Sahadevan, S/o.Velutha vs State Of Kerala

The allegation is of rape of a minor girl, which is countered with an accusation of a spiteful retaliation for the rivalry on stage, that existed between the accused and the father of the victim, both artists, in an indigenous drama form. The accused also attempted to cast a slur on the morals of the victim, without any success.

When the matter was posted for hearing on 08.10.2021, as scheduled two months back on 12.08.2021, there was no appearance for the appellant-convict. We hence directed the Superintendent of Prisons to facilitate a video conference with the appellant-convict. On 12.10.2021 we interacted with the appellant-convict and offered him assistance through a Senior Lawyer. The appellant willingly agreed and Sri.P.Vijayabhanu, learned Senior Counsel, kindly consented to assist and agreed to do the appeal pro bono. After we passed the order, the learned Counsel, who was appearing for the appellant, appeared before us and informed us that he is ready to argue the matter. He also apologized for his absence, which, he explained was only due to the pandemic situation. The accused, but, expressed some reservation about the Counsel he engaged and his desire to have the assistance of a Senior Counsel, as suggested by us. In that circumstance, the learned Counsel agreed to relinquish the brief and it was also agreed by the accused that he has no complaint against the Counsel who was appearing for him. We hence posted the matter today for hearing after directing a State Brief to be appointed.

The offence alleged, was under S.376 of the Indian Penal Code [for brevity, 'the IPC'] and S.5 & S.6 of the Protection of Children from Sexual Offences Act, 2012 [for brevity, 'the POCSO Act']. The accused was sentenced to undergo imprisonment for life and a fine of Rupees One lakh under S.6 of the POCSO Act with default sentence of R.I. for six months. By virtue of S.42 of the POCSO Act, there was no separate sentence under S.376 IPC.

Learned Senior Counsel Sri.P.Vijayabhanu instructed through State Brief Smt.Pushpavathy argued for the appellant and Smt.Sheeba Thomas, learned Govt. Pleader & Public Prosecutor, appeared for the State.

Smt.Pushpavathy took us through the entire evidence. Learned Senior Counsel pointed out that there is undue delay in raising the allegation and also registering the crime. The date of occurrence as seen from the charge is 25.01.2013 and the registration of FIR is on 24.10.2013, after 9 months. When going through the evidence, it is clear that, the child allegedly disclosed the offence five days before registration of the FIR. There is no explanation for the delay on both the counts. It is argued that there is no cogent, believable description of the events leading to and after the commission of crime. The victim and the mother; the latter of whom came to know of it from the former, have different versions at each stage. The entire incident as spoken of by the mother and daughter is full of inconsistencies and do not depict a clear picture. The Certificate of medical examination and the statement under S.164 of the victim are specifically read out to further emphasize the glaring inconsistencies. There is no proof of age and what is produced is neither the extract of the School Register nor the Register itself. The Certificate of the Headmaster cannot be primary evidence or secondary evidence as held in Alex v. State of Kerala [2021 (4) KLT 480]. The learned Senior Counsel would, hence, pray for the acquittal of the accused.

Smt.Sheeba Thomas, learned Public Prosecutor, points out that the Admission Register was seized by the Police and released on kychit. The Headmaster has proved the Certificate, which indicates the date of birth as recorded in the School Register. It is also pointed out that the School is also that first attended by the victim and hence it is sufficient proof of the age of the victim as held in Jarnail Singh v. State of Haryana [(2013) 7 SCC 263]. It is pointed out that the testimonies amply establish the offence against the victim. A ten-year-old child was molested by her own father's friend and she has specifically spoken of the penetrative sexual assault made on her. The delay is inconsequential considering the explanation of the victim, who was threatened against any disclosure. It is only natural that a young girl, that too a minor, would not speak readily of such an intrusion made into her private parts, out of fear and shame. The circumstances of disclosure, nine months afterwards clearly efface any suspicion of external pressure or compulsion. It was in a chance counselling that the child made the disclosure. There is no possibility of the case being one falsely foisted. The victim spoke of the act of molestation and Ext.P12 Medical Certificate further fortifies the accusation of rape. There cannot be found any inconsistency in the evidence of the victim or her mother and the minor discrepancies have to be ignored. The verbal testimony stands fully corroborated by medical evidence, which proves the penetrative sexual assault on the victim by the accused, who admittedly was present at the scene of occurrence.

