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2020 DIGILAW 441 (KER)

Pramod v. State of Kerala

2020-05-28

P.B.SURESH KUMAR

body2020
JUDGMENT : P.B. Suresh Kumar, J. 1. This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C. No. 1362 of 2016 on the files of the Additional Sessions Judge, Thiruvananthapuram. The appellant is the sole accused in the case. 2. The accusation in the case is that on 19.09.2016, at about 6.00 am, while the victim boy aged 11 years was proceeding from his house to a tuition centre, the accused abducted him to a remote place and committed penetrative sexual assault and carnal intercourse against the order of nature on him by kissing him and also by passing his penis into the anus of the victim boy, and thereby committed the offences punishable under Sections 363 and 377 of the Indian Penal Code (the IPC) and Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). 3. On the accused pleading not guilty of the charges, the prosecution examined 11 witnesses as PW1 to PW11 and proved 11 documents as Exts. P1 to P11. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence. 4. Among the witnesses examined, PW1 is the mother of the victim boy. She has proved Ext. P1 First Information Statement. PW2 is the victim boy. PW3 is the uncle of the victim boy, the brother of PW1. PW4 is the doctor who issued Ext. P2 potency certificate after examining the accused. PW5 is the person who brought back the victim boy to his house from the road near the place of occurrence where the boy was found standing after the occurrence. PW6 is the tuition teacher of the victim boy. PW7 is the attester to Ext. P3 scene mahazer. PW8 is the police officer who registered the First Information Report. PW9 is the police officer who conducted the investigation in the case. PW9 has proved Ext. P5 scene mahazer, Ext. P6 arrest memo, Ext. P7 inspection memo, Ext. PW6 is the tuition teacher of the victim boy. PW7 is the attester to Ext. P3 scene mahazer. PW8 is the police officer who registered the First Information Report. PW9 is the police officer who conducted the investigation in the case. PW9 has proved Ext. P5 scene mahazer, Ext. P6 arrest memo, Ext. P7 inspection memo, Ext. P8 arrest intimation as also Ext. P9 report indicating the particulars of the accused. PW10 was the then Medical Superintendent of the Taluk Headquarters Hospital, Chirayinkeezhu, where the medical examination of the victim boy was conducted on a reference from the police. Ext. P10 wound certificate was proved through PW10. PW11 is the Secretary of the Grama Panchayat concerned, who issued certified copy of the birth certificate of the victim boy. 5. On an appraisal of the evidence on record, the court below found that the prosecution has established beyond doubt that the accused has committed penetrative sexual assault and carnal intercourse against the order of nature on the victim boy and thereby committed the offences punishable under Sections 363 and 377 of the IPC and Section 3 read with Section 4 of the POCSO Act. The accused was consequently convicted for the aforesaid offences and was sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 363 of the IPC. He was also sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 377 of the IPC. He was also sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo simple imprisonment for six months under Section 3 read with Section 4 of the POCSO Act. The court also ordered that the sentences of imprisonment imposed on the accused will run concurrently. The accused is aggrieved by the conviction and sentence imposed on him. 6. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 7. The court also ordered that the sentences of imprisonment imposed on the accused will run concurrently. The accused is aggrieved by the conviction and sentence imposed on him. 6. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 7. Shri M.H. Asif Ali, the learned counsel for the appellant submitted that the view taken by the court below that the small fissure found on rectal examination in the posterior aspect of the anal canal of the victim boy corroborates the case of carnal intercourse set out by the prosecution, is incorrect and unsustainable. It was pointed out by the learned counsel that the fact that the medical examination was conducted about 30 hours after the alleged occurrence and the categoric evidence tendered by PW10 that the fissure on the anal canal of the victim boy might have been one caused within 4 to 6 hours prior to the rectal examination were not taken note of by the court below while taking the aforesaid view. It was also pointed out by the learned counsel that it is the admitted case of the prosecution that the victim boy was taken to a hospital at Vakkom immediately after he was traced out, and the victim boy has deposed that he narrated the occurrence to the doctor who examined him in that hospital. It was pointed out by the learned counsel that it was thereafter that the matter was reported to the Police and the case was registered accordingly. According to the