1. This appeal is at the instance of the sole accused in S.C.No.790/2018 on the files of the Special Court under the Protection of Children from Sexual Offences Act, 2012 (`POCSO Act’ for short hereafter), Thrissur, emerges out of the judgment dated 14.06.2022 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 case is that at about 8 a.m on 14.03.2018 and at 5 p.m on 19.03.2018, the accused committed rape and penetrative sexual assault on PW1, a female child, aged 8 years and 7 months, at the dining hall of his house bearing No.204/13 in Pazhayannur Grama Panchayat. Further case of the prosecution is that the accused, after committing the sexual molestation, threatened the victim by stating that if she would reveal this matter to her mother, the mother would be killed and the victim also would be killed by throwing her in a well. Thereby the prosecution allegation is that the appellant/accused committed the offences punishable under Sections 363, 376(2)(i) and (n) and 506(i) of the Indian Penal Code (`IPC’ for short) as well as under Section 6 r/w 5(m) and (l) of the POCSO Act.

4. The Special Court tried the matter, on completion of the pre-trial formalities, and recorded evidence. PW1 to PW12 were examined, Exts.P1 to Ext.P15 and M.O1 to M.O3 were marked on the side of the prosecution. No defence evidence was adduced in this case.

5. After analysing the evidence and hearing both sides, the trial court found that the appellant/accused committed the offences punishable under Sections 363, 376(2)(i) and (n) and 506(i) of IPC as well as under Section 6 r/w 5(m) and (l) of the POCSO Act and accordingly he was sentenced as under:

                  “The accused is sentenced to undergo rigorous imprisonment for 20 (twenty) years and to pay fine of ₹1,00,000/- (Rupees One lakh only) u/s 6 r/w 5 (m) and (l) of The POCSO Act, in default of payment of fine to undergo a further period of rigorous imprisonment for 6 (six) months. By virtue of Sec.42 of The PoCSO Act, no separate sentence is being awarded u/s 376 (2) (i) and (n) of IPC. Further, the accused is sentenced to undergo rigorous imprisonment for 5 (five) years and to pay fine of ₹25,000/-(Rupees twenty five thousand only) u/s 363 of IPC. In default of payment of fine, the accused will undergo a further period of rigorous imprisonment for 3 (three) months. Further, the accused is sentenced to undergo rigorous imprisonment for 1 (one) year and to pay fine of ₹10,000/- (Rupees ten thousand only) u/s 506(i) of IPC. In default of payment of fine, the accused will undergo a further period of rigorous imprisonment for 1 (one) month. The substantive sentences will run concurrently. The fine amount, if realized, will be paid as compensation to PW1 u/s 357(1)(b) of Cr.P.C.”

6. The learned counsel appearing for the appellant/accused argued that the prosecution case, as could be discernible from the evidence given by PW1 supported by other evidence, is an improbability. According to the learned counsel, the place of occurrence is at the dining hall of the house of the accused and the evidence would suggest that the house in fact attached with a tea shop run by the accused. It is submitted that the time of occurrence is stated as 8 a.m and 5 p.m and thus there is likelihood of customers in the tea shop. Therefore, the sexual assault alleged to be committed by the appellant/accused at 8 a.m and 5 p.m is an impossibility. It is also submitted that during cross examination of PW12, the Investigating Officer, had given the evidence that those persons who are sitting on the courtyard would see outside. Therefore, the allegations are false. It is pointed out further that the learned Special Judge went wrong in finding commission of the above offence by the appellant/accused without addressing the gross improbability in this case. According to the learned counsel for the appellant/accused, it has come out in evidence further that there was no curtain separating the tea sop and the residential house as the same did not find a place in Ext.P9 scene mahazar and as deposed by PW12. Therefore, the verdict would require interference.

7. Zealously opposing the contentions raised by the learned counsel for the appellant/accused, the learned Public Prosecutor would submit that the evidence of PW1 as to the occurrence spoken by her is not at all shaken even though she was subjected to searching cross examination. According to the learned Public Prosecutor, in this case, the version of PW1 is supported by the version of PW4, the Doctor, who examined, after the occurrence which would suggest that hymen was seen torn and a small tear was seen in the right posterior wall of the hymen. It is also submitted that the place of occurrence is the dining hall of the house though the same attached with a tea shop. Therefore, the accused done the overt acts in secrecy inside the house so that nobody outside could see the same. Therefore, the improbability argued by the learned counsel for the appellant/accused would not sustain.

