IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 CRL.A.No. 1722 of 2003() ------------------------ SC.147/2001 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT -I) MANJERI. CP.28/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PONNANI .................... APPELLANT(S): ACCUSED: ---------------------- DILEEPAN, PATTISSERY, S/O. RAMACHANDRAN, EDAPPAL AMSOM, PERUMPARAMBA DESOM, PONNANI TALUK,MALAPPURAM DIST. BY ADVS.MR.K.M.SATHYANATHA MENON SMT.PREETHI. P.V. RESPONDENT(S): COMPLAINANT/STATE: ------------------------------ 1. THE CIRCLE INSPECTOR OF POLICE, PONNANI. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1722 OF 2003 ------------------------------ Dated this the 30th day of July, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court No.I, Manjeri in S.C.No.147/2001. The accused was charge sheeted for the offences under Sections 451 and 376 of the I.P.C and had been convicted thereunder and sentenced to undergo 10 years imprisonment under Section 376 and two years imprisonment under Section 451 and the sentences are directed to run concurrently. He was also liable to pay the fine of Rs.50,000/= under Section 376 and Rs. 1,000/= under Section 451 of the Cr.P.C. Default sentence had also been awarded. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether there are sufficient evidence to hold the accused guilty under Sections 376 and 451 of the Cr.P.C. (2) In case of guilt, whether the sentence awarded is proper? 2 CRL.A.NO.1722/03 3. Yet another unfortunate incident in the restless society which has resulted in the registration of this crime and prosecution. The prosecutrix and the accused are the children of two sisters. The prosecutrix was aged 17 years at the time of the incident. It is the case of the prosecution that on 24.2.1999 while she was taking her bath in the bathroom, her cousin came there and opened the door and committed sexual assault on her against her consent and thereby has committed the offence of rape. 4. The defense appears to be that fabrication of a false case on account of the enmity with respect to some property dispute. The offence of rape is a grievous offence which cuts at the root of the society and further destroys a family including the life of a poor victim. 5. The courts have to be guided by principles while trying to decide the case under Section 376 of the I.P.C. The Apex Court had made it very clear that even uncorroborated evidence of prosecutrix can be accepted to convict the accused in a case. In order to ensure avoidance of a false case, the courts always consider the medical evidence also 3 CRL.A.NO.1722/03 as leak proof method to find out whether the accused is guilty or not. 6.Let me first to analyse the medical evidence before going into the oral testimony of the prosecutrix. The alleged incident is said to have taken place in the early ours of a day while the prosecutrix was taking her bath. Ext.P3 is the first wound certificate issued and PW4 is the doctor who had examined her. The wound certificate - Ext.P3 would reveal that the girl sustained as many as ten injuries on the body and other injuries on the hymen and labia minora. Superficial injuries seen on the face would reveal that it is a nail mark. There was also a nail mark on the right jaw. Semi lunar marks on the lower part of angle of left jaw and an abrasion of 0.5cm long in the lip, contusion of 2x2 cm on the left breast, tenderness on the right breast. Linear abrasion of 1.5 cm on the forearm, abrasion on the scalp etc. The vagina admits one finger. The injuries seen on the private part are contusion on the labia minora and a small tear on the left side of the hymen. 7. PW4 is the doctor, who had issued Ext.P3. Her 4 CRL.A.NO.1722/03 evidence would reveal that the girl was brought during the night hours with a complaint of fever etc. She was examined and found to have some superficial injuries on the body of the girl and immediately after the mid night she was admitted in the hospital. The first consultation was done from the house and at that time, the doctor had noted the injury and subsequently it has been re-recorded when she had been examined from the hospital. It is deposed by her that all injuries of this nature could be caused if the girl was subjected to rape. 8. In the cross examination, materials were attempted to be bought out to hold that she is not speaking the truth. To a specific question, she had clearly answered that in the wound certificate she had copied the injures noted by her at the time of her first examination. She would also depose that she had examined the girl after two or three days of the alleged incident and it may take 2-3 days for creation of the reddish lunar colour. She would depose that the wounds mentioned in Ext.P3 may take 4 or 5 days to disappear. She had reiterated that she had seen the tear of the 5 CRL.A.NO.1722/03 hymen. 9. The learned counsel for the appellant had brought to my notice the certificate issued by DW1 and the document Ext.D2. The said doctor examined her on 1.3.1999 and she found that there were no external injuries that the hymen was intact. When she was examined as DW1, she had deposed about the examination and repeated what she had given in Ext.D2. When she was cross examined, she would depose that if she had examined the person immediately after the incident within a day or two, the injuries would have been visible. She said that there were no fresh injuries noted on 1.3.1999. She adds that some times, the injury might have been healed. It is also pointed out by her that the child as well as the mother had pointed out the marks seen on the body of the girl. But the doctor would say that she was not able to see any injury on the breast. As far as the injuries on the breast are concerned, even going by Ext.P3, there are only tenderness and contusions and the examination is done about 5 days after the alleged incident and therefore it may have faded out. There is no virtual conflict between the 6 CRL.A.NO.1722/03 evidence of PW4 and DW1. PW4 had the opportunity to see the patient immediately i.e, within 2 days whereas DW1 did get the opportunity only after 5 days. There is no motive for PW4 to point out the injuries on a person without seeing it. So, the medical evidence available in this case indicates the following: 10. That the girl had been subjected to an attack. There had been injuries on her private parts as well as her face, lip, back etc. It has to be remembered that the scene of occurrence is a small bathroom. In that, there is a platform which is intended for washing the cloths. Besides this, there was a bucket full of water. It is the case of the prosecutrix that the accused opened the latch, entered the room and caught hold of her and committed rape on her. She had deposed that she had fallen and she also speaks about the sitting position in which she was made to sit and the other acts regarding sexual abuse. So, it is in this background, the injuries have to be viewed. The injuries present on the body indicate the genuineness of the version. So far as the offence of rape is concerned, it may have to be stated that in small 7 CRL.A.NO.1722/03 children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of fourchette and perinaeum. We find that labia minora as well as the hymen is injured and therefore an offence of rape can be easily said to have taken place. Now it is in this background one has to analyse the evidence of prosecutrix-PW1. 