IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 18TH DAY OF AUGUST 2011/27TH SRAVANA 1933 CRA.No. 144 of 2007 ( ) ----------------------- SC.233/2006 of ADDL.SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-II, KOTTAYAM APPELLANT(S)/ACCUSED:: --------------------- GOPI, S/O.KESAVAN, PARATHIPPALLIKKUNNEL HOUSE, KAVUMBHAGOM BHAGOM CHERUVALLAY KARA, CHERUVALLY VILLAGE KOTTAYAM DISTRICT. BY ADVS.SRI.P.A.MOHAMMED SHAH SRI.P.H.SHAJAHAN RESPONDENT(S)/COMPLAINANT: -------------------------- 1. C.I. OF POLICE, MANIMALA, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N.K. BALAKRISHNAN, JJ. = = = = = = = = = = = = = = = = CRL.A. NO. 144 OF 2007 = = = = = = = = = = = = = = = = Dated this the 18th day of August, 2011. J U D G M E N T Balkrishnan,J. The appellant was convicted by Additional Sessions Judge, Fast Track Court(Adhoc)-II, Kottayam for offences punishable u/Ss.450 and 376 IPC and was sentenced to undergo imprisonment for life for the offence punishable u/s 376 IPC. No separate sentence was awarded for the offence punishable u/s 450 IPC. This appeal is directed against the said conviction and sentence. 2. The case of the prosecution is stated in brief as follows. 3. The victim is a mentally retarded girl. She was then aged 30 years but she had not CRL.A. NO. 144 OF 2007 -:2:- attained physical and mental growth. Hence she was referred to as 'girl' by the learned trial judge. She was staying with her father and mother. On 18.7.2004, PW1-Ammini, the mother of the victim went to her son's house in the morning to ask for some money. One would take about 20 minutes walk to reach her son's house. After some time her husband, Sreedharan(PW4) went out of the house as he was called for a spade work unexpectedly. On his way he went to his son's house and told PW1 that he was going for work and that she should immediately return to the house as the victim girl alone was in the house. The victim, the mentally retarded girl was always under the care and protection of her mother, PW1. When PW1 reached the house after some time the victim communicated to PW1 by verbal expressions and gestures that the accused CRL.A. NO. 144 OF 2007 -:3:- raped her. Immediately, PW1 went to the house of the accused and asked him. At first he denied. When he was again questioned in the presence of the victim girl he confessed. Thereafter, PW1 and the daughter came back to their house. After work PW1's husband reached the house only at about 7 p.m. He was told about the incident. He then told PW1 that it is a shame and would affect the reputation of their family and so what should be done would be decided after discussing the matter with his sons of whom one was staying at Changanassery. As there was bus strike for a few days his son could not come to his parent's house. On 30.7.2004 the victim girl expressed pain on her back and abdomen and was found vomiting. She was thus taken by PW1 to Dr.Santhi Bai-PW5. The Doctor after examination of the girl opined that CRL.A. NO. 144 OF 2007 -:4:- the girl was raped. When asked the Doctor advised PW1 to lodge a complaint. On the next day, i.e. on 31.7.2004, PW1 went to the Police Station. PW12, the Sub Inspector of Police of Manimala Police Station recorded Ext.P1, the statement of PW1 at 10.30 a.m. based on which Ext.P1(a), the F.I.R. was registered by him. On getting express report regarding the registration of crime, PW14 the Circle Inspector of Police, Manimala took over the investigation. On the same day at about 12 O' clock he went to the house of PW1. The scene of occurrence was shown by PW1 based on which Ext.P7-scene mahazar was prepared by him. The accused surrendered before the Judicial First Class Magistrate, Kanjirappally on 5.8.2004. After getting police custody he was questioned by PW14. Based on the statement given by the accused the 'Kailymundu' CRL.A. NO. 144 OF 2007 -:5:- stated to have been worn by him at the time of Commission of offence was seized from the cloth- line seen on the middle of the southern middle room. The aforesaid 'Kailymundu' and also the dress worn by the victim as well as the bed sheet were sent for chemical examination. Potency test of the accused was also conducted. After completing investigation charge sheet was laid against the accused. The accused pleaded not guilty to the charge. 4. PWs.1 to 14 were examined and Exts.P1 to P11 were marked. Besides MO1, MO2 series and MO3 were also identified and marked. When the accused was examined u/s 313 Cr.P.C. he contended that a false case was foisted against him at the instance of PW2 and Satheesh-another son of PW1. It was also contended that exploiting the mental retardation of the CRL.A. NO. 144 OF 2007 -:6:- daughter false cases used to be filed by PW1 and others and that he is totally innocent in the matter. No evidence was adduced on the side of the accused. 5. After analysing the evidence given by the prosecution witnesses the learned Sessions Judge held that the prosecution could establish that the accused trespassed into the residential house of PW1 and raped the victim girl when she alone was in the house. The accused was thus convicted and sentenced as mentioned above. 