Vishnu @ Unni vs State Of Kerala Represented By The Public Prosecutor

A.Badharudeen, J

The sole accused in S.C. No.1634/2022 on the files of  the  Fast  Track  Special  Court,  Kottarakkara,  has  filed  this appeal, under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the conviction and sentence  imposed  by  the  Special  Judge,  against  him  as  per the judgment dated 29.07.2024. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

Heard the learned counsel for the appellant and the  learned  Public  Prosecutor,  in  detail.  Perused  the  verdict under challenge and the records of the Special Court.

Parties in this appeal shall be referred as‘accused’ and ‘prosecution’, hereafter.

The prosecution alleges commission of offences punishable under Sections 376, 376(3) and 506(i) of the Indian Penal Code [hereinafter  referred  as ‘IPC’ for short] as well as under Sections 4 read with 3(a) and 3(c), 6 read with 5(l), 5(m) and 5(n), 8  read with 7  and 12 read with 11(iii) of the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’ for short], by the accused. The allegation of the prosecution is that, the accused  with  intention  of  sexually  assaulting  the  9 year  old victim,  who  was  his  neighbor,  done  sexual  acts  against  her on two occasions. Firstly, when the mother of the victim was hospitalized  for  her  second  delivery  between  5.4.2021  and 18.4.2021  and  while  the  victim  was  playing  with  friends  in her courtyard, the accused took her to his room in his house by name Vishnu Bhavan at Alukunnam bearing house No.11/417 of Kadakkal Village, disrobed her and showed her obscene videos. He made the victim hold his penis with her hands, lay on her and held the chest and body of the naked victim.  He  licked  on  her  vagina  and  raped  her.  He  showed her  his white discharge  and  said  that child  would  be born  if the  same  went  inside  the  vagina.  He  threatened  to  kill  her mother,  her  brother  and  her  sister  if  she  would  divulge  the occurrence, when  the  victim, who  felt  pain  cried. Again, the accused repeated the overt acts and thus committed the above said offences.

After framing charge for the offences  punishable under Sections 4 read with 3(a), 4 read with 3(c), 6 read with 5(l), 6  read with 5(m), 8  read with 7  and 12 read with 11(iii) of  the  POCSO  Act,  the  Special  Court  recorded  evidence  and completed trial. During trial, PWs 1 to 17 were examined and Exts.P1  to  P16  were  marked  on  the  side  of  the  prosecution. One contradiction as that of PW6 got marked as Ext.D1 on the side of the defense.

On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Sections 4  read with 3(a) and 3(c), 6  read with  5(l) and 5(m), 8 read with  7  and  12 read with 11(iii) of the  POCSO  Act.  Accordingly,  the  accused  was  convicted  for the said offences and sentenced as under:

“(i)  Rigorous  imprisonment  for  a term  of  20 years and fine of Rs.10,000/- (Ten thousand only) for offence U/S.6 r/w 5(l) of POCSO Act. In default of payment of fine, he shall undergo simple imprisonment for one year. Fine amount, if paid, shall be given as compensation to PW1, the victim U/S.357(1)(b) Cr.P.C.

(ii)  Rigorous  imprisonment  for  a term  of  20 years and fine of Rs.10,000/- (Ten thousand only) for offence U/S.6 r/w 5(m) of POCSO Act. In default of payment of fine, he shall undergo simple imprisonment for one year. Fine amount, if paid, shall be given as compensation to PW1, the victim U/S.357(1)(b) Cr.P.C.

(iii) Simple imprisonment for a period of 3 years and fine of Rs.5,000/- (Five thousand only) for offence U/S.8 r/w 7 of POCSO  Act. In  default of payment of fine, he shall undergo simple imprisonment for 3 months.

(iv) Simple imprisonment for a period of 1 year and fine of Rs.5,000/- Five thousand only) for offence U/S.12 r/w 11(iii) of POCSO Act. Indefault of payment of fine, he shall undergo simple imprisonment for 3 months.

(v) Sentences of imprisonment shall run concurrently.

(vi) Set off allowed U/S.428 Cr.P.C. from 29.06.2022 to 27.09.2022.”

While  assailing  the  verdict  impugned,  the  learned counsel  for  the  accused  zealously  argued  that,  the  Special Court went wrong in finding commission of offences punishable under Sections  4  read with 3(a) and 3(c), 6  read with  5(l) and 5(m), 8 read with  7  and  12 read with 11(iii) of the POCSO Act, by the accused, without the support of convincing  evidence.  According  to  him,  the  evidence  given by PW1 (the victim) has given much emphasis by the Special Court  to  prove  the  prosecution  allegations.  However,  during cross-examination of PW1, she candidly stated that, there was property dispute between the family of the accused and her family and also a person named Silvi residing nearby. It is also submitted that, during cross-examination of PW1, she stated that a complaint was lodged against the said Silvi and her  husband  for  assaulting  her  and  the  said  complaint  had been still pending. But, according to the learned counsel for the accused, no such complaint had been lodged. Therefore, the evidence of PW1 is not reliable and PW1 is not a sterling witness  to  act  upon  her  evidence  to  find  commission  of  the offences  by  the  accused.  It  is  also  pointed  out  that,  CW18 cited by the prosecution, the Psychiatrist, who attended PW1 at  the  first  instance  was  spared  from  examination  and  the same also is a matter to disbelieve the prosecution case. Thus, the learned counsel for the accused pressed for interference in the verdict impugned. He also submitted that, even otherwise, the offence under Section 11(iii) of the POCSO Act would not attract in the facts of this case, as the prosecution not properly investigated the said aspect and not adduced sufficient evidence to prove the said offence.

The  learned  Public  Prosecutor  fully  supported  the prosecution case and according to him PW1 had given candid evidence supporting the occurrence and mere evidence given by her stating that there was property dispute between her family and the father of the accused and  the person  now residing  in  the property would  not take away the quality of her evidence as not reliable to disbelieve the  prosecution  case.  Thus,  according  to  the  learned  Public Prosecutor no interference in the verdict impugned is required.

In view of the rival submissions, the points arise for consideration are:

Whether  the  Special  Court  is  justified  in finding that the accused committed the offence under Section 4 read with 3(a) and 3(c) of the POCSO Act?

Whether  the  Special  Court  is  justified  in finding that the accused committed the offence under  Section 6 read with 5(l) and 5(m) of the POCSO Act?

Whether  the  Special  Court  is  justified  in finding that the accused committed the offence under Section 8 read with 7 of the POCSO Act?

Whether the Special Court is justified in finding that the accused committed the offence under Section 12 read with 11(iii) of the POCSO Act?

Whether the verdict of the Special Court would require interference?

Order to be passed?

Point Nos.1 to 4:- In this case, PW1 is the victim, who  was  subjected  to  voire  dire  test  by  the  Special  Court before tendering her evidence and thereafter, on recording the fact that the victim was capable of giving rational answers to the questions presented to her, she was examined.  Her  evidence  is  that,  while  she  was  studying  in the 3rd standard, her mother had gone for delivery and she was born on 06.02.2013. She resided along with her grandmother during the relevant period and she had some friends nearby her house and Unnikochachan (the accused) sent away them. According to her, the accused is a resident of nearby house and she referred him as Kochachan (father’s brother). Her version further is that, Kochachan used to lock her at a room in his house and when she would attempt to open the same, he would lock the door and place  the  key  on  the  top  of  the  almirah.  He  used  to  show porn videos to her in his mobile and then he would remove his  dhoti  and  he  also  would  remove  her  skirt,  knicker  etc. and place his penis on her vagina. He also used to suck on her vagina. Further, he would move his penis by using her hands up and down. She felt pain when the accused would place his penis on her vagina and she would cry. Then, the accused would threaten to kill her. When she would be called by her grandmother, she would return after dressing up.  She  also  deposed  that,  a white  substance  would  cling on her dress and body and the accused told her that children would be born if the same went inside her. According to her, the accused done these overt acts repeatedly at his room. She identified Ext.P1 statement given by her to the Police and according to her the occurrence was during the year 2021 and she had given statement before the Police in the year 2022.

During cross-examination of PW1, a property dispute pending between the father of the accused and the family of the  victim was pointed out and PW1 answered in the affirmative. She also deposed that, Silvi, who had been residing in the house nearby her house also assaulted her, for which a complaint was filed and the same had been pending.  She  deposed  further  that,  during  the  occurrence, the parents of the accused were also present at the house. These are the points argued by the learned counsel for the accused to disbelieve the evidence of PW1. The learned counsel for the accused also argued that, the mother of PW1, who got examined as PW3 in this case, had maintained an illicit relationship with another man and the accused  told  PW3  that  he  would  divulge  the  same  to  the husband of PW3, who got examined as PW4. Thus, PW3 was enimical towards the accused and accordingly this case has been foisted against him. Such a version was given by the accused during his examination under Section 313(1)(b) of Code of Criminal Procedure also.

