IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 14TH DAY OF JULY 2011/23RD ASHADHA 1933 CRL.A.No. 546 of 2010 (C) ---------------------------------------- SC.328/2007 of I ADDL.SESSIONS COURT, KOZHIKODE ....... APPELLANT/ACCUSED: VENU, S/O.ACHUTHAN, KOYAKKTHIL VEEDU, CHEROTHKUNNU, P.O.OLAVANNA, KOZHIKODE. BY ADVS.SMT.ANJALI N.(STATE BRIEF) SMT.K.K.PREETHA RESPONDENTS/COMPLAINANT: 1. STATE OF KERALA, REP.BY SHO, NALLALAM POLICE STATION, KOZHIKODE DISTRICT, NALLALAM P.S. CRIME NO.60/06. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema, J. ---------------------------------- Crl. Appeal No.546 of 2010 ----------------------------------- Dated this 14th day of July, 2011 JUDGMENT The appellant was convicted and sentenced by the Additional Sessions Court under Section 376 of Indian Penal Code (I.P.C. 'for short') to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- and in default, to undergo simple imprisonment for six months. The fine, if realised, Rs.40,000/- was ordered to be paid to PW1, as compensation. Set off was allowed. This appeal is filed, challenging the said conviction and sentence. 2. According to prosecution, on 28.01.2006 at about 9.30 p.m. accused committed rape on his own daughter PW1, who was aged only 15 years, from the bed room of his house, where he was living with his wife and children. On the crucial night his wife was not present in the house. PW1, with the assistance of workers of Mahila Samajam lodged a complaint on 05.04.2006 before police and a crime was registered. After investigation, a charge sheet was laid against appellant under Section 376 IPC. CRA 546/2010 2 3. To prove the case, prosecution examined PWs 1 to 19 and marked Exts.P1 to P20 and MOs.1 to MO3. The accused was questioned under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short) when he denied all circumstances appearing in evidence and pleaded innocence. He examined DW1 to DW4 and marked Ext.D1 on his side. 4. The trial court, after analysis of evidence, found evidence of PW1 to be believable. Though a crucial date shown in the medical certificate, Ext.P6 was favourable to accused, it was held that date shown in Ext.P6 was a clerical error. The explanation for the delay in FIR is held to be satisfactory, etc. and convicted accused. Challenging the above conviction and sentence, this appeal is filed. The counsel who was engaged by appellant failed to appear or argue the case and hence, a petition was sent from Jail for legal aid. 5. Smt.Anjali.N. was appointed as State Brief. Heard both sides. Perused the records. To prove the prosecution case, evidence of PW1, who is daughter of the accused, was adduced mainly. She gave evidence that she was raped by her father, CRA 546/2010 3 while she was sleeping on the same cot with her father on the crucial night when her mother was away from the house. PW1 also stated the minute details of the sexual acts committed by her father on her. She also deposed that she became pregnant by the act of her father. 6. According to PW1, she was taken to doctors, one after the other, and pregnancy was confirmed. After this, she was approached by certain members of the Mahila Samajam and she went along with them to Police Station and gave Ext.P1(a) First Information statement to the police. PW1 is the sole witness who is examined to speak about the incident. If her evidence is believable, no corroboration is required to convict a person for offence under Section 376 IPC. 7. So, the first question is whether explicit reliance can be placed on the evidence of PW1 or not. PW1 is cross-examined at length and an attempt is made to discredit her evidence, with reference to other evidence including medical evidence. I shall first discuss the inconsistency brought out in evidence of PW1 as against medical evidence. According to PW1, she was taken to CRA 546/2010 4 Homoeopathy Medical Practitioner and another doctor who is practising in Allopathy. Thereafter, pregnancy was confirmed by urine test also. 8. PW1 also deposed that she was subsequently taken to Malabar Hospital from where a scan was done to further confirm the pregnancy. Pregnancy was confirmed from the Malabar Hospital also. She deposed that she was examined by the doctor at the Medical College Hospital on 05.04.2006, after registration of the F.I.R. PW8, the doctor deposed that on 05.04.2006, she had examined PW1 and issued Ext.P6 certificate, while she was working as lecturer in the Medical College Hospital. 