IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.Rev.Pet.No. 187 of 2003 -------------------------------------------- CRA.175/1996 of SESSIONS COURT, MANJERI SC.12/1996 of ASSISTANT SESSIONS COURT, TIRUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: CHANDAPARAMBIL RAMACHANDRAN, S/O. KUNHUNNI, VETTAMKULAM AMSOM, THEVALASSERI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.B.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.649/2003 IN CRRP 187/2003 DISMISSED 26.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.187 of 2003 -------------------------- ORDER Petitioner, the accused in S.C.No.12/1996 on the file of Assistant Sessions Court, Tirur, who was convicted and sentenced for the offences under Sections 376 and 451 of Indian Penal Code, filed this revision challenging the concurrent conviction and sentence. Prosecution case is that PW1, the prosecutrix, alone was in the house at about 5 p.m. on 30.5.1994. PW2, her mother, had gone outside and PW3, her younger sister, had gone to purchase milk. Petitioner, who is a neighbour and known to the prosecutrix and others, utilised the opportunity and committed trespass into the house of PW1 and caught hold of her and committed rape on her. PW1, a lady, who is suffering from heart ailment and is also slightly mentally retarded, could not offer resistance. Consequent to the rape, there was bleeding from her vagina. PW1 did not disclose the CRRP 187/03 2 factum of rape to the parents immediately. On the next day, the fact was disclosed to PW2. PW1 was then taken to Edapal Hospitals, from where, PW12, the Doctor, examined her and prepared Exhibit P13 wound certificate. It was disclosed to the Doctor that PW1 was raped at about 5 p.m. on 30.5.1994. On getting information from the hospital, Sub Inspector of Police went to the hospital and recorded Exhibit P1 F.I. Statement and registered the case for the offences under Sections 376 and 451 of Indian Penal Code. PW1 was got examined by PW8, the Doctor at the Government Hospital, Ponnani, at 11.15 a.m. on 13.6.1994 and Exhibit P5 wound certificate was prepared. The vaginal swab collected were sent to Forensic Science Laboratory and obtained Exhibit P12 report. Petitioner was arrested and got examined by PW7, the Doctor, who issued Exhibit P4 potency certificate. After completing the investigation, final report was submitted and taking cognizance, learned Magistrate committed the case to Sessions Court. Petitioner CRRP 187/03 3 was tried by Assistant Sessions Judge. Petitioner pleaded not guilty to the charge. 2. Prosecution examined 13 witnesses and marked Exhibits P1 to P13 and identified MOs 1 to 3, the dresses worn by PW1 at the time of the incident and MOs 4 and 5, the dresses worn by the petitioner at that time. 3. Argument of the learned counsel appearing for the petitioner is that courts below did not properly appreciate the evidence and when the solitary evidence to prove rape is that of PW1 and the evidence of PW1 is not trustworthy or reliable and is not corroborated by the medical evidence, petitioner should not have been convicted. Learned counsel would argue that evidence of PWs 1 and 2 establish that Exhibit P1 F.I. Statement was not furnished by PW1 and the details stated in Exhibit P1 were not disclosed by PW1 from the box and at the first part of the chief examination, PW1 deposed that she did not identify the person who caught hold of her from behind and she had fainted. CRRP 187/03 4 It was pointed out that only after the Public Prosecutor confronted her with a portion of Exhibit P1, without declaring the witness hostile, PW1 narrated the facts and in such circumstances, the uncorroborated evidence of PW1 should not have been accepted to convict the petitioner for a heinous offence. It is argued that even, in cross- examination, PW1 deposed that she lost her memory and when she woke up, she was lying on the cot and she could not depose what transpired before she woke up and in the light of her evidence that she guesses that it is petitioner, coupled with the evidence tendered in the first part of the chief examination, it is not at all safe to convict the petitioner based on her evidence. Learned counsel also pointed out that evidence of PW8 with Exhibit P5 wound certificate, would show that PW1 is mentally retarded and her evidence was recorded without conducting a preliminary enquiry on her capacity to give evidence and even if she could give evidence, her version should not have been CRRP 187/03 5 believed which does not corroborate with the medical evidence. It is, therefore, argued that at least petitioner is entitled to get the benefit of reasonable doubt. Relying on the decision of the Apex Court in Varkey Joseph v. State of Kerala rep. by Circle Inspector of Police (AIR 1993 SC 1892), learned counsel argued that Honourable Supreme Court has deprecated the practice of putting leading questions to the prosecution witnesses without the permission of the court and that exactly was done in this case and if the leading question was not put to PW1, she would not have let in any evidence against the petitioner. It is finally argued that it is not reliable to fix the identity of the culprits on her