Criminal Appeal No.1168 of 2018 1 2025:KER:26641 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 CRL.A NO. 1168 OF 2018 CRIME NO.977/2015 OF VALLIKUNNAM POLICE STATION, ALAPPUZHA AGAINST THE JUDGMENT DATED 16.07.2018 IN SC NO.360 OF 2017 ON THE FILE OF THE COURT OF SESSION, ALAPPUZHA. APPELLANT/ACCUSED: UDAYAKUMAR, AGED 54 YEARS, S/O BHASKARAN, C.NO.2878, CENTRAL PRISON AND CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM, AND RESIDED AT RAMESH BHAVANAM, KULASHEKHARAPURAM VILLAGE, ADHINADU SOUTH BY ADV SRUTHY K.K. (STATE BRIEF) RESPONDENTS/COMPLAINANT: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. INSPECTOR OF POLICE, MAVELIKKARA. BY ADV.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.03.2025, THE COURT ON 28.03.2025 DELIVERED THE FOLLOWING: Criminal Appeal No.1168 of 2018 2 2025:KER:26641 C.S.SUDHA, J. ------------------------------------------------------- Criminal Appeal No.1168 of 2018 ------------------------------------------------------ Dated this the 28th day of March 2025 J U D G M E N T In this appeal filed under Section 383 Cr.P.C., the appellant, the sole accused, in S.C.No.360 of 2017 on the file of the Court of Session, Alappuzha, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 376(2) (f), 376(2)(i), 376(2)(j) IPC and Sections 5(m), (n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the PoCSO Act). 2. The prosecution case is as follows: the accused, the stepfather of PW4, a minor girl child aged 6 years, on 22/08/2015 during night in their house bearing door no.12/257-A, Bharanikkavu grama panchayat, committed rape on her. The accused committed aggravated penetrative sexual assault on PW4. Hence, the accused as Criminal Appeal No.1168 of 2018 3 2025:KER:26641 per the final report was alleged to have committed the offences punishable under Section 376(2)(f) IPC, Section 3 read with Section 4 and Sections 5(m), (n) read with Section 6 of the PoCSO Act. 3. Crime no.977/2015, Vallikunnam police station, that is, Ext.P4(a) FIR was registered by PW11, the Sub Inspector of police, Vallikunnam police station based on Ext.P4 FIS of PW5. The initial investigation was conducted by PW8, the then Circle Inspector of Police, Mavelikkara police station. The investigation was thereafter taken over by PW12, Circle Inspector, Mavelikkara who on completion of investigation submitted the final report alleging the commission of the offences punishable under the aforementioned Sections. 4. On appearance of the accused, the trial court after complying with all the necessary formalities contemplated under Section 207 Cr.P.C. and after hearing both sides, framed a charge under Sections 376(2)(f), (i), (j) IPC and Sections 5(m) (n) read with Section 6 of the PoCSO Act, which was read over and explained to the accused to which he pleaded not guilty. Criminal Appeal No.1168 of 2018 4 2025:KER:26641 5. On behalf of the prosecution, PW1 to PW12 were examined and Exts.P1 to P10 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused. 7. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Sections 376(2)(f)(i)(j) IPC and Sections 5(m)(n) read with Section 6 of the PoCSO Act. Hence, he has been sentenced to rigorous imprisonment for ten years each and to a fine of ₹1,00,000/- each and in default to simple imprisonment for two years each for the offences Criminal Appeal No.1168 of 2018 5 2025:KER:26641 punishable under Sections 376(2)(f), 376(2)(i) and 376(2)(j) IPC. The substantive sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. In view of the provisions under Section 42 of the PoCSO Act, no separate sentence has been awarded for the offence under Sections 5(m) (n) read with Section 6 of the PoCSO Act. Aggrieved, the accused has come up in appeal. 8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not. 9. Advocate Sruthy K.K. was appointed as State Brief for the appellant. Advocate Vipin Narayan, senior Public Prosecutor appeared for the State. Heard both sides. 