1. This appeal is at the instance of the accused in S.C.No.418/2020 on the files of the Special Court under the Protection of Children from Sexual Offences Act, 2012 (`POCSO Act’ for short hereafter), Pattambi, emerges out of the judgment dated 20.07.2022 in the said case.

2.Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the prosecution. Perused the trial court records.

3.The prosecution allegation is that at about 20.30 hours on 13.04.2019 the accused had criminally trespassed upon the courtyard of the house of the victim, who was examined as PW1, and kidnapped her towards the backside of her house. Thereafter she was subjected to aggravated form of sexual assault. Thereby the prosecution allegation is that the appellant/accused committed the offences punishable under Sections 363, 376AB, 376(2)(m) of the Indian Penal Code (`IPC’ for short) as well as under Section 4 r/w 3(b)(d), 6 r/w 5(i)(m) of the POCSO Act.

4. The Special Court tried the matter, on completion of the pre-trial formalities, and recorded evidence. PW1 to PW16 were examined and Ext.P1 to Ext.P19 were marked on the side of the prosecution. No defence evidence was adduced in this case.

5. On appreciation of evidence, after hearing both sides, the trial court found that the appellant/accused committed the offences punishable under Sections 447, 363, 376 A B, 376(2)(m) of IPC and Section 3(b) r/w 4, 3(d) r/w 4, 7 r/w 8, 5(i) r/w 6, 5(m) r/w 6 of the POCSO Act and accordingly he was sentenced as under:

                  “1). Accused is hereby sentenced to undergo Rigorous Imprisonment for a period of three months for the offence U/s. 447 IPC.

                  2).Accused is hereby sentenced to undergo Rigorous Imprisonment for a period of three years for the offence U/s. 363 IPC and he is sentenced to pay fine of Rs. 25,000/-. In default of payment of fine amount, he shall undergo further Imprisonment for a period of three months.

                  3).Accused is hereby sentenced to undergo Rigorous Imprisonment for a period of 20 years for the offence U/s. 376 AB IPC and he is also sentenced to pay fine of Rs. 1,00,000/-. In default of payment of fine amount, he shall undergo further imprisonment for period of one year.

                  4).Accused is hereby sentenced to undergo Rigorous Imprisonment for a period of 20 years for the offence U/s. 5(i) r/w 6 of the Protection of the Children from Sexual Offences Act, 2012. and he is also sentenced to pay fine of Rs. 1,00,000/-. In default of payment of fine amount, he shall undergo further imprisonment for period of one year.

                  5).Accused is hereby sentenced to undergo Rigorous Imprisonment for a period of 3 years for the offence punishable U/s. 7 r/w 8 of the Protection of the Children from Sexual Offences Act, 2012 and he is also sentenced to pay fine of Rs.50,000/-. In default of payment of fine amount, he shall undergo further imprisonment for a period of four months.

                  6).Sentences shall run concurrently.

                  7). No separate sentence is imposed for the offence U/s. 376(2)(m IPC, Section 3(b) r/w 4, 3(d) r/w 4, 5(m) r/w 6 of the Protection of the Children from Sexual Offences Act, 2012 due to the reasons discussed above.”

6. While impeaching the veracity of the judgment of the Special Court, the learned counsel for the appellant/accused raised multiple contentions. The main contention raised is that nobody witnessed the incident and the victim could not be able to see the face of the accused properly to identify the accused as there was no sufficient light during the time of occurrence. It is argued further that there are variations and material omissions in the deposition of PW6, as proved by PW13 and PW15, and therefore the credibility of PW6 is in doubt. PW6 even didn’t have any prior identification of the accused despite that no test identification parade was conducted to establish the proper identity of the accused.

