IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 CRL.A.No. 2931 of 2008() ------------------------ SC.53/2007 of ADDL. SESSIONS COURT (ADHOC-II), THODUPUZHA CP.10/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... APPELLANT(S): PETITIONER ------------------------ LIJU,C.NO.2733, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. MS. AMINA BEEVI(STATE BRIEF) RESPONDENT(S): RESPONDENT ------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR MR. C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------- Crl.Appeal No.2931 of 2008 --------------------------------- Dated this the 30th day of March, 2009 J U D G M E N T The sole accused in S.C.No.283/2003 on the file of the Judicial First Class Magistrate Court II, Todupuzha is the appellant herein who challenges his conviction and sentence under Sections 366(A), and 376 IPC. 2. Originally, altogether there were four accused in crime No.165/2002 of Todupuzha Police Station where the offences alleged are under Sections 366(A), 368 and 376 r/w 34 IPC and after investigation a formal report was filed against all the accused. On filing the final report before the JFCM Court II, Todupuzha, the learned Magistrate took cognizance and instituted C.P.No.10/2003 and by his proceedings dated 24.6.2002 committed the case to the Sessions Court, wherein the case was received and instituted as S.C.No.53/2007 from where the case was made over to the IV Additional Sessions Court (AD-HOC-II), Todupuzha. When the accused appeared before the court a formal charge was framed for the offences punishable under Sections 366(A), 368 and 376 r/w 34 IPC, after hearing all the Crl.Appeal No.2931 of 2008 2 accused and the prosecution. When the charge was read over and explained to the accused, they pleaded not guilty consequent to which the prosecution has adduced evidence. Thus, CW1 was examined in chief as PW1 on 17.7.2006 and when the case was taken after lunch for cross examination of PW1, the present appellant absconded. Hence, the trial could not be continued. Therefore, coercive steps were taken to procure the presence of the present appellant. As the presence of the present appellant could not secured in spite of the steps taken, the case against the present appellant was split up and the case against the other accused was continued. Consequently, by judgment dated 23.1.2007, the other accused were found guilty of the offence punishable under Section 368 r/w 34 IPC and accordingly, they were sentenced to undergo simple imprisonment for five years each and to pay a fine of Rs.10,000/- each and in default to undergo simple imprisonment for three months each. 3. Thus, the case against the accused No.1, the present appellant, was refiled as S.C.No.53/2007. Subsequently, the accused was produced before the trial court on 26.3.2007 pursuant to his arrest and thus the case was proceeded further, during which 15 witnesses were examined from the side of the Crl.Appeal No.2931 of 2008 3 prosecution and Exts.P1 to P12 were marked. When the incriminating circumstances put to the accused/appellant, he denied the same. The defence set up by the appellant/accused as discernible from his 313 statement is to the effect that PW5- the victim joined with him voluntarily and he had not forcibly taken the victim along with him. According to the accused, PW5 complained to the accused that there was several problems in her house and hence, she was coming with the accused and thus the appellant/accused denied the allegation that he had taken PW5 with him. No evidence was adduced by the defence. 4. In fact, crime No.165/2000 was registered in the Todupuzha Police Station on the basis of Ext.P1 FI statement given by PW1, father of the victim to PW11, the head constable attached to the said police station, who recorded the same on the basis of which he registered Ext.P5 FIR. PW2 is the mother of the victim. PW3 is a neighbour of the victim. According to her, she had aware of the affairs between the accused and the victim as the accused was working along with her. PW4 is another witness who is a friend of the accused. PW5 is the victim, the daughter of PWs 1 and 2. PW 6 is an attesting witness to Ext.P2 scene mahazar whereas Ext.P3 is with respect to the house Crl.Appeal No.2931 of 2008 4 where the victim and the accused resided together and PW7 is an attesting witness to that mahazar. PW8 turned hostile. Ext.P4 is another scene mahazar with respect to the house where the victim and accused resided together and committed the offence and PW9 is an attesting witness to that Ext.P4 mahazar. PW10 turned hostile. PW11 is the head constable attached to the Todupuzha Police Station who recorded the Ext.P1 FI statement from PW1 and in turn registered Ext.P5 FIR. PW12 is the then Circle Inspector of Police who prepared Ext.P6 scene mahazar of the place of occurrence and Ext.P7 mahazar with respect to the autorikshaw which used by the accused and the victim. Ext.P8 is the photostat copy of the Secondary School Leaving Certificate of the victim which proved through PW12. PW13 is the staff attached to the Todupuzha Municipality and he gave evidence on the basis of Ext.P9 authorisation letter and produced Ext.P10 extract of the birth register maintained in the Todupuzha Municipality which shows that the age of the victim at the relevant time was 15 years. PW14 is the Doctor attached to Taluk Head Quarter Hospital, Todupuzha who issued Ext.P11 potency certificate, after examining the accused/appellant. Similarly, PW15 is the Doctor attached to the Taluk Head Quarter Crl.Appeal No.2931 of 2008 5 Hospital who issued Ext.P12 medical certificate after examining the victim, PW5. 