10. It was submitted by the learned counsel for the appellant/accused that the age of PW4, the victim girl has not been established by the prosecution. There was delay in the matter being reported to the police and the FIR reaching the Court. The delay has not been explained. The accused was arrested only on 21/02/2017, Criminal Appeal No.1168 of 2018 6 2025:KER:26641 that is, more than two years after the incident. The prosecution has no case that the appellant/accused was absconding. No reasons have been given by the investigating officer as to what prevented him from arresting the appellant/accused. The place of occurrence has not been proved as no site plan has been prepared. CW3, the mother of PW4 was never examined before the court. CW3 despite coming to know about the alleged incident never set the law in motion by giving a complaint to the police. PW5 is not a reliable witness. The doctor of the Primary Health Centre, where the child is alleged to have been taken first has not been examined. On these grounds it was canvassed that the appellant/accused is entitled to the benefit of doubt and hence consequentially entitled to be acquitted. 10.1. Per contra, it was submitted by the learned Public Prosecutor that PW5 is a natural witness. Ext.P4 FIS makes it clear that PW4 the victim went home from the Children's Home on 22/08/2015 and returned only on 01/09/2015. This fact was not disputed by the appellant/accused which would show that he did have access to the victim at the relevant time. When PW4 returned to the Criminal Appeal No.1168 of 2018 7 2025:KER:26641 Children's Home on 01/09/2015, PW5 noticed some signs of disturbance in the former and hence she took her to the doctor during which examination the abuse was revealed. There are no reasons to disbelieve PW4 or PW5 and hence no grounds for interference made out, argued the Public Prosecutor. 11. I make a brief reference to the evidence on record relied on by the prosecution in support of the case. The appellant/accused is admittedly the stepfather of PW4, the victim girl. PW4 deposed that she was staying as an inmate in the Government Children's Home, Mayithara, Cherthala. At the time of occurrence, she was in the Government Children's Home at Nooranadu near Kayamkulam. According to PW4, during Onam holidays while she was studying in the 2nd Std, she was taken to her home by CW3, her mother and her stepfather, the accused herein, from the Children's Home at Nooranadu. One day, during the holidays while she was sleeping, the accused removed her panties and kissed her vagina and then penetrated his penis into her vagina. Her mother was in deep sleep at that time. As she was afraid of her Criminal Appeal No.1168 of 2018 8 2025:KER:26641 stepfather, she did not reveal the abuse by the accused to her mother. PW4 further deposed that she had disclosed the abuse to PW5, the care provider of the Children's Home in whom she had confidence. Accordingly, it was reported to the police. PW4 deposed that she felt stomach pain and vaginal pain due to the abuse by the accused and that she had fever also. 11.1. PW5, the care provider attached to the Government Children's Home, Nooranadu, deposed that PW4 was an inmate in the Home during 2015. On 22/08/2015 CW3, the mother of PW4, came to the Children's Home accompanied by her husband, the appellant/accused herein. They came to the Children's Home for taking PW4 to their house during Onam holidays. This was permitted by the Home. On 01/09/2015 PW4 was brought back to the Children's Home from her house after the Onam holidays. Pursuant to the same, PW4 complained of stomach and vaginal pain. Owing to the health problems, PW4 could not attend her classes. Therefore, PW5 took PW4 to the Primary Health Centre, Chunakkara. After conducting pathological test of her urine, the Criminal Appeal No.1168 of 2018 9 2025:KER:26641 doctor attached to the Health Centre opined that possibility of sexual abuse of PW4 could not be ruled out. Therefore, CW3, the mother of PW4, was asked to come to the Children's Home. Accordingly, CW3 accompanied by the appellant/accused, came to the Children's Home. When PW5 informed CW3 regarding the health problems faced by PW4 after Onam holidays, the appellant/accused expressed his unrest in the matter of remaining there. When PW5 disclosed the whole incident to CW3, she responded by saying that she was unaware of the same. According to PW5, PW4 has mild speech problem. However, as she was familiar with the speech of PW4, she could understand what the latter was expressing. Therefore, with her assistance, the police had recorded the statement of PW4. PW5 admitted that Ext.P4 FIS was given by her to the police in connection with the occurrence. 