XXXX vs State Of Kerala

Judgment dated 03.09.2022 in S.C.No.841/2021 on the files of the Fast Track Special Court, Pattambi, is under challenge in this appeal at the instance of the accused in the above case.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor in detail. Perused the verdict under challenge.

The prosecution case is that, at about 2.00 am on 01.10.2021, the accused, who is the father of the minor victim (CW1), aged 14 years 4 months and 8 days, exhibited his naked body before the minor victim, from the hall of the rented quarter bearing No.6/193 of Nagalassery Grama Panchayath, where the minor victim was residing with her family, including the accused. It is alleged that the accused rubbed his sexual organ on the face of the minor victim, thereby sexually harassed her. It is further alleged that accused had exhibited his sexual organ and nude body in front of the minor victim with an intention to outrage her modesty. On this premise, the prosecution alleges commission of offences punishable under Sections 354A(1) (i) and 509 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short), Sections 7 r/w. 8, 9(n) r/w. 10, 11(i) r/w. 12 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’ for short)and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by the accused.

The learned Special Judge proceeded with the trial. PW1 to PW11 were examined, and Exts. P1 to P17 were marked on the side of the prosecution. No evidence was adduced on the side of the defence.

On evaluation of the evidence, the learned Special Judge found that the appellant/accused had committed the offences punishable under Sections 354A(1)(i) and 509 of IPC, Sections 8 r/w.7, 9(n) r/w. 10 and 12 r/w.11(i) of the POCSO Act and Section 75 of the JJ Act. Accordingly, he was convicted and sentenced as under:

The prime contention raised by the learned counsel for the appellant/accused is that, in this case, as regards the place of occurrence, no convincing evidence has been adduced. According to her, PW3, the victim, deposed that she was subjected to sexual assault at about 2.00 a.m. on 01.10.2021 at their residential house and the prosecution case also is the same. She also submitted that though PW6, the Secretary, Nagalassery Panchayat, was examined and Ext.P7 ownership certificate dated 10.12.2021, was tendered in evidence, Ext.P7 is hit by Section 162 of the code of Criminal Procedure. Therefore, no reliance can be given to Ext.P7. Apart from Ext.P7, no other evidence adduced to prove the place of occurrence, and the same has not been properly proved. It is argued further that there was no legal relationship between the accused and PW4, the mother of the victim. Even though there is no legal marriage in between them, the prosecution alleges that the accused and PW4 were co-habiting and the victim was born out of their relationship. At the same time, the learned counsel fairly conceded that admittedly the accused is the biological father of PW3. Absence of medical evidence to support the prosecution case also is pointed out to disbelieve the evidence of PW3 and the prosecution case. It is pointed out further that only one instance of trivial nature is the basis on which the learned Special Judge found commission of very serious offences punishable under Sections 354A(1)(i) and 509 of IPC, Sections 8 r/w.7, 9(n) r/w. 10 and 12 r/w.11(i) of the POCSO Act and Section 75 of the JJ Act. Therefore, by giving the benefit of doubt, the appellant/accused is liable to be acquitted.

The learned Public Prosecutor supported the verdict under challenge and argued that the evidence of PW3, supported by the evidence of PW6 and PW8, regarding the ownership of the quarter/residence of the victim would establish the place of occurrence as quarter No.6/193, where the sexual assault took place, which is near to building No.6/190 as deposed by PW8. According to him, there is no reason to disbelieve evidence of PW3, supported by the evidence of PW6 and PW8, and the verdict impugned does not require any interference.

Having considered the rival submissions, points arise for consideration are,

In this case, the prime witness is PW3, who is the victim. According to her, she lodged a complaint before the Chalissery Police on 01.10.2021 and a crime was registered based on her statement recorded by the woman police constable. Her mother accompanied her at the time of lodging the complaint. According to the minor victim, at the time of occurrence, she along with her mother, father (the accused) and brother, had been residing in a quarter. She lodged the complaint against her father. She deposed that at 2.00 a.m. on the previous day, while she was sleeping in the hall room, the father reached near her and rubbed his penis on her face in an undressed condition. Soon she found that her mother, along with younger brother, was sleeping in the next room, and when her father rubbed his penis on her face, she woke up and called her mother. Soon the accused ran towards the kitchen. When the mother reached, she informed her about the occurrence and the mother sent out the father from the room. According to her, her father was in the habit of consuming liquor, and on the date of occurrence, he had consumed liquor. She also deposed that on the date of occurrence, her father reached the quarter at 11.30 pm. She further deposed that one or two years ago, he had touched on her breast during night. However, she did not divulge the same to the mother or the police. She deposed about her examination at the hospital and giving statement regarding the occurrence before the doctor. She also deposed that she had hesitated examination of herself by the doctor, as nothing to be examined since the allegation was only regarding rubbing of the penis of the accused on her face. She also deposed that Ext.P3 is the statement given by her before the police and Ext.P4 is the statement given by her before the Magistrate. During cross-examination, when a question was asked as to whether she disliked his father, she replied that she disliked him when he consumed alcohol, otherwise, she liked him. According to her, they used to reside in rental houses and there was no difference of opinion between her father and mother, though they used to make quarrel when the father would reach the house after consuming alcohol. During cross-examination, PW3 deposed about some quarrel in between her father and mother on the date of occurrence.

In continuation to the evidence of PW3, the prosecution examined PW4, the mother of the victim. According to her, accused is her husband and the date of birth of her daughter is 13.05.2007. She deposed that she used to go for work in various houses and her husband was a coolie worker. She had been residing with the accused and children in the rental quarter at Vavannur. According to her, PW3 had given a complaint before the Chalissery police station and she had accompanied her. She further deposed that her daughter had stated the facts before the Woman Police Officer on 01.10.2021. She testified further that on the previous day, that is on 30.09.2021, accused came to the house after consuming liquor and while her daughter was sleeping, he had rubbed on her right cheek with his penis and he was not wearing any dress. She was sleeping at the room with her younger son and her daughter was sleeping in the hall. She deposed that her husband (accused) used to consume liquor on every day. She deposed that on the date of the incident, her husband had reached the house at 11.00 p.m., after consuming liquor. She had identified Ext. P3 F.I. Statement given by her daughter which was signed by her also. According to PW4, when her husband had rubbed his penis on the cheek of PW3 (victim), her daughter had cried. On hearing the same, she had rushed towards her and at once her husband ran away to the kitchen. When she had seen the accused, he was naked. There was light in the kitchen. According to her, she had sent out the accused and had locked the grill at about 2.00 p.m. She deposed that she had accompanied her daughter for medical examination and also for giving statement before the Magistrate. She had produced the dress of her daughter before the police. According to her, police had come to her house for inspection of the hall. She had signed in Ext.P5 scene mahazer and Ext. P5 also identified by her.

During cross examination she deposed that accused and herself belonged to different communities and there was no legal marriage. She deposed that they were living together. She admitted that they used to quarrel. According to her, after birth of one child, accused had started to consume liquor. She deposed that after instituting the case, she had filed a maintenance case against the accused.

In this case, Ext.P6, the birth certificate of PW3, was tendered in evidence through PW5, and she supported the same showing the date of birth of the victim as 13.05.2007. Apart from Ext.P6, PW11, the Headmistress of DVM LP School, produced Ext.P17, school admission register pertaining to PW3, which also would suggest that the date of birth of the victim was on 13.05.2007. In fact, no dispute was raised regarding the juvenility of the victim in any manner. Otherwise, the same is proved by the prosecution by the evidence discussed.

In the instant case, the prime contention raised by the learned counsel for the appellant/accused is non-proof of place of occurrence with certainty by the prosecution. It is relevant to note that by producing Ext.P7 through PW6, the prosecution attempted to prove that quarter having building No.6/193 was one among the quarter where the accused, PW3, PW4 and the younger brother of PW3 resided during the relevant time. Even though it is argued by the learned counsel for the appellant/accused that Ext.P7 is hit by Section 162 of the Evidence Act, during cross-examination of PW6, it was extracted that building No.6/193 was the place of occurrence. Even eschewing Ext.P7 certificate from evidence, the evidence of PW6 would suggest that building No. 6/193, was owned by PW8 who supported the prosecution case regarding entrustment of the quarter to the accused and his family and their residence at the time of occurrence.

