XXXXXXXXXX vs State Of Kerala

This appeal has been filed by the sole accused in S.C.No.23/2019 on the files of the Special Court under the Protection of Children from Sexual Offences Act, 2012 (for short, the PoCSO Act’ hereinafter), Perumbavoor, challenging the judgment rendered therein dated 06.07.2021.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the judgment under challenge along with the records of the Special Court.

Here, the prosecution alleges commission of offences punishable under Sections 376(2)(f) and (n), 376AB and 324 of the Indian Penal Code (for short, ‘the IPC’ hereinafter) and Sections 3(a) and (b) r/w 4, 5(l),(m) and (n) r/w 6, and 9(m) and (n) r/w 10 of the PoCSO Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘the JJ Act’ hereinafter), by the appellant/accused.

The prosecution allegation is that the appellant/accused subjected his own daughter, aged 5 years to penetrative sexual assault in a night between 05.10.2018 and 05.11.2018, and also had committed cruelty towards his son, aged 4 years.

On getting the final report filed by the Special Court, the Special Court took cognizance for the aforesaid offences. Thereafter, completed pre-trial formalities and recorded evidence confined to that of PW1 to PW20 and Exts.P1 to P12(a) on the side of the prosecution. No defence evidence was adduced.

On appreciation of the evidence, the learned Special Judge found that the appellant/accused committed offences punishable under Sections 376(2)(f), 376AB and 323 of the IPC, Sections 3(b) and 5(m) r/w 6, 3(b) and 5(n) r/w 6, 7 and 9(m) r/w 10, and 7 and 9(n) r/w 10 of the PoCSO Act and Section 75 of the JJ Act. Accordingly, he was convicted for the said offences while acquitting for the other offences and sentenced as under:

The learned counsel for the appellant/accused argued that the prosecution failed to prove the allegation of sexual assault, including penetrative sexual assault, beyond reasonable doubt, and that the learned Special Judge gave much emphasis to the evidence of PW1 and PW2, who are the minor children of the appellant/accused, even though PW8, the Doctor did not give evidence in conformity with the prosecution case. Further, the learned Special Judge failed to appreciate the evidence given by PW3, the grand mother of PW1 and PW2 (the victims). It is pointed out that as per the version of PW3, the victim was hospitalized for three days due to urinary infection. It is pointed out further that the court below relied on the hearsay evidence of PW13, C.W.C. Member apart from relying on the evidence of the other witnesses. It is also pointed out that the evidence of PW1 and PW2 are contrary. According to him, at the instance of PW13, the C.W.C. Member, the accused was made a scapegoat and the totality of evidence would not justify the finding of the Special Court and the verdict would require interference.

Whereas, the learned Public Prosecutor strongly opposed the contention raised by the learned counsel for the appellant/accused. According to the learned Public Prosecutor, the victim, examined as PW1, had given categorical evidence supporting the prosecution case, apart from other evidence including that of PW13 and PW8, the Doctor. In such a case, the contention raised by the learned counsel for the appellant/accused to unsustain the verdict could not be found acceptable. It is also pointed out that the appellant/accused has no case that PW1 and PW2, his own children, have any enmity towards him. Thus, he pressed for confirmation of the verdict impugned. The learned Public Prosecutor placed a decision in Bhanei Prasad @ Raju v. State of Himachal Pradesh reported in [2025 (6) KHC 490] to contend that incestuous sexual violence committed by a parent is a distinct category of offence that tears through foundational fabric of familial trust and must invite the severest condemnation in both language and sentence. Apart from that, the learned Public Prosecutor placed decision of this Court in Joseph @ Sabu v. State of Kerala reported in [2026 (1) KLD 801] wherein this Court held that unchallenged oral testimony of victim and her mother is sufficient to prove the age of the victim to sustain a conviction under the PoCSO Act even if the prosecution fails to prove the age by documentary evidence relying on a Division Bench judgment of this Court in Biju v. State of Kerala reported in [2024 (2) KHC 297].