5. PW1, the father of PW5-victim when examined deposed in terms of the prosecution case and as stated by him before the police as per Ext.P1 FI statement. According to PW1, the victim was his younger daughter studying for plus one in N.S.S.H.S., Manakkadu and at that time she was only at the age of 15 years. According to him, the date of birth of the victim was 31.5.1986. According to PW1, he came to know that the accused used to tease her while she was going to school and as a result of that her study in school was discontinued from the month of February, 2002. He was conducting a tea shop. On 2.4.2002 at about 12 noon he was called by his wife, PW2 and told that the accused had taken PW5 in an autorikshaw. Thereafter, PW1 came to his house and thereafter went to the house of the accused and met his parents. According to PW1, he informed the parents of the accused that his daughter, PW5 the victim, is a minor at that time and according to PW1 he was assured by the parents of the accused that they would send back his daughter to his house. But contrary to the words, the girl was not send back and hence PW1 again went to the house of the accused. But Crl.Appeal No.2931 of 2008 6 nobody was there and according to him, on his enquiry the girl was taken to some other place by the accused and his relatives and therefore he went to the police station on 5.4.2002 and lodged Ext.P1 FI statement. He had also deposed before the court that he got the victim-PW5 from the Todupuzha Police Station on 17.4.2002. 6. PW2 is the mother of the victim and wife of PW1. She had also deposed in terms of the deposition given by PW1. According to PW2 as stated by PW1, the victim discontinued her studies and she was in the house on 2.4.2002 and at about 12 noon while PW2 and PW5 were in the house she heard a sound of an autorikshaw from the road and when the autorikshaw stopped near the house, she had witnessed the accused taking PW5 to the autorikshaw and when she reached to the spot, the autorikshaw was driven away. Consequently, she had informed PW1 regarding the incident. 7. The age of the victim is below the age of 16 years and there was no serious dispute regarding this aspect. What alleged by the defence is to the effect that the accused was not aware of the age of the victim. Ext.P8, photostat copy of the Secondary School Leaving Certificate of PW5 and Ext.P10 extract Crl.Appeal No.2931 of 2008 7 of birth register maintained in the Todupuzha Municipality proved through Ext.P13 shows that age of the victim was 15 years on the date of the incident i.e., on 2.4.2002. When PW5 was examined she had deposed that she was born on 31.5.1986 and her date of birth was known to the accused. Thus, on the basis of evidence of PWs 1, 2, 5 and 13 corroborated by evidence of Exts.P8 and P10. Prosecution has established that PW5 was below 16 years age as on 2.4.2002. The prosecution has further established that PW5 the victim who was below the age of 16 was under the custody and care of PWs 1 and 2, the parents. 8. Though the accused took a plea to the effect that PW5 voluntarily joined with the company of the accused and the accused had also denied the allegation that the accused kidnapped the girl from the custody from PWs 1 and 2, when PW5 was examined she had deposed that she used to travel in the autorikshaw of the accused and the accused used to wait for her in the bus stand. It is also the deposition of PW5 that the accused told her that he would marry her. It is also came out in evidence that PW5 told about this affair to her mother PW2. Then she advised her to pay care for study, for which she was sent to school. PW5 specifically deposed that on 28.3.2002, she Crl.Appeal No.2931 of 2008 8 met the accused in a temple near the house and at that time accused told her that when he comes and calls, she should come with him. Thus, on 2.4.2002, as directed by the accused PW5 went along with the accused in the autorikshaw brought by him. She had also stated that the accused asked her to accompany him and he would marry her. Thus, according to PW5, she went along with the appellant/accused and resided in various houses which are belonging to the close relatives of the accused. PW5 has categorically deposed that at 8.30 p.m. on the date of occurrence, she was taken to the house of one Ganesan, the father's brother of the accused and they reached the house of Ganesan at 12 O' clock in the night. According to her, one Ravi, who was accompanying them returned in the same day night. PW5 and accused stayed in that house in one room. On the next day, at about 12 O' clock in the night, father's brother of the accused Ravi and another person by name Pahzuthara Babu came to that house and the accused as well as PW5 was taken to the house of one Baby at Koothattukulam and they reached in that house by 3 O' clock and in that house also both PW5 and the accused stayed in one room. On the next day morning again PW5 and accused taken to the house of one Sajeevan at Crl.Appeal No.2931 of 2008 9 Muttukadu. The said Sajeevan was the uncle of the accused. According to PW5, she resided along with the accused in that house till 17.4.2002 and they were staying in one room. 9. From the above materials, especially in the light of evidence of PWs 1, 2, and 5 it can be seen that PW5, a minor girl especially who is below the age of 16 was taken by accused from the custody of PWs 1 and 2, the parents of PW5 and resided together in various houses. There is no scope for legal defence regarding the allegation of the prosecution since even according to the accused in his 313 statement the stand taken to the effect that the victim voluntarily came along with the accused and resided with the accused in various places. It cannot be swallowed the contention of the accused that he was not aware of the age of the victim with whom he had prior acquittance and affair. Even according to PW5, she had discussed her age to the accused. 