11.2. On going through the testimony of PW4 and PW5, I find absolutely no reasons to disbelieve their testimony. The appellant/accused is admittedly the stepfather of PW4. It is true that materials have come on record to show that CW3 had been Criminal Appeal No.1168 of 2018 10 2025:KER:26641 summoned to the Children's Home and informed of the abuse. However, she never took any steps to give a complaint to the police. It is a matter of great concern that PW4, the young child, had none to protect her, not even her mother. That appears to be the reason why she was not interested in going to her own house and preferred to live in the Children's Home as deposed by PW5. 12. As pointed out by the learned counsel for the appellant/accused, it is seen that the accused was not arrested after the incident for a period of about two years. The records reveal that he was arrested in the year 2017 whereas the incident took place on 22/08/2015. It is true that the investigating officer has no case that the appellant/accused had absconded. No reasons have been furnished for the delay in effecting the arrest of the appellant/accused. However, defects in the investigation cannot be a reason to disbelieve PW4 who cannot be faulted for the lacuna in the investigation conducted by the police. 13. It is true that the doctor of the Primary Health Centre to which PW4 was initially taken for examination has not Criminal Appeal No.1168 of 2018 11 2025:KER:26641 been examined. But that also seems to be immaterial in the light of the testimony of PW4 and PW5 whom I find no reasons to disbelieve. Further, there is delay in reporting the matter. But the delay has not proved fatal as no materials have been brought in to show false implication. It needs to be noted that PW4 was taken to her house by her mother and her stepfather on 22/08/2015 and was brought back to the Children's Home on 01/09/2015. It was thereafter PW5 came to know the difficulties faced by PW4, pursuant to which the child had been taken to the doctor and thereafter the FIR was registered. Therefore, there is no inordinate delay in reporting the matter to the police. No materials have also come on record to show that there has been a false implication in this case. 14. Another aspect pointed out by the learned counsel for the appellant/accused is that no site plan has been prepared in this case. However, it has come out in evidence that Ext.P2 scene mahazar was prepared on 05/09/2015. Thereafter, when PW10, Village Officer, Kattanam village went to the place of occurrence to prepare the site plan, the temporary shed in which the occurrence had Criminal Appeal No.1168 of 2018 12 2025:KER:26641 taken place was found demolished. Therefore, PW10 issued Ext.P6 certificate stating the aforesaid facts. The non preparation of the site plan has not affected the prosecution case in any manner. The police ought to have taken steps expeditiously to get the plan prepared immediately after the preparation of the scene plan. No such steps are seen taken, which is seen to have resulted in the temporary shed in which the incident took place being demolished. This also cannot be the fault of PW4. 15. Yet another argument that was advanced by the learned counsel for the appellant/accused is that the age of PW4, the victim girl, has not been established. It is pertinent to note that the age of the child was never in dispute before the trial court. According to the prosecution case, PW4 was just 6 years at the time of the incident. PW4 when examined before the court was 9 years. On going through her testimony it is seen that voir dire was conducted by the trial judge before her examination started. That being the position at this late stage it cannot be conducted that the age of the child has not been established. From the materials on record I find no Criminal Appeal No.1168 of 2018 13 2025:KER:26641 infirmity in the findings of the trial court calling for an interference by this Court. Now coming to the sentence that has been imposed on the appellant/accused. Admittedly, the appellant/accused is the stepfather of PW4, the victim girl and hence the sentence that has been imposed is commensurate with the crime that has been committed by him and therefore I find no reasons to make any modifications to the same. In the result, the appeal sans merit is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- C.S.SUDHA JUDGE ak