1. This appeal has been filed by the sole accused in S.C No.326/2022 on the files of Fast Track Special Court, Kottarakkara, for the trial of cases under the Protection of Children from Sexual Offences Act (for short 'the POCSO Act'), where the accused was found guilty for the offences punishable under Sections 376(2)(n), 376(3) of IPC and Sections 3(a) r/w 4, 5(l) r/w 6 and 5(n) r/w 6 of POCSO Act, where the prosecution alleged commission of the above offences along with offence under Section 366 of IPC, by the appellant/accused.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the respondent. Perused the verdict impugned and the evidence available.

3. The prosecution case is that, the accused, who is the cousin of the defacto complainant, minor girl aged 15 years, one day in the month of September 2017, when the defacto complainant was studying in her 7th standard and while she returning from her school, abducted her and took her on a motor cycle bearing Registration No. KL 24 M 4449 to a secluded house, Ward No. 10/266 of Elamadu Grama Panchayath. Thereafter, he committed penetrative sexual assault on her on the northern side of that house in a shed and on another day in the kitchen portion of the said house. Subsequently, he committed penetrative sexual assault on her on multiple times, in the house, viz, Santhosh Bhavan, House No. 10/573 of Elamadu Village, where both of them used to sleep.

4. The Special Judge recorded evidence after framing charge. During trial, PW1 to PW25 were examined and Exts.P1 to P21 were marked on the side of the prosecution. No defence evidence was adduced.

5. On appreciation of evidence, the learned Special Judge found that the accused committed offences punishable under Sections 376(2)(n), 376(3) of IPC and Sections 3(a) r/w 4, 5(l) r/w 6 and 5(n) r/w 6 of POCSO Act. Accordingly, he was convicted for the said offences and sentenced as under:

                  “1 Accused is sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/- (Rupees Five thousand only) for offence punishable U/S.376(2)(n) of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of 2 (two years).

                  2 Accused is sentenced to undergo rigorous imprisonment for 20 (twenty) years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for offence punishable U/S.376(3) of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for a further period of 3 (three) years.

                  3 Accused is further sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs.5,000/- (Rupees Five thousand only) for offence punishable U/S.5(n) r/w 6 of PoCSO Act. In default of payment of fine, he shall undergo rigorous imprisonment for a further period of 2 (two) years.

                  4 Substantive sentences shall run concurrently.

                  5 Set off is allowed from 17/08/2021 to 06/11/2021 under S.428 of Cr.P.C. The period of detention already undergone by the accused as under trial prisoner against the substantive term of imprisonment.

                  6 In view of section 42 of the PoCSO Act, there is no separate sentence for offence punishable U/S.5(1) r/w 6 of PoCSO Act.

                  7. In view of S.71 of IPC, no separate punishment U/S.3(a) r/w 4 of PoCSO Act is awarded to the accused.

                  8. Accused is found not guilty of offence punishable U/S.366 of IPC and he is acquitted under S.235(1) Cr.P.C for that offence.

                  9. If the fine amount is paid or realized (total amount Rs.20,000/-) shall be released to the victim, PW1 as compensation under Section 357(1)(b) Cr.P.C.”

6. The learned counsel for the appellant/accused argued that there are contradictions in the evidence of PW1, when the same is read along with the evidence of PW7. According to him, during examination of PW1, she disclosed that she was sexually molested by the accused/appellant herein, while she was studying in 9th standard. But when she had given statement before PW7 regarding the period of occurrence, she stated that it was done while she was studying in 7th standard. He submitted further that, in this case, repeated aggravated sexual assault is alleged, and the same would show that the victim had given consent. Therefore, none of the offences alleged against the accused would be attracted. He also argued that all the relatives of the accused including the brother of the victim turned hostile to the prosecution. Thus, the prosecution failed to prove the offences found to be committed by the Special Judge. Therefore, the verdict would require interference. As a last resort, the learned counsel for the appellant/accused submitted that, the mother of the appellant/accused is a cancer patient, therefore, leniency in sentence to be considered.