In this case, as deposed by PW15, as on 28.06.2022, while he was working as the Inspector of Police in Kadakkal Police Station, CW8, the doctor informed about the occurrence and accordingly he had recorded the statement  of  PW1  in  the  presence  of  PW3  and  this  crime was registered. He identified Ext.P10 as the FIR. In the evidence given by PW15, recovery of the dress worn by the accused with the aid of Section 27 of the Evidence Act was also  testified.  Apart  from  the  evidence  of  PW1,  PWs  3 and 4, the parents of PW1 also were examined and they supported  the  prosecution  case.  Apart  from  PWs  3 and  4, PW5, the maternal grandmother of PW1, PW6, the paternal grandfather of PW1 and PW7, the paternal grandmother of PW1 were examined and they also supported the statement of PW1. PW8 given evidence that, the accused had tremendous freedom in the house of PW1 and the said aspect was not cross-examined.

PW9 examined was the Doctor, who examined PW1. She stated the history as told to her by PW1. She deposed to have issued Ext.P3 medical certificate. She stated that on examination the hymen was intact. She stated that the child had revealed the incident to the psychiatrist  doctor  Kiran  Kumar  in  Kottarakara  hospital  to whom  the  child's  mother  had  taken  her  on  account  of  her behaviour. She stated that the child had at first been reluctant to reveal the incident to her. CW18, the doctor to whom  the  child  stated  to  have  revealed  the  incident  had been given up by the prosecution. Hence, PW9 seen to have deposed supporting Exhibit P3. She deposed that the history  could  be  seen  to  be  consistent  with  that  of  sexual assault. It  was stated  in  Exhibit  P3 that  only one vaginal swab  was  taken  as  the  victim  was  not  allowing  for  further examination.  PW9  had  explained  that  the  child  was  a little bit reluctant. She hastened to add that the victim was normal at that point of time i.e. at the time of her examination.  She  further  stated  that  she  had  come  to  the conclusion that sexual  assault had been committed on the basis of what had been told by the child and the mother.

The question now arise for consideration is whether the evidence of PW1 is not fully reliable to act upon the same, in view of the points argued by the learned counsel for the accused?

On reading the evidence given by PW1 during chief-examination, she had narrated all  the occurrence in detail and during cross-examination she reiterated the overt acts done by the accused on her on various dates during 2021 and the same is not at all shaken. But, the quality of her evidence was challenged on the ground that she is not a sterling witness, as she deposed about the property  dispute  between  her  family  and  the  father  of  the accused  and  the person  now  resides  at  the  house  of  the accused. In fact, the same is absolutely insufficient to disbelieve the version of PW1 relied on by the Special Court to  found  commission  of  the  offences  by  the  accused.  The statement of the accused is that, he had been implicated in this crime due to rivalry on account of his intention to divulge the illicit relationship of PW3 to PW4, also found to be not appreciable in the facts of this case.

Coming to the evidence to see commission of the offence under Section 11(iii) of the POCSO Act, Section 11(iii) of the POCSO Act provides as under:

“11.  Sexual  harassment.—Aperson  is said to commit sexual harassment upon a child when such person with sexual intent,—

xxx xxx xxx

(iii) shows any object to a child in any form or media for pornographic purposes;”

In this case, as rightly pointed out by the learned counsel for the accused and the learned Public Prosecutor, the evidence of PW1 alone is available to prove the prosecution allegations and no attempt made by the prosecution to go for further evidence by taking custody of the mobile phone etc. However, no challenge raised during cross-examination of PW1 on this point. Therefore, this contention also is liable to fail.

Point Nos.5 and 6:- On re-appreciation of evidence, none of the contentions raised by the learned counsel for the accused to unsustain the verdict of the Special  Court  found  to  be  sustainable.  Therefore,  it  is  held that  the  Special  Court  is  right  in  finding  that  the  accused committed  the  offences punishable  under  Sections  4 read with  3(a)  and  3(c),  6 read  with  5(l)  and  5(m),  8 read  with  7 and 12 read with 11(iii) of the POCSO Act. Therefore, the conviction  imposed  by  the  Special  Court  does  not  require any interference.

Coming to the sentence, twenty years is the maximum sentence imposed upon the accused for the offence under Section 6 read with 5(l) and 5(m) of the POCSO Act and the same is the statutory minimum sentence provided for the said offence. Therefore, no reduction in sentence is legally permissible.

Accordingly, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail.

In the result, this criminal appeal stands dismissed. All interlocutory applications pending in this appeal stand dismissed.

Since  the  accused  is  in  jail,  the  Registry  is  directed  to forward  a copy  of  this  judgment  to  the  Jail  Superintendent concerned, forthwith, for information and further steps.