IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 CRL.A.No.2077 of 2007 (D) -------------------------------- SC.279/2003 of ADDL.SESSIONS COURT - FAST TRACK - (ADHOC)-IV, TRIVANDRUM. CP.91/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD. .................... APPELLANT: -------------- SOMAN, S/O VELUKUTTAN, C. NO.1506, CENTRAL PRISON, TRIVANDRUM. BY ADV. MANJU ANTONY[STATE BRIEF] RESPONDENT: ---------------- THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.2077 of 2007 ------------------------------------------------ Dated this the 31st day of January, 2008 JUDGMENT Convict No.1506, Soman of Central Prison, Thiruvananthapuram has preferred this appeal from jail assailing the conviction and sentence passed against him by the Additional Sessions Judge (Fast Track Court) Adhoc No-IV, Thiruvananthapuram for offence under Section 376 IPC vide judgment dt.21/02/07 in S.C. 279/03. On conviction, he was sentenced by the court below to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a further term of six months with right of set off. 2. The prosecution case is that the appellant is the husband of the younger sister of PW2/the mother of PW1. PW1 is the victim of the offence in this case. Herself along with Crl. Appeal No.2077 of 2007 -2- her younger brother and their mother (PW2) were residing along with the appellant and his family in House No.NMC XI/394, Chirathalakkal Veedu, Karippooru Village belonging to the appellant as PW2 was not having any house of her own. PW1/the victim was studying in the 9th standard in the Girls High School at Nedumangad. On 05/10/2000 PW1 did not go to school as she was not well. According to the prosecution, at 11.30 a.m on 05/10/2000 PW1 and the appellant alone were in the house and then the accused forcibly laid PW1 on the floor in the house and committed rape on her. PW1 was aged only thirteen years and odd then and had however, not completed fourteen years. Hence, the charge against the appellant for offence under Section 376 IPC. 3. Crime No.476/2000 of Nedumangad Police Station was registered on the basis of Ext.P1 statement given by PW1 regarding the Crl. Appeal No.2077 of 2007 -3- occurrence on 09/10/2000 to PW13 the Additional Sub Inspector of Police who prepared also Ext.P1(a) body note of PW1. Thereafter, the investigation in the case was conducted by Ext.P14 the Circle Inspector of Police, Nedumangad. PW15 the successor in office of PW14 verified the case diary and submitted final report charge sheeting the appellant for offence under Section 376 IPC. 4. On receipt of the Final Report the case was registered on the file of the Judicial First Class Magistrate's Court-II, Nedumangad as C.P.91/02. After complying with all legal formalities, the learned Magistrate committed the case to the Sessions Division, Thiruvananthapuram vide proceedings in C.P. 91/02. The case was registered in the Sessions Division assigning the present number as S.C.279/03. Thereafter, the case was made over to the Additional Sessions Court (Fast Track Crl. Appeal No.2077 of 2007 -4- Court) Adhoc No.IV for trial and disposal. 5. On appearance of the appellant in the court below, he engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offence under Section 376 IPC; was read over and explained to him and he was questioned by the court below. Thereupon, the appellant pleaded not guilty and consequently, a trial of the case was conducted in the court below. 6. Prosecution examined PWs.1 to 15, got marked Exts.P1 to P19 and got identified MOs.I to VI. On the defence side Ext.D1 was marked. On the prosecution closing their evidence the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, on the date of the Crl. Appeal No.2077 of 2007 -5- alleged occurrence, he had gone for job at 7.00 a.m and returned only by 7.00 p.m.; that on his return his wife told him that she had gone over to the Municipality in connection with some loan and on return she saw a boy running away from the house; that on several prior occasions himself and his wife had warned against the said boy so coming over; that on his wife entering into the house and searching in the room, PW1 was found sitting in the corner of the room and she gave blows to her and disclosed of the occurrence to PW2/the mother of PW1 and thereupon, PW2 told her that she may not disclose of the occurrence to anybody else as it is shameful; that on his wife telling him all those details he called PW1 and gave her two blows and told her mother/PW2 that she cannot continue to reside there and asked them to vacate; that PW2 requested for leave to continue her Crl. Appeal No.2077 of 2007 -6- residence in the house but he did not agree and she along with PW1 left his house; and on the second day they came over with Bhuvanan and asked for the clothes and thereupon, he told them that the clothes can be given only on the police coming over and accordingly, in the morning on 09/10/2000, they came over with the police and asked for the clothes and the clothes were then given telling the police the above facts; that the police took him from the house to the police station on that day and it is thereafter, that he was being accused of commission of the crime involved in this case. According to the appellant, he was treating PW1 as his own daughter. However, he did not adduce any evidence in defence except getting marked Ext.D1 in the course of cross examination of PW2. 