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2020 Supreme(Ker) 1033
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. Suresh Kumar, J.
Sadasivan E.R. - Appellants
Vs.
State of Kerala - Respondent
Crl. A. No. 1280 of 2018
Decided On : 13-07-2020
For the Appellant : Rahul Sasi and Neethu Prem, Advs.
For the Respondents: Ambika Devi S., Spl. GP and Pushpalatha M.K., Sr. PP
The delay in registering the FIR and inconsistencies in the victim's statements did not undermine the credibility of the evidence, and the court found the accused guilty based on consistent and credible testimony.
Headnote:
Rape - Conviction Challenged - IPC 376, POCSO Act 5 & 6
Fact of the Case:
The accused was convicted and sentenced for rape and aggravated penetrative sexual assault on a 7-year-old girl. The prosecution presented evidence from witnesses, medical reports, and the victim's statements. The accused challenged the conviction and sentence, citing delay in lodging the First Information Report and inconsistencies in the victim's statements.
Finding of the Court:
The court found the accused guilty of the offenses punishable under IPC 376(2)(i) and POCSO Act 5 read with Section 6. The court dismissed the appeal, stating that the delay in registering the FIR was not fatal to the prosecution and that the victim's statements were consistent and credible.
Issues: The issues included the delay in lodging the First Information Report, inconsistencies in the victim's statements, and the credibility of the evidence presented by the prosecution.
Ratio Decidendi: The court held that the delay in registering the FIR was not fatal to the prosecution, given the age of the victim and her relationship with the accused. The court also found the victim's statements to be consistent and credible, dismissing the appeal based on these findings.
Final Decision: The appeal was dismissed, and the accused's conviction and sentence were upheld.
JUDGMENT :
P.B. Suresh Kumar, J.
1. The sole accused in S.C. No. 317 of 2015 on the files of the Additional Sessions Court-I, Kasaragod, has come up in this appeal challenging his conviction and sentence in the said case.
2. The prosecution case in essence is that on 22.02.2015, at about 10.00 a.m., the accused committed rape and aggravated penetrative sexual assault on the victim girl aged 7 years at his residence and thereby committed the offences punishable under Sections 376 of the Indian Penal Code (the IPC) and Section 5 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
3. On the accused pleading not guilty of the charges, the prosecution examined 12 witnesses as PW1 to PW12 and proved through them 19 documents as Exts. P1 to P19. The witnesses examined on the side of the prosecution have also identified MO1 to MO4 material objects. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the evidence and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused examined three witnesses as DW1 to DW3 on his side, when called upon to enter on his defence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl herself, PW2 is the grandmother of the victim girl, PW6 is the doctor who examined the victim girl, PW7 is the Headmaster of the school where the victim girl was pursuing her studies, PW10 is the police official who registered the First Information Report and PW12 is the Investigating Officer. Among the documents proved, Ext. P1 is the First Information Statement given by the victim girl, Ext. P2 is the statement given by the victim girl under Section 164 of the Code, Ext. P7 is the report of medical examination of the victim girl and Ext. P8 is the certificate of age of the victim girl.
5. On an appraisal of the materials on record, the court below found that the accused is guilty of the offences punishable under Section 376(2)(i) of the IPC and under Section 5 read with Section 6 of the POCSO Act. On the said finding, the court convicted the accused and sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,00,000/-, and in default of payment of fine, to undergo rigorous imprisonment for two years, for the offence punishable under Section 376(2)(i) of the IPC. In the light of the provisions contained in Section 42 of the POCSO Act, separate sentence was not imposed on the accused for the offence under Section 5 read with Section 6 of the POCSO Act. The appellant is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. At the outset, the learned counsel for the appellant contended that there is a huge delay in lodging the First Information Report and the same has not been satisfactorily explained. It was also contended by the learned counsel that it has come out that the victim girl was taken to the doctor even before the incident was informed to the police and therefore, the statement made by the victim girl to the doctor concerning the incident should have been the First Information Statement in the case. According to the learned counsel, the said statement has been withheld by the prosecution. It was also contended by the learned counsel that there was huge delay in the matter of registering the crime even after the incident was informed to the police from the hospital and the said delay has also not been satisfactorily explained. It was further contended by the learned counsel that as regards the core aspect of the crime, the only evidence available is the evidence of the victim girl and the same is not consistent with her previous statements. The learned counsel has also pointed out some of the factual aspects in the
