Partly allowed

Moosa Kunnugothi v. the Administrator

Kerala HC22 Feb 2024CRL.A/31/2023

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals filed by two accused persons convicted for POCSO and IPC offences involving the minor daughter of the complainant. While maintaining convictions for kidnapping, wrongful confinement, and sexual assault under the POCSO Act and IPC, the Court set aside the conviction under Section 376(2)(n) IPC as it could not prove repeated offenses.

What did the court decide?

Conviction and sentence for offence under Section 376(2)(n) IPC set aside; convictions and sentences for all other offences confirmed.

Moosa Kunnugothi Vs the Administrator — Child Sexual Offences (POCSO) | Kerala HC (2024)

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Crl. Appeal Nos. 31 & 248 of 2023 : 1 :

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 22^ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 CRL.A NO. 31 OF 2023

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CRIME NO.9/2016 OF MINICOY POLICE STATION, LAKSHADWEEP AGAINST THE JUDGMENT DATED 18.11.2022 IN CC 6/2016 OF SESSIONS COURT (SPECIAL COURT FOR POCSO OFFENCES) , KAVARATTI

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APPELLANT/ACCUSED A1:

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MOOSA KUNNUGOTHI AGED 51 YEARS 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 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 ADV. SRI. SAJITH KUMAR V., SC

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THIS CRIMINAL APPEAL HAVING COME UP BEEN FINALLY HEARD ON 05.02.2024, ALONG WITH CRL.A.248/2023, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:

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Crl. Appeal Nos. 31 & 248 of 2023 : 2 :

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN THURSDAY, THE 22^ND DAY OF FEBRUARY 2024 / 3RD PHALGUNA, 1945 CRL.A NO. 248 OF 2023

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CRIME NO.9/2016 OF MINICOY POLICE STATION, LAKSHADWEEP JUDGMENT DATED 18.11.2022 IN CC 6/2016 OF SESSIONS COURT (SPECIAL COURT FOR POCSO OFFENCES) , KAVARATTI

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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. BY ADVS. R.ROHITH HARISHMA P. THAMPI

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RESPONDENT/COMPLAINANT:

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UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. BY ADV. SRI. SAJITH KUMAR V., SC

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2024, ALONG WITH CRL.A.31/2023, THE COURT ON 22.02.2024 DELIVERED THE FOLLOWING:

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

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Crl. Appeal Nos. 31 & 248 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 first accused in C.C. No. 6 of 2016 of the Court of Sessions, Kavaratti (Special Court for POCSO Offences) filed Crl. Appeal No. 31 of 2023 and the second accused in the said case filed Crl. Appeal No. 248 of 2023 challenging the conviction and sentence imposed on them for the offences under Sections 363, 366, 366A, 368, 376 2(i) and (n), 506, 109 and 120B of IPC and Sections 4, 6, 8, 10, 12, 14 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 during the year 2016, the accused persons entered into a criminal conspiracy to kidnap the minor daughter of PW1 to subject her to sexual activities and to rape her 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 a bed room of the house of the accused persons on 3 different days between 01.03.2016 and 15.03.2016 and when the first

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accused asked the victim to remove her dress, she informed the matter to the second accused and then the second accused wrongfully restrained the victim girl and tied a black cloth covering her eyes and thereafter, they removed the dress of the victim girl and the victim girl heard the first accused asking the second accused to shoot video and thereafter the victim felt pain in that part of her body used for urinating and also in her anus and she felt the accused persons thrusting some object into her anus and vagina.

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It is alleged that the first accused raped the minor girl and also subjected her to carnal intercourse against the order of nature and they took images of the private areas of the victim girl for pornographic purposes and also threatened to cause her death, if in case she discloses the incident to anybody else. It is alleged that the accused persons committed the act by forcibly holding the hands and legs of the victim girl and by covering her eyes with a black cloth and when the victim was released, she saw a mobile phone in the hands of the second accused and the first accused in a naked condition without any dress. It is alleged that the accused persons published and transmitted videos of their sexually explicit acts and images of subjecting the victim to sexual intercourse and carnal intercourse against the order of nature in social media and they are thereby, alleged to have committed the offences as aforesaid.