evidence, when she deposed in the first part of the chief examination, that she could not identify the person and only in the last part she named the petitioner by guess and therefore, the conviction is illegal and is to be set aside. CRRP 187/03 6 4. When rape was committed inside the house at a time when PW1 alone was there, one cannot expect any other witnesses to corroborate what transpired inside the house. PW1, the prosecutrix, is the person who could disclose what transpired therein. True, PW1, when examined, at the first part of the chief examination, did not narrate the incident as such and stated that she had fainted when she was caught hold from behind by a person and she did not identify that person at that time. It is thereafter learned Public Prosecutor brought her attention to a portion of Exhibit P1 F.I. Statement. But, even if that part of the chief examination is eschewed as it was a leading question put to the witness without seeking permission of the learned Assistant Sessions Judge, that will not affect the validity of her evidence given thereafter. PW1 had given evidence as to what transpired at that time. Evidence of PW1 shows that when she alone was there in the house, petitioner came there, caught hold of her, took her to the room, made her lie on a cot, CRRP 187/03 7 removed her dresses and then inserted his penis into her vagina and committed rape. Argument of the learned counsel is that evidence is not supported by medical evidence. Argument is based on the fact that when PW8 was cross-examined and when a question was put to PW8 that if rape was committed on a lady like PW1, would it not cause some other injuries. PW8 replied that if rape was committed, other injuries are also possible. PW8 did not depose that other injuries must necessarily be caused. PW8 in Exhibit P5 wound certificate noted that there is a crescent shaped scar with granulation tissue of 1.5 cm. long on posterior fornix and her hymen was torn. Evidence of PW8 shows that the said injury could be caused by penetration. Therefore, it cannot be said that there is no corroboration of the evidence of PW1 by medical evidence. When the entire evidence of PW1 is appreciated in the proper perspective, her version that petitioner committed rape on her after trespassing into her house is trustworthy. There is CRRP 187/03 8 no rule or law that uncorroborated evidence of the prosecutrix, if found trustworthy and reliable, cannot be the basis for a conviction for the offence of rape. As cautioned by the Apex Court, demanding corroboration for the version of the prosecutrix would be adding insult to the injury. Learned Assistant Sessions Judge and learned Sessions Judge appreciated the evidence of PW1 in the proper perspective. In any case, appreciation of evidence cannot be said to be perverse. I find no reason warranting re-appreciation of evidence so as to disbelieve the evidence of PW1. Added to this, evidence of PW2, the mother, shows that on the very next day, PW1 had narrated the facts and disclosed the identity of the petitioner to her. I find that when PWs 1, 2 and 3 were cross-examined, there was no case for the petitioner that there was any reason for PW1 or PW2 or their family members to falsely foist a case against the petitioner and that too, an offence of this nature, which actually affects the reputation of the family. When the CRRP 187/03 9 entire evidence is appreciated in the proper perspective, I find no reason to interfere with the conviction for the offences under Sections 376 and 451 of Indian Penal Code. 5. Then the only question is regarding the sentence. Learned Assistant Sessions Judge awarded rigorous imprisonment for seven years for the offence under Section 376 of Indian Penal Code and rigorous imprisonment for one year for the offence under Section 451 of Indian Penal Code. Learned Sessions Judge reduced the substantive sentence for the offence under Section 376 of Indian Penal Code to five years. Learned Sessions Judge has also awarded a compensation of Rs.50,000/- to be paid to PW1 with a default sentence of two years. Argument of the learned counsel is that the default sentence for the compensation awarded is excessive and the substantive sentence for the offence under Section 376 of Indian Penal Code also may be reduced. I find no reason to interfere with the substantive sentence awarded for the offence under Section 376 CRRP 187/03 10 or 451 of Indian Penal Code. But, interest of justice will be met if the default sentence for the compensation is reduced from two years to one year. Revision is disposed confirming the conviction and sentence for the offences under Sections 376 and 451 of Indian Penal Code as modified by the Sessions Judge in Crl.A.No.175/1996. But the default sentence for the compensation of Rs.50,000/- is reduced from rigorous imprisonment for two years to one year. Assistant Sessions Judge, Tirur is directed to execute the sentence. Petitioner is directed to appear before Assistant Sessions Court, Tirur on 1.7.2010. 26th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 187/03 11 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.187 of 2003 -------------------------- ORDER 26th May, 2010