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

Here, PW1, who was aged 8 years at the time of examination on 25.11.2020, was subjected to in camera examination after satisfying the competency to give evidence in view of the voir dire examination conducted by the learned Special Judge. During chief examination, PW1 given evidence that, while she was sleeping along with the accused, he had fondled her chest, inserted his finger into her urinating area and penetrated his penis into her mouth. She used to sleep along with the accused, while her mother used to sleep along with her brother in another room. On the very next morning of the alleged incident, she had shared the matter with her mother, but she did not remember what her mother had replied. On the next night, she slept with her mother of her own volition, and nobody had insisted her to do so. She did not like her mother for the reason that her mother had intimacy with her brother and did not pay any attention to her affairs. But, she liked her father, and therefore, she used to sleep with him from the time she could remember. Her father and mother frequently quarrelled with each other and did not talk to each other. Her father used to physically assault her mother. He would consume alcohol daily, which she could understand from its smell. He used to beat her with a stick, and she felt pain. The sexual overt acts were committed on a single night alone. She admitted having given a statement to a lady who had recorded the same. As the FIS did not contain her thumb impression or any identifying mark, it was not marked through her. In cross-examination, PW1 stated that PW3, her grandmother, was also residing in the same house and that her mother, who was a housemaid, was staying in the house where she was working. When her mother remained absent from the house, she and her brother used to sleep with PW3. As she had felt pain in her urinating area, her grandmother had taken her to the hospital, where she had undergone treatment as an inpatient. She answered in the affirmative to the question put to her as to whether her hospitalisation was before the alleged abuse. According to her, she did not feel itching in the urinating area, and the hospitalization was for the pain therein. She testified further that she had given statement to a woman police officer, in which she had stated that her father had committed the above-mentioned acts. In response to the question put by the learned defence counsel as to who had told her to state that her father had committed those acts, she replied that her father had really committed the same. When a question was put by the court, she deposed that she did not like her father after the incident. She denied the suggestion that her father had beaten her when she became naughty and replied that her father used to beat her when she refused his demand to sleep with him.

PW2 is another victim and son of the appellant/accused. As far as the offence under Section 75 of the JJ Act is concerned, PW2 testified that his father used to beat him and he did not know for what he had beaten so. He also deposed that the appellant/accused also beat PW1 and he had witnessed the same. At the same time, he deposed that he had like towards his father. Then, he deposed that he did not want to see the father at present. He deposed further that PW1 laid along with the father and mother. Supporting the version of PW1 and PW2, PW3, the mother of the appellant/accused also given evidence. According to her, the appellant/accused is her son and her son and daughter-in-law lived in Pullukuzhy.

PW4 is the mother of PWs 1 and 2. She testified that she came to know about the incident when PW1 had disclosed the incident to the police. She admitted having given a statement to the police to the effect that PW1 was sleeping with the accused, when she was in the house.

PWs 5 and 6 were the neighbours of the accused. PW5 testified that both the children of the accused used to rush to her house and tell her that their father had beaten them. She did not witness the same, as the act had been committed inside the house. To the solitary question asked in cross-examination, she replied that she had not seen the children being beaten up. PW6 gave evidence that she had only hearsay knowledge about the alleged incidents and that the children of the accused had never told her anything.

PW7 deposed that he was present in the house at the time of preparation of Ext.P1 mahazar by the police. The police had read out the contents of the mahazar to him, and he identified his signature in Ext.P1.

The medical evidence in this case sprout from the evidence of PW8, the Doctor in Gynecology attached to the General Hospital, Muvattupuzha. PW8 testified that she had examined PW1 at 7.20 p.m. on 05.11.2018. The victim had told her that her father had put his fingers into her vagina, pressed her breast and put his penis into her mouth, about one and a half months prior to the date of examination. On examination of her genital area, the Doctor had found the following:

PW9, the Doctor attached to the Taluk Headquarters Hospital, Perumbavoor, stated that she had examined the accused on 14.11.2018 and issued Ext.P3 certificate, stating that there was nothing to suggest that he was incapable of performing any sexual act. This opinion remained unchallenged.

