason, after ten days, and the occurrence was divulged thereafter. Here the reasons for not lodging complaint before ten days, i.e., on the date of occurrence spoken by PW1 is an omission as she did not state the same before the Police. But since the delay is only ten days in a case involving sexual molestation of a 12 year old girl child, 10 days delay in registering the FIR could not be found as fatal to the prosecution case. As such this contention is negatived.

According to the learned counsel for the appellant/accused, PW1's evidence is not reliable or PW1 is not a sterling witness. She did not know anything about the nature of the house as contended by him. He also relied on the contradictions from the mouth of PW1, as Exts.D1 and D2. The impact of Exts.D1 and D2 contradictions had been discussed by the learned Special Judge in paragraph No.24 and held as under:

In fact, the finding rendered by the learned Special Judge adverting to Exts.D1 and D2 contradictions is only to be justified on evaluating the evidence.

Coming to the questions as to whether the prosecution failed to prove the potency of the accused, some discussion would be required. It is submitted by the learned Public Prosecutor that if the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy of credence, as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. This rule is subject to the qualification that corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation; or when the "probabilities factor" is found to be out of tune. Corroboration of the victim of the sexual offence may be considered essential to establish the offence in the backdrop of the social ecology of the western world. But it is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. Rarely a girl or a woman in India make false allegations of sexual assault due to various psycho-social factors. And when in the face of those factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the testimony of a victim of sexual assault stands on par with the testimony of an injured witness. Just like the testimony of the injured witness, that of the victim of sex offence is entitled to great weight. But unlike the case of physical assault, corroboration in the form of eyewitness account of an independent witness cannot be expected in sex offences, having regard to the very nature of the offence. In this connection, he has placed reliance on a decision reported in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [1983 SCC OnLine SC 152].

Similarly, it is pointed out by the learned Public Prosecutor further that while being examined under Section 313 Cr.P.C in respect of all questions, his answers were either 'it is false' or 'I do not know'. There is absolutely no case for the appellant that all the incriminating circumstances were not put to him. In view of Pattu Rajan's case (supra) and other decisions such as, Trimukh Maroti Kirkan v. State of Maharashtra offering no explanation on incriminating circumstances mentioned above would become an additional link in the chain of circumstances and in this connection he has placed reliance on the decision reported in Veerendra v. State of Madhya Pradesh [2022 (2) KLD (1) SC].

Another decision of this Court reported in xxx v. State of Kerala [2026 KHC OnLine 721] also has been relied on by the learned Public Prosecutor to contend that in cases of sexual molestation, the evidence to prove the same would come mainly from the victim of crime. Apart from that, corroboration by way of medical evidence also is possible since sexual molestation would not be done in the presence of any other witnesses normally. Other witnesses may be able to speak of the pre and post events regarding the occurrence. That is why, the law is settled on the point that, the evidence of the victim to be scrutinized so scrupulously to find out whether the same is of sterling quality to be acted upon, as 'wholly reliable'. When the victim's evidence appears to be of sterling quality and wholly reliable, the same alone can be the basis of conviction without support of any corroboration. It is pointed out by the learned Public Prosecutor further that in the said decision, Apex Court cautioned the evil of acquitting a guilty person light heartedly on the simple fact that just one guilty person has gone unpunished, if unmerited acquittals become general, they tend to lead a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against the indicted persons and more severe punishment to those who are found guilty. Finally, the learned Public Prosecutor pointed out the observations of the Apex Court in paragraph 8 of the judgment, where it has been observed that the too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered.

It is not in dispute that it is the duty of the prosecution to prove the prosecution case beyond reasonable doubt. It is true that, as argued by the learned counsel for the appellant/accused mere production of a document and marking of the same would not make the contents thereof as proved unless the author of the document or somebody who is competent to speak about the contents of the documents failed to be examined. At the same time, when documents were tendered and marked in evidence by persons who did not have the competence to speak about the contents of the documents, because no objection was raised by the other party, the situation to be addressed adverting to the said procedure. Thus, tendering of an admissible documents in evidence if not objected during tendering of the same in evidence, the party who conceded its tendering in evidence without any objection, could not raise the same before the Appellate Court to beat the succeeding party on the ground. That is to say, if an objection would be raised when an admissible document was proposed to be tendered in evidence, the party who intended to tender the said document in evidence would have the opportunity to summon either the author or a person competent to speak about the contents thereof before the trial court itself to tender the same in evidence properly. At the same time, if the document itself is inadmissible, mere marking of the same by the trial court would not make the same as evidence to be relied upon.

In the instant case, when Ext.P12 Potency Certificate was tendered in evidence by examining PW6, no objection was raised by the learned counsel for the accused disputing its tendering. It is not in dispute that Ext.P12, Potency Certificate is a document admissible in evidence and not a document inadmissible in evidence. Thus tendering of a document which is admissible in evidence through a witness who did not know the contents thereof, if not objected before the trial court, by the opposite party, the party who did not raise objection is estopped from raising the said contention in the form of objection before the Appellate Court as a surprise to the other side without giving an opportunity to the party who produced the document to call for and examine the author or any person competent to speak about the contents of the document (here Ext.P12). Moreover, it is discernible from the prosecution evidence that the appellant raised no dispute as regards to his potency before the Special Court. Therefore, this challenge also found against the appellant/accused.

To sum up, on re-appreciation of evidence, this Court is of the considered view that the prosecution has succeeded in proving that the accused/appellant had committed offences punishable under Sections 342 and 376AB of IPC as well as under Sections 5(m) r/w 6(1), 3(b) r/w 4(1) of the POCSO Act and the said finding entered into by the learned Special Judge is only to be justified.

Coming to the sentence, since minimum sentence provided for the offence under Section 5(m) r/w 6(l) of POCSO Act is 20 years, reduction of sentence for other offences would not serve any purpose as the sentences are ordered to be run concurrently. Therefore, the sentence also is liable to be confirmed.

In the result, the appeal fails and is dismissed accordingly. The conviction and sentence imposed by the Special Court are confirmed. Since the appellant/accused is in custody, no further orders are required.

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

Annexure A1 A TRUE COPY OF THE MEDICAL REPORT DATED 12/07/2024 DIAGNOSING PAPILLARY UROTHELIAL CARCINOMA

Annexure A2 A TRUE COPY OF THE DISABILITY CERTIFICATE DATED 24/04/2003 ISSUED BY DISTRICT HOSPITAL, PALAKKAD

Annexure A3 A TRUE COPY OF THE CERTIFICATE FOR BED RIDDEN PATIENTS ISSUED TO APPELLANT’S SON SUJEESH FROM KERALA SOCIAL SECURITY MISSION, POOJAPURA

Annexure A4 A TRUE COPY OF THE CERTIFICATE ISSUED TO SUJEESH SHOWING REGISTRATION AS A PERSON WITH DISABILITY WITH ENROLLMENT DATED 02/04/2019 AND ENROLLMENT NO. 3206/00000/1904/0077266 FROM MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, GOVERNMENT OF INDIA