IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 CRL.A.No. 1572 of 2005() ------------------------ AGAINST THE JUDGMENT DT. 25.6.2005 IN SC.187/2003 O N THE FILE OF ADDL.SESSIONS JUDGE, FAST TRACK COURT I (ADHOC) MANJERI. .................... APPELLANT/ACCUSED: -------------- AYYAPPAN, S/O. VELU, HOUSE NO.96-B2, GUDDALLUR AMSOM AND DESOM, TAMIL NADU, NILAGIRI. BY ADV. SRI.K.P.MUJEEB RESPONDENT/STATE --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ. ---------------------------------------- Crl.Appeal No.1572 OF 2005 ---------------------------------------- Dated this the 22nd day of September, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.187/2003 on the files of the Additional Sessions Judge, Fast Track Court No.I, (Ad hoc), Manjeri. 2. The case of the prosecution in brief is as follows: The accused, who is none other than the father of PW1, committed rape on her on three successive days from 11.5.2001 against her will and without her consent and she became pregnant. The offence took place while they were residing in a rented house bearing door No.25/123 of Perinthalmanna Municipality. On those days, the mother of PW1 was away. PW1's uncle, PW2, came to her house and found her pregnant. An young child was also found there. As her marriage did not take place, PW2 questioned PW1, how she became pregnant. On her request, PW2 took her to his house and in the night she Crl.Appeal No.1572/2005 2 narrated the harrowing experience, she had at the hands of her father from 1995 onwards. She has to undergo medical termination of pregnancy twice and she gave birth to two children out of her relationship with father, which was against her will and consent. Next day, that is on 8.1.2002, PW2 took PW1 to the Perinthalmanna Police Station and the Sub Inspector of Police recorded Ext.P1 First Information Statement and registered Ext.P8 First Information Report. PW8, Circle Inspector of Police, took over the investigation, which was completed by PW9, who filed the final report before the Judicial First Class Magistrate's Court, Perinthalmanna. The learned Magistrate on finding that the offence alleged against the appellant was exclusively triable by a Court of Sessions, committed the case to the Sessions Court, which in turn was made over to the Fast Track Court No.1 (Ad hoc), Manjeri. 3. The appellant pleaded not guilty to the charge framed against him for the offence under Section 376 of the IPC. The prosecution to prove its case examined PWs1 to 10 and produced Exts.P1 to P10 . The defence contended that sex was consensual Crl.Appeal No.1572/2005 3 and delay is fatal to the prosecution case. But overruling the contentions of the defence, the learned Sessions Judge found the appellant guilty of the offence under Section 376 of the IPC and sentenced the appellant to undergo imprisonment for life and also to pay a fine of Rs.Two lakhs and in default he was to under go imprisonment for a further period of five years. Feeling aggrieved by the conviction and sentence, the appellant has preferred this Criminal Appeal. 4. We heard Sri.K.P.Mujeeb, learned counsel for the appellant and Sri.Noble Mathew, learned Public Prosecutor, for the State. The learned counsel for the appellant took us through the deposition of the witnesses and the documents produced in this case. The learned counsel for the appellant submitted that PW1 has consented to the relationship. She is a major and therefore, no offence of rape will lie against him. Further, the First Information in this case was lodged after the delay of eight months. Therefore, the same will weaken the prosecution case and the appellant is entitled to get the benefit of doubt. The learned counsel also pointed out that PW3, who was stated to be Crl.Appeal No.1572/2005 4 aware of the commissions and omissions of the accused, did not corroborate the version of PW1. So, in the absence of corroboration, it is unsafe to sustain the conviction based on the solitary evidence of PW1. The learned Public Prosecutor, on the other hand, submitted that the victim was put under fear of death, as evident form her deposition, if she spoke about the truth to others. Therefore, the silence or non-resistance cannot be considered as manifestation of consent. 