IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 CRL.A.No. 2933 of 2008() ------------------------ SC.646/2006 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CP.149/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): APPELLANT ----------------------- VIJAYAN, S/O.KANDUKUTTY, KARIYANGADAM HOUSE, VADAKKA THURAVU, THORAVU VILLAGE, C.NO.7063, CENTRAL PRISON, VIYYUR. BY ADV. SRI.SAMEER P.M.(S.B) RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA PUBLIC PROSECUTOR SRI C.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.2933 of 2008 ---------------------------------------------- Dated 27th March, 2009. JUDGMENT Accused is the appellant, who is undergoing imprisonment in pursuance of the judgment dated 14.7.2007 in S.C.No.646 of 2006 of the court of Additional Sessions Judge, Fast Track Court No.II (Adhoc), Thrissur, for the offence under section 376 of the Indian Penal code. 2. The specific allegation of the prosecution against the accused is that during the period from March and April 2006 at the house No.VI/353 of Pudukkad Grama Panchayat, the accused committed rape on PW1 aged 14 years and thereby committed the offence punishable under section 376 IPC. On the basis of the said allegation, crime No. 418/2006 was registered in the Pudukkad police station for the offence under section 376 IPC. 3. On completion of the investigation, final report was filed before the court of Judicial First Class Magistrate, Irinjalakuda whereupon C.P.No. 149/2006 was instituted. The Crl.A.2933/08 -:2:- learned Magistrate, by his order in the above proceedings, committed the case to the Sessions Court from where the case was made over to the trial court for disposal. On appearance of the accused, who was produced from custody, the trial court , after hearing him and the prosecution, framed a formal charge under section 376 of IPC which was read over and explained to the accused and he pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 10 were examined from the side of the prosecution and also produced Exts.P1 to P8 as documentary evidence. The incriminating circumstances, which emerged during the evidence of prosecution, when put to the accused under section 313 Cr.P.C., he denied the same. The accused maintained the defence of total denial. After hearing both the prosecution as well as the defence, the trial court found that accused had sexual intercourse with PW1, a girl below consenting age and thus found that he was guilty of the offence under section 376 IPC and accordingly he was convicted. Consequent to the conviction, after hearing the accused on the question of Crl.A.2933/08 -:3:- sentence, the trial court sentenced him to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for a further period of two years. It is further ordered that, if the fine amount is realised, Rs.15,000/- shall be given to PW1 as compensation. Set off was allowed. It is the above finding, conviction and sentence challenged in this appeal by the accused from the jail as he is undergoing imprisonment pursuant to the above judgment. 4. As the appeal is preferred from the jail, this court appointed Advocate Sri. Saneer P.M. as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard the learned counsel appearing as State Brief for the appellant and also Sri C.M.Nazar, the learned Public Prosecutor. I have also perused the evidence and other materials on record. 5. The specific case of the prosecution is that PW4, the mother of the victim, was deserted by the victim’s father Viswambharan, the legally wedded husband of PW4, and therefore, one Thankappan intervened in the life of PW4. Since Crl.A.2933/08 -:4:- the death of Thankappan, the accused joined the company of PW4-the mother of PW1, in spite of the fact that the marital relationship between her mother and father Viswambharan exists. According to the prosecution case, the victim – PW1, PW4 and the accused were residing at Vadakke Thoravu at Pudukkad. The victim was attending 8th standard in Government Higher Secondary School, Kannambathur. During the summer vacation of 2006, they shifted to a place called Chengalur connected with the employment of the accused, a goat-master. They resided there till the closure of the said summer vacation. According to the prosecution, PW4 – the mother of the victim/PW1 was employed in a tile factory and she goes early for work and returns by 5.30 p.m.. The victim as well as the accused alone were there at the house at Chengalur. The accused used to come to the house for lunch and spends noon hours at home. It is the specific case of the prosecution that while the mother of the victim was engaged in the tile factory connected with her work, the accused and the victim alone were in the house and utilizing such situation, the accused maintained Crl.A.2933/08 -:5:- sexual relationship with the victim who was below the age of 16 years and who was incapable to know the seriousness and consequences of the same. She was compelled to subdue for the sexual intercourse by the accused. Due to lack of correct understanding, ignorance and fear, PW1 did not bring the matter to the notice of her mother PW4. When they shifted their residence to Vadakke Thoravu at Pudukkad during June 2006, and thereafter, the accused continued the illicit relationship with the victim while PW4 was attending her work. Thus according to the prosecution, during September 2006, the victim developed abdominal pain. Consequently she was taken to a doctor, who after examining her, opined that she was pregnant. It was only thereafter, PW1 disclosed the affairs to her mother. Thus, she lodged Ext.P2 statement to the police based upon which Ext.P2 (a) FIR was registered. PW6 examined the victim and issued Ext.P4 certificate disclosing that the victim was pregnant about 6 months. PW1, when examined, had deposed before the court in terms of the prosecution case. Ext.P1 is the scene mahazar to which PW2 and 3 are the attesting witnesses. When they Crl.A.2933/08 -:6:- were examined in the court, they supported the prosecution case and thus proved the scene of occurrence. PW4 - the mother of the victim, also deposed in terms of the prosecution case. PW5 the neighbour also supported the prosecution case and identified the accused. As indicated earlier, after the registration of the crime, PW1 was referred to PW6, the doctor who examined the victim and issued Ext.P4 certificate. So also, after examining the accused, PW6 issued Ext.P5 potency certificate. It was PW7 who recorded Ext.P2 F.I.Statement of PW1 and in turn registered Ext.P2(a) FIR. Ext.P3 is the extract of the admission register maintained in the Government Vocational Higher Secondary School, Pudukkad where the victim was studying. As per Ext.P3, the date of birth of the victim is 15.8.92. Thus Ext.P3 was proved through PW8, the Principal in charge of the said