PW8, who is the owner of the place of occurrence, deposed that at the time of occurrence, the accused, his wife and children were resided in a quarter owned by her and the same was given for rent from two months prior to the occurrence and the accused discontinued his residence therein, after the occurrence, though the wife and two children continued their residence.

As regards the substantial evidence given by PW8 to the effect that the residence of family of PW3, along with the accused, no cross-examination was effected, though document showing the rental arrangement was only questioned. According to PW8, on getting the photocopy of the Identification proof, they were permitted to stay at the quarter and no other document was executed. In fact, the evidence of PW3, well supported by the PW8, the owner of the quarter, in addition to the evidence of PW6, would substantiate that the place of occurrence is quarter No.6/193. Therefore, the contention raised by the learned counsel for the appellant/accused that the prosecution failed to prove the place of occurrence with certainty is found to be unsustainable and is negatived.

It is true that as per the evidence of PW3, only one occurrence spoken by her and the previous occurrence stated by her one or two years ago not disclosed by her to her mother or to the police.

In this case, PW1, Jr. consultant, Taluk Head Quarters Hospital, Ottapalam, who examined the victim at 7.40 pm on 01.10.2021 and issued Ext.P1 certificate deposed about the narration of the occurrence by the victim while she was examined. According to the doctor, she did not conduct any physical examination and no consent was given by her. Considering the nature of allegation that the accused rubbed his penis on the face of the victim, in fact, medical examination would not have much relevance, even though it is argued by the learned counsel for the appellant/accused that medical evidence does not support the prosecution case.

Regarding potency of the accused, Ext.P2 potency certificate, suggesting that the accused was capable of performing sexual acts, was tendered in evidence through PW2, the Medical Officer, Taluk Hospital, Pattambi, as on 15.10.2021, who had examined the accused at 1.15 pm on the said date.

Section 7 of the POCSO Act defines sexual assault and it has been provided as under:

Section 8 of the POCSO Act deals with the punishment for committing the offence under Section 7 of the POCSO Act and the same provides as under:

While tracing the ingredients to find out the offence under Section 7 of the POCSO Act, it has several parts. The first part provides that whoever, with sexual intent, touches the vagina, penis, anus, or breast of the child. The second part is making the child touch the vagina, penis, anus, or breast of such person or any other person. The third part is doing any other act with sexual intent which involves physical contact without penetration. Here, the specific allegation is that, the accused touched or rubbed his penis on the face of the victim, in an undressed condition, and the same is an act come within the ambit of Section 7 of the POCSO Act, involving physical contact without penetration. Therefore, going by the evidence of PW3, the offence defined under Section 7 of the POCSO Act is established by the prosecution.

Section 9 of the POCSO Act deals with aggravated sexual assault. Section 9(n) of the POCSO Act provides that whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child.

The evidence discussed, in fact, clearly established the offence under Section 9(n) of the PoCSO Act. Thus, it appears that the learned Special Judge is right in finding that the accused/appellant, who is none other than the father of the victim, committed offences punishable under Sections 7 r/w.8, 9 r/w.10 and 11(i) r/w.12 of the POCSO Act, Section 354A(1)(i) and 509 of IPC and under Section 75 of the JJ Act, though no separate sentence imposed for the offences under Sections 354A(1)(i) and 509 IPC and under Section 7 r/w.8 of the POCSO Act. The above discussion would lead to the conclusion that the conviction recorded by the learned Special Judge does not require any interference.

The learned counsel for the appellant/accused pressed for leniency in the matter of sentence. Here, the maximum substantive sentence imposed by the learned Special Judge is six years of rigorous imprisonment for the offence punishable under Section 9(n) r/w. 10 of the PoCSO Act. The minimum punishment provided as per Section 10 of the POCSO Act is rigorous imprisonment for a term not less than five years. Therefore, in the interest of justice, the substantive sentence of six years imposed for the offence under Section 9(n) of the POCSO Act can be reduced to five years, while confirming the fine and default sentence imposed for the said offence and all other offences intact.

In the result, this appeal is allowed in part. Conviction imposed by the special Court on the appellant/accused is confirmed. The sentence is interfered and modified as under:

The substantive sentence shall run concurrently and the default sentence shall run separately. Set off is allowed for the period of detention already undergone by the accused.

The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear before the special court forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.

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