7. The court below considered the case in the light of the evidence adduced as Crl. Appeal No.2077 of 2007 -7- aforesaid; found the appellant guilty of the offence punishable under Section 376 IPC; convicted him thereunder and sentenced him as already stated. Hence, this appeal by the aggrieved appellant. 8. The appellant having not engaged a lawyer of his choice in this appeal filed from jail, Advocate Sri.Manju Antony was appointed on State Brief to argue the appeal on his behalf. 9. It is vehemently argued before me by the learned counsel for the appellant that the alleged victim is daughter of PW2/the elder sister of the appellant's wife; that they were being given shelter in his house; that PW1 was maintaining some illicit relationship with a boy who was residing in the nearby house; that PWs.1 and 2 are interested witnesses and their testimony cannot be believed to sustain a conviction against the appellant; that Crl. Appeal No.2077 of 2007 -8- forensic evidence in the case on examination of MOs.I to VI show that there is no presence of semen or spermatozoa on those material objects which belies the prosecution case; that there is inordinate delay in lodging the FIR; that the appellant is a person of good character and is not having any criminal antecedence and that is a relevant factor to be considered under Section 53 of the Evidence Act; and that presence of semen and spermatozoa detected in the vaginal smear and swab can be of the boy who was maintaining some illicit relationship with PW1; and that considering all these aspects the case is one wherein the conviction and sentence passed by the court below against the appellant deserves to be set aside. 10. The wife of the accused and PW2/the mother of PW1/the victim are sisters. PW2 along with her daughter PW1 and her son who Crl. Appeal No.2077 of 2007 -9- were not having any house of their own were being allowed to have residence in the building belonging to the appellant at Pulippara while the appellant and his wife were residing at Ayoor and they were also shifting to the house of the appellant so occupied by PW2 and her children after three months of their having occupied the said house. Obviously, till the date of the alleged occurrence the parties were maintaining cordial relationship and there was no reason for the appellant's asking them to vacate or for PW1 or PW2 to foist a case of this nature against the appellant even according to the appellant. But his case is that on the date of the alleged occurrence some illicit relationship between PW1 and a boy who was having residence somewhere in that locality was detected by PW3/the wife of the appellant and it is on being questioned by PW3 and Crl. Appeal No.2077 of 2007 -10- thereafter, by the appellant giving also blows to PW1 and asking PW2 to shift their residence from the house that has paved the way for animosity for PWs.1 and 2 to foist such a case against him. The case of the appellant is that on prior occasions also the boy with whom PW1 was maintaining some illicit relationship had come over when PW1 was alone in the house. Strangely enough there is no case for PW3 or the appellant that PW1 was scolded or beaten on any prior occasion except that PW1 was advised. However, in that event the appellant or his wife should certainly have knowledge of the name of that boy or as to whose son is he or where he is having his residence. None of those details is mentioned by the appellant or his wife/PW3 except making reference to him as a boy who was maintaining illicit relationship with PW1. Further, it has also to be borne in mind that if at all some animosity is felt Crl. Appeal No.2077 of 2007 -11- towards the appellant for PWs.1 and 2 it is too much to believe that they would implicate the appellant in such a heinous crime thereby giving room for PW1 who is the daughter of PW2 an unmarried girl to spoil her future also alleging that she is victim of rape at the hands of the appellant who is husband of her maternal aunt. 11. PW1 has given evidence that herself, her mother, the appellant as also his wife were residing together in the same house; that her maternal aunt goes in the morning to collect latex of rubber; that the appellant is a coolie worker; that her mother/PW2 goes for cooking in a tea shop of one Thulasi at Pulippara junction; that her younger brother studies in the fourth standard in Government L.P. School at Nedumangadu; and that children of her maternal aunt go to nursery school; that on 05/10/2000, the date of occurrence, Crl. Appeal No.2077 of 2007 -12- she did not go to school as she was not well and she was alone in the house as the others have gone for work and the children had gone to school; that at 10.00 a.m. the appellant went out from the house but he returned by 11.30 a.m while her maternal aunt had gone for collecting latex and thus, the appellant and herself alone were in the house; that the appellant called her and when she went over she was asked to go and when she was about to go out of the room, she was intercepted by the appellant and he forcibly took her and laid her on the floor where a 'kaili' had been spread; raised her dress and removed her jetty and did have sexual intercourse with her. According to her, though she raised alarm her alarm was not heard by anyone as music was being played in the adjacent house at a very high voice. According to PW1, the accused warned her that she should not disclose of the Crl. Appeal No.2077 of 2007 -13- occurrence to her mother; that by 3.00 p.m her