IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 CRL.A.No. 1876 of 2009(D) ------------------------- SC.38/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM .................... APPELLANT(S): -------------- KUMARAN, S/O.KAVLAN, C.NO.7442, CENTRAL PRINSON, VIYYUR,THRISSUR BY ADV. ADV. AMINA BEEVI K.M.[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSEUCTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A.NO.1876 of 2009 * * * * * * * * * * * * * * * * * * Dated: 18th January, 2010 JUDGMENT In this appeal preferred from the Central Prison, Viyyur, the appellant who was the sole accused in S.C. 38 of 2009 on the file of the Addl. Sessions Court, (Adhoc-I), Ernakulam, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 376 I.P.C. 2. The case of the prosecution is that at about 2 a.m. on 13-1-2008 in Chithirappara Molath House bearing No. 1/384 of Ikkaranadu Panchayath in Pazhanthottam Kara the accused aged 60 years committed rape of his own daughter P.W.1 (Aathira) aged 14 years while the minor girl was sleeping in the kitchen of the said house and that the accused has thereby committed an offence punishable under Sec. 376 I.P.C. 3. On the appellant pleading not guilty to the charge Crl.A. 1876 of 2009 -:2:- framed against him by the court below for the aforementioned offence, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 10 witnesses as P.Ws 1 to 10 and got marked 17 documents as Exts. 1 to 17 and two material objects as Mos 1 and 2. 4. After the close of the prosecution evidence, the appellant was examined 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. 5. Since this was not a case of no evidence for the prosecution, the learned Addl. Sessions Judge did not pass an order of acquittal under Section 232 Cr.P.C. The appellant did not adduce any evidence when called upon to enter on his defence. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 8-4-2009, found the appellant guilty of the aforesaid offence and sentenced him to rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/- which amount as and when Crl.A. 1876 of 2009 -:3:- recovered was directed to be paid to P.W.1 as compensation. It is the said judgment which is assailed in this appeal. 7. I heard Advocate Smt. Amina Beevi , the learned counsel appearing for the appellant on State Brief and the learned Public Prosecutor. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT: 9. P.W.1 (Athira) is the victim. At the relevant period she was studying in the 9th standard. She proved Ext.P1 F.I. Statement given by her to the Puthencruz Police. P.W. 2 ( Deepa) is the niece of the accused who was staying in the very same house. It was to her that P.W.1 the victim allegedly narrated the occurrence on the next day morning. P.W.3 (Githa) is the maternal aunt of P.W.1. She had helped P.W.1 to prepare a complaint through another person. P.W.4 (Dr. C.G. Prema Latha) was the Gynecologist in the Taluk Head Quarters Hospital, Crl.A. 1876 of 2009 -:4:- Muvattupuzha.. She examined P.W.1 on 6-5-2008 and issued Ext.P2 medical certificate. As per Ext.P2, there was no evidence of any recent sexual offence. Vaginal examination of the girl admitted one finger. P.W.5 (Dr. Deepak Kumar) proved Ext.P3 potency certificate pertaining to the accused. P.W.6 (P.V. Lathika) is the headmistress of the Government Higher Secondary School, Pazhanthottam who proved Ext. P4 birth certificate and Ext.P5 extract of school admission register and P6 application form as per which the school admission register extract was applied for. Her evidence shows that P.W.1 was born on 31-1- 1993. P.W.7 (Rani P. Eldo) was the Village Officer, Ikkaranadu North Village. She proved Ext.P7 scene plan. P.W.8 ( Thankachan) is an attester to Ext.P7 scene mahazar prepared by the Circle Inspector of Police. P.W.9 ((V.T. Shajan) was the Sub Inspector of Police, Puthencruz. He recorded Ext.P1 F.I. statement of P.W.1 and registered Ext.P9 F.I.R. against the appellant for an offence punishable under Sec. 511 of 376. P.W.10 (K.M. Jijimon) was the Circle Inspector of Police, Puthencruz. Crl.A. 1876 of 2009 -:5:- who conducted the investigation and laid the charge. As per Ext.P14 report he had sought to delete Sec. 511 I.P.C. from the F.I.R. on being convinced that the offence that was made out was one punishable under Section 376 I.P.C. 10. The occurrence is proved by the direct evidence of P.W.1, the victim who was aged only 14 years on the date of occurrence. At the time of occurrence she was residing along with her father in his house at Pahanthottam. Her mother died four years ago in a motor accident. It is a small house with two rooms and a kitchen. The other inmates of the house are her paternal grandmother, her paternal aunt and P.W.2 Deepa, the daughter of the said paternal aunt and her brother. On the ill-fated day, she was sleeping in the kitchen. Some time after midnight, she was roused in her sleep by her father who held her and ravished her after undressing her. After the occurrence he told her not to divulge the occurrence to her aunt or to Deep. Eventhough she cried, her father pacified her saying that he would leave immediately. On the next day morning she narrated the occurrence Crl.A. 1876 of 2009 -:6:- to P.W.2 (Deepa) and her aunt. After two to three days the accused again attempted to satiate his lust in her. On 23-4-2008 when the accused made an attempt to repeat the offence she asked her aunt to switch on the light and she escaped from the libidiness clutches of her own father. After 2 - 3 days, she went to her mother's house and informed her uncle about the sexual abuse committed by her father. Thereafter, she gave Ext.P1 F.I. statement to the Putherncruz Police. 11. The above testimony of P.W.1 stands unshaken notwithstanding the fact that she was subjected to a searcing and incisive cross-examination. 12. It is true that there has been some delay on the part of P.W.1 in lodging the complaint before the police. But in cases of this nature, such delay cannot be fatal to the prosecution. Likewise, the failure to detect seminal stains on MO2 lunki belonging to the accused also does not indicate that the case of the prosecution is false. MO1 (middi) belonging to P.W.1 was forwarded to the Forensic Science Laboratory and it contained Crl.A. 1876 of 2009 -:7:- human spermatozoa and semen as revealed by Ext.P6 report. 13. After a careful re-appraisal of the oral and documentary evidence of the case, I am of the view that the conviction recorded against the appellant does not suffer from any infirmity so as to warrant interference at the hands of this Court. The conviction is accordingly confirmed. Having regard to the incestuous assault which the appellant forced on his own daughter, I do not think that the sentence imposed by the court below can be said to be harsh of disproportionately excessive. No interference is called for in the matter of punishment as well. The result of the foregoing discussion is that this appeal fails and is dismissed. The conviction entered and the sentence passed against the appellant are hereby confirmed. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani. Crl.A. 1876 of 2009 -:8:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A.NO.1876 of 2009 * * * * * * * * * * * * * * * * * * Dated: 18th January, 2010 JUDGMENT