Sainudheen vs State Of Kerala

C.S.Sudha, J.

This appeal under Section 374(2) Cr.P.C. by the sole accused in S.C.No.593/2015 on the file of the Court of Session, Ernakulam, has been filed through the Superintendent, Central Prison, Viyyur under Section 383 Cr.P.C challenging the conviction entered and sentence passed against him for the offences punishable under Sections 376 (2) (n), 506 (ii) IPC, 5 (l) & (n) r/w 6 of the PoCSO Act, and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The prosecution case as described in the final report/charge sheet is as follows: - The accused with the intention of committing rape on his daughter, aged 12 years, on several days during the period from 27.05.2014 to 27.02.2015, had repeated aggravated penetrative sexual intercourse with her. The place of occurrence is their residence bearing No. XVI/547, Kottuvally Grama Panchayath. The accused also threatened his daughter with dire consequences in case she disclosed the matter to the outside world. Hence the accused is alleged to have committed the offences punishable under the above-mentioned Sections.

Based on Ext. P1 FIS of PW1, the victim, given on 05.03.2015 and recorded by PW12, A.S.I of North Paravur Police Station, Ext. P14 FIR, that is, Crime No. 303/2015 was registered by PW15, the then Sub Inspector of the same Police Station. PW14, the then Circle Inspector, Paravur conducted the investigation and submitted the charge sheet before the court. On submission of the final report before the Sessions Court, the case was taken on file as S.C. No. 259/2015.

When the accused appeared before the Court, he was furnished with copies of all prosecution records. On 17.10.2015, the court framed a charge for the offences punishable under Sections 376 (2)(n), 506 (ii) IPC, 5(l) & (n) r/w 6 of the PoCSO Act, and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 15 and got marked Exts. P1 to P14 to prove the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

As the Sessions 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 evidence was adduced by the accused.

On a consideration of the oral and documentary evidence and after hearing both sides, the learned additional sessions Judge, by the impugned judgment, convicted and sentenced the accused to undergo rigorous imprisonment for life, that is, imprisonment for the remainder of his natural life and to a fine of ₹10,000/- for the offence punishable under Section 376 (2) (n) IPC and in default of payment of fine, to undergo rigorous imprisonment for two months; to undergo rigorous imprisonment for five years and to a fine of ₹5,000/- for the offence punishable under Section 506 (ii) IPC and in default of payment of fine, to undergo rigorous imprisonment for one month; to undergo rigorous imprisonment for six months and to a fine of ₹5,000/- for the offence punishable under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and in default of payment of fine, to undergo rigorous imprisonment for one month. No separate sentence has been imposed for offence under Section 5(l) & (n) r/w 6 of the PoCSO Act in view of Section 42 of the PoCSO Act. The substantive sentences has been directed to run concurrently. Set off has been allowed. The accused was already sentenced to imprisonment for life in S.C. 259/2015. That sentence of imprisonment has been directed to run concurrently with the sentence in this case. It has also been ordered that if the fine amount is realized, the same shall be given to PW1, the victim, under Section 357 (1) (b) Cr.P.C. Considering the family background of PW1, the learned trial judge has requested the District Legal Service Authority to consider awarding compensation to her under the provisions of the Kerala Victim Compensation Scheme, 2014.

The point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court are sustainable or not.

Heard Ms. Saipooja, the learned counsel appointed as legal aid counsel for the appellant and Ms.Sheeba Thomas, the learned Public Prosecutor.

The main arguments advanced on behalf of the accused are –(i) conviction on the sole testimony of PW1, the victim, is not possible in this case as her testimony is not of sterling quality; (ii) the charges have not been proved; (iii) the investigation conducted in this case is faulty and (iv) the trial court has not cautiously exercised its powers under Section 165 Evidence Act, which has resulted in causing injustice to the accused. It was argued relying on the dictum in Santosh Prasad v. State of Bihar, 2020 KHC 6155, that the sole testimony of PW1 cannot be relied on to find the accused guilty of the offences alleged against him as the testimony of PW1 is not of sterling quality. There are material discrepancies, contradictions, inconsistencies, embellishments, and variations in the deposition of PW1. Vital improbabilities have come out in her deposition. There are inconsistencies in the testimony of PW1 and the other witnesses. There is also an unexplained delay in lodging the FIR. These grounds, according to the counsel, are sufficient to give the benefit of doubt to the accused.

In Santosh Prasad (Supra) it has been held that if conviction has to be based on the sole testimony of the victim in a rape case, the deposition of the victim must be of sterling quality. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of such a statement made by the witness. What would be more relevant is the consistency of the statement right from the starting point, till the end. Another quality of a sterling witness is that she should be able to withstand any length of cross examination. Delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses are factors that would persuade a court to look for corroboration prior to convicting the accused based on the sole testimony of the victim. Therefore, the argument is since the sole testimony of PW1 is not of sterling quality, the trial court went wrong in convicting the accused based on her testimony and hence the impugned judgment is liable to be set aside.

Keeping in mind the principle laid down in the aforesaid case let us consider whether the testimony of PW1 suffers from any material discrepancies, inconsistencies, contradictions, or embellishments or is in any way inconsistent with the testimony of the other prosecution witnesses. Ext.P1 FIS of PW1 is seen recorded on 05/03/2015 at 12:00 noon by PW12. The statement was recorded at the school where PW1, then aged 12 years was studying. PW3, one of the teachers of PW1 was also present when the statement was recorded. PW1 who is none other than the daughter of the accused in Ext.P1 says that the first incident of abuse was on a day in May 2012 when she had gone to buy books from her school for the new academic year. On that day at night at about 8.30 pm, there was a power failure. At that time, she along with her younger sister Bismi were lying in a cot in the bedroom of their house. Bismi fell asleep. Her mother had gone to bring her younger sister, Farhana from the tuition class. Her father lifted her from the cot, laid her on the floor, undressed her and pressed his penis into her vagina. She tried to push him away. But he did not allow her. After some time, her father got up and moved away. She woke up Bismi. Both of them went into the bathroom, and she washed herself. On several subsequent days also, her father sexually assaulted her in the like manner. Her father warned her from revealing the incident to her mother or anybody else. He threatened her with dire consequences if she did so. She did not reveal the abuse to anybody due to fear. The last incident of abuse was on 27/02/2015. On 02/03/2015, she told her friends Reshma, Navya and Megha about the abuse. Reshma informed Bhagirathy teacher. The abuse continued from May 2012 till 02/02/2015. Her father used to abuse her when he was drunk or otherwise and whenever he was able to get her alone in the house. From 01/03/2015 onwards they are residing in a rented building owned by Haider, which building is situated behind the Block Office, Aalakad.

11.1. PW1, when examined more or less stands by her case in Ext. P1. She deposed that in February 2015, when she was in her 7th Grade, Mani teacher (PW3) had taken an awareness class for the girl students. After the class when she cried, her friends Reshma, Navya and Megha inquired about the reason for the same. She then revealed the abuse to them. Her friends then informed the matter to Mani teacher, pursuant to which the teachers asked her about the same. She informed the teachers about the abuse. PW1 deposed that her statement recorded by the police is Ext.P1. She also deposed that the abuse was during the period from the year 2012 till 2015. Ext.P2 is the statement given by her to the Magistrate. According to PW1, the abuse had taken place in the bedroom of their rented house at Kottuvally. On entering the house, the bedroom is the first room to the right. When she attempted to tell her mother about the abuse, her father beat her. On holidays her father would insist on the children sleeping in the afternoons. Once they fall asleep, her father would come and abuse her. In the cross-examination she deposed that while she was in her 7th grade, they were staying in a rented house at Kottuvally, owned by one ‘Itha’ (ഇത). Then she deposed that the rented house is one belonging to an advocate and that while residing there her father had not abused her. When she was studying in the 7th grade, her father had not abused her in any way. He abused her when she was in the 8th grade. At this point the learned trial judge intervened and asked PW1 a few questions which are- “Were you abused by your father this year in the month of February (PW1 was examined before the trial court on 13/11/2015) (Q) Yes. (A). Which class were you studying then (Q) 7th Grade. (A). At that time in which house where you residing in (Q) In the rented building at Kottuvally belonging to an advocate (A).” On further cross-examination PW1 deposed that during the period from April 2014 till February her father, a coolie, used to regularly go for work. He would leave for work between 7.00-7.30 am. and return by 8 pm. Her father goes to work on Sundays also. She denied the suggestion put to her that she had made up a false case against her father because he had beaten her for not studying.