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Crl. Appeal Nos. 31 & 248 of 2023 : 5 :

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On the basis of Exhibit P1 complaint of PW1, Exhibit P34 FIR was registered by PW16, Sub Inspector of Minicoy Police Station, and after completing the investigation, the final report was filed by PW17 Inspector of Police, Kavaratti 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 120B, 363, 366, 368, 376(2)(i) and (n) and 377, 506 and 109 IPC and Sections 4, 6, 8, 10, 12, 14 and 17 of the Act, 2012 and Sections 66E, 67A and 67B of the Information Technology Act, 2000 (‘Act, 2000’ for short).

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When the charge was read over and explained to the accused, they pleaded not guilty and thereafter, the prosecution examined PWs 1 to 18 and marked Exhibits P1 to P39 and Mos 1 to 4 to prove the case.

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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. From the side of the defence, Exhibit D1 was marked. But, no witness was examined.

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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, found the accused persons not guilty of the offences under Sections 66E, 67A, 67B of the Act, 2000 and the first accused is found guilty of the offences under Sections 120B, 363, 366, 368, 376(2)(i), 376(2)(n), 506(ii) IPC and Sections 4, 6, 8, 10, 12 and 14 of the Act, 2012, and he is convicted and sentenced to undergo rigorous imprisonment for 3 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 punishable 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 punishable 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 further period of one year for the offence punishable 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 punishable under Section 376(2)(n) of IPC; rigorous imprisonment for 5 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 punishable under Section 14 of the Act, 2012; and rigorous imprisonment for two

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years for the offence punishable under Section 506(ii) of IPC. No separate sentences were imposed 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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The second accused is found guilty of the offences punishable under Sections 120B, 363, 366, 366A, 368, 506(ii) of IPC and Section 109 r/w Section 376(2)(i) and 376(2)(n) of IPC and Section 17 r/w Sections 4, 6, 8, 10, 12 and 14 of the Act, 2012. She is convicted and sentenced to undergo rigorous imprisonment for 3 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 punishable 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 2 months for the offence punishable under Section 366 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 one month for the offence punishable 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 punishable 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

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Crl. Appeal Nos. 31 & 248 of 2023 : 8 :

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of one year for the offence punishable under Section 376(2)(n) of IPC; rigorous imprisonment for 5 years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for 1 month for the offence punishable under Section 14 of the Act, 2012; and rigorous imprisonment for 2 years for the offence punishable under Section 506(ii) of IPC. No separate sentences were imposed on her 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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The learned counsel for the appellant/first accused argued that the court below erred in convicting the accused based on the sole testimony of PW2, which suffers from serious contradictions and incongruities with regard to the exact number of times and the time frame of the alleged sexual abuse. It is argued that in the absence of any medical evidence, the version of the victim regarding penetrative sexual assault cannot be relied upon and that the trial court failed to appreciate the facts and evidence in the right perspective and imposed the conviction on probabilities and presumptions.

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The learned counsel for the appellant/second accused 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 its satisfaction with regard to the proficiency of the translator in the language known to the witnesses and the trial court also failed to record the evidence of the material witnesses in the language of the witnesses and therefore, what was exactly stated by the witnesses is not on the record of the trial court. There is no reliable evidence to show that the accused had committed the offence repeatedly 3 times on 3 different days and therefore, the conviction under Section 376(2)(n) is not legally sustainable.

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The learned Standing Counsel argued that the evidence of the minor victim girl regarding the occurrence before the court tallies on all material particulars with her previous statements recorded under Sections 161 and 164 Cr.P.C and no material omission or contradiction is proved by the defence and the evidence of PW2, victim girl, regarding the occurrence is also supported by the evidence of PWs 1, 3, 5, 6 and 8 and the recovery of the material objects under Section 27 of the Indian Evidence Act. It is also argued 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

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therefore, there is no reason to interfere with the findings in the impugned judgment.

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The victim girl is examined as PW2 and she deposed that her date of birth is 01.05.2007 and that the first accused, Moosa, and the second accused, Noorjahan, were residing near to her house at Minicoy and previously, she used to visit their house. The second accused, Noorjahan, took her to their house by saying that she needed her help for chopping the onion and the witness was taken to their bedroom and at that time, the first accused Moosa was there in the bedroom and there was nobody else in the house other than the accused persons and the witness. PW2 stated that the first accused Moosa asked her to remove her pants and when she complained to the second accused, Noorjahan, who was present near the room, the second accused told her that there is no problem and by saying so, she also entered the room and caught the victim.