6. Learned counsel for the accused would submit that there is no acceptable evidence to hold that the prosecution case is true. It is contended that PW1 has no direct knowledge regarding the incident and only on the basis of the alleged information given by the victim girl First Information Statement was given. There is CRL.A. NO. 144 OF 2007 -:7:- no proper explanation for the delay in lodging the F.I.Statement. The time of incident alleged by the prosecution also is inconsistent with the statement given by PWs.1,3 and 4. It is also contended that MO3, the kylimundu of the accused was seized after about three weeks of the incident and so the presence of semen stain on MO3 cannot lead to the conclusion that the very same kylimundu(MO3) was used by the accused on the alleged date of the incident. It is further contended that MO1, bed sheet was seized by the police after about 13 days of the incident and therefore it cannot be held that the semen found on MO1 has anything to do with the alleged incident. According to the learned counsel the evidence let in by the prosecution is totally insufficient to enter a finding of guilt against the accused. CRL.A. NO. 144 OF 2007 -:8:- 7. Sri.C.M.Nazar, learned Public Prosecutor strongly resisted those submissions and supported the finding of guilt entered by the court below. Learned Public Prosecutor would submit that the evidence given by PW1 inspires confidence in the mind of the court. PW1 is well competent to decipher the gestures of the victim girl which cannot be properly deciphered by any other person. He would also point out several circumstances to support the findings entered by the learned Sessions Judge. 8. The points for consideration are: whether the accused committed criminal trespass into the house of PW1 in order to rape the mentally retarded girl(the victim in this case) on 18.7.2004 at 8.25–8.40 a.m. and whether after trespassing into that residential house he raped the victim in this case, the mentally CRL.A. NO. 144 OF 2007 -:9:- retarded girl? (2) Whether the conviction and sentence passed against the accused are unsustainable on any of the grounds alleged by the prosecution. Point No.1: 9. Ext.P1 is the First Information Statement given by PW1 to PW12, the Sub Inspector of Police, Manimala on 31.7.2004 at about 10.30 a.m. Gravity of the incident was stated by PW1 in Ext.P1 F.I.Statement. PW1 has clarified that she had given only one statement to the Police and that statement is Ext.P1. Though some suggestions were put to PW12 he also denied having received any written complaint from PW1. So much so, the contention raised by the defence that there was suppression of FIR is found to be unmerited. PW1 has given evidence in tune with the averments made in Ext.P1. It CRL.A. NO. 144 OF 2007 -:10:- was sworn by PW1 that on 18.7.2004 she went to her son's house in the morning for getting some amount. At that time her daughter the victim and PW4 were in the house. During cross-examination it was stated that she was there in her son's house for about half an hour. Her further evidence is to the effect that her husband reached that house before going for work and told her to return immediately to the house as her daughter was alone there in the house. The evidence would show that the door of the house was not locked or closed when he went out. PW1 reached her house at about 8.45 a.m. It was stated by her that when she reached there her daughter told that the accused took her to the western bedroom, she was laid on the bed and lifted her clothes and removed her shuddy. PW1 could further understand from the verbal CRL.A. NO. 144 OF 2007 -:11:- expressions and gestures of the victim girl that the accused penetrated his male organ into her vagina and raped her. In evidence it was stated by PW1 that after her daughter narrated the incident by gestures and verbal expressions she went to the house of the accused and questioned the accused. At first the accused denied having committed any offending act but when he was again questioned in the presence of the victim girl he confessed having done so. Her further evidence is that victim's father reached the house only at about 7 p.m. in the evening. She told him about the incident. PW4 then told that as it is a shameful act further action can be had only after discussing the matter with their sons. PW1 says that she was told by PW4, that she should not disclose this fact to anybody else as it is a shame. On 30.7.2004 the victim CRL.A. NO. 144 OF 2007 -:12:- girl expressed pain on her back and abdomen and started vomiting and so she was taken to Government Hospital, Kanjirappally where the victim girl was examined by PW5. The fact that the girl was raped was confirmed after the girl was examined by the Doctor. On the next day she went to the police station and gave F.I.Statement. It was stated by PW1 in Ext.P1 that the delay was occasioned because of the fact that she and PW4 had to discuss the matter with their sons, residing at different places. 10. PW4, the husband of PW1, has deposed that in the morning of 18.7.2004 when he was to go for spade work which he got unexpectedly, he went to his son's house and told PW1 to go back to the house immediately as the daughter alone was there. He has corroborated the evidence of PW1 that he reached CRL.A. NO. 144 OF 2007 -:13:- the house on that day only at about 7.00. p.m. after work when he was told by PW1 about the incident and he then told PW1 not to disclose this incident to anybody else as it is a shame. PW4 has stated that only PW1 can understand properly from the words and gestures of the victim what the girl wanted to communicate. He has also stated that the delay in lodging the complaint was occasioned as he wanted to discuss with his sons as the incident will affect their family's reputation. 