Partly allowed

Noorjahan Bandaragothi v. Union Territory of Lakshadweep

Kerala HC22 Feb 2024CRL.A/287/2023

Case brief

AI extract

What is this about?

Kerala High Court allowed two criminal appeals, setting aside the conviction and sentence for the offence of repeated rape under IPC 376(2)(n) due to lack of evidence proving multiple acts, while confirming convictions for rape, abduction, kidnapping, and other POCSO offences.

What did the court decide?

Conviction and sentence for repeated rape under IPC 376(2)(n) set aside; conviction and sentence for other IPC 376(2)(i) and POCSO offences confirmed.

Noorjahan Bandaragothi Vs Union Territory of… — Child Sexual Offences (POCSO) | Kerala HC (2024)

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Crl. Appeal Nos. 287 & 396 of 2023 : 1 :

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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 P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN

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THURSDAY, THE 22^ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945

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CRL.A NO. 287 OF 2023

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CRIME NO.13/2016 OF MINICOY POLICE STATION, Lakshadweep JUDGMENT DATED 18.11.2022 IN CC 1/2017 OF SESSIONS COURT (SPECIAL COURT FOR POCSO OFFENCES), KAVARATHY

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APPELLANT/ACCUSED NO.2:

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NOORJAHAN BANDARAGOTHI

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AGED 37 YEARS W/O MOOSA KUNNUGOTHI, BANDARAGOTHI HOUSE, MINICOY, UNION TERRITORY OF LAKSHADWEEP, PIN – 682 559.

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BY ADVS. R.ROHITH HARISHMA P. THAMPI

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RESPONDENT/COMPLAINANT:

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UNION TERRITORY OF LAKSHADWEEP

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REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.

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BY ADV Sajith Kumar V.

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SRI.SAJITH KUMAR, SC

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.02.2024, ALONG WITH CRL.A. NO. 396 OF 2023, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:

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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 P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN

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THURSDAY, THE 22^ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945

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CRL.A NO. 396 OF 2023

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CRIME NO.13/2016 OF MINICOY POLICE STATION, LAKSHADWEEP JUDGMENT DATED 18.11.2022 IN CC 1/2017 OF DISTRICT COURT, KAVARATHY

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APPELLANT/ACCUSED A1:

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MOOSA KUNNUGOTHI, S/O. YOUSUF, KUNNUGOTHI HOUSE, MINICOY, UT OF LAKSHADWEEP, PIN – 682 559.

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BY ADVS. SAIBY JOSE KIDANGOOR BENNY ANTONY PAREL P.M.MOHAMMED SALIH ANOOP SEBASTIAN PRAMITHA AUGUSTINE IRINE MATHEW ADITHYA KIRAN V.E ANJALI NAIR NAAIL FATHIMA ABDULLA A. TANOOSHA PAUL SWATHY SUDHIR

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RESPONDENTS/STATE & COMPLAINANT:

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1 THE ADMINISTRATOR

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U T OF LAKSHADWEEP, REP. BY ITS STANDING COUNSEL HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.

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2 STATION HOUSE OFFICER MINICOY POLICE STATION, UT OF LAKSHADWEEP, PIN – 682 559. BY ADVS. SAJITH KUMAR V. Sajith Kumar V.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.02.2024, ALONG WITH CRL.A.287/2023, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:

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Crl. Appeal Nos. 287 & 396 of 2023 : 3 :

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

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Crl. Appeal Nos. 287 & 396 of 2023

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-------------------------------------------------------Dated this the 22^nd day of February, 2024.

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JUDGMENT

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Johnson John, J .

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The appellants are the first and second accused in C.C. No. 1 of 2017 on the file of the Court of Session, Kavaratti (Special Court for POCSO Offences) and they are challenging the conviction and sentence imposed on them for the offences under Sections 120B, 363, 366, 366A 368 376(2)(i) & (n), 506(ii) and 109 of IPC and Sections 4, 6, 8, 10, 12 and 17 of the Protection of Children from Sexual Offences, 2012 (‘Act, 2012’ for short) as per the impugned judgment dated 18.11.2022.