9. PW8, the doctor deposed that on examination on 05.04.2006, PW1's uterus was having size of 10 weeks and that intrauterine gestation showed no cardiac activity. Therefore, she suspected “missed abortion”. She also deposed in cross- examination that 10 weeks size of the uterus may be the size of the foetus also. The evidence of PW8 and Ext.P6 also reveals that as per the 'Ultra Sono Gram' ('USG', for short) dated 06.03.2006 relating to PW1, foetus was not alive. From all the above facts it CRA 546/2010 5 can be reasonably inferred that on 06.03.2006 itself, size of the foetus must have been ten weeks since it could not have grown after 06.03.2006 and the size of the uterus was ten weeks even after one month on 05.04.2006, as per evidence of PW8 and Ext.P6. 10. If the medical reports including 'Ultra Sono Gram' and medical evidence of PW8 are accepted, PW1 would have become pregnant about 10 weeks prior to 06.03.2006 ie., in the last week of December 2005 and one month prior to the alleged date of occurrence. But, PW1 has no case that any incident had happened in last week of December 2005 or prior to or after 28.01.2006. The incident allegedly happened only in last week of January, on 28.01.2006. The above discrepancy is not explained by prosecution and this itself casts a serious doubt on the prosecution case whether an incident as alleged by prosecution happened on the date and circumstances and PW1 got impregnated by the act committed by accused. 11. Learned Public Prosecutor strongly argued that the date of USG report as 06.03.2006 can only be a mistake or a CRA 546/2010 6 clerical error and that is not sufficient to discard the prosecution case in its entirety. He also argued that PW1 was taken to the hospital only on 05.04.2006 and the USG, if any, could be taken only after 05.04.2006 and therefore, the date of USG could only be 06.04.2006. It was pointed out that trial court accepted this contention and held that the date shown in Ext.P6 as 06.03.2006 could only be a clerical error. According to the trial court, the USG referred to in Ext.P6 was taken on 06.04.2006. 12. On an analysis of the evidence in detail, I am unable to accept the above argument. I cannot also agree with the findings of the lower court that the date of the USG is a clerical error. First of all, PW8 does not have a case that date of the USG shown in Ext.P6 was a clerical error. No other witness also stated that the date was a clerical error. In the absence of any evidence or circumstance to indicate that the date shown in Ext.P6 regarding USG is an error, it is highly improper for the court to come to a conclusion that a very crucial date is a clerical error, particularly since, going by the date shown in Ext.P6, an incident would not have taken place on the alleged date. CRA 546/2010 7 13. PW8, the doctor, has clearly stated in her evidence that USG report was dated 06.03.2006 and the USG might have been taken prior to examination of PW1 on 05.04.2006. PW1 categorically deposed that she was subjected to a scan from the Malabar Hospital, prior to lodging of complaint and it was after the scan that the pregnancy was reconfirmed. Her evidence also reveals that scan was taken in March 2006. In such circumstances, it is clear that PW1 had undergone a scan at the Malabar Hospital in March 2006 and the report could have been issued in March 2006. 14. It is also relevant to note that PW8 had issued ExtP6- certificate and date of USG was shown by her in Ext.P6, as 06.03.2006. When the author of the certificate-Ext.P6 herself does not have a case that the date of USG shown in Ext.P6 is a clerical error, it was not proper for the court to come to a conclusion that the date is a clerical error on surmises. This is particularly so, when the date of USG is very crucial in this case to reach conclusions on the veracity of prosecution case. CRA 546/2010 8 15. Any way, in the light of the evidence given by PW8, it cannot be said that the date of USG shown in Ext.P6 could be a clerical error. On the other hand, the scan report was made available to the doctor when PW1 was examined by PW8, the doctor and as per the details in USG report, PW1 must have been pregnant about five weeks prior to the alleged date of occurrence in this case. Though PW8 could not say who had brought the report to her and from where the report was given etc., the report was made available to PW8, the doctor, when PW1 was examined on 05.04.2006. 