Babu vs State Of Kerala

C. Jayachandran, J.

This appeal is directed against the judgment of the Additional Sessions Court-I, Alappuzha (Special Court for trial of offences under the POCSO Act) in S.C.No.444 of 2015 dated 30.10.2017, as per which, the appellant – the victim's father – was found guilty of offences under Sections, 376(2)(f) and 506(i) of the Penal Code and Section 5(j)(i), 5(l), 5(n), r/w Section 6, 9(l), 9(n) r/w Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short PoCSO Act) and also under Section 23 of the Juvenile Justice (Care and Protection) Act 2000. He was sentenced to various terms, including a term for imprisonment for life, which shall mean the remainder of the natural life of  the  accused  for  offence  under  Section  376(2)(f)  of the Penal Code.

The prosecution allegations are as follows:

The accused, who is the father of the victim/PW1, with necessary sexual intent, used to caress the breast of the victim/PW1 ever since she was studying from 7th standard onwards. In the year 2013, the accused raped the victim by inserting his penis to her vagina. This was repeated in the same year, when the accused ejaculated on her belly, with the result, the mental balance of the victim was impaired. The victim was threatened by the accused to be finished off, if the incident is divulged to anybody, thus committing the offences enumerated above.

In support of this case, the prosecution paraded 11 witnesses, through whom Exts.1 to P10 were marked. In the examination under Section 313 Cr.P.C., the accused denied all incriminating evidence adduced as against him. No defence evidence, oral or documentary, whatsoever, was adduced. On an analysis of the facts and evidence, learned Sessions Judge found PW1, the victim, to be a credible witness and acting upon the same and further supported by other evidence, found the accused guilty of the offences as indicated above.

Sri.P.K.Varghese, learned counsel for the appellant/accused contended that, a case of aggravated sexual assault is neither specifically alleged by the prosecution, nor proved. Therefore, the conviction under Section 9(l) and 9(n), r/w Section 10 of the POCSO Act is unsustainable. In support of the assertion, learned counsel invited our attention to Ext.P4 medical certificate and the evidence adduced by PW5 doctor. It was pointed out that the victim's vagina admits only a tip of the finger, thereby negating the case of penetrative sexual assault. Learned counsel then submitted that, the victim/PW1 is not a witness of a sterling quality, so as to rest the conviction on that sole basis. According to the learned counsel, it is wholly unbelievable that the incidents of sexual advances, alleged to have been made by the accused/father while the victim was studying in the 7th standard, was hushed up until the last precipitating incident, which occurred while she was studying in the 10th standard. No explanation, whatsoever, is forthcoming as to why the victim, who initially chose to hush up and suppress the so called advances for the sake of her family, especially, her brother, choose to speak against the accused in respect of the last incident. The victim maintains a case right from Ext.P1 FIS that, she used to share her father's sexual advances to her friend by name Anjulakshmi, who, for reasons best known to the prosecution, was not examined. Coupled with that, the investigating officer/PW10 gave evidence to the effect that, he had questioned the said Anjulakshmi, from whom, no knowledge as to the incidents spoken of by PW1 could be deciphered. This makes the witness all the more vulnerable, far from the standards of a witness of sterling quality. Another discrepancy pointed out is with respect to the non-examination of one Dr.Soumya, to whom, the victim had allegedly disclosed the incident first. As regards Ext.P4, medical certificate dated 18.12.2013, learned counsel would point out that the same was obtained even before the first information was lodged by CW1 on 07.01.2014. Learned counsel finally submitted that the sentence of life imprisonment, specifying that the same means the remainder of the life of the accused, is too harsh and disproportionate to the offences alleged.

Per contra, Smt. Bindu O.V, learned Public Prosecutor supported the judgment impugned in all respects. Learned Public Prosecutor pointed out that PW1/victim is a witness of sterling quality and there is an inherent ring of truth in her statements against the accused, who is none other than her father. No daughter would make allegations like the present one against one's own father. Learned Public Prosecutor pointed out that specific reason has been stated by PW1 in cross examination as to why she initially thought of not making a complaint against her father for the sake of her brother, and why, she chose to react later when her father attempted to molest her, even when she was lying in a helpless condition pursuant to a colonoscopy. The last incident only triggered the thither-to suppressed feelings of the victim to burst out, culminating in a complaint against her father. Learned Public Prosecutor invited our attention to the post traumatic incidents, which the victim suffered and her suicide attempts on more than one occasion. Learned Public Prosecutor pointed out that the evidence of PW1 gives a graphic description of the overt acts made by the accused, which is further supported by medical evidence. Ext.P4 medical certificate and deposition of PW5 doctor would only further the prosecution case. It has been specifically elicited that non-rupture of the hymen is no indication that the incident as alleged has not taken place; instead it only probabalise the prosecution version. According to the learned Public Prosecutor, there exists no vitiating circumstance, so as to frown upon the judgment impugned, wherefore, the same is liable to be sustained, as such.