learned counsel, had the victim boy narrated the occurrence to the doctor in the hospital at Vakkom, the said doctor would have certainly informed the matter to the police, especially in the light of the obligation cast on him under Section 19 of the POCSO Act, and in the absence of any evidence to the effect that the doctor had informed the matter to the police, it shall be inferred that the alleged occurrence is a false one. It was also contended by the learned counsel that the medical records in the hospital at Vakkom would have revealed the real facts and the prosecution has neither caused production of the same nor examined the doctor in the said hospital as a witness in the proceedings. It was also contended by the learned counsel that the medical records in the hospital at Vakkom would have revealed the real facts and the prosecution has neither caused production of the same nor examined the doctor in the said hospital as a witness in the proceedings. It was strenuously contended by the learned counsel that non production of the medical records of the said hospital and non examination of the doctor in the hospital would certainly create a doubt as to the genuineness of the prosecution case and the benefit of the same has to be given to the accused. It was also contended by the learned counsel that the victim did not have a case that the accused has committed penetrative sexual assault, in the statement given by him to the police and that in the said statement, the case set out was only that the accused has made an attempt for the same. According to the learned counsel, the said circumstance would also create a doubt as to the genuineness of the prosecution case. It was also pointed out by the learned counsel that going by the prosecution case, the victim boy and his relatives had no previous acquaintance with the accused and therefore, it was obligatory for the prosecution to establish the identity of the accused beyond doubt in the proceedings. It was further pointed out by the learned counsel that the accused was identified by the victim boy at the Police Station after he was apprehended by the Police. According to the learned counsel, in a case of this nature, insofar as the victim boy had no previous acquaintance with the accused, a test identification parade should have been conducted by the Police so as to ensure the correctness of the identity of the accused. There was no test identification parade, and in the absence of a test identification parade, on the facts of this case, it cannot be said that the prosecution has established the identity of the accused, submits the counsel. 8. Per contra, the learned Public Prosecutor submitted that the contention that the fissure found on the anal canal of the victim boy was not one attributable to the alleged occurrence is taken, taking advantage of the expression "fresh injury" used in the context of the said injury in Ext. 8. Per contra, the learned Public Prosecutor submitted that the contention that the fissure found on the anal canal of the victim boy was not one attributable to the alleged occurrence is taken, taking advantage of the expression "fresh injury" used in the context of the said injury in Ext. P10 wound certificate and having regard to the evidence tendered by PW10 doctor that the said expression is used to denote injuries caused within 4 to 6 hours. According to the learned Public prosecutor, the aforesaid expression would only mean that the injury was not a healed one, and merely for the reason that the said expression has been used in Ext. P10 wound certificate, it cannot be said that the injury is not attributable to the alleged sexual assault took place on the previous day. It was also contended by the learned Public Prosecutor that PW3, the uncle of the victim boy who took the victim boy to the hospital at Vakkom on the same day has clarified in his evidence that the victim boy was taken to the said hospital since a few injuries were found on his face and he has not disclosed to the doctor then that the victim boy was sexually assaulted, for it was after coming back from the hospital that the victim boy has divulged about the sexual assault to which he was subjected to. According to the learned Public Prosecutor, there is, therefore, no force in the submission made by the learned counsel for the appellant that the non-examination of the doctor who has examined the victim boy at the hospital at Vakkom and non-production of the medical records of the said hospital are fatal to the prosecution case. It was also contended by the learned Public Prosecutor, placing reliance on the evidence of PW3 that on the date of occurrence, after the boy was taken back from the hospital at Vakkom, PW3 took the victim boy in his car to the places near the scene of occurrence in search of the accused and it is in the course of the said search that the victim boy has identified the accused near his house. It was also pointed out by the learned Public Prosecutor that the police has apprehended the accused thereafter and therefore, there