Dismissed

Ajab Kumar Dhurvey, C.NO.471/16 v. State of Kerala

Kerala HC6 Oct 2020CRL.A/911/2016

Case brief

AI extract

What is this about?

The High Court of Kerala considered an appeal against conviction for aggravated penetrative sexual assault. The Court held that since the victim was 14-18 years old, the offence falls under the POCSO Act, not Section 376(2)(i) IPC. Consequently, the trial court's conviction and sentence were confirmed, with a clarification that the life sentence does not preclude future remission.

What did the court decide?

The appeal was dismissed; conviction and sentence confirmed with clarification on remission eligibility.

Ajab Kumar Dhurvey, C.NO.471/16 Vs State of… — Child Sexual Offences (POCSO) | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942

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CRL.A.No.911 OF 2016(B)

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AGAINST THE JUDGMENT IN SC 159/2015 OF ADDITIONAL SESSIONS COURT - I, KASARAGOD.

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CRIME NO.34/2015 OF CHITTARIKKAL POLICE STATION.

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APPELLANT :

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AJAB KUMAR DHURVEY, S/O SARAVAN KUMAR DURVEY, C.NO.471/16, CENTRAL PRISON & CORRECTIONA HOME, KANNUR.

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BY ADV. JAYASHANKAR . K (STATEBRIEF)

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RESPONDENT :

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STATE OF KERALA, ( INSPECTOR OF POLICE, VELLARIKUNDU ) CR.NO.34/2015 OF CHITTARIKKAL P.S.

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BY PUBLIC PROSECUTOR MS.SYLAJA.S.L.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.911 OF 2016(B) 2

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A.HARIPRASAD & M.R.ANITHA, J J.

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Crl.Appeal No.911 of 2016

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Dated this the 6th day of October, 2020

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J U D G M E N T

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A.HARIPRASAD, J

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Aggrieved by the conviction and imposition of life imprisonment,

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the accused in Sessions Case No.159 of 2015 before the Additional Sessions

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Judge – I, Kasaragod, who is charged with offences punishable under Section

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376 I.P.C and Section 5 (j)(ii) r/w Section 6 of the Protection of Children from

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Sexual Offences Act, 2012 ( in short “ POCSO Act”), has come up in this appeal.

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Heard Sri.Jayashankar.K, learned State Brief for the appellant and

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Ms.Sylaja.S.L, learned Public Prosecutor for the respondent.

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CRL.A.No.911 OF 2016(B) 3

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Prosecution case, in short, is that at about 6.00 a.m on a day, two

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months prior to 25-01-2015, the appellant committed rape on the minor victim, an inmate in Sisubhavan, an orphanage, and consequently she became

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pregnant. Prosecution therefore alleged that the appellant is guilty of the aforementioned offences.

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After due legal proceedings, the trial court framed charge against

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the appellant in the following terms :

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“ That you, at about 6.00 am, two months prior to 25.01.2015 at Benal Sisubhavan bearing No.XI/280 (XII-69) of East Eleri Grama Panchayat, committed rape on a minor inmate of the Sisubhavan and you thereby committed offence punishable u/s.376 of IPC and within the cognizance of this court.

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Secondly, that you in consequence of the above said act impregnated the above said minor and thereby committed the offence punishable under Section 5(J)(ii) and r/w Section 6 of Protection of Children from Sexual

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CRL.A.No.911 OF 2016(B) 4

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Offence Act, 2012.

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And I hereby directed that you be tried before

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this court on the said charge dated 26.12.2015.

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It is hereby certified that all the above charges

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have been translated, read over and explained to the accused in Hindi which language is known to him, and I am satisfied that he has perfectly understood the contents.

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Given under my hand and the seal of the court, this the 26th day of December, 2015.

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Sd/-

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…............

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1st Addl.District and Sessions Judge Kasaragod.”

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In order to substantiate the prosecution case, 12 witnesses were

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examined. There was no defence evidence. Exts.P1 to P15 are the documents

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produced and marked on the side of the prosecution. MO1 series are the dress

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materials worn by the victim at the time of incident.

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CRL.A.No.911 OF 2016(B) 5

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PW6 is the victim. After administering voire dire, considering her

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age at 14, the learned trial Judge examined her. She deposed that at the time

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of incident she was an inmate in Bonal Sisubhavan. She was studying in 5th

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standard. She asserted that the appellant committed aggravated penetrative

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sexual assault on her as defined under Section 5 of POCSO Act. According to her version, the sisters in the convent used to go to Church at 5.00 am. During the relevant time, the appellant was working in the convent. One

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morning, he forcefully took her to his room. While he committed rape on her, he closed her mouth so as to prevent her from raising alarm. It is her evidence that he threatened to kill her, if the act was disclosed to the sisters in the

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convent. When she experienced throat pain, she was taken to a hospital. Later, it was revealed that she was pregnant. Ext.P6 is the First Information

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Statement (F.I.S). Ext.P7 is the statement given by the victim before PW9 Judicial First Class Magistrate under Section 164 Cr.P.C. When cross

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CRL.A.No.911 OF 2016(B) 6

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examined, PW6 deposed she was staying in a room in the ground floor and

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the appellant was also staying in the same floor. To a specific question, she answered that she had no physical relationship with anyone other than the appellant. During cross examination, contradiction in her statement recorded under Section 164 Cr.P.C (Ext.P7) was put to her. She did not inform the

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Magistrate that her clothes were removed by the appellant before committing rape. However, the fact remains that her deposition, regarding the alleged aggravated penetrative sexual assault, has not been effectively challenged in

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cross examination. Further, she became pregnant after the incident is also established.