16. Since it has come out from evidence of PW8 that there was a scan report on 06.03.2006 which showed that the foetus was also not alive on that date, it is only reasonable to infer that on 06.03.2006, the foetus must have been 10 weeks size, since the foetus cannot grow any further after 06.03.2006 and that is why the size of the foetus was 10 weeks as on 05.04.2006 also. It is also relevant to note as per medical evidence, evacuation of uterus was done on PW1, since she had 'missed abortion' and for that purpose, PW1 was admitted in the CRA 546/2010 9 hospital and she was discharged after evacuation only on 15.04.2006. In this context, another fact is also relevant. The last menstrual period of PW1 is noted as 19.01.2006 in Ext.P6 which is issued by PW8, the doctor. PW8 also deposed that LMP is the date on which the last menstrual period starts. If that be the case and the incident happened on 28.01.2006 as alleged by prosecution, PW1 would have conceived on the 9th day of starting her last menstrual period (19.01.2006), which is highly improbable. As per evidence of PW9, the Head of the Department of Gynaecology, itself, ovum would be produced only on the 14th day, if the menstrual cycling is regular and according to PW1, her menstrual periods are regular and she has menstrual period every month. PW8 deposed that when fertilized ovum reaches the uterus, a woman becomes pregnant. 17. PW1 also deposed that after she had menstrual period in the first week of December 2005, she did not have menstrual period, thereafter. If the above evidence is accepted, it is likely that PW1 could conceive only in the third week of December, 2005 and this is more consistent with the USG report CRA 546/2010 10 referred to in Ext.P6 and evidence of PW8. As per the USG report, uterus size was 10 weeks as on 06.03.2006 and hence, PW1 would have conceived in December 2005. Any way, there is little chance for PW1 to conceive on the 9th day of her last menstrual period (19.01.2006 noted in Ext.P6) ie., on 28.01.2006, consequent to the alleged rape. 18. Thus, on a reading of evidence of PW1, along with medical evidence, it would be clear that PW1 would have conceived in December 2005, about five weeks prior to alleged date of rape on 28.01.2006. As pointed out by learned defence counsel, PW1 has no case that she was subjected to any sexual intercourse, either prior to the alleged date of incident or thereafter. She had only one instance of sexual intercourse and that was only on 28.01.2006, according to the version given by PW1, it is pointed out. 19. Going by the medical evidence of PW8, Ext.P6 and the entries therein, the details of the scan report dated 06.03.2006, PW1 could not have conceived on 28.01.2006, consequent to the rape on that date. Had the incident occurred on CRA 546/2010 11 28.01.2006, on the peculiar facts of this case, the size of the foetus would only be 5 weeks as on 06.03.2006. But, size of foetus was double (10 weeks) as on 06.03.2006. From all these facts, it is doubtful that PW1 would have become pregnant in the rape, which was allegedly committed on her on 28.01.2006. 20. In this context, it is most pertinent to note that prosecution suppressed many material facts from the Court. PW1 was admittedly examined at the Malabar Hospital and she had also undergone USG in the hospital. As per evidence of PW18, Investigating Officer, a case sheet is also maintained in the Malabar Hospital and the statement given by the patient would also be recorded in the said case sheet. Therefore, PW1's earliest version regarding sexual act, last menstrual period etc. would find a place in the case sheet maintained at the Malabar Hospital. 21. But, none of the records from the Malabar Hospital such as case sheet, the O.P. Register or the scan report seized or produced are produced in this case. There is no explanation for non-production of those vital documents. Though PW8 would depose that she had seen USG report and also recorded the CRA 546/2010 12 details she found in the said report dated 06.03.2006 in Ext.P6, USG report was not produced in court. No attempt is made to produce the same, though a material discrepancy is brought out in evidence regarding date of USG report, which is fatal in this case. The failure to produce the report does not appear to be a mere omission but, in all probability, it may be a deliberate suppression from the side of prosecution. 