is no force in the argument raised by the learned counsel for the appellant as regards the identity of the accused as well. 9. The point arising for consideration is whether the prosecution has proved the guilt of the accused under Sections 363 and 377 of the IPC and Section 3 read with Section 4 of the POCSO Act. 10. Before dealing with the contentions advanced by the learned counsel for the appellant, it is necessary to refer to the evidence let in by the prosecution to establish the guilt of the accused. PW1, the mother of the victim boy has deposed that the victim boy used to attend a tuition class near their residence before he goes to the school and that he leaves home for the said purpose at about 5.45 a.m. in bicycle everyday. PW1 has also deposed that the victim boy would come back after the tuition by about 7.30 a.m. and it is thereafter that he goes to the school. PW1 has also deposed that on the date of occurrence, though the victim boy has gone for tuition as usual at 5.45 a.m., he did not come back after the tuition and when she made enquiries with the tuition teacher, she was informed that the boy did not attend tuition on that day. PW1 has also deposed that while she was making frantic enquiries about her son, at about 12.30 pm, he was dropped by one of her relatives at her house. PW1 has also deposed that when the victim boy was brought back, he appeared extremely tired and exhausted and after some time when she questioned him, he narrated the occurrence to her and that the matter was accordingly informed to the police. In cross examination, PW1 has stated that the victim boy was taken to the hospital at Vakkom by her brother, PW3. PW2, the victim boy has also deposed in tune with the evidence let in by PW1, his mother, as regards his daily routine. In cross examination, PW1 has stated that the victim boy was taken to the hospital at Vakkom by her brother, PW3. PW2, the victim boy has also deposed in tune with the evidence let in by PW1, his mother, as regards his daily routine. He has also deposed that on the date of occurrence, when he was waiting near the nearby railway gate on his way to the tuition centre, the accused approached him and informed that his mother required the accused to take him back home and that he accordingly, accompanied him. PW2 has also deposed that the accused took him thereupon to a place near a lake and by force removed his clothes and passed his penis into his anus. PW2 has also deposed that when he cried aloud, the accused left him after some time at the nearby public road and left the place informing him that he will come back soon. PW2 has also deposed that while so, he found a distant relative of him and that relative dropped him back at his house. PW2 has also deposed that when he arrived at his house, he was taken to a hospital at Vakkom by his uncle, PW3. He has also deposed that on the next day, he was taken to the Police Station and from there, he was referred to a hospital at Chirayinkeezhu. PW2 has also clarified that earlier, after coming from the hospital at Vakkom, his uncle took him to various places in search of the accused and they found, in the course of their search, the bicycle of the accused, and the accused near the bicycle. PW2 has also identified the accused in court. PW3, the uncle of the victim boy deposed that on the date of occurrence, since the boy did not come back from the tuition centre at the usual time, he went in search of the boy to so many places and while so, he was informed that the boy has come back to the house. PW3 has also deposed that he took the boy thereupon to the hospital at Vakkom as a few injuries were found on his face and as he was found exhausted. PW3 has also deposed that he took the boy thereupon to the hospital at Vakkom as a few injuries were found on his face and as he was found exhausted. It was also deposed by PW3 that thereupon, he took the boy in his car and went in search of the accused and while so, they located the accused near his house and on seeing them, the accused rushed inside his house. PW4, the doctor who examined the accused and issued Ext. P2 potency certificate has deposed that on examination, he did not find anything to suggest that the accused is incapable of performing sexual intercourse. PW5 deposed that P.Ws. 1 and 2 are known to him and he saw PW2 at the junction near the lake with the bicycle. PW5 has also deposed that when he enquired with the victim boy as to the reason for standing at that place, his eyes filled with tears and the boy informed him that he does not know the way back to his house. PW5 has also deposed that the victim boy told him that one person took him to that place in the pretext that his mother instructed him to do so and then left him in that place and went off. PW5 has also deposed that the boy told him then that the said person had removed his clothes and did something. PW5 has also stated that having understood that the boy has been abused, he left him back at his house. PW6, the tuition teacher of the victim boy has deposed that the