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PW2 stated that when she raised her voice, the second accused switched on a music player and tied a black cloth covering her eyes. Thereafter, they removed her dress and since her eyes were closed, with a black cloth, she could not see which accused removed her dress; but, the witness heard the first accused asking the second accused to shoot the video. According to PW2, the accused persons did

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something on that part of her body used for urinating and on her anus by touching these parts of her body and she felt pain. PW2 stated that something was thrust into that part of her body used for urinating and into her anus and she felt the same and at the time of occurrence, the accused persons closed the doors of the room and they were also tightly holding her hands and legs and the overacts continued for about one hour.

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When the accused persons released the victim, she removed the black cloth tied around her eyes and then, she saw the second accused, Noorjahan, standing there with a mobile phone in her hand and the first accused standing there without any clothes. PW2 stated that the second accused, was shooting the video and the accused persons threatened her that they will kill her, if in case she discloses the incident to anybody else.

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PW2 stated that after reaching her house, she has not disclosed the incident to anybody else and subsequently, only when her mother questioned her by beating on the pillow, she disclosed the incident to her mother. She stated that when the police questioned her, while she was in the hospital in the presence of her mother and the doctor, she told the incident to the police in Mahal language and

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subsequently, she has also given a statement to the Magistrate regarding the occurrence

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PW1 is the mother of the victim girl and she deposed that the date of birth of her daughter (PW2) is 01.05.2007. According to PW1, she had preferred a complaint in Minicoy Police Station on 01.08.2016 and she identified her handwriting and signature in Exhibit P1 complaint. PW1 stated that the accused persons, Moosa, and his wife, Noorjahan, are her neighbours. PW1 stated that during 2016, the parents of Asika told her not to send her daughter to the house of the accused persons. The parents of Asika also informed the witness that the accused are bad persons and that a video is circulating and also advised the witness to verify whether the daughter of the witness is there in the said video.

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According to PW1, subsequently when she questioned her daughter, initially, her daughter has not disclosed anything. Thereafter on the night of 30.07.2016, her husband told her that he also heard about the video and that he got information that there is a black mole on the breast of the child seen in the video and since her daughter has a black mole on her breast, she again questioned her daughter and at that time, her daughter told her that the second accused, Noorjahan, took her to the house of the accused persons. According to PW1, Noorjahan

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took her daughter first towards the side of the kitchen and thereafter to a room in the house.

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The evidence of PW1 shows that her daughter narrated the incident to her in the same way as PW2 deposed before the court. PW1 further deposed before the court that her daughter told her that after the first incident, the accused persons again took her daughter to their house on 3 other occasions and repeated the acts and when she questioned her daughter as to why she failed to disclose the matter to them, she stated that the accused persons threatened to beat her and kill her, if in case she disclose the matter to anybody else.

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PW3 is the biological father of the victim girl and his evidence shows that his marriage with PW1 was dissolved while PW2 was aged 4 years and subsequently, PW1 married one Shahid and that PW2 was residing with PW1. The evidence of PW3 shows that he has only hearsay information regarding the occurrence. The present husband of PW1 is examined as PW5. PW5 deposed that PW2 is the daughter of PW1 in her first marriage and that the accused persons Moosa and Noorjahan are the neighbours of PW1. According to PW5, he came to know about the incident from PW1 and when he came to know from PW1 that the accused persons sexually assaulted PW2 and about a video clipping in this connection, he told PW1 that one of his friends had seen the said

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video and that there is a black mole on the breast of the child seen in the video and then PW1 questioned PW2 and thereafter informed the witness that PW2 has disclosed the entire matter to PW1 and hence, they decided to prefer a complaint to the police. PW5 stated that he has given Exhibit P8 statement to the Magistrate in this regard and that he is working as a seaman in a ship.