10. Regarding the sexual intercourse with PW5, the victim, there is evidence of medical experts namely, PWs 14 and 15 which are supported by the documentary evidence such as Exts.P11 potency certificate and P12 medical certificate. PW15 during her examination on the basis of Ext.P12 medical certificate Crl.Appeal No.2931 of 2008 10 deposed that she had examined PW5 and observed that the hymen of PW5 was torn and as per Ext.P12 she had opined that there is evidence of recent sexual act but there is no evidence of any sign of resistance. When PW5 was examined, she deposed that she had resided along with the accused in various houses and that too in a single room. She had also deposed that She had also deposed that During cross examination it was asked to her Innocence of the victim is clear from the answer given to a question during her cross examination that Crl.Appeal No.2931 of 2008 11 During cross examination she had stated that The next question from the accused was Deposition continues. It is on the basis of the above evidence and materials the trial court came into the conclusion that the accused has committed the offences punishable under Section 366(A) and 376 IPC. 11. Challenging the above finding and order of conviction and sentence, the accused preferred the appeal from the jail while he is undergoing the imprisonment pursuant to the above Crl.Appeal No.2931 of 2008 12 judgment. As the appellant undergone imprisonment and this appeal is preferred from the jail, Smt.Amina Beevi is appointed as State Brief to prosecute the appeal for an on behalf of the appellant. Thus, I heard Smt.Amina Beevi, learned counsel appearing for the appellant and also the learned public prosecutor. 12. The learned counsel for the appellant vehemently argued that there is delay in lodging the complaint before the police station by PW1. According to the learned counsel there is no explanation for such delay. It is also argued by the learned counsel that going by the evidence of PW5, it can be seen that PW5 herself voluntarily joined in the company of the accused and even if the entire evidence is admitted as true, what is inferable is the accused came to the house of the victim as per their earlier understanding and PW5 went along with the accused and therefore according to the learned counsel it cannot be said that the accused/appellant forcibly took PW5 from the custody and care of PWs 1 and 2. It is also argued that the medical evidence are not sufficient to come to a conclusion that the accused had committed offence punishable under Section 376 IPC. Therefore, according to the learned counsel, the impugned judgment is Crl.Appeal No.2931 of 2008 13 liable to be set aside. 13. On the other hand, supporting the finding and the order of conviction and sentence of the trial court, learned public prosecutor submitted that evidence of PW5 alone is sufficient to convict the accused, regarding the removal of PW5 from the custody of PWs 1 and 2. It is also submitted that even if the sexual intercourse was with the consent of PW5, the accused cannot escape from the penal liability since the victim is below the age of 16. Thus, according to the learned public prosecutor, there is no scope for any interference with the order of conviction and sentence passed by the trial court. 14. I have carefully considered the arguments advanced and also perused the evidence and materials on record and the relevant evidence and materials I have already referred above. The points raised by the learned counsel for the appellant is liable to be rejected as the same are untenable especially in the light of the plea taken by the defence through his 313 statement. PWs 1 and 2 had categorically stated about the removal of PW5 from their custody and care. PW5 deposed before the court that though she had some affairs with the accused/appellant, she had subsequently realised the real habit and conduct of the accused. Crl.Appeal No.2931 of 2008 14 But in the meanwhile, she was subjected to sexual intercourse. The evidence consists of testimonies of PW15 and Ext.P12 would show that the victim PW5 was subjected to sexual intercourse and Ext.P12 medical certificate would show the materials in support of the opinion given by PW15. The evidence of PW5 and the medical evidence are sufficient to hold that PW5 was subjected to sexual intercourse. 15. From the evidence of PW5, it is crystal clear that she was misled by giving offer to marriage and thereafter taken away from the lawful custody and care of PWs 1and 2 and thereafter subjected to sexual harassment. In the light of the above fact, the finding of the court below that the prosecution had succeeded in proving the guilt of the accused under Sections 366(A) and 378 IPC appears to be correct, based upon the materials, and therefore no interference is warranted, consequently, the order of conviction is confirmed. 16. Regarding the sentence, it appears that though the court below has convicted the accused/appellant under distinct offences and though separate sentences were awarded, the sentences ordered so will run concurrently. It is a case where a plus one student who is only at the age of 15 was taken from the Crl.Appeal No.2931 of 2008 15 lawful custody and care of her parents and subjected her to sexual intercourse on various occasions. Therefore, the accused/appellant deserves no leniency. Hence no interference required with respect to the sentence also. In the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. bkn/-