victim boy used to attend the tuition class in the morning at about 5.50 a.m. and on the date of occurrence, the boy did not turn up for tuition and that he informed so to his mother when she called him. PW10, the Superintendent of the Government Taluk Headquarters Hospital, Chirayinkeezhu deposed that Ext. P10 wound certificate is one issued from the said hospital by Dr. Sreeraj V.S., after examining the victim boy on 20.9.2016. PW10 has also deposed that in Ext. P10, the injuries, viz, linear abrasions found on the left side of the face and on the left ear base of the victim boy are noted. P10 wound certificate is one issued from the said hospital by Dr. Sreeraj V.S., after examining the victim boy on 20.9.2016. PW10 has also deposed that in Ext. P10, the injuries, viz, linear abrasions found on the left side of the face and on the left ear base of the victim boy are noted. PW10 has also deposed that on rectal examination of the victim boy, a fissure in the posterior aspect of his anal canal was found and the said injury was also noted in Ext. P10. PW10 has also stated in her evidence that it was recorded in Ext. P10 that the digital examination of the anal canal of the victim boy was painful. 11. PW1, the mother of the victim boy has not seen the occurrence. However, it has been established through her evidence that though the victim boy left home on the relevant day for tuition at about 5.45 a.m., he did not attend the tuition class; that the victim boy has not come back on that day after the tuition at the usual time; that she has informed the matter to her relatives immediately; that all of them started searching for the boy; that the boy was dropped back at her house while so, at about 12.30 p.m. by one of her relatives; that when the boy came back, he appeared tired and exhausted; that the victim boy has narrated the occurrence to PW1; that the boy was taken to the hospital at Vakkom by her brother in the meanwhile and that the matter was informed later by her to the police. The aforesaid evidence tendered by PW1 has not been discredited in any manner. Coming to the evidence of the victim boy, as noted, he has narrated the occurrence categorically. He has also narrated about his examination at the hospital at Vakkom and stated that he was taken thereafter by his uncle in search of the accused and they located the accused in the course of the search. As noted, PW2 has also identified the accused in court. As PW2 was a child witness, the court made an enquiry and found that he is a boy who is able to understand the questions put to him and give rational answers for the same. As noted, PW2 has also identified the accused in court. As PW2 was a child witness, the court made an enquiry and found that he is a boy who is able to understand the questions put to him and give rational answers for the same. On a reading of the evidence of PW2, I also found that the court below was right in arriving at the aforesaid conclusion. The evidence tendered by the victim boy appeared to me also to be very convincing and he was not discredited at all in the thorough cross-examination to which he was subjected to. Similarly, the evidence tendered by PW3, the uncle of the victim boy, PW4, the doctor who examined the accused to ascertain his ability to perform sexual intercourse, PW5, the person who dropped the victim boy back at his house, PW6, the tuition teacher of the victim boy and PW10, the doctor who proved Ext. P10 wound certificate, all of which would corroborate the evidence of PW1 and PW2, have also not been discredited in any manner. In short, I am in agreement with the finding rendered by the court below that the prosecution has established beyond doubt that the accused has, on 19.9.2016, at about 6 a.m., abducted the victim boy to the place of occurrence and committed penetrative sexual assault and carnal intercourse against the order of nature with him. 12. Now, I shall deal with the contentions advanced by the learned counsel for the appellant. It is seen that PW10 Doctor has though stated in cross-examination that a fissure in the nature of one found in the anal canal of the victim boy could be caused on account of acute constipation, she has clarified later that the fissure found on the anal canal of the victim boy is not one caused on account of constipation. In cross examination, to a specific question put by the learned counsel for the appellant, PW10 deposed that the expression 'fresh injury' is used to indicate injuries caused within 5 to 6 hours. It is placing reliance on the said evidence of the doctor that the learned counsel for the appellant has contended that the fissure found on the body of the victim boy by the doctor at the time of his examination about thirty hours after the alleged occurrence cannot be attributed to the alleged occurrence. It is placing reliance on the said evidence of the doctor that the learned counsel for the appellant has contended that the fissure found on the body of the victim boy by the doctor at the time of his examination about thirty hours after