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2025 DIGILAW 869 (KER)

Anil @ Mathai S/o Podiyan v. State Of Kerala

2025-04-07

C.S.SUDHA

body2025
JUDGMENT : In this appeal filed under Section 383 Cr.P.C., the appellant, who is the sole accused in S.C. No.764 of 2020 on the file of the Court of Session, Kollam, challenges the conviction entered and sentence passed against him for the offences punishable under Section 376(2)(f)(i) IPC and Section 3(a) read with Section 4 and Section 5(n) read with Section 6 of the Protection of Children from Sexual Offences (PoCSO) Act. 2. The prosecution case is that the accused, the paternal uncle of PW1, a minor girl, with the intention to commit rape, trespassed into her residential house bearing no.XIX/228 in Vilangara Leksham Veedu Colony, Vilangara Muri, Ummannoor Grama Panchayat, and raped her while she was sleeping in the hall room of her house. Hence, as per the final report, the accused is alleged to have committed the offences punishable under Sections 450, 324 & 376(2)(f)(i) IPC and Section 3(a) read with Section 4 and Section 5 read with Section 6 of the PoCSO Act. 3. Crime No.1024/2019, Kottarakkara police station, that is, Ext.P9 FIR, was registered by PW12, the Sub Inspector, Kottarakkara, based on Ext.P1 FIS of PW1 which was recorded by PW11, Sub Inspector, Vanitha Cell, Kottarakkara. PW13, CI, Kottarakkara, conducted the initial investigation. Investigation was thereafter taken over by PW14, DySP, Kottarakkara, who conducted part of the investigation. PW15 and PW16, DySP, Kottarakkara, conducted the further investigation and on completion of the investigation, PW16 submitted the final report before the court. 4. On appearance of the accused before the trial court, a charge under Sections 450, 376(2)(f)(i) IPC and Section 3(a) read with Section 4 and Section 5(m)(n) read with Section 6 of the PoCSO Act was framed, read over and explained to the accused to which he pleaded not guilty. 5. On behalf of the prosecution, PWs.1 to 16 were examined and Exts.P1 to P13 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. The accused denied all those circumstances and maintained his innocence. 6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. 7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted the accused under Section 235(1) Cr.P.C. for the offences punishable under Section 450 IPC and Section 5(m) read with Section 6 of the PoCSO Act. However, he has been found guilty of the offences punishable under Section 376(2)(f)(i) IPC and Section 3(a) read with Section 4 and Section 5(n) read with Section 6 of the PoCSO. He has been sentenced to rigorous imprisonment for a period of 12 years each and to fine of ? 50,000/- each and in default to undergo rigorous imprisonment for a period of one year each for the offences punishable under Section 376(2)(f) and (i) IPC. No separate sentence has been imposed under Section 3(a) read with Section 4 and Section 5(n) read with Section 6 of the PoCSO Act in view of Section 42 of the PoCSO Act. The substantive sentences have been directed to run concurrently. The fine amount, if realized, has been directed to be paid to PW1. Set off under Section 428 Cr.P.C. for the period from 14/05/2019 till the date of judgment, that is, 30/11/2021, has been given. Aggrieved, the present jail appeal has been filed. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the appellant/accused by the trial court are sustainable or not. 9. As per order dated 17/01/2023, Adv.Laiju Nissa M.M. was appointed as State Brief for the appellant/accused. However, on several posting dates, there was no representation on behalf of the appellant and hence on 13/01/2025, Adv.Reshma E. was appointed as State Brief. 10. Heard both sides. 11. 9. As per order dated 17/01/2023, Adv.Laiju Nissa M.M. was appointed as State Brief for the appellant/accused. However, on several posting dates, there was no representation on behalf of the appellant and hence on 13/01/2025, Adv.Reshma E. was appointed as State Brief. 10. Heard both sides. 11. It is submitted by the learned counsel for the appellant/accused relying on the dictum in Rai Sandeep @ Deepu v. State of NCT of Delhi, 2012 KHC 4419: 2012 (8) SCC 21 that the sole testimony of PW1 based on which the trial court convicted the accused is not of sterling quality and hence the trial court went wrong in relying on the uncorroborated and inconsistent testimony of PW1 to find the accused guilty of the offences alleged against him. Per contra 11.1. , it was submitted by the learned Public Prosecutor that the materials on record are sufficient to prove the prosecution case and that there is nothing to disbelieve or discredit the testimony of PW1 and therefore, no grounds for interference is made out. 12. I briefly refer to the evidence on record relied on by the prosecution in support of the case. Ext.P5 extract of the birth register proved through PW6 shows the date of birth of PW1 to be 12/10/2004. Therefore, PW1 at the time of the incident in the year 2018 was only about 14 years old and hence a minor. 13. PW1 when examined deposed that while she was studying in the I st standard, her mother passed away and therefore she was under the care and protection of PW2, her father and her grandmother, who is now no more. She was staying in a convent from VI th standard onwards and during the school vacation period, she used to stay at her house in Vilangara Leksham Veedu Colony. According to PW1, the accused, her paternal uncle, used to come and stay at her house occasionally. In 2018 during the school vacation period, she came to her house at Vilangara Leksham Veedu Colony. One day during the night, she was sleeping in the hall room of her residence in which room the accused and her grandmother were also sleeping. While she was asleep, she felt somebody groping her chest and abdomen and when she woke up, she saw the accused. One day during the night, she was sleeping in the hall room of her residence in which room the accused and her grandmother were also sleeping. While she was asleep, she felt somebody groping her chest and abdomen and when she woke up, she saw the accused. When she tried to cry out loudly, the accused asked her to remain silent and after removing her pant, he partially penetrated his penis into her vagina. According to PW1, her grandmother had visual and hearing impairment and therefore though she was in the very same room, she did not come to know about the incident. She never disclosed the incident to her relatives as she was afraid of the accused as he had threatened to do away with her if she disclosed the incident to anyone. She also deposed that PW2, her father, and PW10, her brother, were not present in the house at the relevant time. According to PW1, her father used to sleep in the streets in a drunken condition and her brother had gone to the house of her aunt on the date of the occurrence. She also deposed that at the time of the incident, nobody else apart from the accused was present in the hall room of her residence. She denied the defence suggestion that the room had been left open and that she misunderstood the accused to be the person who abused her only because he also used to sleep in the very same room. PW1 stood by her case in the cross-examination that it was infact the accused who had sexually abused her by partially inserting his organ into her vagina. 13.1. PW2, father of PW1, deposed that the accused is his brother. According to PW2, his wife had passed away 10 years back and he was residing alone in the house at Vilangara Leksham Veedu Colony. After the death of his wife, as there was nobody to look after the affairs of PW1, he got her admitted in a convent where she was staying and studying. During the school vacation, PW1, his daughter, used to come and stay in his house. He never knew about the rape committed by the accused. He only came to know about the incident when PW1 gave a complaint to the police. 13.2. During the school vacation, PW1, his daughter, used to come and stay in his house. He never knew about the rape committed by the accused. He only came to know about the incident when PW1 gave a complaint to the police. 13.2. PW3, a close relative of PW1, deposed that PW1 used to come and stay in her house during vacations. According to PW3, she never knew about the sexual assault and that PW1 had not disclosed the incident to her. However, she came to know about the complaint given to the police alleging rape by the accused. 13.3. PW10 is none other than the brother of PW1. PW10 deposed that in the year 2019, he came to know from PW2, his father, about the sexual abuse of his sister by the accused. PW10 deposed that during 2018, he was not permanently staying at his house as he was engaged in practicing Chendamelam. He also deposed that his father was also not permanently staying in the house as he was engaged in catering job. PW10 deposed that during school vacations, PW1 used to come and stay at their house. He deposed that his grandmother had visual and hearing impairment. PW10 also deposed that the accused used to behave in a rude manner to his sister especially while he was drunk. 13.4. PW9, Junior Consultant, Taluk Hospital, Kottarakkara, deposed that on 15/04/2019, she had examined PW1 aged 13 years who had come to the hospital with a history of sexual abuse by one Jagadeeshan. She had issued Ext.P8 report. She deposed that on examining PW1 there was no evidence of recent vaginal penetration. The injury seen on the body could have been sustained during the course of the sexual abuse committed by Jagadeeshan. In the cross-examination, she deposed that PW1 was examined relating to an incident that took place on 15/04/2019. She also deposed that neither the victim nor anybody else had informed her that the victim had been sexually abused before 15/04/2019 also. PW9 in Ext.P8 has recorded that the hymen on examination of PW1 was found to be intact. 14. It is true that to PW9, the doctor, PW1 has only revealed the incident of sexual abuse which took place on 15/04/2019. PW9 in Ext.P8 has recorded that the hymen on examination of PW1 was found to be intact. 14. It is true that to PW9, the doctor, PW1 has only revealed the incident of sexual abuse which took place on 15/04/2019. However, that is immaterial because the duty of the doctor is to examine the victim and give necessary treatment if required and also give a report regarding the examination and not to find out or ascertain the person(s) who had abused the victim. In Ext.P1 FIS seen recorded on 15/04/2019 at 16:10 hours, PW1 in detail has referred to the incident of rape by the accused which took place while she had completed her VII th standard. Thereafter, on 15/04/2019, her neighbor Jagadeeshan is alleged to have gone to her house enquiring about her father. She replied that her father had left for work. Initially Jagadeeshan went out, but immediately thereafter came back into the room and using force made her lie on the cot inside the room. She tried to cry out for help. Jagadeeshan closed her mouth and removed her leggings, her panties and penetrated her. She pushed him aside and tried to beat him at which time he poked her with a pin on her left wrist and right palm. Jagadeeshan also told her that in case she revealed the incident to anybody, her brother Manu would be killed. She pushed him aside and went to the house of Lilly and Sreevidhya and revealed the incident to them From there, she was taken by Lilly and Vikraman uncle and other relatives to the Vanitha Cell, Kottarakkara, for giving the complaint. Jagadeeshan had abused her on the said day at 07:20 a.m. 15. The medical examination of PW1 was conducted apparently after the registration of the FIR and so the examination was relating to both the instances of rape. There need not be a separate medical examination for the two instances of rape referred to in the FIS. It is true that neither the date nor the year of abuse by the accused is specifically mentioned in Ext.P1 FIS. But, PW1 when examined stated that it was in a day in the year 2018 that she had been abused by the appellant/accused. The testimony of PW2, her father, and PW10, her brother, also show that PW1 was home during the summer vacations in the year 2018. But, PW1 when examined stated that it was in a day in the year 2018 that she had been abused by the appellant/accused. The testimony of PW2, her father, and PW10, her brother, also show that PW1 was home during the summer vacations in the year 2018. It has also come out in evidence that the appellant/accused also used to sleep in the room in which PW1 was sleeping. It is true that PW1 has deposed that her grandmother was also present in the room when the abuse took place. However, PW1 as well as PW10 have consistently deposed that their grandmother had visual and hearing impairment. This part of their testimony has not been cross-examined or discredited in any way and therefore the visual and hearing impairment seems to have prevented the grandmother from witnessing or hearing or reacting to the incident. PW1 was extensively cross-examined. Though the learned counsel for the appellant/accused submitted that there are several inconsistencies and contradictions in her statement to the police as well as in her 164 statement, none of the so called inconsistencies or contradictions have been put to the witness or proved in any manner known to law. That being the position, there is no reason to disbelieve PW1. 16. Admittedly, the appellant/accused was none other than the paternal uncle of PW1. Absolutely, no materials have been brought in to show that there was any reason(s) for PW1 to make a false allegation against her uncle. That being the position, I find no infirmity in the findings of the trial court calling for an interference by this Court. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.