IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 CRL.A.No. 1158 of 2008() ------------------------ SC.582/2007 of SESSIONS COURT, THODUPUZHA CP.32/2007 of JFCM II, PEERMADE .................... APPELLANT(S): -------------- VIDHYADHARAN, C.NO.2596, CENTRAL PRISON, TRIVANDRUM. BY ADV. ADV.SANGEETHA LAKSHMANA [STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1158 of 2008 ---------------------------------------------- Dated, 19th January, 2009. JUDGMENT A convict for the offences under sections 377 of IPC and Section 3(1)(xi) of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is the appellant , who is undergoing imprisonment in pursuance of the impugned judgment in S.C.No.582/2007 of the Sessions Judge, Thodupuzha, and hence this appeal. 2. The prosecution case is that on 5.2.2006 at about 6.30 a.m., the accused committed carnal intercourse with the victim who belongs to Scheduled Caste community and thereby the accused committed the offences punishable under sections 377 and 354 of IPC and also under sections 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,`the Act' only). On the basis of the above allegation, crime No.25/2006 was registered in the Peruvanthanam police station. After completing the investigation, final report was filed before the Judicial First Class Magistrate-II, Peermade. By order dated 13.11.2007 in C.P. No.32/2007, the learned Magistrate committed the case to the Sessions Court. On appearance of the accused, after hearing both CRL.A.1158/08 -:2:- the prosecution as well as the defence, a formal charge under section 377 IPC and Section 3(1)(xi) of the S.C & ST Act, 1989 was framed which read over and explained to the accused who pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 11 were examined and Exts.P1 to P15 were produced as contemporary documents from the side of the prosecution. Material objects were identified and marked as M.Os 1 to 3 during trial. When, the incriminating circumstances which emerged during the prosecution evidence, put to the accused, he denied the same under section 313 of Cr.P.C. He took a defence of total denial. Finally, the trial court found that the accused is guilty of the offences charged against him. Thus on conviction, after hearing the accused, he is sentenced to undergo 7 years imprisonment and also sentenced to pay a fine of Rs.5000/- and in default to undergo simple imprisonment for one year in paying the fine amount, under section 377 of IPC and also sentenced to undergo two years rigorous imprisonment for the offence under section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The above sentences are ordered to run concurrently. Set off is allowed under section 428 of Cr.P.C. It is the above finding and sentence challenged in this appeal. 3. As the appeal is preferred from the jail and the appellant is CRL.A.1158/08 -:3:- undergoing imprisonment, Adv. Smt. Sangeetha Lakshmana is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus I have heard Smt. Sangeetha Lakshmana, the learned counsel appearing for the appellant, and the learned Public Prosecutor. 4. The prosecution case mainly reveals through the oral evidence of PWs 1 and 2 and supported by the medical evidence which consists of the deposition of PWs 5 and 6 and the documentary evidence such as Exts.P4, P5 and P11 F.S.L. report. According to the prosecution case, the victim (PW2), her mother (PW1) and the accused are neighbours and they knew each other. According to the prosecution case, on 5.2.2006 at about 6.30 a.m., the accused came into the house of PW1, where PW1 and PW2 are residing. According to PW1, when she went out for giving milk, the accused entered into the house and laid near PW2, the victim, and he lifted her midi and sucked her vagina and after that he scratched his penis on her back till ejaculation of semen. It is also her case that after the accused made her to lie facing up and kissed her, then he took his semen from her back and rubbed on her thighs. When PWs 1 and 2 were examined , they deposed in terms of the above case of prosecution. According to PW1, PW2 was warned by the accused that the incident shall not be disclosed to anybody and thereafter he left the scene of occurrence. When PW1 came back, the victim - PW2 said about the CRL.A.1158/08 -:4:- incident to PW1 and thereafter PW1 informed the matter to the father of PW2 and on the next day, PW1, PW2 and father of PW2 went to Peruvanthanam police station and disclosed the incident to PW9, the S.I. of Police who recorded the F.I.Statement of PW1. Thereafter PW9 registered Ext.P15 F.I.R for the said offences. When PW2 was examined, she had also deposed before the court in tune with PW1. Thus, the testimony of PWs 1 and 2 further shows that after registering the FIR, PW2 was sent to the Taluk Head Quarters Hospital, Kanjirappalli wherein she was examined by PW5 who thereon issued ExtP9 wound certificate. 5. The investigation was undertaken by PW7. During examination of PW7, it is brought on record that on his undertaking the investigation, he had inspected the place of occurrence and prepared Ext.P6 scene mahazar. PW1 produced the midi top and sheddy which were worn by PW2 at the time of the incident and those materials were seized by PW7 as per Ext.P7 seizure mahazar. Those materials were identified and marked as M.Os 1, 2 and 3 respectively during the trial. Ext.P8 search memo and Ext.P9 search list were marked and proved through PW7. Ext.P10 is the forwarding note marked through PW7 on the basis of which material objects were sent for Forensic Science Laboratory Report and accordingly, Ext.P11 report obtained. Ext.P12 plan of place of CRL.A.1158/08 -:5:- occurrence got prepared by PW7 through the Kokkayar Village Officer. Ext.P13 is the ownership certificate pertained to the house where the incident took place. PW8 is the successor of PW7 who took the investigation from PW7 on 2.3.2006. PW8 filed Ext.P14 report to alter Section 3(1)(xii) to Section 3(1)(xi) of the S.C. & ST Act. PW11 is the successor of PW8 who continued the investigation with effect from 28.7.2007. As stated earlier, the S.I. of Police then attached to the above police station arrested the accused