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The prosecution case is that the first accused is the husband of the second accused and druing 2016, the accused persons entered into a criminal conspiracy to kidnap the minor victim girl, who was 1their neighbour, to subject her to rape and sexual assault and with the aid and instigation of the second accused, the victim minor girl was kidnapped from the lawful guardianship of her parents and kept her in wrongful confinement in

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a bedroom of the house of the accused persons and the first accused repeatedly inserted a sex toy into the vagina and anus of

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the victim girl and also exhibited his naked body to the victim and the accused persons also threatened the victim that they will kill her if in case she discloses the incident to anybody else. It is also alleged that the accused persons repeated the acts on two or three days in the year 2016 and that the second accused aided and abetted the first accused to commit the act and they are thereby alleged to have committed the offences as aforesaid.

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Exhibit P8 FIR in this case was registered by PW6, ASI of Minicoy Police Station, on the basis of the confession statement of the second accused herein, who is also the second accused in Crime No. 9 of 2016 of Minicoy Police Station involving similar offences. The investigation was conducted by PW10, Inspector of Police, Headquarters, Kavaratti, and after completing the investigation, final report was filed before the Special Court.

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When the accused are produced before the trial court, they were furnished with copies of prosecution records and after hearing both sides, charge was framed for the offences under Sections 376(2)(i), 376(2)(n), 363, 366, 506(ii), 366A, 368, 109 and 120B of IPC and Sections 4, 6, 8, 10, 12, 14 and 17 of the Act, 2012.

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When the charge was read over and explained to the accused persons, they pleaded not guilty and thereafter, the

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prosecution examined PWs 1 to 11 and marked Exhibits P1 to P18 and MOs 1 to 19 to prove the charge against the accused persons.

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After the closure of the prosecution evidence, the accused persons were questioned under Section 313(1)(b) Cr.P.C and they denied all the incriminating circumstances and stated that they are innocent.

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Since the trial court found that it is not a fit case to acquit the accused under Section 232 Cr.P.C, they were called upon to enter on their defence. But, no evidence was adduced from the side of the defence.

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After considering the oral and documentary evidence on record and after hearing both sides, the trial court, as per judgment dated 18.11.2022, convicted and sentenced the first accused to undergo rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for one month for the offence under Section 363 IPC; rigorous imprisonment for 5 years and to pay a fine of Rs.10,000/and in default of payment of fine, to undergo rigorous imprisonment for two months for the offence under Section 366 IPC; imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a

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further period of one year for the offence under Section 376(2)(i) of IPC; imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year for the offence under Section 376(2)(n) of IPC; and to rigorous imprisonment for two years for the offence under Section 506(ii) of IPC.

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The second accused was convicted and sentenced for rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for one month for the offence under Section 363 IPC; rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for two months for the offence under Section 366 IPC; rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month for the offence under Section 366A IPC; imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year for the offence under Section 376(2)(i) of IPC; imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year for the offence under Section 376(2)(n)

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of IPC; and rigorous imprisonment for two years for the offence under Section 506(ii) of IPC. No separate sentences were imposed on the appellants/accused persons for the offences punishable under Sections 368 and 120B of IPC and Sections 4, 6, 8, 10 and 12 of the Act, 2012.

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Heard Sri. Saiby Jose Kidangoor, the learned counsel for the appellant/first accused and Sri. R. Rohith, the learned counsel for the appellant/second accused and also the learned Standing Counsel for the Union Territory of Lakshadweep, Sri. Sajith Kumar.

