Kunhava S/o Hydrose vs State Of Kerala

R.Narayana Pisharadi, J

The appellant is the sole accused in the case S.C.No.507/2016 on the file of the First Additional Sessions Court, Palakkad.

The appeal is directed against the judgment of the trial court, convicting and sentencing the accused for the offences punishable under Sections 376(2)(f), 376(2)(n) and 376(2)(i) of the Indian Penal Code and also under Sections 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act').

The prosecution case, in short, is that, on a Monday in the month of February, 2016, the accused, who is the step-father of the victim girl, committed rape on her in a room in the house at the cattle farm at the place Peringanoor. The victim girl was aged only 11 years at that time. The prosecution has further alleged that, on a Sunday in the month of February, 2016, the accused committed rape on the victim girl at the bed room in his house in Thirumittacode Panchayat.

On account of pain in her private parts, the victim girl was taken to a private hospital on 10.04.2016. Ext.P1 statement of the victim girl was recorded by PW13 Woman Civil Police Officer on the same day. On the basis of Ext.P1 statement, PW15 Additional Sub Inspector registered case against the accused as Crime No.204/2016 of the Chalisserry Police Station under Sections 5(l) and 5(n) read with Section 6 of the Act.

On 06.05.2016, the statement of the victim girl under Section 164 Cr.P.C was recorded by the Magistrate concerned.

The investigation of the case was conducted by PW17 Circle Inspector. After completing the investigation of the case, he filed charge-sheet against the accused for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and also under Sections 5(l) and 5(n) read with Section 6 of the Act.

The trial court framed charge against the accused for the above offences under the Indian Penal Code and also under Sections 5(l) and 5(m) read with Section 6 of the Act. The accused pleaded not guilty and he claimed to be tried.

The prosecution examined the witnesses PW1 to PW17 and marked Exts.P1 to P22 documents and material objects MO1 to MO4. No evidence was adduced by the accused.

The trial court found the accused guilty of all the offences charged against him and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one year under each count for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(m) of the Indian Penal Code. No separate sentence was awarded for the offences under the Act. The trial court also directed that the substantive sentences of imprisonment shall run concurrently.

Aggrieved by the conviction entered against and the sentence imposed on him by the trial court, the accused has preferred this appeal from jail.

Heard Adv.Sri.Sujith Kumar who was appointed as state brief and the learned Public Prosecutor and also perused the records.

Out of the 17 witnesses examined by the prosecution, PW1 to PW3, PW6 and PW16 are the material witnesses. PW1 is the victim girl. PW2 is the grandmother of PW1. PW3 is the daughter of the sister of PW2. PW6 is the doctor who examined PW1 at the Sevana Hospital at Pattambi on 10.04.2016 and issued Ext.P5 medical certificate. PW16 is the doctor who examined the victim girl at the same hospital on the same day and issued Ext.P13 medical certificate.

Evidence regarding the sexual assault and rape allegedly committed by the accused on the victim girl at the two places, that is, at the farm house and at the house of the accused, shall be considered now.

Sexual Assault at the Farm House

Regarding the incident that took place at the farm house, PW1 has given evidence as follows: The accused is the second husband of her mother. The accused told her that he would show her the farm and took her to the farm. The accused took her to the room in the house there and made her to lie on the cot. He removed her dress and panties. Then he placed his penis on her vagina. She screamed aloud and then the accused closed her mouth. Then the sound of the vehicle of Manukka was heard. Manukka came and knocked on the door. The accused then told her to put on her dress. He opened the door. Manukka asked the accused what he was doing. The accused showed an action with his body, meaning that there was nothing.

In Ext.P1 statement given to the police, PW1 had stated that the accused inserted his penis into her vagina. But, her evidence before the court is only that the accused placed his penis on her vagina. The recitals in the first information statement do not amount to substantive evidence. Therefore, the question to be considered is whether the evidence of PW1, with regard to the incident at the farm house, can be accepted as reliable and trustworthy.

The testimony of PW1 that the accused placed his penis on her vagina is not corroborated by Ext.P2 statement given by her to the Magistrate under Section 164 Cr.P.C. With regard to the incident at the farm house, the statement given by PW1 before the Magistrate is only that the accused told her to remove her dress and when she refused, he undressed her and then the sound of a vehicle was heard and the accused told her that it was Manukka and he asked her to put on her dress. Ext.P2 statement given by PW1 under Section 164 Cr.P.C does not reveal that the accused had committed any further act. PW1 had not stated before the Magistrate that the accused put his penis on her vagina. This omission has been brought out in evidence through the cross-examination of PW1. This omission amounts to a material contradiction.

