IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 310 of 2002() ----------------------------- CRA NO.114/1996 OF ADDL.SESSIONS JUDGE FAST TRACK COURT NO.II, PALAKKAD SC.90/1995 of ASSISTANT SESSIONS COURT, OTTAPPALAM .................... REVISION PETITIONER: APPELLANT/ACCUSED -------------------------------------- RAFEEQUE, AGED 21 YEARS, S/O.MUHAMMED KURIKKAL, KADAKKODAN HOUSE, KOTTIYODE,VIYYAKURUSSI, MANNARKKAD. BY ADV. SRI.M.T.SURESHKUMAR SRI V.V.RAJA RESPONDENT: RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.310 of 2002 -------------------------------------- Dated this the 14th day of October, 2008. ORDER On a charge of committing rape on a six year old girl on 2.10.1992 at about 4.30 p.m. in House No.II/155 of Kanhirappuzha Panchayat, revision petitioner faced trial in the court of learned Assistant Sessions Judge, Ottappalam for offence punishable under Section 376(2)(f) of the Indian Penal Code (for short, 'the Code). Learned Assistant Sessions Judge found revision petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment for seven years and payment of fine of Rs.10,000/-. Appeal preferred by him was dismissed. Hence, this revision. 2. Heard. 3. Learned counsel for revision petitioner submitted that there is no evidence to prove the charge against the revision petitioner. He also submitted that the trial court had not examined the capacity of PW3 to give evidence. According to the learned counsel, in the way PW3 has given wavering evidence it is clear that she was not capable of giving proper evidence. 4. Though PWs 4 to 7 were examined to support the case of prosecution, they did not speak in favour of prosecution. PW4, father of the alleged victim refused to support and claimed that he took PW3 to the Crl.R.P.No.310/2002 2 hospital since PW3 told him that when she went to the house of Kurikkal Muhammed something happened to her private part and she felt pain. PWs 8 to 10 are attestors in mahazars for seizure of the cloths of revision petitioner, PW3 and the certificate issued by PW12, Executive Officer of Panchayat to prove the age of PW3. PW11 gave intimation to the police on PW3 being admitted in the hospital. PW14 recorded the statement of PW3 at the hospital. PW15 prepared Ext.P6, mahazar for scene of occurrence. He arrested revision petitioner and seized his cloths (MOs 2 to 4) as per Ext.P8. Ext.P14 is the report of chemical examination which states that test for determination of blood and semen on MOs 1 to 4 (clothes of PW3 and revision petitioner) were negative. PW1 conducted potency test of revision petitioner and issued Ext.P1. PW2 examined PW3 and issued Ext.P2. Though PW2 is said to have collected vaginal swab and smear and nail clippings of PW3, the same are not seen sent for chemical examination. Evidence in that way is lacking. What remained is only the evidence of PW3, victim of alleged rape. She was aged 10 years at the time examination. Learned Assistant Sessions Judge has recorded that he questioned PW3 regarding her capacity to understand questions and give rational answers and was satisfied that she is capable of giving evidence. 5. Though PW3, pointing to revision petitioner who was in the box stated that “he did something on me”, she did not stand by that statement in further examination. She did not say what the revision petitioner had allegedly done to her and the Public Prosecutor who conducted the Crl.R.P.No.310/2002 3 prosecution wanted PW3 to say whether she knows or could speak anything further about the incident. She claimed that she does not know anything and cannot say anything also. Thereon she was permitted to be confronted with her previous statement. To the suggestion on behalf of the prosecution that she is refusing to speak the entire things in order to save revision petitioner, she answered in the affirmative. In cross-examination by defence counsel, though she gave certain hints as if it was the revision petitioner who had done “something” on her, she answered in the affirmative when it was suggested that somebody else had taken her and did something. Thus, evidence of PW3 appeared to be wavering as to whether revision petitioner is involved in the incident and at any rate as to what exactly was done by him. 6. Learned Public Prosecutor submitted that the fact that PW3 was aged 10 years at the time of examination has to be taken note of. Certainly allowance has to be given to that fact while considering the evidence of PW3. But, in a case where there is no other corroborative evidence, question is whether evidence of PW3 alone is sufficient. To PW2, what PW3 is said to have told is that somebody had done something on her. Had PW3 referred to the revision petitioner at that point of time, certainly that could have been taken as a corroborative material. Ext.P14 shows that chemical examination for identification of blood and semen on MOs 1 to 4 clothes of PW3 and revision petitioner produced negative result. The vaginal swab and smear are not tested for the presence of blood or semen. None of the Crl.R.P.No.310/2002 4 prosecution witnessess have given evidence to the effect that PW3 was seen in the company of revision petitioner at the relevant time. Evidence of PW3 itself is not clear as to what had happened. In these circumstances, I am inclined to accept the contention that in the absence of corroboration, evidence of PW3 by itself is not sufficient to warrant conviction of the revision petitioner. Sentence imposed on him cannot therefore be sustained. Revision Petition is allowed. Conviction and sentence imposed on the revision petitioner are set aside and he is acquitted of the charge made against him giving him benefit of doubt. Bail bond is cancelled. Crl.M.P.No.2265 of 2002 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.310/2002 5 Thomas P.Joseph, J. Crl.R.P.No.310 of 2002 ORDER 14th October, 2008