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It is argued on behalf of the appellants that the FIR in this case was registered on the basis of the alleged confession statement of the second accused in Crime No. 9 of 2016 of Minicoy Police Station and that the said confession statement marked as Exhibit P13 is not a legally admissible document and that the trial court erred in convicting the accused persons based on the sole testimony of PW3, which suffers from serious contradictions and inconsistencies. The learned counsel for the appellant/second accused also argued that the trial court recorded the evidence of the material witnesses with the help of a translator and the trial court failed to record the evidence of the material witnesses in the language of the witnesses. It is also argued that there is no reliable evidence to show that the accused persons repeatedly raped the

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victim and therefore, the conviction under Section 376(2)(n) is not legally sustainable

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The learned Standing Counsel for the Union Territory of Lakshadweep argued that the evidence of PW3, minor victim girl, regarding the occurrence tallies on all material particulars with her previous statements and that the defecne has not proved any material omission or contradiction in her evidence. It is pointed out that the evidence of PW3 victim girl is also supported by the evidence of PW4 doctor and the recovery of MOs 1 to 19 on the basis of the disclosure statement of the second accused. It is also pointed out that the trial court recorded the evidence of the material witnesses strictly following the mandate of Section 277 Cr.P.C and Rules 52 and 53 of the Criminal Rules of Practice and that there is no valid grounds to interfere with the findings in the impugned judgment.

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The minor victim girl is examined as PW3 and she deposed that her date of birth is 14.10.2006 and that she is a native of Bodothiri Village in Minicoy Island. PW3 stated that the first accused Moosa and the second accused Noorjahan are her neighbours and that the second accused used to take her to their house to play. According to PW3, while she was studying in class IV, she went to the house of the accused persons along with her friend

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Ashika and on that day, the first accused forcefully laid her to the bed and when she attempted to escape, the second accused closed the doors and thereafter, the first accused lifted her frock and removed her underwear and he kissed and massaged that part of her body used for urinating and thereafter, inserted a corn shaped blue coloured plastic object into that part of her body used for urinating and she felt pain and attempted to escape from there and at that time, the accused persons caught on her hands and legs and after doing the aforesaid acts for some time, they released her and at that time, they also threatened her not to disclose the matter to anybody else and if in case she discloses the same to anybody else, they will kill her. PW3 would say that it was the second accused who caught her hands and the first accused who caught her legs at the time of occurrence. According to PW3, when the police questioned her, she disclosed the entire incident to the police. Her evidence shows that the police questioned her, while she was in Kavaratti hospital. She identified the blue coloured corn shaped plastic object used by the accused persons as MO1

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In cross examination, PW3 stated that the accused persons are known to her from her childhood and that the incident occurred in the bedroom of the accused persons and she had gone

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to the said bed room previously for watching television and usually, the second accused will always be there in the said room

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According to PW3, her father is a police Constable and he was working in Minicoy Police Station. In cross examination, PW3 stated that after the occurrence, she has not disclosed the same to her father as the accused persons threatened her; but, she would say that after receiving counselling, she disclosed the matter to her father. PW3 cannot remember the date on which she received counselling; but, she would say that it is her father who took her to the counsellor.

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The evidence of PW3 in cross examination shows that her house and the house of the accused persons are on either side of a road. PW3 stated in cross examination that on the date of occurrence, she was wearing a violet frock and during the period of occurrence, her friend Asika was studying in Class V. In another part of the cross examination, PW3 stated that initially she along with Asika went to the room on the back side of the house of the accused persons and after Asika left the place, she went to the room of the second accused and at that time, both the accused persons were there in the said room.

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When the learned counsel for the first accused challenged the identification of MO1 as the object used by the accused persons, the witness stated that the accused used the said object several times and since she saw the said object during that time, she can identify the same.

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PW4 was the Gynecologist at Indira Gandhi Hospital, Kavaratti who examined the victim minor girl on 27.01.2017 and issued Exhibit P1 certificate. The evidence of PW4 and Exhibit P1 shows that the victim, at the time of examination, told the doctor that while she was playing with her friend at Mr. Moosa’s home, who is her neighbour, Moosa took her inside the room and inserted a toy into her vagina one year back and at that time, his wife was also present. The victim also informed the doctor that she did not feel any pain or bleeding during or after that act and that he has done the same thing twice on different days. According to PW4, on examination, evidence suggestive of sexual abuse was absent and the hymen and vagina are intact, and no abrasion or laceration was seen. PW4 also deposed that even if there was sexual assault as alleged by the victim child, there may not be evidence suggestive of sexual assault, if she is examined after one year of the incident.

