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2020 DIGILAW 579 (KER)

Pradeep P. P. v. State of Kerala

2020-07-07

P.B.SURESH KUMAR

body2020
JUDGMENT : P.B. Suresh Kumar, J. 1. The sole accused in S.C. No. 723 of 2017 on the files of the Additional Sessions Court, Ernakulam is the appellant in this appeal, which is preferred challenging his conviction and the sentence in the said case. 2. The accusation in the case is that on 13.05.2017 at about 14 hours, the accused sucked the vagina and bite the belly of the victim girl aged 6 years with sexual intent after removing her dress and thereby committed the offences punishable under Sections 376(2)(i) of the Indian Penal Code (the IPC) and Section 5(m) read with Section 6 and also Section 9(m) read with Section 10 of the Protection of Children from Sexual Offences Act (the POCSO Act). 3. On the accused pleading not guilty of the charges, the prosecution examined 12 witnesses as PW1 to PW12 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 consider 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 thereupon examined a witness on his side as DW1. 4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl herself. PW2 is the father of the victim girl. PW2 has proved Ext.P1 First Information Statement and Ext.P2 copy of the rent agreement in respect of his house. PW3 is the mother of the victim girl. PW4 is the doctor who examined the accused and issued Ext.P3 potency certificate. PW5 is the doctor who examined the victim girl and issued Ext.P4 report of medical examination. PW6 is the brother of PW2 who is a witness to Ext.P5 scene Mahazar. PW7 is the Registrar of Births and Deaths who issued Ext.P6 birth certificate of the victim girl. PW8 is the Village Official who issued Ext.P7 site plan. PW9 is the Judicial Magistrate who recorded Ext.P8 statement of the victim girl under Section 164 of the Code. PW10 is the police official who recorded the statement of the victim girl. PW11 is the police official who registered Ext.P9 First Information Report. PW8 is the Village Official who issued Ext.P7 site plan. PW9 is the Judicial Magistrate who recorded Ext.P8 statement of the victim girl under Section 164 of the Code. PW10 is the police official who recorded the statement of the victim girl. PW11 is the police official who registered Ext.P9 First Information Report. PW12 is the Investigating Officer in the case. PW12 has proved Ext.P10 arrest memo, Ext.P10(a) inspection memo, Ext.P10(b) custody memo and Ext.P11 report. 5. DW1 examined on the side of the defence is a person who is residing in the neighbourhood of the house of the victim girl. 6. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and Section 5(m) read with Section 6 and Section 9(m) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) and convicted him for the said offences and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence punishable under Section 376(2)(i) of the IPC. Similarly, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months for the offence punishable under Section 9(m) read with Section 10 of the Act. Separate sentence was not awarded to the accused for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act in the light of Section 42 of the said statute. The court also ordered the substantive sentences imposed on the accused to run concurrently. The accused is aggrieved by his conviction and sentence. 7. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 8. As noted, going by the prosecution case, the occurrence is one that took place on 13.05.2017 at about 14 hours and the place of occurrence is the house of the victim girl. Ext.P9 First Information Report is registered at 12.21 hours on 15.5.2017. The learned counsel for the appellant submitted, at the outset, that the delay of two days in registering the First Information Report has not been satisfactorily explained by the prosecution. Ext.P9 First Information Report is registered at 12.21 hours on 15.5.2017. The learned counsel for the appellant submitted, at the outset, that the delay of two days in registering the First Information Report has not been satisfactorily explained by the prosecution. Placing reliance on the evidence tendered by PW3, the mother of the victim girl, viz, the learned counsel argued that if the accused was arrested on the same day by the police, non-registration of the crime then and there would certainly create a strong suspicion as to the genuineness of the prosecution case. The learned counsel has also argued that the evidence tendered by PW2, the father of the victim girl and PW3, the mother of the victim girl are not consistent and the same would also throw serious doubts as regards the genuineness of the prosecution case. The learned counsel elaborated the said submission pointing out that while PW3 has deposed that the occurrence was narrated to PW2 when he came back home, and he immediately went to the house of the accused, brought him down and handed over to the police, the version of PW2 was that he went to Erattupetta on that day and the complaint was lodged on the subsequent day. According to the learned counsel, the evidence tendered by both the aforesaid witnesses cannot be believed. The learned counsel has also brought to my notice the evidence tendered by PW12, the Investigating Officer in this case that the accused was summoned to the police station on 15.05.2017 and was arrested, and submitted that the said evidence would also show that the evidence tendered by the parents of the victim girl cannot be believed. It was also argued by the learned counsel that the prosecution has not satisfactorily proved the place of occurrence. It was pointed out that the evidence tendered by the victim girl is to the effect that the place of occurrence is near a mango tree in her house, while such a mango tree is not noted in Ext.P5 scene mahazar. Coming to the evidence tendered by the victim girl, it was argued by the learned counsel that the same is vitiated by inconsistencies, embellishments, exaggerations and contradictions. Coming to the evidence tendered by the victim girl, it was argued by the learned