Vasudevan vs State Of Kerala

R.Narayana Pisharadi, J

This appeal is filed by the sole accused in the case S.C.No.253/2016 on the file of the Additional Sessions Court-I, Kalpetta.

The prosecution case, in short, is as follows: The accused and the victim girl were neighbours. The accused is a relative of the father of the victim girl. The girl, who was aged seven years, used to go to the house of the accused to play with his daughter. When the victim girl was at the house of the accused, on several occasions in the month of March 2016, he committed rape and aggravated penetrative sexual assault upon her by inserting his finger into her vagina. He also committed sexual assault on her by touching and kissing on her breast and vagina and also by rubbing his penis on her vagina.

The victim girl disclosed the acts of the accused to PW4, her cousin sister, when she felt pain during urination. PW4 told the matter to PW1, the mother of the victim girl. When the teachers of the school in which the victim girl was studying came to know about the incident, they contacted the Childline. The matter was brought to the notice of the police by the Childline. On 22.06.2016, PW14 WCPO went to the house of PW1 and recorded Ext.P1 statement given by PW1. PW16 Sub Inspector registered Ext.P11 FIR on the basis of Ext.P1 statement. The investigation of the case was conducted by PW17 Circle Inspector. After completing the investigation, he filed final report 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 3(a) and 3(b) read with Section 4 and Sections 5(l), 5(m) and 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act').

The trial court framed charge against the accused for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) and Sections 354A(1)(i) read with 354A(2) of the Indian Penal Code and also under Sections 5(l), 5(m) and 5(n) read with Section 6 and under Sections 9(l), 9(m) and 9(n) read with Section 10 of the POCSO 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 P15 documents. No evidence was adduced by the accused.

The trial court found the accused guilty of the offences punishable under Sections 354A(1)(i) read with 354A(2) and Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and also under Sections 5(l), 5(m) and 5(n) read with Section 6 and Sections 9(l), 9(m) and 9(n) read with Section 10 of the POCSO Act 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.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for each of the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and directed that the substantive sentences of imprisonment shall run concurrently. No separate sentence was awarded for the other offences proved to have been committed by him.

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

Heard the learned counsel for the appellant and also the learned Public Prosecutor.

Out of the seventeen witnesses examined by the prosecution, PW1,PW2,PW4 to PW8 and PW10 are the material witnesses. PW2 is the victim girl and PW1 is her mother. PW4 is the daughter of the sister of the grandmother of PW2. PW5 and PW6 were the teachers of the school in which PW2 was studying and PW10 was the Headmaster of that school. PW7 is the grandmother of the victim girl. PW8 is the doctor who examined the victim girl on 23.06.2016 at the District Hospital, Mananthavady and issued Ext.P3 medical certificate.

Testimony of the Victim.

PW2, the victim girl, has stated in examination-in-chief as follows: Her date of birth is 10.11.2008. She was aged seven years at the time of the incident. The accused is a relative of her father. He made her lie and touched her vagina with his penis. She gave Ext.P2 statement before the Magistrate. She had told the matters to the doctor. Her mother was with her when she was taken to the doctor and the Magistrate.

On cross-examination, PW2 has stated that it was her mother who told the matters to the doctor. She could not remember the date, month or year of the incident. The incident took place when she was studying in Class II. The house of the accused is two kilometres away from her house. Her parents have got vegetable cultivation near the house of the accused. She used to go there with her parents. PW2 denied the suggestions made to her that no incident as stated by her took place and that the accused did not assault her in any manner.

A close scrutiny of the evidence of PW2 would show that the only statement made by her with regard to acts of sexual assault committed by the accused is that he made her lie and touched her vagina with his penis. This is the substantive evidence given by PW2 with regard to the sexual assault made on her by the accused. PW2 has not stated before the trial court that the accused sexually assaulted her in any other manner.

PW2 was aged ten years at the time of giving evidence before the trial court. The nature of the evidence given by PW2 would indicate that, if the accused had sexually assaulted her in any other manner, she would have given evidence before the court in that regard also.

There is no reason to disbelieve the evidence of PW2 that the accused made her lie and made his penis to touch on her vagina. The very fact that PW2 has not spoken to anything else to make her testimony in tune with the prosecution case would indicate that she is not a tutored witness.

Delay in Lodging FIR

The incident alleged had occurred in March, 2016. Ext.P1 first information statement was given to the police only on 20.06.2016, when the police came to the house of PW1 on getting information regarding the matter from the Childline.

However, the delay in reporting the matter to the police was quite natural. The circumstances of the case themselves justify the delay. The accused is a relative of the father of the victim girl. Therefore, it is probable that the parents of the child would have tried to hush up the matter inside the family.

The fact that the child did not disclose the matter to anybody for a long period is also quite understandable. The accused is a relative of her father. She was only seven years old at the relevant time. She would not have even understood the gravity or consequences of the act committed on her by the accused. She would not have thought that it was a matter to be disclosed to her parents immediately.

