CRIMINAL LAW — POCSO — RELIABLE TESTIMONY — OMISSIONS IN HEARSAY ACCOUNTS — MINIMUM SENTENCE

Protection of Children from Sexual Offences Act, 2012 — Sections 5 and 6 — Indian Penal Code — Conviction challenged on alleged omissions and inconsistencies among the survivor’s testimony, prior statements, medical history and the accounts of parents. This edition preserves anonymity and omits explicit and identifying factual passages; the original judgment remains the authoritative source.

Held

1. The Court found the survivor’s testimony to be of sterling quality and supported by medical evidence. The discrepancies relied on by the appellant did not, on the assessment made in this case, undermine the prosecution case. (Paras 32–33)

2. Parents who are not eyewitnesses cannot be expected to narrate every detail known to the survivor. Omissions in their accounts must be assessed in that context. The reliance on Royson was distinguished because the first information statement in the present case was not given by the survivor. (Paras 32–33)

3. The statutory minimum of twenty years’ rigorous imprisonment applicable to the aggravated offences could not be reduced. The concurrent sentences were confirmed; the judgment does not impose a cumulative sixty-year term. (Para 35)

4. The appeal was dismissed and the convictions and sentences confirmed. Pending applications were dismissed and transmission of the judgment to the jail authorities and Special Court was directed. (Paras 35–36)

Appellant: Vivek Venugopal, Advocate.

State: Sajeev P.K., Senior Public Prosecutor.

J U D G M E N T

The sole accused in S.C. No.490/2022 on the files of the Special Court for the trial of cases under the Protection of Children From Sexual Offences Act, (hereinafter referred to as the ‘POCSO Act’, for short), Wadakkanchery, 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 25.06.2024. The State of Kerala, represented by the Public Prosecutor is arrayed as the respondent herein.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor for the respondent. Gone through the judgment under challenge and perused the evidence available.

[Paragraph 3: The prosecution alleged offences against a child. Identifying and detailed factual particulars are omitted.]

4. The learned Special Judge, after framing charge for the above said offences, recorded evidence and completed trial. During trial, PW1 to PW27 were examined and Exts.P1 to P33 were marked on the side of the prosecution. DW1 to DW3 were examined and Exts. D1 and D2 were marked on the side of defence.

5. In this case, on analysis of evidence, the learned Special Judge found that the appellant/accused had committed offences punishable under Sections 450, 363, 376(2)(n), 376(2)(f) and 376(3) of the IPC and under Sections 4(2) read with 3(b), 4(2) read with 3(d), 6(1) read with 5(l), 6(1) read with 5(n), 8 read with 7 and 10 read with 9(l) of the POCSO Act, while acquitting the appellant/accused for the offence punishable under Section 366A of the IPC and, accordingly, the appellant/accused was convicted for the said offences and sentenced as under:-

“118. Therefore, the accused is sentenced to undergo rigorous imprisonment for 20 (twenty) years and to pay fine of Rs.25,000/(Rupees twenty five thousand only) u/s.6 r/w.5(l) of the POCSO Act. In default of payment of fine the accused shall undergo a further period of imprisonment for 6 (six) months.

119. Section 6 r/w. 5(n) of POCSO Act corresponds to Section 376(2)(f) of IPC. By virtue of S.42 of the PoCSO Act, no separate sentence is being awarded u/s. 376(2)(f) of IPC.

120. Therefore, the accused is sentenced to undergo rigorous imprisonment for 20 (twenty) years and to pay fine of Rs.25,000/(Rupees twenty five thousand only) u/s.6 r/w.5(n) of the PoCSO Act. In default of payment of fine the accused shall undergo a further period of imprisonment for 6 (six) months.

121. The offence punishable u/s 8 r/w 7 is a minor offence of the offence u/s.10 r/w 9(l) of the POCSO Act. Therefore, the sentence can be awarded u/s.10 r/w 9(l) of the PoCSO Act. No separate sentence is being awarded u/s.8 r/w.7 of the POCSO Act.

