IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 CRL.A.No. 2449 of 2007 -------------------------------- S.C. NO. 448/2007 OF THE ADDL. DISTRICT AND SESSIONS JUDGE (ADHOC) COURT III, KOLLAM C.P. NO. 113/07 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT II, KOTTARAKKARA --------------------------------- APPELLANT: ACCUSED: --------------------------------- IMANUDEEN, C.NO.2044, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI. LEEN JOSE P, STATE BRIEF RESPONDENT: COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. C.M. KOMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. Appeal No. 2449 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of January, 2009 J U D G M E N T The appellant herein is the sole accused in Session Case No. 448 of 2007. By the judgment dated 14.9.2007 in the above case, the trial court found that the appellant is guilty of the offence punishable under Section 511 of 376 (f) of IPC. Accordingly he is sentenced to undergo Rigorous Imprisonment for 7 years and to pay fine of Rs.10,000/- (Rupees Ten thousand only). It is the above conviction and sentence challenged in this appeal. 2. The prosecution case is that on 16.4.2006 at about 3.45 P.M. accused with the intention to commit rape, committed rape on his own daughter aged about 6 ½ years in a room of the house of accused in Ittiva panchayath bearing door No. XIX/56 in Kottukkal village and thereby accused committed an offence punishable under Section 376 (f) of IPC. Accordingly cirme No. 354/06 was registered in the Kadakkal police station for the offence under Section 376 (f) of IPC. Crl. Appeal No. 2449 of 2007 : 2 : After the investigation, a final report was filed before the Judicial First Class Magistrate II, Kottarakkara wherein C.P.113/07 was instituted. Subsequently as per the order dated 16.5.2007 in C.P.113/07, the learned Magistrate committed the case to the Session Court wherein the case was taken on file as S.C. 448/07 and subsequently made over to trial court for disposal. A formal charge under Section 376 (f) of IPC was framed after hearing prosecution as well as the accused and the same was read over and explained to the accused to which he pleaded not guilty. Subsequently, the prosecution adduced evidence consist of oral evidence of PW1 to PW11 and documentary evidence such as Ext.P1 to Ext.P15. M.O.1 and M.O.2 were identified and marked as material objects. When the accused was examined under Section 313 of Cr. P.C. he denied all the incriminating facts and circumstances which emerged during the prosecution evidence. No evidence was adduced by the defence. The trial court finally found that the prosecution evidence was not sufficient to convict the accused under Section 376(f) of IPC but found that prosecution has established beyond Crl. Appeal No. 2449 of 2007 : 3 : reasonable doubt that the accused had attempted to commit rape on his daughter, victim in this case and accordingly accused is convicted for the offence punishable under Section 511 of 376(f) of IPC. Thus the accused is sentenced to undergo Rigorous Imprisonment for seven years and to pay fine of Rs.10,000/-(Rupees Ten thousand only) and in default of payment of the fine amount he is ordered to undergo Rigorous Imprisonment for a further period of 6 months under Section 511 of 376(f) of IPC. It is also ordered that if the fine amount is paid or realised the, same will be given to the victim under Section 357(1) of Cr.P.C. Set off is allowed under Section 428 of Cr.P.C. It is the above conviction and sentence challenged in this appeal. 3. As the accused/appellant is undergoing imprisonment in pursuance of the impugned judgment, a state brief is appointed to prosecute the appeal and I have heard Sri. Leen Jose P, so appointed and also the learned Public Prosecutor. 4. PW1 is none other than the wife of the accused and mother of the victim. Ext.P7 FIR was registered Crl. Appeal No. 2449 of 2007 : 4 : on the basis of Ext.P1 F.I. Statement given by PW1 to PW9 the Sub Inspector of Police, Kadackal Police Station. Though the victim was cited as a witness, as she is only at the age of 8 years, by Voire Dire test the trial court found that she is not competent to depose before the court. PW4 is the doctor who attached to the Govt. Hospital, Kadackal who conducted potency test of the accused and issued Ext.P2 potency certificate. PW5 is the doctor, attached to the Govt. Hospital, Kadackal who had examined the victim and issued Ext.P3 medical certificate. PW6 was examined to prove the age of the victim and Ext.P4 copy of extract of admission register of school namely M.S.C. L.P.S proved through PW6. PW7 is the Assistant Director of Forensic Science Laboratory, Trivandrum who issued Ext.P5 report. Ext.P6 scene plan proved through PW8, the village officer. PW9 who was the S.I. of Police at the relevant time attached to the Kadackal police station stated that he recorded the Ext.P1 F.I. Statement of PW1 and registered Ext.P7 F.I.R. PW10 is the Investigating Officer who conducted investigation and through whom Ext.P10 property list, Ext.P11 report Crl. Appeal No. 2449 of 2007 : 5 : ascertaining the date of occurrence, Ext.P12 report to alter section, Ext.P13 custody memo, Ext.P14 inspection memo and Ext.P15 remand report were marked. Ext.P8 is the scene mahazar dated 20.7.2006 prepared by PW10. Ext.P9 is the seizure mahazar prepared by PW10, by which M.O.1 and M.O.2 seized as produced by PW1. 