counsel that the same is vitiated by inconsistencies, embellishments, exaggerations and contradictions. To bring home the point that the said evidence is not reliable, it was pointed out by the learned counsel that the victim girl has stated in her evidence that the accused has rubbed her vagina using his hand, whereas no such statement was given by her in Ext.P8. It was also pointed out by the learned counsel that the victim girl has stated in Ext.P8 that the accused has bitten her vagina, whereas what is stated by her before the Court is only that she felt like the accused biting her vagina. Similarly, it was argued by the learned counsel that the victim girl has stated in her evidence that the accused has pulled her to the place of occurrence holding her hand, whereas she has not stated so to the police. It was also argued by the learned counsel that the victim girl has given evidence to the effect that she has stated to the accused that she wants to see her mother while he was committing the alleged overt acts, whereas she has not made such a statement either before the police or before the Magistrate. Similarly, it was argued that the victim girl has stated in court that after committing the alleged overt acts, the accused followed her up to her mother and informed her mother that he did not do anything, whereas such a statement was not made by her either to the police or to the Magistrate. Similarly, it was argued by the learned counsel that the victim girl has stated in her evidence that the accused has offered her a ride in his bicycle and such a statement was not made by her either to the police or to the Magistrate. It was also argued by the learned counsel that the evidence tendered by the victim girl is not corroborated by the medical evidence. The learned counsel elaborated this submission pointing out that no injury of any sort was noticed by the doctor who examined the victim girl. It was also argued by the learned counsel that the date of occurrence spoken to by the victim to the doctor was 12.5.2017 and the same would also throw suspicion as to the genuineness of the case. It was also argued by the learned counsel that the date of occurrence spoken to by the victim to the doctor was 12.5.2017 and the same would also throw suspicion as to the genuineness of the case. Placing reliance on the evidence tendered by PW2, the father of the victim girl that he went to Erattupetta in connection with the marriage of the son of his brother on the same day and that he attended the said marriage took place on the subsequent day would also throw a doubt as to the genuineness of the prosecution case, for, had there been an occurrence as alleged by the prosecution, no father would go to attend a marriage on the same day, to another place. It was also argued by the learned counsel that the materials on record would indicate that the father of the victim girl had prior acquaintance with the accused and he was pretending as if he had no connection whatsoever with the accused. According to the counsel, the circumstances aforesaid shall also be taken note of while appreciating the evidence in this case. 9. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that the only point to be seen in a case of this nature is as to whether the evidence tendered by the victim girl could be believed, for the evidence as regards the core spectrum of the crime is given by the victim girl. It was argued by the learned Public Prosecutor that the evidence tendered by the victim girl as regards the core spectrum of the crime has not been discredited in any manner by the defence. As regards the various arguments raised by the learned counsel for the appellant as to the reliability of the evidence tendered by the victim girl, the submission made by the learned Public Prosecutor was that in so far as the inconsistencies and contradictions highlighted by the learned counsel do not pertain to the core spectrum of the crime, the same has to be ignored by the Court. As regards the delay in registering the First Information Report, it was pointed out by the learned Public Prosecutor that it can be seen from Ext.P9 First Information Statement itself that the matter was reported to the police on 14.05.2017 at 14.30 hours and that since an automated system is in place for registering the First Information Report, the possibility of delay in registering the First Information Report cannot be ruled out, if there is connectivity issues. The argument of the Prosecutor is that the delay projected by the accused is therefore not fatal to the case of the prosecution at all. 10. Having heard the learned counsel for the parties and having perused the materials on record, it is seen that the point arising for consideration is whether the prosecution has established the guilt of the accused under Section 376(2)(i) of the IPC and Section 5(m) read with Section 6 and Section 9(m) read with Section 10 of the POCSO Act. 11. Before dealing with the contentions advanced by the learned counsel for the parties on either side, I must refer to the evidence adduced by the prosecution in the case. PW1, the victim deposed that she was assaulted by the accused, who has been identified by her in court, while she was studying in 2nd standard. She deposed that the accused came to her house and offered her a ride in his bicycle. She deposed that the accused, thereupon, pulled her to the van, which was parked in her house, removed her cloths and sucked her vagina. She deposed that she then felt like the accused biting her vagina. She deposed that the accused thereupon rubbed her vagina using his hand. She deposed that all throughout the accused was keeping her mouth closed using his hand. She deposed that she was telling all throughout that she wants to see her mother and elder sisters. She deposed that the accused was telling her that he will let her go soon. She deposed that she thereupon rushed to her mother who was in the kitchen. She deposed that the accused followed her and told her mother that he did not do anything and then left the scene thereafter. PW1 deposed that later when her mother gave her bath, she narrated the occurrence to her mother. She deposed that she thereupon rushed to her mother who was in the kitchen. She deposed that the accused followed her and told her mother that he did not do anything and then left the scene thereafter. PW1 deposed that later when her mother gave her bath, she narrated the occurrence to her mother. She deposed that in the course of committing the overt acts, the accused has bitten her belly as well. She deposed that she narrated the occurrence to the police and to the Magistrate. She deposed that she was examined in the meanwhile by the doctor. 