IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 WP(C).NO. 23364 OF 2010(Q) ---------------------------------------- PETITIONER(S): ----------------------- P.P.SHAJI, S/O. PAPPAN, RESIDING AT PLATHOTTATHIL HOUSE, LAKSHMICOVIL P.O., RANICOVIL, PERUMEEDU VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): ------------------------- 1. THE SUPERINTENDENT OF POLICE, IDUKKI. 2. DEPUTY SUPERINTENDENT OF POLICE, KATTAPANA, IDUKKI DISTRICT. 3. THE CIRCLE INSPECTOR OF POLICE, OFFICE OF THE C.I. OF POLICE, PEERUMADE POLICE STATION. 4. THE SUB INSPECTOR OF POLICE, PEERUMEDU POLICE STATION, IDUKKI DISTRICT. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23364 of 2010 ==================================== Dated this the 10th day of March, 2011 J U D G M E N T I had after hearing counsel for petitioner dictated the judgment in open Court on March 07, 2011. Learned counsel then requested that the case may be posted to be spoken to. Accordingly I heard learned counsel again this day and is disposing of the case. 2. Petitioner is accused in Crime No.95 of 2010 of Peerumedu Police Station for offence punishable under Section 376 of the Indian Penal Code for alleged rape of his daughter aged about 11 years during the relevant time and studying in the CSI Vocational Higher Secondary School for Deaf, Thiruvalla since the girl is deaf and dump. The case arose on a private complaint preferred by the mother of the (alleged) victim. It would appear that there was discord between petitioner and his wife, mother of the (alleged) victim which resulted in petitioner filing petition before Family Court, Thodupuzha for divorce on the ground of adultery of his wife and that case leading to Ext.P3, judgment dated 30.05.2010 allowing the prayer for divorce. There was also W.P(C) No.23364 of 2010 -: 2 :- a petition filed by the mother of the girl in the Family Court as O.P. No.160 of 2006 for custody of the girl. That was settled and accordingly the mother was permitted to have the company of the girl for a few days during Onam, Christmas and Mid-summer Vacations. It is the case of de facto complainant that the girl was in the custody of petitioner from 25.02.2010 till 01.03.2010, petitioner brought the girl back to the Institution on 01.03.2010 but the girl was found to be out of mood during those days. The mother learned that the girl was subjected to rape by the petitioner on several occasions between 25.02.2010 and 01.03.2010. On the complaint of the mother proceeding was initiated and Peerumedu Police registered Crime No.95 of 2010. Investigation followed and the petitioner and the girl were subjected to medical examination. This petition is to direct reinvestigation of the case and to entrust such investigation to an Officer superior in rank to respondents 3 and 4. According to the petitioner, third respondent is not properly investigating the case. Petitioner submitted that the case is foisted against him by the mother against whom he obtained an order of divorce as per Ext.P3, judgment. Leaned counsel for petitioner made a fervent plea to order reinvestigation by a superior Officer. My attention is W.P(C) No.23364 of 2010 -: 3 :- drawn to the relevant records produced along with the petition, in particular the wound certificate (Ext.P5). Learned counsel contended that Ext.P5 would not show that there was sexual assault on the girl. It is also contended from Ext.P7 that as against the direction of Family Court in O.P. No.160 of 2006 the de facto complainant took the girl on 12.03.2010. I have heard the learned Public Prosecutor also. It is submitted by the learned Public Prosecutor that report of chemical examination on the vaginal swab and other materials collected from the victim is awaited and investigation is not completed. Learned Public Prosecutor has also referred to the statement filed by the Circle Inspector who is investigating the case. 3. I have gone through the petition, connected records and the statement filed by the Circle Inspector. It is revealed that in the course of investigation statement of the victim was recorded with the assistance of an Interpretor. In that statement the victim is seen to have stated that on three occasions between 27.02.2010 and 01.03.2010 she was subjected to sexual intercourse by the petitioner. She stated in detail the incident. She stated that she was threatened by the petitioner against disclosing the incident. She claimed to have disclosed the W.P(C) No.23364 of 2010 -: 4 :- incident to her paternal uncle's wife. 4. It is contended by learned counsel that going by the complaint and Ext.P6 there are material contradictions in the case of de facto complainant in that in the complaint it is stated that the child was in the custody of petitioner from 25.02.2010 to 05.03.2010 while Ext.P6 issued from the Institution where the child was studying would show that custody with the petitioner was only from 27.02.2010 to 01.03.2010. It is true that in the complaint there is reference to the custody of the child with the petitioner from 25.02.2010 to 05.03.2010. But I find from the complaint that it is also stated that petitioner brought the girl to the School on 01.03.2010. These contradictions are not material on which a direction for re-investigation could be ordered. Moreover I must bear in mind from the statement of the girl as interpreted by the Interpreter that the alleged incident was on 27.02.2010 and thereafter before the girl was brought back to the School. 5. Yet another argument advanced by the learned counsel is that as per the report on chemical examination there was presence of semen only on the cloth of petitioner and that by itself is not sufficient to warrant a conclusion of rape. Learned W.P(C) No.23364 of 2010 -: 5 :- counsel has placed reliance on the decision of the Supreme Court in Rahim Beg v. State of U.P. (AIR 1973 SC 343) where it was held that presence of semen stains on the langot of a young man could be for various reasons and would not necessarily connect him with the offence of rape. Learned counsel has also invited my attention to the decision of this Court in Mohmmed Kunju v. State of Kerala (2007 [3] KLT 218) where this Court was considering an appeal against conviction for offence under Section 376 of the IPC and evidence of the mother regarding her witnessing the alleged rape of her child was not accepted. 6. I have been taken through the medical certificate (Ext.P5) of the girl (aged about 11 years). There, it is stated that the vagina admitted one finger and that hymen is elastic. True it is stated that there is no evidence of physical violence and that final opinion is reserved pending result of chemical examination. According to the learned counsel for petitioner examination of vaginal swab and other materials collected from the child was not positive as regards presence of semen or spermatazova. But I cannot forget that the girl was examined several days after the incident. W.P(C) No.23364 of 2010 -: 6 :- 7. This Court in Ulahannan v. State of Kerala (1988 [2] KLT 972) in paragraph 3 held that medical evidence can hardly ever negative a charge of rape though it may not support the charge. There, the medical evidence was that the victim had an elastic hymen which can survive sexual intercourse and rupture of hymen is not necessary in case of such elastic hymen. In Ranjit Hazarika v. State of Assam ([1998] 8 SCC 635) even in the absence of medical evidence suggesting rape, other evidence was accepted. It was held that non-rupture of hymen or absence of injury on victim’s private parts was not sufficient to belie the testimony of the victim. In Wahid Khan v. State of M.P. ([2010] 2 SCC 9) in spite of the fact that hymen was found to be in tact on medical examination it was found that partial penetration is possible and that would constitute offence under Sec.375 of the IPC. 8. It is argued that investigation of the case may be entrusted with the Superintendent of Police and there may be an order for reinvestigation. Merely because the present situation is not advantageous to the petitioner and he has raised some suspicion regarding the manner of investigation, such an extreme step is not possible. The irregularity, impropriety or deficiency if W.P(C) No.23364 of 2010 -: 7 :- any in the investigation is a matter which petitioner can bring out to his advantage when the investigation Officer is in the box in the course of trial. I do not find reason to direct further or reinvestigation of the case by any other agency. Petition fails. It is dismissed. Trial court shall dispose of the case on the facts and evidence produced before it untrammelled by any observation contained in this judgment. THOMAS P. JOSEPH, JUDGE. vsv