The evidence of PW10, the Village Officer of Rayamangalam Village, showed that, at the request of the Koovappady Police, he had visited the house situated in Uliyampalli Lakshamveedu Colony, involved in Crime No.1269/2018 of Koovappady Police Station, and prepared Ext.P5 site plan, noting the room as per the mahazar prepared by the police. PW12, the Secretary of Rayamangalam Grama Panchayat, deposed that he had issued Ext.P6 extract of the Building Tax Assessment Register in respect of the house bearing No.796-B in Ward No.13 of the said Panchayat. As per the said document, the house stood in the joint names of the accused and his mother, which also remained unchallenged.

PW13, a Member of the Child Welfare Committee (C.W.C. Member), Ernakulam, in 2018 identified her signature on the F.I. Statement of the victim recorded by the police in this case. Overruling the objection of the learned defence counsel that it should not be marked through the witness, the FIS was marked as Ext.P7. She further stated that the C.W.C. had received a message over the phone that the victim was being abused by her father and that, thereafter, at the intervention of the C.W.C., the child had been removed from her home to the Children's Home at Pulluvazhy and thereafter to the Children's Home of the C.W.C. at Kakkanad. At the CWC office, Ext.P7 first information statement of PW1 had been recorded in her presence, and she had subscribed her signature on it. She had not given any statement to the police. In cross-examination, she replied that she had remained present at the time of recording the statement of the victim in her capacity as a C.W.C. Member, but she had not produced any document showing her designation to the police. She also stated that she had not mentioned in Ext.P7 that she was a C.W.C. Member at that time. She denied the suggestion that she had not been a C.W.C. Member at that time. She denied the suggestion that PW1 had not been admitted to the Children's Home at Kakkanad and that her statement had not been recorded at the C.W.C. office. She explained that the reason for noting in Ext.P7 that the statement had been recorded at the Children's Home was that the Children's Home and the office of the C.W.C. were located in the same building. She also denied the suggestion that she had unnecessarily signed the FIS and that she had no capacity to remain present and sign the FIS.

PW14 stated that she had recorded Ext.P7 FIS of PW1 on 05.11.2018 as per the direction of the Sub Inspector. The FIS had been recorded at the C.W.C., Kakkanad, in the presence of the C.W.C. Member, who had also signed the FIS. She had also taken the child to the Doctor for her medical examination and for getting her statement recorded under Section 164 of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’ hereinafter) by the Magistrate. In cross-examination, she denied the suggestion that the child had not given any statement to her and that it had been recorded as per the instruction of others. She had not obtained the signature of PW1 on the FIS as she was a minor.

Apart form the evidence, PW16, the Sub Inspector of Police who registered Ext.P8 FIR based on Ext.P7 FIS supported the prosecution and entrustment of the investigation to the Circle Inspector of Police. He also deposed about the arrest of the appellant/accused on 14.11.2018 and his production before the court on the next day.

The 164 statement of PW1 was recorded by PW17, the Judicial First Class Magistrate, Kuruppumpady and he supported the same and according to him, PW1 given evidence before him that while PW1 was sleeping with the appellant/accused, he pressed on her urinating area, he sipped and fondled her breast, inserted his penis into her mouth and beat her. In cross-examination, the learned Magistrate denied the suggestion that PW1 did not give such a statement and it was recorded as required by the police.

PW18, the caretaker of Sneha Jyothi Sisu Bhavan supported signing of Ext.P1 scene mahazar in the house of PW1. She also deposed that PW1 was under her custody since 30.10.2018. PW19 was the Investigating Officer, who supported the investigation.