Ext.P5 is the FIS of the mother of the victim, who narrates the events that occurred on the fateful day and the specific allegation regarding the offence, the latter of which was told to her by the victim, after about 6 months. As per Ext.P5, the father of the victim is a fisherman and they have two children, an elder boy and the younger girl; who is the victim. It is stated that about six months back on the Annual Day of the Government School, Puthenthodu, at about 7 p.m, her daughter, the victim, was found missing. When she went in search of her daughter she saw the victim coming from the Church on the western side of the School, with the accused following her. The victim looked frightened and in anger, the mother beat and scolded her. When she asked her about the disappearance, it was informed that she had gone along with the accused for a drink of water. The mother also stated that it was the accused who taught the children 'Chavittunadakam' [a form of drama indigenous to this part of the State] and that is how her daughter was acquainted with the accused. Later, on 18.10.2013, in the midst of counselling at the School, the victim disclosed the details of what happened on the Annual Day. The School authorities summoned the parents and informed them about the sexual molestation of their child, by the accused on that day. They were also asked to subject the child to medical checkup since the child was suffering from physical discomforts. After coming back from school, the parents enquired with their child and she came out with the details. According to the mother, the victim told them that, when the Annual Day programme was going on, the accused took the victim to another part of the school building and after making her sit on his lap, kissed her and touched on various parts of her body. Then he offered to buy her something to drink and took her to the Church situated on the western side of the School. Near the cross installed, in front of the Church, the accused again started kissing the victim and caressing her on the chest and stomach. Then, her undergarments were removed and the accused penetrated the genitals of the victim. Later he cleaned her genitals with his dhoti. On 22.10.2013 the victim was taken for a medical checkup, the result of which is not received from the hospital. After the medical checkup, the victim was removed to 'Prathyasa Bhavan', a shelter home, where she was residing at the time when the FIS was given. Pertinently one date was mentioned in the FIR and despite the allegation of the rape having been committed on the Annual Day of the School, there was no attempt by the prosecution to elicit the exact date from the Headmaster, the teacher of the School or the other witnesses examined.

The mother, the author of the FIS, was examined as PW4 before Court. She stated that her husband, who was a fisherman, was also an artist in the indigenous drama form. She affirmed Ext.P5 and asserted that it was given on the allegation of sexual molestation of her daughter. PW4 came to know of the molestation on 18.10.2013 when she was summoned to the School, where she was informed of the details by one Annie Teacher, who is PW3. According to her, on the fateful day, in connection with the Annual Day of the School, there was this indigenous drama form conducted by the father of the victim with ten children, one of whom was their elder son. The mother and daughter had gone to the School to see the drama, after which performance, the family proceeded to a classroom to remove the costume worn by the father and son, who had performed in the drama. The victim was standing outside the classroom. After removing the costume, when they came out, the victim was not seen anywhere. Later, the victim came to them, and in a frightened state informed them that she had gone with the accused, who promised to buy her sweets and water to drink. The child did not say anything else. Immediately we notice that, this is quite contrary to what the mother said in the FIS. In chief-examination, she did not speak of the daughter having come from the direction of the Church on the western side followed by the accused as narrated in the FIS. But, in cross-examination she stated that when they were searching for her daughter, she came; with the accused following her. She admitted that both her husband and the accused were drama artists and the accused used to teach the children, this particular drama form. She was asked a specific question as to whether she enquired where the daughter disappeared to, which was answered in the negative, again contrary to her FIS.

In re-examination, PW4 stated the date of birth of the victim to be 10.01.2004. We immediately find that even if, as per the cited decision, the Certificate produced is not acceptable, the testimony of the mother is substantive evidence, which can be relied on. Here, we have to also observe a serious infirmity committed by the prosecution, in not having produced the extract itself, after it was seized and handed over to the Headmaster. The seizure of the Register maintained by the School was proved and so was the Kychit by which the Register was handed back since it is one, ordinarily maintained and updated in the School. For proper proof of date of birth, either the copy of the extract should have been produced, or the Register itself which could have been marked and proved through the Headmaster. This would have also proved that the school was one, to which the child victim was first admitted. In any event, the mother having deposed on the exact date of birth, which was also not challenged by the defence, we find the victim to be a minor at the time of the alleged offence.

