IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 1129 of 2009(A) ------------------------------------ SC.324/2005 of ADDL. SESSIONS COURT (ADHOC), KALPETTA ........................................................ APPELLANT(S): PETITIONER ----------------------------------------- VERAN, C.NO.6904, CENTRAL PRISON, KANNUR. BY ADV. PRAVEEN.K.JOY (STATE BRIEF) RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.1129 of 2009 ------------------------------- Dated this the 26th day of March, 2010. J U D G M E N T The appellant, who is undergoing imprisonment in the Central Prison, Kannur, preferred this appeal challenging his conviction and sentence u/s.376 and 506(i) IPC, vide judgment dated 14.1.2009 in S.C.No.324/2005 of the Court of the Addl. Sessions Judge (Ad hoc)I, Kalpetta. 2. As the appeal is preferred from jail and no advocate is engaged on his own choice, the Registry of this court, as per the order of this court, appointed Mr.Praveen K.Joy from the panel of State Brief, to prosecute the appeal, on behalf of the appellant. 3. The prosecution case is that, the accused committed rape of PW9, the defacto complainant, when she was studying in 7th std., at various places and on different occasions during the period from 2nd week of June 2003 till 2nd week of September 2004 and criminally intimidated her and prevented her from Crl. APPEAL No.1129 of 2009 2 disclosing the said incident to anybody and thereby committed the above offences, punishable u/s.376 and 506(i) of the IPC. On the basis of the said allegation, Crime No.178/04 was registered in the Ambalavayal Police Station and after investigation, a report was filed in the Judicial First Class Magistrate Court-I, Sultan Batheri, where upon committal proceedings was instituted and by an order dated 28.7.2005, the case was committed by the learned Magistrate to the Sessions Court, wherein the case was re-numbered as S.C.No.324/04 and thereafter made over the case to the trial court for disposal. 4. On the appearance of the accused, after hearing the prosecution as well as the accused, who was defended by an advocate appointed on legal aid service, framed a formal charge which was read over and explained to the accused and he denied the same and pleaded not guilty. Thereafter, the prosecution had examined Pws.1 to 11 and marked Exts. P1 to P12 documents. Material objects such as M.O.s 1 to 3 were Crl. APPEAL No.1129 of 2009 3 also produced and identified. The accused was questioned u/s.313 of Cr.P.C. and he took up the plea of total denial. The only evidence marked on behalf of the defence is Ext.D1, a portion of the statement of CW1. No witness was examined from the side of the defence. On the basis of the above materials and evidence, the trial court has found that the accused is guilty of the offences charged against him and accordingly he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.15,000/- u/s.376 of IPC and the default sentence is fixed as 1 year rigorous imprisonment. Under S.506(1) of IPC, the accused is sentenced to undergo 1 year rigorous imprisonment. It is also ordered that the substantiative sentence shall run concurrently and the fine amount if realised, the same shall be given to the victim-the defacto complainant, u/s.357(1) of Cr.P.C. 5. Originally, the accused was arrested on 2.10.2004 and released on bail on 10.1.2005 but subsequently, he jumped over the jail and again came into custody on 17.9.2008 and thus he Crl. APPEAL No.1129 of 2009 4 was continuing in the custody as a pretrial prisoner and after the judgment he was undergoing imprisonment, in pursuance to the above conviction and sentence. 6. Going by the materials on record, it can be seen that the defacto complainant, who is the victim, was at the age of 13 years during the relevant period and she is a tribal girl belonging to Kuruma community. According to the prosecution, the father of the said girl deserted her mother two years' prior to the incident and the mother of the victim accepted the accused as her husband and thus the accused, the mother of the girl and herself and her brother were staying together in the colony at Koliyadi. The victim studied up to 6th std. in a local school and thereafter her mother obtained admission for her at Ambalavayal Govt. School in the 7th std. and thus she started to attend the school by residing at the Tribal Hostel in Ambalavayal. 7. According to the prosecution, after the annual examination in the 7th std., the girl has started to live along with Crl. APPEAL No.1129 of 2009 5 her mother in their house, as the school was closed for summer vacation. While so, the mother of the victim, namely PW10, was informed by the girl about her abdominal pain. Then PW10 took her daughter to the hospital and got examined by PW6, the Asst. Surgeon and after medical examination of the victim, PW6 revealed the fact to PW10 that her daughter, who was at the age of 13 years, was in advanced stage of pregnancy and further disclosed that the victim was carrying a seven month baby in her womb. 8. Thus, on further questioning of PW9, the crime committed by the accused has been narrated by the victim. Thus, PW9 lodged an information to PW8 which is marked as Ext.P6(a) F.I. statement, based upon which PW8 registered Ext.P6 FIR, in the Ambalavayal Police Station for the above offences. During the trial of the case, PW9 deposed before the court in terms of Ext.P6(a) first information statement that, a week after she started to reside in the hostel, the accused came to the hostel, pretending that he came to inform her that her Crl. APPEAL No.1129 of 2009 6 mother was ill and thus she was taken to their house in a bus and though the bus reached at Koliyadi, where they expected to get down as their place of residence is located there, the girl was asked to get down at Sultan Batheri only. According to PW9, after alighting from the bus, the accused purchased foot wear for her and took her to see a cinema and thereafter there was no bus to Koliyadi. After the cinema, they walked to Koliyadi. PW9, the victim, is very specific in deposing that when they were proceeding through the lane to her house, the accused took the victim to near the well, which situated in the compound of one Jose and the accused made her sit at the platform of the well. It is the further case of PW9 that, the accused threatened her that if she revealed the incident at home, he will cut off her limps and put her into the well. Thus under threat, the accused compelled the 13 years old girl to remove