7.It is argued that Ext.P19 sketch of the accused is inadmissible in evidence. Another contention raised is that no voir-dire test was conducted before examining the minor victim to determine her competence to depose about the occurrence. Therefore, the prosecution failed to prove the offences alleged to be committed by the appellant/accused beyond reasonable doubt. Hence, the appellant/accused is entitled to get the benefit of doubt. Thus the learned counsel for the appellant pressed for reversing the finding of the guilt found by the Special Court.

8.Apart from arguing the case in detail, the learned counsel for the appellant put up a note of argument reiterating the argument advanced with support of relevant decisions. The contention are as follows:- Regarding test identification parade, it has been contended that, in [1971 KHC 604], Rameshwar Singh v. J & K, a three bench of the Honourable Apex Court has upheld the importance of test identification parade especially in cases where the accused is not previously known to the victim. In the case of Kannan v State of Kerala, (1979 KHC 393), the Honourable Apex Court upheld that Test Identification Parade was important by holding in paragraph No. 1 itself that, it is well settled that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. The idea of holding Test identification parade under section 9 of the Evidence Act is to test the veracity of the witness on question of his capability to identify unknown person whom the witness may have only once seen, if not Test identification parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of the accused for the first time in court. In the case of Rabindra Kumar Pal @ Dara Singh v Republic of India (2011 KHC 4063), it was held by the apex court in paragraph 12 that identification in the court for the first time without a Test Identification Parade is a weak piece of evidence. In the case of Mukesh Singh v State (NCT of Delhi) 2023 KHC OnLine 6804, the Honourable Court was pleased to reiterate the principles laid down in Kannan v. State of Kerala (supra), which is cited above, in paragraph 54. Further, in paragraph 71 certain factors that are to be considered while evaluating a court identification was clearly elucidated as follows:-

                  "We deem it appropriate to refer to the factors which are to be considered for in - court identification and were relied by the American Supreme Court in John R. MANSON, Commissioner of Correction of Connecticut v. Nowell A. BRATHWAITE reported in 432 บ .5.98(1977), there while referring to its earlier decision in Wiliam S NEIL, Warden v. Archie Nathaniel BICGERS, reported in 409 U.S 188 (1972), it held that reliability is the linchpin in determining the admissibility of identification testimony and the factors to be considered are, the opportunity of the witness to view the criminal at the time of the crime; the witness degree of attention; the accuracy of the prior description of the criminal; the level of certainty demonstrated at the confrontation; and the time between crime and confrontation"

9.It is alleged further that there was no fair trial in the instant  case  and  in  this  connection  the  learned  counsel  for  the appellant/accused contended that this Court in Sharun v. State of Kerala (2024 KHC Online 7018) has said in Para No.12 that “fair trial enshrined under the Constitution of India cannot be taken away by any means. So the right of the accused to defend a case and to prove his innocence is a constitutional right and for which he should get all the prosecution records before trial to point out the law in the prosecution case and also to establish his innocence in a befitting manner. This is the reason why as per S.207 of Cr.P.C, Magistrates are empowered to furnish copies of Police report and other documents while dealing with the same and Sessions Courts are empowered to do the said exercise under S.208 of CrPC". Also in Paragraph No. 13 it has been observed that: "when reading S.207 and S.208 of CrPC in juxtaposition with S. 19(4) of the Kerala Criminal Rules of Practice, brought into in view of the verdict of the Apex Court the right of the accused to get all documents which form part of the prosecution records to defend his case is well protected."

