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Podimon vs State Of Kerala on 23 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MRS. JUSTICE SHIRCY V.

WEDNESDAY, THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940

CRL.A.No. 376 of 2015

AGAINST THE JUDGMENT IN SC 86/2014 of THE SESSIONS COURT,
KOLLAM DATED 31-01-2015

CRIME NO. 998/2013 OF ANCHAL POLICE STATION, KOLLAM

APPELLANT/ACCUSED:

PODIMON, C.NO.9840, CENTRAL PRISON, TRIVANDRUM

BY ADV. ADV. SONY VINCENT (STATE BRIEF)

RESPONDENT/COMPLAINANT:

STATE OF KERALA, REPRESENTED BY DGP
HIGH COURT OF KERALA.

BY ADVS.

SMT.AMBIKA DEVI S, SPL.PP FOR ATROCITIES AGAINST
WOMEN AND CHILDREN

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.11.2018 THE COURT ON 23.1.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.376 of 2015

-:2:-

“C.R.”

JUDGMENT

Shaffique, J.

This appeal is preferred by the appellant challenging the

verdict passed by the Sessions Judge, Kollam in S.C. No. 86 of

2014 by which he was found guilty under Section 376 (2) (f) and

(i) of the Indian Penal Code, 1860 (for short ‘IPC’) and was

sentenced to undergo imprisonment for life which shall mean

imprisonment for the remainder of his natural life and to pay a

fine of `25,000/- ( Rupees Twenty Five Thousand only) in default

of which to undergo rigorous imprisonment for two years. He was

also found guilty under Section 6 of the Protection of Children

from the Sexual Offences Act, 2012 ( for brevity ‘POCSO Act’) but,

the offence under S.376(2)(f) and (i) being of greater degree, no

separate sentence is awarded for the same as per Section 42 of

POCSO Act. It is also directed that the appellant/accused is not

entitled to the benefit of set off under Section 428 of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C.’).

2. The case of the prosecution is that the

appellant/accused herein committed rape on his own daughter
Crl.Appeal No.376 of 2015

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who was under the age of 16 years at the time of commission of

offence from a period of 2010 to 2013 at their temporary shed

situated at Charuvila Puthen Veedu, Punnakkad, Podiyattuvila

Muri, Arakkal Village and as a result, the victim was impregnated

and delivered a girl child.

3. Prosecution examined PWs 1 to 11 and marked Exts.P1

to P13. MO1 is identified. During 313 examination, the

appellant/accused denied all the incriminating evidence and

pleaded that he is innocent. His wife eloped with another man.

Thereafter he was not in a proper mental state. He also had

undergone treatment for mental illness. He used to return late

from work and during that period, his children were in the house

of his neighbour Paulose. According to him, he had not done

anything to his daughter. No defence evidence was adduced in

the case.

4. Evidence adduced by the prosecution in the case, in

brief, are as under:

PW1 is the Doctor who examined the victim and issued

Ext.P1 certificate. PW2 is the victim who is the daughter of the

appellant/accused. PW3 is the neighbour staying adjacent to the
Crl.Appeal No.376 of 2015

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place of occurrence. PW4 is the Medical Officer who examined the

appellant/accused and issued Ext.P4 certificate. PW5 is the

Headmaster through whom Ext.P5 extract of school admission

register is marked. PW6 is the Village Officer through whom

Ext.P6 scene plan is brought in evidence. PW7 recorded the

additional statement of PW2. PW8 registered Ext.P7 FIR on the

basis of Ext.P2 statement of PW2 which he received along with

the letter from Child Welfare Committee, Kollam. PW9 is the C.I.

of Police, Women Cell, who recorded Ext.P2 statement of the

victim. PW10 is the then C.I. of Police, Anchal. He took over the

investigation and prepared Ext.P8 scene plan. He seized MO1

dress of the victim and forwarded it to Court through Ext.P9

property list. On 16/06/2013, PW10 arrested the

appellant/accused and Ext.P10 is the arrest memo and Ext.P11 is

the inspection memo. Ext.P4 is the certificate obtained after

potency test of the appellant/accused. Ext.P12 is the remand

report. PW11 is the successor of PW10 and he altered the penal

provisions included in the FIR through Ext.P13 report. He

completed the investigation and filed the charge-sheet.

