XXXXXXXXXX vs State Of Kerala

The sole accused in S.C. No.479/2020 on the files of the Fast Track Special Court, Taliparamba, has filed this appeal, under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 11.12.2023. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

Heard the learned counsel for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

The prosecution alleges commission of offences punishable under Sections 354B, 354D(ii), 376(3) and 506(i) of the Indian Penal Code [hereinafter referred as ‘IPC’ for short] and under Sections 3(a) read with 4(2), 5(p) read with 6, 7 read with 8, 9(l) read with 10, 9(p) read with 10 and 11(iv) read with 12 of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], by the accused. The allegation of the prosecution is that, at about 02.00 p.m. on 31.07.2020, the accused came to the backside of the residence of the victim, aged 15 years, threatened her and took her to the nearby rubber plantation and thereafter, the victim was disrobed and the accused pressed on her breast with sexual intention. Then, after removing his clothes, the accused inserted his genital into the vagina of the victim. On this premise, the prosecution alleges commission of the above said offences by the accused.

After framing charge for the offences punishable under Sections 354B, 354D(1)(ii), 376(3) and 506(i) of the IPC and under Sections 3(a) read with 4(2), 5(p) read with 6, 7 read with 8, 9(l) read with 10, 9(p) read with 10 and 11(iv) read with 12 of the POCSO Act, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 14 were examined, Exts.P1 to P32 and MO1 to MO7(a) were marked on the side of the prosecution. During cross-examination of PW1, Exts.D1 and D2 contradictions were marked and during cross-examination of PW2, Ext.D3 contradiction was marked. No other defence evidence adduced.

On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Sections 354B, 376(3) and 506(i) of the IPC and under Sections 3(a) read with 4(2), 7 read with 8, 9(l) read with 10 and 11(iv) read with 12 of the POCSO Act. Accordingly, the accused was convicted for the said offences and sentenced as under:

The learned counsel for the accused/appellant raised multiple contentions to unsustain the verdict impugned by giving benefit of doubt to the accused. The prime contention raised is that, even though the occurrence was on 31.07.2020, no complaint lodged for a period of 35 days and the crime was registered recording the First Information Statement given by PW1 (the victim) only on 04.09.2020. According to the learned counsel for the accused, no sufficient explanation is given for the delay in lodging the FIR and therefore, the same is fatal to the prosecution. It is argued further that, the Special Court entered into conviction for the offence punishable under Section 506(i) of the IPC, though no remote piece of evidence available to find commission of the said offence by the accused. It is submitted by the learned counsel for the accused further that, even though PW1 admitted that the accused did not use any force to remove dress of the victim, when MO1 churidar top was produced for chemical analysis before the FSL, as per Ext.P24(a) report, the same was torn and it is an improbability to disbelieve the prosecution case. It is also submitted that, in MO7(a) the Jockey underwear worn by the accused, which was recovered after 35 days of the occurrence found to have the presence of human spermatozoa as per Ext.P24(a) report. In fact, the presence of human spermatozoa in MO7(a), recovered after a period of 35 days of the occurrence also would shadow doubt in the prosecution case. Thus, the learned counsel for the accused pressed for interference in the verdict impugned, by acquitting the accused giving benefit of doubt.

Whereas, the learned Public Prosecutor would submit that, as far as the delay in lodging Ext.P13 FIR is concerned, the learned Special Judge addressed this question in paragraph Nos.24 to 26 of the judgment and found that the explanation offered by the prosecution was logical in this regard and therefore, the delay was not found as fatal. It is also pointed out by the learned Public Prosecutor that, in this case, the victim was a child below 18 years at the time of occurrence. Therefore, non-resistance and other consequences as argued by the learned counsel for the accused have no significance, while appreciating the evidence with a view to find the ingredients for the offences alleged to be committed by the accused, as found by the learned Special Judge. According to him, no iota of doubt could be seen from the evidence adduced and discussed by the learned Special Judge. Therefore, the conviction and sentence imposed by the learned Special Judge are liable to be confirmed.

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

Point No.1:- In this matter, the prosecution case is that, at about 02.00 p.m. on 31.07.2020, the accused reached the backside of the residence of the victim, a minor girl, threatened her and took her to the nearby rubber plantation and committed rape on her. The victim got examined as PW1 and she admitted that Ext.P1 FIS was given by her. Ext.P1 would go to show that the same was recorded on 04.09.2020, based on which Ext.P13 FIR was registered. Thus, evidently the occurrence was reported after 35 days, as submitted by the learned counsel for the accused. In the FIS it is stated that, PW1 did not disclose the occurrence to her parents as she was threatened by the accused that he would kill her on divulging the occurrence to anybody. Thus, the reason for the delay in lodging the FIS is the threat at the instance of the accused. No challenge raised by the defense as to why the occurrence was not disclosed till 04.09.2020, during the examination or cross-examination of PW1. It is discernible that, PW1 otherwise given evidence in support of the FIS and and she deposed threat as the reason for non-disclosure of the event till 04.09.2020, which was disclosed before the Child Welfare Committee on 04.09.2020. Accordingly, the Child Welfare Committee intervened in the matter and thereafter, Ext.P1 FIS and Ext.P13 FIR were registered. The learned Special Judge addressed this issue in paragraph Nos.23 to 26 of the judgment, as pointed out by the learned Public Prosecutor, relying on various decisions viz. Unnikrishnan v. State of Kerala [2021 KHC 5844], Sakhshi v. Union of India [2004 (5) SCC 518], State of Punjab v. Gurbit Singh and Others [1996 (2) SCC 384] and Munsiprasad v. State of Bihar [AIR 2001 SC 3031], while holding that the crime was discretely committed by the accused, who made acquaintance with the victim and the delay was properly explained. On the basis of the evidence discussed, the explanation given by the prosecution regarding the delay in lodging the FIR found to be acceptable. In view of the above discussion, the learned Special Judge is justified in finding so. Therefore, the delay in lodging the FIR, as pointed out by the learned counsel for the accused, is found to be not fatal and the same is set at rest.