Here, the allegation of sexual assault is against PW1 alone and the other allegation is that the appellant/accused used to beat PW2. Here, no dispute raised as regards to the age of PW1 and PW2. Rather, the same was proved through the evidence of PW20 and Ext.P12, the extract of Admission Register showing that the date of birth of PW1 as 21.11.2012. Evidently, PW2 is the younger brother of PW1. Therefore, PW2 also is a child as defined under Section 2(d) of the PoCSO Act. Before the trial court, some dispute was raised with regard to Ext.P12. In this regard, the learned Special Judge himself emphasised Ext.P12(a), the name of the victim shown in Ext.P12, while holding that Ext.P12(a) referred to PW1. Moreover, PW1 had given evidence that she was aged 5 years on the date of occurrence. Apart from that, Ext.P4, the extract of Birth Register relating to prove the age, that is the reason why the learned counsel for the appellant/accused not disputing the age of PW1 and PW2 before this Court. On scanning the evidence of PW1, the victim of sexual assault, her evidence was that while she was sleeping along with the appellant/accused, the appellant/accused fondled her chest and inserted his finger into her vagina and penetrated his penis into her mouth. Now, the question is whether the version of PW1 in this regard is of sterling quality to be acted upon.

Supporting the evidence of PW1 as regards to the penetrative sexual assault committed by the appellant/accused, PW8, the Doctor attached to Gynecology Department, General Hospital, Muvattupzha, given evidence that she had examined PW1 at 7.20 p.m. on 05.11.2018 and during her examination, the victim PW1 disclosed that the alleged cause as the father put his fingers into her vagina, pressed her breast and put his penis into her mouth one and a half months prior to her examination by PW8. The Doctor found injuries mentioned hereinabove while holding that the hymen was intact.

Here, penetrative sexual assault alleged on two ways, the first one is putting of fingers into the vagina of PW1 and second one is insertion of penis of the appellant/accused into her mouth. It is the well settled law that hymen intact by itself is not sufficient to hold that there was no penetrative sexual assault, as penetrative sexual assault could be found even cases where when slightest degree of penetration could be found. To put it otherwise, penetration slightly on the vaginal orifice, labia majora, or vulva alone would satisfy the ingredients of penetration to constitute the offence. Thus, the evidence of PW1 coupled with the evidence of PW8 would show that PW1, who is none other than the daughter of the appellant/accused was subjected to penetrative sexual assault by the appellant/accused. Even though the learned counsel for the appellant/accused pointed out that the evidence of PW8, the Doctor is not line with the prosecution case, any material deviation in the evidence of PW8 from the prosecution case could not be found.

Here, the learned Special Judge found commission of offence punishable under Section 75 of the JJ Act on the finding that the appellant/accused, who had actual control over the children, had assaulted them and had sexually abused PW1 and he would be liable for the penal consequence provided under Section 75 of the JJ Act. Section 75 of the JJ Act provides that whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or willfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both, and the same include assault by a person having actual charge or control over the child. Therefore, the said finding is also to be confirmed.

In the instant case, the evidence given by PW1, the victim, is supported by the evidence of PW8, the Doctor, who found injuries on her vagina to substantiate penetrative sexual assault committed by the appellant/accused. Therefore, the contention raised by the learned counsel for the appellant/accused to unsustain the verdict insofar as the said finding is concerned, found to be not acceptable.

Thus, the evidence available would indicate that the learned Special Judge rightly came to the conclusion that the appellant/accused had committed offences punishable under Sections 376(2)(f), 376AB and 323 of the IPC, Sections 3(b) and 5(m) r/w 6, 3(b) and 5(n) r/w 6, 7 and 9(m) r/w 10, and 7 and 9(n) r/w 10 of the PoCSO Act and Section 75 of the JJ Act, and therefore, the conviction does not require any interference.

Going through the sentence imposed, it could be gathered that the minimum sentence provided for the offence punishable under Section 376AB of the IPC is 20 years and payment of fine, taking into consideration of the amount, which is just and reasonable to meet the medical expenses and rehabilitation of the victim, to be paid as fine to the victim. Considering the sentence imposed in view of the above statutory mandate, the sentence imposed also does not require any interference.

Hence, this appeal fails and is dismissed by confirming the conviction and sentence imposed by the Special Court.

Since the appellant/accused is 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.