Sudheer vs State Of Kerala

K. Vinod Chandran, J.

We are again confronted with a case in which the father is alleged to have sexually molested his daughter and the defence, as often alleged, is of the enmity of the mother against the father.

The accused stood trial and was convicted under Section 3 r/w Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, the 'POCSO Act') to imprisonment for life and to pay a fine of Rs.50,000/- with default sentence. A further sentence of rigorous imprisonment for one month was imposed under Section 323 IPC. The substantive sentences were directed to run concurrently and there was no separate sentence for the offence under Section 376 in view of Section 42 of the POCSO Act.

The learned counsel for the appellant, Shri M.Sreekumar argued that there are inconsistencies in the successive statements which throws great suspicion on the testimony of the prosecution. The prosecutrix had different versions in the FIS, her Section 164 Statement and the deposition before Court. There were embellishments made at each stage and the deposition, the last of such stages, shows four instances of molestation. It is pointed out that a child who was repeatedly molested would not react in the manner she did on the last of such occasions; 03.10.2015 and be with the father in a room alone. It was pointed out that while the prosecutrix says that she, along with her father was sitting in the room of her brother, the mother PW4 deposes that she saw the daughter and father in the Hall room. It is very unlikely that molestation would have been carried out by the father, when there was a Kudumbasree meeting going on just in front of the house. The evidence of the maternal aunt and the mother varies insofar as the frequent visits made by the brother-in-law of the mother to the residence of the victim. The totality of the evidence would reveal that the accused was suspicious about the conduct of the brother-in-law of his wife and the allegations are cooked up as a counter blast by the wife's family. The learned counsel prays for acquittal of the accused.

Learned Special Government Pleader, Smt.S.Ambika Devi argued that there is no contradiction or embellishment worthy enough to eschew the evidence of the prosecutrix. The medical opinion corroborates the evidence of the prosecutrix. The continuous trauma, the 15 year old was subjected to, would definitely have made her delirious and if at all there are discrepancies in the statement, they are only to be ignored. It is also pointed out that Section 164 statements were never put to the witness and the witness all along had clearly stated the act of rape committed on her. Again, it is a case of the protector turning predator and the evidence of the sister-in-law, PW5 demolishes the suggestions of enimity and a counter blast by way of false allegations.

The charge indicates that on 03.10.2015 at 4 pm, and earlier in the month of November 2014, and on several occasions, the accused committed rape on his minor daughter, aged 15 years, inside their own residence, that too, penetrative sexual assault. There was also a charge under Section 323 IPC for voluntarily causing hurt to the daughter by beating her on her cheek and face. PW3 is the prosecutrix who gave Ext.P3(a) First Information Statement (FIS). According to the FIS, the victim was staying with her family consisting of her parents and two siblings; the elder brother and the younger sister at Balaramapuram. On 03.10.2015, at around 4'o clock in the evening, there were some women assembled for the Ayalkoottam meeting in front of the house of the victim. The family was inside the room, when the mother stepped out to attend the meeting. The father went to the room in which the brother sleeps and summoned the victim there. When the victim entered the room, the father hugged her and she resisted by striking off her father's hands. Her father then beat her on the face and cheeks and when she threatened to tell her mother, he responded that if she does not obey him, he will kill her mother and sister. He sat on the floor and asked her also to sit down. He gave her the mobile and she started playing a game when her mother came into the room. The mother left, on seeing both of them in the room and then her father made her lie on the floor. Her dress was removed and the father too removed his lunki. It was alleged that, then the father penetrated his penis into her vagina and when she cried, he covered her mouth with his hands and laid upon her. After some time, she felt a liquid on her thighs. When her father rose and went to the hall room, the victim put on her dress and went to the room near the kitchen and sat there crying.

When her mother returned, she narrated what happened and insisted that they go to Chavakkad, since she did not want to continue living with her father. She threatened to commit suicide and when her mother queried her further, she informed about an incident that happened last year, in the month of November, when her mother was not present in the house. At around 10 a.m in the morning, she is said to have been dragged into the hall room where again she was beaten up, on showing resistance, she was threatened with the murder of her mother and sister, and sexually molested, with penetration. She also said that when her mother was not present, he used to remove her clothes and put his fingers inside the vagina. She earlier did not disclose these facts to the mother since she was afraid that her father would kill her mother and sister. PW3 spoke in tandem with what she stated before the police. There was no substantial or material deviation from what she stated in the FIS.

In cross examination, mostly she was asked about her family's ties with her maternal aunt and her husband. Her statements indicate that her maternal aunt had three children and the family, used to treat herself and her siblings as their own. She also said that her maternal aunt and her husband used to visit their residence often and her father was not very happy about it. With respect to the relevant aspects of continuous rape having been committed on her, she stood by her earlier statements. There were no contradictions marked from the statement under Section 164.