Point Nos.2 to 8:- In this case, the prime witness is none other than the victim, who was examined as PW1. The prosecution relied on Ext.P26 SSLC book to prove the date of birth of the victim as 10.05.2005. Apart from that, the prosecution relied on Ext.P25 copy of admission Register issued by PW14, the Headmaster of ALP School, Poonamgode to prove the date of birth of the victim and as per which also the date of birth is similar as shown in Ext.P1. There is no dispute raised by the accused regarding the status of the victim as a child, as defined under Section 2(d) of the POCSO Act and the learned Special Judge relied on the same to hold the victim, as a child defined under Section 2(d) of the POCSO Act. Since no challenge raised as regards to the age of the victim and the prosecution successfully proved the same, the said finding does not require any interference.

As to the occurrence, the evidence of PW1 is very relevant. PW1 deposed that, as on the date of examination she completed 17 years and had completed Plus Two Course. According to PW1, her date of birth is 10.05.2005 and Ext.P26 is her SSLC book. She testified that, the accused is a friend of her father and she had occasion to talk to him in connection with the marriage of her uncle held on 27.10.2017. Then, the accused obtained her mobile phone number used in her tab and the accused used to call her. She deposed that, at about 6.30 p.m. on a day during May, 2020, the accused reached on the backside of her residence and caught hold on her hand with sexual intent. She pushed away his hand and entered into her house. After one week, again the accused reached on the backside of her residence and caught hold on her hand. This time also she ran away after tossing his hands. PW1 deposed further that, again on 31.07.2020, the accused reached on the backside of her house, where there was rubber plantation. Thereafter, the accused threatened her that he would disclose about her love affair to her family members and caught hold on her hand and brought her to the rubber plantation. Then, he made her lie on the platform of the plantation and kissed on her lips. Then, the accused lifted her top and petticoat and caught hold on her breast. He removed her pants and undergarment down and mounted on the top of her and put his penis into her vagina two three times. When she felt pain, she pushed away the accused and got up. Then, the accused threatened her that if the occurrence would be divulged to anybody, he would kill her. PW1 identified the dress she worn at the time of occurrence as MO1 to MO4. She also identified the accused at the dock after naming him. PW1 also deposed the time of occurrence as 02.00 p.m. and that she did not disclose about the occurrence to her family. Thereafter, on 04.09.2020, two persons from the Child Welfare Committee reached her house and she narrated the occurrence to them. On that day evening, the Police reached and she had given statement regarding the occurrence. She identified Ext.P1 as the statement so given. She also deposed about her examination by the doctor. During cross-examination of PW1, she deposed that she did not sustain any injury on her vagina. The defense case suggested during cross-examination is that, because of the animosity towards the mother of the accused, this case was foisted against the accused.

Even though, Exts.D1 and D2 contradictions were extracted during cross-examination of PW1, as rightly discussed by the learned Special Judge in paragraph No.40 of the judgment, the same are not material. The observation of the learned Special Judge in paragraph No.40 reads as under:

The mother of the victim was examined as PW2. She supported the prosecution case and deposed that she came to know about the incident only when officials from the child line had visited her house. She had identified her signature in Ext.P3 seizure mahazar prepared by the police, while seizing MO1 to MO4. PW2 had also identified the signature in Ext.P4 seizure mahazar prepared while seizing MO5 tab. Regarding Ext.D3 contradiction extracted as that of PW2 during her cross-examination also, the learned Special Judge found the same is not material as stated in paragraph No.58 and the said finding only to be justified.

PW12 examined in this case is a social worker attached to Kannur Child Protection Committee. She had deposed about her visit to the residence of PW1, to converse with her about the crime. She had deposed that, PW1 had disclosed about the crime in detail to her and she had informed the matter to the police. PW12 had also clarified that she had visited the residence of PW1 as instructed by the Child Protection Officer, Kannur.

PW9 had also pointed out that, while working as a teacher in Pacheni High School, she was entrusted with the task to provide counseling to the students. In order to ascertain things, the teacher had also visited the residence of PW1 and confirmed the grievance. PW10 had admitted about recording Ext.P1 FIS on 04.09.2020.