7. Whereas, the learned Public Prosecutor argued in support of the prosecution case and submitted that no contradiction to be found in between the evidence of PW1 and PW7 since PW1 given evidence that while she was studying in between 7th standard and 9th standard, she was subjected to molestation by the accused and the last occurrence was when she had studied in 9th standard and the same was reiterated before the Doctor and the Doctor also testified the same. It is submitted further that otherwise the prosecution case is well proved by the evidence of PW1 and PW1 is a sterling witness. In such a case, the verdict would not require interference. It is also submitted that, since the sentence imposed is the statutory minimum,  reduction of sentence is also impermissible.

8. Now the points arise for consideration are:

                  (1) Whether the Special Court is in right in holding that the accused/appellant committed offence punishable under Section 376(2)(n) of IPC?

                  (2)  Whether the Special Court is justified in holding that the accused/appellant committed offence punishable under Section  376(3) of  IPC?

                  (3) Whether the Special Court went wrong in holding that the accused/appellant committed offence punishable under Section 3(a) r/w 4 of POCSO  Act?

                  (4) Whether the Special Court erred in holding that the accused/appellant committed offence punishable under Section 5(l)) r/w 6 of POCSO Act?

                  (5) Whether the Special Court went wrong in holding that the accused/appellant committed offence punishable under Section 5(n)) r/w 6 of POCSO Act?

                   (6) Whether the trial court verdict requires interference?

                  (7) Order to be passed.

Point Nos.1 to 7

9. The prime witness for the prosecution is PW1, the victim. He deposed that she was born on 31.12.2005 and she had been residing at Children's Home, Mayyanadu for the last six months from the date of her examination (date of her examination was on 31.01.2023). She identified the statement given by her before the Police as Ext.P1, in the presence of Social Worker, Greeshma. She deposed further that, she had given complaint regarding sexual assault at the instance of the accused, by name Mahesh, while she was studying from 7th standard to 9th standard. According to her, her mother passed away five years before. Thereafter, her father used to assault and abuse her after consuming alcohol. She had given complaint in this regard also. That apart, the brother of the accused also assaulted her. While so, the accused taken her to a house nearby the house of the accused, where there was no residents and she was sexually molested therein and other places. According to her, on a day, when she came back after the school working time, the accused had taken her on a bike, after awaiting for herself and brought her on the premise of dropping her at her house. Though she initially hesitated, he compelled her to get into the bike and thereafter, she was brought to the said house. When she got down, he caught hold on her hand and taken to the room inside. He had put his lungi on the floor and laid her after beating her. Then he had removed her churidar top, panties and his jetty and he placed his penis on her vagina and pushed the same inside and to avoid noise from her, he covered her mouth. Further the accused threatened her with dare consequences in the event of disclosure of the same. However, she disclosed the same to her brother. She testified the fact that she was so sexually molested and subjected to aggravated sexual assault by the accused many times and the last occurrence was while she was studying in the 9th standard. According to her, the accused done so at the secluded house and her aunt's residence, while she was sleeping at the house of her aunt by name Sarala. In fact, no effective cross-examination was conducted and the evidence brought during cross-examination of PW1 was confined to five or six sentences which are quiet insufficient to shake the version of PW1 in any manner. The crux of the cross-examination is that PW1 wanted to marry the accused and the accused hesitated the same, and as an outcome of this hesitation, this case was foisted against the appellant/accused.

10. PW2 is none other than the brother of PW1. But he did not support the prosecution case. He denied of having given any statement to the police. He deposed that no one had sexually assaulted his sister. His father had also not uttered any obscene language towards her. He denied that he insisted his sister to settle the case. Ext.P2, Ext.P3 and Ext.P4 the relevant portions of his statement U/S.161 of Cr.P.C marked on the side of prosecution.

11. As per the prosecution case, PW3 is the person who informed the sexual harassment of PW1 to the Child Line Authorities as told by the brother of PW1. She also didn't support the prosecution case. PW4 is the friend of PW1. She also didn't the support the prosecution case. Ext.P6 portion of her 161 statement marked on the side of prosecution. PW5 is the Sarala aunty, ie., her father's sister and the mother's elder sister of accused. She also  didn't  support  the  prosecution  case.

