IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 3RD DAY OF JANUARY 2011/13TH PAUSHA 1932 CRL.A.No. 1423 of 2010 (C) ------------------------------- SC.231/2008 of ADDL. SESSIONS COURT (SPL. COURT), KOTTAYAM CP.9/2008 of J.M.F.C., PALA .......... APPELLANT: ------------ PUSHPANGADHAN,C.NO.5139, CENTRAL PRISON, THIRUVANANTHAURAM. BY ADV. SUNIL J.[STATE BRIEF] RESPONDENT: -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.1423 of 2010 ----------------------------------------------- Dated 3rd January, 2011. J U D G M E N T The appellant was convicted and sentenced for offences under Sections 376, 377 and 506(i) of the Indian Penal Code ('IPC' for short). He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.38,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of 5 years and 3 months. 2. According to prosecution, PW2 is the step daughter of appellant/accused. Her father died when she was very young and her mother started living with appellant. Since the age of 12 years, appellant used to sexually harass PW2 in various ways and he also committed rape on her and subjected her to unnatural offence. She was accommodated in a Convent, on her insistence for staying in a hostel. While she was undergoing Nursery Teachers' Training Course, by residing in the study house in the convent, she consumed poison on 8.2.2008 and she was taken to the hospital. The Mother Crl.Appeal No.1423/10 2 Superior (PW1) gave first information statement (Ext.P1) before the police and F.I.R. was registered. After investigation, charge sheet was laid against accused. 3. Prosecution examined PW1 to PW16 and marked Exts.P1 to P20 and Mos.1 to 3 to prove the case. The accused did not adduce any defence evidence, but marked Ext.D1 birth certificate. According to accused, he was residing separately from victim's mother since past ten years. The complaint was made by PW2, as instructed by the persons in the convent. PW2's mother is also having enmity towards him. On an analysis of the evidence in detail, trial court found that accused committed various offences alleged against him. The suggestion made by the defence that PW2 was tutored to tell falsity, with a view to protect the reputation of the study house run by the convent was rejected. 4. The appellant was undefended and hence, Advocate Sri.Sunil.J was appointed as State Brief. Heard both sides. Learned counsel for accused argued that as per the evidence of PW2, the victim, there are only six instances of sexual Crl.Appeal No.1423/10 3 harassment and all these happened, while she was studying in 6th Standard and earlier. Poison was consumed years thereafter, while she was studying as an inmate in a study house run by the convent. 5. At the time of incident, victim was undergoing Nursery Teachers' Training Course while she was a resident in the study house, after completion of her 10th Standard. The present case of prosecution is that she attempted to commit suicide by consuming poison because of the sexual harassment from the step father. According to accused's counsel, this version cannot be believed, because even according to PW2's statement, she was harassed only up to 6th Standard while she was residing with her step father. In her evidence, PW2 stated that her mother started to reside separately from the step father when she told her about the harassment. This was while she was studying in 6th Standard. The present allegations are made against appellant, only because PW2 was instructed by the authorities in the Convent to speak against the accused, with a view to protect their reputation,it is submitted. Crl.Appeal No.1423/10 4 6. To prove the prosecution case, prosecution mainly relies upon the evidence of PW2, the alleged victim. She was aged 18 years at the time of lodging the complaint. According to her, accused was her step father and he used to sexually harass her while she was living under the same roof along with her mother and siblings. The harassment started ever since she was very small, even before she attained puberty. The first incident occurred when she was decided to be taken to Sabarimala. Her mother (PW4) had to stay away from the house since she had menstrual period and on that occasion accused sexually abused her and he told her that this was necessary for going to Sabarimala. 7. PW2 deposed how and in what manner, accused had committed various sexual acts on her. Her evidence reveals that there was penetration, as required under Sections 375 and 377 of IPC. It is also clear from the evidence that she spoke about six instances in which the accused committed rape, unnatural offence and criminal intimidation against her. PW1 deposed that from the house as well as outside the house, Crl.Appeal No.1423/10 5 accused had committed sexual acts on her and there was penile-vaginal penetration. He also threatened her that he would kill her mother and siblings if she had stated the details to any other person. 