Yousef vs Kerala State Represented By Public Prosecutor

M.B.Snehalatha, J

In this appeal filed under Section 374(2) of Code of Criminal Procedure (‘Cr.P.C’), the appellant/accused challenges the judgment of conviction and the order of sentence passed against him in S.C.No.298/2015 of Additional District and Sessions Court, Ernakulam (Special Court for the trial of cases relating to Atrocities and Sexual Violence against Women and Children) whereunder he was convicted for the offences punishable under Sections 366, 376(1) of the Indian Penal Code (IPC) and Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Prosecution case in brief is as follows: Accused who got acquainted with the minor prosecutrix through phone call, with intent to kidnap her from the lawful custody of her parents and to have illicit intercourse with her, induced her to reach Palakkad and pursuant to the said inducement of the accused, on 5.12.2014, the prosecutrix left her home and reached Palakkad. Accused who was waiting at the Palakkad Transport Bus Station, picked her up on a motor cycle and thereafter took her to the terraced portion of a water tank situated near C.H.Mini Stadium, Panchayath Road, Kumarapuram, Mannarkad and committed rape on her. Accused thereby committed the offences aforementioned.

On 5.12.2014, when the prosecutrix was found missing from her home, her father viz. PW2 lodged a complaint before the Police and a crime was registered under Section 57 of the Kerala Police Act. On 6.12.2014, the victim returned home. She was produced before the jurisdictional Magistrate. Based on her statement, Ext.P11 report was filed before the court to add Sections 366 and 376 IPC and Section 3(a) of the POCSO Act. After investigation, the Investigating Officer filed final report against the accused for the offences punishable under Sections 366, 376(2)(n) IPC and Section 5(1) read with Section 6 of the POCSO Act.

To bring home the guilt of the accused, prosecution examined as many as 14 witnesses, marked 16 documents and 8 material objects. After closing the prosecution evidence, accused was examined under Section 313(1)(b) of Cr.P.C. Accused maintained that he is innocent and he was falsely implicated. As the trial court found that it was not a fit case for acquittal under Section 232 Cr.P.C, accused was called upon to enter on his defence and to adduce any evidence, which he might have in support thereof. But no defence evidence was adduced by the accused.

Based on the evidence adduced in the case, both oral and documentary, the learned Sessions Judge found the accused guilty for the offence punishable under Sections 366 & 376(1) IPC and Section 3(a) read with Section 4 of the POCSO Act and by the impugned judgment dated 22.03.2017, accused was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- for the offence punishable under Section 366 IPC with default custodial sentence to undergo rigorous imprisonment for 3 months. He was also sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.75,000/- under Section 3(a) read with Section 4 of the POCSO Act with default custodial sentence to undergo rigorous imprisonment for 10 months. No separate sentence was awarded by the trial court for the offence under Section 376(1) IPC in view of the Section 42 of the POCSO Act.

Heard the learned counsel for the accused and the learned Public Prosecutor.

The learned counsel appearing for the accused after taking us through the oral evidence let in by the prosecution and other circumstances pointed out that the version of the victim regarding the incident is highly unbelievable and therefore her version regarding the incident is to be discarded. Further it is contended that in order to attract Section 3(a) read with Section 4 of the POCSO Act, the victim should be below 18 years; that in the case on hand the prosecution failed to prove that the victim was below 18 years and that Ext.P6 Birth Certificate of the victim produced by the prosecution cannot be taken as an authentic record since the name of her father shown in the said document differs from the name shown in the final report. It is further contended by the learned counsel for the accused that the sentence awarded by the trial court is harsh and excessive.

Per contra, the learned Public Prosecutor supported the findings of the trial court and contended that there are absolutely no reasons to interfere with the impugned judgment of the trial court.

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

PWs2  &  3  are  the  parents  of  the  victim  girl. According to them on 5.12.2014 their daughter viz. the victim girl was found missing from their house at Kodanad and accordingly, PW2, the father of the girl, laid Ext.P3 complaint before the Police station. Their further version is that on the next day morning at around 9 am their daughter came back home and told them that she had gone to Palakkad as invited by one Ajesh; that upon reaching there the said man took her to Mannarkad. Further version of PW2 and PW3 is that on the same day they along with their daughter had gone to the Police Station; that police took the victim for medical examination by a doctor.