12. PW2, the father of the victim girl deposed that he was at the Mosque at the relevant time and his wife and children were there at home. He deposed that it was by about 13.00 hours, he went to the Mosque. He deposed that he saw the accused standing on the side of the road near his house when he was going to the Mosque. He deposed that the accused had once came to his house to talk to him about a rented house. He deposed that he came back from the Mosque by about 14.00 hours. PW2 deposed that his wife and children appeared scary then. He deposed that when he questioned them, his wife told him that a person named "Pradeep" came to the house, enquired with the victim girl about her father and when the victim girl told him that her father was not at home, he offered the victim girl a ride in the bicycle and took her on that premise near the Omni van parked in the courtyard of the house and abused her by sucking her private parts. PW2 deposed that they told him that his wife located the victim girl on the side of the van when she searched for her and the accused let her free on seeing her stating that he did not do anything and was only fondling her. PW2 deposed that he immediately went to the house of the accused and questioned him and the accused then told him that there was no such occurrence. He deposed that since he had to attend a marriage on the same day, he went to the police station on the subsequent day and lodged Ext.P1 First Information Statement. 13. PW3 is the mother of the victim girl. He deposed that since he had to attend a marriage on the same day, he went to the police station on the subsequent day and lodged Ext.P1 First Information Statement. 13. PW3 is the mother of the victim girl. She deposed that on 13.05.2017 by about 13.00 hours, she was alone at home with her children as her husband was away in the Mosque. She deposed that while she was searching for the victim girl, she saw her with the accused near the van and the accused was keeping his hand over the mouth of the victim girl. She deposed that on seeing her, the victim girl ran to her. She deposed that the accused followed her and told her that he did not do anything. PW3 deposed that after sometime, the accused left. PW3 deposed that later, she gave bath to the victim girl and while so, the victim girl narrated to her that the accused has removed her clothes and sucked her vagina. PW3 deposed that she informed the matter to her husband when he came back from the Mosque. 14. PW5 is the doctor who examined the victim girl on 16.05.2017. She deposed that the victim girl was brought to her on the allegation that she was molested by a known person by groping and biting. She deposed that the history of the case was narrated to her by the mother of the victim girl and though she asked the victim girl about the same, she did not respond. Ext.P4 is the report given by PW5 doctor. 15. As rightly contended by the learned counsel for the appellant, the medical evidence let in by the prosecution viz, the evidence of PW5 does not corroborate the case of the prosecution except to the extent that the victim girl was taken to her for medical examination on the allegation that a known person has molested her. Be that as it may. Both the parents of the victim girl have not seen the occurrence. In other words, as regards the material aspects of the evidence relating to the penetrative sexual assault attributed to the accused, the evidence of the victim girl alone is available. The evidence tendered by the victim girl in this regard appears to be so natural and consistent. Both the parents of the victim girl have not seen the occurrence. In other words, as regards the material aspects of the evidence relating to the penetrative sexual assault attributed to the accused, the evidence of the victim girl alone is available. The evidence tendered by the victim girl in this regard appears to be so natural and consistent. The evidence tendered in this regard has been corroborated in Ext.P8 statement given by the victim girl before the Magistrate under Section 164 of the Code. She has not been discredited in any manner on the aforesaid evidence during her cross examination. Though the parents of the victim girl did not witness the occurrence, the evidence tendered by them as referred to earlier would certainly probabilise the evidence given by the victim girl. I take this view also for the reason that if what is stated by the victim girl is not true, there is no reason why the victim girl should raise such a serious allegation against the accused. Further, the defence of the accused as discernible from the statement given by him under Section 313 of the Code is that the father of the victim girl had borrowed a sum of Rs. 10,000/- from him and that he had gone to the house of the victim girl on 13.05.2017 to demand back the said amount and that he has been implicated falsely for having demanded the amount. First of all, the said defence has not been established in the case by the accused by satisfactory evidence. Though the accused has examined a witness on his side as DW1, what was spoken by DW1 was only that the father of the victim girl was in search of a house and when he approached him for one of his houses to be taken on rent, he informed the father of the victim girl that the house of the accused is available for rent. Even assuming that there was a monetary transaction between the accused and the father of the victim girl as alleged by the accused, according to me, under normal circumstances, no one would implicate a person in a case of this nature for having claimed back the said amount, especially when the implication of a person in a case of this nature would adversely affect the interest of his daughter as well, in the present social circumstances. This was exactly the stand taken by the father of the victim girl when the counsel for the accused has put the defence aforesaid to him. The answer given by him in this regard is as follows: xxx In the aforesaid circumstances, I find that the evidence tendered by the victim girl is credible, reliable and truthful. I also find that the prosecution has established beyond reasonable doubt that the accused has, on 13.05.2017 at about 14.00 hours has licked the vagina of the victim girl and also bitten the belly of the victim girl with sexual intent. 