PW2, Reshma, a friend and classmate of PW1 deposed that Mani teacher had taken a class about menstruation and had told them that they should not permit boys or others to touch their body. She saw PW1 crying when the class concluded. She asked the reason to which PW1 said that her father does the same things to her as shown in the awareness class. PW1 told her that the former’s father used to touch her. On an earlier occasion she had seen PW1 inflicting a self-injury on her hand by poking with a stick. When she asked PW1 the reason for the same, the latter told her that it was done to escape her mother’s compulsion to do all the household chores. However, after the awareness class, PW1 disclosed that the self-injury was actually inflicted due to the sexual harassment by her father. PW2 further deposed that PW1 had also told her that the latter’s father had threatened her with dire consequences and hence the reason why the abuse was not revealed to the outside world. In the cross-examination she deposed that it was one week after the awareness class that PW1 had told her about the abuse.

PW3, Mani teacher, deposed that she had been working as a teacher at Vocational Higher Secondary School, Kaitharam from the year 2003. PW1 is a student in the 7th Grade. In February 2015, she had taken an awareness class for the girl students of the 7th Grade regarding menstruation and changes that take place in their body. She had stressed on the aspect that they should not allow men including their father to touch their body. After about a month or so, PW2 told her about the abuse. She informed the headmaster who informed the child line authorities and the police.

PW4, another teacher at the school deposed that PW3 had informed her about the abuse of PW1. They informed the headmaster and as informed by the latter, the police came to school and recorded the statement of PW1.

PW5, the then Headmaster, deposed that he came to know about the incident when he was informed of the same by PW3. He informed the child line authorities and the police. On the request of the police, he had given Ext. P3 extract of the school admission register as per which the date of birth of PW1 is 24.06.2002.

PW6, the mother of PW1 deposed that earlier they were residing in a rented house owned by an advocate. PW1’s teacher had called her to the school and told her that exams were nearing and so she needed to pay attention to PW1. On the next day, she was again called by the teacher to the police station where she was informed of the abuse. She fainted on hearing about the incident. In the cross-examination, PW6 deposed that on the 2nd of March they had shifted their residence from the house owned by an advocate to the house of one Jasmine. The whole day was spent shifting articles to the new house. When they shifted to the new house, PW1 was feeling uneasy (തളർച ഉണണ്ടായയ). The accused took her to the hospital. PW1 had conjunctivitis. By afternoon they returned home. Two days before that PW1 had not gone to school. After PW1 was taken to the doctor, she started going to school the next day on wards. The teacher had first summoned her to the school on 03/03/2015. It was on the 4th; she was called to the police station. PW6 admitted that the accused used to thrash PW1 for not studying. When she asked her daughter, the latter told her that the accused had placed his penis on her thigh and as she had been warned and threatened by the accused, she refrained from disclosing the abuse to anyone. PW1 had also told her that the abuse had started while she was in the 5th Grade.

Is the aforesaid evidence sufficient to find the accused guilty of rape and aggravated penetrative sexual assault, is the question that requires to be answered. In Rafiq v. State of U.P., (1980) 4 SCC 262, it has been observed that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying lifestyles and behavioral complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny.

17.1. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case (State of Himachal Pradesh v. Asha Ram, AIR 2006 SC 381).

17.2. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, it has been pointed out that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief, or suspicion? It was further pointed out that on principle the evidence of a victim of sexual assault stands on a par with evidence of an injured witness. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexual offence is entitled to greater weight, absence of corroboration notwithstanding.

17.3. Further, rape is not merely a physical assault. It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They have to deal with such cases with utmost sensitivity. The courts have to examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations (State of Punjab v. Gurmit Singh, (1996) 2 SCC 384).

In the case on hand it is true that there are certain discrepancies regarding the dates deposed by PW1 as well as the other prosecution witnesses. However, that has not turned out to be fatal in the circumstances of this case because the core prosecution case of sexual abuse and rape has not been discredited in any way. What must be kept in mind is that PW1 was merely 12 years old when Ext.P1 FIS was given. Ext.P1 deals with the third period/phase of the abuse by the father. According to PW1, the abuse started from the year 2012 onwards. There are two other cases registered against the accused for the abuse during the said period also. Therefore, it was for a long period of time that the abuse is stated to have taken place. In the year 2012, PW1 must have been about 8 to 9 years old. Even at the time of giving Ext.P1 FIS, she was just 12 years old. Therefore, to expect her to recollect and depose with mathematical precision, the exact dates on which the abuse took place is asking for the impossible, which is also not the rule or norm or expected of a rape victim. Further, in addition to the testimony of PW1, the testimony of the other witnesses also lend assurance to her testimony.