PW3, the doctor working as consultant at Taluk Headquarters Hospital in Taliparamba had examined the victim on 05.09.2020 and issued Ext.P5 medical examination report. The doctor had deposed about the history told by the aggrieved before her. The victim had also informed the doctor about certain difficulty during urination. Further, the doctor had pointed out that the hymen of the victim was ruptured in three 'O' clock position. Finally, the doctor had opined about possible sexual assault on PW1.

PW5, an independent witness from the same locality had deposed that he had put signature in Ext.P7 and Ext.P8 scene mahazars and in Ext.P9 seizure mahazar prepared at the time of recovering the dress of the accused. PW6 had deposed further that she was the owner of property, wherein the crime was committed on 31.07.2020.

PW11, a senior WCPO of Taliparamba Police Station was entrusted with the duty to accompany the victim before the doctor and court, supported the same. PW11 also deposed that she had witnessed the preparation of Ext.P3 and Ext.P4 seizure mahazars also. The Village Officer of Kooveri village was examined as PW8 and he had testified about giving Ext.P11 series of site plans as well as Ext.P12 series of possession certificate. As per Ext.P12(a) the rubber plantation belongs to PW6, Deepa, whereas the Ext.P12 would make it clear that the residence of PW1 and property attached there to belonged to her mother Vijayakumari @ Vijaya K.

PW13 had arrested the accused at 10.15 hours on 05.09.2020 and witnesses of the arrest memo were brother and relative of the accused. Ext.P14 series are the arrest memo and inspection memo. Ext.P14(a) inspection memo makes it clear that there was a wound on the left palm of the accused at the time of arrest. When investigation officer had ensured the correct name and address of the accused, Ext.P15 address report was filed which was tendered into evidence. The seized object MO1 to MO5 were filed before the court through Ext.P16 to Ext.P19 property list.

In the FIR, the name of the complainant was originally recorded as Vishnupriya.K. However later on conforming her real name as Krishnapriya K, for the purpose of carrying correction, Ext.P20 correction report was filed. As a matter of abundant caution, prosecutor had recalled PW1 and through her Ext.P26 copy of SSLC book of the victim was tendered in order to convince that the real name of the PW1 as Krishnapriya K.

PW4, the doctor of Taliparamba Taluk Hospital had medically examined the accused at 3.20 p.m on 05.09.2020 and issued the Ext.P6 potency certificate. According to PW4, his opinion is that “there is nothing to suggest that the accused is incapable of performing sexual act”.

PW13 had deposed before the court about the registration of the crime, the investigation conducted, document collected, statements of witnesses taken and the filing of final report. PW13 had deposed before the court that it was on the basis of the Ext.P9(a) confession given by the accused, the cloth worn by him was seized by preparing Ext.P9 seizure mahazar. MO6 mobile and MO7 series of cloth of accused were already marked and it was admitted by the witness. In order to give more clarity, the ownership of the property, wherein accused resides and from where on preparing Ext.P9, MO6 and MO7 were seized, Ext.P21 ownership certificate was produced. Ext.P22 is site plan of the residence of the accused.

On evaluation of the evidence available, the learned Special Judge entered into presumption under Section 29 of the POCSO Act, mainly relying on the evidence of PW1, supported by other evidence and found that the accused committed the offences punishable under Sections 354B, 376(3) and 506(i) of the IPC and under Sections 3(a) read with 4(2), 7 read with 8, 9(l) read with 10 and 11(iv) read with 12 of the POCSO Act.

Although it is argued by the learned counsel for the accused that, there is no evidence to find commission of offence punishable under Section 506(i) of IPC by the accused, threat at the instance of the accused was well spoken by PW1, as discussed. Therefore, this challenge must fail. As regards to the contention raised by the learned counsel for the accused that, as per the Chemical Analysis Report, MO1 churidar top was torn, though there was no physical resistance at the instance of PW1, tear in the churidar if available even prior to the occurrence, then also that could be noticed by the Expert. Thus, in the instant case, the said finding is of no serious consequence.

Regarding the anomaly in finding human spermatozoa in MO7(a), which was seized after 35 days is concerned, if MO7(a) was kept unwashed, the likelihood of finding human spermatozoa could not be ruled out. Since PW1 given categoric evidence that she was subjected to aggravated sexual assault, there is no reason to find improbability as to the presence of human spermatozoa in MO7(a). Thus, all the contentions raised by the learned counsel for the accused found to be unsustainable.

Point Nos.9 and 10:- On re-appreciation of evidence, the ingredients for the offences punishable under Sections 354B, 376(3) and 506(i) of the IPC and under Sections 3(a) read with 4(2), 7 read with 8, 9(l) read with 10 and 11(iv) read with 12 of the POCSO Act could be found, as rightly found by the learned Special Judge. Therefore, it is held that the Special Court is right in finding that the accused committed the above said offences. Thus, the conviction imposed by the Special Court does not require any interference.

Coming to the sentence, twenty years is the maximum sentence imposed upon the accused for the offences punishable under Sections 376(3) of IPC and 3(a) read with 4(2) of the POCSO Act and the same is the statutory minimum sentence provided for the offence under Section 3(a) read with 4(2) 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. 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 concerned, for information and compliance.