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PW6 is the younger sister of PW1 and her evidence shows that she is residing along with PWs 1, 2 and 5 and that the accused persons are her neighbours. PW6 stated that she came to know about the incident in which the accused persons sexually assaulted PW2 and that the Investigating Officer has recorded her statement in this connection.

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PW4 was the Chief Medical Officer at Government Hospital, Minicoy, who examined the victim on 01.08.2016 and issued Exhibit P6 medical certificate. The evidence of PW4 and Exhibit P6 shows that the victim has narrated the occurrence to the doctor in the same manner as she deposed before the court. According to PW4, there was no clinical finding suggestive of sexual assault as she examined the victim after four months of the occurrence, and that four months’ time is sufficeint to heal any minor injuries suffered to peripheral parts of the vagina at the time of the alleged incident. PW4 stated that the absence of clinical

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evidence is not sufficient to arrive at a conclusion that there was no sexual assault.

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The evidence of PW4 shows that the Investigating Officer recorded the statement of the victim in her presence and the mother of the victim was also present at that time. According to PW4, the child has given the statement in Mahal language. PW4 stated that she can speak and understand Mahal. PW4 also stated that she handed over the items mentioned in column No. 16 of Exhibit P6 to the Investigating Officer and also signed Exhibit P7 seizure mahazar prepared by the Investigating Officer as a witness.

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The learned counsel for the appellant/first accused argued that the evidence of PW2 regarding the occurrence does not tally with Exhibit P1 complaint and the same is also not supported by any medical evidence. It is pointed out that in Exhibit P1, it is alleged that the accused persons sexually abused the daughter of PW1 frequently and the specific case of the prosecution is that the victim was wrongfully confined in the bedroom of the house of the accused persons on 3 different days and that the accused persons repeated all the overtacts committed on the first occasion on the subsequent 3 different days between 01.03.2016 and 15.03.2016. But, in cross examination, PW2 has categorically admitted that the accused persons subjected her to

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sexual assault only on one day and there was no such incident on any day before or after the occurrence narrated by her in the chief examination.

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The evidence of PW1, the mother of the victim, would clearly show that when she came to know that the video of a child having a black mole on the breast is circulating, she questioned her daughter as her daughter is having a black mole on her breast. But, initially, PW2 has not disclosed anything regarding the occurrence and subsequently, she also discussed the matter with her husband and thereafter again questioned her daughter and only then PW2 disclosed the incident to PW1. It can be seen from the evidence of PW1 that the victim was reluctant to disclose the incident, as she was threatened by the accused persons that they will beat and kill her, if in case she discloses the incident to anybody else. From the evidence of PWs 1, 3, 5 and 6, it is clear that PW1 preferred Exhibit P1 complaint to the police on the basis of the information she gathered from PW2 and from the circumstances, there was every reason for PW1 to suspect that the accused persons subjected her daughter to sexual assault frequently and merely because PW1 mentioned the same in Exhibit P1 complaint, it cannot be held that the same will affect the trustworthiness of the evidence of PWs 1 and 2 regarding the occurrence.

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It is well settled 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, as held by the Hon'ble Supreme Court in Rafiq v. State of U.P. [1980 (4) SCC 262]. However, it is well settled that in order to base a conviction solely on the evidence of the rape victim, such evidence shall be of a 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 such a witness, as held by the Honourable Supreme Court in Rai Sandeep v. State (NCT of Delhi) , (2012) 8 SCC 21 . In paragraph 22 of the said judgment, the Honourable Supreme Court held thus:

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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 cross-examination 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

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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 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 cannot be disputed that the testimony of the victim of sexual assault is more reliable than that of an injured witness, unless there are compelling reasons which necessitate looking for corroboration of her statement, 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 is found to be reliable. In this case, even though PWs 1 and 2 were seriously cross examined, no material contradiction or omission is brought out. In the absence of any serious contradiction, omission or exaggeration in the evidence of the

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prosecutrix, we find that her 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 the material witnesses with the help of a translator without recording a satisfaction with regard to the proficiency of the translator in the language known to the witnesses and also failed to record the evidence in the language of the witnesses and therefore, what exactly deposed by the witnesses 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 gives evidence in English and is taken down as such,

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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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For a proper analysis of the contention of the appellant/second