mother came over and before that her maternal aunt had come over to the house; that she had disclosed of the occurrence to her maternal aunt (PW3); that thereupon, she advised her not to disclose of the occurrence to her mother that therefore, when her mother came over she told her only that the appellant harassed her; that the next day she went over to the house of her maternal uncle and there she disclosed the entire occurrence to the wife of her uncle and later when her mother came over to that house, wife of her uncle told her all the details; that her mother went over to the house of the appellant to take her books but she was not allowed to take the books by her maternal aunt and the appellant saying that those will not be delivered unless police is got down; that it was on 08/10/2000 that she disclosed the entire details to her Crl. Appeal No.2077 of 2007 -14- mother and her mother after consulting with her relatives took her to the Nedumangadu Police Station on 09/10/2000 and there she gave Ext.P1 F.I.statement which the police recorded and obtained her signature and thumb impression. She identified Ext.P1(a) as body note prepared by the police examining her body in the presence of her mother. According to her, she had been questioned twice by the police and she was taken by a woman police constable and her mother to the Government Hospital, Thycaud where the Doctor examined her. She deposed that she pointed out the scene of occurrence to the police as also the lungi and the shorts used for wiping. She has identified MOI as the lungi that was spread on the floor and MO.II as the shorts which was used for wiping after the occurrence. Further, she has identified MOIII as the top of churidar that was worn by her; MOIV as the Crl. Appeal No.2077 of 2007 -15- petty coat worn by her and MOV as the jetty that had been worn by her at the time of the occurrence. She has identified the appellant in the dock as the offender. She deposed that her date of birth is 26/01/1987 and as on the date of the occurrence she was less than fourteen years. According to her, the occurrence was not disclosed for fear and because they were residing in the house of the appellant. It has been stated by her in cross examination that usually in their house there will not be anybody during morning hours. She has denied the suggestion that she had been warned against her talking to a boy studying in the X standard and residing near their house by the appellant and his wife. She has also denied the suggestion that on 05/10/2000, the appellant had gone for work and returned only in the evening and has asserted that on that day the appellant did not go for any work Crl. Appeal No.2077 of 2007 -16- at all. She has also denied the suggestion that when her maternal aunt came over to her house by noon a boy was found running away from their house and thereupon, her maternal aunt did bodily harm to her and that on the appellant arriving at the house in the evening her maternal aunt told him about it and he inflicted blows on her. She has asserted in cross examination that she did not tell her mother all the details as she was afraid. She further stated that the appellant did harm to her by using force despite her resistance. According to PW1, she was telling her mother that the appellant harassed her when her maternal aunt had gone out for shopping but then also she did not tell all the details to her mother. She has stated that on the same day her uncle/Bhuvanan had come over to their house and taken her as also her younger brother to his house and it was on the next Crl. Appeal No.2077 of 2007 -17- day that she told the aunt at that house regarding the occurrence and it was on 06/10/2000 that her mother along with her uncle went over to take her books from the house of the appellant. 12. PW2 is the mother of the victim and she has corroborated the testimony of PW1 on all material particulars. PW2 has stated that her younger sister who is the wife of the appellant had advised her that the matter need not be disclosed to anyone as it would be a shame for all and that only when PW1 complained that she is having stomach pain that they thought of giving the complaint to the police. Certain discrepancy is brought out in cross examination of PW2. However, it does not affect the material point on which evidence was tendered by her nor is it sufficient to discredit her testimony. Though repeatedly questions were asked both to PWs.1 Crl. Appeal No.2077 of 2007 -18- and 2 regarding a boy who is residing in the adjacent house who according to the defence was maintaining some illicit relationship with PW1, there is not even a suggestion mentioning the name of that boy who is stated to have been residing near their house. In fact, the appellant also when questioned under Section 313 Cr.P.C was mentioning about that boy but all the same, he also has not mentioned the name of that boy. This shows that the defence set up that PW1 was maintaining some relationship with a boy residing in the adjacent house is false and that the said boy referred to is a fictitious character. 