IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 CRL.A.No. 1094 of 2001() ------------------------ SC.728/1999 of ASSISTANT SESSIONS COURT, NEYYATTINKARA .................... APPELLANT/ACCUSED: -------------- PEETHAMBARAN, S/O. SADASIVAN, PARAYIL VEEDU, VATTAVILAKOM, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM. BY ADV.SRI. G. SUDHEER BY ADV. SRI.J.DEVADANAM SRI.P.K.VIJAYAMOHANAN SRI.PRAMOD J.DEV RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CRL.A.No.1094 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of December, 2008 JUDGMENT The appellant, who stands convicted of the offence punishable under Section 376(f) of the Indian Penal Code, has preferred this appeal challenging the order of conviction and sentence passed against him by the Assistant Sessions Judge's Court, Neyyattinkara. 2. The court below, after holding the appellant guilty under Section 376(f) I.P.C, has convicted and sentenced him to undergo rigorous imprisonment for 8 years and to pay a fine of Rs.10,000/= and in default of payment of fine, to undergo rigorous imprisonment for six months. 3. The gist of the prosecution case was that the appellant had committed rape of a 4 year old girl at about 11 a.m in the bed room of the victim's house while her mother (PW1) had gone out to the market. 4. The police had registered the crime on the basis of the First Information Statement (Ext.P1) given by PW1, the mother of the victim, on September 03, 1998. In her statement, PW1 had stated before the police that she had been living with her husband in his house along with the child, her mother-in-law and other near relatives. On August 29, 1998, at about 10 a.m she had gone to the market. At that time, her 4 year old child was left in the care of her mother-in- law and other relatives. When she came back from the 2 CRL.A.No.1094/01 market at 11.30 a.m, her 4 year old daughter came running towards her without any dress on her body and with her underwear in her hand. She told PW1 that she wanted to urinate and pass motion. But, when the child was taken to the toilet, she said she could not do either. When Pw1 asked the child what was wrong, the child told her that the accused, whom she calls Appachan (her grand mother's brother) had taken her to the bedroom and laid her down on the bed. After removing her underwear he had lay over her. He had put his penis at the area where she urinates and done something on her resulting in some white discharge on her thighs. PW1 stated before the police that she inspected the genital area of the child and found semen in that part of her body. She informed her mother-in-law and aunt about the incident. They advised her not to divulge this incident to anyone else. They also told her not to inform her husband in particular, since he may pick up a quarrel. According to PW1, she did not tell anybody about the incident. She further stated that on September 02, 1998 i.e., three days after the incident, she however informed her husband. She went to the police along with her husband in the evening on the same day itself. She further stated that she had washed her daughter's underwear on the day of the incident itself. As mentioned earlier, the police registered the crime on the basis of the above statement which was marked in the case as Ext.P1. Charge sheet was laid by the 3 CRL.A.No.1094/01 police after completing the investigation. Prosecution examined Pws 1 to 11 and marked Exts.P1 to P9 and MO1 on its side. DW1 was examined on the side of the defence. 5. PW1 in her deposition before the court re-iterated what had been stated by her in Ext.P1 First Information Statement. It is true that in Ext.P1 statement PW1 had not stated that her husband was not in station on the day of the alleged incident. According to PW1, her husband was away at a work site near Medical College Hospital, Trivandrum in connection with his employment. She told her husband about the incident when he came back from his work place on September 02, 1998. After informing her husband, she went to the police station along with him and the child in the evening on the same day itself. At that time, the Station House Officer was not there. The two constables who were present in the station informed PW1 and her husband to come to the station on the next day. Accordingly PW1 went to the station along with her husband and the child on the next day and gave Ext.P1 First Information Statement. 6. PW2 is admittedly a close relative of the accused and is also related to PW3, the husband of PW1. PW2 stated before the police that on the day of the alleged incident she had gone to the ration shop. She had come back from the ration shop in the evening. She admitted that she had given a statement before the police. The alleged incident had taken place about one week prior to her questioning by the police. 4 CRL.A.No.1094/01 But she stated that though she had no direct knowledge about the incident, she knew that the daughter of PW1 was raped. PW2 denied Ext.P2 portion of her statement before the police which clearly implicated the accused. 7. PW3, the husband of PW1 and father of the victim, deposed before the court that he was away in Trivandrum on the alleged day of the incident in connection with his employment and he came back on September 02, 1998. When his wife - PW1 informed about the alleged incident, he went to the police station on the same day evening along with his wife and child. They were asked to go to the police station on the next day since the Station House Officer was not available. PW3 further stated that the police had recorded his statement and directed him to produce the underwear worn by the child at the time of the incident. Accordingly, he produced the underwear worn by the child and the same was marked as MO1. 8. PW4, who is the mother of PW3 (mother-in-law of PW1), in her deposition stated that the accused committed rape of the young girl on August 29, 1998 at about 11 a.m. She further stated that the accused had come to the house and enquired whether PW1 was at home. PW4 informed that PW1 was away in the market. She further stated that accused is her brother. When PW1 came back from the market, the child - victim, ran to her mother crying. When PW1 asked the child what was wrong, the child said she wanted 5 CRL.A.No.1094/01 to urinate and pass motion. The child was holding her underwear in her hand. When the child was taken to the toilet, she told her mother that she could do neither. The child told PW1 what the accused had done to her. The child further told PW1 and PW4 that accused had taken her away to the room while she was playing with Vishnu and Sambu, two children in the neighbourhood. PW4 had further stated that she and PW1 had examined the genital area of the child. It was noticed that there was swelling and abrasion with reddish colour in that area. There was semen also in that area. PW4 stated that she tried to persuade PW1 not to inform anybody about the incident, especially her son (PW3 ) since he might pick up quarrel with the accused. She further stated that the police had recorded her statement. 