IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 CRL.A.No. 2451 of 2006() ------------------------ SC.199/2005 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA .................... APPELLANT(S): ACCUSED ---------------------- JOSHY KURIEN, S/O. KURIEN, MUNDAKATTIL HOUSE, DHOTTAPPANKULAM, BEENACHI P.O., SULTAN BATHERY. (PRESENTLY IN CONFINEMENT IN CENTRAL PRISON, KANNUR AS CONVICT NO.3468) BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH SRI.SUMESH KUMAR.N.C. RESPONDENT(S): RESPONDENT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY P.P. SRI C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.2451 of 2006 ---------------------------------------------- Dated, 17th February 2009. JUDGMENT The accused is the appellant. As per the judgment dated 15.5.2006 in S.C.No.199/2005 in the court of the Additional Sessions Judge (Adhoc) II, Kalpetta, the accused is found guilty under sections 376 and 506(ii) of IPC and accordingly, he is sentenced. It is the above conviction and sentence challenged in this appeal. 2. The prosecution case is that on 14.10.2001 at about 4.30 p.m., the accused committed rape on PW1 from a thatched shed situated on the south eastern corner of the house of the accused at Beenachi, Sulthan Bathery amsom and also intimidated her that she will be done away with. Thus according to the prosecution, the accused has committed the offence punishable under sections 376 and 506(ii) of IPC. On the basis of the above allegation, crime No.397/2002 for the said offences was registered in the Sulthan Bathery Police station. After the investigation, the Circle Inspector of police laid the charge before the Judicial First Class Magistrate I, Sulthan Bathery, from where by order dated 29.3.2005 the case was committed to the Sessions Court wherein S.C.No.199/2005 was instituted and, subsequently, made over to the trial court for disposal. CRL.A. 2451/06 -:2:- 3. When the accused appeared, after hearing him and the prosecution, a formal charge was framed under sections 376 and 506 (ii) IPC which was read over and explained to the accused and he pleaded not guilty. Thereafter, the prosecution adduced its evidence consists of oral testimony of PWs 1 to 12, and documentary evidence such as Exts.P1 to P8. When the incriminating circumstances, which emerged during the prosecution evidence, put to the accused, he denied the same. The accused took a stand of total denial. No evidence was adduced by the defence, either oral or documentary, except the marking of Exts.D1 to D15 portions of C.D.Statements of the witnesses. After examining the evidence and the materials and also hearing the defence as well as the prosecution, the trial court found that the accused is guilty of the charges levelled against him. Thus after hearing the accused on the question of sentence, he is sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.40,000/- and, in default, he is further directed to undergo simple imprisonment for 6 months under section 376 IPC and also to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.25,000/-, in default, to undergo simple imprisonment for 4 months under section 506(ii) IPC. It is specifically CRL.A. 2451/06 -:3:- ordered that the substantial sentences shall run concurrently. It is also ordered that if the fine amount is realised, a sum of Rs.50,000/- shall be paid to PW1 as compensation under section 357(1) Cr.P.C. It is the above conviction and sentence challenged in this appeal. 4. I have heard the learned counsel appearing for the appellant and also the learned Public Prosecutor. 5. In fact, crime No. 397/2002 was registered in the Sulthan Bathery police station on receiving Ext.P1 complaint from the court under section 156(3) Cr.P.C for the above said offences. On receiving Ext.P1 complaint, PW12 prepared Ext.P8 FIR and, the Circle Inspector of police, Sulthan Bathery, who was examined as PW9 conducted the investigation. Immediately, on registration of the crime, the C.I. of police went to the place of occurrence and prepared Ext.P2 scene mahazar. He had questioned several witnesses and recorded their statement, PW9 got prepared Ext.P5 scene plan through the Village Officer. PW9 obtained Ext.P4 birth certificate of the child from the Panchayat Secretary. PW10 is another officer who continued the investigation from the stage where PW9 relieved of the investigation. It was PW10 who arrested the accused on 31.12.2004. After the arrest of the accused, he was subjected to potency test as CRL.A. 2451/06 -:4:- per Ext.P3 potency certificate. On completing the investigation, PW10 laid the charge sheet. 6. PW1 is the prosecutrix. According to PW1, the accused is her neighbour. It is her further case that on the date of occurrence on 14.10.2001 at about 4.00 p.m., she had gone for cutting grass from the property of the elder brother of the accused which was taken on lease for agriculture works. She had completed 18 years during that time. According to PW1, when she was going for cutting grass, the accused was seen standing in his agricultural filed of rhizome. She was called near to him. Thereafter, according to PW1, the accused forcefully hugged and kissed her and she made a hue and cry, then the accused retorted that he would commit suicide by killing her. PW1 further deposed that subsequently, the accused hugged and pulled her to the thatched shed available in the agricultural field of rhizome of his own and, thereafter, she had categorically stated that, the accused made her to lie down and laid himself on her. Thereafter PW1 stated about the incident that took place and the overt act of the accused. PW1 further stated that finally she cried out and he consoled her and promised that he would protect her and that the incident should not be disclosed to others. PW1 was further threatened that if the CRL.A. 2451/06 -:5:- incident is made aware to others, he would kill her and commit suicide. According to PW1, because of the threat and intimidation, she did not disclose this incident to anybody. According to PW1 she thereafter proceeded to her house by collecting the grass at about 5 'O' clock. According to PW1, there was blood stain in her underskirt and therefore she had taken a bath in the river in their property and she washed and cleaned the dress. Thereafter she came to the house by night and her mother had come over there. According to PW1, her mother scolded her on seeing the shortage of the grass collected. She gave an explanation to her mother that she had gone to the house of Shyby, PW11. It is also her case that after the lapse of 5 months, she felt a movement in her stomach and she realised that she was pregnant. As she was not having regular menses, she was taking medicine to regularise the same. According to her, because of the irregular menstruation, she was not aware of the pregnancy, even after she became pregnant. She had categorically stated that she did not disclose her pregnancy to others. According to her, on 18.7.2002, in the morning when she was milking the cow, she felt pain over her stomach and because of that pain, her mother taken her to the hospital wherein she was consulted with a doctor and CRL.A. 2451/06 -:6:- the doctor conducted scan and informed to the mother that she was pregnant. And accordingly, she was admitted in the hospital. Thereafter at about 9.15 a.m, on the next day , she delivered a male child and then only at that point of time, even her mother came to know about the pregnancy of PW1. Thus, her mother informed this matter to her father and brother. According to PW1, she informed her mother that the father of child is Joshy Kurian, the accused. PW1 further deposed that thereafter she complained before the police. It is also came out in evidence that one Sahadaven who was examined as PW7, the then Panchayath member, interested in this matter and informed her that the accused would take her with him and that she need not give any case. According to her, as per the mediation, it was promised that she along with the child, would be taken within 90 days, by the accused. But the accused did not keep his words. It was in this circumstances, she preferred Ext.P1 complaint in the court. According to PW1, the delay was caused due to mediation talks. According to PW1, when the C.I. reached her house, she had shown the place of incident. The shed,where actually the rape committed, was seen demolished at that time. PW1 has further stated before the court that on her became pregnant, once she CRL.A. 2451/06 -:7:- informed the matter to the accused and she was told then that after discussing with his family members , he would take her, but he did not do so. 7. When the mother of PW1 was examined as PW4, she stated that she was not aware of the pregnancy of her daughter PW1. But she had deposed that while PW1 was milking the cow she complained that she was suffering from stomach pain, and also deposed about the removal of PW1 to hospital, Sulthan Battery. According to PW4, PW4 consulted with a doctor and PW1 was admitted in the hospital and on the same day at about 9.15 in the morning she delivered a male child. According to PW4, she was informed that the father of the child was the accused. According to PW4 also, PW1 did not divulge the information to anybody as the accused intimidated her that he would kill her and commit suicide. It is thereafter PW4 conveyed the information to her husband and her son PW5 and, subsequently, she complained in the police station. But the police did not register any crime because of the political influence of the accused. The role of PW7 had also deposed. PW5 is the brother of PW1 who also deposed in terms of PW4. When PW7 was examined he had stated about his role in arriving an amicable CRL.A. 2451/06 -:8:- settlement in the issue between the accused and PW1. According to PW7, the accused promised him that he was prepared to take PW1 within one week from her delivery. But after one month from the date of delivery, PW7 was informed by the accused that he was not prepared to take PW1. Thus on the basis of the above evidence, the trial court found that the accused is guilty of the offence punishable under sections 376 and 506(ii) of IPC and accordingly he is convicted and sentenced. 8. The learned counsel appearing for the appellant strongly argued that there was culpable delay in lodging the complaint. It is pointed out that though the alleged rape was on 14.10.2001, the complaint was filed only on 4.10.2002, i.e. again after three months time from the date of delivery. According to the learned counsel, there was inordinate delay in preferring the complaint. Another point raised by the learned counsel is that the prosecution has miserably failed to prove the scene of occurrence. It is also argued by the learned counsel that the complaint was filed at the instance of PW7 due to extraneous consideration. 9. The learned Public Prosecutor submitted that when PW1 was examined, she had categorically stated the reason for the delay CRL.A. 2451/06 -:9:- occurred in preferring the complaint. According to her, she was threatened and intimidated by the accused and warned that the incident should not be divulged to anybody. She had also stated that subsequently, PW7 had interfered with the matter and she was told by PW7 that the accused assured to take PW1 after the delivery. But the accused did not keep his words. The above version of the prosecutrix/PW1 is corroborated by the evidence of PW7 who was an elected member of the grama panchayat. So, the trial court, in the light of the above evidence repelled the contention of the accused regarding the delay. In paragraph 14 and 15 of the judgment, the trial court has considered the contention of the defence. According to PW1 she had stated that she was forcefully dragged to the thatched house available in the field of Rhizome cultivation. When Ext.P2 scene mahazar was prepared, PW1 pointed out the place of occurrence to the C.I. of police. She had also pointed out two pillars of the shed, because at the time of preparation of scene mahazar, thatched shed was already demolished. It is to be noted that no place other than the one mentioned by PW1 was noticed when preparing Ext.P2 scene mahazar. After perusing the documents, and on evaluation of the oral testimony of PW1 and the C.I. of police, who CRL.A. 2451/06 -:10:- prepared Ext.P2, it can be seen that there is no much variation regarding the place of occurrence. Even the slight discrepancy in no way affect or lessen the seriousness or the gravity of the offence. 10. Another contention taken by the counsel for the appellant is to the effect that this case was foisted at the instance of PW7, leader of local Marxist party and in support of the above contention, it is pointed out that the evidence of PW1 is contrary to what stated in Ext.P1 complaint in toto and the averments contained in para 2 of the complaint is false. It is true that the defence got marked Ext.D6, but when PW1 was examined, she has emphatically denied the statement given before the police. She has also stated about the threat and intimidation from the part of the accused and she had explained that she did not disclose the incident to any of her family members because of the threat from the part of the accused. Even though there are some minor discrepancies in the evidence of PW1 when she was examined, she had categorically stated all the details including under what circumstances she reached in the property and also the overt act of the accused. The evidence of PW1, corroborated by the evidence of PW4 regarding the irregular menstruation and because of the same she could not understand the CRL.A. 2451/06 -:11:- pregnancy at the advanced stage. PW1 had categorically stated that she felt pain over her stomach when she was milking the cow and at that time she was taken to the hospital and on further consultation with the doctor, it was detected that she was pregnant. Thus the entire incident occurred in the matter revealed through the evidence of PW1 and the same is natural believable and inspire the confidence of the court. The trial court, which got opportunity to observe the demeanor of the prosecution witnesses as well as the accused, came into the conclusion that the evidence adduced by the prosecution is sufficient to come to the conclusion that the accused intimidated the prosecutrix and committed rape upon her and thus Section 376 and 506(ii) IPC are attracted. As I have already discussed the evidence on record and going by the judgment of the trial court, I find no reason to interfere with the order of conviction and the sentence passed by the court below. Therefore, the order of conviction is confirmed. 11. Regarding the sentence, it appears that though the maximum sentence is life imprisonment, the trial court has imposed only 5 years imprisonment under section 376 IPC considering the 3 years imprisonment fixed under section 506(ii). As per the CRL.A. 2451/06 -:12:- direction under section 357(1) Cr.P.C., it is ordered that if the amount of fine is released, an amount of 50,000/- shall be paid to PW1 as compensation. It is to be noted that as per the proved allegations, PW1 became pregnant at the instance of the accused, and now she is the mother of a male child. Therefore, the sentence of fine awarded by the court below seems to be moderate and reasonable and no interference is called for . In the result, there is no merit in the appeal and the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.A. 2451/06 -:13:- V.K.MOHANAN, J. No.... Judgment/Order Dated: