IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 CRL.A.No. 2213 of 2009() ------------------------------ SC.133/2007 of ADDL.SESSIONS COURT(SPL.COURT FOR TRIAL OF SC/ST(PA) ACT CASES,KOZHIKODE .................... APPELLANT(S): ACCUSED ------------------------------ C.T.RAVEENRAN, S/O.DAMODARAN NAIR, CHEMBAKASSERY, THAIKANDINILAMBATH HOUSE, KASBA AMSOM, DESOM, NOW RESIDING AT MAMBAZHAKATTUVEETTIL, MEETHAL, PANTHIRAMKAVU. BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH RESPONDENT(S): COMPLAINANT -------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ “CR” PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -------------------------------- Crl.A.No.2213 OF 2009 --------------------------------- Dated this the 2nd day of November, 2010 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The Sessions Judge, Kozhikode, who is also a Special Judge under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST (PA) Act' convicted the appellant for offence under Section 457 and 376 IPC and Section 3(2)(v) of the SC/ST (PA) Act and sentenced to rigorous imprisonment for two years and a fine of Rs.1000/- with default sentence for a further period of six months under Section 457 of the IPC. For offence under Section 376 of the IPC, the appellant was sentenced to rigorous imprisonment for 10 years and a fine of Rs.5,000/- with default sentence of simple imprisonment for one year. For offence under Section 3(2)(v) of the SC/ST (PA) Act, the appellant was sentenced to imprisonment for life and a fine of Rs.10,000/- with default sentence of imprisonment for one year. The above conviction and sentence are now under challenge in this appeal. Crl.A.No.2213/2009 2 2. The prosecution case in brief is that at 00.30 hours on 20.1.2005, the appellant inorder to commit rape on now late P, broke opened the door of house bearing door No.V/1985 of Kozhikode Corporation, wherein P was residing and thus committed house breaking by night and then committed rape on late P, who belongs to a Scheduled Caste community. The appellant belongs to Hindu Nair Community. Late P was employed as a Nursing Assistant at medical College Hospital, Calicut. She had two daughters. Youngest daughter, R had an inter-caste marriage with Venugopal, the brother of the appellant. It is revealed that relationship between R and Venugopal later got strained. At 9.p.m. on 19.1.2005, the appellant reached the above house of late P and enquired about his brother Venugopal. When P stated that Venugopal was not there in the house, the appellant asked for some water stating that he had to drink more water as he had infection in his genitals. The appellant was given water. Then he requested for supper. P served supper also and by about 10.p.m. the appellant left the house. PW2, a lady in the nearby house, who was in her periods had been staying with P on that day. After supper, P and PW2 went to bed. By about 12'O clock in the night, they woke up Crl.A.No.2213/2009 3 hearing the ringing of the calling bell. The appellant, who was outside, asked P to open the door and threatened that he would break open the door. Soon, the appellant kicked opened the front door and entered the house. P and PW2 opened the back door and took to their heels. Seeing P running away from the house, the appellant chased her, caught hold of her, took her into the bed room. PW2 cried aloud and ran to the neighbouring house, wherein, PW3, then an Excise Inspector and his father were residing. Hearing the cry of PW2, PW3 and his father woke up and came out of the house. All the three entered the house and found that P was being raped by the appellant. When PW3 and father attempted to intercept, they were intimidated. They turned from their attempt. Later, the appellant went out. PW2 along with the victim went to the house of another neighbour, Vijayan, and telephoned to the police. PW5, a Head Constable attached to the Flying Squad, on getting phone call rushed to the house of P by about 00.30 hours. P stated to PW5 that the appellant committed rape on her after broke opening the house. PW5 took P to Nadakkavu Police Station wherein PW11 was the Sub Inspector of Police. After recording Ext.P2, First Information Statement, given by P, PW11 registered a case as Crime Crl.A.No.2213/2009 4 No.35/2005 for offence under Sections 448 and 376 IPC for which Ext.P2(a) FIR was prepared. Stating that the appellant had also committed offence under the provisions of the SC/ST (PA) Act, Ext.P8 report was