the alleged occurrence cannot be attributed to the alleged occurrence. I do not find any substance in this argument. True, it is narrated in Ext. P10 certificate that the fissure noted in the anal canal of the victim boy by the doctor who examined him was a fresh injury. The authorities on medical jurisprudence including Modi's text book of Medical Jurisprudence and Toxicology do not give any definition for a fresh injury in the context of a fissure. On the other hand, the authorities give only indications to determine the age of injuries based on its nature of appearance. The expression 'fresh injury' in Ext. P10, in the circumstances, can only be understood as a relative expression made by the doctor who examined the victim boy. As such, merely for the reason that PW10 gave a different meaning for the expression 'fresh injury', it cannot be said that the said injury is not attributable to the sexual assault alleged against the accused. 13. To a question put by the learned counsel for the appellant in cross-examination, the victim boy has answered thus: xxx It is placing reliance on the said answer that the learned counsel for the appellant contended that had the victim boy narrated the occurrence to the doctor, the said doctor would have certainly informed the matter to the police. First of all, it is not clear as to what was the question to which the victim boy has given the above answer. In other words, there is ambiguity as regards the disclosure made by the victim boy to the doctor. Be that as it may. It has come out that it is PW3 who has taken the victim boy to the hospital at Vakkom. He has categorically stated in cross-examination that it was on account of the injuries noticed on the face of the victim boy and since the victim boy appeared frightened and weak, he took the boy to the hospital at Vakkom. PW3 has stated clearly that he has not disclosed to the doctor about the assault to which the boy was subjected to. PW3 has stated clearly that he has not disclosed to the doctor about the assault to which the boy was subjected to. It was also clarified by PW3 that the doctor did not examine the boy much, since there were lot of other patients in the hospital. It was also clarified by PW3 that the boy divulged about the sexual assault only thereafter. In the light of the categoric evidence tendered by PW3, I do not find any substance in the aforesaid contention. For the very same reasons, I do not find any substance in the contention that non production of the medical records of the said hospital and non examination of the doctor therein are fatal to the prosecution case. 14. There is no substance in the contention of the learned counsel for the appellant that the victim boy did not have a case that the accused has committed penetrative sexual assault on him in the statement given to the police, for, the victim boy was neither cross-examined by the appellant as to the aforesaid omission in the alleged previous statement as provided for under Section 145 of the Evidence Act nor any question was put by the appellant as regards the same to the investigating officer who has recorded the previous statement. 15. As regards the contention advanced by the learned counsel for the appellant relating to the identity of the accused, I must state at the outset that it is a case where the prosecution has given categoric evidence to the effect that when the victim boy disclosed about the sexual assault, PW3, the uncle of the victim took him in his car and conducted a thorough search in the locality and in the course of the search, they found the bicycle of the accused, and the accused near the bicycle. The evidence tendered by PW3 in this regard also indicates that on seeing the boy, the accused ran inside his house. It has come out that later, the Police apprehended the accused based on their complaint and the victim boy has identified the accused once again thereafter. As noted, the victim boy has identified the accused in court as well. True, the investigating officer has not conducted any test identification parade. It has come out that later, the Police apprehended the accused based on their complaint and the victim boy has identified the accused once again thereafter. As noted, the victim boy has identified the accused in court as well. True, the investigating officer has not conducted any test identification parade. But, it is trite that absence of test identification parade is not fatal at all to the prosecution when there is convincing evidence as to the identity of the accused. Further, in a case of this nature, where the victim boy had sufficient opportunity to see the person who assaulted him, and when he identifies the accused later, there is absolutely no reason to suspect the identification made by him, especially since incidents of this nature happening at the tender age of children would never ever be forgotten by them. There is, therefore, no substance in this argument as well. The criminal appeal, in the circumstances, is without merits and the same is, accordingly, dismissed.