Delay, per se, is not a mitigating circumstance for the accused in a case of sexual assault. Delay in lodging the F.I.R cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once there is explanation for the delay in lodging the F.I.R, the court is only to see whether such explanation is satisfactory or not. Mere delay in lodging the F.I.R does not in any way render the prosecution version brittle.

Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police may be on account of the attitude of the society which casts doubt and shame upon the victim rather than comfort and sympathy. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the victim and the honour of her family.

Evidence of PW1

PW1, the mother of the victim girl, gave evidence in examination-in-chief that her cousin (PW4) told her the matter and when she (PW1) asked PW2 about it, PW2 narrated the acts of sexual assault committed on her by the accused. PW1 deposed before the court what her daughter told her.

However, on cross-examination, PW1 categorically stated that she did not ask her daughter anything in that regard and that her statement in examination-in-chief was based on the information she got from PW4. Inspite of such statement made by PW1 in the cross-examination, the prosecution did not conduct any re-examination of her to clarify the matter.

It is strange and illogical that inspite of information obtained that her daughter was sexually assaulted by a relative of her husband, PW1 did not ask her daughter anything about it.

It is hard to believe the evidence of PW1 on this aspect. But, PW2 has not stated in evidence that she had told the matter to her mother. In such circumstances, the evidence of PW1 cannot be used to corroborate the testimony of PW2 with regard to the act of sexual assault committed on her by the accused.

Evidence of PW4

PW4, the daughter of the sister of the grandmother of PW2, has given evidence that PW2 told her that she felt pain on her private part and when she (PW4) asked about it, PW2 told her the acts of sexual assault committed on her by the accused. However, PW2 has not given any evidence that she had told the matter to PW4. Therefore, the evidence of PW4 also cannot be used to corroborate the testimony of PW2.

Evidence of PW7

PW7, the grandmother of PW2, has given evidence that PW2 told PW4 about the acts of sexual assault committed on her by the accused and that PW4 told her (PW7) about it. Since PW2 herself has no case before the court that she told the incident to PW4, the evidence of PW7 in that regard is worthless. Further, PW4 has not given any evidence that she told the matter to PW7. Her evidence is that she told the matter to PW1.

Evidence of PW5 and PW6

PW6 was the class teacher of PW2. Her evidence is only that the mother of PW2 informed her that the child was sexually assaulted by a relative and she requested her (PW6) to ask the child about it. PW6 has stated that she informed the matter to the headmaster.

PW5 was another teacher of PW2. Her evidence is that PW6 told her about the incident and as directed by the headmaster, she asked the child about the incident. PW5 would say that then the child told her about the acts of sexual assault committed on her by the accused. However, there is no evidence given by PW2 that she told the incident to any teacher.

In the above circumstances, the evidence of PW5 and PW6 also cannot be used to corroborate the testimony of PW2.

Substantive Evidence

Statement of a witness in the trial court about facts he has perceived by senses is substantive evidence.

In the present case, the substantive evidence against the accused is only the statement of PW2 that he made her lie and got his penis touched on her vagina. PW2 has not stated before the court about any other act of sexual assault committed by the accused.

In the absence of any substantive evidence, no question of using other evidence for corroboration arises. Therefore, the evidence of PW1 and PW4 to PW7, if at all it can be used for corroboration, can only be used to corroborate the testimony of PW2 that the accused made her lie and got his penis touched on her vagina. Their evidence regarding the other acts of sexual assault allegedly committed on PW2 by the accused cannot be used for corroboration in the absence of any evidence given by PW2 herself in that regard. As already noticed, since PW2 has not stated before the court that she told the matter to any of the above witnesses (PW1 and PW4 to PW7), their evidence cannot be used to corroborate the testimony of PW2.

However, as already found, even in the absence of corroboration, there is no sufficient ground to disbelieve the testimony of PW2 that the accused made her lie and made his penis to touch on her vagina. The fact that PW2 did not give evidence regarding the other acts of sexual assault alleged to have been committed on her by the accused does not mean that her whole testimony is liable to be discarded. If the evidence given is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to the extent it is considered safe and trustworthy. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient on some aspects.

Medical Evidence

Considering the nature of the act of sexual assault committed by the accused, which is spoken to by PW2, it is unlikely to have obtained any medical evidence indicative of such act, especially when the victim was examined by the doctor about three months after the incident.

PW2 was examined by PW8 doctor at the District Hospital on 23.06.2016. PW8 has deposed that PW2 was brought with the alleged history of sexual assault by the neighbour by name Vasu. PW8 has deposed that, on medical examination of PW2, it was found that hymen was intact but there was "introitus patulous".

As noticed earlier, the findings made by PW8 on clinical examination of PW2 have got not much significance or relevance. However, the history of sexual assault, which is recorded in Ext.P3 medical certificate issued by PW8 and spoken to by her in evidence, corroborates the testimony of PW2 that the accused made his penis to touch on her vagina.