Another argument advanced is regarding the delay of two days in registering the FIR. It was pointed out that though PW3 was informed of the abuse on 02/03/2015, the FIS is seen recorded only on 04/03/2015. We do not think that this delay of two days is fatal in the facts and circumstances of the case. In cases of this nature, it cannot be expected that the police would be informed immediately without some fact checking by the persons concerned. Therefore, the delay of these two days is no ground to discard the prosecution case.

It was further pointed out that PW1 has not been able to withstand cross-examination in this case and that she kept changing her stand. There was unwarranted interference from the trial Judge to save the case which prejudicially affected the accused. It was pointed out that in the cross-examination, PW1 deposed that while she was studying in the 7th Grade, they were residing in a rented house belonging to one 'Itha'. During the said period, her father had never abused her. This, according to the learned defence counsel, shatters the entire prosecution story. Here again we do not agree with the argument advanced. PW1 in the cross-examination has deposed thus “7-)0  കണ്ടാസയല പഠയക മ ണ്ടാള മ ണ്ടാട വളയയല ഒര ഇതയ ട  വണ്ടാ    വ¬ടയലണ്ടാണ"  തണ്ടാമസയചയര നത". വക¬ലയട& വണ്ടാ  വ¬ടയലണ്ടാണ"  ആ  വ¬ടയല വച" ഉപ എടന ഉപദ+വയചയടയല. ഞണ്ടാന 7-)0 തരതയല പഠയക മ ണ്ടാള ഒര  വർ/കണ്ടാല0 എടന ഉപ ഒര തരതയല 0 ഉപദ+വയചയടയല. 8-)0 class ല പഠയക മ ണ്ടാഴണ്ടാണ" എടന ഉപ ഉപദ+വയചത". (ഈ വർ/0 Feb  27 ന" ഉപ ഉപദ+വയച മവണ്ടാ? (Q) ഉപദ+വയച  (A)  അമപണ്ടാള ന¬ ഏത"class  ലണ്ടാണ" പഠയചയര നത"(Q) 7-)0 കണ്ടാസയല (A) അകണ്ടാലത" ഏത" വ¬ടയലണ്ടാണ" തണ്ടാമസയചയര നത"(Q) മ ണ്ടാട വളയയയടലവക¬ലയട&വണ്ടാ  വ¬ടയല(court question)……….”.

The interference by the learned trial Judge and putting questions to PW1 invoking the power under Section 165 Evidence Act cannot be said to be unwarranted as argued by the learned defence counsel. This provision empowers the judge to put questions to a witness and interrogate him on matters which appear to him relevant to the matter in dispute. It, however, specifically provides that the right of cross-examination regarding the answers of the witness in reply to the questions put by the court is not an absolute one but could be exercised only subject to the permission of the court. The discretion is that of the court either to permit or refuse to permit the cross-examination in such a case, but the discretion must be exercised judicially and ordinarily, the principles of natural justice would demand that the discretion should be exercised in a manner that may not result in injustice. The answers given in reply to the questions in examination by the court under Section 165 may or may not tend to adversely affect a party to the proceedings. However, such a party should not normally be refused permission to cross-examine, in exercise of the discretion.

Here it would be apposite to refer to the observations of the Hon’ble Supreme Court in Ram Chander v. State of Haryana, AIR 1981 SC 1036. The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses to ascertain the truth. Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him to discover the truth and to advance the cause of justice. For that purpose, he is expressly invested by S.165 of the Evidence Act with the right to put questions to witnesses. Indeed, the right given to a Judge is so wide that he may ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. With such wide powers the Court must actively participate in the trial, to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse, or intimidate the witnesses.

22.1. The Apex Court then goes on to refer to the observations of Lord Justice Denning in Jones v. National Coal Board, (1957) 2 All ER 155 wherein it has been held thus-

“ The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrel-evancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If lie goes beyond this, he drops the mantle of the Judge and assumes the robe of an advocate; and the change does not become him well".

The Apex Court went further and said that it is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The Apex Court further said- “The judge, like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young and flatter the old".

22.2. In State of Rajasthan v. Ani alias Hanif, AIR 1997 SC 1023, it has been observed that reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation. A taciturn judge may be the model caricaturist in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race. A judge is expected to actively participate in the trial, elicit necessary materials from witnesses at appropriate context which he feels necessary for reaching the correct conclusion. There is nothing which inhibits his power to put questions to the witnesses, either during chief examination or cross examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimised.

In the light of the above precedents, the learned trial judge was certainly justified in interfering when he felt that PW1 had committed an error or a slip. It is not that, after the said questions were asked, the defense counsel was not permitted to further cross-examine PW1. PW1 is seen to have been extensively cross-examined thereafter also. Therefore, the argument that the interference by the trial judge was unwarranted etc. is only liable to be rejected.

It was further pointed out relying on the dictum in Royson v. State of Kerala, 2018 (1) KLJ 361: ILR 2018 (1) Ker. 333, that PW1 had an axe to grind against her father and hence the reason why she had cooked-up such a story. It was pointed out that evidence has come out on record through the testimonies of PW1, PW2 and PW6, the mother, that the accused/father used to scold and thrash PW1 for not studying. This, according to the defense counsel, is the reason for PW1 to cook-up such a false story. The dictum in Royson (Supra) is based on an entirely different set of facts. In the said case evidence had come on record which probabilised the defense version that the girl therein was deposing a false story against her father. It had come out that she had eloped with somebody and later returned home. This was questioned by the father and she was also beaten up by him. Thereafter the daughter came up with a story of abuse. In addition to the same, there were inherent improbabilities in the story put forward by the victim in the said case. The girl had alleged rape by her father while she along with her mother and her 11-year-old brother, were sleeping together in a mat on the floor of their house. All these aspects were taken into account to disbelieve the victim therein.

That is not the position in the case on hand. Here the abuse took place when PW6, the mother, had gone to work. Further, it cannot be imagined that a daughter would cook up such a false story against her father for the latter having reprimanded or thrashed her for not studying. There is one another aspect that needs to be kept in mind while analyzing or appreciating the testimony of a child witness. The child is speaking of something which generally happens in privacy. If viewed through the child development lens, younger children (under the age of 12), physiologically, cognitively, and emotionally are not ready for sexual activity in that they also have little knowledge and awareness about sex and sexuality. It is therefore absurd to say that children are “making up stories” about sexual abuse—how can a child concoct stories about an issue he/she knows nothing about? And for this reason, when young children are observed to be engaging in behaviours that appear sexual, it is likely that they have witnessed sexual behaviour or that someone has performed these behaviours with them—someone doing them to another person—which is when it is suspected that a child has been sexually abused. Furthermore, children who report sexual abuse cannot be said to be lying and accused of having a vendetta, as there is no motive, and there is no motive because there is no awareness of the consequences of the abuse to the perpetrator, let alone knowing what PoCSO says or that it even exists. (Ramaswamy S, Seshadri S. Our failure to protect sexually abused children: Where is our ‘willing suspension of disbelief’? Indian J Psychiatry 2017; 59:233-5- published in the Indian Journal of Psychiatry 2017, Volume 59 pages 233 to 235).

It is true that a child can be easily tutored and made to depose a false story. Here in this case, the defense has no case that PW6, the mother, had tutored the child. There is no reason why the teachers of PW1 should tutor the child and make up such a false story. Therefore, in this case there is no possibility or probability of PW1 having been tutored.

The testimony of PW1 relating to abuse and rape is corroborated by medical evidence also. PW8, Junior Consultant in Gynecology, Taluk Hospital, Paravur, deposed that on 05/03/2015 at 3.15 p.m., she had examined PW1 and issued Ext.P5 certificate. On examination she found the hymen torn, which was an old tear. PW8 found evidence of penetration. In the cross-examination a suggestion is seen put to PW8 that the vaginal condition as noted in Ext.P5, could be caused by masturbation also, to which the doctor answered in the affirmative. That may be so. In the present case what we are concerned with is whether the vaginal condition of PW1 was such that because of rape and abuse by the accused. That has been established by the testimony of the prosecution witnesses. Moreover, PW1 was never asked whether she had the habit of masturbation and therefore, to merely put it to the doctor, and then argue that such a condition would be possible due to masturbation also, cannot be countenanced.