22. It is also pertinent to note that it was brought out successfully from evidence of PW1 that the version given by her to the doctor at the Malabar Hospital was that she was pregnant through some other person and not by her father. According to PW1, she stated to the doctor that one of her relatives was responsible for the pregnancy. Of course, she gave an explanation in court for the first time that such a statement was made by her to the doctor because of the instruction given by her father, but this part of her evidence was brought out as an omission in the case diary. 23. It is clear from evidence that the investigating officers had sufficient opportunity to know that PW1 was CRA 546/2010 13 examined at the Malabar Hospital and her first version would be available in the documents at the Malabar Hospital and that the USG report will also be relevant in this case. But, those documents were not seized nor produced in court. Thus, there is material suppression from the side of the prosecution to bring out the earliest version of PW1 regarding name of person, who was responsible for her pregnancy, probable date of conception, date of LMP etc. I am satisfied that if those documents are produced, it may go against the prosecution and that is why those are suppressed. Hence, an adverse inference can also be drawn against the prosecution. 24. In this context, learned Public Prosecutor argued that from the Malabar Hospital, a doctor was examined and the medical certificate was also marked as Ext.P13. The said certificate relates to the examination of PW1 on 29.03.2006 and as per the said document, foetus was alive and it was having nine weeks of size, as on 29.03.2006. It is also submitted that size of the uterus tallies with the allegation that the incident happened on 28.01.2006. It is also pointed out that learned Additional CRA 546/2010 14 Sessions Judge also relied upon the said document to enter a finding in favour of the prosecution. On going through the evidence of PW18 and Ext.P13, I find that trial court went wrong in placing reliance upon a document like Ext.P13 to enter upon crucial findings against accused. 25. PW18 deposed that she is the Managing Director of Malabar Hospital and she has no case that Ext.P13 was issued by her. She has neither executed the said document nor signed the same. There is nothing in Ext.P13 to show that it was issued from the Malabar Hospital. Even the name of the hospital is not seen in the said document. It is not even signed by any person. Ext.P13 is a typewritten document wherein signature of the person who allegedly issued the same is missing. Two names are shown in Ext.P13 as “P.A.LALITHA MBBS” and “DR.SUPRIYA, SONOLOGIST”. The seal of the hospital is also absent in the said document. 26. In such circumstances, no reliance ought to have been placed on Ext.P13. It can also be seen from evidence of PW18 that she has no case that she had examined PW1 personally. She did not make any whisper in the evidence that CRA 546/2010 15 she had examined PW1 on 29.03.2006. There is also nothing in Ext.P13 to show that the patient who is referred in Ext.P13 is PW1. Neither the identification marks nor the address of the patient are seen recorded in Ext.P13. According to PW18, the relevant details of the patient referred to in Ext.P13 would be available in the case sheet. But the case sheet is also not produced in court. 27. In the above circumstances, the finding entered into by the trial court based on evidence of PW18 that the date shown in Ext.P6 as 06.03.2006 is unsustainable. At any rate, in the light of categoric evidence given by PW8 that as per USG the foetus was dead and at her examination also there was suspected “missed abortion” and evacuation was done, it is doubtful whether Ext.P13 can refer to PW1. This is specially so, since, as per Ext.P13, foetal movements were present and pulsations were also present as on 29.03.2006, whereas, as per USG report, the foetus was dead on 06.03.2006. The evidence of PW8 shows that as per the report dated 06.03.2006, there was no cardiac activity. For all the above reasons, I find that, as per the medical evidence adduced in this case, the case set up by the prosecution that the CRA 546/2010 16 incident happened on 28.01.2006 and PW1 became pregnant in the incident occurred on such date is highly doubtful. 28. It is also pertinent to note that the prosecution produced MOs 1 to 3 as the dresses worn by PW1 and the accused at the relevant time. Those dresses were marked through PW1 and she stated that those were worn by her and the accused at the relevant time. Those dresses were sent for chemical analysis describing them as semen-stained. Though the stains were cut and removed and examined, it is reported that no sperm or semen was detected on those dresses, as per the Chemical Analysis Report, Ext.P19. 