IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 Crl.Rev.Pet.No. 454 of 2004(B) ------------------------------ CRA.51/1998 of ADDL.DISTRICT & SESSIONS COURT (ADHIOC FAST TRACK COURT-II) PATHANAMTHITTA. SC.40/1996 of ASSISTANT SESSIONS COURT, THIRUVALLA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- JIJO, S/O. KUNJUMON, PODIPPARA HOUSE, ANICKADU MURI, ANICKADU VILLAGE. BY ADV. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.K.ANIL MUHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No. 454 OF 2004 =========================== Dated this the 12th day of August,2010 ORDER Revision petitioner, the accused in S.C.40/1996 on the file of Assistant Sessions Court, Thiruvalla was convicted and sentenced to rigorous imprisonment for seven years and fine of Rs.1,000/- and in default rigorous imprisonment for six months for the offence under Section 376 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions Court, Pathanamthitta in Crl.A.51/1998. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and reduced the sentence to rigorous imprisonment for four years retaining the fine. Revision is filed Crl.R.P.454/2004 2 challenging the concurrent conviction. 2. Prosecution case is that on 15/10/1995 at about 2.30 p.m, PW1 the prosecutrix was proceeding along Pullukuthi Neelampara public road to call her father, who was working in the nearby property. On the way she found petitioner and PW6 Haridas sitting on the side of the road. Petitioner called her and followed her. When PW1 reached near the culvert, petitioner caught her from behind and forcibly took her into the culvert and committed rape on her. PW3, her mother searched for PW1, as she did not reach the house, though PW4 the father reached there. PW3 found the petitioner running from the culvert and also PW1 lying inside the culvert. She dragged her out. By that time PW2, the mother of PW4 also reached there. They took PW1 to the hospital from where PW7 the doctor examined her on 17/10/1995 and prepared Ext.P4 wound Crl.R.P.454/2004 3 certificate. PW11 Head Constable recorded Ext.P1 FI statement of PW1 on 16/10/1995, at 12.30 p.m and under Ext.P8 FIR, crime No.163/1995 was registered by PW12 under Section 376 of Indian Penal Code. PW13 investigated the case and PW14 successor Circle Inspector lodged the charge which was taken cognizance by the learned Magistrate and committed to the Sessions Court. Learned Sessions Judge made over the case for trial to Assistant Sessions Court, Thiruvalla. Petitioner pleaded not guilty, when the charge for the offence under Section 376 of Indian Penal Code was framed and read over to him. Prosecution examined 14 witnesses and marked Exts.P1 to P8 and identified Mos.1 to 3. When petitioner was called upon to enter on his defence and adduce evidence, after questioning him under Section 313 of Code of Criminal Procedure and hearing the prosecution and Crl.R.P.454/2004 4 defence and finding that it is not a case without any evidence, petitioner examined Dws.1 and 2. Learned Assistant Sessions Judge thereafter on appreciation of the evidence found the petitioner guilty. He was convicted and sentenced for the offence under Section 376 of Indian Penal Code. Learned Additional Sessions Judge in the appeal filed by the petitioner re-appreciated the evidence and confirmed the conviction and reduced the sentence to rigorous imprisonment for four years. Revision petitioner would contend that courts below did not properly appreciate the evidence and on the evidence, the conviction is unsustainable. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Argument of the learned counsel is that prosecution case should have been Crl.R.P.454/2004 5 disbelieved as it is highly improbable. It was pointed out that as per Ext.P5 scene mahazar the culvert is having only a height of 53 cm. and width of 1.02 metre and evidence of PW1 that she was taken into that culvert by the petitioner forcibly, undressed her and committed rape is not at all probable. Learned counsel argued that Ext.P4 wound certificate with the evidence of PW7 the doctor establish that she did not sustain any injury, which cannot be the case, if she was taken inside the culvert by force and that too without her consent and thereafter in spite of resistance petitioner laid on her and then committed rape. It is therefore argued that evidence of PW1 should not have been believed. Learned counsel argued that incident allegedly occurred inside the culvert where two persons together cannot enter as deposed by PW13 and there are houses near to the scene of Crl.R.P.454/2004 6 occurrence and if PW1 had cried as claimed by her, neighbouring residents would have heard the cry and in such a place petitioner would have dared to commit a heinous offence. It is also argued that evidence of PW7 the doctor with Ext.P4 wound certificate does not establish any recent sexual intercourse when PW1 was subjected to examination. Learned counsel therefore argued that case of rape should not have been accepted by the courts below. Learned counsel also argued that though PW7 claimed that vaginal swab and smear were collected and sent for examination, the certificate of chemical analysis was not produced before the court and that could only be for the reason that it did not disclose presence of spermatozoa and if there was rape as claimed by PW1, there should necessarily be presence of spermatozoa on the vaginal smear and swab and therefore, courts below should Crl.R.P.454/2004 7 have acquitted the petitioner. Learned counsel finally submitted that in any case, considering the fact that incident took place in 1995 and petitioner was only 16 years at that time leniency may be shown, pointing out that PW1 subsequently married and is now leading a happy married life. 5. Learned Public Prosecutor pointed out that Assistant Sessions Judge, who had the opportunity to note and appreciate the demeanour of PW1 had found her evidence trustworthy and reliable. It was also pointed out that there is no improbability in the evidence of PW1 and her evidence inspires confidence and was corroborated by the evidence of Pws.2 and 3 and in such circumstances, there is no reason to interfere with the conviction and sentence. 