5. Learned counsel appearing for and on behalf of the
Crl.Appeal No.376 of 2015

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appellant Sri.Sony Vincent contended that the case is a fabricated

one and the appellant is innocent. He is falsely implicated in the

crime. There is absolutely no evidence to connect the appellant

with the grave allegation prosecution had raised against him, who

is the father of the victim. No DNA test is conducted. Medical

examination of the victim was conducted without obtaining the

consent of the victim as per the Juvenile Justice (Care and

Protection of Children) Act, 2015 and the rules thereunder.

Prosecution failed to prove the age of the victim as below 16

years. Ext.P5 is inadmissible in evidence. The period of offence is

not deposed to by the victim. Her version is not believable as the

entire family was living in a single shed with her two brothers

during the alleged period of offence. It is in evidence that she

was in the habit of spending time in the house of one Paulose till

late night. No investigation is conducted to rule out the

involvement and responsibility of other persons for the pregnancy

of the victim. Independent witnesses were not examined

including those of Ashraya Shelter Home. Head master Mohanan

who was a crucial witness is also not examined. There is nothing

to prove the guilt of the appellant beyond the shadow of
Crl.Appeal No.376 of 2015

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reasonable doubt. Admittedly, the appellant is a mental patient.

The Court below erred in arriving at its present conclusion. Based

on such wrong reasoning, a harsh and disproportionate

punishment is also passed against the appellant. He pleaded for

an acquittal extending benefit of doubt to the appellant.

6. On the other hand, the learned Government Pleader

for Atrocities against Women and Children, Smt.S.Ambika Devi

vehemently argued that the case at hand is so shocking and

unheard of in our State. Person by whom she was to be protected

became her predator. Place where she would find shelter had

been converted by the appellant herein into the place of

savagery. The offence is a continuing one. She was totally

silenced by the appellant by threats. PW2’s evidence is totally

reliable and it is corroborated by medical and other available

evidence. Though there are some lapses in conducting the

investigation, prosecution succeeded in proving the guilt of the

appellant beyond reasonable doubt and the Court below is

justified in convicting the appellant. The punishment is in

proportion to the gravity of offence committed by the appellant.

He is a depraved man with no bounds. Trial Court is fully justified
Crl.Appeal No.376 of 2015

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in imposing the said punishment and hence no interference is

called for. She relied on the following decisions of the Apex Court

to support her arguments:-

(i) State of Karnataka v. Yarappa Reddy (AIR 2000 SC

185) was cited to point out that criminal justice system does not

solely rest on the probity of investigation and criminal trial cannot

be allowed to plummet to the level of investigating officers ruling

the roost. Even if the investigation is illegal or even suspicious,

the rest of evidence must be scrutinized independently of the

impact of it.

(ii) State of Himachal Pradesh v. Asha Ram (AIR 2006

SC 381) was relied to emphasize that conviction can be founded

on the testimony of the prosecutrix alone unless there are

compelling reasons for seeking corroboration.

7. PW3 is a neighbour of the victim. She deposed that the

appellant/accused was residing in a shed near to their house

during the relevant period and he used to come home late and

the three children of the appellant used to come to their home

and wait till the appellant come.

8. Ext.P5 is the school admission register of PW2 proved
Crl.Appeal No.376 of 2015

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through PW5, the Headmistress. Ext.P5 shows that PW2 was born

on 19/04/1998. She also deposed that her name was removed

from the rolls as she was absent for a long period. Her evidence

shows that the victim was below 16 years during the time she

was subjected to sexual assault.

9. Ext.P1 certificate is issued by PW1 the Doctor after

examining the victim at Government Victoria Hospital, Kollam.

According to her, at the time of examination, the victim was 18

weeks pregnant. In Ext.P1, PW1 also recorded the reason for the

said pregnancy deposed to by the victim (PW2). The allegation

noted is that she was sexually abused by her own father for more

than three years.

10. Ext.P4 is the potency certificate of the

appellant/accused, issued by PW4 the Medical Officer at Taluk

Headquarters Hospital at Punalur. His evidence shows that the

appellant was capable of performing sexual acts at the time of

test.

