IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 Crl.Rev.Pet.No. 1009 of 1998() ------------------------------ CRA.270/1995 of ADDL.SESSIONS COURT, KOZHIKODE SC.45/1994 of SESSIONS COURT, KOZHIKOE .................... REVN. PETITIONER(S): --------------------- AVARATTU BASHEER, S/O.MOOSANKUTTY, KOTTOOR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1.S.I. OF POLICE, KOORACHUNDU POLICE STATION (CRIME NO.25/93) 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.K.SURESH. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- CRL.R.P.NO.1009 of 1998 ----------------------------------------- Dated this the 18th day of March, 2011 O R D E R The revision petitioner was convicted and sentenced by Assistant Sessions Court to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of one year under Section 376 of the Indian Penal Code ('IPC', for short). The said conviction and sentence were confirmed in appeal by Sessions Court. Hence this revision. 2. According to the prosecution, a minor girl, who was 14 years, delivered a child on 5.6.1993 as a consequence of the rape committed by the revision petitioner about three months prior to his marriage which was solemnized on 29.11.1992. He was charge sheeted for offence under Section 376 IPC. The prosecution examined PW1 to PW16 and marked Exhibits P1 to P10 on its side. The accused examined DW1 to DW3 and Exhibits D1 and D2 before the trial court. 3. At the appellate stage, at the request of the accused, DW4, the doctor was examined. PW1 was recalled and examined as DW5. On an analysis of the evidence on record, both the courts found that the version given by PW1 that the accused committed rape on her is believable. Both the courts rejected the contentions raised by the accused that the case set up by the prosecution is highly improbable and that until delivery, no Cr.R.P.No.1009/98 2 person knew that PW1 was pregnant etc. 4. Learned counsel for the revision petitioner strongly contended that the case set up by the prosecution is highly improbable, in the light of the fact that PW1 did not disclose the commission of offence to anybody until the delivery. It was argued that there will be visible changes in any woman during pregnancy and it is unlikely that it would miss the notice of her near relatives like mother, sister etc. It was also argued that the evidence of PW2, the mother of the prosecutrix, would reveal that she knew about the pregnancy one-and-a-half month prior to the delivery. It is also contended that delay is not explained by prosecution and that is also fatal to prosecution. 5. Learned Public Prosecutor argued that lower court considered all relevant aspects and arrived at a right conclusion on the basis of the evidence adduced in this case. PW1 is aged only 14 years at the time of offence and as per her evidence, she had attained puberty just one month prior to the commission of offence. Her evidence reveals that she even did not know anything about menstrual period and she had not stated about the same, when she noticed bleeding, even to her mother. This evidence is corroborated by the evidence of PW2. She stated that her daughter had not attained puberty and she had no reason to suspect any Cr.R.P.No.1009/98 3 pregnancy. 6. It is true that PW2 admitted that she had seen PW1's enlarged belly about one-and-a-half month prior to the delivery and that she was covering it up with the skirt. But, her evidence explains that there was absolutely no reason for her to suspect that a school going girl who had not even obtained puberty would be pregnant. The trial court also relied upon the evidence of the sister of the prosecutrix who was examined as PW10. While she was examined in court, she was in an advanced stage of pregnancy and the court recorded in the deposition that no visible changes of pregnancy could be noticed on PW10, except on a very close observation. 7. PW4 deposed that the case of PW1 also was similar and nobody would knew that she was pregnant. The trial court found no reason to reject this evidence. I do not find any reason to disbelieve PW2, the mother when she said that nobody noticed that the child was pregnant and there was no occasion for anybody to question the child regarding the pregnancy. This itself explains the delay and the courts below have not committed any mistake or perversity in the findings of facts. Regarding the alleged abnormal conduct of PW1 in not disclosing about the pregnancy, trial court considered the evidence of the prosecutrix and her near Cr.R.P.No.1009/98 4 relatives. 8. The trial court found that the child was either not aware of the consequences of the alleged act committed by the accused or that she was suppressing the same since it would be embarrassing for the child to disclose the fact to any one. Learned counsel appearing for revision petitioner argued that in the absence of explanation for the delay, the court ought not have made any such inferences on surmises. It is true that there is no specific explanation given for the long delay in lodging the complaint. But it was stated that PW1 had not divulged about the incident to anybody until her delivery. 9. It has come out in evidence of PW2 to PW4, near relatives of the prosecutrix that they had not known about the pregnancy. When there is sufficient evidence which will enable the court to appreciate the delay in lodging the FIR, the prosecution case cannot be thrown overboard, stating that there is no explanation for delay. From the evidence and materials on record, the court finds that there is no reason to suspect that the FIR emerged from suspicious circumstances. If there is no reason to doubt that FIR is a concocted or fabricated one, it will be no ground to reject the prosecution case, stating that there is delay in lodging the FIR. 10. Both the courts below on an analysis of the evidence and Cr.R.P.No.1009/98 5 appreciation of the same, found that the evidence adduced in this case by PW1 to PW4 is totally acceptable. On going through the evidence, records and also the judgments, I find that there is no perversity in the findings of fact entered into by the court below. The delay also is not sufficient to discard the prosecution case in toto, since the facts and evidence disclose sufficiently why the FIR was lodged only after the delivery. I do not find any ground to interfere in the conviction and sentence passed against the revision petitioner. There is no infirmity in the conviction and sentence. 11.Learned counsel for revision petitioner strongly argued that sentence imposed is excessive and that revision petitioner has undergone the trauma of the long pendency of the case. The incident happened as early as in 1992 and the case was pending before the courts for a long period of about 15 years. The sentence imposed is to undergo rigorous imprisonment for five years and to pay a fine of Rs.25,000/- and in default of payment of fine, he is also directed to undergo rigorous imprisonment for one more year. 12. On a consideration of the facts and circumstances of the case, the tender age of the child victim, the fact that the accused's marriage had taken place just one-and-a-half month immediately after the incident, the parties are near relatives etc. I do not find any reason to reduce the Cr.R.P.No.1009/98 6 sentence. The sentence is only proportionate to the gravity of offence. It is also relevant to note that the accused made an attempt at the appellate stage to prove that the prosecutrix is immoral, since after the incident she had delivered one more child, though she continued to be unmarried. The character of a woman, after the incident, is not relevant at all to acquit the accused or exonerate him from criminal liability, for offence under Section 376 IPC. It is also to be noted that during trial he had no case that the child was immoral prior to the incident or atleast during the trial. This Revision Petition is dismissed. K.HEMA, JUDGE vgs.