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2020 DIGILAW 607 (KER)

Amanulla v. State of Kerala

2020-07-16

P.B.SURESH KUMAR

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JUDGMENT : P.B. Suresh Kumar, J. 1. The appellant who is the sole accused in S.C. No. 619 of 2015 on the files of the Additional Sessions Court -1, Kasaragod has come up in this appeal challenging his conviction and sentence in the said case. 2. The accusation against the accused in the case is that on 31.08.2015, at about 10.00 a.m., the accused took the victim girl aged six years inside his house forcibly and had sexual intercourse with her and thereby committed the offences punishable under Section 376(2)(i) of the Indian Penal Code (the IPC) and Section 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). 3. On the accused pleading not guilty of the charges leveled against him, the prosecution examined 15 witnesses as PWs. 1 to 15 and proved through them 15 documents as Exts. P1 to P15. Among the witnesses examined, PW 1 is the doctor who examined the victim girl on 02.09.2015, PW 3 is the victim girl herself, PW 7 is the mother of the victim girl, PW 10 is the brother of the father of the victim girl and PW 11 is the Judicial Magistrate who recorded the statement of the victim girl under Section 164 of the Code of Criminal Procedure (the Code). Among the documents, Ext. P1 is the report of medical examination proved by PW 1, Ext. P6 is the First Information Statement proved by PW 7 and Ext. P9 is the statement of the victim girl proved by PW 11. 4. 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 under Section 5(m) read with Section 6 of the POCSO Act and accordingly convicted and sentenced him for the said offences. As noted, the accused is aggrieved by his conviction and sentence. 5. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 6. The learned counsel for the appellant, at the outset, contended that the conviction of the appellant is solely based on the evidence tendered by the victim girl and the said evidence is not credible and reliable to justify the conviction of the accused. 5. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 6. The learned counsel for the appellant, at the outset, contended that the conviction of the appellant is solely based on the evidence tendered by the victim girl and the said evidence is not credible and reliable to justify the conviction of the accused. The learned counsel elaborated the said submission pointing out that there is a dispute between the families of the victim girl and the accused concerning the right to draw water from a tank and the possibility of the case being a false one, on account of that reason cannot be ruled out. It was also pointed out by the learned counsel that even going by the prosecution case, the victim girl went to the house of the accused accompanied by her younger sibling and there is therefore absolutely of no possibility of the victim girl being abused by the accused in the presence of the younger sibling. It was also pointed out by the learned counsel that even going by the prosecution case, the victim girl came back home within 10 minutes and the possibility of an occurrence of the instant nature is remote for that reason as well. It was also contended by the learned counsel that though the occurrence took place allegedly on 31.08.2015, the matter was informed to the police only on 02.09.2015. It was argued by the learned counsel that the same would cast serious suspicion as to the genuineness of the prosecution case. The learned counsel elaborated the said submission pointing out that the possibility of the case being false is more, since it was admitted by PW 7, the mother of the victim girl herself in her cross examination that the police came to her house on the same day evening itself. According to the learned counsel, if there was actually an occurrence as alleged by the prosecution, the matter would have been informed to the police on the same day itself and there is no reason why the police shall not register a crime on receiving such an information. The essence of the arguments advanced by the learned counsel is that the evidence tendered by the victim girl, in the facts and circumstances of the case, can only be a tutored one. The essence of the arguments advanced by the learned counsel is that the evidence tendered by the victim girl, in the facts and circumstances of the case, can only be a tutored one. Alternatively, it was also argued by the learned counsel that at any rate, the proved facts would only make out a case of aggravated sexual assault and the judgment impugned is liable to be set aside at any rate. 7. Per contra, the learned Public Prosecutor supported the judgment pointing out that the evidence tendered by the victim girl is natural and consistent with her previous statement and there is absolutely no reason why she should not be believed. It was also contended by the learned Public Prosecutor that the motive for false implication suggested by the accused is not at all sufficient to implicate a person as an accused in a case of this nature. As regards the delay in the registration of the crime, the learned Public Prosecutor was unable to offer any explanation from the materials on record. To sum up, the essence of the submissions taken by the learned Public Prosecutor was that the judgment does not call for any interference. 8. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Section 376(2)(i) of the IPC and also Section 5(m) read with Section 6 of the POCSO Act. 9. Before proceeding to consider the contentions raised by the learned counsel for the parties on either side, it is necessary to refer to the evidence let in by the prosecution. As pointed out by the learned counsel for the appellant, the only evidence adduced by the prosecution to prove the occurrence is the evidence of the victim girl. 9. Before proceeding to consider the contentions raised by the learned counsel for the parties on either side, it is necessary to refer to the evidence let in by the prosecution. As pointed out by the learned counsel for the appellant, the only evidence adduced by the prosecution to prove the occurrence is the evidence of the victim girl. As PW 3, the victim girl deposed that she knows the accused who was in the dock; that his name is "Amanulla"; that he is called by her as "Kakka"; that the house of the accused is near to her house; that she used to go to the house of the accused for watching TV; that she had been to the house of the accused once while she was studying in the I standard with her younger sibling; that there was no one in the house at that time and that the accused has kept his genital organ at her vagina on that day after removing her dress. She also deposed that she experienced pain on account of the conduct of the accused and that she immediately went back to her house and informed the incident to her mother. She also deposed that she was taken to a doctor and thereafter to the police. There was no serious cross examination to