school. Ext.P6 is the site plan prepared by PW9 Village officer, Chengalur. PW10 is the C.I. of Police who conducted the investigation and prepared Ext.P7 remand report and Ext.P8 arrest memo. On the basis of the above evidence and materials, the trial court found that the Crl.A.2933/08 -:7:- accused is guilty for the offence charged against him. 6. The main defence, taken before the trial court as well as this court, is to the effect that in the given facts and circumstances of the case, it can safely be concluded that the alleged sexual intercourse was taken place with the consent of the victim. The trial court, after considering the entire materials and evidence on record, rejected the above plea raised by the accused. In support of the above plea, it is pointed out that, going by the prosecution case and the evidence on record, there is no consistent case for the prosecution regarding the age of the victim. During argument it is fortified that as per Ext.P2 and P2(a), according to the victim, her age was 14. But in Ext.P4 medical certificate, the age is shown as 16 years. During the evidence of PW1, she has deposed that at the time of tendering evidence, she was at the age of 17 years. PW4, the mother of PW1 – the victim, also stated that during the trial she was at the age of 17 years. So, on the basis of the said variation regarding the age, which is manifest from the records relied on by the prosecution itself, it is argued that the accused Crl.A.2933/08 -:8:- cannot be convicted for the alleged offence, especially, in the light of the other attendant circumstances, which pointing the fact that the victim was a consenting party. But the trial court , based upon Ext.P3 certificate, came into the conclusion after considering various authorities on this point that, the victim, at the time of the alleged offence, was hardly 14 years age and also held that the decision reported in Joseph v. S.I. of Polcie, Munnar (2005(2) KLT 269) will not apply to the facts involved in this case. It is on record that at the time of the alleged incident, the victim was studying in 8th standard. From the other documents, which referred to above also, it is alleged that she was subjected to sexual intercourse during the summer vacation period, namely, March and April of the year 2006. It is also relevant to note that Ext.P2 was launched on 5.10.2006 and consequently the F.I.R. was registered on the same day. It is thereafter the victim was referred to PW6 for medical examination. It is also a fact , which is beyond dispute, that she was the mother of a baby having 4 months at the time of the trial. PW1 explained before the court during her examination Crl.A.2933/08 -:9:- that the sexual affairs between herself and the accused has not been disclosed to PW4, her mother, out of fear and ignorance. Since the victim was studying in the 8th standard at the relevant time, the finding of the court below based upon Ext.P3, appears to be correct and no contra evidence was adduced or such finding was not challenged based upon any convincing materials or evidence. Therefore, I have no hesitation to hold that the finding of the court below regarding the age of the victim at the time of the alleged incident is absolutely correct. 7. In the light of the finding of the court below, regarding the age of the victim and, as approved by this court, there is no scope for further contention of the defence based upon other circumstances that the victim was a consenting party for the sexual intercourse. Going by the evidence of PW1 and PW4, it can be seen that they have correctly deposed the entire incident before the court below and they have also explained the delay occurred in reporting the matter before the police. 8. Five grounds are raised by the defence to Crl.A.2933/08 -:10:- disbelieve the version of PWs 1 and 4. According to the defence, the father of the victim – Viswambharan, had animosity towards the accused as the accused maintaining illicit relationship with his legally wedded wife , PW4. Another ground is that PW4, the mother had also animosity towards the accused as the accused derailed from maintaining relationship with PW4 and had sexual relationship with her daughter PW1. The 3rd ground raised is that the victim herself was inimical to the accused as he has not married her mother. The 4th ground is that there is a dispute between the accused and PW4 regarding the maintenance to be paid to PW4 by the accused. Fifth ground is that the victim was maintaining illicit relationship with the Rajendran, a neighbour, and the accused had knowledge regarding the same. The above grounds appear to be only suggestions and as correctly pointed out by the trial court that, if the same are admitted, how can the minor girl was made scapegoat for the rivalry among the parties. In this connection, it is relevant to note that, regarding the allegation that the accused subjected PW1 to sexual intercourse and the Crl.A.2933/08 -:11:- illicit connection, the evidence of PWs 1 and 4 are intact and though they were vigorously cross examined, nothing was brought to discredit their version. Therefore, the grounds raised by the defence against the evidence of PW1 are liable to be rejected. Another ground raised is with respect to the delay in making the complaint to the police. I have already discussed the reason for time taken to lodge the complaint before the police and PW1 and 4 satisfactorily explained the same. In the light of the above circumstances and the materials referred, I am of the view that the finding of the court below regarding the guilt of the accused is absolutely correct and no interference is called for and accordingly, the order of conviction is confirmed. 9. Regarding the sentence, the learned counsel submitted that a lenient view may be taken. Considering the over all facts and the particular circumstances involved in the case, I am of the view that certain modifications can be made with respect to the sentence. As per Section 376 IPC, the maximum punishment contemplated is for a term of life or for a term which may extend to ten years and also be liable to Crl.A.2933/08 -:12:- impose fine and the minimum sentence is not less than 7 years. In the light of the facts mentioned above, I am of the view that the minimum sentence will be sufficient to meet the ends of justice and also fine as awarded by the court below. Thus accordingly, the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.25,000/- as directed by the court below and the default sentence is reduced from two years to one year. Set off is allowed under section 428 Cr.P.C. In the result, this appeal is disposed of confirming the conviction but subject to the above modification with respect to the sentence. V.K.MOHANAN, JUDGE. kvm/- Crl.A.2933/08 -:13:- V.K.MOHANAN, J. CRL.A. 2933 OF 2008 JUDGMENT Dated: 27.3.2009