filed. The investigation was taken over by PW13, Assistant Commissioner of Police, Kozhikode North. He arrested the appellant on 21.1.2005 and sent for medical examination. The victim was also sent for medical examination. PW13 went to the spot of occurrence and prepared Ext.P10 Mahazar, whereby, the nighty, underskirt and bed sheet, which were marked as MOs 1 to 3, were seized. MOs 1 to 3 were sent for chemical examination. After completing the investigation, the charge sheet was laid by PW13 alleging offences under Sections 448 and 376 IPC and Section 3(2)(v) of the SC/ST (PA) Act before the Judicial Magistrate of the First Class - IV, Kozhikode. Since the offence alleged is triable by Special Judge, the learned Magistrate committed the case to the court of Sessions, Kozhikode. 3. The learned Sessions Judge, after hearing the prosecution and the appellant, framed charge for offence under Sections 457, 376 IPC and Section 3(2)(v) of the SC/ST (PA) Act . Crl.A.No.2213/2009 5 When the charge was read over and explained, the appellant pleaded not guilty. Therefore he was sent for trial. On the side of the prosecution, PWs 1 to 13 were examined. Exts.P1 to P14 (a) and MOs1 to 3 were marked. Thereafter, the appellant and the prosecution were heard. On finding that the appellant was not entitled to be acquitted under Section 232 of the Code of Criminal Procedure, the appellant was called upon to enter his defence. On his side, a Civil Surgeon attached to the Government Mental Health Centre, Kozhikode was examined as DW1 and Ext.D1 was marked. Upon hearing either side and analysing the evidence on record, the learned Sessions Judge arrived at a finding of guilt. Consequently, the appellant was convicted and sentenced as above. 4. The victim was not examined as she had left to her heavenly abode at the time of trial. Now, in support of the prosecution, there is the direct evidence of PWs 2 and 3. PW2 had deposed that she was a neighbour of the victim and on 19.1.2005 since she was in her periods she had been staying with the victim and that at 9.p.m. the appellant reached the house in search of his brother, Venugopal. When it was stated Crl.A.No.2213/2009 6 that Venugopal was not there, the appellant asked for water. When water was given, the appellant requested for supper. The victim served supper and the appellant left by about 10.p.m. PW2 and the victim also took their supper and went to bed. By about 00.30 a.m. hearing the ringing of the calling bell, they woke up and enquired as to who was outside. Then it was threatened that the door should be opened and police personnel are around the house. The front door was kicked open. Seeing that, PW2 and victim took to their heels through the back door. The appellant chased them and the victim was caught and took to the house. PW2 got scared and cried aloud. She called the immediate neighbour. Hearing the cry of PW2, the neighbour Gopalan Master along with his son reached there. They went to the house and found that the appellant was committing rape on the victim. When Gopalan Master and his son, who was examined as PW3, asked the appellant to go out, they were intimidated with death. Hearing that, PW3 and his father went home. PW2 waited outside. After a few minutes, victim came out of the house crying that she was committed rape. PW2 and victim went to the house of another neighbour Vijayan and telephoned to the police. The nighty, underskirt and the bed Crl.A.No.2213/2009 7 sheet identified by PW2 were marked as MOs 1 to 3. Police reached the house of the victim and they were taken to the police station. The victim gave the statement in the presence of PW2. 5. PW3 had deposed that he was working as an Excise Inspector and was staying along with his father in the neighbourhood of the victim and that at the small hours on 20.1.2005, they woke up hearing the crying of a lady. They switched on the light and came out. PW2, who was standing outside the gate, told that the victim was being assaulted by the appellant and requested for help. PW3 along with his father rushed to the house of the victim and found that the victim was being raped by the appellant and that the electric lights were switched on . When PW3 asked the appellant as to what he was doing, the appellant, who is familiar to him, intimidated PW3 with death. They got scared and went home. 6. PW4, who is the daughter of the victim, is none other than the sister-in-law of the appellant. She had deposed that her mother was