In as much as the credibility of PW1/victim is the sheet anchor of the contentions of both sides, we will first analyse the evidence adduced by PW1. PW1 would state that, at the time of incident, she was residing at Kayalpuram, Pulinkunnu along with her father/accused, mother, brother and maternal grandmother and she was studying in the 10th standard in the Government Vocational Higher Secondary School. In 2013, after the Onam exams, PW1 happened to swallow a safety pin accidentally. Pursuant to stomach ache and urinary infection, she was initially taken to the Taluk Hospital, Pulinkunnu. After two weeks of treatment as an inpatient, she was referred to the Medical College Hospital, Vandanam, Alappuzha, where an x-ray was taken to locate the safety pin. She was then referred to the Medical College Hospital, Kottayam to undergo colonoscopy. She underwent treatment as an inpatient in the Medical College Hospital, Kottayam for a period of one week, whereafter she was discharged. However, her problem did not subside and she was again admitted in the same hospital and underwent colonoscopy to remove the safety pin. After colonscopy, she was completely fatigued and was practically confined to bed. One day when her mother went out, the accused/father came near her and touched her breast. Thereafter, she was made to lie in his lap and was caressed on her breasts. This reminded the victim of similar conduct of her father on previous occasions. She fell restless; sleepless was her nights, being very scared. She was referred to the psychiatry ward, where she met Dr.Soumya, to whom, she disclosed the advances made by her father. Dr.Soumya informed Dr.Satheesh, whereupon they informed the police. Her statement was taken by Smt. Sreedevi, Sub Inspector, Vanitha cell, Alappuzha on 07.01.2014. PW1 would depose that, when she was studying in the 7th standard, her father made her lie in the bedroom and committed penile penetration on her vagina. She was threatened by her father that, she will be finished off in case the matter is divulged to anybody. The same conduct was repeated in May 2013 as well in the same bedroom, where again, penile penetration was done on her vagina. PW1 would specifically state that her father ejaculated on her belly, which was wiped off with his dhothi. The accused offered PW1 that he will bring her preferred food. Although, her mother came to the room and she saw PW1 crying, PW1 did not disclose anything to her, out of fear. PW1 would state that, she had given statement to the Magistrate of the Mobile Court, Alappuzha, where, she did not disclose all aspects. According to PW1, she felt that, her brother may loose his father, as she had lost him. She desired her father will go elsewhere, leaving the family to fend for themselves.

In cross examination, it was elicited that the matter was never disclosed to PW1's mother. PW1 was subjected to colonoscopy twice and that, safety pin was removed in the first colonoscopy itself, which statement is at variance with her version in the chief examination. However, we discount the same, the inconsistency being on an aspect which is not very material to the core of the prosecution case. It has been elicited that, she was subjected twice to colonoscopy and after the second instance, she was conscious, that oxygen support was provided, that she was fed by nasal tube and that urination was facilitated through another tube. It was 2-3 days after colonoscopy that her father/accused made sexual advances to her. PW1 stated that her father created a quarrel with the hospital security personnel under the influence of alcohol, but there was no quarrel over the treatment given to PW1.