6. PW1 the prosecutrix unveiled the entire incident with all the minute details. In Crl.R.P.454/2004 8 Ext.P1 FI statement itself she has disclosed what transpired while she was walking along the road and finding petitioner along with PW6 sitting on the side of the road. Evidence of PW2 the mother-in-law of PW3 corroborates the evidence of PW3 on material aspects. Evidence of PW2, the grand mother of PW1 also corroborates the evidence of PW1 on certain aspects. Learned Assistant Sessions Judge and learned Sessions Judge found the evidence of Pws.1 to 3 credible and trustworthy. Question is whether appreciation of evidence was perverse and whether conclusions arrived by the courts below could be arrived on the evidence on record. 7. PW1 was aged only 16 years at the time of incident in 1995 as proved by Ext.P6, her school admission register, which was not disputed at the time of recording the evidence. Though learned counsel appearing for the Crl.R.P.454/2004 9 petitioner vehemently argued that the incident as spoken to by PW1 is highly improbable, taking into consideration the height and width of the culvert and absence of injuries on the body of the victim, on appreciating the entire evidence, in the proper perspective, I cannot agree with the submission. Though height of the culvert is only 53 cm., that does not make the prosecution case or the evidence of PW1 improbable. 8. Though it was argued that absence of injuries on the body of PW1 improbabalise the version of PW1, evidence establish that inside the culvert there was no rock or stone and instead there was only sand and mud. In such circumstances absence of injury on the body of PW1 does not falsify her evidence. Though learned counsel argued that for the failure of the prosecution to produce the report of chemical analysis of the vaginal swab and smear, non production of the report could only be for the absence of spermatozoa found , even if Crl.R.P.454/2004 10 it is taken that there was no sperm found on the vaginal swab or smear, that will not make the evidence of PW1 unreliable or untrustworthy. To constitute an offence under section 376 of Indian Penal Code, it is not the law that semen should eminate from the male partner. The penetration itself will be sufficient to constitute an offence. Evidence of PW1 establishes that there was penetration. 9. On a proper analysis of the evidence of PW1 the evidence was found trustworthy, credible and reliable. Her evidence has been further corroborated by the evidence of PW3. Though minor contradictions were pointed out by the learned counsel appearing for the petitioner, they are not fatal. Relying on the decision of the Apex Court in Dinesh Jaiswal v. State of Madhya Pradesh (2010) 3 SCC 232), Bibhishan v. State of Maharashtra (2008) 3 SCC (Cri) 163), and Sadashiv Ramrao Hadbe v. State of Maharashtra and another(2007) 1 SCC (Cri) 161 it was argued that absence of materials to prove rape by medical evidence, prosecution case is Crl.R.P.454/2004 11 to be disbelieved, I cannot agree with the submission on the facts of the case. The evidence of PW1 corroborated by the evidence of PW3 and to certain extent by the evidence of PW2, establish the commission of offence. It is to be born in mind that even the defence case was that PW1 had sexual intercourse on that fateful day. What was suggested by the petitioner to the witness was that PW1 had an affair with Biju, her cousin brother and petitioner and PW6 taunted Biju on this account and on that fateful day they found Biju proceeding towards the house of PW1 and they followed him and on reaching the house, they went to the back side of the house and there they found PW1 engaged in sex with Biju and they made hue and cry and people gathered there and because of the incident the case was foisted against the petitioner. At the outset itself the defence story is so improbable that it cannot be believed. Evidently the case of sexual intercourse with Biju was alleged to explain the sexual act to which PW1 was subjected to. That strengthens her evidence. Moreover, even if it is Crl.R.P.454/2004 12 taken that PW1 was having an affair with Biju, it is none of the petitioner's concern and even if it is taken that petitioner interfered with in that relationship, it is improbable to believe that PW1 or PW3 the mother or PW4 the father would foist a case tarnishing the future of their daughter. In the Indian society chastity of a girl is treated as paramount importance. No parent will be prepared to risk the honour and the fame of the family or daughter taking the risk of foisting a false case that their daughter was subjected to rape. So also, no girl at the age of PW1 would falsely allege that she was subjected to rape and that too for the reason that petitioner and his friend had insulted Biju with whom she had an alleged relationship. It is to be born in mind that whatever be the fate of the case, the allegation of rape is affecting the honour of the family as well as the name and fame of PW1. In such circumstances, I have no hesitation to hold that learned Assistant Sessions Judge and learned Addl.Sessions Judge appreciated the evidence in the Crl.R.P.454/2004 13 proper perspective and found that petitioner committed rape on PW1. Conviction of the petitioner for the offence under section 376 of Indian Penal Code is therefore legal and correct and warrants no interference. 10. Then the only question is regarding the sentence. Though learned Assistant Sessions Judge awarded rigorous imprisonment for seven years, learned Addl.Sessions Judge reduced the sentence to rigorous imprisonment for four years. The question is whether the sentence is to be further modified. Though learned counsel argued vehemently that considering the time lag and the age of the petitioner, sentence is to be reduced and also shown a medical certificate that petitioner was involved in a road traffic accident on 31.7.2010 and sustained grievous hurt, I find these circumstances insufficient to interfere with the sentence. An offence of this nature warrants proper punishment. Still in the interest of justice the sentence is reduced to rigorous imprisonment for three years. Crl.R.P.454/2004 14 Revision is allowed in part. Conviction of the petitioner for the offence under section 376 IPC is confirmed. Sentence is modified by reducing the substantive sentence to three years from 4 years awarded by the learned Additional Sessions Judge in Crl.A.51/1998 maintaining the fine. Petitioner is directed to appear before Assistant Sessions Judge on 15.9.2010. Assistant Sessions Judge is directed to execute the sentence. M.SASIDHARAN NAMBIAR JUDGE uj/tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006