staying alone and that she used to visit her mother Crl.A.No.2213/2009 8 every day and on 20.1.2005 when she went home she knew that the mother had gone to the police station. She rushed to the police station. Her mother, who was in the police station, told that on the previous night at about 12.30-1.00 O'clock the appellant broke opened the door of the house. Though the victim and PW2 took to their heels, the victim was caught by the appellant and she was taken inside the house and committed rape. 7. PW5, the Head Constable attached to a Flying Squad-1 would depose that at 00.30 hours at the midnight of 20.1.2005 information was received that somebody trespassed to the house of late P. He along with the police party rushed to the spot and found P and PW2 standing in front of the house. They were crying. On enquiry, it was told that the appellant broke opened the door, entered the house, P, who ran away was chased, caught hold, brought inside the house and committed rape. PW2 and P were taken to the Nadakkavu police station. The evidence of PW11 would show that at 1.45 p.m. P was brought to the police station and Ext.P2 statement of P was recorded. On the basis of Ext.P2, a case as Crime No.35/2005 Crl.A.No.2213/2009 9 for offence under Sections 448 and 376 IPC was registered and later, on finding that offence under Section 3(2)(v) of the SC/ST (PA) Act was also committed Ext.P8 report was filed. 8. PW6 had deposed that on 20.1.2005 she was working as Lecturer in Gynecology Department at Medical College Hospital, Kozhikode and on that day she examined the victim aged 54 years, who was working as a Nursing Assistant in the Medical College hospital and issued Ext.P3 certificate and that P was brought with a history of house breaking and rape. 9. PW7 would depose that he, who was working as Associate Professor and Deputy Police Surgeon, Department of Forensic Medicine, Government Medical College, Calicut, conducted the potency test on the appellant and issued Ext.P4 certificate . He had further deposed that there was nothing to suggest that the appellant was incapable of performing the sexual acts. 10. PW10 would depose that he was Additional Tahsildar of Kozhikode and that he had issued a Caste Certificate relating Crl.A.No.2213/2009 10 to the appellant, who belongs to Hindu Nair Community. He had also issued a Caste Certificate relating to P, the victim, and that Ext.P7 is the Certificate and that the victim belonged to Hindu Kanakkan community, which is a Scheduled Caste. 11. The case of the appellant is that the brothers of the appellant committed mischief on the house of P and due to the enmity he, who is a mental patient, was falsely implicated. It is in support of plea of insanity, DW1, a Civil Surgeon attached to the Mental Health Centre, Kozhikode was examined and Ext.D1 medical record book was marked. Ext.D1 would show that the appellant was admitted in the Mental Health Centre on 10.4.2002 with a history of alcohol induced psychotic disorder. It is seen that some medicines were prescribed and appellant had undergone treatment till 19.6.2002. Ext.C1, a certificate issued by DW1, was also marked in support of the plea of insanity. The evidence of DW1 coupled with Ext.C1 would show that the appellant who was arrested and produced before the Judicial First Class Magistrate-IV, Kozhikode was referred to DW1. In Ext.C1, it is certified that the appellant was suffering from Bipolar Affective Disorder Currently Manic episodes with Crl.A.No.2213/2009 11 harmful use of alcohol. However, it was certified that the appellant could be managed by out patient treatment and that he was fit to undergo trial. 12. The learned Sessions Judge, going by the evidence of PWs 2 and 3, arrived at a conclusion that their evidence is trustworthy. We were taken through the evidence by Sri.Shaju Purushothaman, learned counsel appearing for the appellant. On a careful scrutiny of the evidence of PWs 2 and 3, we find that they, who had seen the appellant committing rape on the victim, had given evidence in support of the prosecution case. The evidence of PWs 2 and 3 were assailed by the learned counsel stating that the conduct of the witnesses is against the natural course of human conduct and that though they had stated that they had seen the appellant committing rape on P, they didn't obstruct the appellant but they were simply waiting. It is true that they could not prevent the appellant. A careful scrutiny of the evidence of PWs 2 and 3 would