The time at which the accused made sexual advances to the victim is again put to the victim and she would iterate that, it was two days after the date on which colonoscopy was done. In further cross, we find certain post traumatic incidents being elicited, all to the detriment of the accused. PW1 would admit that she attempted to run away from the psychiatric ward and attempted suicide twice. As regards her attempt to run away from the psychiatric ward, she would specifically state that she did so, upon seeing her father coming to the ward, as she did not want to see him. She would depose that, she hardly got any sleep in the night and that, she used to be frightened thinking about her father. She was administered with medicines while in the psychiatric ward, but she had not taken any medicine for the past 2-3 months. The second incident elicited is an earlier one, where the victim jumped from the third floor of the Medical College Hospital, Vandanam. PW1 would state that, from Kottayam Medical College Hospital, she was taken to an institution by name 'Santhwanam', where she insisted to see her brother and grandmother – pertinently, not her mother - which was refused. Thereafter, she was accommodated at one 'Dishakarunya Kendra', Vaduthala. From there, she was sent to her house along with her mother. However, she was viewed by all in the backdrop of the sexual episode. Nobody wanted to speak to her. Once, she went to meet one of her friends, whereupon, her friend's father slapped her friend in front of PW1 and called PW1, a prostitute. This pained the victim and she ran away and consumed tablets of her grandmother. She was comatose, when her mother came. Upon recovery at the Medical College Hospital pursuant to a stomach wash, PW1 was feeling averse to everybody. She attempted to run away from the hospital. Here again, the witness would state that, she does not want her brother's life also to be spoiled and that, even if she dies, the kith and kin would cry only for a few days and that is why, she jumped from the third floor. Another suicide attempt is when she consumed powdered glass, after reaching 'Nirbhaya'. PW1 would attribute this attempt to the neglect suffered by her, from her family and friends. However, PW1 deposed that presently, she is free from all such thoughts and that, she is very confident now, since she receives all protection at Nirbhaya. Everything required for her education and skill development is taken care of at Nirbhaya. A suggestion was made that, no such incident as alleged by PW1 happened and that, she deposed against her father out of her animosity to him for quarreling with the doctor, whose treatment rendered PW1 bedridden. She denied the said suggestion in the following words;

PW1's evidence was reopened under Section 311 Cr.P.C, whereafter, all those aspects which were elicited in the earlier chief examination is again seen spoken of by the witness, however, with more details. The sexual advances made by her father was repeated with more details, however, without any inconsistency, worth the name. Pertinently, PW1 spoke one aspect that she decided on the day she was molested by her father at Kottayam Medical College that, he should not be permitted to behave like this any more. The instances of penile penetration were repeated and PW1 would recount that she was molested on four occasions by her father. She would depose that she disclosed the matter to her grandmother, noticeably not to her mother; the significance of which we would refer to later. Her date of birth is seen reiterated as 25.07.1998. In cross examination also, the matters deposed earlier is seen reiterated. A suggestive question as to whether PW1 is still taking medicines for post traumatic stress disorder was made, to which PW1 answered in the negative, thereby the factum of a trauma remaining underscored. It was suggested that the accused used to ill-treat PW1 during her childhood days, after coming drunk and that, because of that fear, she deposed against him. PW1 answered that, although her father used to beat her with long sticks during childhood, she was quite affectionate to him on those days. Only after he started behaving to her with ulterior motives, that she started fearing her father. Further suggestion was made to the effect that PW1 was not fully conscious when she was in the hospital, and that she was not in a position to speak etc., were all denied by PW1.

Having scanned through the evidence of PW1, we not only find the witness to be very credible, but also natural and spontaneous. Her conflict on account of the fact that the aggressor is her father is explicit from her evidence, which is quite natural, according to us. On the one hand, PW1 has her self respect, modesty and womanhood at stake owing to the sexual advances made by her father. On the other, her love and concern for her family members, especially her brother deters her from a precipitate action. On two occasions during cross examination, PW1 referred to her conflict as to whether a complaint from her part would end up in her brother loosing his father. We perfectly recognize her conflict, which would explain her conduct of not disclosing the previous incidents to anybody. At the Medical College Hospital, Kottayam, her father made sexual advance to her at a time when she was completely helpless, pursuant to a medical procedure and at a time when she was practically bedridden, on medical support for even her basic needs. The molestation occurred in such a hapless situation, which triggered the resolve in PW1 to speak up and at least thereafter, to prohibit her father from carrying on his wayward behaviour. Therefore, we cannot find any lack of credibility in PW1 in not disclosing the incident to anybody, including her mother, for, the culprit was none other than her mother's husband. We also take into account the frightening trauma, to which, PW1 was put to, on account of the unbecoming behaviour of her father. She attempted to run away from the hospital, jumped from the third floor of the Medical College, consumed medicines of her grandmother and even consumed powdered glass, all being manifestations of her acrimony, the neglect and the shame, to which she was put to because of her father's depraving conduct. We find the evidence of the witness fully credible, with the result, we reject the appellant's contention that the evidence tendered by PW1 is not of a sterling quality.

We will now discuss the evidence tendered by other witnesses as well. PW2 is the mother of the victim/PW1. She would confirm the victim's date of birth as 25.07.1998. She deposed that, nothing was disclosed to her by PW1. On the request of the prosecution, PW2 was declared hostile, whereupon, she would confirm the facts stated in her statement under S.161 Cr.P.C. PW2 specifically deposed that, she is not interested any more to live with her husband/accused, since he had made sexual advances to her daughter. In cross examination, it is elicited that, her knowledge with respect to the incident was nothing, but hearsay. It is further elicited in cross that after the second colonoscopy, PW1 was bedridden for a period of one week, that she was not taking normal food at that time and that the accused had a quarrel with the doctor because of the medical situation of PW1. To a suggestive question that PW1 was not in a position to identify her mother and father, PW2 answered in the affirmative. It was also elicited that, after the quarrel with the doctor, the accused has not come to the hospital.