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PW7 was the Judicial First Class Magistrate, Androth, who recorded the 164 statement of the victim child on 25.01.2017.

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According to PW7, he recorded the 164 statement of the victim with the assistance of a translator, Muhsina Ibrahim, as the victim knows only Mahal language. PW7 also deposed that he recorded the statement of the victim child after conducting a preliminary enquiry and after satisfying that the victim child is competent to give the statement. The statement of the victim child under Section 164 of Cr.P.C is marked as Exhibit P2. In cross examination, PW7 stated that the victim has not stated to him that the second accused caused any hurt to her. But, the victim has stated that the second accused was present at the time of occurrence.

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PW6 was the ASI of Minicoy Police Station who registered Exhibit P8 FIR in this case on the basis of the confession statement of the second accused in Crime No. 9 of 2016 recorded by the Judicial First Class Magistrate, Androth on 18.08.2016. PW6 also deposed that after registering the FIR, he reached the place of occurrence and prepared Exhibit P9 scene mahazar and Exhibit P10 sketch.

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PW8 was the Judicial First Class Magistrate, Androth, who recorded the confession statement of the second accused in Crime No. 9 of 2016 on 18.08.2016. The confession statement of the second accused in Crime No. 9 of 2016 recorded by PW8 on 18.08.2016 is marked as Exhibit P13.

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The learned counsel for the appellants argued that a perusal of Exhibit P13, confession statement of the second accused recorded by PW8 in Crime No. 9 of 2016, would show that the second accused was administered oath before recording the judicial confession and therefore, the same is illegal and that the trial court has not accepted Exhibit P13 as legally admissible evidence against the accused in the connected case and therefore, the registration of Exhibit P8 FIR and the investigation conducted on the basis of Exhibit P13 confession, which is not legally admissible in evidence, will vitiate the entire investigation and trial.

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It is well settled that administration of oath to the accused while recording his confession statement is violative of the mandatory provision of Article 20(3) of the Constitution of India and Section 281 of Cr.P.C. But, the argument that an FIR registered on the basis of the information received from an illegally recorded judicial confession will vitiate the investigation and trial is not legally tenable, as it is well settled that the police is bound to register the information received regarding the commission of a cognizable offence, unless the

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said information is vague, incomplete or does not disclose a cognizable offence.

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In this case, PW6, ASI of Minicoy Police Station, registered Exhibit P8 FIR, when he received information regarding the commission of cognizable offences and for the reason that there is illegality in the procedure followed by PW8 Magistrate in recording Exhibit P13 confession, it cannot be held that the investigation and trial in this case is vitiated. Further, it is also well settled that even though First Information Report has great value, it is not a piece of substantive evidence and that it can be used only to corroborate or contradict the evidence under Sections 145 and 157 of the Indian Evidence Act and therefore, we find no merit in the contention of the appellants in this regard.

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The decision of the Honourable Supreme Court in Rafiq v. State of U.P. [1980 (4) SCC 262] shows that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. However, it is well settled that in order to base a conviction solely on the evidence of a rape victim, such evidence shall be of sterling quality. The Honourable Supreme Court in Rai Sandeep v. State (NCT of Delhi) , (2012) 8 SCC 21, held i n paragraph 22 as follows:

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“In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. 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 such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of

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circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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It is well settled that the testimony of the victim of sexual

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assault is more reliable than that of an injured witness, unless there are compelling reasons which necessitate looking for corroboration of her statement and that the court should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and found to be reliable. In this case, even though PW3 was seriously cross examined, no material contradiction or omission is proved.

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The learned counsel for the appellants argued that the evidence of PW3 before the court does not tally with her statement

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under Section 164 Cr.P.C recorded by PW7. It is pointed out that in cross examination, PW3 has stated that she cannot remember whether the first accused subjected her to similar acts previously. It is also pointed out that even though the specific case of the prosecution is that the accused persons repeated the acts on two or three days in the year 2016, there is nothing in the evidence of PW3 to show that the accused persons subjected her to rape repeatedly so as to attract the offence under Section 376(2)(n) of IPC

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The learned Standing Counsel pointed out that PW3 was a student of Class IV at the time of occurrence and no portion of her statement recorded under Section 164 Cr.P.C was brought to her attention at the time of cross examination to contradict her, and only because PW3 has stated in cross examination that she cannot remember as to whether the first accused has previously committed similar acts against her, it cannot be held that there is any serious contradiction in her evidence before the court.