11. The prosecution would rely upon the evidence given by PW3, the daughter of Satheesh, the son of PW1. It was stated by PW3 that in 2004 she was studying in 6th std. She used to go to the house of PW1 to see PW1 who is her father's mother. She particularly remembers that on 18.7.2004 which was a Sunday she went to CRL.A. NO. 144 OF 2007 -:14:- that house at about 8.40 a.m. calling her grandmother ............. She then saw the accused going out of the house through the rear door of that house. The victim girl alone was then in the house, who was lying on the bed. When she enquired about PW1, the victim informed that PW1 was not there. So immediately PW3 went back to her own house and told her mother that the accused was seen leaving that house through the door on the rear side. PW3 has identified MO2 as the nighty which was then worn by the victim girl. She has also identified MO3, the kylimundu which was then worn by the accused. 12. The learned counsel for the accused would submit that the time spoken to by PW1, PW3 and PW4 does not reconcile with each other. It is not a case where PW1 and PW4 spoke about the time so accurately. They only stated the CRL.A. NO. 144 OF 2007 -:15:- approximate time; to mean that the incident was in the morning hours. Of course, PW3 has stated that when she reached the house of PW1 it was about 8.45 a.m. The argument advanced by the learned counsel for the accused calculating the time which must have been taken by PW4 to reach the house of his son Satheesh to tell PW1 that she should go back to the house and the time that must have been taken by PW1 to reach the house etc. cannot assume much significance for the reasons already stated. Though PW3 was cross-examined at length the credibility of that witness could not be shattered. PW3 the girl had no axe to grind in the matter nor can it be stated that PW3 was tutored by the prosecution or that she was a planted witness. Learned trial judge had the opportunity to watch the demeanour of PW3. After scanning the evidence CRL.A. NO. 144 OF 2007 -:16:- the trial court rightly placed reliance on the evidence given by PW3 as well. The fact that the accused was seen leaving the house at about 8.45 a.m. when PW3 reached that house to see PW1 is a strong circumstance against the accused. 13. It was stated by PW2 that at about 8.25 A.M. while he was proceeding towards Kunnathupuahzha junction by the side of the house of the accused he saw the accused walking ahead of him and when the accused reached near the house of PW4 he turned towards that house and he saw the accused entering into the house of PW4. Since the accused is a neighbour of PW4 PW2 felt no suspicion at that time. But in the evening he came to know that the victim was raped by the accused. He has also identified MO3, the kylimundu which the accused was seen wearing at the relevant time. CRL.A. NO. 144 OF 2007 -:17:- 14. It was vehemently argued by the learned counsel for the accused that though it was admitted by PW1 that PW2 is a close friend and associate of Satheesh (the son of PW1) PW2 denied it. In fact there was no inconsistency in the evidence given by PW1 and PW2. When a suggestion was put to PW2 that he and Satheesan used to consume liquor together, that was denied but at the same time it was admitted that both of them used to work together though they belong to different unions. The suggestion put to PW2 was that as his wife had left him he wanted to have an affair with Anitha, the daughter of accused, but that was objected to by the accused and so PW2 had serious grudge against the accused. It was denied. Similar suggestion put to PW1 was also denied. Ever so many suggestions woven to the imagination of the CRL.A. NO. 144 OF 2007 -:18:- defence can be put but it will remain in the realm of suggestion alone, learned Public Prosecutor submits. Those unsubstantiated suggestions cannot take the place of proof nor can by putting such suggestions cast a shadow of doubt on the prosecution version. 15. Fazed, dazed and puzzled by the misfortune that befell on the unfortunate girl her father(PW4) could take no decision of his own but wanted to consult his sons residing at different places before taking a decision in the matter. One of the sons who was residing at Changanassery with his family, because of continuous bus strike, could not come to his father's house. Thus there occurred a delay in the father consulting his sons to take a decision in the matter. By that time the victim girl developed back pain and stomach pain and CRL.A. NO. 144 OF 2007 -:19:- thus she was taken by PW1 to Government Hospital, Kanjirappally. PW1 was also grief stricken and anxious whether the victim had conceived because of the offending act done by the accused. Pregnancy test was conducted by PW5. It was found to be negative; a sigh of relief to the mother. PW5 confirmed that the victim was raped. When asked PW5 advised PW1 to file a complaint. Accordingly on the next day she lodged Ext.P1 F.I.Statement. It may at the first blush appear that there was delay in lodging the F.I.Statement. But there is plausible and reasonable explanation for the delay. The conduct of the father is quite natural and reasonable. The evidence given by PW1 would show that she was cautioned by PW4 not to divulge this incident to anybody else, for it was a matter of shame. But by that time PW1 had CRL.A. NO. 144 OF 2007 -:20:- told about this incident to one of his co- workers and also to the wife of the accused. PW2 could come to know of the incident in the evening when four or five persons seen gathered somewhere near the house of PW1 told that the victim girl was raped by the accused. 