IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 CRL.A.No. 692 of 2002() ----------------------- SC.176/2001 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... APPELLANT(S): ACCUSED: ---------------------- P.J.MATHEW, S/O. JOSEPH, POLIKKEPATHAL, NEELASWARAM, ALLY P.O., THETTAKKAD, MUKKOM. BY ADV. SRI.C.P.MOHAMMED NIAS SRI.BABU S. NAIR SRI.JIJO PAUL RESPONDENT(S): STATE: --------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI. B. JAYASOORYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A. No. 692 of 2002 * * * * * * * * * * * * * * * * * * Dated: 20-10-2009 JUDGMENT In this appeal filed under Sec. 374 (2) Cr.P.C. the appellant who was the sole accused in S.C. No. 176/2001 on the file of the II Addl. Sessions Judge, Kozhikode challenges the conviction entered and the sentence passed against him for offences punishable under Sections 451 and 376 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 11-1-1996 at about 11 a.m. while P.W.1(Nisha) aged 16 years and 3 months was preparing food in the kitchen of her house situated at Ally desom of Kumaranellur Village in Karassery Panchayath of Kozhikode Taluk, the accused (Mathew) aged 29 years who is a married man with his wife and children residing in the neighbourhood of P.W.1's house committed criminal trespass into the house of P.W.1 and caught hold of P.W.1 and took her into the western room and satiated his lust by committing rape on her. Consequently P.W.1 Crl.A. No. 692 of 2002 -:2:- delivered a female child prematurely on 28-7-1996 . A complaint regarding the occurrence was lodged by her father Krishnankutty (died subsequently) before the Mukkom police resulting in the registration of Crime No. 126/96. The police after investigation charge-sheeted the accused. The accused has thereby committed offenceS punishable under Sections 451 and 376 I.P.C. and Section 3 (1) (xii) of the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. On the accused pleading not guilty to the charge framed against him by the court below for offences punishable under Sections 451 and 376 I.P.C. the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 21 witnesses as P.W.s 1 to 21 and got marked 13 documents as Exts.P1 to P13. 4. After the close of the prosecution evidence the accused was questioned under Sec. 313 (1) (b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He stated that the Crl.A. No. 692 of 2002 -:3:- house of P.W.1 is a place used for consuming liquor, that the inmates of that house were on inimical terms with him that he used to protest against the loud noise coming from that house and that he was falsely implicated in this case. 5. Since this was not a case of no evidence for the prosecution, the court below did not order an acquittal under Sec. 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on his defence. 6. The learned Assistant Sessions Judge , after trial, as per judgment dated 7-8-2002 found the appellant guilty of offences punishable under Sections 451 and 376 I.P.C. For the conviction under Sec. 376 I.P.C. he was sentenced to rigorous imprisonment for 8 years and to pay fine of Rs. 5,000/- and on default to pay the fine to undergo simple imprisonment for one year . For the conviction under Section 451 I.P.C. he was sentenced to undergo rigorous imprionment for 1 year and to pay fine of Rs. 500/- and on default to pay the fine to suffer simple imprisonment for one month. The substantive substances were directed to run concurrently. The fine amount as and Crl.A. No. 692 of 2002 -:4:- when realised was directed to be paid to P.W.1 as compensation under Sec. 357 Cr.P.C. It is the said judgment which is assailed in this Appeal. 7. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 8. PW1 (Nisha) is the victim. Ext.P1 F.I. statement given by her father Krishnankutty was marked through her since by that time her father had died. She narrated the occurrence. 9. P.W.2 (Radha) is the mother of P.W.1. She is not an occurrence witness. She had taken her daughter to the hospitals after the girl revealed the occurrence to her when she was five months pregnant. 10. P.W.3 (Chandran) was an attestor to Ext.P2 scene mahazar. 11. P.W.4 (Jolly Thomas) is the jeep driver who took a physician by name Jayaraj Vaidhyan to the house of P.W.5. 12. P.W.5 (Ramankutty) is a close relative of P.W.1 in whose house P.W.1 delivered a premature child on 28-7-1996 The child was a female child which, however, did not survive Crl.A. No. 692 of 2002 -:5:- long and it died on 8-8-1996. 13. P.W.6 (Dr. Gopalakrishnan) was the Medical Officer attached to the Primary Health Centre, Sugandhagiri. He had examined P.W.1 and found her three months pregnant. 14. P.W.7 (Dr. Habeeb Muhammed) was taken to the house of P.W.1 on 30-7-96 for rendering some post-partum assistance to P.W.1. 15. P.W.8 (Theyyan) who is an oracle in a temple is a quack who attempted to abort the 5 months old pregnancy of P.W.1 and failed. Ext.P13 is the statement given by P.W.8 under Sec. 164 Cr.P.C. 16. P.W. 9 (Vijayakumar) who was the lecturer in Forensic Medicine, Medical College Hospital, Kozhikode, proved Ext.P3 potency certificate pertaining to the accused. 