PW1, the victim, in her testimony stated that the drama was in the daytime, which she, along with her mother, viewed; a clear contradiction. After the drama, she was alone, since her mother was helping her father and brother to remove the costumes they wore for the drama. Her family was inside the classroom and she was standing outside on the steps when the accused called her with the promise of buying her sweets. She was taken to the compound of the Church near the School and he did dirty things to her. She also spoke of a penetrative sexual assault, after kissing her on the lips and lying on her body. Her further testimony is that, she told the same to her Class Teacher, Sreekala Teacher and not to anybody else. There is no clarity as to whether the Class Teacher and Sreekala Teacher are the same persons or different. Both, significantly, were not examined. To a specific question as to when she divulged it to her parents, she answered that she did it on the next day afternoon. She also testified that she did not speak about it immediately, since the accused had threatened to kill her; which was never earlier stated by her. A leading question was put by the prosecution, whether she divulged it to Annie Teacher, to which she answered 'Yes'. She admitted the statement under S.164, which was marked as Ext.P1. In cross-examination, she stated that she had gone to the Court at Aluva [where the S.164 statement was taken] accompanied by the Police and the Police had instructed her on what she had to tell the Magistrate. Of course, in re-examination, she stated that what she stated in Court was what she suffered.

PW3 is the Counsellor, who is referred to as Annie Teacher by PW1. According to her, on 18.10.2013, detecting some behavioural changes, she called the victim for counselling. It was during the counselling, the victim divulged the sexual molestation committed by the accused. She also spoke of a report having been made to the Childline and a Counsellor having come from the Childline. School Headmaster was also informed and so were the parents. In cross-examination, PW3 stated that the victim was hyperactive and was not good at studies. It was also stated that the victim was regularly absent in class and was in-disciplined, for reason of which she was subjected to repeated counselling. In chief-examination she also makes a contradicting statement that she informed the Childline only on the next day.

The entire case of the prosecution rests on the testimony of PW1, PW3 and PW4; the victim, the School-Counsellor and the victim's mother. As we already noticed, there are very serious discrepancies in the testimony. True, the FIS was registered based on what was told to the mother by the victim, as to the crime proper, which we will come to a little later. As we observed there is no specific date mentioned by anybody and none was elicited by the prosecution with reference to the Annual Day of the School. On the circumstances which led to the crime, PW4's testimony is that immediately after the drama, participated by both her husband and son, the family had proceeded to the classroom to remove the costumes the father and son wore for the drama. According to PW4, when she came out, the victim who was standing outside the classroom was not seen. The family went in search of the missing girl and she was seen coming from the direction of the Church situated to the west of the School, with the accused following, as stated in the FIS. PW4 did not subscribe to this version in chief-examination. She merely stated that when they came out of the classroom, the girl was missing and they searched for her and a little later the girl appeared and she was looking frightened. It was her statement before Court that she did not enquire with her daughter as to where she disappeared to. But in the FIS, it was specifically stated that she questioned her daughter and it was replied that she had gone with the accused for a drink of water. More important is the deposition of PW4, in cross-examination, that they did not see the prize distribution, after the drama. PW1, the victim, however categorically stated before Court that she saw the prize distribution.

There is serious inconsistency in the above deposition since according to the mother, PW4, the family had moved to the classroom immediately after the drama and the girl child was standing outside. When she came out of the classroom, the girl was missing and later she appeared and they proceeded home. The daughter, PW1, however, states that after the drama she saw the prize distribution also. PW1, in chief-examination, stated that she had moved with her family to the classroom and was standing outside the classroom when her mother was helping her father and brother to remove their costumes and while she was standing outside she was enticed by the accused and taken to the Church compound, which lies to the west of the School. This does not agree with her testimony that she viewed the prize distribution which was after the drama. If PW1 had been watching the prize distribution, definitely her missing and later appearance, which is said to have occurred immediately after the drama, is a cooked up story.