11. The most important evidence relied on by the

prosecution in the case is the oral testimony of the victim (PW2).

PW2’s evidence is as follows: She deposed that a few years back,
Crl.Appeal No.376 of 2015

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her mother eloped with a man from Konni leaving herself and her

two younger brothers with her father, who is the

appellant/accused herein. Thereafter the appellant along with

them shifted their residence to appellant’s parents’ home. The

appellant and his brother did not get along well together and

hence the appellant constructed a shed in the property belonging

to his father and started residing there with PW2 and her

brothers. PW2 was studying in the 8th standard. She further

deposed that ever since her mother abandoned her father, he

used to make her do all household chores such as cooking and

looking after her younger brothers. He even insisted her to share

his bed. He used to come home in the evening in drunken

condition. He used to consume ganja and used to force himself

upon her. According to her, she opposed initially the acts of her

father. Later she was frightened by her father. Until the abuse

became unbearable, she did not inform the matter to anybody,

out of fear. She approached one Mohanan who was the

Headmaster of the school in which her brothers were studying

and informed the matter. With his help, the three children were

shifted to a shelter home named ‘Ashraya’. She was admitted to
Crl.Appeal No.376 of 2015

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Thamarakkudy High School in the 8th standard. While studying

there, she had symptoms of nausea and vertigo. She was taken

to Vijaya Hospital at Kottarakkara and it was detected that she

was five months pregnant. Immediately, the matter was reported

to the Child Welfare Committee, Kollam. Her statement was

recorded by the Child Welfare Committee and her statement

along with a forwarding letter by the Chairman of the Committee

was sent to the police. With the help of PW9, Ext.P3 FIS was

recorded. Thereafter she had been sheltered in Mahila Mandiram.

She delivered a girl child on 13 th November, 2013 through

caesarean. She also deposed that she had given statement

before Magistrate also. She identified MO1 churidar top as the

dress she wore at the time of offence as it was her usual dress at

home. In Court, with tears, she identified her father as her

violator.

12. Learned counsel for the appellant attacked each and

every piece of evidence adduced by the prosecution. He pleaded

that no reliance could be placed on the testimony of PW2 and he

also argued that the medical examination was conducted without

obtaining the consent of the victim or her guardian.
Crl.Appeal No.376 of 2015

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Determination of age of the victim is also done against the

established procedures of law. He relied on the decision of the

Apex Court in Jarnail Singh v. State of Haryana [(2013) 7 SCC

263] to substantiate his contentions. Paragraphs 22 and 23 being

relevant, are extracted below:-

“22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007
(hereinafter referred to as “the 2007 Rules”). The
aforestated 2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care and Protection of
Children) Act, 2000. Rule 12 referred to hereinabove reads
as under:

xxxx”

“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of
the view that the aforesaid statutory provision should be
the basis for determining age, even of a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW, PW 6.
The manner of determining age conclusively has been
expressed in sub-rule (3) of Rule 12 extracted above.

Under the aforesaid provision, the age of a child is
ascertained by adopting the first available basis out of a
Crl.Appeal No.376 of 2015

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number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available would conclusively
determine the age of a minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of the child
concerned is the highest rated option. In case, the said
certificate is available, no other evidence can be relied
upon. Only in the absence of the said certificate, Rule
12(3) envisages consideration of the date of birth entered
in the school first attended by the child. In case such an
entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon. Only
in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration for determining the age of
the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in the
absence of any of the aforesaid, that Rule 12(3) postulates
the determination of age of the child concerned, on the
basis of medical opinion.”

13. This is a case in which a severe crime which shocks

human conscience was reported to the Police from the Child

Welfare Committee. Allegation was that a minor girl was raped

over a period of time by her own father at her house. The result
Crl.Appeal No.376 of 2015

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of the ‘meticulous’ investigation is that the Court has nothing to

rely as evidence except the oral testimony of the victim girl.