17. P.W.10 (Dr.N.N. Sreedevi) who was the Associate Professor of Gynaecology, Medical College Hospital, Kozhikode examined P.W.1 on 31-7-1996 to find symptoms of child birth in P.W.1. 18. P.W.11 (Alice Issac) who is a teacher of Kombara Crl.A. No. 692 of 2002 -:6:- L.P. School proved Ext.P5 birth certificate pertaining to P.W.1. According to her, P.W.1 was born on 29-9-1979. She was, therefore, 16 years and three months on the date of occurrence. 19. P.W.12 (Firozkhan) was the Tahsildar, Kozhikode Taluk who issued Ext.P6 community certificate of P.W.1 testifying that P.W.1 belongs to Scheduled Tribe (Muthuvan Community). 20. P.W.13 (Janardhanan) was the Village Officer of Kumaranelloor Village who provedExt.P7 site plan regarding the house of occurrence. 21. P.W.14 ( A.K.Subramonian) was the Secretary of Karissery Panchayath who proved Ext.P8 ownership certificate regarding the house in question indicating that Krishnankutty, father of P.W.1 was the owner of the house. 22. P.W.15 (A. Chandran) who was the Junior Superintendent of the Village Office, Kumaranellur proved Ext.P9 community certuificate to show that the accused is a Roman Catholic. 23. P.W.16 (Sulaiman) was the Assistant Proferror of Crl.A. No. 692 of 2002 -:7:- Urology, Medical College Hospital, Kozhikode, who proved Ext.P10 fertifility certificate pertaining to the accused to indicate that that the accused had normal fertility status presumably to justify the pregnancy of P.W.1. 24. P.W.17 (K.Raveendran) who was the Head Constable , Mukkom registered the crime on the basis of Ext.P1 f.I. statement given by Krishnankutty, father of P.W.1 on 30-7- 1996. 25. P.W.18 (Padmanabhan) who was the Deputy Superintendent of Police, Thamarassery charge-sheeted the accused. 26. P.W.19 ( Dr. Shirly Vasu) who was the Professor of Forensic Medicine, Medical College, Calicut proved Ext.P12 certificate pertaining to P.W.1 to show that she was aged above 16 and below 18. 27. P.W.20 (K.Bharathan) was the Dy. Superintendent of Police, Thamasrassery who conducted the investigation. 28. P.W.21 (Unni) who was the Deputy Superintendent of Police, Kozhikode, recorded the statement of the Tahsildar who Crl.A. No. 692 of 2002 -:8:- issued Ext.P6 community certificate of P.W.1. 29. The learned counsel appearing for the appellant made the following submissions before me in support of his fervent plea for acquittal:- P.W.1 the alleged victim initially stated before Court that the accused came inside her kitchen while she was taking rice gruel. But her subsequent statement during cross-examination is to the effect that she was in the process of preparing rice gruel. She has admitted that the reason for not going to the Nadakkavu Hospital was due to the fact that she did not have Rs. 5,000/- which was demanded by the doctor. Her answer to the question put during cross-examination as to whether she knows when she had the first sexual intercourse will indicate that she was habituated to sex. P.W.1 had admitted that the reason to lodge a complaint was because of the unwillingness of the accused to defray the expenses of Rs. 5,000/- to abort the pregnancy of P.W.1. She has re-iterated the said version by stating that the reason for the decision to prosecute the accused was due to refusal by the accused to abort her pregnancy. If Crl.A. No. 692 of 2002 -:9:- P.W.1 had raised a hue and cry as deposed by her, on her own admission there are nearby houses and it is strange that nobody else came to her rescue or to give evidence regarding the occurrence. The testimony of P.W.2 (Radha) the mother of P.W.1 will also indicate that the decision taken to prosecute the accused was only after P.W.1 delivered the child prematurely. P.W.2 has also admitted that it was since P.W.1 gave birth to the child that the complaint was lodged against the accused. P.W.5 who had given shelter to P.W.1 for child birth has admitted during cross-examination that when he saw P.W.1 before allowing her to stay there she cried and was hesitant to reveal the occurrence and stated that a mistake had occurred to her . To quote her own words “പപ എനക ഒര അബദ പറ എന പറഞ . ” The above statement by P.W.1 to P.W.5 will indicate that it was P.W.1 who was at fault. Otherwise her statement to P.W.5 would have been that she was cheated by the accused. From this evidence it can be presumed that far from remonstrating against the erotic impropriety committed Crl.A. No. 692 of 2002 -:10:- allegedly by the accused, she was a consenting party and when it became evident that she could no longer conceal her pregnancy, a complaint was lodged against the accused. 30. I am afraid that I cannot agree with the above submissions. The testimony of P.W.2 will go to show that she belongs to a Nair community and had eloped with her husband Krishnankutty who belongs to a Scheduled Tribe by name Muduvan. Both of them were residing in the house in question. P.W.1 (Nisha) is her elder daughter. Younger to her there is a male child. The accused who belongs to Roman Catholic aged 29 years is their neighbour. His wife Shimmy is a very close family friend of P.W.2. The testimony of P.W.2 will go to show that she never expected the accused to be the person behind the pregnancy of her daughter and even after coming to know of that she did not want to hurt the feelings of Shimmy who was like a member of their family. 