On the offence committed also, in the FIS it is stated that the child was molested twice, as divulged by her to the mother, once inside the school building itself while the programme was going on and afterwards in the Church compound. Two attempts are seen recorded in Ext.P12 Medical Certificate also. PW1 does not speak of the first instance before Court, nor did PW4. There is also a serious discrepancy as to how the incident came to be disclosed. The date of occurrence is nowhere mentioned and the disclosure to the Counsellor on 18.10.2013 is said to be of an incident which occurred six months back. The date, as discernible from the charge is about nine months back, ie. 25.01.2013. As we earlier noticed, going by the narration of PW1, she informed the matter first to her Class Teacher, and then to Sreekala Teacher, who have not been examined before Court. She also stated that she did not divulge it to anybody else and her father and mother were told only on the next day, noon. Going by the sequence of narration in chief-examination, it appears as if the victim disclosed the offence immediately after it was committed, first to her class-teacher, then to another teacher and later to her parents on the next day. The inconsistency assumes more significance in the context of her first assertion that, but for her Class Teacher and Sreekala Teacher, she did not divulge the incident to anybody else. As we noticed, a leading question was put to her as to whether she spoke of the incident to PW3, which was answered in the affirmative, which has to be eschewed completely. PW3 is an artificial interpolation not spoken of voluntarily by the prosecutrix herself. More confusion is created by her statement in cross-examination that she divulged the incident to Lathika Shibu, who is also described as a Teacher. Lathika Shibu, according to PW3, is the Counsellor attached to Childline and not a Teacher of the School. The said Lathika Shibu has also not been examined before Court. In the context of the delay in raising the complaint and registering the crime, all the above inconsistencies cast serious doubt on the version put forward by the witnesses, of an incident that occurred six months back; which according to the prosecution was ten months back.

PW3, who is the Counsellor attached to the School does not speak of any reference made by the class teacher or Sreekala Teacher nor was she present when the victim talked to the Counsellor from the Childline. It is also quite surprising that on information being passed on to the Childline, it is PW3's deposition that they came only on the next day. PW3 also prevaricates with her statement that the matter was informed to the Childline only on the next day. Either way, a question arises as to why immediately an FIR was not registered and steps taken to subject the child to medical examination. The disclosure of the child was on 18.10.2013 and the FIS on 24.10.2013, after six days, without any explanation. The mother, in the FIS, also says that as per the instructions given to her in the counselling, which was held on 22.10.2013, the victim was taken for medical check-up at the General Hospital, Ernakulam and that they are awaiting the medical examination report. Ext.P12 is the medical examination report which shows the date and hour of examination as 25.10.2013 at noon, ie, a day after the FIR was registered, which examination was conducted at the Women and Child Hospital, Mattanchery. The examination result of the child at the General Hospital, Ernakulam has not been produced. Again, if such an examination was conducted on the directions of child-line, the hospital would have intimated the jurisdictional police.

Much reliance has been placed by the learned Public Prosecutor on Ext.P12 medical examination report; on the history recorded and the expert opinion. The history recorded is of sexual molestation, twice, by the accused after the drama, which was not spoken of by the victim before Court. It is also recorded that the victim said that, she had forgotten about it. We find the history again to be not in accordance with the deposition of the victim in which she speaks of only one incident. As to the expert opinion, what is recorded is 'hymen torn' and 'vagina admits one finger'. Of course, if both were negative it would have helped the accused insofar as there being enabled, a positive finding that there was no penetration. However, it is trite, that torn hymen or the vagina admitting one finger, is not conclusive proof of penetrative sexual intercourse. In fact in Ext.P12 itself, the Doctor has opined: 'No evidence of recent sexual contact-L/E (local examination) suggestive of ? penetration-final opinion pending after chemical examination'. The question mark indicates a reasonable doubt as to penetration. The medical opinion is hence, inconclusive. The reference to chemical examination ends with Ext.P12; for which no further proof is provided. We do not find Ext.P12 to be sufficient to find the victim to have been subjected to a penetrative sexual assault.

As is vociferously argued by the learned Public Prosecutor, the victim indeed spoke of a penetrative sexual assault, in the Church compound, in her testimony before Court, which fact is also revealed from the FIS. However, the attendant events which occurred immediately before and after the incident as we noticed, spoken of by PW1, the victim, and PW4, the mother, does not fully tally and inspire confidence. The later narration of how the allegations came out also does not impress us for reason of the glaring inconsistencies. At the risk of repetition, we say that the narration in chief-examination indicates a disclosure to the Class Teacher and one Sreekala Teacher immediately after the incident and to her parents on the next day. The learned Public Prosecutor would say that, the next day spoken of is after the day of counselling. In the FIS, it has been stated that the parents were summoned and informed of the molestation and later when they came back from school, the parents enquired with the child and got the details. This happened on the same day and not on the next day of the counselling, for sure. If there was immediate disclosure, then there is a question of why a complaint was not raised immediately. We are quite conscious of the fact that in instances of sexual molestation of girls, especially minors, there is an attempt by the family to suppress it and cover it up. True, the delay would also be inconsequential, if there is sufficient indication that the delay was occasioned only because of the hesitance on the part of the prosecutrix to make a full disclosure or there is some other compelling reason. The delay has to be looked at on the facts and circumstances of each case. There is absolutely no explanation for the delay. Quite strangely, in the instant case, when the victim appeared after a brief disappearance, the mother says she did not ask her about the disappearance. And there is also serious discrepancy about how disclosure was made, after nine months.

We also looked at Ext.P1, the statement made by the victim to the Magistrate, under S.164 Cr. PC. She speaks of having gone to see the drama in which her brother and friends were acting. She says that it was nighttime when the drama finished, contrary to her deposition before court. When her father and mother were removing the costume worn by the brother, she was standing outside the class room. Then, the accused covered her mouth and forcefully took her to the church compound, where he committed the assault. This is again inconsistent with her own version and the version of the mother, in the FIS and before Court. In this context, we also have to examine the site plan as produced at Ext.P8. There is considerable distance from the school to the backyard of the church. The school and the church are also on the opposite sides of a canal. The child, if taken forcefully had to be taken through the public road and over the bridge on the canal, to enter the church compound. The scene of occurrence is stated to be the southwestern corner of the church property. In the FIS, it was stated that the victim volunteered, that she had gone with the accused for a drink of water. Before the Magistrate, when the statement was recorded under S.164, the victim's version was of forceful abduction. Quite impossible, because the school compound would be full of students and parents, for reason of the Annual Day celebration and the church compound is accessible only through the main road. Before Court, the victim had yet another version, that she was enticed by the offer of a toffee.

True the prosecutrix spoke of a sexual assault by the accused, ie; of the accused having inserted his genitals into her private parts and she having been caressed and kissed by him. But the fact remains that the attendant circumstances, of what transpired before and after the alleged rape, spoken of by the victim itself is very inconsistent and belies the very allegation of rape. We cannot place reliance on the testimony of the witnesses, especially that of the prosecutrix and the mother, which projects serious discrepancies. The proof required is one beyond reasonable doubt and the lingering doubts which agitate our minds, commend us to acquit the accused giving him the benefit of doubt. We find the evidence led, to be insufficient to find the accused guilty, beyond all reasonable doubt. We do not think the evidence of the prosecutrix is of a sterling quality to find the accused guilty of the serious allegations made against him. The learned P.P would argue that there is no cause shown or proved, as to why such a false allegation is made; especially involving a ten-year-old child. Of course, the counter-allegations made of a vengeful action has not been proved. The slur on the character of the victim, attempted in defence, also has not been established. But that alone does not commend us to convict the accused. It is trite, that a motive insofar as an accused is concerned, in, say an offence of murder, though is an important link; its total absence does not commend an acquittal if there is direct evidence, ocular or circumstantial. Applying the same principle, it also has to be stated that, even if the allegation of a vengeful action is not proved, that alone cannot result in a conviction. As does motive, so does vengeance, reside in the inner recesses of the mind, often not possible of being ferreted out by a third party. The defence having failed to establish its version, does not absolve the prosecution from establishing the case set up, beyond reasonable doubt. The evidence led falls short of proving the guilt beyond reasonable doubt and fails to establish the crime alleged unequivocally and unerringly.

We hence allow the appeal and acquit the accused giving him the benefit of doubt. The accused shall be released forthwith if he is not required in any other case.