122. Therefore the accused is sentenced to undergo rigorous imprisonment for 5(five) years and to pay fine of ₹10,000/- (Rupees ten thousand only) u/s.10 r/w.9(l) of the Protection of Children from Sexual Offences Act. In default of payment of fine, the accused shall undergo a further period of imprisonment for 2 (two) months.

123. Section 4(2) r/w. 3(b) and 3(d) of the PoCSO Act corresponds to Section 376(3) of IPC. By virtue of S.42 of the PoCSO Act, no separate sentence is being awarded u/s.4(2) r/w. 3(b) and 3(d) of the PoCSO Act.

124. The accused is sentenced to undergo rigorous imprisonment for 20 (twenty) years and to pay fine of Rs.25,000/(Rupees twenty five thousand only) u/s.376(3) of the IPC. In default of payment of fine the accused shall undergo imprisonment for a further period of 6 (six) months.

125. Further, the accused is sentenced to undergo rigorous imprisonment for 5 (five) years and to pay fine of Rs.10,000/(Rupees ten thousand only) u/s.450 of the IPC.

126. The accused is sentenced to undergo rigorous imprisonment for 5(five) years and to pay fine of Rs.10,000/ (Rupees ten thousand only) u/s.363 of the IPC. 127. He is entitled to set off the period of detention already undergone by him from 04.01.2022 to 21.04.2022 u/s.428 CrPC.

128. The fine amount, if realized will be paid as compensation to PW1 u/s.357(1)(b) of CrPC.

129. The substantive sentence of imprisonment shall run concurrently”

6. While assailing the judgment under challenge, the learned counsel for the appellant argued that there are material omissions in the evidence of PW1, the victim, as she did not state the overt acts spoken before the court in Ext.P1 164 of the Code of Criminal Procedure (for sake, ‘Cr.P.C.’, hereinafter) statement (her previous statement) before the Magistrate. Apart from that, when she had given statement to the Doctor, she gave a statement in variation with the statement given in Ext.P1, as per Ext.P13 dated 17.12.2021. Therefore, the omissions in its entirety would make the evidence of PW1, the victim, as not of sterling quality to act upon the same, as the sole basis of conviction. According to the learned counsel for the appellant, PW2 examined in this case is the father of the victim and PW3 examined in this case is the mother of the victim. He would submit that the evidence of PW2 would suggest that at the time of lodging Ext.P2 First Information Statement by PW2 he had knew the entire occurrence, but he failed to state the entire occurrence in Ext.P2. Similarly, the statement given by PW3 also would not contain the details of the overt acts spoken by PW1 before the Court. Thus this aspect shows obscurity in the prosecution case. On this premise, the learned counsel for the appellant argued that the prosecution evidence is insufficient to find commission of the offences found by the learned Special Judge and in such view of the matter, the verdict would require interference.

7. The learned counsel for the appellant placed reliance on the decision of this Court in Royson v. State of Kerala reported in [2017 ICO 2109: 2018(1) KLJ 361 :2018(1) KLD 339], to contend that suppression of a material information known to the informant at the time of giving first information statement is so crucial and to be viewed very seriously when conviction is resting on the sole testimony of the person who had given the First Information Statement suppressing material facts.

8. Whereas the learned Public Prosecutor supported the verdict impugned and argued that, in the instant case, the evidence of PW1 who had given statement to the police, 164 statement before the Magistrate and the statement before the Doctor on 17.12.2021 deposed the overt acts at the instance of the appellant/accused to find commission of the offences found by the learned Special Judge. According to him, on reading the evidence of PW2 and PW3, an inference could not be taken to hold that they were aware of the entire overt acts done by the accused against PW1, at the time of giving Ext.P2 statement by PW2 and Section 161 of Cr.P.C statement by PW3. It is pointed out that in the instant case, apart from the evidence of PW1, the victim, the evidence of PW16 the doctor, who had examined the victim, to find out whether she was subjected to sexual molestation had given evidence supporting the prosecution. According to her, PW16 gave evidence supporting issuance of Ext.P13 report which would suggest penetrative sexual assault and thus the evidence available would show the involvement of the accused in the commission of the offences found by the learned Special judge. Thus in the instant case, there is no necessity to interfere with the verdict impugned.