PW 3, except making a suggestion to her that there was a dispute between the families of the parties concerning the right to draw water from a water tank. PW 7, the mother of the victim girl deposed that the victim girl went to the house of the accused on the relevant day along with her younger sibling; that she came back after some time and told her that the accused has touched her vagina using his genital organ. PW 7 deposed that the matter was immediately informed to PW 10, the brother of her husband and he, in turn, informed the matter to the police. PW 10 also gave evidence in tune with the evidence tendered by PW 7. PW 1 is the doctor who examined the victim girl and she deposed that on 02.09.2015, she examined the victim girl, who was brought to her with the allegation that she was sexually assaulted by a person who is named as "Kakka". PW 10 also gave evidence in tune with the evidence tendered by PW 7. PW 1 is the doctor who examined the victim girl and she deposed that on 02.09.2015, she examined the victim girl, who was brought to her with the allegation that she was sexually assaulted by a person who is named as "Kakka". PW 1 deposed that on examination, she found mild reddish healing abrasions lateral to the hymen on both sides. 10. I am not impressed by the various arguments advanced by the learned counsel for the appellant to bring home the point that the evidence tendered by the victim girl can only be tutored one. Except the suggestion made to the victim girl and also to the mother of the victim girl that there was a dispute between parties concerning the right to draw water from a water tank, nothing was elicited from the evidence of the aforesaid witnesses to discredit them. Even the suggestion aforesaid was emphatically denied by the victim girl and her mother. Similarly, merely for the reason that a two year old younger sibling of the victim girl had accompanied the victim girl when she went to the house of the accused, it cannot be contended that it is not possible for an elderly person like the accused to commit sexual assault on a minor girl aged six years. Likewise, there is also no substance in the contention of the accused that since the victim girl came back home within ten minutes, the occurrence is false when it has come out that the parties are residing in neighbouring houses. 11. I am also not very much impressed by the argument advanced by the learned counsel for the appellant that the delay in registering the crime has not been properly and satisfactorily explained by the prosecution. True, the crime in respect of the occurrence took place on 31.08.2015 was registered only on 02.09.2015. It has come out that the father of the victim girl was abroad at the relevant time. The evidence tendered by the mother of the victim girl was that she has informed the matter to PW 10, the brother of her husband immediately on hearing the occurrence from the victim girl. It has come out that the father of the victim girl was abroad at the relevant time. The evidence tendered by the mother of the victim girl was that she has informed the matter to PW 10, the brother of her husband immediately on hearing the occurrence from the victim girl. Unlike other cases, in our society, there is an impression that cases of this nature would affect adversely the interest of the victim as well and it is seen invariably in every case that a case of this nature is reported to the police only after due deliberation among the members of the family of the victim. Having regard to the ground reality aforesaid, I am of the view that the delay of two days in registering the first information report in the case on hand is not one that would affect the prosecution case in any manner. 12. The question remains to be considered is as to whether offences of rape and penetrative sexual assault are made out on the proved facts, for the accused was found guilty for aggravated penetrative sexual assault only because the age of the victim girl was below 12 years. It is conceded by both sides that there is only one previous statement of the victim girl which is the statement recorded from her under Section 164 of the Code. Ext. P9 is the said statement which was recorded on 02.09.2015. Ext. P9 reads thus: xxx The version of the victim girl while giving evidence was as follows: Xxx As PW 7, the mother of the victim girl deposed that what was told to her by the victim girl about the occurrence was that the accused touched the vagina of the victim girl using his genital organ. The relevant portion reads thus: Xxx It is placing reliance on the said evidence of PW 7 that the learned counsel for the accused contended that a case of rape and penetrative sexual assault has not been established by the prosecution. According to the learned counsel, in order to make out a case of rape and penetrative sexual assault, it is obligatory for the prosecution to show that there was penile penetration and there is no evidence of penile penetration in this case. According to the learned counsel, in order to make out a case of rape and penetrative sexual assault, it is obligatory for the prosecution to show that there was penile penetration and there is no evidence of penile penetration in this case. The learned counsel has relied on the evidence tendered by the doctor who gave evidence as PW 1 that the hymen of the victim girl was intact, in support of his case that there was no penile penetration. The learned counsel has also explained that the possibility of the minute reddish abrasions on the lateral aspect of the hymen noted by the doctor being caused on account of other reasons cannot also be ruled out. 13. In Ramesh v. State of Kerala, 2020(4) KLT 11 , on an elaborate consideration of the requirements under the IPC and POCSO Act, it was held by this court that penetration of the male genital organ within the labia majora or vulva with or without any emission of semen or even an attempt of penetration into the private part of the victim girl completely, partially or slightly would make out the offence of 'rape' under the IPC and 'penetrative sexual assault' under the POCSO Act. The relevant portion of the judgment reads thus: "In other words, penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence of penetrative sexual assault under the POCSO Act as well." The aforesaid being the only requirement to constitute rape and penetrative sexual assault, according to me, the evidence tendered by the victim girl that would certainly make out a case of an attempted penetration. This view of mine is corroborated by the evidence tendered by' PW 1, the doctor who examined the victim girl that though there is no evidence of vaginal penetration, the possibility of an attempt of vaginal penetration cannot be ruled out. If I am unable to rule out an attempted penetration by the accused, the court below cannot be faulted for having found that the accused is guilty of rape and penetrative sexual assault. The appeal, in the circumstances, is without merits and the same is, accordingly, dismissed.