Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 30TH DAY OF JUNE 2023 / 9TH ASHADHA, 1945 CRL.A NO. 1230 OF 2018 AGAINST THE JUDGMENT DATED 19.04.2018 IN S.C.NO.271/2014 OF I ADDITIONAL DISTRICT COURT & SESSIONS JUDGE, KOLLAM CRIME NO.271/2014 OF POOYAPALLY POLICE STATION, KOLLAM APPELLANT/1ST ACCUSED: SETHUNATH, S/O REGHUNATHAN NAIR, AGED 55 YEARS, ANNAPOORNAMATOM, NEDINGODU, CHEPPRAMUKU, MARUTHAN PALLI MURI, POOYAPPALLY VILLAGE, KOLLAM DISTRICT. BY ADV SRI.M.G.SREEJITH RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, EZHUKONE POLICE STATION, KOLLAM DISTRICT. 682031 BY ADVS.SMT.AMBIKA DEVI, PUBLIC PROSECUTOR SMT.SEENA C, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 30.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 30th day of June, 2023 The appeal on hand is filed by accused No.1 against the
judgment passed by First Additional District and Sessions
Court, Kollam (for short ‘the trial court’) on 19.04.2018 in S.C.No.271/2014. Appellant and accused No.2 were tried together and the appellant alone was found guilty, convicted and sentenced by the trial court vide the judgment referred to above. Accused No.2 was found not guilty and was acquitted.
2. Appellant was found guilty by the trial court for offences punishable under Section 9(n) and 9(l) and 11(iii) of the Protection of Children from Sexual Offences Act, 2012
(for short ‘POCSO Act’) and convicted and sentenced respectively to undergo rigorous imprisonment for 7 years and to pay fine of `50,000/- under Section 10 of the POCSO
Act and in default of payment of fine, to undergo simple imprisonment for 3 more months, to undergo rigorous imprisonment for 7 years and to pay fine of `50,000/- and in default, to undergo simple imprisonment for 3 more months, and to undergo rigorous imprisonment for 3 years and to pay fine of `25,000/- under Section 12 of the POCSO Act. Fine amount of `1,00,000/- on realisation was directed to be given to PW1 as compensation under Section 357 (1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’).
3. The case of the prosecution was that in between the month of October 2012 and 15.11.2013, the appellant at his house bearing No.XV/275 of Pooyappally Panchayath, showed PW1, who is none other than his daughter,
pornography in a DVD player, forced her to read pornographic books and sexually assaulted her several times. 2nd accused, a close friend of the appellant, who was a frequent visitor of their house also sexually assaulted PW1 by holding her breasts and hand. Thus both of them committed offences under Sections 354 and 376 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’) and Sections 4,
5(p) read with Sections 6 and 8 of the POCSO Act. First Information Statement was lodged by PW1 before PW13, the Women Sub Inspector of Police, Kundara, and on its basis Crime No.1593/2013 was registered by the Sub Inspector of Police, Pooyappilly, who is none other than PW14. Preliminary investigation was conducted by the Inspector of Police, Kottarakkara. Investigation was continued by Inspector of Police, Ezhukone. Concluding the investigation, final report was laid by Inspector of Police, Ezhukone chargesheeting the appellant for the above offences. Chargesheet being filed, the trial court received it and registered a case on it’s file as S.C.No.271/2014.
4. Upon service of summons, the appellant entered
appearance before the trial court. Copies of all relevant documents proposed to be relied on by the prosecution were served on him. Upon perusal of those documents and hearing the learned counsel representing the appellant and the learned Public Prosecutor, charge was framed against him under Section 9(n) read with Section 10, 9(l) read with Section 10 and 11(iii) read with Section 12 of the POCSO Act. Charge was read over and explained to him. He pleaded not guilty and faced trial.
5. The prosecution examined PWs 1 to 17 and
marked Exts.P1 to P14(e) and MOs 1 to 6. Upon closure of the evidence of the prosecution, the appellant was questioned with reference to the incriminating circumstances brought against him by the prosecution but he denied all those.