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accused about the language of the witnesses and the procedure adopted by the trial court, it is also necessary to consider the evidence of PWs 9 and 15. PW9 deposed before the court that he is a native of Minicoy and working as Copy Editor Mahal at Government Press, Lakshadweep. PW9

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stated that the Investigating Officer recorded the statement of PW2 in this case with his assistance and that the questions put by the Investigating Officer in English were translated to the witness in Mahal and the answers given by the witness in Mahal were recorded by him in Mahal and also translated to English and thereafter, handed over to the Investigating Officer. The evidence of PW9 shows that the statement of the victim girl was recorded at Government Hospital, Minicoy and he has read over the statement in Mahal to the witness and at that time, Woman Police Contestable, Rasia Begum, Dr. Shahida and the mother of the victim were also present. According to PW9, he also assisted the Investigating Officer for recording the statements of 4 other witnesses in this case in the same manner.

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The then Judicial First Class Magistrate, Androth, who recorded the 164 statements of the victim and other material witnesses, is examined as PW15. He deposed that on 08.08.2016, he recorded the statement of the victim with the assistance of the translator Mr. Mohammed Anapprkegothi. According to PW15, he interacted with the translator and found that he i`s capable of translating Malayalam to Mahal and therefore, after administering the oath to the translator and witness, the statement of the victim was recorded and the same is marked as Exhibit P4. The 164 statement of the mother of the victim (PW1) recorded by PW15 is marked as Exhibit P2. The evidence of PW15

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shows that PW1, the mother of the victim, was able to speak Malayalam language and therefore, after conducting enquiry regarding her willingness to give the statement, he recorded her 164 statement in Malayalam. PW15 deposed that the biological father of the victim (PW3) was also able to speak in Malayalam and Hindi and therefore, after conducting an enquiry on his willingness to give the statement, he recorded his statement in Malayalam and the same is marked as Exhibit P5. PW15 also recorded the 164 statement of PW5 in Malayalam after ascertaining from the witness that he knows Malayalam.

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Sections 276 and 277 of 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.]

¶105

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

¶106

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

¶107

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

¶109

(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;

¶110

(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:

¶111

Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation.”

¶112

A perusal of the evidence of PWs 1 and 2 recorded by the trial court shows that the witnesses were examined with the assistance of Ms. Rasheeda C.P., Mahal translator, after administering oath to the translator and the witness. The depositions of PWs 1 and 2 are recorded in Malayalam, which is the language of the court. It is not in dispute that the trial court complied Rules 52 and 53 of the Criminal Rules of Practice, as oath is administered to the interpreter and the witness before recording the evidence and the appellant/accused has no case that the interpreter was a police officer and therefore, there is also no violation of Rule 54 of the Criminal Rules of Practice.

¶113

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¶114

It is true that the Honourable Supreme Court has observed in Naim Ahamed’s case that recording of the 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 vernacular language, is not permissible. In the case on hand, PWs 1 and 2 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. A perusal of the evidence of PWs 1 and 2 clearly shows that during the course of trial, no question was raised as to what exactly the witness had stated in her evidence.

¶115

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 PWs 1 and 2 in their language, is not legally sustainable.

¶116

The learned counsel for the appellants argued that the prosecution has not adduced any evidence in this case to prove the

¶117

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¶118

offence under Section 376(2)(n) of IPC and that PW2 has categorically admitted in cross examination that the accused persons subjected her to sexual assault only on one day and that there was no such occurrence before or after the said incident and therefore, it cannot be held that the prosecution has proved the commission of rape on the same woman repeatedly. On a careful re-appreciation of the evidence of PW2, we find that there is no evidence to prove the offence under Section 376(2) (n) IPC and therefore, the conviction and sentence imposed on the accused persons for the said offence is liable to be set aside.

¶119

PW16 was the Sub Inspector of Minicoy Police Station, who registered Exhibit P34 FIR on the basis of Exhibit P1 complaint of PW1 on 01.08.2016. According to PW16, along with Exhibit P1 complaint, PW1 also handed over a CD and the same is identified and marked as MO1. Exhibits P36 and P37 are the scene mahazar and the sketch prepared by PW16. According to PW16, he prepared Exhibit P38, requisition for the medical examination of the victim and also took steps for recording the statement of the victim under Section 24 of the Act, 2012 with the assistance of PW9.