show that PW2 was very much got scared and she was in fact crying aloud for help. It is hearing the cry of PW2, PW3 and his father came out of their house and found PW2 crying for help and stating that P Crl.A.No.2213/2009 12 was being assaulted by the appellant. When PWs 2 and 3 along with the father of PW3 entered the house, they found the appellant committing rape on P. PW3 and his father tried to intervene by asking what he was doing, but they were intimidated with death by the appellant. According to PWs 2 and 3, being got intimidated, they retracted. It is true that PW3 was then working as an Excise Inspector and sometimes he could have effectively interfered or rescued the victim. But we notice that response of persons vary from individual to individual. Some people may get stuck on seeing these sort of actions. Some people may respond; some people would dare to interfere with. We are not in a position to assess as to which category PW3 or his father would belong. The question is whether he is to be believed or not. We have carefully gone through the evidence of PWs2 and 3. PW2 is, no doubt, a village rustic lady. She got scared even by the sight of the appellant. There is nothing unnatural, but quite natural. Regarding the conduct of PW2, the learned counsel for the appellant has no case that it was unnatural. PW3 being a responsible officer in the subordinate service of the State, there is nothing wrong in expecting a more courageous response than from PW2. But we have to bear in Crl.A.No.2213/2009 13 mind that there may be a wide gap between the expected and the received. Courage is not always gender or position related. A man may be cowardice than a woman. What is inferable from the evidence of PW3 is that he was not courageous. That is not a reason to disbelieve him. Evidence of PWs 2 and 3 corroborate in sum and substance. They withstood the test of cross- examination. In the above circumstances, we find that though PWs2 and 3 or the father of PW3 didn't interfere with the appellant, that is not at all a reason to disbelieve them, especially, when little material was disclosed in the cross examination of PWs 2 and 3 to disbelieve them. What was suggested to PW2 in cross examination is that she had been giving evidence to help the victim. To PW3 it was suggested that he had been giving evidence because of the enmity to the son-in- law of the victim. There is no suggestion in cross-examination that either PW2 or PW3 had got any axe to grind against the appellant to implicate the appellant with a serious crime of this nature. The evidence of PWs 2 and 3 appears to be natural and convincing. Crl.A.No.2213/2009 14 13. The learned counsel for the appellant argued that there was no evidence of penetration and in the absence of the evidence of the victim regarding penetration, the appellant is entitled to the benefit of doubt. The learned counsel had given reliance to the evidence of PW6 and argued that the evidence of PW6 would show that there was no mark of violence and that there was no recent evidence of vaginal dilatation. It was also argued that vaginal smear and swab sent for chemical examination would show that there was no spermatozoa. According to the learned counsel, by the evidence of PW6 it can be seen that there was no penetration at all. It is crucial to note that there is no suggestion to PW6 that there was no penetration. On a critical analysis of the evidence of PW6 coupled with Ext.P3 and evidence of PWs 2 and 3, we are unable to accept the argument advanced by the learned counsel for the appellant. The victim being aged 54 years and a mother of two grown up daughters, it is not at all always necessary that there might be injury and vaginal dilatations in the case of rape. PW6 had also deposed that vagina admitted two fingers. In such circumstance and if vagina was flexible there may not be any evidence of penetration. It is crucial to note that to PW6 there Crl.A.No.2213/2009 15 was no cross examination at all regarding the possibility of rape on the victim without injury and dilatation of vagina. The defence could have elicited from PW6 as to whether there was penetration or not. But that was not put to the witness. Therefore, the argument without challenging the evidence of the expert while in the box doesn't deserve considerations. There is no cross examination against PWs 2 and 3 that there was no rape at all. PW2 is a lady aged 48 years and a mother of two daughters. PW3 was also aged 40 