6. An additional written statement was filed by him under Section 313(5) Cr.P.C, where it was admitted that the victim is his daughter and his first wife deserted him when the victim was aged only 1½ years. Thereafter, the minor child was looked after by him. Owing to his fear and apprehension that the minor daughter will not be taken care
by a lady who would come as his second wife, he did not marry further. When the child reached the age of 11 years, a cyst was detected in his Kidney and thus he became a non- alcoholic hepatitic patient. Then he found it impossible to look after the child and as insisted by his relatives and friends, he married one Mrs.Sindhu on 5th June, 2011 at Muruka Temple, Mangadcherry, Mangad village, Kollam Taluk and started living as husband and wife in the house of PW5. According to the appellant, Mrs.Sindhu was suffering from delusion, a mental disorder. She used to raise allegations of
illicit relationship against him with several ladies. Thus frequent quarrels started between them. Therefore, he made a complaint to the relatives of PW5 and was informed that the lady was suffering from the disease prior to marriage itself and had been undergoing treatment for that. PW5 was also taken by him to the Department of Psychiatry of District Hospital, Kollam for treatment. She was reluctant to take the medicines and to have follow ups. She was also treated by
Dr.A.Asraf Ali of Medical College Hospital, Thiruvananthapuram. Mrs.Sindhu was married earlier and had a son born in that marriage namely Mr.Saravanan. He used to molest PW1 sexually and noticing that, the appellant informed Sindhu as well as her mother. She denied the allegations. Thereafter, the child was made to share the bed with himself and Mrs.Sindhu. Therefore, PW1 was angry with him for doing so. Mr.Saravanan continued his sexual assault on PW1 and therefore the appellant shifted his stay with the child to his residence namely Annapoornamadom at Pooyappilly Village. Mrs.Sindhu visited the house and started making allegations to the public against him that the child is being sexually exploited by him. Therefore, he restrained the child from talking to PW5, but the former was hesitant. At the instance of some mediators, an agreement was executed between himself and Mrs.Sindhu whereby, PW5 had agreed not to visit PW1 and that caused some ill feeling to PW1 against the appellant.
7. There was no Well in the house where appellant was residing and therefore he was depending on one Mr.Arjunan a neighbour of him for water. He had two male children and an
affair developed among PW1 and the eldest son of Mr.Arjunan. The appellant warned the son of Mr.Arjunan from contacting PW1, on coming to know about that. They used to quarrel on the subject. He also warned PW1 from visiting the house of Mr.Arjunan. But, PW1 continued to visit the house of Mr.Arjunan and the appellant beat her. Thereafter, the child started to behave in inimical terms to him. In the meantime, an Anganwadi teacher and one Mrs.Shylaja visited the house of the appellant to mediate the issues. Since her talk was not pleasing, the appellant made her to leave his house. The appellant had a quarrel with one Mrs.Laila Ashokan based on issuance of a form for Aadhaar registration, following which Mr.Ashokan, husband of Mrs.Laila, manhandled him near a reading room at Chapramuck and also threatened him and demanded money from him.
8. On 15/11/2013, after about 1½ months from the date of the above incident, a teacher of PW1, namely
Mr.Jayakumar contacted the appellant over telephone and told him that his daughter was taken by an official from Social Development Department. He was also asked to visit Pooyappilly Police Station immediately. At about 4 p.m. on that day itself, he went to Pooyappilly Police Station. The police asked him to sit there and at about 8 p.m, a policeman visited him and told, “ നീ ചട്ടിയിലായല്ലോടാ സേതുനാഥേ".
9. When enquired about, he was told that he would realise later. At about 9.30 p.m, another policeman visited him and told that a complaint of sexual assault was received against him from his daughter. According to him, he is totally innocent of the allegations raised in the compliant and
is ready to undergo lie test or any other scientific examinations. Without hearing him, the policeman arrested him on 18.11.2013 and produced him before the court. He pleaded total innocence and alleged that the allegations against him were foisted ones.
10. He faced trial. He denied all questions with reference to the incriminating circumstances when put to him
during examination under Section 313(1)(b) Cr.P.C. The learned Public Prosecutor and the appellant were heard then under Section 232 Cr.P.C and grounds having not been found to record an order of acquittal, the appellant was asked to enter on his defence.
