Allowed

Faizal.T v. the State of Kerala

Kerala HC16 Nov 2022CRL.A/1497/2019

Case brief

AI extract

What is this about?

In this appeal against conviction under the POCSO Act, the High Court upheld the trial court's judgment. The Court rejected arguments regarding late medical examination and ambiguous medical testimony, finding the child witness's consistent account adequate to prove guilt. No sentence reduction was ordered as the award was the minimum statutory term.

What did the court decide?

The criminal appeal was dismissed and the impugned judgment confirming the conviction was upheld. No modification of sentence was made.

Faizal.T Vs the State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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CRL.A NO. 1497 OF 2019

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AGAINST THE JUDGMENT IN SC NO.463/2015 OF ADDITIONAL DISTRICT
COURT & SESSIONS JUDGE FOR THE TRIAL OF CASES (ATROCITIES & SEXUAL
VIOLENCE AGAINST WOMEN AND CHILDREN), KOZHIIKODE

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APPELLANT/ACCUSED :-

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FAIZAL.T
AGED 44 YEARS
S/O.ERGEEB, THOTTUNGAL,
PANICKER ROAD, NADAKKAVU.

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BY ADVS.
BIMALA BABY
SHRI. JEFRIN JOSE

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RESPONDENT/RESPONDENT :-

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THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV SHEEBA THOMAS, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.1497 of 2019

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JUDGMENT

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Dated this the 16^th day of November, 2022

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This appeal is filed against judgment dated 11.07.2018 passed by Court of Additional District and Sessions Judge for the trial of cases relating to Atrocities and Sexual Violence towards Women and Children, Kozhikode (for short the ‘trial court’) in S.C.No.463/2015. For the sake of convenience the parties to this appeal will hereinafter be referred to as the accused and the prosecution.

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As per the allegation of the prosecution, on 16.10.2014 and on a previous day, the accused has done carnal intercourse against the order of the nature with CW2, a minor boy child aged 6½ years in a dilapidated old toilet on the south of Thoppayil ground situated on the eastern side of the Beach road by putting the genital organ of the child into the mouth of the accused. He also made the minor child to catch his penis and thereafter inserted it into the anus of the minor. Thus the offences are allegedly committed by the accused.

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Crl.Appeal No.1497 of 2019

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FIS was lodged by PW1 the father of the victim

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boy after two days of the alleged incident and Crime No.460/2014 was registered on it’s basis. Investigation was commenced on the strength of the FIS recorded by the Police and when concluded, a final report chargesheeting the accused for offences punishable under Sections 3(a) and (d) read with Section 4 and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) was filed. The court received the final report on it’s file. Summons was issued to the accused. On receiving the summons the accused enters appearance before the court. On finding that sufficient grounds exist to proceed with trial, charge was framed for the offences for which the accused stands chargesheeted. The charge was read over and explained to the accused and he pleaded not guilty to the offences. Accordingly, trial was scheduled and held.

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Prosecution examined PWs 1 to 10 and marked

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Exts.P1 to P12. On closure of evidence of the prosecution the accused was questioned under Section 313 (1) (b)

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Crl.Appeal No.1497 of 2019

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Cr.P.C with reference to the incriminating evidence that has been brought on record by the prosecution. He denied those questions and taken a specific stand of false implication. According to him the case was registered falsely by the father of the minor child to take back the property and to give it to one of his friend namely Khalid.

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Both sides were heard under Section 232 Cr.P.C. Grounds having not been made out to acquit the accused, he was asked to enter on his defence. Accused did not adduce any kind of evidence. After appreciating the evidence adduced by the prosecution and after hearing the prosecution as well as the accused, a finding of guilt for the offences was arrived at and the accused stands convicted and sentenced.

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On appreciation of the oral as well as documentary evidence adduced by the prosecution the trial court found the accused guilty for the offences charged against him and convicted and sentenced him to undergo rigorous imprisonment for 7 years and to pay fine of Rs.50,000/- for the offence under Sections 3(a) and (d)

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Crl.Appeal No.1497 of 2019

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read with Section 4 and to undergo rigorous imprisonment for 10 years and to pay fine of Rs.50,000/- under Section 5(m) read with Section 6 of the POCSO Act. On failure of the accused to pay the fine, imposed for the aforesaid offences, he was also directed to undergo rigorous imprisonment respectively for 1 and 2 years. The substantive sentences imposed were ordered to be run concurrently. Set off was also allowed for the period for which he remained in custody.

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It is contended by Sri.Blaise Joseph, the learned counsel for the accused that the evidence adduced by the prosecution is highly insufficient to reach a finding of guilt for the offences against the accused. According to him, the minor boy child aged 6½ years had spoken that the accused had led him to a shop and therefrom a white liquid alongwith a packet of ‘lays’ were bought and given to him. According to him in the description in the scene mahazar as well as in the location sketch, a shop referred to by the minor child is not found situated. The learned counsel has also pointed out that the Doctor who had conducted the

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Crl.Appeal No.1497 of 2019

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medical examination of the minor child and examined before the trial court as PW4 has deposed that the injuries noted in the anal region of the minor child could be caused for reasons other than the one alleged. According to the learned counsel, since PW4 has only spoken about the probability of the injury to be caused in the manner alleged, the Trial Court would not have found it as an evidence corroborative of the version of prosecution that the injuries found at the anal region of the victim was inflicted in the penetrative assault committed by the accused. Lastly and finally the learned counsel canvassed for reduction of the sentence imposed on the accused by the trial court.

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It is contended by the learned counsel that the medical examination of the victim was held very late after lapse of eight days, from the date of the alleged occurrence, despite setting of the law in motion in the incident, two days after the incident itself. According to him no cogent reason has been spoken by the investigating officer during his examination for the delay occurred in getting the minor child examined medically.

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Crl.Appeal No.1497 of 2019

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According to the learned Public Prosecutor, the version of the minor child as PW2 strictly supports the case of the prosecution. The minor child had spoken about all aspects of the alleged incident precisely and particularly and the version was not defeated or controverted by the extensive cross examination by the defence. According to her the injuries found on the private parts of the minor child in the medical examination held and reported in a certificate of examination issued and marked in evidence as Ext.P2 itself are indicative of commission of the offence alleged against the accused. The Medical Practitioner who had been instrumental for examining the victim medically was also examined as PW4. The version of PW4 corroborates with that of PW2 in material particulars of the case. According to her the judgment under challenge is only to be confirmed for the reasons.

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The minor child has deposed before the trial court as PW2. He was a boy child aged 6½ years. His examination commenced after being convinced of his capability to depose in court about the incident by a voir

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Crl.Appeal No.1497 of 2019

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dire test held by the court. He also deposed strictly in tune with the statement recorded from him by the investigating officer. He successfully got over the elaborate questioning by the defence during cross examination and nothing liable to discredit his version was brought out. PW4, the Medical Practitioner who had examined the minor child after the alleged incident also deposed about his findings in the examination held. Though he had deposed during cross examination about the likelihood of the kind of the injuries noted down in Ext.P2 in the medical examination, being caused in several manners, he has not ruled out the possibility of it to be caused by the acts allegedly committed by the accused on the victim.

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The Law was set in motion in the case on hand after two days of the incident. True that the medical examination was held after eight days of setting up of the Law in motion. The investigating officer failed to offer any cogent explanation for the delayed medical examination of PW2. Since the Law itself was set in motion after two days of the incident, the medical examination evenif held

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Crl.Appeal No.1497 of 2019

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immediately thereafter, it is unlikely for the evidence of penetration to remain due to bathing and washing of the private parts. The victim being aged 6½ years we cannot also take the delay of two days occurred in setting the Law in motion as a material defect to defeat the prosecution case. Since injuries are noted at the anal region of PW2 in the medical examination and PW4 did not rule out the possibility of those being inflicted in the acts allegedly committed by the accused, there is every reason to take a view that the offence alleged was committed by the accused on the victim. The Medical Practitioner examined as PW4 had only deposed on the possibility of the injury noted on the victim being caused due to other causes also. Therefore, the evidence of PW4 has only to be accepted as supportive and corroborative of the version of PW2. The trial court had also done so.

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In the statement of the minor child recorded by the investigating officer under Section 161 Cr.P.C, he is found to have spoken that the accused had bought some juice and a packet of lays from a nearby shop and given to

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Crl.Appeal No.1497 of 2019

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him. According to the learned counsel, a shop is not described in the location sketch and the scene mahazar prepared by the investigating officer during investigation and marked in evidence respectively as Exts.P5 and P4. But PW2 has stated during cross examination that he had not accompanied the accused to the shop but the white liquid and the lays bought by the accused from a shop were given to him. The minor child had also spoken during cross examination that the location of the shop could not be recollected. According to PW2, he was taken to a building having no windows and doors and there the alleged acts were committed by the accused on him. There was proper identification of the accused by PW2 before the court. Therefore the evidence brought in by the prosecution is adequate enough to drive the trial court to reach a finding that the accused has committed the offences alleged. Therefore, the trial court cannot be found fault with in finding the guilt against him for the offences. Grounds projected by the accused while urging for reversing the judgment under challenge being untenable are discarded.

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Crl.Appeal No.1497 of 2019

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Lastly and finally, the learned counsel canvassed for a modification of the sentence by reducing the term of imprisonment. This Court notices that the sentence awarded by the trial court for each of the offences is the minimum that was provided for the offences stand proved, under the provisions of the POCSO Act. The sentence awarded by the trial court being the minimum, there is no scope for any modification of the term of imprisonment. None of the arguments advanced by the learned counsel for the accused are meritorious and therefore, liable to be discarded. The impugned judgment in the context is only liable to be confirmed.

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The appeal fails and is dismissed. The impugned judgment is confirmed.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

Faizal.T v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Faizal.T v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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