5. Before referring to the rival contentions, we will presently refer to the deposition of the witnesses. PW1 stated that up to 10th standard she has studied in Kerla. She stayed along with her uncle, PW2, and another, in their family house. Her parents were residing at Gudallur in Tamil Nadu. After the examination of 10th standard, she along with her aunt and grandmother, went to Gudalloor. Soon she was sent to study Typewriting. After the result of the SSLC examination was published, she joined for +1 Course. She passed +2 and joined in a hospital as trainee to work as Health Assistant. While she was studying for +2 course, her father started misbehaving Crl.Appeal No.1572/2005 5 towards her. At that time, she fell in love with one Mr.Radhakrishnan. He approached PW1's family proposing to marry her. After the said proposal, her father started outraging her modesty. When she told, she will tell about it to her mother, the appellant said he is doing it with her mother's consent. The misbehavior continued and he started raping her during night. When she told her mother, it is stated, mother also told her to oblige her father. If she does not give her consent, father used to beat her cruelly even using his shoes. Before the public of the locality, her father declared that she had illicit relationship with Mr.Radhkrishnan and therefore, he is beating her. The sexual relationship at night continued and her mother never objected to it. While she was studying for +2, she became pregnant. She was taken to Gudallur and the pregnancy was medically terminated. For some time, there was no problem from the side of her father. But, again he started his misconduct and she again became pregnant when she was going to complete the +2 course. This time she gave birth to a boy in Gudallur hospital. Whenever she opposed the advances of her father, he would tell, he will kill her and go away. He used to carry poison or knife in his hand to Crl.Appeal No.1572/2005 6 threaten her. In the hospital records, as stated by the parents of PW1, name of the father of the child is given as Radhakrishnan. The above ordeal of PW1 continued unabatedly. It is not necessary to give all the details of the misbehavior of the appellant towards PW1. Finally, the family came back to Perinthalmanna and started living in a rented building near the hospital, in which PW1 was working. While so, one evening her mother went to Gudallur along with her younger sister. Mother was away for three days. On all the three days, the appellant raped PW1 and she became pregnant out of the relationship, which continued even after her mother returned. While so, PW2 came to the house of the appellant. On finding that PW1 was pregnant though she was unmarried, PW2 enquired who is responsible. Then she said, if he saves her, she can tell the details. Thereupon PW2, the uncle of PW1 took her to his house along with the child. She told the real facts regarding her pregnancy. Next day, PW2 took PW1 to Perinthalmanna Police Station and Ext.P1 FIR was lodged. Though the defence extensively cross-examined her, nothing was brought out to discredit her version. PW2 also gave evidence corroborating the Crl.Appeal No.1572/2005 7 deposition of PW1. PW3, mother of PW1 and wife of the appellant, turned hostile and did not support the prosecution. PW4 is the doctor, who examined the appellant and gave Ext.P4 potency test certificate. PW5 is the doctor, who examined PW1, immediately after the registration of the crime and gave Ext.P5 wound certificate. PW6 is the Village Officer who prepared the scene plan and PW7 is a witness to Ext.P7 scene mahazar. Ext.P8 FIR was registered by PW8 Sub Inspector of Police. PW9 took over the investigation and completed substantial portion of investigation. PW10 completed the investigation and filed the final report. 6. Going by the deposition of PW1, the contention of the defence that she consented to the sexual intercourse cannot be accepted. PW1 has deposed that the appellant threatened her that in case she states the truth to anybody, he will kill her and go away. She has also stated that PW3 also compelled her not to tell the truth. Her mother told her that if her uncles knew about the incident, they will kill the appellant and there will not be anyone to look after them. So, by threat and coercion from the Crl.Appeal No.1572/2005 8 part of the appellant and PW3, she was prevented from speaking and she was able to move the police only when PW2, her uncle, gave her courage and support. Therefore, the contention regarding consent and delay raised by the defence cannot be accepted. PW3 has turned hostile to the prosecution. But, that was not in anyway affected the prosecution case. We believe the version of PW1. It has got of the ring of truth and we find no reason for her to falsely implicate her father. No girl will do that. We notice that the learned Sessions Judge has rightly found the appellant guilty of the offence under Section 376 of the I.P.C. relying on the evidence of PW1. Having regard to the facts of the case, appropriate sentence has been imposed on him. We find no reason to interfere with the same also. In the result, the Criminal Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.Q.BARKATH ALI, JUDGE) ps