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Now, we shall consider the evidence of PW7, who was the

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Mother Superior of Bonal Sisubhavan. She deposed that PW6 was an inmate

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in the Sisubhavan. She further deposed that the appellant was an employee in

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the Sisubhavan. It has come out in evidence through PW7 that on account of

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CRL.A.No.911 OF 2016(B) 7

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PW6 showing signs of morning sickness, she was taken to a hospital and found to be pregnant. On questioning she revealed that the appellant had

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raped her two months prior to the medical examination. In cross

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examination, PW7 deposed that on 13-01-2015, she was first taken to the hospital. Testimony of PW7 renders support to that of PW6.

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PW1 Dr.Gopalakrishna Pillai, while working as Professor of

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Forensic Medicine in Pariyaram Medical College Hospital, conducted the age determination of PW6. Ext.P1 is the report showing that her age was above

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14 years but less than18 years as on 29-01-2015. Ext.P1 certificate has not been challenged by the defence.

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PW2 Dr.Lysamma Mathew, while working as Gynaecologist in

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District Hospital, Kanhangad, examined PW6 on 28-01-2015. Ext.P2 is the

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certificate issued by her. On an internal examination, it was found that the

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victim had sexual intercourse and she was pregnant by eleven weeks on the

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CRL.A.No.911 OF 2016(B) 8

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date of examination. It is also revealed from Ext.P2 that on examination her

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uterus was enlarged to about 8 weeks size. It is evident that the testimony of

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this witness can only be an approximate version of her physical condition.

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PW3 Dr.Sherin conducted potency test on the appellant and it

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was opined that he was potent. Ext.P3 is the certificate issued in this regard.

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Testimony of PW4 Village Assistant and PW5 Secretary, Elery

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Grama Panchayat are only formal in nature. PW8 is a witness to Ext.P8 scene

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mahazar. This document has no bearing on the issue on hand.

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PW9 is the Magistrate, who recorded statement of the victim

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under Section 164 Cr.P.C. It is put to this witness that there are some omissions in PW6's statement (Ext.P7). However, those omissions are not

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material and it cannot absolve the appellant from his criminal liability.

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PW10 conducted a part of investigation and recorded statements

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of some of the witnesses.

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CRL.A.No.911 OF 2016(B) 9

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PW11 received the information regarding the sexual assault on

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PW6 and registered a case. Ext.P14 is the First Information Report (F.I.R).

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PW12 conducted investigation and filed the final report. None of

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the proceedings taken in the investigation has been challenged by the defence

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in cross examination.

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On an over all assessment of the evidence on record, we are of

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the view that the learned trial Judge has considered the evidence properly and

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arrived at a conclusion that the appellant is responsible for an aggravated penetrative sexual assault on PW6.

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Learned counsel for the appellant strongly contended that the age

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of the victim has not been correctly determined. Fact remains that testimony

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of PW1 coupled with Ext.P1 would show that she was aged between 14 and

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18 at the material time. There is no challenge against this version. Having

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regard to this aspect, we find that the appellant cannot be held guilty for an

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CRL.A.No.911 OF 2016(B) 10

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offence of rape under Section 376 (2)(i) I.P.C, wherein imprisonment for life,

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which shall mean imprisonment for remainder of that person's natural life

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has to be imposed. Viewing from this angle, we find that the court below correctly found the appellant guilty for an offence of aggravated penetrative sexual assault under Section 5 of the POCSO Act and the punishment prescribed under Section 6 of the POCSO Act, as existed before the amendment, has been rightly imposed. Since the amendment to Section 6 of

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the POCSO Act came into effect from 16-08-2019, we are not concerned

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with the amended provision in this case.

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Contention by the learned counsel that leniency should be shown

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to the appellant also should be taken note of.

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Having regard to the facts and circumstances, we confirm the

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appellant's conviction and sentence. We clarify that the imprisonment for life awarded by the trial court will not fall under Section 376 (2)(i) of I.P.C and

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CRL.A.No.911 OF 2016(B) 11

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therefore, he is entitled to remission or commutation of sentence, in case the

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government decides to give that benefit to him. Rest of the sentence requires

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no interference. With these observations, we dismiss the appeal confirming

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the conviction and sentence.

A. HARIPRASAD,

JUDGE.

M.R.ANITHA, JUDGE

amk

Ajab Kumar Dhurvey, C.NO.471/16 v. State of Kerala

Case brief

What is this about?

What did the court decide?

Ajab Kumar Dhurvey, C.NO.471/16 v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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