Investigation was conducted in a shallow manner. This is yet

another instance of neglect of the cause of poor and disabled by

an investigating agency. Any doubt in the oral evidence of the

victim, would end up in an acquittal. But it is not so. We do not

find any compelling reason to seek corroboration as we are

convinced of the truthfulness of the sole testimony of PW2, who

is the daughter of the appellant herein. It is now well settled

principle of law that conviction can be founded on the testimony

of the prosecutrix alone unless there are compelling reasons for

seeking corroboration. The evidence of a prosecutrix is more

reliable than that of an injured witness. The testimony of the

victim of sexual assault is vital unless there are compelling

reasons which necessitate looking for corroboration of her

statement, the Courts should find no difficulty in acting on the

testimony of a victim of sexual assault alone to convict an

accused where her testimony inspires confidence and is found to

be reliable. It is also well settled principle of law that

corroboration as a condition for judicial reliance on the testimony
Crl.Appeal No.376 of 2015

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of the prosecutrix is not a requirement of law but a guidance of

prudence under given circumstances. The evidence of the

prosecutrix is more reliable than that of an injured witness. Even

minor contradictions or insignificant discrepancies in the

statement of the prosecutrix should not be a ground for throwing

out an otherwise reliable prosecution case.

14. Learned counsel relied on the following judgments to

point out instances where the Apex Court relied on the sole

testimony of Prosecutrix to convict the accused:-

(i) Madan Gopal Kakkad v. Naval Dubey [(1992) 3

SCC 204]. In this case, it was pointed out that even in cases

wherein there is lack of oral corroboration to that of a prosecutrix,

a conviction can be safely recorded, provided the evidence of the

victim does not suffer from any basic infirmity, and the

‘probabilities factor’ does not render it unworthy of credence, and

that as a general rule, corroboration cannot be insisted upon,

except from the medical evidence, where, having regard to the

circumstances of the case, medical evidence can be expected to

be forthcoming.

(ii) State of Punjab v. Gurmit Singh [(1996) 2 SCC
Crl.Appeal No.376 of 2015

-:15:-

384]. In this case, the Apex Court held as under:-

“Rape is not merely a physical assault — it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such
cases with utmost sensitivity. The courts should examine
the broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case.
If evidence of the prosecutrix inspires confidence, it must
be relied upon without seeking corroboration of her
statement in material particulars. If for some reason the
court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend
assurance to her testimony, short of corroboration required
in the case of an accomplice. The testimony of the
prosecutrix must be appreciated in the background of the
entire case and the trial court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestations.”

15. In spite of the flaws in investigation, we find that the

trial Court was justified in holding that the accused is guilty for

rape.

16. Life imprisonment for the remainder of life is the

punishment imposed on the accused.

Crl.Appeal No.376 of 2015

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17. In fact, the charge against the accused is for having

committed rape u/s 375 of IPC. The punishment is provided u/s

376. S.376 of I.P.C. had been substituted by Act 13/2013 and the

new provision came into effect from 3/2/2013. In the case on

hand, the allegation of the prosecution was that the accused had

committed rape of the victim extending a period of three years

from 2010. There is no evidence to indicate that he had

committed rape on the victim after the amendment to I.P.C. with

reference to S.376 of I.P.C. effective from 3/2/2013. Therefore, the

provision which was applicable prior to 3/2/2013 requires to be

considered for imposing punishment on the accused. Prior to Act

13/2013, the punishment for committing rape was with

imprisonment of either description for a term which shall not be

less than seven years, but which may be for life or for a term

which may extend to ten years and shall also be liable to fine.

Proviso indicates that the Court may, for adequate and special

reasons to to be mentioned in the judgment, impose a sentence

of imprisonment for a term of less than seven years. Sub section

(2) of S.376 provides a punishment with rigorous imprisonment

for a term which shall not be less than 10 years and it may be for
Crl.Appeal No.376 of 2015

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life and shall also be liable to fine in instances where the offence

is committed by special category of persons and sub clause (f)

amounts to commission of rape on a woman when she is under

twelve years of age. In fact, the provision which was applicable

after Act 13 of 2013 included S.376(2) (f) and (i), which reads as

under:-

“376. Punishment for rape (1) Whoever, except in
the cases provided for in sub-section (2), commits
rape, shall be punished with rigorous imprisonment of
either description for a term which shall not be less
than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.

(2) Whoever,–
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx

(f) being a relative, guardian or teacher of, or a person
in a position of trust or authority towards the woman,
commits rape on such woman; or

(g) xxx

(h) xxx

(i) commits rape on a woman when she is under
sixteen years of age.”