¶120

PW14 deposed that while working as Head Constable at Lakshadweep as per the direction from the police Headquarters, he proceeded to Cochin on 03.08.2016, and on 04.08.2016, he arrested the

¶121

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¶122

second accused from the house of her sister at Kaloor in Ernakulam in the presence of the Woman Police Constable, Lilly John. The custody memo, arrest memo and inspection memo of the second accused are marked as Exhibits P12 to P14. The evidence of PW14 shows that he produced the second accused before the Judicial First Class Magistrate, Aluva, and Exhibit P25 is the copy of the proceedings of the Judicial First Class Magistrate-II, Aluva dated 04.08.2016. Exhibit P25 shows that the second accused is remanded to judicial custody at District Jail, Kakkanad till 06.08.2016 as an interim measure till transit with a direction to produce the accused before the concerned court on or before 09.08.2016. According to PW14, subsequently, he took the second accused to Kavaratti in the first ship and handed over her to the Investigating Officer for producing before the court.

¶123

The evidence of PW16 shows that he obtained police custody of the second accused and on the basis of the disclosure statement of the second accused that things including artificial penis, vibrator, plastic ball, condoms, lubricant gell etc. are kept in her house at Bandaragothi in Minicoy and that 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 her house and the

¶124

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¶125

same were seized by preparing Exhibit P9 seizure memo and P10 property list. PW16 also identified MO2 vibratory plastic ball, MO3, artificial penis and MO4 lubricant gel as the material objects recovered as per the disclosure statement of the second accused.

¶126

The evidence of PW16 shows that on the basis of the disclosure statement of the second accused that the mobile phones, sim cards, memory cards, ATM cards, debits cards, shopping cards, Election ID cards, driving licence, aadhar cards, cheque leaves, stamp papers, and diaries of the second accused and her husband, first accused, are kept in a shelf in the house of her elder sister at Elamakkara, he proceeded to the said house along with the second accused at 11.15 a.m. on 13.08.2016 and recovered the items by preparing Exhibit P15 seizure mahazar. PW16 deposed that he arrested the first accused from Cochin Airport on 14.08.2016 and the arrest memo, inspection memo and custody memo are marked as Exhibits P16, P17 and P18 respectively.

¶127

PW7 was the Vice Chairperson of Minicoy Dweep Panchayat, who was in charge of the Chairman on 12.08.2016. His evidence shows that as per the request of the Investigating Officer, he also went to the house of the second accused and witnessed the recovery of sex toys and other articles as per Exhibits P9 and P10. PW7 also identified his

¶128

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¶129

signature in Exhibits P9 and P10. His evidence further shows that the second accused was also present at the time of effecting the recovery.

¶130

PW8 is a native of Minicoy Island and according to him, on 13.08.2016, he signed two documents prepared by the police. PW8 admitted his signature in Exhibit P11 seizure mahazar. But he would say that he signed the documents, while he was in a hotel room and he was declared hostile to the prosecution. The evidence of PW8 shows that he was present at Elamakkara in Ernakulam on 13.08.2016 and that the accused persons are known to him. He also stated that the second accused is the wife of the first accused and that the first accused was formerly a seaman. He also admitted that the sister of the second accused is residing in Elamakkara. But, he denied the suggestion that he was present in the house of the sister of the second accused on 13.08.2016 when the Investigating Officer along with the second accused came to that house and effected the recovery. However, PW8 admitted that he worked as a seaman. But, he denied the suggestion that he is falsely deposing to help the first accused, who is his former colleague.

¶131

PW10 is the elder sister of the second accused and she admitted that she owns a house at Elamakkara in Ernakulam. PW10 stated that the second accused was arrested, while she was residing at a

¶132

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¶133

rented house in Ernakulam and she also identified her signature in the custody memo, arrest memo and inspection memo of the second accused marked as Exhibits P12 to P14. But, she would say that she signed Exhibits P12 to 14, while she was in Elamakkara Police Station. According to PW10, she reached the Police Station on getting information regarding the arrest of the second accused. PW11 was working as Police Constable in Minicoy Police Station on 13.08.2016, and his evidence shows that he also accompanied the Investigating Officer to Cochin along with the second accused and that he was also present at the time of effecting recovery as per Exhibits P11 and P15 seizure mahazars. According to PW11, he was also present, when the first accused was arrested from Nedumbassery Airport on 14.08.2016. PW11 identified his signature in the arrest memo, inspection memo and the custody memo of the first accused marked as Exhibit P16 to P18.