The evidence tendered by PW2 does not support the prosecution. She had gone to the extent of admitting that, PW1 was not in a position to identify her parents during the week after the second colonoscopy. This version is established to be untrue by the evidence tendered by PW1, as also, by other witnesses, which we will refer to shortly. In this context, we notice the non commitment of PW2. PW1 has little confidence in her mother. She did not disclose anything to PW2/mother, not discounting the fact that the aggressor was her father. However, we also note that, PW1 went to the Taluk Hospital at Pulikunu along with her brother and thereafter, to the Medical College Hospital, Vandanam, along with her grandmother. In the examination after reopening the evidence under section 311 Cr.P.C, PW1's version is that she disclosed the incident to her grandmother; and not to her mother. Again, at 'Santhwanam', PW1 insisted to see her grandmother and her brother; not her mother. We are therefore not persuaded to take the evidence tendered by PW2 on its face value, so as to dislodge, or for the matter doubt, the veracity of the evidence tendered by PW1/victim.

PW3 is the witness to Ext.P2 scene mahazar. PW4 is the doctor, who issued Ext.P3 potency certificate of the accused. PW5 is the doctor who examined PW1/victim on 18.12.2013 and issued Ext.P4 certificate. The history noted in Ext.P4, which was deposed to by PW5, is relevant and extracted herebelow.

“sexual abuse by the father on multiple occasion, and the last was around two months back.”

PW5 deposed that the victim was admitted in the psychiatric ward due to depression; and diagnosis was post traumatic stress disorder. On vaginal examination, it was found that the same admits one finger and that, her hymen appears intact, with no tear seen. Urine pregnancy test was negative. To a specific question as to whether there is any possibility of sexual intercourse since the victim is aged only 15 years and her vagina admits only one finger, PW5's answer was in the affirmative. She would explain that, usually the vagina is closed by the hymen. However, in the case of PW1, it admits one finger, wherefore, there is possibility of sexual intercourse. All what is seen elicited in cross examination is that there was no injury on her private parts. However, in re-examination, PW5 deposed in clarification to a question that, there exists possibility of a sexual intercourse; that an elastic type of hymen will not break, but would withstand pressure. We find the medical evidence adduced by PW5 as supporting the version of PW1. As explained by PW5, non rupture of hymen is no indication that there is no penile penetrative sexual assault. We, take note of the expert's opinion that hymen can be elastic, which may not rupture, but will withstand pressure.

PW6 is the Headmistress of the Government Vocational Higher Secondary School, where PW1 was studying at the relevant time. She produced Ext.P5 certificate in proof of her date of birth, which is shown as 25.07.1998. PW7 is the Village Officer who issued Ext.P6 scene plan. PW8 was the Sub Inspector of Police, who recorded Ext.P1 FIS. In cross examination, it was suggested that, at the time when PW8 recorded the statement of PW1 at Medical College Hospital, Kottayam she was bedridden. However, PW8 answered in the negative. PW9 is the Sub Inspector of Police who registered the crime, pursuant to Ext.P1 FIS. Ext.P1(a) FIR was marked through him. PW10 is the Investigating Officer. He deposed about the victim being subjected to medical examination and Ext.P4 report thereof and about preparation of Ext.P2 scene mahazar. In cross examination, PW10 elicited that PW1 informed her mother/PW2 about the incident, which statement, we discount, as it is not supported by any other record. It is not discernible as to how and from where PW10 got such an information and deposed so. It is elicited that he questioned the friend of PW1 by name Anjulakshmi, who was a minor then. However, nothing, as regards the incident, was disclosed by her to PW10. It is further elicited that, PW1 was not in a medical condition to give statement on several occasions when PW10 visited the hospital for the said purpose. PW10 deposed that the victim was threatened by the accused in case of disclosure to anybody about the incident. He also stated that, there are no houses adjoining the house of PW1/victim.

PW11 is the Investigating Officer, who completed the investigation and filed a final report. It was PW11, who arrested the accused. Ext.P7 arrest memo and Ext.P8 inspection memo were marked through him. He spoke about Ext.P5 certificate issued by PW6 as regards the date of birth of the victim and about obtaining Ext.P6 scene plan. With this, we complete the scan of evidence tendered by various witnesses.