31. P.W.1 the victim has credibly deposed about the occurrence. Since the accused was a frequent visitor of their house, she did not feel anything awkward when he freely came Crl.A. No. 692 of 2002 -:11:- to the kitchen where she was preparing rice gruel. It was suddenly that he caught hold of her and took her to the western room. After undressing her forcibly he was satiating his lust in her. She says that eventhough he cried aloud and tried to push him away she could not succeed. Her testimony proves the act of sexual intercourse committed by the accused involving vulval penetration by the genital organ of the accused. After accomplishing his lusterous desire the accused threatened her with dire consequences in case she divulged the occurrence to anybody else. It was months after she developed visible signs of pregnancy that her mother P.W.2 grew suspicious. Of course, there is some amount of exaggeration in the testimony of P.W.2 who says that she did not know about the fact of her daughter conceiving until P.W.6 (doctor) confirmed the same. Then there had been frantic efforts to terminate the pregnancy. The accused himself offered the services of P.W.8, a quack who had inserted some medicated sticks with a promise that the foetus would dissolve. He tried the crude and native method twice without any success. Thereafter, it was with some Crl.A. No. 692 of 2002 -:12:- complication that the mother and daughter went to P.W.6 (Dr. Gopalakrishnan) who confirmed the pregnancy. Subsequently it was from the house of P.W.5 that P.W.1 delivered a female premature child which however, did not survive long. 32. May be, it was out of a feeling of guilt that P.W.1 told P.W.5 that a mistake occurred to her. That doesn't mean that it was she who invited the accused to have sexual intercourse with her or that she was a consenting party to the same. Her statement only means that she had fallen a prey to the lewd design. Even if it could be said that the accused had the freedom to enter the house of P.Ws 1 and 2 and he did so without any criminal intent, his prurient conduct showed that he committed the offence of criminal trespass since he had the lecherous desire of satiating his lustful desire in P.W.1. P.W.1 has withstood a searching and incisive cross-examination. The delay in lodging the complaint was also explained by both P.Ws 1 and 2 . According to P.W.2 she did not want the family of Shimmy the wife of the accused to shatter. The loss of reputation of her daughter was also uppermost in her mind. Crl.A. No. 692 of 2002 -:13:- Eventhough the complaint was lodged by Krishnankutty, the father of P.W.1, he did not live long enough to depose before court. P.W.1 has deposed towards the end of her cross- examination that her father consumed poison and committed suicide since the next day was the day on which the trial of the case was to begin. 33. The trial judge who had the unique advantage of seeing the witnesses and assessing their credibility had no difficulty in accepting the testimony of the prosecution witnesses particularly Pws 1 and 2 . This Court sitting in appeal will be loathe to interfere with the finding recorded by the trial court after a careful evaluation of the oral and documentary evidence. The proved facts show that the accused is a neighbour of the victim and misusing his freedom in the house of P.W.2 he was exploiting the situation by satiating his carnal desire in P.W.1 who had only crossed 16 years on the date of occurrence. By no stretch of imagination can it be said that she was a consenting party to the erotic impropriety committed by the accused who was committing the offence after criminally Crl.A. No. 692 of 2002 -:14:- trespassing into the house of P.W.1. taking advantage of the absence ofher parents in the house at that time. The Conviction recorded by the court below for the offence punishable under Sec. 451 and 376 I.P.C. therefore, does not call for any interference. 34. What now survives for consideratiion is the legality and the extent of the sentence imposed on the accused. Having regard to the facts and circumstances of the case, including the fact that the accused is a married man having his wife and children, the sentence imposed by the court below cannot be said to be disproportionately harsh. But at the same time, I am of the view that rigorous imprisonment for 7 years will meet the ends of justice besides the fine imposed by the court below for the offence punishable under Sec. 376 I.P.C. Accordingly, the punishment awarded to the appellant under Sec. 376 I.P.C. is modified by reducing the rigorous imprisonment to 7 years. The fine imposed for the offence of rape and the sentence imposed for the offence punishable under Sec. 451 I.P.C. are not interfered with. Crl.A. No. 692 of 2002 -:15:- In the result, this appeal is dismissed confirming the conviction entered by slightly modifying the sentence awarded. Dated this the 20th day of October 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A. No. 692 of 2002 * * * * * * * * * * * * * * * * * * Dated: 20-10-2009 JUDGMENT