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It is well settled that if it is intended to contradict a witness by his previous statement in writing, the attention of the witness must be drawn to those parts of it, before the writing is proved. The Honourable Supreme Court in Tahsildar Sing and another v. State of UP [AIR 1959 SC 1012] has observed that sometimes a positive statement may have a negative aspect and a

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negative one a positive aspect. In the said decision, the Honourable Supreme Court held that the procedure prescribed for contradicting a witness by his previous statement is that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it, which are to be used for the purpose of contradicting him. Paragraphs 13 and 19 of the above decision in Tahsildar Sing’s case is extracted below for convenient reference:

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“13. The learned Counsel's first argument is based upon the words "in the manner provided by S. 145 of the Indian Evidence . Act, 1872" found in S. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is place upon the judgment of this Court in Bhagwan Singh v. State of Punjab (1), 1952 SCR 812 : (AIR 1952 SC 214). Bose J. describes the procedure to be followed to contradict a witness under S. 145 of the Evidence Act thus at p. 819 (of SCR) : (at p. 217 of AIR) :

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"Resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then S. 145 requires that his attention must be drawn to these parts which are to be

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used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."

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It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under S. 145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under S. 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts : the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction : in other words, both parts deal with cross-examination; the first part with cross examination other than by way of contradiction, and the second with crossexamination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing

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violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generallly followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus: If the witness is asked "did you say before the police-officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies : one is it enables the accused to elicit by a process of crossexamination what the witness stated before the police-officer. If a police-officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness's oral

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statement could be brought on record. This procedure, therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no selfcontradiction of the primary statement made in the witnessbox, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all : only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned Counsel based upon S. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of S.162 of the Code of Criminal Procedure.

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"Contradict'' according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that. there is something in writing which can be set against another statement made in evidence. If the statement before the police-officer - in the sense we

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have indicated - and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.”

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The proviso to Section 162 of Cr.P.C only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Indian Evidence Act. In this case, no portion of the previous statement of the victim was specifically brought to her attention, while cross examining her and no portion of her previous statement is proved legally to contradict her.

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It is well settled that normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be. It cannot be disputed that material discrepancies are those which are not normal and not expected of a normal person.

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In the chief examination itself, PW3 has stated that her date of birth is 14.10.2006 and therefore, at the time of giving evidence, she was aged only 13 years. According to PW3, at the time of occurrence, she was studying in Class IV. PW3 was

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examined before the court on 20.01.2020 and therefore, it is clear that at the time of occurrence, she was aged only 9 years. In this connection, the prosecution has also examined PW9, Registrar of Birth and Death, Kavaratti, who issued Exhibit P15 birth certificate of the victim and as per Exhibit P15, her date of birth is 14.10.2006. The evidence of PW9 regarding the date of birth of the victim is not challenged in cross examination.

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33 . In Ravinder Singh Gorkhi v. State of U.P. ,

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(2006) 5 SCC 584 ), it was held that in the absence of any statutory provision dealing with the manner in which the age has to be proved in a proceedings, the age has to be proved by producing any document falling within the scope of Section 35 of the Indian Evidence Act. We find that Exhibit P15 birth certificate of the victim and the evidence of PW9 proves beyond reasonable doubt that the date of birth of PW3 is 14.10.2006 and that she was a child in terms of the provisions contained in the Act, 2012 at the time of occurrence.

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Therefore, considering the age of the minor victim girl at the time of the occurrence and at the time of recording her evidence and in the absence of any serious contradiction, omission or exaggeration in the evidence of the prosecutrix, we find that her

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evidence regarding the occurrence inspires confidence and it can be relied upon.