The versions of PWs2, 3 and PW12 that on 5.12.2014 the victim girl was found missing from home and accordingly PW2 laid Ext.P3 FI statement before the Police stands fortified by the evidence of PW12, who was the then Sub Inspector of Police of Kodanad Police Station. PW12, in his evidence, testified that on 5.12.2014 at about 10.25 p.m, the father of the victim girl viz. PW2 laid Ext.P3 statement pursuant to which, he registered Ext.P10 FIR under the caption 'man-missing'. The version of PWs 2, 3 and PW12 would further reveal that on the next day, ie. on 6.12.2014, the victim girl reached the Police Station along with her parents and her statement was recorded by PW8 and she was taken to a doctor for medical examination and she was produced before the jurisdictional Magistrate. The evidence on record would further reveal that when she was produced before the learned Magistrate, the victim girl gave Ext.P2 statement before the learned Magistrate and she has stated that on 5.12.2014 at Mannarkkad she was sexually assaulted by the accused.

PW1 in her evidence had testified that she got acquainted with the accused through phone calls; that while making phone calls, the accused had told her that his name is 'Ajesh' and he is an Engineering Graduate. Her further version is that in December 2014, ie. two days prior to the incident, accused called her over phone and asked her to reach Palakkad. Accordingly, she boarded a bus to Aluva and from there she boarded another bus bounded to Palakkad and reached Palakkad Transport Bus Station at 5.30 p.m. Accused was waiting there on a motor bike. He picked her up and took her to the top of a water tank and from there he sexually assaulted her. Her specific version is that the accused committed rape on her after disrobing her. According to her it was only after reaching the top of the water tank she saw the face of the accused for the first time.

Further version of PW1 is that after sexually assaulting her, accused took her to a house and introduced a lady as his sister. It is her further version that the accused demanded her to convert her religion to marry her, to which she replied that she would go home and would come back after taking her certificates kept in her home. Thereafter, accused dropped her at the railway station. Her further version is that on the way to the railway station, accused told her that he has two wives and five children.

To prove the age of the prosecutrix, prosecution produced Ext.P6 birth certificate and examined PW5 viz, the Registrar of Birth and Death, Perumbavoor. As per Ext.P6 birth certificate, the date of birth of the prosecutrix is 22.7.1997. Thus, it stands proved that as on the date of the alleged incident, the victim girl was 17 years and 4 months and she was a minor.

The evidence on record would show that based on the statement of the victim girl, she was caused to be examined by a Gynecologist viz. PW10 on 6.12.2014. Ext.P9 is the certificate issued by the said doctor. The doctor has also testified that from the injuries seen on the private parts of the victim girl she can very well say that the hymen tear was recent. The evidence tendered by PW10 doctor, is to the effect that on examination of the victim, there was sufficient evidence to indicate that the victim girl was subjected to recent sexual intercourse. It fortifies the case of the prosecution that on 5.12.2014 she was sexually assaulted.

The categorical version of prosecutrix is that accused who got in acquaintance with her over phone asked her to reach Palakkad and it was pursuant to the said phone call of the accused she left her home and reached at Palakkad on 5.12.2014. The specific case of the victim is that on reaching Palakkad by bus, the accused who was waiting there on a bike, picked her up from there to Mannarkad by saying that they are proceeding to his home. Her further version is that instead of taking her to his house, accused took her to the top of a water tank at Mannarkad, disrobed her and committed rape on her. Her definite version is that in spite of her resistance, accused had forcible sex with her after disrobing her.

Ext.P5 site plan and Ext.P7 scene mahazar would reveal that the place of occurrence is the top of a water tank at Mannarkkad.

PW13, the Doctor who issued Ext.P12 Potency Certificate, has testified that on examination of the accused, there was nothing to suggest that he is incapable of performing the sexual act.

Now let us see whether there is any reason to disbelieve the version of the victim girl that on 5.12.2014 the accused committed rape on her. The evidence adduced by the prosecution would show that the accused used to contact the victim girl over phone and based on the said acquaintance over phone, he induced her to leave her home and to reach at Palakkad. The specific version of the victim girl is that while making phone calls to her, he mentioned his name as 'Ajesh' and stated to her that he is an Engineering Graduate. Her specific version is that on 4.12.2014, accused called her over phone and asked her to reach at Palakkad and it was pursuant to the same she left home and reached at Palakkad. Her further version is that though they used to contact over phone, they had not met each other till 5.12.2014; that she met the accused for the first time only on the date of the incident ie. on 5.12.2014. According to her, accused was waiting at Bus Station, Palakkad, on a motor cycle by wearing a helmet and though she asked him to remove the helmet he refused to do so by saying that if the helmet is removed people may identify him. According to her, he removed his helmet only after reaching the top of the water tank.

