XXXXX vs State Of Kerala

The sole accused in S.C. No.1118/2023 on the files of the Fast Track Special Court (PoCSO cases), Wadakkanchery, has filed this appeal, under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 29.10.2024. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

In this matter, Adv. B.A. Aloor, who filed this appeal was no more and thereafter, there was no appearance for the appellant/accused. Although this event was communicated to the appellant through the Superintendent of Central Prison, Viyyur, no fresh vakalath filed. Accordingly, Adv. K. Aravind Menon was appointed as State Brief to argue the case. The State Brief appeared and argued the matter in detail. Meanwhile, the learned counsel for the appellant, who filed fresh vakalath for the appellant sought time to argue the matter. Therefore, even though this matter was heard as argued by the State Brief, the learned counsel for the appellant, who filed fresh vakalath also was heard in detail. Also heard the learned Public Prosecutor for the respondent. Perused the judgment under challenge and the records of the Special Court.

The prosecution case is that on several occasions and at different times during the period from 01.06.2020 to 05.08.2023, the accused who was a tea vendor and a relative of the father of the victim, enticed the victim boy aged 9 years, by offering tea, and then the accused brought the victim to his house No. XIX/42 of Pazhayannur Grama Panchayath, when the accused's wife was not there and had carnal intercourse with the victim against the order of nature on the Sofa kept in the hall of the said house, by inserting the accused's penis into the mouth of the victim, and also the accused, with sexual intent, caressed on the penis of the victim. Thereby the prosecution alleges commission of offences punishable under Section 377 of the Indian Penal Code (hereinafter referred to as the 'IPC', for short) and sections 4 read with 3(a), 6 read with 5(l), 5(m), 5(n), 12 r/w 11(vi) of the Protection of Children From Sexual Offences Act (hereinafter referred to as the 'POCSO Act', for short)

The learned Special Judge, after framing charge for the above said offences, recorded evidence and completed trial. During trial, PW1 to PW20 were examined and Exts.P1 to P19 were marked on the side of the prosecution. Availing the opportunity provided for adducing defence evidence, DW1 was examined on the side of defence. On appreciation of evidence, the learned Special Judge found that the appellant/accused committed offences punishable under Section 377 of the Indian Penal Code as well as under Sections 4(2) read with 3(a), 6 read with 5(l), (m) and (n) of the POCSO Act and accordingly, the appellant/accused is convicted for the said offences and sentenced as under:-

The learned counsel for the appellant as well as the State Brief argued that in this case the evidence of PW1 is not reliable. According to them, PW1, the victim not disclosed the occurrence till 05.08.2003 though he had a case that he was subjected to aggravated form of sexual assault by the accused from 01.06.2020 to 05.08.2023. Therefore, the case of the prosecution and the evidence given by PW1 regarding the repeated sexual assaults for a considerable period of three years from 01.06.2020 to 05.08.2023 is not at all reliable.

It is submitted that even though the last occurrence was on 05.08.2023, the medical examination done by the Doctor, who was examined as PW8 and who issued Ext.P5 Medico-legal Report stated that no injury could be found on examination of the victim on 08.08.2023. Apart from that, it is argued that during cross examination of PW10, who is the grandmother of the victim (PW1), she deposed about a quarrel in between the accused and the mother of PW1 (who was examined as PW2) before lodging the complaint before the police and therefore, the quarrel prior to lodging the complaint led to the filing of this false case. Accordingly, it is submitted that the prosecution case is not fully free from doubts and in such view of the matter, the verdict would require interference to record acquittal, enlarging benefit of doubt in favour of the appellant/accused.

Whereas, it is submitted by the learned Public Prosecutor that there is no improbability in the evidence of PW1, which is well supported by PW2 the mother, PW3 the father, PW7 the brother and PW10 the grandmother, and PW4 one of his friends. According to him the prosecution case is that the accused who was engaged in selling tea, used to give balance tea to the family of PW1 and when PW1 approached him for collecting the same, the minor was enticed and subjected to sexual assault and therefore, the evidence of PW1 is of sterling quality to be acted upon. He also submitted that, in fact, there is no improbability in this case, since PW2 the mother categorically deposed that earlier her elder son (elder brother of PW1) used to go for collecting the balance tea from the accused, but he became hesitant to do so due to some unfair conduct on the part of the accused and at this juncture, the mother without knowing the same had sent the victim towards the accused. Therefore, according to the learned Public Prosecutor, there is no improbability in the prosecution case. It is also pointed out that merely because there was a quarrel, on knowing the occurrence, between PW2 and the accused, the same is of no serious consequence to disbelieve the prosecution case in toto. It is also submitted that as regards absence of injury to the victim, going by the overt acts, the likelihood of causing any notable injury is remote. Thus, it is submitted that the verdict impugned would sustain.

In view of the rival submissions, the points arise for consideration are:

Point Nos. 1 to 6:- Here going by the evidence as regards to the occurrence, the evidence of PW1 was given emphasis by the learned Special Judge relying on the decision of the Apex Court in Ganesan v. State represented by it's Inspector of Police reported in [AIR 2020 SC 5019] holding the view that where testimony of the victim is found reliable and trustworthy, conviction on the basis of the sole testimony would be legally permissible. Similarly the decision of the Apex Court in Alamelu and Another v. State represented by Inspector of Police reported in [AIR 2011 SC 715] also has been relied upon in this regard.