However, there is no reason to disbelieve the evidence of PW1 that the accused removed her dress and made her naked.

In the above circumstances, with regard to the incident at the farm house, the prosecution has only proved that the accused undressed PW1 and made her naked.

Such an act of the accused constitutes only the offence punishable under Section 354 of the I.P.C. Removing the dress of a woman with intention to have sexual intercourse with her amounts to the offence punishable under Section 354 of the I.P.C (See Aman Kumar v. State of Haryana : AIR 2004 SC 1497).

Sexual Assault at the House of the Accused

The accused and the mother of PW1 were residing in a separate house. Regarding the incident that took place at the house of the accused, PW1 has given evidence as follows: She went to the house of the accused to see her mother. Then her mother was working in the kitchen. The accused then closed her mouth and took her to the room in the house. The accused did the act as he did at the farm house. He committed such act after removing his dress. There was bleeding from her vagina.

With regard to the incident that happened at the house of the accused, no omission or contradiction in the evidence of PW1 has been brought out.

Ext.P1 first information statement corroborates the testimony of PW1 with regard to the incident at the house of the accused. Ext.P2 statement given by PW1 under Section 164 Cr.P.C also corroborates her testimony in this regard.

However, it has to be considered, what exactly is the substantive evidence of PW1 with regard to the incident at the house of the accused. Her statement before the court is that the accused did the act as he did at the farm house and there was bleeding from her vagina. The substantive evidence of PW1, with regard to the act committed by the accused at the farm house, is that he removed her dress and put his penis on her vagina. If the acts committed by the accused on several occasions are similar, there is no need for the victim to state before the court again and again about it. Therefore, the substantive evidence of PW1, regarding the act committed by the accused at his house, is that the accused removed her dress and placed his penis on her vagina. This is what is meant by PW1 by stating that the accused did the same act. Though the evidence of PW1, with regard to the incident that took place at the farm house, cannot be fully believed in view of the material omission in Ext.P2 statement given by her under Section 164 Cr.P.C, with regard to the incident at the house of the accused, there is no omission or contradiction in the evidence of PW1 with reference to Exts.P1 and P2 statements and they corroborate her testimony in the court.

There is no reason to disbelieve the testimony of PW1 that the accused took her to the room in his house and removed her dress and placed his penis on her vagina. It is difficult to imagine that PW1 has chosen to put her dignity and honour at stake and that she has given false evidence on account of her hate towards the accused for the reason that he married her mother.

The act of the accused placing his penis on the vagina of the victim girl can only be considered as an act of attempt by him to commit rape on her.

It is true that PW1 has given evidence that there was bleeding from her vagina. But, medical evidence does not corroborate her testimony in that regard, which shall be discussed later.

Thus, the evidence of PW1 establishes that the accused made attempt to commit rape on her at his house. Evidence of PW2 and PW3

PW2 is the grandmother of PW1. PW3 is the daughter of the sister of PW2. They have given evidence that PW1 told them about the acts committed on her by the accused. The alleged incidents had occurred in the month of February, 2016. PW1 had revealed the incidents to PW2 and PW3 only in April, 2016. Therefore, not much reliance can be placed upon the testimony of PW2 and PW3 to corroborate the testimony of PW1 about the acts committed on her by the accused. Even otherwise, since this Court is inclined to accept the testimony of PW1 with regard to the incident that took place at the house of the accused, the evidence of PW2 and PW3 does not assume much significance.

Medical Evidence

PW6 is the doctor who examined PW1 at the Sevana Hospital at Pattambi at 11.15 hours on 10.04.2016 and issued Ext.P5 certificate. Nothing is mentioned in Ext.P5 certificate with regard to the findings made by PW6 on clinical examination of PW1. However, PW6 would state before the court that the hymen of PW1 was elastic and that her vagina admitted one finger and that there was indication of vaginal penetration. The evidence of PW6 is not reliable in the absence of anything in that regard noted by her in Ext.P5 certificate.

PW16 is the doctor who subsequently examined PW1 at the same hospital on the same day and issued Ext.P13 medical certificate. Ext.P13 certificate shows that PW1 was admitted in the hospital on 10.04.2016 and she was discharged on the next day. The evidence of PW16 and Ext.P13 certificates only reveal the complaints made to the doctor regarding pain and bleeding.

In the above circumstances, medical evidence does not help the prosecution to prove that there was vaginal penetration on PW1.

Age of the Victim

The mother of PW1 was not even cited as a witness by the prosecution. The investigating officer (PW17) deposed before the court that there was no special reason for not making her a witness in the case.