From the trend of the cross examination of PW1 it can be seen that the defence canvassed by the accused was that the victim girl was in love with the accused and therefore she reached Palakkad with an intention to marry him. The defence canvassed by the accused during cross examination of PW1 would vividly point to the fact that on 5.12.2014 the victim girl was in the company of the accused at Palakkad.

The evidence on record would reveal that accused induced the minor girl to leave her home and to reach at Palakkad and on reaching there he took the minor prosecutrix to the top of a water tank at Mannarkkad and he committed rape on her. It stands proved that on the date of incident the prosecutrix was a minor. Therefore, the question of her consent does not arise for consideration as rightly pointed out by the learned Public Prosecutor. The prosecution has succeeded in establishing that the accused committed penetrative sexual assault on the minor prosecutrix.

On an analysis of the evidence adduced in the case, we can see that the prosecution has succeeded in establishing the offence punishable under Sections 366 & 376(1) IPC and Section 3(a) read with Section 4 of the POCSO Act against the accused beyond any reasonable doubt as rightly held by the learned Special Judge. Hence we find no reasons to interfere with the finding regarding the conviction rendered by the trial court.

Now the remaining aspect for consideration is whether the sentence awarded by the trial court needs interference by this Court.

The learned counsel for the accused submitted that the sentence of imprisonment for life awarded by the trial court for the offence under Section 3(a) read with Section 4 of the POCSO Act is harsh and excessive. It was contended by the learned counsel that the court below ought to have taken note of the fact that at the time of the alleged incident, the victim girl had crossed 17 years and 4 months and was presumed to be aware of the consequence of her conduct in leaving her house based on the promise given by a stranger.

The learned counsel pointed out that prior to the amendment in 2019 of Section 4 of the Protection of Children from Sexual Offences Act, 2012, the minimum sentence prescribed for the offence under Section 4 of the POCSO Act was imprisonment of either description for a term of seven years and fine. The learned counsel further pointed out that prior to the amendment in 2018, the minimum sentence prescribed for the offence under Section 376(1) IPC was rigorous imprisonment of either description for a period of seven years and fine. Hence, according to the learned counsel for the accused, imprisonment for life awarded by the trial court for the offence under Section 3(a) read with section 4 of the POCSO Act, is harsh and excessive.

Per   contra,   the   learned   Public   Persecutor submitted that the accused deserves no leniency as he committed rape on a minor girl after enticing her from the lawful guardianship.

In criminal cases awarding of sentence is not a mere formality. An element of discretion is certainly vested in the court in taking a decision on sentence. The said discretion cannot be exercised arbitrarily or whimsically. It will have to be exercised in a case of this nature taking into consideration the gravity of the offence, the manner in which it is committed, the age of the accused, the gender of the accused etc. In other words the sentence to be awarded will have to be considered in the background of the facts of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively hard, nor ridiculously low.

In the case on hand, the incident occurred on 5.12.2014. The evidence on record would reveal that the prosecutrix was in romantic relationship with the accused, although she was only 17 years and 4 months old.

Bearing in mind the said fact, we are of the view that while confirming the conviction against the accused for the offence punishable under Sections 366, 376(1) and Section 3(a) read with Section 4 of the POCSO Act and confirming the sentence awarded by the trial court for the offence under Section 366 IPC, ends of justice would be met by awarding rigorous imprisonment for ten years for the offence under Section 3(a) read with Section 4 of the POCSO Act. The finding of the learned Special Judge that in view of Section 42 of the POCSO Act no separate sentence for the offence under Section 376(1) IPC stands confirmed. We also find that the sentence awarded by the trial court for the offence under Section 366 IPC shall remain intact.

In view of the findings rendered above, the appeal is allowed in part as indicated here below:

(a) The conviction rendered by the Special Court in S.C.No.298/2015 against the accused for the offence under Section 366 & Section 376(1) IPC and Section 3(a) read with Section 4 of the POCSO Act stands confirmed.

(b) The sentence passed by the trial court for the offence under Section 366 IPC that the accused shall undergo rigorous imprisonment for ten years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three months stands confirmed.

(c) The sentence passed by the trial court for the offence under Section 3(a) read with Section 4 of the POCSO Act to undergo rigorous imprisonment for life and to pay a fine of Rs.75,000/- is modified and reduced to rigorous imprisonment for 10 years and pay a fine of Rs.75,000/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of ten months.

(d) The substantive sentence of imprisonment shall run concurrently.

(e) Set off allowed.