13. PW3/the wife of the appellant has also given evidence that PW1 did not go to school on the date of occurrence and that no one else was there in their house other than PW1. She is a hostile witness and according to her, the appellant who is her husband had also Crl. Appeal No.2077 of 2007 -19- gone for work. Whether he returned to the house in her absence is not something which she can assert. She has denied the very vital portion of the statement given by her to the police and those are marked as Exts.P2 and P3. However, she has admitted that she was not in the house at the time of the alleged occurrence. Though PW3 also makes reference of the relationship that PW1 had with some boy in the adjacent house, she also does not mention the name of that boy. Obviously, when he is a boy residing in the adjacent house, there is no difficulty for the witnesses to ascertain his name and they should have certainly identified him by his name, had any such person been there and if what is stated is true that he used to come over to their house and contact PW1 very often. According to PW3 also, there took place some discussion between herself and PW2 whereupon PW2 told her that Crl. Appeal No.2077 of 2007 -20- she will leave the residence the next day and that they need not be humiliated. PW3 also stated that PWs.1 and 2 shifted their residence the next day to the house of Bhuvanan who is son of the younger sister of her mother; and that after two days they came over to her house to take dress and books and thereupon they were not allowed to take the books and the dress and were told that inasmuch as things have come like this, books and the dress would be returned after arrival of police. Obviously, the matter had not been informed to the police even on that day as the matter was informed to the police only on 09/10/2000 namely on the fourth day of the occurrence. Hence, the fear PW3 had of a police case being registered in the matter against her husband is evident from her testimony. Crl. Appeal No.2077 of 2007 -21- 14. PW4 is witness to Ext.P4 scene mahazar; PW5 is witness to Ext.P5 mahazar of MOs.I and II; and PW6 is attestor to Ext.P6 mahazar of MOs.III to V; PW7 is the Village Officer who prepared the scene plan and PW9 is the Doctor who conducted potency test of the appellant. PW8 is the Doctor who examined PW1/the victim of the sexual assault and she has proved Ext.P8 wound certificate recorded by her on examination of PW1 and she has proved the entry in Ext.P8 as regards the history of the injury as being rape committed on the patient by the husband of the younger sister of her mother. 15. PW8 has opined that there is evidence of penetration and that her opinion regarding recent intercourse is pending chemical examination report. Ext.P9/chemical examination report of vaginal swab and smear was shown to her and thereupon she has deposed that as the Crl. Appeal No.2077 of 2007 -22- report shows that human semen and spermatozoa was detected both in vaginal smear and vaginal swab, it is evidence of recent sexual intercourse. In view of the existence of human semen and spermatozoa in the vaginal swab and smear taken from PW1 by PW8/the Doctor who examined her the fact that human spermatozoa were not detected on items 1 to 6 forwarded for examination to the forensic science laboratory namely MOs.I to VI, does not have any bearing at all to come to the rescue of the appellant especially when those were taken into banthavast several days after the occurrence and there is no case of those MOs having been recovered before it was washed. 16. The evidence of PW10/the Chemical Analyst is also of no significance in the said circumstances. PW11 has proved Ext.P13/Birth Certificate which shows that PW2 delivered a child on 26/01/87 at the Thaluk Headquarters Crl. Appeal No.2077 of 2007 -23- Hospital, Nedumangad; that the child was a female child; that the name of mother and father are respectively Krishnamma and Krishnankutty; and that the birth was registered on 30/01/87. The contention of the counsel for the appellant is that the name of the child is not seen in Ext.P13 and therefore, it cannot be accepted as proof of the date of birth of PW1. There is no merit in the contention so advanced as the child will be named only later and unless an application is given by the parents to incorporate the name also in the register of births and deaths, it is not the practice to include the name while registering birth and issuing copies of birth certificate as evidenced from the testimony of PW11. 17. PW12 is the WPC who has accompanied the victim and her mother to the Women and Children Hospital, Thycaud to subject PW1 to Crl. Appeal No.2077 of 2007 -24- medical examination through PW8. PW13 is the Additional Sub Inspector who has registered Ext.P1 FIR and prepared Ext.P1(a) body note of PW1/the victim and PW14 is the Circle Inspector of Police who has conducted the investigation in the case. 18. Learned counsel for the appellant points out certain defects in the investi- gation which however, cannot affect the result of the case as even a shabby investigation, is no ground for acquittal of an accused if the offence stands proved otherwise on evidence. 19. On a reappraisal of the entire evidence in the case as discussed above, I am of the view that the prosecution case of the appellant having committed the rape on PW1/a minor girl aged below sixteen years and daughter of PW2/the elder sister of his own wife is established on evidence. The court below has rightly come to the conclusion that Crl. Appeal No.2077 of 2007 -25- the appellant has committed offence punishable under Section 376 IPC and has convicted him thereunder. The conviction of the appellant deserves only to be confirmed. 20. Finally, it is contended by the learned counsel for the appellant that the