The headmaster of the school in which PW1 was studying was examined as PW8. He has deposed that he issued Ext.P6 certificate regarding the date of birth of the victim girl on the basis of the entries in the admission register in the school. He has certified that the date of birth of the victim girl is 13.03.2005.

The question to be considered is whether the certificate issued by the Headmaster of the school with regard to the age of the victim girl can be accepted as sufficient proof of her age.

In the instant case, the alleged incidents had taken place in the month of February, 2016. The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the JJ Act') has come into force on 15.01.2016.

Section 94 of the JJ Act deals with presumption and determination of age of children. As per Section 94(2) of the JJ Act, when there is doubt regarding whether a person is a child or not, the age shall be determined by seeking evidence by obtaining the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned Examination Board, if available and in the absence thereof, the birth certificate given by a Corporation or a Municipal Authority or a Panchayat.

In Jarnail Singh v. State of Haryana : (2013) 7 SCC 263, the Apex Court has held that there is hardly any difference in so far as the issue of minority is concerned between a child in conflict with law and a child who is a victim of a crime. Following this principle, the age of the victim girl in the instant case, can be determined on the basis of the documents mentioned in Section 94 of the JJ Act, 2015.

As noticed earlier, as per Section 94(2) of the JJ Act, the date of birth certificate from the school is the first document to be considered to prove the age of a child.

In the instant case, Ext.P6 certificate issued by PW8, the Headmaster of the school in which the victim girl was studying, shows that the date of birth of the victim girl is 13.03.2005. PW8 has given evidence that he has certified the age of the child after verifying the entries in the admission register kept in the school. Ext.P8 certificate can be accepted as sufficient proof of the age of the victim girl. Then, it would mean that, at the time of the alleged incidents, the victim girl had completed ten years of age and she was below the age of eleven years.

Offences Proved Against the Accused

As already found, the act of the accused undressing the victim girl and making her naked with the intention to have sexual intercourse with her amounts to an offence punishable under Section 354 of the I.P.C.

As already found, the accused made attempt to commit rape on the victim girl at his house. The victim girl was aged below 16 years at that time. Therefore, if rape had been committed, the accused would have been found guilty and convicted for an offence under Section 376(2)(i) of the I.P.C, for which the minimum sentence provided is rigorous imprisonment for a period of ten years. Therefore, when it is proved that he made attempt to commit rape on a child below the age of 16 years, then it has to be found that he has committed an offence punishable under Section 511 of 376(2)(i) of the I.P.C.

The prosecution has been able to prove that the accused had placed his penis on the vagina of the victim girl. The act of the accused constitutes the offence of sexual assault punishable under Section 8 of the Act.

Therefore, the prosecution has established beyond reasonable doubt that the accused committed the offences punishable under Section 511 of 376(2)(i) and also under Section 354 of the I.P.C and under Section 8 of the Act.

Sentences to be Imposed

As noticed earlier, the minimum sentence for an offence punishable under Section 376(2)(i) of the I.P.C is rigorous imprisonment for a period of ten years. Therefore, for an attempt to commit that offence, the accused is liable to be punished with rigorous imprisonment for a period of five years and also with fine. For the offence punishable under Section 354 I.P.C, it would be proper to impose a sentence of rigorous imprisonment for a period of two years. It is not required to impose separate sentence for the offence punishable under Section 8 of the Act in view of Section 42 of the Act.

Conclusion

In  the  light  of  the  findings  above,  the  conviction entered against and the sentence imposed on the accused by the trial court have to be altered and modified.

Consequently, the appeal is allowed in part and it is ordered as follows:

(i) Conviction of the appellant/accused by the trial court under Sections 376(2)(f), 376(2)(n) and 376(2)(i) of the I.P.C and under Sections 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 is set aside.

(ii) The appellant/accused is convicted for the offences punishable under Sections 354 and 511 of 376(2)(i) of the I.P.C and also under Section 7 read with 8 of the Protection of Children from Sexual Offences Act, 2012.

(iii) In supersession of the sentence imposed on the appellant/accused by the trial court, he is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of three months for the offence punishable under Section 511 of 376(2)(i) of the I.P.C. He is also sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 354 of the I.P.C. No separate sentence is awarded for the offence punishable under Section 7 read with 8 of the Prevention of Children from Sexual Offences Act, 2012.

(iv) The substantive sentences of imprisonment imposed on the appellant/accused as above shall run concurrently.

(v) The appellant/accused is entitled to get set off under Section 428 Cr.P.C.

(vi) If the fine amount is realised, it shall be paid to PW1 as compensation under Section 357(1) Cr.P.C.

The Registry shall immediately send a copy of this judgment to the Superintendent of the jail in which the accused is detained.