5. The case of the prosecution mainly revealed through oral evidence of PW1, the mother of the victim. She had stated before the court below the entire incident. It is the specific case of PW1 that she had occasioned to witness the incident on several times, but being the mother of the victim, the same was not reported to the police as the same is likely to adversely affect the future of her daughter. When the offence was repeatedly committed by the accused, she came to the police station and gave Ext.P1 F.I. Statement. On the registration of Ext.P7 F.I.R. pursuant to Ext.P1 F.I. Statement, the investigation was undertaken by PW10 and he inspected the place of occurrence and prepared Ext.P8 scene mahazar. At that time, PW1 produced M.O.1 and M.O.2 before PW10 and accordingly those material objects Crl. Appeal No. 2449 of 2007 : 6 : were seized as per Ext.P9 seizure mahzar. The materials so seized were produced before the court as per Ext.P10 property list. Ext.P5 is the chemical analysis report marked through PW7. Though PW1 was cross examined extensively, nothing was brought to discredit her version. The evidence of PW1coupled with the evidence of PW5, the doctor who examined the victim and Ext.P3 wound certificate would show that the accused had attempted to commit rape on the victim. The trial court found that evidence adduced by the prosecution especially the medical evidence is not sufficient to hold that the actual rape was committed on the victim. On basis of the available materials and evidence the trial court found that accused is guilty of the offence under Section 511 of 376 (f) of IPC and accordingly he is sentenced. 6. The learned counsel appearing for the appellant/accused pointed out that deposition of PW1 is not reliable and she had falsely implicated the accused because of her personal animosity towards the accused. It is also submitted that the deposition of PW1 contains contradictions Crl. Appeal No. 2449 of 2007 : 7 : and infirmities. The learned counsel further pointed out that she had made substantial improvements and embellishments from Ext.P1 F.I. Statement and at the time of her examination before the court she had gave exaggerated version. Thus according to the counsel the above approach of PW1 itself is sufficient to discredit her version. The learned counsel also pointed out that there is culpable delay in reporting the alleged incident before the police. Even according to F.I. Statement the exact date is not given. As per Ext.P11 report, first incident was alleged to be taken place on 16.04.2006 but the F.I. Statement lodged only on 20.07.2006. There is no acceptable explanation for such a delay. The counsel also invited my attention regarding different version given by PW1 for the delay. The learned counsel pointed out that in the F.I. Statement, PW1 has stated she was under the impression that matter could have been settled through bilateral discussions and hence delay occasioned. But when she was examined in court, she took a different stand and deposed before the court considering the future of the victim she did not report the matter to the police. Thus it is Crl. Appeal No. 2449 of 2007 : 8 : submitted by the counsel that regarding the delay two different version have been given by PW1 and therefore explanation offered by PW1 and prosecution are liable to be rejected. Another ground argued by the learned counsel regarding the recovery of M.O.1 frock and M.O.2 lungi. The learned counsel invited my attention to the date of report of the incident. That was on 20.7.2006. As per F.I. Statement the incident was taken place on 3 - 4 months prior to the date of report of crime. According to the learned counsel for the appellant it is too strange to believe that till that time material objects were kept intact so as to detect the presence of stains. In support of the above statement it is also pointed out by the learned counsel that in the F.I. Statement nothing was stated regarding the production of M.O.1 and M.O.2 before the police and also the clothes worn by the victim and the accused at the time of the alleged incident. Thus, the learned counsel submitted that prosecution has miserably failed to establish the case of the prosecution beyond reasonable doubt and therefore no interference is called for. 7. On the other hand, the learned Public Crl. Appeal No. 2449 of 2007 : 9 : Prosecutor strongly supporting the judgment of the trial court argued that it is the case where the father of the victim subjected his own daughter to such an indecent and heinous offence and that part of the prosecution case has been established beyond doubt with adequate evidence. The learned public prosecutor pointed out that main evidence is consist of the deposition of PW1 who is none other than the wife of accused and her evidence is supported by the medical evidence namely oral deposition of PW5 and Ext.P3 wound certificate. It is also pointed out that delay has been properly explained by the prosecution and the legal discrepancy if any, it is there, the same will not affect the prosecution case. Therefore the learned public prosecutor submitted that no case is made out by the appellant to interfere with the order of conviction passed by the court below. 