9. PW5 stated that he had signed Exts.P3 and P4 seizure mahazars. 10. PW6 was the Assistant Surgeon attached to the Taluk Hospital, Neyyattinkara, who had examined the child. She stated that on September 03, 1998 when she examined the child, no external injuries were noticed. But she stated that she noticed redness at the vagina and small abrasion of ½ x ½ cm on the medial aspect (inner aspect) of right side of vagina. She proved her signature in Ext.P5 wound certificate. PW6 further stated that the child complained of pain at the vagina and pain during micturition. In cross examination this witness further stated that abrasion in that area would 6 CRL.A.No.1094/01 depend on the force exerted. The patient had complained of pain while passing urine. 11. PW7 had examined the accused and issued Ext.P6 potency certificate. PW8 was the Village Officer, who prepared Ext.P7 site plan. PW9 was working as the Assistant Sub Inspector in the police station at the relevant time. He recorded Ext.P1 statement and registered Ext.P1 (a) First Information Report. He further prepared Ext.P1 (b) body note in which the physical condition of the victim was recorded. PW10 was the Investigating Officer who spoke about that part of the investigation conducted by him. PW11 conducted further investigation and verified the records. PW12 filed charge sheet before the court after completing the investigation. 12. It is contended by learned counsel for the appellant that the case was falsely foisted on the accused due to some property dispute. The case of the appellant appears to be that one Sabu, who is the brother of PW3, had been instrumental in foisting the false charge on the appellant. It is the case of the appellant that he was entitled to one third share in the house and appurtenant land. The contention is that by foisting this false charge on the appellant, Pw3, his brother Sabu and others wanted to drive away the appellant from the locality , so that the entire property could be appropriated and enjoyed by them. It is true that in the course of cross examination of PWs 1 and 2 it had come out 7 CRL.A.No.1094/01 that the appellant had some subsisting right in the property in question. 13. As mentioned earlier, accused is the brother of PW4, the grand mother of the victim-child. It is also on record that there was some dispute in the past in respect of the property. But even assuming there was some difference of opinion as regards the right in the immovable property in question, there is nothing on record to show that there existed any serious dispute or litigation in respect of the said property. Of course, in his statement under Section 313 of the Code of Criminal Procedure, the accused had stated that Sabu had attacked his wife on the 2nd of September, 1998 and that he had gone to the police station on that day to lodge a complaint in this regard. According to the appellant, he was detained in the police station till the evening and arrested thereafter without informing him the charge on which he was arrested. 14. I have referred to the above contentions only to indicate that the appellant had not been able to produce any materials either before the trial court or before this Court to substantiate his contention that he had been charge sheeted in this case solely for the reason that there existed a dispute with regard to the immovable property or that there was some animosity between him and Sri. Sabu. The contention of the appellant is that by launching this prosecution against him, Sri. Sabu, PW3 and others would succeed in driving him away from the locality. This would enable his opponents to enjoy 8 CRL.A.No.1094/01 the property for ever. I am unable to accept the above contention. 15. I have carefully gone through the deposition of the material witnesses, namely PWs 1, 3 and 4. PW1, the mother of the victim had categorically stated that she came back from the market at 11.30 a.m on the ill fated day. The child had come to her running with her underwear in her hand. The child informed her that she wanted to go to the toilet. But when the child was taken to the toilet, she informed her mother that she could not pass urine. When PW3 asked the child about her difficulty, the child divulged the information as to what the accused had done to her. It is hard to believe that any mother would even dream of cooking up such a story involving her four year old child, only to spite her maternal uncle. The story now put forth by the appellant that his relatives have done this to him to drive him away from the locality so that they could enjoy the immovable property is equally unbelievable. When the evidence of PW1 along with that of PW4, the grand mother is read carefully, I find no reason to disbelieve the testimony of these two witnesses. As mentioned earlier, PW4, the grand mother had stated that she had seen the child running to her mother (PW3) when the latter came back from the market. She had also examined the genital part of the child and found redness and abrasion in that area after the child had narrated the incident to PW1. 9 CRL.A.No.1094/01 16. In this context, we have to keep in view the certificate issued by the lady doctor (PW6), who examined the child. A perusal of Ext.P5 wound certificate will unambiguously show that the child had been abused. There was abrasion. There was redness in the vaginal area. The child had informed the doctor that she had been experiencing pain during urination. Further, Ext.P9 report clearly indicated that there was semen in MO1 underwear which was worn by the child at the time of the alleged incident. If we put all these pieces of evidence together and also the evidence of Pws 1 and 4, I have absolutely no hesitation to hold that the court below was justified in finding the appellant guilty of the offence punishable under Section 376 (f) I.P.C. I am not prepared to accept the weak defence set up by the appellant/accused that the prosecution case was foisted against him by his near relatives only to drive him away from the property in which he has some subsisting right. The said contention is, by itself, wholly untenable and hollow. 17. Having carefully perused the entire materials available on record and having considered the contentions raised by the appellant before this Court, I am satisfied that the order of conviction is liable to be confirmed. I do so. As regards the sentence also, I do not find any reason to interfere with the same, since in my view, the appellant deserves the punishment imposed on him since he had 10 CRL.A.No.1094/01 committed this heinous crime on a tender child of 4 years. I do not find any reason to show any indulgence or sympathy to the appellant. Therefore, the order of conviction and sentence is confirmed. The appeal is dismissed. (A.K.BASHEER, JUDGE) cl 11 CRL.A.No.1094/01 A.K.BASHEER, J. CRL.A.No.1094 OF 2001 JUDGMENT 11th December, 2008