PW1, the victim deposed that he had been residing with his father, mother, elder brother and grandmother at Pazhayannur and his father and mother were lottery ticket sellers. The accused Ramachandran whom he used to call 'Chandran velyachan' was his relative and the accused's house was nearby to his house i.e., walkable distance from his house. The wife of the accused whom he used to call 'Leela valyamma' was also residing in the said house. The two daughters of the accused were married and were living elsewhere. The accused was a tea vendor who used to sell tea by carrying it on a motorcycle. He deposed that whenever there was leftover tea the accused used to call PW1's grandmother, in her phone and ask to come to his house to take the tea and he used to go to the house of the accused to collect the tea as instructed by his grandmother. He further deposed that during those occasions on many times, the accused put the penis of PW1 into the accused's mouth and also sucked PW1's breasts, and the accused put his penis into the mouth of PW1 and forced PW1 to suck the accused's breasts. According to PW1, if he didn't do as told by the accused, the accused would push down the head of PW1 in such a manner that the penis of the accused to reach his throat. When the accused repeated the same, he had the feeling of vomiting. PW1 testified further that the accused had done such things to him since he was studying in the first standard, and the last time he did it was on a Saturday in the month of August 2023. He further stated that the incidents happened in the hall of the accused's house by putting him on a sofa. According to PW1, the accused sexually assaulted him in the above manner when the accused's wife was not in the house.

PW1 testified further that on school days he used to go to the accused's house to take the tea in the evening and on holidays he used to go there in the morning, noon, as well as evening time. PW1 stated that the accused gave tea to them free of costs. As per his version, though he disliked what the accused had done to him, he went to the accused's house to bring tea due to the insistence of his elder brother and grandmother. According to PW1, while the accused sexually assaulted him, the accused would be sitting on the sofa and he would be standing, his trouser and shirt would be removed partially by the accused and the accused would remove his shirt, dhoti and underwear. If he tried to leave, the accused would keep him there forcibly. PW1 stated that he had felt tingling when the accused caressed his penis, PW1 further stated that he did not tell the incident at home because he was afraid that his mother would beat him.

PW1 deposed further that the incidents were disclosed by him for the first time to his friends Sanju, Abhi. Kichu and Achu when he started to suffer pain on his neck following the sexual assault of the accused. Those friends told the matter to his elder brother. Then the brother informed his mother. When his mother asked he narrated the incidents to her. After two days police came to his house and recorded his statement. PW1 identified his signature in the first information statement and the same got marked as Ext.P1. He also deposed that in connection with the case, he was subjected to medical examination and he had narrated the overt acts to the doctor. He had also given statement to the magistrate regarding the occurrence. The relevant portion of the statement pertaining to the sexual assault committed by the accused were marked as Exts. P2 and P3. He had shown the place of incident to the police. PW1 identified the accused at the dock. He stated that his date of birth was on 15.09.2014.

Apart from PW1, PW2 the mother, given evidence supporting the prosecution case that she had two sons and the victim is her younger son. According to PW2, the accused is the son-in-law of her husband's mother's sister. The accused was a tea vendor, who used to sell tea by carrying it on a motorcycle in the morning, noon and evening. According to PW2, she was conducting a lottery shop on a partnership basis near Pazhayannur temple and her husband was doing lottery sales at Parameppadi, Pazhayannur. She and her husband used to go for work at about 5:00 - 6:00 AM and would return home at about 8:00 - 8:30 PM. So, her husband's mother alone would be there in the house when the children come from school. The accused used to call in her husband's mother's phone when there was leftover tea after sale. Then the husband's mother would send the elder son to the accused's house to bring tea. Later she started to send the victim for that purpose. On non-school days, the victim used to go the accused's house to bring tea around 11:00 AM and 6:00 PM, but on school days, he used to go only in the evening. On those occasions, the accused had sexually assaulted the victim several times. PW2 stated that she came to know about the matter only when her elder son told her about the same on 06.08.2023.Then she asked her younger son about the information and he told her in detail.

Similar version had been given by PW3, the father of the victim. Apart from PW1 to PW3, PW4 a friend of the victim was also examined and according to him, the place of residence of the accused is two minutes walkable distance from his house. He deposed that when PW1 came to his house at 11.00 to 11.30 am, on a Saturday in August 2023 and he told him that 'Chandran Velyachan' (accused/appellant) a sinful person, but PW4 did not care about it. Then PW1 disclosed that 'Chandran Velyachan' used to insert his penis into his mouth and the victim's penis into Chandran Velayachan's mouth. Accordingly, he along with Achu and the victim, reached the house of the victim and told the same to his brother. Ext.P4 scene mahazar was tendered in evidence through PW6, Sri.Rajan, a neighbour of the accused. PW5 supported Ext.P3 mahazar prepared while inspecting the house of the accused from where he was taken into custody.