10. It is to be also noted that, the Exhibit P19 is not a primary evidence. It is only a secondary evidence. And the same was not admitted through the person who drew the sketch or through PW6. In Chandrabhanu G. v. State of Kerala (2023 KHC OnLine 537) this honourable Court has laid down in paragraph No. 9 that: "A conjoint reading of S.59, S.61 and S.62 of the Indian Evidence Act, 1872 (for short the Act) would show that the contents of the documents must be proved by primary evidence by producing original documents itself for the inspection of the court. S.64 of the Act says that the documents must be proved by primary evidence, except in cases provided in S.65 of the Act. S.65 provides when secondary evidence can be given (clauses (a) to (9)). S.63 of the Act categorises five kinds of secondary evidence. Photocopy of a document (copy made by mechanical process) is one among them. Secondary evidence relating to the contents of a document is inadmissible until the non - production of the original is accounted for to bring it within one or more other of the clauses provided in S.65 of the Act. The party who proposes to adduce secondary evidence is bound to explain the non - availability of the original. To admit a photocopy in evidence, it is necessary to lay the foundation of reception of secondary evidence (see J. Yashoda v. K. Shoba Rani, AIR 2007 SC 1721 and State of Kerala v. Sunil, 2022 (1) KLT 512). That apart, the secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original." It is also clear in Paragraph No. 12 of the judgment that: "Mere production of a document would not prove its contents. The contents of the document must be proved by admissible evidence, i.e., by the evidence of those who can vouchsafe for the truth of the facts in issue. It shall not be legal for the court to rely solely upon the recitals in the document as substantive evidence to decide whether the disputed facts exist or proved or not. The person who issued Ext. P66 could have been examined to prove the contents. The prosecution version that the original Essentiality Certificates were destroyed at the office of the AG has been specifically denied by the appellant. Hence, the prosecution could have examined the person who has direct knowledge of the destruction of the original Essentiality Certificates, which is a fact in issue. The facts' stated in the 'contents of documents' do not constitute substantive evidence for proving the existence of such facts. Hence, the disputed facts cannot be resolved by merely interpreting the recitals in the document in the absence of oral evidence on such facts."

11. As held by the Apex Court in Ramesh P v. State rep. by Inspector of Police Case 2019 KHC 6676 and in the other decision, in order to determine the competency of a child witness, the Judge has to form her or his opinion and for which voir dire (to speak the truth) examination can be opted to find out the competency of the child witness with a view to find out the capability of a child witness to understand the occurrence witnessed and to speak the truth before the court and in criminal proceedings, a person of any age is competent to give evidence if the person is liable to understand the questions put to the person and can give such answers to the question by understanding the question".

12. Whereas it is submitted by the learned Public Prosecutor that the contentions raised by the learned counsel for the appellant/accused to upset the verdict of the Special Court are untenable and feeble in nature. It is pointed out that this is a case of sexual molestation in the form of aggravated sexual assault and in such a case, the victim, who suffered the sexual overt acts at the instance of the accused, very well identified the accused and therefore the question of identification doesn’t arise. In such a case, the contention raised by the learned counsel for the appellant/accused  that  a  test  identification  parade  should  have  been conducted is found to be bereft of merit. It is also pointed out that the prosecution examined PW6 to prove its case that he had witnessed the accused taking the victim through the backside of the house towards the property, and he deposed in support of the prosecution. Even without the evidence of PW6, the evidence of PW1, the victim, alone is sufficient to confirm the conviction. It is also pointed out that no material omissions or contradictions were brought out during the cross-examination of PW6 so as to discredit his testimony. The learned Public Prosecutor also argued that none of the contentions raised by the appellant/accused are sufficient to unsustain the verdict impugned in the eye of law and therefore the appeal is liable to be dismissed.

13. I have gone through the verdict impugned and the evidence available in detail. Perused the records of the trial court. The following points arise for consideration:

                  i) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 447 of IPC?

                  (ii)Whether the Special Court is right in holding that the accused committed the offence punishable under Section 363 of IPC?

                  (iii) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 376 AB of IPC?

                  (iv) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 376(2)(m) of IPC?

(v)Whether the Special Court is right in holding that the accused committed the offence punishable under Section 3(b) r/w 4 of the POCSO Act?

                  (vi) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 3(d) r/w 4 of the POCSO Act?

                  (vii) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 7 r/w 8 of the POCSO Act?

                  (viii) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 5(i) r/w 6 of the POCSO Act?