8. On going through the evidence of PW2, PW1, the mother superior and PW4 her own mother, it would be clear that the incident had happened as alleged by PW2. PW1 is the Mother Superior who was running the study house, wherein victim was accommodated while she was undergoing Nursery Teachers' Training Course. She deposed that the girl used to tell her about the harassment she had suffered at the hands of the step father and under what circumstances she happened to be accommodated in the Convent. 9. PW1 deposed that it was to escape from the harassment that she had insisted to stay in the Convent to pursue her studies. PW1 also deposed that the alleged victim used to be taken to the Study House both by the mother and the step father, but on knowing that the girl was facing sexual harassment from the step father, PW1 told the parents that she Crl.Appeal No.1423/10 6 should be taken to the hostel only by the mother. This fact is spoken to by PW4, the mother also. 10. It is also in evidence that PW4 started living separately from the accused, when PW1 disclosed to her about the sexual harassment from the step father. There is no reason to reject the evidence on these aspects. This would in all circumstances which will confirm the veracity of evidence of PW2. The appellant and PW4 were living separately from each other, since PW4 happened to know from the Convent that her daughter was being subjected to sexual harassment by the step father. Though there is no direct evidence except that of PW2, the victim regarding the sexual acts committed by accused, her evidence is supported by various circumstances, which strongly supports the veracity of her evidence. 11. The fact that PW2 was accommodated in a Convent has not been challenged. PW2 stated the reasons for moving to the hostel. According to her, the harassment from her step father was intolerable and she insisted her mother to put her in the Convent to pursue her studies. PW4 also deposed that Crl.Appeal No.1423/10 7 accused had decided to take PW2 to Sabarimala and during the said period, since she was having menstrual period, she had to stay away from the house. According to PW2, it was on such occasion that he for the first time, subjected her to sexual harassment stating that it was necessary as a ritual to go to Sabarimala. 12. PW3 was examined to state that the alleged victim was subjected to counselling. PW3 is a nun who gave evidence that the alleged victim was having lot of anxiety and fear due to the sexual experience she had undergone at the hands of the step father. Learned defence counsel submitted that neither PW1, PW2, nor PW4 gave evidence that victim was subjected to counselling. Therefore, the evidence of PW3 has to be discarded. I do not find any reason to accept this argument. The question is whether PW2 was subjected to counselling or not. 13. There is absolutely nothing in the evidence of PW3 to show that she was stating falsehood before the court. There is nothing to show that she has anything to do with the success of Crl.Appeal No.1423/10 8 the prosecution nor that she had any motive against accused. She deposed that the victim was having fear and aversion to certain things because of the sexual experience she had from her step father. The evidence given by PW3 to certain extent corroborates the evidence of PW2 on the fact that appellant used to show her banana and tapioca and teach her how to use the same. She had aversion to banana and tapioca, as per the evidence of PW3. 14. For the mere reason that PW2 or PW1 did not make any mention about the counselling, I am not inclined to reject the evidence of PW3, who is an independent witness. Her evidence is supported by the subsequent events also to some extent. PW2 gave evidence that because of her step father's sexual harassment, she was undergoing a lot of tension and she wanted to put stop to her life and she consumed poison, at a time when her studies were coming to an end and she had no other way, but to go back to the house. Once she stopped studies, she would have to go back to the house and she feared that her step father would continue his harassment. Crl.Appeal No.1423/10 9 15. It is in evidence that PW2 had in fact attempted to commit suicide. She consumed poison and she was taken to the hospital. A statement was also recorded from PW2 and it is marked as Ext.P14 by a Judicial Magistrate of First Class as dying declaration. As per the medical evidence, her condition was serious. In Ext.P4 she had given instances of sexual harassment from the appellant. So, the evidence of PW3 that the girl was subjected to counselling because of the fear and anxiety is corroborated by the subsequent conduct in consuming poison and attempting to commit suicide. 