11. Appellant mounted the witness box and deposed as DW2. He also examined DW1, DW3 and DW4 and
marked Exts.D1 to D3. Upon appreciation of the above evidence adduced by the appellant, the trial court found him guilty for the offences for which he faced trial. Thus he was convicted and sentenced by the judgment under challenge. Aggrieved thereby, the appeal on hand was preferred.
12. Smt.Jaya, the learned counsel for the appellant read the depositions of all witnesses of the prosecution as well as the defence and also referred in detail about the
documentary evidence on record. It was specifically contended by the learned counsel that though PW1 has spoken about various acts of sexual assault committed by the
appellant on her, those are not probable to happen. According to her, the mother of the minor girl deserted her at her age of 1½ years. Thereafter she was given proper care and protection by the appellant. According to her, the appellant treated the child with love and affection and met all her demands. According to her, since the appellant warned PW1 and the son of Mr.Arjunan against their affair and
contacts and restrained PW1 from visiting his house, false allegations of the nature were foisted against, and the case on hand was fabricated by implicating him.
13. The learned counsel has also drawn the attention
of this Court to Ext.P4, the report of examination of the victim by PW9 and contended that the date of request received by PW9 from Sub Inspector of Police, Pooyapilly Police Station for recording her statement though reported in Ext.P4 as 29.11.2013, she was examined on 15.11.2013, at an earlier date. The learned counsel thus canvassed that the medical report cannot be relied on for the above discrepancy. The learned counsel pointed out further that the incident has been spoken by PW1 herself to PW9 and that is extracted hereunder:
"കുഞ്ഞുനാൾ മുതൽ അച്ഛനോടൊപ്പമാണ് താമസം. കഴിഞ്ഞ കുറെ മാസങ്ങളായി അച്ഛൻ സേതുനാഥ്, മാറിൽ പിടിക്കുകയും ചീത്ത പുസ്തകങ്ങൾ കാണിക്കുകയും ചെയ്യാറുണ്ട്. രാത്രിയിൽ കിടക്കുമ്പോൾ കെട്ടി പിടിക്കും അച്ഛന്റെ മൂത്രമൊഴിക്കുന്ന ഭാഗത്തു അച്ഛൻ തന്നെ പിടിച്ചു കൊണ്ട് കട്ടിൽ അനക്കാറുണ്ട്. പലപ്പോഴും അടിവസ്ത്രം ധരിക്കാതെ മുണ്ടു മാത്രം ഉടുത്തുകൊണ്ടു അച്ഛൻ മടിയിൽ പിടിച്ചിരുത്തും. അച്ഛൻ പലപ്പോഴും അടിക്കാറും ഉപദ്രവിക്കാറും ഉണ്ട്. അച്ഛന്റെ ഒരു കൂട്ടുകാരനും കയ്യിൽ പിടിച്ചമർത്തിയിട്ടുണ്ട്.”
According to the learned counsel, it is clear from the above version that the child has never spoken about penetration.
14. The learned counsel pointed out that the
neighbours as well as the second wife of the appellant were not maintaining good relations with him and therefore, a false case was fabricated against. The learned counsel contended furthermore that the appellant was convicted and sentenced for the offences coming within the purview of the POCSO Act, but, the sentences were ordered to be suffered consecutively. According to the learned counsel, the appellant had already undergone imprisonment for 9 years till date and substantial part of the sentence being already suffered, he deserves leniency from this Court. She canvassed for confining the period of sentence to the period already undergone.
15. The learned counsel contended that the
prosecution has mainly relied on the version of PW5, who is none other than the second wife of the appellant, for finding the appellant guilty. According to her, the evidence adduced in defence would establish that she was suffering from some delusional disorder. According to her, at the time of recording of her statement by the police during the course of investigation, it has also come out that she was undergoing treatment for the disease. The factum is well substantiated by Ext.D1. For the reason, the learned counsel canvassed for discarding the evidence tendered by PW5 in toto.