on 28.8.2007 and produced before PW6 Dr. Thomas who issued Ext.P5 potency certificate after examining the accused. On the basis of he above evidence, the trial court found that the accused has committed the offence charged against him. 6. The learned counsel appearing for the appellant contended that the prosecution has miserably failed to establish the case by adducing cogent and satisfactory evidence. The learned counsel further submitted that the prosecution has failed to adduce independent evidence and therefore, the evidence of PWs 1 and 2 and the official witnesses cannot be believed. It is also the case of the learned counsel that the prosecution has miserably failed to connect the accused with the alleged offence as there is no scientific evidence in this regard. The learned counsel specifically pleaded that the prosecution has not proved that the semen detected from M.Os1 to 3 are that of the accused. According to the learned counsel, in CRL.A.1158/08 -:6:- the absence of such evidence, the evidence of PWs 1 and 2 and the other official witnesses cannot be acted upon without the corroboration of their evidence from independent source. It is argued that there is unexplained delay in registering the crime. Thus According to the learned counsel , the judgment of the trial court is liable to be set aside. 7. Per contra, the learned Public Prosecutor pointed out that the evidence of PWs 1 and 2 are intact. Even according to the prosecution, PWs 1 and 2 and the accused are neighbours and they knew each other. The identity of the accused fully proved through the evidence of PWs 1 and 2. PWs 1 and 2 have categorically deposed regarding the entire incident that taken place on the date of incident. The learned Public Prosecutor submitted that the deposition made by PWs 1 and 2 fully corroborated and further substantiated by medical evidence adduced by the prosecution. Thus according to the learned Public Prosecutor, the finding arrived on by the court below and the conviction and sentence imposed by the court below are perfectly legal and valid and deserve no interference. 8. I have carefully considered the arguments advanced by both the counsel for the appellant and the learned Public Prosecutor and also perused the evidence and materials on record. 9. The victim, PW2, who is a 10 year old girl at the time of the CRL.A.1158/08 -:7:- occurrence has categorically stated before the court regarding the incident. There is no infirmity or any discrepancy in her evidence. She has identified the accused who is responsible for this heinous crime. PW1 also deposed in the court in accordance with the prosecution case. It is at her instance, Ext.P1 F.I.Statement was recorded based upon which PW9 registered Ext.P15 FIR. The evidence consists of PW5 Doctor attached to the Taluk Head Quarters Hospital, Karunagappally who issued Ext.P4 medical examination certificate, confirmed the sexual assault on the victim at the instance of the accused. Though these witnesses were cross examined extensively, nothing brought to discredit their version and failed to create any challenge against the prosecution case as such. The trial court, in para 12 of the impugned judgment has observed and held that the evidence of PW2 would show that after seminal discharge on her back, the accused took the same in his hand and rubbed the same on her thighs. That must be the reason of staining semen on her sheddy and top. The trial court further found that the seminal stains found on M.Os 2 and 3 - top and sheddy respectively, which is evident from Ext.P11 would corroborate the evidence of PW2 to a certain extent. Thus the trial court found that the prosecution has succeeded in establishing all the ingredients of Section 377 of IPC. 10. By producing Ext.P3 community certificate and proving the CRL.A.1158/08 -:8:- same through PW4 - Tahsildar, the prosecution has also established that the victim belongs to Hindu Cheramar i.e. Pulaya which is a Scheduled Caste Community. Another point argued by the learned counsel is that there is delay in lodging Ext.P1 F.I.Statement and the consequent registration of Ext.P15 F.I.R. In this juncture, it is relevant to note that the incident was taken place, according to the prosecution, at about 6.30 a.m. on 5.2.2006. PWs 1 and 2 have categorically stated before the court that the accused warned the victim not to disclose the incident to anybody. However, the victim disclosed the incident to PW1 subsequently and during that time, the father of the victim was not in the house who is engaged in tapping and only on his return, his wife - PW1, informed the incident to her husband and it is thereafter, both PWs 1 and 2 and father of the victim went to the Peruvanthanam police station. Admittedly, the prosecution parties are residing in House No.IX/92 of Kokkayar Panchayat, Gandhinagar colony. Therefore, considering the facts and circumstances involved in the case, I am of the view that there is no delay at all in preferring Ext.P1 F.I.Statement and even if there is delay, the reason is explicit from the circumstances involved in the case. As the incident took place at about 6.30 a.m., at the house of the victim which is situated in high range, it is not practically possible or expected the presence of anybody to witness the incident or any facts related thereto. In the light of CRL.A.1158/08 -:9:- the above facts and circumstances and going by the judgment of the trial court, I find no reason to interfere with the finding arrived on by the court below. Consequently, the conviction is confirmed. 11. With respect to the sentence, the learned counsel submits that a lenient view may be taken. From the evidence of PW2, it can be seen that the victim has treated the accused and respected him equal to that of her father. That is why she addressed the accused as “തഴതചന ''.The accused at the alleged time of occurrence was at the age of 51 years and such a man committed this kind of heinous and cruel offence and therefore he deserves no leniency. The appeal lacks merit and accordingly the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.A.1158/08 -:10:- V.K.MOHANAN, J. CRL.A.No.1158/2008 Judgment Dated:19..1..2009