16. Learned defence counsel argued that PW2 would not have to go to appellant's house, since her mother was residing separately from her step father since a long time. Therefore, the evidence given by PW2 and PW3 about the anxiety and fear of the alleged victim may not be correct. It is true that PW2 and PW4 admitted that they were residing separately from appellant since a long time, but that does not mean that she is out of danger, since PW2 has given evidence that the step father used to tell her that she would fall back to his hands Crl.Appeal No.1423/10 10 ultimately, wherever she went. Throughout the period of her studies, the victim was under the protection of the Convent and she was accommodated in the study house. It is in evidence that the Teachers' Training Course was to be over shortly. Therefore, the girl would have had the anxiety as to what would happen, if she is let out to the world from the care and protection of the convent. 17. The medical evidence will reveal that the condition of the girl was very bad at the time when she was admitted in the hospital after consuming poison. She was not in a conscious position very often. It is unlikely that in such a state of mind, she would be instructed to speak falsehood and she would oblige also. Though it is in evidence that the incident happened at the time when PW2 was living under the same roof along with her mother and step father and a few years elapsed when the FIR was lodged, it is in evidence that the girl was psychologically under great stress and fear because of the physical and sexual harassment she was subjected to by step father. Crl.Appeal No.1423/10 11 18. So, the lapse of about 4 to 5 years after the last sexual assault, according to me, cannot be made a ground to exonerate accused from the acts committed by him to cast any doubt on the veracity of the evidence of PW2. If, as a matter of fact, PW4, the mother of the victim was inimical towards him as alleged by accused, there is no reason why a false complaint was not lodged prior to the suicidal attempt by PW2. It is clear from the evidence given in this case that the girl was under the trauma of the experiences she had undergone at the hands of the step father and this could led her to attempt to commit suicide. 19. There is no reason to disbelieve the evidence of PW2 regarding what she stated about the step father, or there is any material on record to doubt the veracity of the evidence of PW1 and PW3 or to hold that PW2 must have been speaking against appellant under the instructions given by the nuns. On the facts of this case, delay and the circumstances under which the FIR was lodged against the appellant do not raise any suspicion. May be, the victim would have gained courage to speak out all Crl.Appeal No.1423/10 12 what had happened because of the good support she had from the convent authorities. But, it cannot be taken as a ground to criticise them for foisting a false case against accused. They have no reason to do so. 20. The most heneous acts of accused on a helpless girl like PW2 would not have been probably brought to light had she not reached the convent from where she gained strong support. The medical evidence also supports the evidence given by PW2. Though the doctor (PW12) has given evidence and it is recorded in Ext.P8, the medical certificate that there is no clinical evidence suggesting that rape has not occurred, PW12 explained the physical features, which were noted by the doctor in Ext.P8, from which it can be gathered that sexual acts were committed on PW2. 21. On the whole, there is nothing on record, which calls for interference in the conviction. The evidence of PW2 clearly reveals that the appellant had forced her to take his penis in her mouth and suck. He had also penetrated the male organ into the vulva and subjected her to rape and also unnatural Crl.Appeal No.1423/10 13 offence falling under Sections 376 and 377 IPC. The evidence relating to the criminal intimidation is also intact and trial court has correctly convicted the appellant under Section 506 (1) of IPC. 22. The trial court sentenced the appellant to undergo rigorous imprisonment for ten years, taking into account the tender age of the victim and also the background of accused. The trial court took note of the fact that accused had four wives and he had children in all of them. The sentence imposed under Section 377 IPC under Section 506 (1) IPC is also not extensive. The sentence of fine and compensation ordered are all adequate and sustainable. In the above circumstances, I find no reason to interfere in the conviction and sentence or order of compensation. This appeal is dismissed. Sd/-K.HEMA, JUDGE. tgs /True copy/ P.A to Judge Crl.Appeal No.1423/10 14