16. The defence wanted to contend that PW4 and PW1 used to file complaint against their opponents, exploiting the mental retardation of the girl. No Indian woman will make use of her own daughter, that too, a mentally retarded girl, to make false complaints of rape. About 25 years prior to the incident, when the girl was only 5 or 6 years a mixture vendor had caught hold of her hands. Neighbours who happened to see it objected to it and there was a complaint with regard to the same. It was a very minor incident. That apart it was not done CRL.A. NO. 144 OF 2007 -:21:- at the instance of the parents of the victim. Making use of it the defence made the allegation that PW4 was making use of this unfortunate girl to file complaints against the opponents. That suggestion was 'the most unkindest' of all; the prosecution rightly contended. The question put by the defence was unreasonable and unfounded and was actually adding insult to injury. 17. Learned counsel for the accused would submit that evidence given by PW1 is to be treated as 'hearsay evidence' and so based on that evidence conviction cannot be had. The victim girl was produced before the learned trial judge. The victim was unable to understand the questions put to her. On enquiry the learned Sessions Judge was satisfied of her inability to give rational answers on account of mental retardation. It was deposed by PW1 that CRL.A. NO. 144 OF 2007 -:22:- in the midst of people the victim becomes fear- stricken. Learned trial Judge observed that the victim was seen to be fear-stricken in the court room and she could not give answers to the questions put to her. PW4, her father would also swear that only the victim's mother(PW1) could decipher and comprehend from the victim's gestures and verbal expressions. That evidence is corroborated by PW8, the clinical psychologist working in the Medical College Hospital, Kottayam who had examined the victim girl. Ext.P6 is the certificate issued by him. It was stated by him that a mentally retarded person is not adequately competent to verbalize the feelings in a proper manner which is required for her age. It was further stated that the victim may not be able to express adequately but her mother will be able to help CRL.A. NO. 144 OF 2007 -:23:- and understand the verbal expressions. The normal I.Q. ranges from 90 – 100 – 110. The victim in this case was having I.Q. of 40. It was also stated by PW8 that the victim is not in a position to function like an ordinary person but is in a position to communicate but not in an expected manner and that her verbal expressions can be deciphered with difficulty. It was asserted by him that the mother can understand what she(the victim) conveys. That exactly is the evidence given by the victim's father(PW4) also. In Ext.P1 also it was stated by PW1 that she can decipher and comprehend from the gestures and verbal expressions of her daughter. The act complained of was done by the accused after ensuring that the victim alone was in the house. Since often offence of this kind would be committed only in such circumstances, CRL.A. NO. 144 OF 2007 -:24:- there can be no eye-witness to the occurrence. It is not a case where the victim could be tutored or otherwise persuaded to give a distorted or a fabricated version to her mother. The information communicated by the victim to her mother was so proximate in time, immediately after the incident when the mind of the victim was so connected with the events as to make it probable. Any statement or gestures made by her pointing to the complicity of the accused would be true and accurate. She communicated to her mother as to what transpired just prior to it by verbal expressions. There was no interval between the event and the verbal expressions or gestures made by her. PW1 happened to give the statement/complaint to the police as her daughter, the victim is not in a position to communicate her ideas to the police. Because of CRL.A. NO. 144 OF 2007 -:25:- the mental retardation, the victim girl cannot be tutored at all. In the light of the unimpeachable evidence given by the Doctor and the clinical psychologist supported by PW4, there could be no iota of doubt that PW1 is the most competent witness to speak with regard to the incident. She cannot be treated as a witness having only hearsay information but she was actually translating what was communicated to her by the victim girl. What was communicated by the victim to her mother is a conduct admissible u/s 6 of the Evidence Act as there was proximity of time proximity of place and continuity of action and communication or declaration of the offending act done upon the victim. The evidence given by PW1 is fortified by the evidence given by PW5 Dr.Santhi Bai who examined the victim on 30.7.2004 at 5.30 p.m. CRL.A. NO. 144 OF 2007 -:26:- Ext.P3 is the certificate issued by the Doctor. The victim was certified to be a mentally retarded girl having Dawn's syndrome. Though the victim was aged 30 years she was having a height of only 132 c.m. and a weight of 37 kg. The learned trial Judge has observed that the victim appears to be a girl because of her retarded growth. On per-vaginal examination her hymen was seen torn. There was an old tear. Her vagina admits two fingers hight. Though vaginal smear was taken since 12 days had elapsed the clinical examination showed no spermatozoa. But it was certified by