Criminal Appeal No. 437 of 2020 · The High Court · 2025

is, Ext.P7 FIR was registered by PW8, Senior CPO, Changanacherry police station, based on Ext.P1 FIS of PW1, the mother of the victim child. The investigation was conducted by PW9, Circle Inspector of Police, Changanacherry police station, who on completion of the investigation submitted the final report before the trial court.

4. On appearance of the accused, the trial court after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., framed a charge under Sections 376(2)(f), 376(2)(i), 376(2)(j), 376 (2)(k), 376 (2)(n) and 377 IPC ; Sections 3(a) and 3(d) read with Section 4 and Sections 5(l), (m),(n) read with Section 6 of the Act, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW9 were Criminal Appeal No.437 of 2020 4 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 not guilty of the offence punishable under Sections 377 IPC and hence he was acquitted of the said offence under Section 235(1) Cr.P.C. However, he has been found guilty of the offences punishable under Sections 376 (2)(f), 376(2)(i), 376(2)(j), 376(2)(k), 376(2)(n) IPC and Sections 5(l),(m),(n) read with Section 6 of the Act. Hence, he has been sentenced to rigorous Criminal Appeal No.437 of 2020 5 imprisonment for ten years and to a fine of ₹30,000/- and in default to simple imprisonment for six months for the offence punishable under Section 6 of the Act. In view of Section 42 of the Act, no separate sentence has been awarded for the remaining offences. Set off under Section 428 Cr.P.C. from 09/02/2015 to 10/04/2015 has been given. 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 appellant/accused by the trial court are sustainable or not.

10. Heard both sides. It was submitted by the learned counsel for the appellant/accused that the contents of Ext.P1 FIS is a figment of imagination of the police. The materials on record show that the relationship between PW1 and her husband, the accused herein, was quite strained. There were disputes between them as PW2, the mother of PW1 had given spurious gold ornaments as gift to their infant child. The accused has been falsely implicated at the instigation of PW2. The medical evidence does not support the prosecution case. Criminal Appeal No.437 of 2020 6 According to PW1, the child was initially taken to a hospital at Mavelikkara. However, no records from the said hospital has been produced. This was the best evidence but the same has been suppressed and hence an adverse inference has to be drawn. Further, the authorities of the hospital at Mavelikkara was bound to inform the police when the child was taken to the said hospital for treatment. However, no such information was given. None of the neighbours of PW1 in whose house she is alleged to have taken refuge was examined in support of her case. The only witness examined is PW2, who is none other than the mother of PW1, who was residing far away from the place of occurrence. It was also pointed out that the trial court wrongly relied on the contents of Ext.P1 FIS which were never spoken to/deposed by PW1 in the box. Only those matters deposed by PW1 in the court would be substantive evidence and not the contents of FIS which was never deposed by PW1 in the box. The signature in Ext.P1 FIS is in Malayalam. However, PW1 in her testimony has signed in English. This has not been clarified or proved. Hence, for these reasons, the accused/appellant is entitled to Criminal Appeal No.437 of 2020 7 the benefit of doubt, goes the argument.

10.1. Per contra, it was submitted by the learned Public Prosecutor that the materials on record are satisfactory and sufficient to prove the offences charged against him. There is no infirmity in the findings of the trial court calling for an interference by this Court.

11. In Ext.P1 FIS PW1 states thus: on 24/01/2015 in the morning while she was preparing coffee in her kitchen, she heard her child crying and when she rushed to the room she found her husband, the accused, standing naked near the bed. The child was lying on her side. Her husband asked her to give milk to the child. She went back to the kitchen to fetch milk and when she returned she found her child sleeping. She took her child in her arms. She noticed some fluid around the vagina and the thighs of the child. When she attempted to wipe it off, the accused suddenly took a towel of the baby and wiped it off. PW1 also deposed that the accused masturbates and arouses himself before engaging in sexual intercourse with her. She realised that the accused after masturbating, had placed his penis on the vagina of the child when he Criminal Appeal No.437 of 2020 8 was on the verge of ejaculation.

11.1. The next incident happened during the night of 25/01/2025. On the said day when she entered the room, she found the accused holding his penis in his right palm and placing it on the mouth of the minor child. She also found the accused putting his finger in the vagina of the child. She was shocked on seeing this and hence she pushed the accused down, by which time the semen had already fallen on the mouth of the child. PW1 cried out loudly, at which time, the accused manhandled her. When she ran out of the room, the accused closed the door and locked it from inside. Hearing her cries, when her neighbours came, she was reluctant to reveal the incident to her neighbours as the culprit was her husband and therefore she told them that there was a quarrel with respect to the ornaments gifted by her mother. Thereafter, her sister-in-law, that is, the wife of the brother of the accused took her to their house. In Ext.P1 FIS she has also stated that the accused is a pervert; that he masturbates before having sexual intercourse with her; that he had told her that if a boy child is born to them he would kill both of them; Criminal Appeal No.437 of 2020 9 that he had told her to wear revealing clothes when his friends come and take money from them.

11.2. PW1 in the box more or less stands by her version in Ext.P1 FIS. She reiterated that the accused had committed sexual perversions on her child, committed digital rape, cunnilingus and had also placed his erected penis in the mouth of the victim girl. The other facts stated by her in the FIS like asking the accused her to wear revealing clothes etc., was not deposed by her in the box. However, PW1 stands by the prosecution case of digital rape, cunnilingus and placing penis in the mouth of the child. It is true that there was some delay in PW1 reporting the matter to the police. However, as rightly pointed out by the trial court, in offences of this nature, delay is quite natural because it is after much deliberation and consultation with other family members, a decision to set the law in motion would be taken. PW1 in Ext.P1 FIS says that this consultation process caused delay in giving the complaint to the police. There are no reasons to disbelieve PW1 especially when the accused is none other than the father of the victim and the husband of Criminal Appeal No.437 of 2020 10 PW1.

12. Now coming to the medical evidence. PW3, Consultant Gynecologist, Government Hospital, Changanacherry deposed that on 02/02/2015 she examined the infant child and had issued Ext.P2 certificate. The mother had narrated the history as rape by the father, oral sex and digital rape. On examining the child, she found the hymen to be absent. The vagina admitted one finger. There was tenderness over vagina. No other injury was noted. In her opinion there was no evidence of recent sexual assault. When PW3 was asked regarding the tenderness seen on the vagina, she deposed that forceful medical examination might have caused it. To a suggestion that the absence of hymen and tenderness on vagina was due to sexual assault, answered in the affirmative. PW3 in the cross examination deposed that if there is a recent injury, the hymen would be found torn. If there is habitual sexual assault, then the hymen would be absent. She did not notice any torn hymen. She further deposed that some babies are born without hymen. She did not collect vaginal swab and smear as there was no history of recent Criminal Appeal No.437 of 2020 11 sexual assault. Referring to the aforesaid medical evidence, it was submitted that the same does not support the prosecution case.

13. No materials have come on record to show whether the child was born with or without a hymen. However, the vagina admitted a finger. The victim was only a child aged 10 months or so. Had there been no sexual assault/abuse, this situation was quite unlikely. Therefore, I find that the medical evidence does support the case of sexual assault/abuse.

14. It is true that no records from the hospital at Mavelikkara where the child was initially taken has been produced before this Court. This is the fault of the investigating officer and a flaw in the investigation. That flaw in the investigation is no ground to disbelieve the entire prosecution case, in the light of the testimony of PW1, whom I find no reasons to disbelieve.

15. It is true that the signature of PW1 in Ext.P1 is in Malayalam and the signature of PW1 in her testimony is in English. PW1 when examined was shown Ext.P1 FIS. PW1 identified her signature, pursuant to which, the FIS was marked as Ext.P1. This Criminal Appeal No.437 of 2020 12 aspect is not seen challenged in the cross examination. That being the position, Ext.P1 FIS also stands proved.

16. As noticed earlier, it is true that all the facts stated in Ext.P1 has not been deposed by PW1 in the box. However, the main points of sexual abuse of the child by the appellant/accused is clearly spoken to by the witness in the box, which has not been discredited in any way. Hence, I find no reasons to disbelieve PW1. The incident took place in the year 2015. The imprisonment that has been awarded is the minimum that was liable to be imposed at that point of time. I find no infirmity in the findings of the trial court calling for an interference by this Court. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. SD/- C.S.SUDHA JUDGE