12. Similarly, PW6 also a relative and cousin of the accused. He also didn't support the prosecution case and feigned ignorance about this case. Apart from that, PW8, who was examined to prove use of KL 24M 4449 motor cycle owned by him also turned hostile to the prosecution and according to him, he did not gave statement regarding the use of motor bike by the accused, who is the son of the elder sister of his mother.

13. In this case, the accused is none other than the sister's son of PW1, the victim. PW2, PW5, PW5 and PW8 examined by the prosecution are close relatives of the victim as well as the accused. PW2, is the brother of PW1. PW5 is the elder sister of the mother of the accused, PW6 is the cousin of the accused and PW8 is the elder sister's son of the mother of the accused. Thus, the relatives, though given statement before the Police supporting the occurrence mainly in the form of hearsay, they did not support the prosecution case. Though PW3 was examined as a third-party witness, she herself deposed during her chief examination that the accused used to visit her house and there had been good co-operation between them. Accordingly, she also turned hostile to the prosecution. In fact, PW1 given evidence that PW2, her brother used to beat her after the death of his mother. Further, she also deposed that her father was a drunkard and he regularly assaulted her. Thus, PW1 did not get any support from her father or brother. This aspect would be fortified by the fact that PW1 had been residing in Children Home, Mayyanadu, when she was examined before the Court. Thus, PW2, though he is the direct brother of PW1, had no concern about her sister and the prosecution case is that PW2 corroborated PW1 to settle the case. Thus hostility of PW2 is nothing to do with the merit of this case. The same is the position as that of the other relatives.

14. Thus as regards the occurrence, the evidence of PW1 is supported by other evidence. PW7, Dr.Arathi, who had examined the victim at 11.49 a.m on 28.07.2021, she deposed regarding the medical examination done by her. According to her, she had examined PW1 aged 15 years on the said date and time and recorded the sexual molestation spoken by the victim including sexual assault at the instance of her father and the accused. According to her, on her examination, she found that “hymen old healed tear at 5'0 clock position. No fresh injuries seen. Findings of examination are consistent with as stated by the victim.” During cross examination PW7 answered to suggestion that hymen might torn without sexual intercourse.

15. As regards the recording of Ext.P1, PW9, the social worker cum case worker, Azeezi Women and Children Home as on 27.7.2021 stated that Ext.P1 was recorded in her presence.

16. In order to prove the potency of the accused,PW10, Dr.Krishna Kumar, Casualty Medical Officer, Taluk Hospital, Kadakkal got examined and he deposed about the examination of the accused at 1.20 p.m on 17.8.2021 and according to him, on examination, his opinion was that “there is nothing to suggest that said Mahesh is incapable of performing sexual acts”. Ext.P9 is the scene plan pertaining to the place of occurrence prepared by the Village Officer, Chadayamangalam as requested by the S.I of Police, Chadayamangalam and he supported Ext.P9.

17. PW12 examined to prove that the scene mahazar also turned hostile to the prosecution and it was brought out during examination that the accused is his sister’s son. Ext.P10 series, the ownership certificates issued by Anoop Kumar.V, the Secretary, Elamadu Grama Panchayath as on 21.07.2021, pertaining to this crime as well as Crime No.226/2010 and supported the same. In order to prove the ownership of KL 24 M 4449 motor cycle, PW14, Remesh R, AMVI attached to the RT Office, Chadayamangalam got examined and It was through him Ext.P11 tendered in evidence and he deposed that the RC owner of the vehicle during the relevant period was Biju T, who was examined as PW8. PW15, Chairman of Child Welfare Committee, Kollam as on 22.7.2021 deposed supporting of the prosecution. According to him, he had ordered to give necessary counseling to PW1 in connection with this occurrence and he had also given statement to the Police in this regard. PW15 was not cross examined. Ext.P12, Registration Certificate on KL24 M 4449 motor cycle owned by PW8 was tendered in evidence through PW16, Joint RTO, Chadayamangalam RT Office as on 23.11.2021.

18. Ext.P13 mahazar pertaining to recovery of motor cycle bearing registration No. KL 24 M 4449 was proved through PW17, Vishnu Raj, who admitted the same. It was PW18, the Women Civil Police Officer attached to Chadayamangalam Police Station, as on 27.7.2021, recorded Ext.P1 statement of PW1 and her additional statement. PW1 supported the same. Ext.P14 FIR registered in this case alleging commission of offences punishable under Section 376(2) (n) and 376(3) of IPC and as well as under Section 3(a) r/w 4 and 5(l)(n) r/w 6 of the PoCSO Act and it was tendered in evidence through PW19, SI of Police, Chadayamangalam in between 16.10.2020 to 16.9.2021. PW20 deposed that Ext.P1 given by PW1 was recorded by her as on 27.07.2021 in Azeezi Children and Women Home, Kottiyam, while she was working as CPO and as per the statement, the victim disclosed that the victim aged 15 years and she was subjected to sexual molestation by two sons of her father’s sister. PW21 and PW22 are the Investigating Officers, who supported the prosecution.

19. In order to prove the age of the victim below 18 years, PW25, the Head Master, L.P.S.H.M, Chenthuppil, was examined and according to him, the victim got admitted in this School vide admission register No.5128 and her date of birth was recorded in the admission register as 31.12.2005 and accordingly, the admission register tendered in evidence through PW25 and marked as Ext.P19. She also deposed that on 19.05.2015, TC was issued at the 4th standard. She also deposed that she had produced the original of the school admission register. In fact, no dispute raised regarding status of PW1 as a child.

20. In cases of sexual molestation, the evidence to prove the same would come mainly from the victim of crime. Apart from that, corroboration by way of medical evidence also is possible since sexual molestation would not be done in the presence of any other witnesses normally. Other witnesses may be able to speak of the pre and post events regarding the occurrence. That is why, the law is settled on the point that, the evidence of the victim to be scrutinized so scruplessly to find out whether the same is of sterling quality to be acted upon, as 'wholly reliable'. When the victim’s evidence appears to be of sterling quality and wholly reliable, the same alone can be the basis of conviction without support of any corroboration. In the instant case, as already pointed out, many of the relatives who had only knowledge regarding the aftermath of the sexual molestation, turned hostile to the prosecution, as the accused is their very close relative, though PW1 also closely related to them in equal moiety Therefore, the question arises for consideration is whether the evidence of PW1 is of sterling quality to treat the same as wholly reliable. The evidence of PW1 has been narrated herein above. It is true that PW1 did not state specifically the date of occurrence as pointed out by the learned counsel for the appellant, and her version is that the accused subjected to her to aggravate sexual assault, starting from 7th standard to 9th standard and the last occurrence was when she was studying in 9th standard.

21. The learned Special Judge found that PW1 was not in a position to recollect the exact date of occurrence since the sexual act was not a single incident, but repeated incidents. It was also found by the learned Special Judge that the last occurrence was when she was studying in 9th standard. The last occurrence to be reckoned firstly in the year 2017. The said finding to be justified.

22. The crucial aspect of this case is that, though PW1 given evidence regarding repeated aggravated sexual assault at the instance of the accused, the evidence of PW1 was not at all challenged by subjecting her to cross-examination to shake her version. The cross-examination is confined to a suggestion and the three questions. The evidence brought during cross-examination is that at the house of Sarala appachi, her son, daughter and mother had been residing. The grand mother was an aged lady. No other house in the place she was brought. She did not disclose the occurrence to anybody as she had difficulty in doing so and she had fear in the matter of disclosing. After extracting these aspects by putting questions, a suggestion made to the effect that there was infatuation for PW1 to marry Mahesh and when he negatived the same, he was implicated in this crime. Thus evidence of PW1 as regard to repeated aggravated sexual assault committed by the accused remains, in tact, without even a proper challenge for the same. Thus, evidence of PW1 is of sterling quality and wholly reliable and therefore, the same can be the sole basis of conviction as rightly found by the Special Judge.

23. In view of the above, the conviction recorded by the learned Special Judge is only to be justified. Coming to the sentence, the minimum sentence provided for the offence under Section 376(3) of IPC shall not be less than 20 years though the same is extendable upto imprisonment for life.

In view of the matter, no reduction of sentence also is possible. In the result, the appeal fails and it is dismissed. The conviction and sentence imposed by the Special Court stands confirmed. Since the appellant/accused is in custody, no further orders is required.

Registry is directed to forward a copy of this judgment to the Special Court, forthwith, for information and further steps.