Partly allowed

Sreekumar v. State of Kerala

Kerala HC5 Feb 2024CRL.A/1178/2017

Case brief

AI extract

What is this about?

Appeal against conviction for rape of a minor under IPC and POCSO. The court upheld conviction under Section 376(2)(i) and (n) IPC on the victim's testimony but found her age not substantively proved, set aside the POCSO conviction and reduced the life sentence to ten years' imprisonment.

What the court decided

AI extract

Sreekumar Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

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Crl. Appeal No. 1178 of 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN MONDAY, THE 5^TH DAY OF FEBRUARY 2024 / 16TH MAGHA, 1945 CRL.A NO. 1178 OF 2017

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CRIME NO.1119/2013 OF Puthencruz Police Station, Ernakulam AGAINST THE JUDGMENT DATED 17.12.2015 IN SC 428/2014 OF ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM

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APPELLANT/ACCUSED:

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SREEKUMAR AGED 35 YEARS,S/O MADHAVAN,CHELAKUZHI KAROTTU HOUSE,BHAJANAMADOM COLONY, PARANKOTTUKARAYIL, AIKKARANADU NORTH VILLAGE, ERNAKULAM DISTRICT.

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BY ADV SRI.IEANS.C.CHAMAKKALA

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA

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REPRESENTED BY SUB INSPECTOR OF POLICE, PUTHENCRUZ POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT-682 031.

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BY ADV. SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON 05.02.2024 DELIVERED THE FOLLOWING:

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Crl. Appeal No. 1178 of 2017

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P.B. SURESH KUMAR & JOHNSON JOHN, JJ.

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--------------------------------------------------------Crl. Appeal No. 1178 of 2017

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-------------------------------------------------------Dated this the 5^th day of February, 2024.

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JUDGMENT

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Johnson John, J .

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This appeal is filed under Section 374(2) Cr.P.C., by the sole accused in S.C. No. 428 of 2014 on the file of the Additional Sessions Court (for the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam, challenging the conviction and the sentence passed against him for the offences punishable under Section 376(2)(i) and (n) of IPC and Section 5(j) (ii) and (l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘Act, 2012’ for short).

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The prosecution case is that the accused had forcibly subjected the minor victim girl aged below 15 years to sexual intercourse on a day in the month of March, 2013, at about 11 a.m. on a cot in the front room of her house in Aikkaranadu Panchayat and repeated the offence on several other subsequent days till July 2013 at the same place by giving a promise to marry her and thereby, impregnated her and committed the offences as aforesaid.

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On the basis of Exhibit P1 First Information Statement of the victim girl, Exhibit P8 FIR was registered by PW9, Station House

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Officer of Puthencruz Police Station and thereafter, PW14, Inspector of Police, Puthencruz, conducted the investigation and filed the final report.

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On appearance of the accused before the trial court and after hearing both sides, charge was framed for the offences punishable under Section 376(2)(i) and (n ) of IPC and Section 5(j) (ii) and (l) r/w Section 6 of the Act, 2012.

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When the charge was read over and explained to the accused, he pleaded not guilty and thereafter, the prosecution examined PWs 1 to 14 and marked Exhibits P1 to P20 and MOs 1 to 6 to prove the charge against the accused.

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At the time of 313 questioning, the accused denied all the incriminating circumstances appearing against him in the evidence of prosecution. Since the trial court found that it is not a fit case to acquit the accused under Section 232 Cr.P.C, the accused was called upon to enter on his defence. From the side of the accused, DW1 was examined.

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After considering the oral and documentary evidence on record and after hearing both sides, the trial court found the accused guilty of the offences under Section 376(2)(i) and (n) of IPC and Section 5(j)(ii) and (l) r/w Section 6 of the Act, 2012 and convicted thereunder. The trial court sentenced the accused to

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rigorous imprisonment for the remainder of his natural life and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 376(2)(i) and (n) of IPC. In view of Section 42 of the Act, 2012, no separate punishment is awarded for the offence under Section 5(j)(ii) and (l) r/w 6 of the Act, 2012.

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Heard Sri. Aadhal Thankachan, the learned counsel for the appellant and Smt. Sheeba Thomas, the learned Public Prosecutor.

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The learned counsel for the appellant argued that the court below erred in convicting the accused on the sole testimony of PW1 and in spite of the specific allegation of the prosecution that the accused impregnated the victim and she delivered a child, there was no attempt on the part of the Investigating Officer to conduct a DNA test to determine the paternity of the child and the court below has not properly appreciated the evidence of DW1. Further, the prosecution has also not produced the birth certificate of the victim to prove her date of birth and therefore, the accused is entitled for the benefit of reasonable doubt.

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The learned Public Prosecutor argued that there is no reason to disbelieve the evidence of the victim girl and in a sexual assault case, the core issue is whether the rape was committed on the prosecutrix by the accused or not and there is no relevance for

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the paternity of the child and further, the prosecution has produced the extract of the school admission register certified by the Headmaster to prove the date of birth of the victim girl and in view of the provisions in the Juvenile Justice (Care and Protection of Children) Act, 2015, the same is conclusive evidence regarding the age of the victim girl.

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11. In Santhosh Prasad @ Santhosh Kumar v. State of

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Bihar [2020 KHC 6155], it was held that if conviction has to be based on the sole testimony of the victim in a rape case, the testimony of the victim must be of sterling quality. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by the witness and the consistency of the statement right from the starting point till the end, and that the witness should be able to withstand any length of cross examination. It is true that delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses are factors that would persuade a court to look for corroboration before convicting the accused based on the sole testimony of the victim.

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The victim girl is examined as PW1 and she deposed that while studying in the 6^th Standard in a school at Maneedu, her

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mother had taken her to the house of her grandmother at Vadavucode and she was admitted at Rajasree Higher Secondary School Vadavucode. According to PW1, the accused was residing near to the house of her grandmother where she was staying and while she was alone in the house, the accused used to come there and talk to her. She stated that her grandmother is working at Infopark as a cleaner and except on Sundays, her grandmother used to leave the house for work in the early morning and will return only in the evening. According to PW1, on a day in March, 2013, at about 11 a.m., the accused came to her house and during the conversation, he told her that he loves her and thereafter, he forcibly embraced her and laid her on a cot, removed her dress and had sexual intercourse with her. PW1 stated that the accused told her not to reveal this incident to anybody else and that he will marry her, when she attains the age of majority.

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PW1 deposed that the accused repeated the acts on several other days till July, 2013 and that he committed the acts while she was alone in the house. He also told her that if in case she discloses the matter to anybody else, he will not marry her and because of that, she has not informed anybody else. According to PW1, towards the end of July, 2013, she was taken to the house of her mother at Maneedu and during that period, the accused contacted her through phone and also expressed his desire to meet

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her and accordingly, she travelled with the accused in a bus to Chottanikkara temple and thereafter to Tripunitura and at that time, the accused asked her as to whether she disclosed the matter to anybody else. PW1 would say that subsequently she disclosed the matter to her mother, when her mother questioned her about her telephone call with the accused. PW1 testified that when her mother questioned her, she disclosed the entire incident to her mother and subsequently, she has also given a statement on 23.11.2013. PW1 identified her signature in Exhibit P1 First Information Statement.

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The evidence of PW1 shows that after giving Exhibit P1 statement, she was taken to a hospital and as per the advice of the doctor, a urine test was conducted and her pregnancy was confirmed in the test. Thereafter, her statement was recorded by the Magistrate and she identified her signature in Exhibit P4 statement under Section 164 Cr.P.C given to the Magistrate. She deposed that she delivered a child in February, 2014 and that the child was given in adoption. She identified MOs1 to 4 as her dress and MOs 5 and 6 as the dress of the accused.

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PW2 is the mother of PW1 and according to PW2, her husband abandoned them when PW1 was 5 years old. She deposed that upto 6^th standard, PW1 resided with her and at that time, PW1 was studying in a school at Maneedu, She would say that when she

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sustained injuries on her leg, she took PW1 to the house of her mother and there PW1 was admitted at Rajasree Higher Secondary School, Vadavucode. According to PW2, the accused was residing near to the house of her mother and while PW1 was studying in Standard X, she noticed some physical changes to her and hence, she took PW1 to her house and on questioning PW1, she told her that during March, 2013, the accused subjected her to forcible sexual intercourse after promising to marry her and that the accused repeated the acts on several days till July 2013. The evidence of PW2 shows that she immediately informed the police and has given a statement before the Magistrate. The evidence of PW2 also shows that PW1 was taken to a hospital at Vadavucode and thereafter, to the General Hospital, Ernakulam for treatment.

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The grandmother of PW1 is examined as PW3. According to PW3, she is residing at Bhajanamadom colony at Vadavucode and from 6^th Standard to 10^th Standard, PW1 studied in a school at Vadavucode and at that time, PW1 was residing with her. PW3 stated that the accused is her neighbour and that she used to go for work at about 6.45 a.m. in the morning and will return only by 6 p.m. and she can avail holiday only on Sunday. She had occasion to see PW1 talking to the accused on a Sunday and that she came to know about the occurrence from her daughter Jalaja.

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PW8 was the Woman Civil Police Officer of Puthencruz Police Station, who recorded Exhibit P1 statement of PW1 on 23.11.2013. PW9 was the Station House Officer of Puthencruz of Police Station, who registered Exhibit P8 FIR on the basis of Exhibit P1 First Information Statement on 23.11.2013.

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In cross examination, PW1 stated that the accused is known to her from the period she started to reside in the house of her grandmother and there is only the distance of one house from the house of her grandmother to the house of the accused. According to PW1, the accused told her that he loves her and that he will marry her and it was in that circumstance, she has not made any hue and cry. PW1 also stated that the accused has told her that he had divorced his wife. She denied the suggestion of the defence that the accused never had sexual intercourse with her and that she became pregnant through someone else.

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In cross examination, PW2 stated that it was during the month of July, she noticed some physical changes to her daughter and according to PW2, at that time, her daughter has not disclosed about the sexual contact with the accused and hence, the delay occurred in preferring the complaint to the police. During cross examination, PW2 stated that when she questioned her daughter about the phone calls, her daughter told her that it was the brother

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of her friend who called her and at the time of giving Exhibit P1 statement, she was not aware that her daughter is pregnant.

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PW3 deposed in cross examination that the accused is known to her for the last 9 years and that the accused used to go for painting work along with her son-in-law. According to PW3, there was an incident in which the accused knocked at the door of her house at 1 O' clock in the night and subsequently, when she asked the accused about the same, he told her that it was by mistake that he knocked at her door.

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It is well settled that the evidence of a prosecutrix is more reliable than that of an injured witness. In Rafiq v. State of U.P. [1980 (4) SCC 262], it was held that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law and the same is only a guidance of prudence under the given circumstances. It cannot be disputed that the testimony of the victim of sexual assault cannot be disbelieved, unless there are compelling reasons which necessitate looking for corroboration of her statement. It is also well settled that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case as held in State of Himachal Pradesh v. Asha Ram [ AIR 2006 (6) SC 381].

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When the accused was questioned under Section 313 Cr.P.C, he stated that PW3 was conducting a petty shop there and on the complaint of the neighbours that she is conducting sale of liquor there, the excise officials came there and she was forced to close the shop. Subsequently, PW3 started the sale of liquor in her house and when the neighbours created problems, he also intervened and because of that, she is having enmity towards him.

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DW1 deposed that PW3 is his neighbour and she is conducting a petty shop there. According to DW1, police and excise officials seized liquor from the shop of PW3 and thereafter, she continued the sale of liquor in her house. DW1 also stated that while PW1 was residing in the house of PW3, a teacher from the nearby anganwadi had given counselling to the girls in that locality and during the counselling, PW1 told the teacher that she was sexually assaulted by one Kunjumon, who is the husband of her mother’s sister. According to DW1, when they came to know about the said incident, they questioned Kunjumon and thereafter, Kunjumon and family left the place.

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It is pertinent to note that while cross examining PWs 1 to 3, there was no specific question or suggestion from the side of the defence that the prosecutrix was objected to sexual harassment by the husband of her mother’s sister. As per the evidence of DW1,

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the victim has disclosed about the sexual harassment by the husband of her mother’s sister to the anganwady teacher during counselling. DW1 has no case that he has any direct knowledge from PW1 or the anganwady teacher regarding the sexual assault by the said Kunjumon and what is deposed by DW1 is that when the local people came to know about the incident, they summoned the said Kunjumon and questioned him and thereafter, the said Kunjumon and family left the place.

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In view of Section 60 of the Indian Evidence Act, 1872 which provides that oral evidence must be direct, we find that the hearsay evidence of DW1 regarding the sexual assault on PW1 by one Kunjumon, husband of her mother’s sister, is not admissible in evidence and further, the defence has also not examined the anganavady teacher to whom PW1 is alleged to have disclosed about the sexual assault from the side of the husband of her mother’s sister and in that circumstance, we find that the evidence of DW1 is not sufficient to discredit the evidence of PWs 1 to 3 regarding the prosecution case. In this case even though PWs 1 to 3 were cross examined seriously, no material contradictions or omissions are brought out and therefore, we find that their evidence regarding the occurrence is reliable and convincing.

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PW4 was the Gynecologist of General Hospital, Ernakulam, who examined PW1 on 23.11.2013 and issued Exhibit P4 certificate. The evidence of PW4 and Exhibit P4 shows that there is evidence of vaginal penetration and hymen was torn (old) and the vagina admits two fingers easily. The evidence of PW4 in chief examination is not challenged in cross examination.

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PW5 was the Assistant Surgeon of CHC, Vadavucode, who examined PW1 on 26.11.2013 and advised for a urine pregnancy test. The evidence of PW5 and Exhibits P5 and P5(a) shows that the test result was positive and PW5 was also not cross examined by the defence.

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PW6 was the doctor at Taluk Hospital Tripunithura who examined the accused on 27.11.2013 and issued Exhibit P6 potency certificate. The evidence of PW6 and Exhibit P6 shows that there is nothing to suggest that the accused is incapable of performing sexual acts.

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The evidence of PWs 1 to 3 regarding the occurrence is also supported by the medical evidence of PWs 4 to 6. The learned counsel for the appellant argued that as per the prosecution case, because of the penetrative sexual assault committed by the accused, the victim has become pregnant and has also delivered a child and in spite of the said allegation, there was no steps from the

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side of the Investigating Officer to conduct the DNA test and if such a test was conducted, there would be conclusive evidence as to whether the accused is the biological father of the child delivered by the victim.

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But, it can be seen from the evidence of PW14, Investigating Officer, that he completed the investigation and filed the final report before the delivery of the child and we find merit in the argument of the learned Public Prosecutor that the core issue in a rape case is whether rape was committed on the prosecutrix by the accused or not and that the DNA test of the child is not conclusive evidence of rape. Further, it is in evidence that the child is given in adoption and therefore, conducting a DNA test on a rape survivors child given in adoption may not be in the interest of the child and the future of the child.

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In this case, there is no serious contradiction, omission or exaggeration in the evidence of PW1 before court and since her evidence tallies with Exhibit P1 First Information Statement, we find that her evidence regarding the occurrence inspires confidence and it can be relied upon even without seeking further corroboration.

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The learned counsel for the appellant has advanced an argument that there is delay in registering the FIR. It was pointed out that the last incident of rape occurred during July, 2013 and

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Exhibit P1 First Information Statement was given only on 23.11.2023. But, we do not think that this delay is fatal in the facts and circumstances as it is brought out in evidence that the victim girl has disclosed about the rape only when she was questioned by her mother on 26.11.2013. Further, the evidence of PW1 shows that she came to know about the pregnancy only on 26.11. 2013.

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In cases of these nature, it cannot be expected that a survivor of rape would inform the police immediately and the evidence of PWs 1 and 2 clearly shows that they reported the matter to the police only after PW1 has disclosed to PW2 that her physical changes was due to the forcible sexual intercourse by the accused. Further, in this case, the sexual abuse took place while the victim was alone in the house of her grandmother and it cannot be imagined that a girl would cook up such a false story against the accused in the absence of any serious grudge or hostility towards him before the occurrence.

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The learned counsel for the appellant argued that the prosecution has not proved the age of the victim girl as on the date of occurrence as per Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (‘Rules, 2007 for short). It is pointed out that in this case, the court below framed charge on 06.06.2015 and in view of Rule 132 of Criminal Rules of Practice,

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trial commences in a Sessions case only when the charge is read out and explained to the accused under Section 228 of the Code. The Act, 2015 (Act No. 2 of 2016) came into force only on 01.01.2016.

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In Jarnail Singh v. State of Haryana (2013 KHC 4455), the Honourable Supreme Court held that the documents which are required to be produced under the provisions of Rule 12(3) of the Rules, 2007 can be considered for proving the age of the victim. In Rule 12(3) of the Rules, 2007, it is stated that:

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“12(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –

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(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

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(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

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(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;”

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Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile,

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in our considered opinion, the same yardstick can be rightly

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followed by the courts for the purpose of ascertaining the age of a victim as well.

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The then Headmaster of Rajasree Memorial Higher Secondary School, Vadavucode is examined as PW7. PW7 deposed that he retired in March, 2015 and that Exhibit P7 is the extract of the school admission register showing the date of birth of the victim issued as per the request of the police and that as per Exhibit P7, her date of birth is 06.12.1998. The learned counsel for the appellant argued that there is nothing in the evidence of PW7 to show that he has any direct knowledge regarding the entries in Exhibit P7 and that it is a record maintained by a private school.

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It is also pointed out that admittedly the victim studied in a school at Maneedu upto 6^th standard and therefore, Exhibit P7 issued from a private school at Vadavucode will not satisfy the requirements of Rule 12(3) of the Rules, 2007, inasmuch as the same is not the date of birth certificate from the school (other than a play school) first attended and further, the certificate mentioned in sub-clause (ii) of Rule 12(3) can be considered only in the absence of the certificate mentioned in sub-clause (i) of Rule 12(3) of the Rules, 2007 and there is no evidence from the side of prosecution regarding the absence of certificate mentioned in sub - clause (i) of Rule 12(3) of the Rules, 2007.

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It cannot be disputed that in this case, where the age of the prosecutrix has to be proved by the prosecution, it is necessary to adduce evidence either as provided under Section 35 of the Indian Evidence Act or by producing any of the documents specified in terms of the Rules, 2007. Exhibit P7 is only the extract of an admission register of a private school in which the victim studied for a few years and in as much as the same is not the date of birth certificate from the school first attended, we find that the same does not come under any of the categories mentioned under Section 35 of the Indian Evidence Act, 1872 or under Rule 12(3) of the Rules, 2007 and therefore, we find that the prosecution has not succeeded in adducing substantive evidence to prove the age of the victim girl at the time of the alleged occurrence.

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We find force in the argument of the learned counsel for the appellant that in the absence of any evidence to prove that the victim girl was a minor at the time of the alleged occurrence, the conviction of the accused for the offence under Section 5(j)(ii) and (l) r/w Section 6 of the Act, 2012 is not legally sustainable. The learned counsel for the appellant also argued that there is no satisfactory evidence in this case to show that the accused subjected the prosecutrix to forcible sexual intercourse. But on a careful perusal of the evidence of PW1, we find no merit in the said argument in as much as PW1 has categorically deposed before court

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that the accused forcibly embraced her and laid her on a cot and subjected her to sexual intercourse.

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It is also in evidence that the accused told her not to reveal this incident to anybody else and that he will marry her and that the accused repeated the acts till July, 2013, while the victim was alone in her house by promising to marry her and that he also told the prosecutrix that he had already divorced his wife. There is no reason to disbelieve the evidence of PW1 in this regard and therefore, we find no merit in the contention of the appellant in this regard and in that circumstance, we find that the court below has rightly convicted the accused for the offence under Section 376(2) (i) and (n) of IPC.

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Now, the next question to be considered is regarding the quantum of sentence imposed on the accused by the trial court. The punishment prescribed for rape coming under Section 376(2)(i) and (n) of IPC is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. In this case, the court below has imposed the maximum sentence on the ground that the prosecutrix was a minor at the time of occurrence.

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We have already found that the prosecution has not succeeded in proving the date of birth of the prosecutrix on the date of occurrence either under Section 35 of the Indian Evidence Act, 1872 or under Rule 12(3) of the Rules, 2007 and therefore, taking into consideration all these facts, we are of the view that while upholding the conviction under Section 376(2)(i) and (n) of IPC, the maximum punishment imposed on the accused as per the impugned judgment requires modification.

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In the result, this appeal is partly allowed setting aside the conviction of the accused for the offence under Section 5(j)(ii) and (l) r/w Section 6 of the Act, 2012 and modifying the substantive sentence for the offence under Section 376(2)(i) and (n) of IPC to imprisonment for 10 years. All other directions regarding the fine imposed and the default sentence for the said offence in the impugned judgment shall stand confirmed. Interlocutory applications, if any pending, shall stand closed.

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sd/-

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P.B. SURESH KUMAR, JUDGE.

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sd/- JOHNSON JOHN, JUDGE.

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Sreekumar v. State of Kerala

Case brief

What is this about?

What the court decided

Sreekumar v. State of Kerala

Case brief

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