The elder brother of the victim was examined as PW7. He deposed that, his friends Kichu, Abhi, Achu and Gokul told him about the incident related and his brother, the victim, also told him about the incident. According to PW7, his friends informed him on the 5th of August, 2023. The next day he and his family had gone to the Guruvayur temple and he told the matter to his mother when they came back from the temple. He had testified that the accused who was a tea vendor, used to call them in the mobile phone of their grandmother to take away the leftover tea after sale and then they used to send the victim to bring the tea as all of them were fond of tea. He further testified that the accused sexually assaulted his brother when the brother had gone to the accused's house to bring tea since the period of COVID-19. According to PW7, sometimes the victim would be late in returning from the accused's house and when he asked the reason, the victim used to say that it was because the accused was late in putting tea powder and sugar. He realised that the above reason stated by the brother was as per the instructions of the accused, only when the case was registered. He identified the accused at the dock. PW10 the grandmother of the victim, supported the prosecution as regards the occurrence to the extent known to her.

In the instant case, Ext.P7 is the extract of birth register of PW1 (the victim) and it was through PW11, the Birth and Death Registrar, Ottappalam Municipality, the same was tendered in evidence along with certificate under Section 65B of the Evidence Act. Apart from that, Ext. P8 the abstract of the admission register, where the victim was admitted in I^st standard was tendered in evidence through PW12, the Headmistress of ALP School, Kunnathara, Pazhayannur and Ext.P9 relevant pages were also marked through him. In fact, no dispute raised with regard to the status of the victim at the time of occurrence to treat him as a child as defined under Section 2(d) of the POCSO Act. PW13, PW14, PW15 and PW16, the civil police officers supported the prosecution evidence. PW13 supported Ext.P1 statement given by the victim on 08.08.2023, which led to the registration of FIR. In order to show the ownership of the place of occurrence, Ext.P13 certificate issued by the Secretary of the Pazhayannur Grama Panchayat was tendered in evidence to establish that the same was owned by the accused along with Leela, Elamuttath, Thekkethara, Pazhayannur. Ext.P14 is the potency certificate in relation to the accused which would suggest that “there is nothing to suggest that the accused is incapable of performing sexual acts” was tendered in evidence through PW18, the Chief Medical Officer, attached to the Taluk Hospital, Chelakkara. PW19 and PW20 are the Investigating Officers and they fully supported the investigation led to filing of the final report.

Going through the evidence of PW1, in fact, during cross examination of PW1, nothing extracted to disbelieve his evidence and he had given evidence that the last occurrence was on a day during August, 2023. It is true that though the sexual assault at the instance of the appellant/accused started on 01.06.2020, the same was not disclosed till 05.08.2023. In this regard the evidence of PW1, is that he was afraid of his mother in the matter of disclosure. In a case of this nature the evidence of PW1 need not be disbelieved as the same appears to be convincing. Therefore, the improbability in the present case canvassed by the learned counsel for the appellant and the learned State Brief could not be appreciated. In the instant case, nothing would suggest that the evidence of PW1 is not wholly reliable or not acceptable. Thus PW1 is a sterling witness to act upon his evidence. As regards to the contention raised by the learned counsel for the appellant/accused that no injury was noted by the Doctor who examined PW1 on 08.08.2023, though the last occurrence was on 05.08.2023, going by the overt acts, the likelihood of any injury is remote. Therefore, merely because the Doctor did not found any injury, the same by itself is insufficient to disbelieve the prosecution case. Therefore, this contention also found against the appellant/accused. Even though PW10 deposed about a quarrel in between PW2 and the accused, before lodging the complaint as argued by the learned counsel for the appellant, the same need not be reckoned as animosity in between PW2 and the accused for any manner, as the quarrel in fact is the outcome of getting knowledge regarding the sexual assault by the accused on the victim. Thus, none of the contentions raised by the learned counsel for the appellant to unsustain the verdict could be found and in such view of the matter, the conviction does not require any interference. Reverting back, on re-appreciation of the evidence involved in this case where the prosecution had a specific case that by exploiting the minor, who reached before the appellant/accused to get the leftover tea to his family was enticed and subjected to sexual assault in the form of oral sex and continued the same more than about three years and the last occurrence was on the first week of August, 2023 and it was disclosed by him to PW4 first and in turn to his brother and family at last, the evidence of PW1 supported by the other evidence found to be of sterling quality, there is no reason to disbelieve the evidence to interfere with the finding of the Special Court. Thus the conviction imposed by the Special Court is liable to confirmed.

Coming to the sentence, twenty years is the maximum sentence imposed upon the accused for the offences punishable under Section 6 of the POCSO Act and the same is the statutory minimum sentence provided for the offence under Section 6 of the POCSO Act. Therefore, no reduction in sentence is legally permissible. Accordingly, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail.

In the result, this criminal appeal stands dismissed. The conviction and sentence imposed upon the appellant/accused stand confirmed. All interlocutory applications pending in this appeal stand dismissed.

Since the accused is in jail, the Registry is directed to forward a copy of this judgment to the Jail Superintendent and the Special Court concerned, for information and compliance.