her skirt and thereafter he made her lay down on the platform of the well and he had forcible physical relationship with the victim and thereafter the victim was taken to her house. Crl. APPEAL No.1129 of 2009 7 The girl who was threatened by the accused did not reveal the incident to her mother. It has also deposed by PW9 that, on a later date the accused took her to a shop and on the way back from the shop, according to the victim, she was taken to the verandha of the nearby school and there also the accused had physical relationship with the victim. PW9 stated that, at that time also the accused threatened her that if she reveals the incident to her mother, he will assault her. According to the victim, subsequently on several occasions, while the accused was taking her from the hostel, he had intercourse with her. 9. It is also brought on record that, the defacto complainant did not reveal the incident to any of the hostel inmate also. By examining Pws.1, 2 and 3, the prosecution has established the fact that, the victim was reluctant to go along with the accused whenever he came to the hostel to take her. PW1 is the class mate of the victim and she said that the victim used to express her reluctance to go with the accused. PW2 is the watchman and PW3 is the cook of the said hostel and they Crl. APPEAL No.1129 of 2009 8 deposed that, the accused used to come to the hostel to take the victim and the victim was reluctant to go with him. The medical evidence consists of the deposition of PW6 and Ext.P4, which is the report of examination of victim, would show that the victim is pregnant and she has seven month's pregnancy at the time of Ext.P4 certificate. After the arrest of the accused, he was subjected to potency test before PW5, who issued Ext.P3 certificate. Ext.P5 is the site plan which was prepared through PW7, the Village Officer. Exts.P6 and P6(a) documents were marked through Pws.8 and 9. PW11, the Circle Inspector of Police, conducted the investigation in the case and he laid the charge. The prosecution got marked Ext.P7 arrest memo through PW11. Ext.P8 is the birth certificate of PW9, which would show that the date of birth of the victim is 6.2.1992 and she was below the age of 16, at the alleged time of the incident. PW11 as per Ext.P9 seizure mahazar dated 9.10.2004, seized M.O.s 1 to 3. Exts.P1 is the scene mahazar. Ext.P11 forwarding note were prepared to send those materials for Crl. APPEAL No.1129 of 2009 9 chemical analysis and thus obtained Ext.P12 report. But in Ext.P12 chemical analysis report, there was no report favouring the prosecution, which is quite natural because the alleged incident was taken place between the period from June 2003 and September 2004 and those materials were seized only on 9.10.2004 and in the meanwhile, nobody can expect that any sperm or blood stain will remain on those clothing materials. It is on the basis of the above evidence and materials, the trial court found that the accused is guilty of the charge levelled against him and this finding is under challenge in this appeal. 10. I have heard Sri.Praveen K.Joy, the learned counsel for the appellant and also the Public Prosecutor and I have carefully perused the evidences and materials on record. 11. From the materials and evidence referred above, it can be seen, especially as per Ext.P8 birth certificate, that the victim was below the age of 16 during the relevant period. The deposition of PW6 would show that, the victim was pregnant even before she attained the age of 16. The evidence of PW5, Crl. APPEAL No.1129 of 2009 10 coupled with Ext.P3 would show that the accused was having required potency to enter into intercourse with the victim. The evidence rendered by the unfortunate victim, the aadivasi girl Jyothi, would show that the accused who expected to be in the position of the father of PW9, committed this heinous crime on her and the protector himself turned into a destructor. Though PW9 was subjected to lengthy cross examination, nothing elicited from her to disbelieve her version regarding the incident. As indicated above, the history of the crime was unearthed when PW9 made a complaint to her mother, PW10, regarding the stomach pain and when PW9 was taken to PW6. The explanation offered by PW9, for not divulging the information regarding the crime committed by the accused to anybody, appears to be quite natural and genuine. Therefore, I find no illegality even in registering Ext.P6 FIR on 2.10.2004, though little belatedly when the incident was taken place during the period mentioned above. Beside the material evidence adduced by PW9, regarding the sexual atrocities meted out Crl. APPEAL No.1129 of 2009 11 against her by the accused, other circumstances brought on record by the prosecution through the evidence of Pws.1, 2 and 3, rendered assurance and credibility of the evidence of PW9. As rightly observed by the trial court, when PW9 made deposition before the trial court, she was at the age of 19 and she had also got married with another man and during this wed- lock she gave birth to another baby and such a lady is not expected to gave false evidence against the accused, who is a person accepted by her mother as the second husband. 12. In the light of the above facts, circumstances and the discussions and the evidence and materials referred above, I am fully endorsing the finding arrived on by the trial court as correct and legal and nothing brought out from the record to take a different view and to interfere with such a finding. Consequently, the conviction recorded by the trial court is approved. 13. The learned counsel for the appellant submitted that, a lenient view may be taken with respect to the sentence. The Crl. APPEAL No.1129 of 2009 12 facts and circumstances involved in the case is highly shocking to the conscience of this court and a crime like the present one shall not be repeated. It is a case where, the accused, who is supposed to be acted as the father and protector of the girl who was at the age of 13 years subjected her to such a heinous crime and hence deterant punishment shall be imposed against him and he deserve no leniency. It is relevant to note that, the trial court has not imposed any maximum sentence for which the accused was charged and faced the trial. Therefore, the request of the counsel for the appellant is rejected and confirm the order of sentence passed by the court below. In the result, there is no merit in the appeal and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/