8. The learned Special Judge addressed the prosecution case mainly relying on the evidence of PW1, supported by the evidence of PW4, the Doctor, who had examined PW1, after the occurrence. The doctor opined that hymen seen torn and a small tear was seen in the right posterior wall of the hymen. Thus evaluation of the evidence of PW1 is inescapable. PW1, the victim deposed that while she was studying in the 3rd standard in ALPS, Chelakkara, she lodged complaint before the police regarding sexual assault at the instance of the accused. She identified the accused as the person who had sexually molested at the dock. She testified that at about 5 p.m on 19.03.2018, she went to shop along with PW2, her elder sister. Before she reached the shop and when she reached near the house of the accused, she found the accused on the side of the house, and he then caught hold of her hand. PW2 then after instructing her to follow her, moved towards the house of Shaly to play. During the relevant time PW2 was studying in 6th standard. Then the accused brought her inside his house and made to sit on his lap, then he lifted her underskirt and put his finger on her vagina and moved the same and done digital fingering and then the accused brought her so close to him. After she was released, there was bleeding and she cried and ran away to the house. She deposed further that some time before this occurrence, when she went to the shop of the accused to purchase `dosa’ through the backside of the house of the accused, the accused brought her near to the dining table and told her to remove her undergarment and pardha. Then the accused put her on the bottom of the dining table and pushed away her legs then the accused put his finger on her vagina and moved the same and done digital fingering and there was bleeding on that day also. Then the accused told her that, if she would disclose the occurrence to her mother, her mother would be killed and she also would be put into the well. Afraid of this threat, she did not disclose the same to the mother and on that day she suffered fever due to threat and she was taken before a doctor on the next day. After the second occurrence, when she returned back, PW2 enquired about the reason for her cry and she disclosed the same to her sister. At 6.30 hours her mother reached after sale of logs and found her sitting in an unhappy mood and she enquired the reason then she informed the occurrence to her mother at the bed room and her mother in turn informed the same to her uncle and a woman police came and recorded her statement. She did not sign the statement and the signature therein was put by her mother. She identified Ext.P1 as her statement. She further deposed that she had thereafter given statement to the police and had also given Ext.P2 statement before the Magistrate. She also deposed that M.O1 to M.O3 are the shirt, skirt and panties worn by her at the time of occurrence and she was aged 8 years and her date of birth is 08.08.2009. During cross examination minute niceties regarding the place of occurrence was put to PW1 and PW1 had given rational answers though she deposed that something which she could not remember because of her tender age. Some minor omissions were brought out during cross examination of PW1. PW1 in cross examination had given evidence that before the occurrence the daughter of the accused and her husband also were residing in the same house. When she was questioned by using Ext.P2 statement, she answered in the affirmative and she stated that she disclosed the occurrence before the Magistrate. It could be seen that during cross examination of PW1, the defense case suggested was that the uncle of PW1 also had been running a tea shop and in such situation, the tea shop run by the accused was a hazard to her uncle’s business and thus PW1’s uncle, who had political rivalry to the accused, foisted this case. This was the reason for registration of this false case. The same was denied by PW1.

9. PW2, examined in this case, in fact, is the minor-elder sister of PW1. The Special Court examined PW1 and PW2 after conducting a void dire examination by putting questions to them and on getting rational answers and found that the witnesses were fit to give evidence.

10. PW2 deposed about the occurrence in support of PW1 and nothing extracted during cross examination of PW2 to disbelieve her version.

11. In order to prove the age of the victim to hold that she was a minor as defined under Section 2(1)(d) of the POCSO Act at the time of occurrence, Ext.P3, the extract of birth register issued by PW3, the Registrar of Birth and Death attached to Pazhayannur Grama Panchayat during 2018, was examined and he deposed that as per Ext.P3 the date of birth of the victim is 08.08.2009. He also deposed about Ext.P4 ownership certificate showing that the owner of the house was Chellappan Nair (the accused herein).