29. Learned Public Prosecutor argued that those might have been washed off, but this argument is not based on any evidence. Neither the victim nor any other witness has a case that the dresses were washed off. Any way, this fact must have been investigated into by the investigating officer, especially since absence of semen was reported by the Chemical Analyst. In the absence of semen on the dresses MO1 to MO3, a reasonable doubt is cast on the veracity of the prosecution case as it also CRA 546/2010 17 goes against the version given by PW1, regarding the alleged rape by her father. 30. It is also pertinent to note that there is inordinate delay in lodging the complaint. Though, in a rape case of this nature, delay is only normal, if there is a delay, it is the duty of the investigating officer to find out why the delay is caused and whether there is any chances for false implication. In this case, the incident allegedly occurred on 28.01.2006 and the report was given, after two months and a week. The circumstances under which PW1 lodged complaint against the accused ought to have been investigated into, especially since she herself admitted that she told the doctor at the first instance that the person responsible for the pregnancy is a relative. No investigation is conducted to ascertain the cause for the delay in lodging the complaint. No explanation is given by the prosecutrix also for the delay. Still, trial court observed that “explanation” is satisfactory. 31. Learned Public Prosecutor argued that the accused having not pointed his finger to any person particularly, it can only be inferred that he himself is the person responsible. I am CRA 546/2010 18 unable to accept those argument, since it appears from an overall appreciation of evidence that his inability to point his finger to a particular person cannot be a reason to hold that he was responsible for the pregnancy. It was not difficult for any accused to suggest a name to PW1 especially since she herself said that she implicated another person's name to the doctor, who examined her for pregnancy. 32. The accused, while examined as DW1, stated that PW1 had not told him who was responsible. Needless to say that it was easy for the accused to take a defence that another person was the actual culprit, especially since PW1 has given such a version before the doctor in the Malabar Hospital and the such version was recorded also in the medical records. But even then, the accused did not implicate any particular person as responsible for PW1's pregnancy. The omission to take up such a defence implicating a specific person as responsible for the pregnancy alone cannot be treated as a circumstance to hold that the accused himself is the culprit. CRA 546/2010 19 33. PW1 herself admitted in cross-examination that her grandmother used to scold her when she is found talking to one 'Varuvettan', who is a near relative. It has also come out from her evidence that people of the locality had brought the said 'Varuvettan' to her on knowing about pregnancy. Since evidence of PW1 itself reveals that another person was implicated by her for pregnancy, investigating officer ought to have ascertained why later, he was exonerated and the father was implicated. 34. DW4, who is accused's second wife, gave evidence that PW1's friends used to visit the grandmother's house and one of them might be responsible for the pregnancy. According to court below, the name of the said person was implicated by her father and it is not people of the locality who had brought him to PW1. It is relevant to note that even during trial the accused did not make any allegation that any particular person was responsible for the pregnancy. Not even a suggestion is made in the cross-examination that any particular person was responsible for the pregnancy. It would appear only that the accused nor his wife knew who was actually responsible for impregnating his CRA 546/2010 20 daughter. 35. Learned counsel for accused argued that an incident as alleged would not have happened, since it was easy for her to alert the siblings, who were present in the same room at the time of occurrence. As per the evidence of PW1, she was sleeping with her father on the cot and on the floor her sister aged 10 years was also sleeping. The alleged time of occurrence is only 9.30 p.m. and it may not be the time for plunging into deep sleep, it is pointed out. As per evidence, the accused was physically invalid and he did not have his