Another argument advanced is that the scene of occurrence has not been proved in this case. As per the final report, the place of occurrence is a bedroom in the building bearing No.XVI/547, Kottuvally Grama Panchayat. This room has not been identified by PW1. It was argued that there is nothing to connect Ext.P4 scene mahazar and Ext.P7 rental agreement to the scene of occurrence in this case. The scene of occurrence was pointed out by the accused to the police which is evident from Ext.P4 scene mahazar. This is clearly inadmissible in evidence. Ext.P7 rent deed has been produced by PW10, who has not executed the same. The document has not been produced from proper custody. Ext.P7 is also insufficiently stamped and hence inadmissible in evidence. The door number referred to in Ext.P7 rental agreement is different from the number mentioned in Ext.P4 mahazar and in Ext.P6 site plan. These defects, according to the learned defense counsel, will have to go in favour of the accused.

Here we refer to the evidence of PW10 and PW7. PW10 deposed that as per Ext.P7 rental agreement, his son-in-law's house had been rented out to the accused for the period from 2011 to 2015. He is the person who is looking after the affairs of the building as his son-in-law is abroad. In the cross-examination, he deposed that while executing Ext.P7, the number of the building was XIV/81 and thereafter, the number had changed thrice. He also deposed that police had come to the house after it had been vacated by the accused and family.

PW7 is an attestor to Ext.P4 scene mahazar prepared by PW14, the investigating officer. PW7 deposed that she knows the accused and family who had resided on rent in a house belonging to an advocate. The said house is situated two houses away from her residence. In the cross-examination she deposed that she goes to work at 6.00 am and returns by 4.00 p.m. On the said day she returned early from work by about 2.30-3.00 p.m. Thereafter, she had attested in Ext.P4. It is true that Ext.P4 mahazar is stated to have been prepared at 10.00 a.m. on 06/03/2015. Therefore, there is inconsistency regarding the time at which PW7 is stated to have attested the mahazar. However, there is no challenge seen to the testimony that PW7 had in fact attested Ext.P4. It is also true that PW1 was not present when Ext.P4 scene mahazar was prepared and the mahazar was prepared as shown by the accused. This is certainly a defect as pointed out by the learned defense counsel. But drawbacks or deficiencies in investigation is not the fault of PW1. The fact that PW1 was staying in a rented building belonging to an advocate is proved by her testimony as well as the testimony of PW6, her mother. PW7, a nearby resident, also endorses this case of PW1 and her mother. It is true that PW10 is not the person who executed Ext.P7 rental agreement. However, he deposed that he is the person who is looking after the affairs of the building which belongs to his son-in-law. As far as the difference in house numbers is concerned, the same has also been explained by PW10. He stated that the number had changed thrice. These aspects in the testimony of PW10 have never been challenged or discredited. Therefore, without any challenge or even suggestion to PW10, it cannot now be argued that he had no authority to produce Ext.P7 or depose regarding the matter regarding the rented building belonging to his son-in-law. The marking of Ext.P7 was also never objected to. Now even assuming for argument sake, Ext.P7 is ignored, PW1 in her deposition has clearly stated that the bedroom situated immediately on entering the house is the place where the abuse had taken place. This aspect of her testimony has also not been discredited or challenged. Therefore, there is no reason to disbelieve the testimony of PW1 regarding the place of occurrence. In these circumstances we find that the trial court was right in concluding regarding the guilt of the accused based on the evidence on record.

Now coming to the sentence awarded. Relying on the dictum in Mohammed Firoz v. State of Madhya Pradesh, 2022 KHC 6432 it was submitted that considering the family background and other circumstances from which the accused comes, the sentence of imprisonment for the reminder of his life may be reduced, as the minimum sentence for the offence punishable under Section 376(2)(n) IPC is only ten years. In the circumstances of the case, we deem it appropriate to modify the sentence of imprisonment for the offence punishable under Section 376(2)(n) IPC to be for a period of 20 years without any remission. The sentence imposed by the trial court for the remaining offences shall stand confirmed.

In the result, the appeal is partly allowed to the aforesaid extent alone.

Interlocutory applications, if any pending, shall stand closed.