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The learned counsel for the appellant/second accused advanced an argument that the trial court recorded the evidence of PW3 with the help of a translator without recording a satisfaction with regard to the proficiency of the translator in the language known to the witness and also failed to record the evidence in the language of the witness and therefore, what exactly deposed by the witness is not on the record of the trial court. In this connection, the learned counsel for the appellant/second accused also relied on the decision of the Honourable Supreme Court in Naim Ahamed v. State (NCT of Delhi) [2023 KHC 6086], wherein the Honourable Supreme Court observed in paragraphs 24 and 25 as follows:

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“24. We are apprised that in some of the trial courts the depositions of the witnesses are not being recorded in their language and are being recorded in English language only, as may be translated by the Presiding officer. In our opinion, the evidence of the witness has to be taken down in the language of the court as required under S. 277 Cr. P.C. If the witness gives evidence in the language of the court, it has to be taken down in that language only. If the witness gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court may be prepared. It is only when the witness

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gives evidence in English and is taken down as such, and a translation thereof in the language of the court is not required by any of the parties, then the court may dispense with such translation. If the witness gives evidence in the language other than the language of the court, a true translation thereof in the language of the court has to be prepared as soon as practicable.

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25. The evidence of the witness has to be recorded in the language of the court or in the language of the witness as may be practicable and then get it translated in the language of the court for forming part of the record. However, recording of evidence of the witness in the translated form in English language only, though the witness gives evidence in the language of the court, or in his/her own vernacular language, is not permissible. As such, the text and tenor of the evidence and the demeanor of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness. Even otherwise, when a question arises as to what exactly the witness had stated in his/her evidence, it is the original deposition of the witness which has to be taken into account and not the translated memorandum in English prepared by the Presiding Judge. It is therefore directed that all courts while recording the evidence of the witnesses, shall duly comply with the provisions of S. 277 of Cr. P.C.”

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A perusal of the evidence of PW3 recorded by the trial court shows that the witness was examined with the assistance of a translator and the deposition is recorded in Malayalam, the language of the court, and was interpreted to the accused in Mahal

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in compliance with Section 279 Cr.P.C. Sections 276 and 277 of

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Cr.P.C read thus:

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276. Record in trial before Court of Session .—

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(1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court, or under his direction and superintendence, by an officer of the Court appointed by him in this behalf.

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[(2) Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.]

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(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record.

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Language of record of evidence .—In every case where evidence is taken down under section 275 or 276,—

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(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language;

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(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record;

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(c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:

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Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not

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required by any of the parties, the Court may dispense with such translation.”

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In this case, PW3 and other material witnesses were extensively cross examined by the defence and there is nothing to indicate that there was any difficulty in understanding the answers given by the witness by either side or the questions put to the witness by either side. There is nothing in evidence to show that during the course of trial, any question was raised as to what exactly the witness had stated in her evidence.

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38 In that circumstance and in view of Section 277 Cr.P.C., it cannot be held that any injustice is caused to the accused in the procedure adopted by the trial court and therefore, in the absence of any grave illegality or irregularity in the mode of trial, it cannot be held that there is an irregularity which went to the root of the trial and therefore, the contention of the appellant/second accused that the trial is vitiated, because of the irregularity in not recording the deposition of PW3 in the language known to her, is not legally sustainable.

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The learned counsel for the appellants argued that the prosecution has not adduced any evidence in this case to prove the offence under Section 376(2)(n) of IPC and that PW3 has

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categorically admitted in cross examination that she cannot remember as to whether the first accused had sexually assaulted her on any other day prior to the occurrence in this case. We find merit in the above argument and therefore, in the absence of reliable evidence to show that the accused persons subjected the minor victim girl to rape repeatedly, it cannot be held that the accused persons committed the offence under Section 376(2)(n) of IPC and therefore, the conviction and sentence imposed on the accused persons for the said offence is liable to be set aside.