16. The learned Public Prosecutor has contended on
the contrary that in a case of the nature, the version given by the victim against the appellant, if succeeds the test of scrutiny and caution, can form the very basis for finding guilt against the appellant for the offences alleged. According to her, the victim suffered the lengthy cross examination covering all aspects spoken by her in examination in chief and stood consistent without even being deviated from
material aspects. According to her, PW1 has never spoken about sexual intercourse by the appellant on her but has spoken with clarity about the sexual assault committed by him on her, several times. Her age as 10 years also stood proved by the prosecution by examining the headmistress of the school where she has studied at the relevant time and the extract of the school register, marked in evidence as Ext.P8.
17. The appellant himself has mounted the box to
depose as DW2. He had stated that the conspiracy hatched by his neighbours as well as his second wife, on account of their grudge to him, caused them to speak falsely against him. The appellant had also put suggestions to the material witnesses examined by the prosecution on their illwill towards him. But, those were found out-rightly denied by all of them. The appellant though attempted to bring in evidence that PW1 and other witnesses have spoken lies against him due to their enmity towards him for warning and scolding them, he did not succeed in establishing that.
18. The version of PW1 being reliable in all respects, the
trial court cannot be found fault with in relying on it to arrive at the finding of guilt of the appellant for the offences. This Court also finds the version of PW1 creditworthy. PW5 though alleged as undergoing treatment for delusional disorder, her version in the trial court appears convincing. In the cross examination of that witness also nothing was brought out to disbelieve her. The neighbours who were examined before the court also tendered reliable versions about the incident within their knowledge.
19. An allegation was also raised by the prosecution against the appellant that he played CDs and showed pornographic videos to PW1, but none of the prosecution
witnesses have spoken accordingly in the trial court. PW1 had spoken that the appellant used to put books containing pornographic matters at the table in front of her. According to her, once she herself took one CD and watched the video containing sexual matters by playing it. PW1 do not have a
case that the appellant intentionally made her to watch pornographic videos. Forensic examination was held on the CD and other articles seized, but the report of the forensic examination was omitted to be marked in evidence. It is the duty of the prosecution to cause it to be marked. Therefore, the trial court’s finding that the appellant is guilty of the
offence under Section 11(iii) of the POCSO Act suffers for infirmity. Thus the finding of guilt of the appellant under Section 11(iii) of the POCSO Act, the orders of conviction
passed and sentence imposed thereunder are only to be reversed and this Court do so. The finding of guilt of the appellant by the trial court for offences under Section 9(l) and 9(n) of the POCSO Act is maintained.
20. It is found from the judgment under challenge
that, the trial court directed the sentences to run consecutively. Though it was contended by the learned counsel that the appellant had already suffered imprisonment for 9 years, from the memo made available to this Court by the learned Public Prosecutor, this Court is convinced that while undergoing sentence, the appellant was released on interim bail for a period of three weeks from 10.12.2012 till 31.12.2021 as per order No.8081/2021 dated 9.12.2021 of Additional Court of Sessions-I, Kollam. Therefore, the actual period of sentence suffered by the appellant is reported as five years, six months and 23 days as on 26.06.2023, which is inclusive of the period of remand, which was also ordered by the impugned judgment to set off under Section 428 Cr.P.C.
21. As per the impugned judgment, he was directed to
undergo rigorous imprisonment for seven years and a fine of `50,000/- each for the offences for which he was found guilty and to undergo simple imprisonment for three months in case of default of payment of fine. Sentences were ordered to run consecutively. The offences for which the finding of guilt by the trial court is confirmed are serious in nature for the very reason that those were committed on a minor daughter by her father, who was the only natural guardian living and available then and who has the obligation to foster the child without fear of attack from outside sources.
In that event, the substantive sentences of imprisonment imposed for each of the offences are maintained. Fine amount is modified to `1,00,000/- each. The direction to serve sentence consecutively is reversed and ordered to run concurrently. The default sentence imposed is also modified to rigorous imprisonment for eight months. The fine amount when deposited shall be disbursed to the victim as compensation. Appeal is allowed in part accordingly. Sd/- MARY JOSEPH JUDGE NAB