16. Now I shall deal with the contentions raised by the learned counsel for the appellant one by one. As rightly pointed out by the learned counsel for the appellant, the crime is seen registered only at 12.21 hours on 15.05.2017. It is seen recited however in Ext.P9 First Information Report itself that the information concerning the occurrence was received at the Police Station on 14.05.2017 at about 14.30 hours. It is also seen from Ext.P9 that an entry has been made relating to the case in the General Diary of the Police Station at 15.04 hours on 14.5.2017 under entry number 53. It has come out from the evidence of PW11, the Police official who registered the first information report that first information reports are generated in the Police Station through the automated system in place for avoiding manipulations as regards the time of registration of the crimes. The accused has no case that no entry was made in the General Diary maintained at the police station concerning the occurrence at 15.04 hours on 14.05.2017. In the aforesaid circumstances, I am of the view that the explanation offered by PW11 that the delay in registering the F.I.R. was due to the delay in generating the F.I.R. through the system. of course, going by Ext.P9 First Information Report, the occurrence was reported to the police only on the succeeding day, namely 14.05.2017. As noted earlier, unlike cases involving murder, assault etc, the occurrence of this nature would not be readily informed to the police by the parents of the children concerned, for, the same are likely to adversely affect the children also in the peculiar social circumstances prevailing in our society. As noted earlier, unlike cases involving murder, assault etc, the occurrence of this nature would not be readily informed to the police by the parents of the children concerned, for, the same are likely to adversely affect the children also in the peculiar social circumstances prevailing in our society. It is seen invariably in every such case that are reported to the police that the matter is reported to the Police only after due deliberation. There is, therefore, no substance at all in the contention advanced by the learned counsel that there is no satisfactory explanation for the delay in lodging the First Information Report. 17. True, there are minor inconsistencies in the evidence of PWs. 2 and 3 as pointed out by the learned counsel for the appellant as regards the time at which the father of the victim had come back to the house, the time at which the mother of the victim girl had narrated the occurrence to the father etc.. Similarly, it is seen that the mother of the victim girl had spoken that the accused was brought to the house by her husband and he was arrested by the Police from the house on the date of occurrence itself, whereas the version as regards the arrest made by the investigating officer is that the accused was summoned to the Police Station and arrested. In so far as the said inconsistencies in the evidence tendered by PWs. 2 and 3 are not concerning the core spectrum of the crime, I do not think that the same are sufficient to reject the evidence tendered by the victim girl, especially when on a detailed evaluation, the evidence tendered by the girl was found acceptable. 18. As regards the evidence tendered by the victim girl, the contradictions projected by the learned counsel for the appellant are mainly two. The first among them is that the victim girl had given evidence to the effect that the accused has rubbed her vagina using his hand, whereas, no such statement was made by her to the Police and also to the Magistrate. This according to the learned counsel, is a serious omission amounting to contradiction. I do not think that having regard to the nature of overt acts attributed against the accused, the omission aforesaid would amount to contradiction. This according to the learned counsel, is a serious omission amounting to contradiction. I do not think that having regard to the nature of overt acts attributed against the accused, the omission aforesaid would amount to contradiction. The second one highlighted by the counsel is that the victim girl has narrated in Ext.P8 statement given under Section 164 of the Code that the accused has bitten her vagina, whereas she has only stated in her evidence that when the accused was committing the alleged overt acts, she felt that he was biting her vagina. According to me, this will not amount to a contradiction, for a contradiction within the meaning of Section 155 of the Evidence Act is a mutually destructive statement made by the witness in her earlier statement, and in the case on hand, what is projected is that a statement made in the previous statement was omitted to be mentioned by the witness while giving evidence. Similarly, I do not find any merit in the argument advanced by the learned counsel for the appellant that the scene of occurrence has not been established by the prosecution. Merely for the reason that a mango tree, which is stated to be existing at the scene of occurrence is not mentioned in the mahazar, it cannot be said that the prosecution has failed to establish the scene of occurrence in the case. For the aforesaid reasons, I do not find any merit in the appeal and the same is, accordingly, dismissed.