                  (ix) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 5(m) r/w 6 of the POCSO Act?

                  (x) Whether it is necessary to interfere with the verdict under challenge?

                  (xi) The order to be passed? Point Nos.(i) to (xi)

14. In this case the crucial witness to the occurrence is none other than the victim herself. On perusal of the deposition of the victim, who got examined as PW1, it could be noticed that prior to her examination the learned Special Judge put 8 questions to ascertain her age, date of birth, the class in which she was studying, the names of her parents and siblings, and the class in which her brother was studying. Further, she was also questioned as to whether she was capable of giving details regarding the incident, and on receiving rational answers to the aforesaid queries, PW1 was examined as a witness. On scrutiny of the questions and the rational answers given by PW1 it is well discernible that PW1 is a competent witness to speak about the overt acts committed against her. In such view of the matter, the contention raised by the learned counsel for the appellant/accused that no voir dire examination was conducted is liable to fail at the threshold, and it is so held.

15. Coming  to  the evidence of PW1, she deposed that the occurrence was on the previous day of Vishu during 2019 and she had lodged the complaint regarding the occurrence before the Vanitha police. According to her, on the date of occurrence, at about 8.30 hours on 13.04.2019, she was watching T.V at the living room of her house, she heard a sound similar to that of the whistle usually made by her father. Accordingly she opened the front door. At that time, her parents were not available in the house as they had gone to attend a birthday function of a relative. On opening the door, she found the accused, who informed her that her parents were waiting, and thereafter she was taken towards the backside of the property owned by them. Thereafter he sucked on her entire body. Then he removed her jetty and sucked on her vagina. Further he inserted his finger into the vagina and during the occurrence there was darkness. She deposed categorically that she identified the face of the accused when he reached their house and opened the door.

16. One of the main contentions raised by the learned counsel for appellant/accused is that there was no proper identification of the accused, who had no familiarity to the victim. In fact, even in the absence of the evidence given by PW6, who happened to see the accused while the victim was taken outside by the accused. PW1, the victim, who saw the accused in front of her house on opening the door, clearly identified him, after the accused taken her on the backside of the house and was subjected to an aggravated form of sexual assault, as deposed by her. In fact, in such a case, the identification of the accused as the person who committed the sexual overt acts against the victim is well proved by the solitary evidence of PW1/victim.

17. Coming to the evidence of PW6, his evidence is that he had given statement to the police and he was familiar with the victim and her family. According to him, the occurrence was at 8.30 p.m on 13.04.2019. He testified that, he saw the accused running away from the property behind the house of the victim while he, along with Aboobacker, was proceeding towards the place  of marriage of his friend’s sister. He further stated that he also saw the child running away from the place of occurrence. Thereafter the accused was identified by PW6 as the person, who ran away during the time of occurrence. On reading the cross examination also, PW6 categorically had given evidence that the accused is a person known to him since childhood and he is a resident of his native place. Even though it is argued by the learned counsel for the appellant/accused that no test identification was conducted and various decisions on the points were highlighted, the ratio laid down in the said decisions has no application in the present case, where the accused was duly identified by the victim of the sexual assault as well as by a witness who was well familiar with the accused from his childhood. Therefore, the contention regarding improper identification of the accused as the assailant is found to be devoid of any merits and is repelled as baseless argument.

18. PW1 deposed further that, after the occurrence the accused closed her mouth and threatened her that if she would disclose the same to her family members, her father would be beaten. She deposed further that she was frightened and astonished by the overt acts of the accused and she could not even cry because of the same. Accordingly she cried while returning to her house. Then she noticed that her parents were searching for her. She also deposed that Achuvettan, the elder son of her father’s elder sister, was searching for her. She also deposed about the contents of Ext.P1 statement given by her. Though she was cross examined with a view to shake her version regarding the occurrence, nothing was extracted to disbelieve her testimony, and she had reiterated in cross examination also the evidence given by her in chief examination.

19. PW2 examined in this case is Appu Nair, who supported Ext.P3 scene mahazar prepared by the police after the occurrence and no serious cross examination was effected to disbelieve his version supported by Ext.P3. Supporting the version of PW1, PW3 the father of PW1 also deposed the occurrence known to him to the extent he was aware of the same. According to him, later the victim was produced before the JFCM, Palakkad, and her statement was recorded. The police also prepared a scene mahazar, and the victim pointed out the place of occurrence to them. Similarly, PW4, the mother, also supported the prosecution case.

20. PW5 examined in this case is the grandfather of the victim and he also deposed supporting the prosecution to the extent he was aware of the occurrence.

21. Here in order to prove the age of the victim Ext.P5 birth certificate issued from the Perinthalmanna Municipality, showing the date of birth of the victim as 25.08.2013 has been tendered in evidence. Though objection was raised in marking the document on the ground that the document was not properly attested, the trial court rightly overruled the objection on finding that there is nothing to doubt the genuineness of Ext.P5 to find the date of birth of the victim as 25.08.2013. Ext.P6 is the scene plan prepared by PW8, the then Village Officer of Kongad No.I Village Office and he supported the same.

22. PW10 examined in this case is Dr.Cheriyil Swapna, who worked as Assistant Professor, Government Medical College, Palakkad as on 14.04.2019. According to her, at about 1.45 a.m on 14.04.2019, the victim was brought before her and at 2.45 a.m she had examined the victim and recorded the history as stated by the victim and her mother. According to her, a small abrasion around 0.5 cm at the posterior commissure and another abrasion around 0.3 cm at the fourchette were noted and accordingly she had issued Ext.P8 certificate. It was deposed by PW10 during cross examination that the version of the victim as to the cause of injuries was found to be consistent with the allegation of sexual assault, though her hymen was intact.

23. Ext.P9 is the potency certificate in relation to the appellant/accused, issued by PW11, Dr.Jose Aldrin Patrick, the then C.M.O of the District Hospital, Palakkad, after examination, wherein it is stated that “my opinion is that nothing to suggest that the above person is incapable of performing sexual acts”.

24. The prosecution collected the dress worn by the victim at the time of occurrence. Ext.P10 mahazar was supported by PW12, who is a witness to the said mahazar. PW13 and PW14 are the Investigating Officers, who conducted the investigation. PW16 recorded the FIS and she supported the same. PW15 was the S.H.O at the time of the occurrence.

25. On perusal of the evidence discussed above, it is clear that the prosecution has established beyond reasonable doubts, the ingredients of the offence of aggravated sexual assault, as well as the other offences alleged. As far as Ext. P19 is concerned, the same has no relevance in the instant case, as it is a sketch prepared for the purpose of identifying and locating the accused. The accused, in fact, was identified by PW1 and PW6, as already discussed in detail. Therefore, the challenge against Ext. P19 is of no significance, found to be untenable, and is accordingly rejected.

26.  Thus on re-appreciation of evidence, this Court is of the view that the Special Court rightly appreciated the evidence and entered into conviction finding that the accused committed the offences punishable under Sections 447, 363, 376AB, 376(2)(m) of IPC as well as under Section 4 r/w 3(b)(d), 7 r/w 8, 6 r/w 5(i)(m) of the POCSO Act and the said conviction is only to be justified.

27. Coming to the sentence, on par with the gravity of the offences alleged there is no reason to interfere with the same and in such view of the matter the sentence is also to be confirmed.

28. In the result, this Appeal fails and is accordingly dismissed. The conviction and sentence imposed by the Special Court are confirmed. As a sequel thereof, the order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.

29. The accused is directed to surrender before the Special Court to undergo the sentence forthwith, failing which the Special Court is directed to execute the sentence forthwith.

                  Registry is directed to forward a copy of this judgment to the Special Court for information and compliance.