11. PW1 a poor girl who is not in a position to express freely and there is also some hearing impairments for her. Her mother had left her in the house as she had to visit the hospital to admit her son. At that time, the mother of the accused and sister-in-law were asked to look after her and when the father returned from the hospital, they had gone back to her residence and it is in that morning, unfortunately the incident alleged to have taken place. The girl as PW1 had deposed that she had entered the bathroom and poured a mug of water on her head. It was at that time the accused had opened the latch and removed his clothes and put it on the door. Thereafter it is stated that the accused had bitten her 8 CRL.A.NO.1722/03 lips which resulted in the flow of blood. She attempted to raise a hue and cry. Her mouth was shut and thereafter he had molested her and she was pushed back to the wall and in that process her hand got injured. Thereafter he had kicked the bucket and the girl was forced to the ground. Thereafter an attempt to widen her thigh and thereafter it is stated that the act was committed and blood oozed out from her vagina and there was also flow of semen and he went back threatening that he would kill her if she states it to anybody. 12. She had been cross examined at length. Northing serious has been brought out in the cross examination and she had deposed that there were marks on her breast and blood oozed out from the lips. She had also spoken about the fact that she had shown these injuries to the doctor. It is also her case that the accused had taken his dothi and left the place. Thereafter the mother of the accused came and she also told her not to divulge the matter to anybody. 13. PW2 is the mother of the victim. She had also elaborately spoken about the matter. She is not an eye witness and had spoken about what had transpired thereafter and she 9 CRL.A.NO.1722/03 had denied the suggestion that there was no enmity between the families so as to foist a false case. PWs 3, 5,6 and 7 are all official witnesses and PW9 is the person who had laid the charge. 14. The learned counsel for the appellant would submit that the chemical examiner's report - Exts.P8 and P9 does not support the case of the prosecution. Ext.P9 is the chemical analysis report with respect to Vagina swab which would show that semen and spermatozoa were not found in the vaginal swab. Ext.P8 which relates to the cloth of the accused also. Item No.3 is the cloth which was alleged to be worn at the time of the incident and the prosecutrix had stated that the accused had taken it back. In that analysis, it had been found that human blood was there. Human blood was not detected in the shirt or the towel. It has to be remembered that the incident had taken place in the morning hours at 6.15 a.m on 24.2.1999. The factum is reported on 26.2.1999. The seizure etc takes place only thereafter. Therefore, non presence of spermatozoa on the vaginal swab does not ipso facto indicate that no rape had taken place at all. The 10 CRL.A.NO.1722/03 materials available would show that the there had been an attack on this girl and that her private parts namely the hymen and labia minora had sustained abrasion or injuries. Unless a penetration is effected, one cannot say whether there was complete penetration. It can be said that evidence is sufficient to hold that there is partial penetration at least. Under the provisions of the I.P.C, a partial penetration is sufficient to constitute an offence of rape under Section 376. 15. So, from the materials available here, I am inclined to hold that on the unfortunate morning on 24.2.1999 the accused had entered into a bathroom where the prosecutrix was taking her bath, had physically assaulted her for the purpose of committing the rape and thereafter he had committed rape on her thereby satisfying the ingredients to constitute the offence of rape. It is unfortunate that a brother had raped a sister and when a human being losses the rationality, his conduct would be worse than that of an animal and that is why scholars say that human being is a rational animal. When rationality is lost, he forgets the society, forgets the relationship and commits henus acts which even an 11 CRL.A.NO.1722/03 animal may not do. 16. Now turning to the question of sentence. It is submitted by the learned counsel that the accused is aged about 40 years now and he has a family to be looked after and some leniency should be shown. 17. The court below has awarded the imprisonment of 10 years under Section 376 of I.P.C. The minimum punishment of 7 years have to be imposed unless there are special reasons. It is absent here. I am inclined to reduce the imprisonment from 10 years to 7 years and retain the punishment under Section 451 with a direction that sentences shall run concurrently. I am inclined to reduce the fine amount from Rs.50,000/= to Rs.30,000/= and on realisation of the fine amount, let the amount of Rs.15,000/= be given to the prosecutrix -Pw1. 18. In the result, the criminal appeal is disposed as follows: 1. The finding of guilt under Sections 376 and 451 of I.P.C is confirmed. 2. The sentence is modified and the accused is 12 CRL.A.NO.1722/03 sentenced to undergo R.I for a period of 7 years and to pay a fine of Rs.30,000/= for the offence under Section 376 of the IPC and to undergo 2 years imprisonment under Section 451 of IPC and to pay a fine of Rs.1,000/=. The sentences shall run concurrently. If the fine amount is realised, let Rs.15,000/= be given to the prosecutrix - PW1 and in default of payment of the fine, there will be further imprisonment for a period of three months under Section 376 and one month under Section 451 of the IPC. The accused will be entitled to set off as contemplated under Section 428 of the Cr.P.C M.N. KRISHNAN, JUDGE cl 13 CRL.A.NO.1722/03