We shall now address the contentions raised by the appellant/accused in assailing the judgment impugned. It cannot be said that, an aggravated sexual assault is not established. Section 3 of the Protection of Children from Sexual Offences Act, 2012 defines a penetrative sexual assault. Clause (a) to Section 3 deals with the case of penetration of penis to any extent to the vagina. Clause (b) deals with a situation, where, any part of the body, not being the penis, is inserted in the vagina. Ample evidence exists to show that, there has been penetrative sexual assault. PW1 is clear and categoric in her statement that her father had inserted his genitals on her vagina on more than one occasion. In so far as the aggravated penetrative sexual assault is concerned, the appellant/accused was found guilty of the offence under Sections 5(l) and 5(n) of the Act. Section 5(l) deals with penetrative sexual assault on the child, more than once or repeatedly. Section 5(n) deals with a case, where a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having a domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits penetrative sexual assault on such child. We are of the definite opinion that both the offences afore-referred are attracted. The same is the case with respect to offences under Section 9(l) and 9(n) of the Act.

We have already discounted the arguments of the learned counsel based on Ext.P4 medical certificate issued by PW5 doctor. The distinction, which was sought to be drawn by the learned counsel, that the vagina admits only a tip of the finger and not a finger as such, is of no consequence in the light of the evidence tendered by PW5 to the effect that, hymen could be elastic and withstand pressure. We cannot find that a penetrative sexual assault is not committed for that reason. We find that, non examination of Anjulakshmi or for that matter, Dr.Soumya is wholly inconsequential, since their knowledge in respect of the incidents is only as spoken to by PW1. When PW1 herself is examined and her evidence is found to be inherently trustworthy, non examination of the persons, to whom the version was spoken of by PW1, is of no moment. They could at best offer corroboration, which is not the requirement of law, when the testimony of the prosecutrix is of a sterling quality. We also find that, we cannot frown upon the prosecution case only for the reason that, Ext.P4 medical certificate is obtained on 18.12.2013, much before the date on which FIR was lodged, i.e 07.01.2014. It requires to be noticed that Ext.P4 medical certificate is issued by PW5, a doctor attached to the Medical College Hospital, Kottayam. At the relevant time, the victim was hospitalized in the said Medical College. FIS is recorded at the time when PW1/victim was so hospitalized. In such circumstance, the prosecution version cannot be doubted for the reason that, Ext.P4 medical certificate is issued on a date prior to the date on which FIS was lodged.

As we have already found, we repose complete trust upon the evidence tendered by PW1/victim. At the cost of repetition, we may iterate that she is a natural and spontaneous witness, besides being wholly trustworthy. She gave valid explanation as to why the incident was initially not disclosed and it was disclosed at a later point of time. We also endorse the submission of the learned Public Prosecutor that a daughter would not, in the ordinary course, choose to accuse her own father, with such drastic allegations, unless a ring of truth permeates the same. The motive alleged by the defence that the victim chose to speak about her father, only for the reason that he quarreled with the hospital authorities is quite unbelievable and unimpressive. Once PW1 is believed, the presumption under S. 29 of the PoCSO Act steps in. The law is trite to justify a conviction based on the sole testimony of the victim. In Wahid Khan v. State of Madhya Pradesh [2010(2) SCC 9], the Honourable Supreme Court held that, the evidence of the prosecutrix in a case of rape stands at par with that of a injured witness and that, it is not necessary to insist for corroboration of the evidence of the prosecutrix, if it inspires confidence and appears to be credible. In the instant case, the evidence of PW1 has been found to be fully credible. We are fortified by the post traumatic incidents, which has been elicited in cross examination. The repeated attempts of suicide, the melancholy of PW1; and finally, the confidence which she acquired after mustering courage to speak against the father and in continuing her education, all would add flesh and blood to the core of prosecution allegations; a true survivor in every facet, the word connotes.

Lastly, we cannot countenance the argument raised by the learned counsel for the accused/appellant on the sentence imposed on the accused. Learned counsel fervently submitted that, life imprisonment, specifying that it means the remainder of the life of the accused/appellant, is too harsh a punishment. We notice that the said sentence is based on the contention that an aggravated penetrative sexual assault is not established in the given facts, which contention stands repelled by us. That being so, a punishment, as prescribed under the Statue for an aggravated penetrative sexual assault, is not liable to be interfered with. We further notice that the appellant/accused is none other than the father of the victim, where the protector turns the predator, thus permitting no mitigation in the matter of sentence.

The above discussion takes us to the conclusion that there is little merit in the instant appeal and the same is therefore dismissed, confirming the impugned judgment.