Proof of Age of the Victim.

PW2 has stated that her date of birth is 10.11.2008. She was not cross-examined on that aspect.

PW10 was the headmaster of the school in which PW2 was studying at the time of the alleged incident. He gave evidence that Ext.P5 certificate regarding the age of the child was signed and issued by him. The date of birth of the child mentioned in Ext.P5 certificate is 10.11.2008.

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

In the instant case, the alleged incident had taken place in the month of March, 2016. The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the JJ Act') had 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.P5 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 10.11.2008. Ext.P5 certificate shows that the date of birth of the child is recorded in it on the basis of the entries in the admission register kept in the school. Ext.P5 certificate, along with the evidence of PW2, can be accepted as sufficient proof of the age of the victim girl. Then, it would mean that, at the time of the alleged incident, the victim girl had completed seven years of age and she was below the age of eight years.

Offences Proved Against the Accused

As already found, the only act of sexual assault proved to have been committed by the accused on PW2 is that he made her lie and got his penis to touch on her vagina. The question is what offences have been committed by the accused by doing such act.

The trial court has convicted the accused for the offences punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(n) and Section 354A(1)(i) read with 354A(2) of the Indian Penal Code and also under Sections 5(l), 5(m) and 5(n) read with Section 6 and Sections 9(l), 9(m) and 9(n) read with Section 10 of the POCSO Act.

The trial court had framed charge 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 under Sections 5(l), 5(m) and 5(n) read with Section 6 of the POCSO Act on the basis of the specific allegation that he inserted his fingers into the vagina of PW2. The prosecution has not proved that he committed such act. It follows that conviction of the accused by the trial court under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and under Sections 5(l), 5(m) and 5(n) read with Section 6 of the POCSO Act is liable to be set aside.

Section 7 of the POCSO Act states that, whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The act of the accused touching the vagina of the child with his penis constitutes the offence of sexual assault as defined under Section 7 of the POCSO Act.

Section 9 of the POCSO Act deals with aggravated sexual assault. Section 9(l) deals with sexual assault on the child more than once or repeatedly. In the present case, PW2 has not given evidence that the accused committed sexual assault on her repeatedly or more than once or on several occasions. Therefore, the act of the accused does not attract Section 9(l) of the POCSO Act.

Section 9(m) of the POCSO Act deals with sexual assault on a child below twelve years. The act committed by the accused on PW2, who was a child below twelve years, constitutes the offence under Section 9(m) of the POCSO Act.

Section 9(n) of the POCSO Act deals with sexual assault on a child by a person who is a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child. In the instant case, the evidence of PW7 shows that the accused was the husband of the sister of the wife of the brother of the father of the child. The accused cannot be considered as a relative of the child who comes in the category of persons mentioned in Section 9(n). Therefore, the act committed by the accused does not constitute an offence under Section 9(n) of the POCSO Act.

It follows that conviction of the accused by the trial court for the offences under Sections 9(l) and 9(n) read with Section 10 of the POCSO Act is liable to be set aside but conviction under Section 9(m) read with Section 10 of the POCSO Act is liable to be confirmed.

Section 354A(1)(i) of the Indian Penal Code states that, a man committing physical contact and advances involving unwelcome and explicit sexual overtures shall be guilty of the offence of sexual harassment. The act committed by the accused constitutes the above offence. Therefore, conviction of the accused by the trial court under Section 354A(1)(i) read with 354A(2) of the Indian Penal Code is liable to be confirmed. Sentence to be Imposed

Section 10 of the POCSO Act states that, whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Considering the facts and circumstances of the case, it would be proper to impose the minimum sentence of imprisonment on the accused and also a sentence of fine of Rs.25,000/- for the offence under Section 9(m) read with Section 10 of the POCSO Act. In view of Section 42 of the POCSO Act, no separate sentence is to be imposed for the offence under Section 354A(1)(i) read with 354A(2) of the Indian Penal Code.

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

(i) Conviction of the appellant/accused by the trial court for the offences under Sections 376(2)(f), 376(2)(i) and 376(2)(n) of the Indian Penal Code and under Sections 5(l), 5(n) and 5(m) read with Section 6 and Sections 9(l) and 9(m) read with Section 10 of the POCSO Act and the sentence imposed on him by the trial court for those offences are set aside.

(ii) Conviction of the appellant/accused by the trial court for the offences punishable under Section 9(m) read with Section 10 of the POCSO Act and under Section 354A(1)(i) read with Section 354A(2) of the Indian Penal Code are confirmed.

(iii) The appellant/accused 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 9(m) read with Section 10 of the POCSO Act.

(iv) No separate sentence is awarded for the offence punishable under Section 354A(1)(i) read with 354A(2) of the Indian Penal Code.

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

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