¶134

PW12 was a Police Constable at Minicoy Police Station and his evidence shows that he was also present when the Investigating Officer effected recovery from the house of the second accused as per Exhibit P20 seizure mahazar.

¶135

PW13 was the Medical Superintendent of Indira Gandhi Hospital, Kavaratti, who examined the first accused on 16.08.2016 and issued Exhibits P21 and P22 medical certificates. According to PW13, the

¶136

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¶137

first accused, Moosa Kunnugothi, complained of pain over left hand; but the x-ray revealed that there was no fracture and he issued Exhibit P21 certificate in this regard. PW13 also examined the first accused to determine his ability to perform sexual acts and issued Exhibit P22 potency certificate stating that there is nothing to suggest that he is incapable of performing sexual acts.

¶138

PWs 1 and 2 categorically deposed in chief examination that the date of birth of PW2 is 01.05.2007 and the copy of the birth certificate of PW2 is marked as Exhibit P2 through PW1 and the said evidence is not challenged in cross examination. The Registrar of Birth and Death of Kavaratti is examined as PW18 and the birth certificate of PW2 is marked as Exhibit P39. PW8 also deposed that as per Exhibit P39, the date of birth is 01.05.2007. The evidence of PW8 in this regard is also not challenged in cross examination.

¶139

It is well settled that the determination of the date of birth of a person before a court of law, whether in civil or criminal proceedings, would depend upon the facts and circumstances of each case. In Ravinder Singh Gorkhi v. State of U.P. , (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

¶140

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¶141

Section 35 of the Indian Evidence Act. We find that Exhibit P39, birth certificate of the victim, and the evidence of PWs 1 and 8 proves beyond reasonable doubt that the date of birth of the victim is 01.05.2007 and that she was a child in terms of the provisions contained in the Act, 2012 at the time of occurrence.

¶142

The next question to be considered is whether the prosecution has proved beyond reasonable doubt that the acts committed by the accused persons will amount to ‘rape’ as defined under Section 375 IPC and ‘sexual assault’ and ‘sexual harassment’ as defined in the Act, 2012.

¶143

In this regard, 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 PW2 shows that the second accused took her to their house by seeking her help for chopping onion and after taking the witness to their bedroom, the accused persons blindfolded the victim by tying a black cloth around her eyes and thereafter, removed her dress and manipulated her private parts and the victim felt pain on her private parts and the evidence of PW2 further shows that the accused persons thrust something into her private parts and also took video of her naked body and that the accused persons committed the overt acts after closing the doors of the room and tightly holding the hands and legs of the victim.

¶144

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¶145

Therefore, on a careful re-appreciation of the evidence of PW2, we find that the acts committed by the accused persons 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.

¶146

It is also in evidence that at the time of occurrence, the accused persons took a video for pornographic purposes and that the second accused instigated and intentionally aided the first accused and thereby, abetted the commission of the offences by the first accused and in that circumstance, we find that the court below rightly convicted the first accused for the offences punishable under Sections 120B, 363, 366, 368, 376(2)(i), 506(ii) IPC and Sections 4, 6, 8, 10, 12 and 14 of the Act, 2012 and the second accused for the offences punishable under Sections 120B, 363, 366, 366A, 368, 506(ii) of IPC and Section 109 r/w Section 376(2)(i) of IPC and Section 17 r/w Sections 4, 6, 8, 10, 12 and 14 of the Act, 2012. 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.

¶147

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¶148

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.

¶149

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

¶150

sd/-

¶151

P.B. SURESH KUMAR, JUDGE.

¶152

sd/- JOHNSON JOHN, JUDGE.

¶153

Moosa Kunnugothi v. the Administrator

Case brief

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Moosa Kunnugothi v. the Administrator

Case brief

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