12. Apart from the said evidence, in order to corroborate sexual acts done by the accused against PW1, PW4 Dr.Rani S.J was examined and she had testified that while she was working as Junior resident at Medical College Hospital, Thrissur, at 11 p.m on 20.03.2018, she had examined the victim of 8 years and 7 months and during her examination she had recorded the statement given by the victim regarding the sexual molestation at the instance of the accused. She had given evidence in support of Ext.P5 report issued by her stating as under:

                  “Vulval outlet, labia minora, clitoris and vestibule were seen congested, a small mucosal tear in the posterior commissure was seen, hymen was seen torn and a small tear was seen in the right posterior lateral wall.”

                  Though during cross examination she was asked about the absence of her name in page No.1 of Ext.P5 report, she stated that the same was an omission and she reiterated that she had examined the victim and issued Ext.P5 certificate.

13. In order to prove the potency of the accused, Ext.P6 certificate issued by PW5 Dr.Kavya Karunakaran was tendered in evidence through her and she deposed that on examination of the accused she opined that “there is nothing to suggest that the above named person is incapable of performing sexual act”. Ext.P8 is the recovery mahazar whereby M.O1 to M.O3 were taken into custody by the police and PW7, the ward member of ward No.13 of Pazhayannur Grama Panchayat from 2015 to 2020 had given evidence in support of the same. Preparation of Ext.P9 mahazar deposed by the Investigating Officer is corroborated by PW8, who admitted his signature in Ext.P9. PW9, the Additional S.I attached to Pazhayannoor Police Station as on 20.03.2012 , PW12 is the Investigating Officer, who supported the investigation.

14. In this case the prime contention raised by the learned counsel for the appellant/accused is about the improbability in the prosecution case. It is pointed out that since the time of occurrence were at 5 p.m on 19.03.2018 and the occurrence before one week at 8 a.m on 14.03.2018, the sexual molestation alleged could not be believed as it was not possible to do the same during the said time, where people would be available as the place of occurrence is a tea shop, though attached with the house of the accused.

15. In this connection, it is relevant to note that the prosecution case is that the accused subjected the victim to sexual molestation in his house, which is attached to a tea shop. It is perceivable that, if at all a tea shop was attached to the residential house, the residential house would have had sufficient privacy, with proper doors fitted with locks and keys. This aspect would be fortified by the evidence of PW1 to the effect that, prior to the occurrence, the accused's married daughter and her husband had been also residing in the same house. Merely because the place of occurrence is one attached with the tea shop of the accused, it could not be held that there was no privacy to the house attached with the tea shop to perform sexual acts in secrecy. Therefore, sexual acts in secrecy is possible inside the place of occurrence and going through the manner in which the occurrence was spoken by PW1, the improbability as argued by the learned counsel for the appellant/accused is of no significance and the same is repelled. Similarly the argument advanced by the learned counsel for the appellant/accused that the prosecution evidence is insufficient to prove the guilt of the accused also could not be found as the evidence of PW1, a witness of sterling quality, supported by PW2 as well as PW4 doctor would substantiate the ingredients for the offences found to be committed by the accused. Therefore, none of the contentions raised by the learned counsel for the appellant/accused would sustain. Therefore, conviction entered into by the learned Special Judge doesn't require interference.

16. To be on the sentence, the learned counsel for the appellant/accused argued that the occurrence was on 19.03.2018 and the amendment to the IPC brought into force thereafter and, therefore, the minimum sentence at the relevant time for commission of offence is not less than 10 years. Similarly for the offence under Section 6 of the POCSO Act also minimum sentence during the relevant period is less than 10 years and thus reduction in sentence may be considered. Therefore, as per the statement made by the accused under Section 313 of the Code ofCriminal Procedure, some leniency can be shown.

17. In the result,

                  (i) the appeal is allowed in part;

                  (ii) The conviction imposed by the learned Special Judge is confirmed;

                  (iii) The sentence is modified as under:

                  (1) The appellant/accused is sentenced to undergo Rigorous Imprisonment for a period of 15 years and to pay fine of Rs.1,00,000/-(Rupees One lakh only) for the offence punishable under Section 6 r/w 5 (m) and (l) of the POCSO Act, in default of payment of fine to undergo a further period of rigorous imprisonment for twelve months.

                  (2) All the other sentences and directions in the impugned judgment shall remain in force;

                  (3) The substantive sentence shall run concurrently and default sentence shall run separately.

Registry is directed to forward a copy of this judgment to the Fast Track Special Court, Thrissur, for compliance and further steps.