PW4 is the mother who spoke in tandem with what PW3 said. When she heard about the allegation of rape, she and her children proceeded to Chavakkad, where her family house was located. Her sister and brother-in-law took them to their family house and they also approached the police at Chavakkad. When a complaint was sought to be registered at Thrissur, they were advised to do it at Neyyattinkara, where the rape was committed; which they initiated. She said that the dress MO2 and MO3, worn by the victim at the time of the alleged rape was at Chavakkad, which she later surrendered to the Police. She deposed the date of birth of the child to be 04.08.2001. PW5 is the maternal aunt who corroborated the testimony of PW3 and PW4 as to what happened after the victim disclosed the alleged acts of her father to the mother. PW5 rubbished all suggestions that her husband had an illicit relationship with her sister,PW4. She categorically stated that her sister and children were, after the incident, looked after by her family.

PW6 is the Village Officer who prepared the site plan, Ext.P5. PW7 is the woman CPO, who recorded the FIS of the victim and recorded the body notes. PW8 is the person who registered the FIR, Ext.P6. PW9 witnessed the seizure of the dress worn by the victim as per mahazar, Ext.P7. PW10 is the Scientific Officer who received three items and the dress materials, seized of the victim. She also deposed that in the undergarment, which was item No.3, human spermatozoa was detected as per Ext. P8 report. The report marked as Ext.P8 also indicates that no comparison could be done, for reason of blood sample of the accused having not been received. PW11 issued the Potency Certificate of the accused. PW12, the Registrar of Births and Deaths of the Chavakkad Municipality marked the extract from the register of births and deaths, the copy of which is marked as Ext.P11. The original was verified by Court and returned to the witness, since it was required for day to day entries at the local body. PW13 is the Investigating Officer and DW1 is the brother-in-law of PW4, the husband of PW5. He refused to toe the line of the defence and denied the suggestion that he had any illicit relationship with the mother of the victim or that his family was inimical towards the accused.

PW3, the prosecutrix graphically described the molestation committed by her father on 03.10.2015. This is also in consonance with the FIS. In Ext.P3 FIS, as to the earlier instance, she speaks of that having occurred on the 11th month in 2014 and there is also allegation raised of the accused having fingered his daughter, in the private parts, when the mother was not present in the house. This is spoken of by her in the deposition also. We are unable to look into the Section 164 statement since no question was put to her on that aspect. However, very relevant and pertinent is her deposition of what transpired on 03.10.2015. Her deposition, in consonance with the FIS is that when she entered the room on being summoned by the accused, he hugged her which was resisted by her. She protested and told him that she would tell her mother. Then the accused is said to have beaten her and threatened her with death of the mother and sister. After that it is very unlikely that she would sit in the same room with the father playing on the mobile if there were prior instances. In the totality of the circumstances, we do not think that the repeated molestation complained of is correct.

In this context, we have to notice that the last incident is said to have occurred on 03.10.2015 at 04.00 p.m. Immediately after that the mother and daughter left to their family home at Chavakkad. They approached the Vanitha Cell to make a complaint and only later registered the complaint at Neyyattinkara on 07.10.2015. In that context, definitely, the child would have talked to at least the family members and the repeated assault complained could in all probability be a tutored version. The narration of the earlier incident on the November of last year and repeated fingering by the father, does not have the ring of truth. However, that does not detract from the fact that the prosecutrix in graphic detail speaks of what happened on 03.10.2015

PW4, the mother also corroborates the narration and she admits that there were marital discords between herself and the accused. PW1 the Doctor, examined the prosecutrix and issued Ext.P1 certificate. The Doctor's opinion was that, there is evidence of recent sexual intercourse since there was a complete tear at the 6 O' clock position of the hymen, which was healing. The vagina admitted one finger. This evidence corroborates the narration of the prosecutrix insofar as the incident that happened on 03.10.2015. The defence; by their mere suggestions of enmity, have not been able to bring forth any relevant material to probabilise a case of a false allegation of rape having been raised. The victim is also a child of 15 years of age attracting the POCSO Act and bringing the offence under Section 4 of the POCSO Act. The date of birth is proved by the extract of the Register of Births and deaths maintained at the local body and the deposition of the mother. We find no reason to interfere with the conviction of the appellant under Section 4 of the POCSO Act and Sections 323 and 376 of IPC. As far as the sentence is concerned, the mitigating circumstances as stated by the appellant is that he has aged parents to look after. Considering the fact that there was no repeated sexual assault, we are inclined to modify the sentence to that of ten years under Section 4 of the POCSO Act, the conviction and sentence under Section 323 is left undisturbed and there is no reason to impose a separate sentence under Section 376 IPC.

The appeal stands allowed partly.