18. The evidence in the case would suggest that the victim

was being raped since 2010 upto 2013. Age of the victim is
Crl.Appeal No.376 of 2015

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proved by Ext.P5, an extract of the admission register produced

by PW5. Ext.P5 would indicate the date of birth of the victim as

19/4/1998. Therefore, only as on 19/4/2010, she would have

crossed 12 years. Apparently we do not know whether the rape

was committed for the first time after attaining 12 years or before

that. The benefit of doubt has to be given to the accused. Under

the POCSO Act, which came into effect from 19/6/2012, child is

defined as meaning, any person below the age of 18 years and

punishment for penetrative sexual assault is for a description

which shall not be less than 7 years but which may extend to

imprisonment for life, and shall also be liable to fine. The

punishment for aggravated penetrative sexual assault coming u/s

6 is rigorous imprisonment for a term which shall not be less than

ten years but which may extend to imprisonment for life and shall

also be liable to fine. It is relevant to note that the victim had

given birth to a child on 13/11/2013. Therefore the actual date on

which rape was committed, i.e., whether before Act 13 of 2013

coming into effect or not cannot be discerned. At any rate, even

for committing rape, u/s 376(1), imprisonment for life is the

maximum punishment that could be provided along with fine
Crl.Appeal No.376 of 2015

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which has rightly been granted by the Court below though

invoking the amended provision u/s 376(2)(f) and (i) of the I.P.C.

But an accused who is punished for imprisonment for life is

entitled to seek for remission or commutation of sentence in

terms of Sections 432 and 433 of Cr.P.C. r/w S.55 of the I.P.C.

Ordinarily, it is not within the power of the Courts to direct that

the accused shall not be released from jail unless he had

undergone imprisonment for the whole of his life. Granting

remission or commutation of sentence is within the domain of the

appropriate Government and the Court cannot impose on the

Government that they should not exercise their power under

Sections 432 and 433 of Cr.P.C in remitting or commuting

sentences. There is no doubt about the proposition and as held

by the Constitution Bench of the Apex Court in Gopal Vinayak

Godse v. State of Maharashtra and Others [(1961) 3 SCR

440] which has been followed in a long line of judgments and the

latest of which is the Constitution Bench judgment in

Muthuramalingam v. State [(2016) 8 SCC 313] that the

punishment for imprisonment for life granted by the Court means

a sentence of imprisonment for the convict for the rest of his life.
Crl.Appeal No.376 of 2015

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But the Apex Court has also held that, in cases where imposition

of death sentence would be too harsh and imprisonment for life is

too inadequate, the Apex Court has adopted different methods to

ensure that the minimum terms of life imprisonment ranges from

atleast 20 years to the end of natural life, as held in Swamy

Shraddananda (2) v. State of Karnataka [(2008) 13 SCC

767]. However, in instances where the maximum punishment is

imprisonment for life, such a method cannot be adopted and

even the Constitutional Courts much less the trial Court cannot

direct that the Government should not exercise their power under

Sections 432 and 433 of Cr.P.C r/w S.55 of the I.P.C. In fact in

State of Rajasthan v. Jamil Khan [(2013) 10 SCC 721], the

Apex Court had expressed an opinion that introducing one more

category of punishment ie., life imprisonment without

commutation or remission was appropriate if a proper

amendment is made to S.53 of I.P.C. In view of what is stated

above, it is only appropriate that the direction issued by the Court

below qualifying the word life imprisonment to the “remainder of

life” is patently illegal and to that extent, the sentence requires to

be modified.

Crl.Appeal No.376 of 2015

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19. In the result, we confirm the finding of guilt on the

accused u/s 376 of I.P.C. r/w S.6 of the POCSO Act and he is

convicted to undergo imprisonment for life and to pay a fine of

`25,000/- (Rupees Twenty Five thousand only), with default

sentence as directed by the trial Court. The order of the Court

below that the conviction of life imprisonment is for the

“remainder of his life” shall stand set aside.

Appeal is disposed of accordingly.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

SHIRCY V.

Rp //True Copy// JUDGE

PS to Judge

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