IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 410 of 2002() ----------------------- SC.22/1993 of I ADDL. SESSIONS COURT, KOLLAM .................... APPELLANT(S): ACCUSED: ---------------------- MANIYAN ANI, VATTATHIRAMALA VILA VEEDU @ MANNAR VILA, CHERIKKONAM CHERRY, THRIKKOVIL VATTOM. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT(S): COMPLAINANT: --------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 410 OF 2002 = = = = = = = = = = = = = = = Dated this the 21st day of May, 2009. J U D G M E N T This Crl. Appeal is preferred against the conviction and sentence passed by the Addl.Asst. Sessions Judge, Kollam in S.C.22/93 dated 5.6.2002. The case of the prosecution is to the effect that the appellant had raped a minor girl aged 8 years. In the first round of litigation the trial court on appreciation of the evidence found the accused not guilty and acquitted him. This Court took up the matter in criminal revision and set aside the judgment and remanded the case back to the trial court with a direction for proper disposal of the matter in accordance with law after hearing both the sides. The Court below was directed to consider the evidence on record and pass judgment in accordance with law. I had heard the learned counsel for the appellant as well as the prosecutor. The judgment which is under appeal does not give scientific reasons or one cannot say that there is absolute evidence Crl.A. 410 OF 2002 -2- without explanation which can lead to a conviction. Being a rape case of a young girl aged eight years the Courts have to be vigilant and at the same time conscience of the Court has to be satisfied to the effect that there is real materials before the Court. 2. It is the case of the prosecution that the girl aged eight years while proceeding to the market for the purchase of certain materials was restrained and it is alleged that she was raped by the appellant herein. According to the prosecution the girl immediately thereafter proceeded to the house of another lady from where she went to her house and along with her mother reached the house where her father was available. It is also the case that the garments used by the girl was taken by the mother and she was wearing another petty coat at the time when she visited her father in that house. It is also the case that the petty coat was handed over to the police and thereafter at about 8.30 p.m. in the night it is seen that she had been examined by the Doctor, PW3 which shows that vagina only admits a tip of the finger with difficulty Crl.A. 410 OF 2002 -3- and extremely painful. Spermatozoa was seen. No injury was seen on the vulva but the vagina was congested. So on examination what is seen recorded is only that vagina admits only a tip of a finger with difficulty. But when the Doctor was examined as PW3 she would say it admits two fingers with difficulty and extremely painful when admitted. It is a matter which should have been ascertained in a case of this nature for the reason that if only a tip of a finger is admitted, seeing the the size of the pennis it may not be possible for a penetration. So it requires scientific evidence. I also had gone through the cross-examination of the Doctor and she has stated that the hymen is absent. When the hymen is absent and the vagina does admit only a tip of the finger whether penetration is possible is also a matter which has to be found out by the Court. Then towards the end of the cross-examination the Doctor would say when she was not able to see any injuries or marks on the thighs of the girl and would further add if it is there then only one can say about the case of a rape. She has also opined about the nature of blood and would depose that it Crl.A. 410 OF 2002 -4- is not the blood that oozes out on account of menstruation. So these are all matters which one has to consider. Similarly, the learned counsel for the appellant would submit that the evidence of the girl is not acceptable nor the evidence of her father PW5 who has got only a hearsay information. The girl was only eight years and it has been recorded that she had been questioned by the Court as contemplated under law and the Court was satisfied that she was able to understand the consequences of her actions. But I find a solitary sentence in her examination that she has been told what she should say before Court. In a case of this nature which involves a life of a person as well as the life of a victim it is of paramount importance that materials are supplied and analysed so that one can arrive at a correct decision. I am conscious of the fact, in a case of rape the uncontroverted evidence of the prosecutrix can be acceptable as a piece of evidence but there is a line of caution that it should be supported by proper medical evidence. So I feel this is a case where the prosecution as well as the defence can Crl.A. 410 OF 2002 -5- be given an opportunity to adduce further evidence by recalling the witnesses already examined and supply scientific materials in order to allow the Court to analyze the evidence and reach at a correct conclusion. I do not want to elaborate further because it may affect the case of either parties. So conviction and sentence passed by the Addl. Asst. Sessions Court is set aside and the matter is remitted back to the Addl. Asst. Sessions Judge, Kollam for fresh consideration in the light of the discussions made above by affording an opportunity to both the sides to adduce further evidence in the form of recalling and giving explanations and if necessary by examining further witnesses who are already there in the charge. Parties are directed to appear before the Addl. Asst. Sessions Court, Kollam on 30th June, 2009. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 410 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 410 OF 2002 = = = = = = = = = = = J U D G M E N T 21st May, 2009