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PW10 was the Sub Inspector of Minicoy Police Station who conducted the investigation in Crime No. 9 of 2016 of Minicoy Police Station. PW10 deposed that he arrested both the accused persons herein in the said case and on the basis of the disclosure statement of the second accused that the pillow, pillow cover and other things used by her husband for committing sexual act, such as artificial penis, vibrator, plastic ball, condoms, lubricant gell, tablet for prevention of pregnancy are kept in her house at Bandargothi in Minicoy and she will point out the same if she is taken to that place, the witness proceeded to the house of the second accused along with the second accused on 12.08.2016 and after reaching the house of the second accused at 13 hours on that day, the second accused took out the above said items from a shelf in the room of

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her house and the same were seized by preparing mahazar and the certified copy of the said mahazar is marked as Exhibit P16. The relevant portion of the confession statement of the second accused is marked as Exhibit P16(a). The certified copy of the property memo is marked as Exhibit P17, and Exhibit P18 is the copy of the property list. PW10 also identified the material objects recovered as MOs 1 to 19

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PW11 was the then Circle Inspector, who conducted the investigation of this case from 03.11.2016 onwards. According to PW11, with the permission of the court, he arrested the accused persons who were in judicial custody in connection with Crime No. 9 of 2016 of Minicoy Police Station in Sub Jail, Kavaratti in the presence of the Jail Superintendent on 03.11.2016. Exhibits P2 to P7 are the arrest memo, inspection memo and custody memo of the accused persons. According to PW11, after completing the investigation, he filed the final report in this case. The prosecution is mainly relying on the evidence tendered by the victim and the remaining witnesses were examined only for the purpose of corroborating the evidence tendered by the victim. The evidence of PW10 and recovery of MOs 1 to 19 on the basis of the disclosure statement of the second accused lends credence to the evidence of the minor victim girl regarding the occurrence. The evidence of PW3

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shows that she was aged only 9 years at the time of occurrence and that the accused persons are known to her from her childhood and that she used to go to the house of the accused persons for watching television and on the date of occurrence, the first accused forcefully laid her to the bed and when she attempted to escape, the second accused closed the doors and thereafter, the first accused lifted her frock and removed her underwear and he kissed and massaged that part of her body used for urinating and thereafter, inserted a corn shaped blue coloured plastic object into that part of her body used for urinating. The evidence of PW3 shows that she felt pain and attempted to escape from there and at that time, the second accused caught on her hands and the first accused caught on her legs and then sexually assaulted her by using the corn shaped plastic object for some time and subsequently released her after threatening not to disclose the incident to anybody else and if in case she discloses the same to anybody else, they will kill her. It is pertinent to note that the defence has no case that PW3 or her family members had any previous animosity or ill will towards the accused persons, so as to falsely implicate them in a criminal case of this nature.

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Therefore, on a careful re-appreciation of the entire evidence, we find that the acts committed by the accused persons

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definitely come within the definition of ‘rape’ under Section 375 IPC and that the overt acts proved by the prosecution will also establish beyond reasonable doubt that the accused persons committed the offence of sexual assault, aggravated sexual assault and sexual harassment against the minor victim. Therefore, we find that the trial court rightly convicted the accused persons for the offences punishable under Sections 376(2)(i), 363, 366, 506(ii), 366A, 368, 109 and 120B of IPC and Sections 4, 6, 8, 10, 12 and 17 of the Act, 2012.

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We have already found that the prosecution has not succeeded in proving the offence under Section 376(2)(n) of IPC against the accused persons and therefore, we find that the conviction and sentence imposed on the accused persons for the said offence is liable to be set aside.

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Considering the nature of the offences, the age of the victim and the facts and circumstances of the case, we also find no reason to interfere with the sentence imposed on the accused persons for the other offences in the impugned judgment.

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In the result, both the appeals are allowed in part by setting aside the conviction and sentence imposed on the accused persons for the offence under Section 376(2)(n) IPC and confirming the

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conviction and sentence of all other offences as per the impugned judgment. Interlocutory applications, if any pending, shall stand closed.

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sd/-

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P.B. SURESH KUMAR,

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JUDGE.

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sd/- JOHNSON JOHN, JUDGE.