8. On a careful consideration and scrutiny of the evidence on record it can be seen that as stated above the main case of the prosecution sought to be established through PW1. PW1 is none other than the wife of the Crl. Appeal No. 2449 of 2007 : 10 : accused as well as the mother of the victim. Though certain animosity suggested against PW1 towards the accused, the facts and circumstances involved in the case are not capable to disbelieve the version of PW1. PW1 has categorically stated that the accused used to subject victim for sexual harassment and she had narrated the details with respect to the commission of the offence. As discussed earlier the delay occurred in reporting the case to the police has explained satisfactorily by PW1. But the learned counsel for the appellant submitted that regarding the delay prosecution has not properly explained. According to the learned counsel the different version given by PW1 cannot be relied. As per her deposition she has described the delay in three way. In the F.I. Statement and at the time of giving evidence before the court she gave different version. The learned counsel invited my attention to Ext.P3 wound certificate where alleged history of the assault endorsed as told by PW1 is to the effect that incident was taken place 4 months back and on several occasions before that the accused has committed same offence. What incorporated in wound certificate like Ext.P3 Crl. Appeal No. 2449 of 2007 : 11 : sufficient to overrule the substantial evidence given by the prosecution witnesses. At the time of discussion of the evidence of PW1, I have already found that when she deposed before the court she had categorically stated that the incident was taken place 4 months back and she did not disclose the same to anybody and not reported the same before the police considering the future of her daughter. Further she had deposed that thereafter also accused repeated the same offence. During her chief examination she had stated After describing minute details regarding the act of the accused she had further stated that In this respect it is relevant to note during cross examination of PW5, the doctor who examined the victim, it is brought out that “some 7 or 10 days back tear noted can be occurred”. During his examination he had also deposed that according to his opinion there is evidence of past vaginal penetration. So conjoined reading of evidence of PW5 with the evidence Crl. Appeal No. 2449 of 2007 : 12 : of PW1 it can be seen that evidence given by PW1 is corroborated by the medical evidence regarding the incident. Thus it can be seen that trial court after an elaborated consideration of the facts and circumstances involved and the medical evidence and other documentary evidence came into a conclusion that victim suffered sexual harassment at the instance of the accused i.e. father of victim attempted to commit rape on his own daughter. In the light of the above discussions, I find no reason to interfere with the finding arrived on by the court below. Consequently the conviction is confirmed. 9. Regarding the sentence the learned counsel submitted that a lenient view may be taken. The trial court, however imposed Rigorous Imprisonment for 7 years and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and further ordered in default of payment of fine to undergo Rigorous Imprisonment for 6 months. It is also ordered that if the fine amount is paid, the same will be given to the victim under Section 357(1) of Cr.P.C. It is to be noted that at the time of the alleged occurrence the victim was at the age of 6 Crl. Appeal No. 2449 of 2007 : 13 : ½ years old and the accused was aged 43 years. At present we are not having any material to assess the matrimonial relationship between the accused and PW1 his wife and the mother of the victim. Considering the over all circumstances involved in this case, I am of the view that substantial sentence can be re fixed as 5 years instead of 7 years. As the beneficiary of sentence of fine is victim, who is none other than the daughter of the accused I am of the view that there need not be any interference. Set off under Section 428 of Cr.P.C. is allowed. Thus the substantial sentence is modified as 5 years Rigorous Imprisonment for offence punishable under Section 511 of 376 (f) of IPC. In the result this criminal appeal is disposed, confirming the conviction subject to the above modification with respect to the sentence. (V.K. MOHANAN, JUDGE) KMD Crl. Appeal No. 2449 of 2007 : 14 :