years. The evidence of PWs 2 and 3 that the appellant had committed rape on the victim could not be shaken in cross examination. It is true that their evidence didn't specifically mention that there was penetration. But their evidence is that there was forced sex. Both PWs 2 and 3 are aware as to what is sexual union. It is pertinent to note that there may not be always spermatozoa in a case of rape. The spermatozoa could be detected only if there was ejaculation. There is no evidence on record to show that there was ejaculation. Even penetration without ejaculation would amount to offence under Section 376 of the IPC. So the non-presence of spermatozoa on the vaginal smear and vaginal swab is not at all a reason to arrive at a conclusion that there occurred no rape or to disbelieve PWs 2 and 3. Crl.A.No.2213/2009 16 14. The evidence of PW4 would show that on the next day morning when she went to the house of the victim it was known that the victim had gone to the police station. She rushed to the police station. The victim narrated to PW4 that the appellant committed rape. The evidence of PW4 on that aspect is further corroborated by the testimony of PW5, the Head Constable, who had rushed to the house on getting information soon after the occurrence. To PW5 also, the victim had stated that she was raped by the appellant, who is none other than the brother of her son-in-law. The evidence of PWs 4 and 5 is relevant under Section 6 of the Evidence Act. Though PWs 4 and 5 were subjected to cross examination nothing was revealed out to disbelieve them. The learned counsel for the appellant submitted that PW4 was on strained relationship with her husband and for that reason the appellant was implicated. We find no merit in the argument because if PW4 had to settle any score against her husband she need not have implicated the appellant. It is also pertinent to note that if PW4 or her mother had to settle any score against the brother of the appellant they need not have falsely implicated the appellant with a crime of Crl.A.No.2213/2009 17 this nature which is otherwise embarrassing to PW4 and the victim. 15. The learned counsel for the appellant had canvassed our attention to the decision reported in Mohammed Kunju v. State of Kerala [2007 (3) KLT 218] and submitted that the attempt of penetration would not suffice to constitute an offence under Section 376 of the IPC. Regarding the legal position, there is no dispute at all. In the light of the evidence of PWs 2, 3, 4 and 5 that we discussed earlier, the ruling submitted by the learned counsel has no application to the case on hand. This is not a case where there was only an attempt to penetrate. The evidence of PWs 2 to 5 would show that there was infact a completed sexual intercourse though there was no evidence of ejaculation or presence of spermatozoa. Though PWs 2 and 3 did not specifically mention about the penetration in specific words, their evidence is that they had seen the appellant committing [sexual intercourse by force (rape)]. The Malayalam word ' ' means by force and ''‍'' means sexual union. There is no suggestion to PWs 2 and 3 that Crl.A.No.2213/2009 18 they didn't know the meaning of or that they mentioned is anything less penetration. So also, there is no suggestion that the victim was not aware of the exact meaning of the word . The victim had stated to PWs 4 and 5 soon after the occurrence that she was subjected to ' ' . So long as there is no evidence that the victim and the witnesses were not aware of the meaning of , it can be legally presumed that victim really meant and witnesses understood that there was rape. It is pertinent to note that victim aged 54 years is the mother of two married daughters. PWs 2 and 4 are also married. The marital status of PWs 3 and 5 is not brought out. But they were working as Excise Inspector and Head Constable respectively. So, it is to be presumed that they are also aware of the meaning of the word . When a lady aged 54 years and mother of two married daughter states that she was subjected to (rape) there is every reason to believe that there was sexual intercourse by force or against her will and without consent. For a correct appraisal of the case, we find that a reading of Section 375 IPC would be advantageous. Crl.A.No.2213/2009 19 “375. Rape. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any f the six following descriptions:- First - Against her will. Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained