Immanuel K.J. vs State of Kerala

T.R. Ramachandran Nair, J.—The appellant who has been convicted and sentenced to life imprisonment for an offence punishable u/s 376(2)(f) of the Indian Penal Code, has filed this appeal through jail. He appeared through the State Brief Smt. P.S. Preetha. The victim is his own daughter, P.W.1. The crux of the prosecution case is that the victim was under the age of 16 and she was being sexually abused by her father from the year 2002 onwards till 27.12.2008. The circumstances leading to the registration of the crime are the following: On the basis of information from P.W.1, P.W.3 the Co-ordinator of Child-line which is functioning for the welfare of children under the age of 18, on 14.2.2009 reached the residence of the victim along with the paraprofessional under him and after collecting materials from the victim, had obtained Ext. P4 complaint from the mother of the victim, P.W.4. P.W.3 thereafter filed Ext. P3 complaint before the Chief Judicial Magistrate, Thalassery who was presiding the Juvenile Court. The Chief Judicial Magistrate forwarded the copies of Exts.P3 and P4 to the Circle Inspector of Police, Payyannur for investigation, based on which Ext. P11 F.I.R. was registered by the Sub Inspector of Police, Peringome Police Station as Crime No. 38/2009 u/s 376 I.P.C. After investigation, the charge was laid against the accused for offence u/s 376(2)(f) I.P.C.

The prosecution examined P.Ws. 1 to 18 and marked Exts.P1 to P19. Exts.D1 and D2 which are the portions of 164 statement of the victim.

Learned Sessions Judge, after an evaluation of the evidence, found the accused guilty. It was also found that the accused is none other than the father of the victim and he has three female children, the eldest among them being the victim. It was also recorded that no special reasons are there to reduce the sentence and accordingly the life sentence was imposed apart from fine of Rs. 50,000/- and in default of payment of fine, he will have to undergo simple imprisonment for a further period of one year.

In the appeal filed by the appellant through jail, it is mainly pointed out that because of family disputes, he is falsely implicated in the case at the instance of the relatives of his wife.

We heard Smt. P.S. Preetha, learned State Brief and learned Public Prosecutor Shri K.K. Rajeev.

Learned counsel for the appellant submitted, after referring to the oral and documentary evidence, that there are certain lapses in the prosecution case as well as in the evidence and the benefit should go to the accused. It is submitted that there is no direct medical evidence to support the prosecution story and the evidence of P.W.7, the Doctor will not show that he has given an opinion that the accused had committed rape on the victim. Learned counsel also pleaded for taking a lenient view in the light of the above and other aspects.

The girl was examined as P.W.1 who was studying in the Government Higher Secondary School, Pattuvam in the 10th standard at the time of giving evidence. She has two younger sisters. She was studying in Marygiri High School, Therthali in 8th standard in the year 2008. In fact, the entire episode leading to the registration of the crime was revealed when P.W.5, the class teacher of the 8th standard of Marygiri High School took timely initiative, according to the prosecution. In her deposition, she stated that the girl was studying well in all the subjects. One day, she found the girl remaining gloomy and crying. This was in January 2009 and on 15.1.2009 she called her to the staff room and asked her about the reason. She could persuade the child to reveal the sexual assault committed by her father. P.W.5 also found that this was not revealed to her mother so for out of fear of her father and due to his threat that she will be done away with in such a context. On the next day she had brought Ext. P1, a piece of paper containing a note made by her father giving instructions to her to accompany him to a hospital after telling her mother that there is special class. On seeing it, the teacher informed the Headmaster about it and they informed the mother who came on the next day and the letter was given to the mother. In the night on the mother asking her the details, P.W.1 told her about the father''s misdeeds. It is thereafter P.W.1 informed the Childline about the matter which led to the registration of the crime. This is how the commission of the crime was revealed, according to the prosecution case.

The important witnesses are P.W.1, the girl, P.W.3, the Childline Co-ordinator, P.W.4, the mother of P.W.1, P.W.5, the class teacher in Standard 8, and P.W.7, the Doctor who examined P.W.1 in Pariyaram Medical College on 20.2.2009. Ext. P15 is the statement of P.W.1, recorded u/s 164 Cr.P.C. before P.W.13, the Judicial First Class Magistrate, Payyannur. After registration of the case by the Sub Inspector of Police, P.W.11, further investigation was done by P.W.16, the Circle Inspector of Police, Payyannur who questioned the victim and other witnesses. The accused was arrested on 20.2.2009 by P.W.11. The investigation of the case after this, was done by P.W.18, the successor of P.W.16 who produced Ext. P1 before the court. Further investigation was done by P.W.17 who completed the investigation and laid the charge.

As already noticed, Ext. P3 is the complaint filed by P.W.3, the Central Co-ordinator, Childline, before the Chief Judicial Magistrate. The Childline is one functioning under the Social Welfare Department providing 24 hour reply. The complaint reveals that after getting intimation from the victim they went to her and the complaint was filed after being informed by the child that she has been subjected to sexual assault for a number of years by the father. Ext. P4 is the complaint filed by the mother herself before the Chief Judicial Magistrate which is dated 14.2.2009. Ext. P11 is the First Information Report.

The defence of the appellant, as pleaded is that it is a false story. The trial court rejected the said contention after elaborate consideration of the evidence adduced by the prosecution.

P.W.1 is the victim who is the elder daughter of the accused. Her deposition will reveal that first time she had suffered molestation from the accused while she was studying in the 3rd standard. She has narrated her bitter experience in the chief examination. At that time the mother was away in connection with the delivery of the third child. She has described the incident which had occurred in the night. She has also stated that when she cried aloud, the grandmother who was in the next immediate room asked her about the reason for it, but the father threatened her of death if anything is revealed. It is her further evidence that while she was studying in 8th standard, on 15.11.2008, she got menses. On 27.11.2008 the mother had gone to her house for treatment with back pain. It is on that day the accused committed rape on her. She has narrated all the details which reveals that the accused forcefully and under threat committed rape on her. Even though she cried, the accused threatened that if it is revealed, she will be done away with. Again she was subjected to rape in the first week of January, 2009 on an evening when the mother had went out for rearing goat. She was attending the kitchen at that point of time and the accused committed rape on her. She could not reveal anything to her mother in the light of the threat conveyed by the father that any disclosure will lead to her death. Again, on a later day when the mother wanted to go to the hospital for treatment the girl asked her not to leave the house and hence the mother returned by the evening. One day during January 2009 the father gave her a pill named ''ipil'' and asked her to consume the same which she did not do. It is on 15.1.2009 while she was in the class, the class teacher, P.W.5 took her to the staff room and asked why she is remaining gloomy and crying and not attending the classes and the teacher asked her whether there is any problem for her. She remained silent for some time and thereafter revealed the sexual assaults made by her father. The teacher pacified her and asked her to bring her mother to the school. But she did not tell the mother about the same as she was really under fear of her father. On the next day when she was about to go to the school, the father gave a chit instructing her that she will have to accompany him on the next day to a hospital after telling the mother that there is a special class. The same has been marked as Ext. P1. She handed over the said chit to the class teacher. On the next day she left the house informing that there is a special class and the father brought her to a clinic. She asked the reason for the same and she was informed that chance of becoming pregnant may be there. She then cried aloud and the reply was that in every household such things may happen. He also instructed her that if she is asked from the clinic how it happened, she should just tell that it was done by two boys while in school, whose face she did not see. In the clinic at Alathur the father wanted her to collect urine for testing, in a bottle. While in the bathroom she had menses which was informed to the accused and they went to Lourd''s hospital, Thaliparamba for consultation for her father. When they reached the home at about 6 p.m., she was asked by the mother why she is late and whether father had done some misdeeds to her. She evaded answering it then. During the night P.W.1 disclosed the entire details of sexual assaults to the mother. She then realised that the mother had already met her teacher. The mother then discussed the matter with her family members and then only decided to proceed with the legal action. In the cross examination she has deposed that while she was studying for U.K.G., the father was in Gulf countries and thereafter also he was there for some time and at the time when she was studying for III Standard, he came back. After he came back from Gulf countries, he was conducting a Marriage Bureau. Even though she was extensively cross examined, the crux of her deposition has not been shattered. A suggestion was also made whether the accused/father has usually been scolding her or beating her if she comes late from the school. But such may not have any adverse impact on the details she had pleaded in the deposition.

The evidence of P.W.3 will show that he was the Childine Coordinator during 2009 which is a project of the Central Government being implemented through the NGO. There is a District Level Childline Advisory Board chaired by the District Collector and the members include the Principal Magistrate as well as the Superintendent of Police. Based on the telephonic information received on 14.2.2009 that P.W.1 is being sexually harassed by her father, along with the paraprofessional Smt. Rose Mary, he went to the house of P.W.1. The paraprofessional talked in detail with the child and after coming to know about the entire episode and after talking with the mother, a complaint was submitted by the mother and the same was accepted. Based on the same, a complaint was submitted before the Chief Judicial Magistrate (Ext. P3). Ext. P4 is the complaint in writing given by the mother.

P.W.4 is the mother. She identified the handwriting of the accused in Ext. P1. She was contacted by the class teacher on 16.2.2009 in the evening and she went to the school on 17.1.2009 and the teacher revealed all the details to her. She was shown Ext. P1 chit written by the father and confirmed it as in his handwriting. After she reached the house, P.W.1 and the accused came back and then she asked the child about the details. She replied to her not to ask anything at that point of time since, if it is heard by the father, he will finish of everybody. After the evening prayers and dinner when everybody fell asleep, she went to P.W.1 who disclosed the entire details to her. She has narrated all those information given by P.W.1 in the chief examination and also the subsequent steps taken in the mater including the letter given to the Childline and filing of complaint before the Chief Judicial Magistrate.

Even though P.W.4 was cross examined at length, nothing could be brought out to discredit her version in the chief examination. A reading of the cross examination will also show that she denied the suggestion that because of the difference of opinion between the accused and her, the complaint was filed.

P.W.7 is the Doctor who has been working as Senior Lecturer in Gynecology Department, Pariyaram Medical College. She examined the victim on 20.2.2009. The doctor has proved Ext. P6 medical certificate which has been issued after examining her. Examination showed Hymen elastic and vagina admits one finger easily. She confirmed that the symptoms indicate chance of intercourse. It is also stated that as per Ext. P7, no spermatozoa detected and normally in a living body sperm remain active only for four days. Usually on examination within four days alone can detect presence of sperm. In the cross examination various suggestions were made. Finally, to a suggestion of the learned counsel that she cannot say that the victim was subjected to rape, the answer is the following: "I feel from the statements in the certificate that the victim was subjected to rape."

Learned counsel for the appellant submits that the medical examination will not reveal anything to connect the accused with the alleged commission of rape. It is also stated that the girl was proficient in sports and therefore changes in her body can be attributed to the sports activities also. We are not impressed by the above argument. Herein, the medical examination was conducted on 20.2.2009, whereas the last incident was in the first week of January, 2009. Therefore, it is only in those circumstances the Doctor said that the sperm will remain alive only for four days and if medical examination is conducted within four days, presence of sperm can be detected. But that cannot result in eschewing the other part of the evidence adduced by the prosecution, as spoken to by P.W.1 in her narration and supported by the evidence of the doctor, P.W.7, that she was subjected to intercourse.

The evidence of P.W.1 will show the trauma she had suffered from her father for the period from 2002 to 2008. Her narration is clearly natural and the learned Sessions Judge has observed that when she was examined in camera, she had given the entire details voluntarily. The slight improvement, if at all is there, cannot help the argument of the learned counsel for the appellant that the entire version given by P.W.1 will have to be discarded. The victim as well as the mother have been conversant with the handwriting of the accused and they confirmed that Ext. P1 is in his handwriting. The evidence of P.W.5 is also quite important. The entire details could be revealed only because of her timely intervention when she found that the child is remaining in the class gloomy. Some of P.W.1''s friends also found that the child was crying. Immediately she was taken to the staff room and even though she was keeping silent at first, because of the persuasive approach made by the class teacher she revealed the sexual harassment suffered by her. This is also significant. Even though the accused has taken a stand of total denial, we find nothing to discredit the evidence of P.Ws. 1, 3, 4 and 5.

Even though learned counsel for the appellant sought for reduction of sentence also, we are not impressed. Herein, the perpetrator of the crime is the father of the victim itself. His eldest child is the victim herein. She had to suffer sexual harassment even while she was in Standard III. She suffered silently because of the threat perception and the harsh attitude of the accused. Therefore, it is only quite natural that she did not reveal it to her mother for long time. Therefore, we are of the view that the accused is not entitled for any leniency in the matter of sentence.

Hence, the appeal is dismissed confirming the conviction and sentence. No costs.

This is a case where the timely interaction by the class teacher of the victim, P.W.5 Smt. Bindu Thomas of Mary Giry High School, Therthalli has unearthed the crime committed by the accused. She could immediately notice the change in the behaviour in attending classes by P.W.1 and because of her persuasion and pacified talk alone the child revealed the details. It is clear from her evidence also that she was convinced about the allegations and then she wanted to have an interaction with the mother, P.W.4, which was conveyed through P.W.1. Therefore, really, P.W.5 has done a commendable job by saving P.W.1. We really appreciate the steps taken by P.W.5 in that regard which requires attention by the authorities of the Education Department also, as the same will give a message to the teachers as a whole, who will have to take care of the students and assess their behaviour as well as attitude and take timely action. The teachers like P.W.5 require encouragement by the authorities including the Management which will make them a model before the student community as well as the teachers community. Apart from the same, we also appreciate the steps taken by P.W.3, the Childline Co-ordinator, with the help of paraprofessional. On getting the telephone call, they immediately went to the house of the victim, interacted with her and after being convinced about the version of P.W.1, they filed a complaint before the Chief Judicial Magistrate which ultimately led to the registration of the crime. It is informed by the learned Public Prosecutor that the Childline is a project of the Central Government under the Ministry of Women and Child Development. The implementation of the project is through an NGO as is clear from the evidence of P.W.3. There is a Childline Advisory Board chaired by the District Collector also. A situation like the one herein shows the importance to make available the help of Childline in everyone of the educational institutions, so as to attend and promote the welfare of children. The effort taken by P.W.3 and his associate herein is really commendable and we express our deep appreciation on the same also. It is up to the authorities concerned to take appropriate steps to promote such activities.

A copy of this judgment will be communicated by the Registry, to the District Educational Officer, Kannur for communicating the same to the Manager of the school where P.W.5 is working and also to the District Collector, Kannur who is the Chairman of the Childine Advisory Board.