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

1. Whether the Special Court is justified in finding that the accused committed the offence under Section 450 of the IPC ?

2. Whether the Special Court is justified in finding that the accused committed the offence under Section 363 of the IPC ?

3. Whether the Special Court went wrong in finding that the accused committed the offence under Section 376(2)(n) of the IPC ?

4. Whether the Special Court right in finding that the accused committed the offence under Section 376(2)(f) of the IPC ?

5. Whether the Special Court is justified in finding that the accused committed the offence under Section 376(3) of the IPC ?

6. Whether the Special Court is right in finding that the accused committed the offence under Section 4(2) read with 3(b) of the POCSO Act ?

7. Whether the Special Court is right in finding that the accused committed the offence under Section 4(2) read with 3(d)of the POCSO Act?

8. Whether the Special Court is justified in finding that the accused committed the offence under Section 6(1) read with 5(l) of the POCSO Act?

9. Whether the Special Court went wrong in finding that the accused committed the offence under Section 6(1) read with 5(n) of the POCSO Act?

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

11. Whether the Special Court is justified in finding that the accused committed the offence under Section 10 read with 9(l) of the POCSO Act?

12. Whether the verdict of the Special Court would require interference?

13. The order to be passed?

[Paragraph 10: The Court found the survivor’s age established by birth-record evidence. Identifying particulars are omitted.]

11. In the instant case, the father of the victim (PW1) got examined as PW2. He testified that he had lodged Ext.P2 FIS and on the said basis, this crime was registered and investigated. During examination of PW2, he supported that he had given Ext.P2 FIS when he came to know about the sexual assault at the instance of the accused towards his daughter and he testified about the overt acts spoken by PW1 to him.

12. During cross examination, PW2 given categoric evidence that he got information regarding the occurrence as spoken by PW1. Thus the status of PW2 is that of a hearsay witness. In fact, his knowledge regarding the occurrence is confined to the information passed by PW1. Thus the evidence of PW1 is the sole direct evidence available as regards to the overt acts done by the appellant; apart from medical evidence.

[Paragraphs 13–31: Explicit, medical and identifying factual details omitted. The Court reviewed the survivor’s testimony, witness accounts, and documentary and medical evidence.]

32. In view of the discussion, the decision in Royson‘s case (supra) placed by the learned counsel for the appellant to contend that suppression of a material information known to the informant at the time of giving First Information Statement is so crucial and to be viewed very seriously when conviction is resting on the sole testimony of the person who had given the First Information Statement, suppressing the material facts is totally mis-placed, as here the victim did not give the First Information Statement.

33. Thus on re-appreciation of evidence, this Court is of the considered view that the learned Special Judge rightly appreciated the evidence and came to the conclusion that the the appellant/accused committed offences punishable under Sections 450, 363, 376(2)(n), 376(2)(f) and 376(3) of the IPC and under Sections 4(2) read with 3(b), 4(2) read with 3(d), 6(1) read with 5(l), 6(1) read with 5(n), 8 read with 7 and 10 read with 9(l) of the POCSO Act.

34. Therefore, the conviction imposed by the learned Special Judge for the offences under Sections 450, 363, 376(2) (n), 376(2)(f) and 376(3) of the IPC and under Sections 4(2) read with 3(b), 4(2) read with 3(d), 6(1) read with 5(l), 6(1) read with 5(n), 8 read with 7 and 10 read with 9(l) of the POCSO Act does not require any interference.

35. Coming to the sentence, the Special Court imposed minimum sentence of rigorous imprisonment for twenty years each for the offence punishable under Sections 6(1) read with 5(l), 6(1) read with 5(n) of the POCSO Act and under Section 376(3) of the IPC. Since the sentence imposed is the statutory minimum, reduction in sentence also cannot be considered. Accordingly, the verdict impugned does not require any interference and in such view of the matter, this appeal must fail.

36. In the result, this criminal appeal stands dismissed. The conviction and sentence imposed upon the appellant/accused stand confirmed. 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 and the Special Court concerned, for information and compliance.