IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1192 of 2001() ------------------------------ CRA.73/2000 of ADDL. SESSIONS COURT, ALAPPUZHA SC.45/1994 of ADDL.ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- PONNAPPAN, S/O.CHELLAPPAN, BANDUCHIRAYIL VEEDU, PURAKKAD VILLAGE, WARD NO.2, PURAKKAD PANCHAYAT, ALAPPUZHA. (DIED) BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1192 of 2001 -------------------------------------- Dated this the 1st day of December, 2008. ORDER Heard counsel for revision petitioner and Public Prosecutor. 2. Learned counsel for revision petitioner reported death of revision petitioner on 29.11.2001. Learned Public Prosecutor, on getting instruction from the Sub Inspector, Ambalapuzha has reported that revision petitioner committed suicide on 29.11.2001. Though the fact of death of revision petitioner was reported by the learned counsel on 19.9.2008, until now no relative of the revision petitioner has come forward to continue the proceeding. But, Section 394 of the Code of Criminal Procedure dealing with abatement of appeals on the death of the appellant cannot apply to criminal revisions and hence, question of legality, regularity and propriety of the judgment of the courts below or the proceeding which culminated in the judgment under challenge are to be considered by this Court. 3. Revision petitioner was charge sheeted for offence punishable under Section 376 of the Indian Penal Code, case is that on 18.4.1993 revision petitioner committed rape on PW2, a mentally retarded girl aged about 16 years. First information regarding the alleged incident was given by PW1 on 19.4.1993 at about 8.30 a.m.. She had left PW2 at the house of one Sukumaran the previous day at about 4 p.m., gone to the shop, returned by 5.30 p.m. and found Crl.R.P.No.1192/2001 2 PW2 weeping. Wife of Sukumaran and others also saw PW2 in a depressed mood. PW2 informed PW1 by gestures, that uncle (revision petitioner) raped her in the nearby urinal shed. According to PW1, she along with PW2 came to the Government Hospital, Ambalapuzha but since the lady doctor was on leave, they were asked to go to Medical College Hospital, Alappuzha and accordingly they went to that hospital. PW10, Medical Officer examined PW2 and issued Ext.P7. According to PW10, PW2 was brought by PWs 1 and 3 to that hospital on 18.4.1993 at about 10 p.m. with the allegation that she was raped by a neighbour by name Ponnappan (revision petitioner). PW10 recorded that words of PW2 were not legible but she had conveyed by talk and gesture that she was taken to a lonely place and was raped. The findings noted by PW10 have been recorded in Ext.P7. PW10 however, did no give any definite opinion that PW2 was subjected to rape. But to the question whether slight penetration was possible, PW10 answered in the affirmative. PW10 also answered there may not be rupture of hymen in all cases of rape. PW1, mother of the victim (PW2) gave evidence regarding the circumstances in which PW2 was left at the house of Sukumaran on the evening of the day of incident. PW2 was examined in the court with the help of an expert and her evidence was to the effect that revision petitioner subjected her to sexual intercourse. PWs 4 to 6, neighbours who were examined to say that PW2 was seen in the company of the revision petitioner did not support the prosecution. PW7 however stated that he saw PW2 on the day of incident by about 7 p.m., weeping. 4. It is in the light of evidence given by PW2 with the help of an expert Crl.R.P.No.1192/2001 3 and Ext.P7 that the courts below found that revision petitioner, without the consent of PW2, had sexual intercourse with her on the relevant day and time. On going through the evidence, I do not find any reason to interfere with that finding. Conviction therefore, requires no interference. 5. Revision petitioner was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/-. The substantive sentence has become unexecutable in view of the death of the revision petitioner. Learned counsel requested that the sentence of fine may be set aside. But on going through the evidence and considering the facts and circumstances of the case including that PW2 is a mentally retarded girl, I am not inclined to accept that request. In the light of what I have stated, this revision petition is closed. Crl.M.P.No.5710 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1192/2001 4 Thomas P.Joseph, J. Crl.R.P.No.1192 of 2001 ORDER 1st December, 2008