IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 2068 of 2003() ------------------------ SC.107/2001 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGODE CP.89/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDURG ................................................................... APPELLANT(S): ACCUSED: -------------------------------------- C. SUKUMARAN, S/O. EDAKOMAN AMBADY, AGED 28 YEARS, CHALAKKATTU VEEDU, MOZHAKKOM, NEAR CHALAKKAT TEMPLE, KLAYIKODE VILLAGE, KASARGODE DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): STATE & COMPLAINANT: ------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, NEELESWAR POLICE STATION, NEELESWAR, KASARGODE DISTRICT. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22 /06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.2068 OF 2003 -------------------------- Dated this the 22nd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Ad hoc-I), Kasargode, in S.C.107/01. The case of the prosecution is that on 19.3.2000 at about 6.45 p.m., the accused had committed rape on PW1, a 14 year old girl, in the Parambu of one Kunhiraman Master situated at Mozhakkom. In the trial court Pws.1 to 10 were examined, Exts.P1 to P9 and M.O.s 1 to 7 were marked. On analysis of the evidence, the court arrived at a decision that the accused has committed the guilt and therefore convicted and sentenced him to undergo imprisonment for a period of 7 years and to pay a fine of Rs.5,000/-. It is against that decision, the accused has come up in appeal. The points that arise for determination in the appeal are, 1.Whether there is sufficient evidence to hold that the accused has committed the offence u/s.376 of Indian Penal Code. 2.Is there anything to interfere with the decision rendered by the court below. 3.Whether the punishment imposed is excessive. CRL.A.No.2068 OF 2003 2 2. Points 1 to 3 :- Heard the learned counsel for the appellant as well as the prosecutor. It is the case of the prosecution that on 19.3.2000 at about 6.45 p.m., PW1 had been subjected to rape by the accused. According to the prosecution, she was aged about 14 years at the time of the incident. Ext.P7 is the School Admission Register Extract and it would show that the date of birth is 18.3.1986. The said document has been proved by examining the person who had prepared it. There is nothing to show that it is incorrect. Therefore, it has to be held that the girl was a minor on the date of the alleged incident. The next question is, whether the girl has been subjected to rape and whether there is any evidence to connect the accused with the same. It is a well settled principle that in a case of rape, even the uncorroborated evidence of prosecutrix can be relied upon, provided it is trust worthy and is supported by medical evidence. So with the help of the learned counsel for the accused, I had gone through the evidence of PW1. The girl is living along with her parents and CRL.A.No.2068 OF 2003 3 she is the daughter of the second wife of her father. There was a celebration in the nearby temple and according to her, the incident took place at about 6.45 p.m. on 19.3.2000. She was a student of 9th std. in Kayyoor Govt. Vocational Higher Secondary School. She was coming back from the temple and at about that time, the accused had followed her and it is her version that she had passed through the parambu of one Kannan and at that time, the accused was behind her. Thereafter, the accused came to the front and it is her version that, she was caught hold off and taken to the parambu of Kunjiraman Master and there were plants and weeds and she was physically lifted and thereafter she had been subjected to rape. She had also spoken about the meticulous ingredients, such as the removal of the undergarments, blouse and also the force used by the accused which prevented her from making any noise or attempt to escape from the place. It is also her version that, her mouth was closed by inserting the lunki, which the accused was wearing, and thereafter he has committed sexual intercourse CRL.A.No.2068 OF 2003 4 and she had gone home. It is submitted by her that she did not tell her mother about the incident, on that day and she was feeling very uncomfortable and she told everything to her mother only on the next day, and then it was informed to her father and they could not go to the police station on that day as well as on the next day on account of the bandh and fever of the father. He had been cross examined at length. She had deposed that she had some absis on her thigh and it was healing. She had clearly deposed that she had told her mother, but the contradiction attempted to be brought therein was that she had told it on the very same night but really it is on the next day. She had also spoken about the gathering of about 1000 people in the temple and also the persons of two houses of Kunhaisu and Damodaran. She had clearly deposed that she was not in a position to shout and there was a threatening by him that she will be killed. There was an attempt to get elaboration of the version, what had transpired, but ultimately she said that she had been subjected to rape. Then the minor details such as the CRL.A.No.2068 OF 2003 5 breaking of the buttons was put to her and she had also spoken about the nail mark on her breast. The suggestion put to her is that there is some previous enemity between the accused and the family of the complainant and that had lead her in lodging a false case and it had been denied by her. So far as the material objects are concerned, it is not of very much help to decide the case for the reason that all had been washed and were produced before the authorities only after three or four days of the alleged incident. Now one has to find out what is the medical evidence available in this case to accept the version of PW1. Ext.P5 is the report of examination of the victim wherein she had stated about the alleged rape committed by the accused by inserting cloth in her mouth. The report also reveals that the girl was anxious at the time of examination and she is a moderately built girl and that there was a nail mark on her right breast. There was a suspected tear on the right side of her hymen and the vagina admitted two fingers. The doctor had also opined that the victim has evidence of vaginal penetration in CRL.A.No.2068 OF 2003 6 the past. There were no bruises seen on her body. The doctor had been examined as PW5. The evidence of doctor would reveal that there was symptoms of recent sexual intercourse but there was no symptoms of sexual violence but she had symptoms of local violence and that she had pain in her genital parts. The doctor was able to see nail marks on her right breast. In the cross examination the doctor would submit that vagina admitted two fingers, so she was not a virgin on the date of examination. Even on the date of examination there was pain for her, there was tear of hymen but she was not able to say the exact age of the same. The doctor would opine that healing of the same depends on the immunity of the person. The doctor would also say that she had not noted the age of the nail marks. She would further depose that the presence of nail mark after four or five days, depends upon the type of the skin. She had also stated that the stretch marks are different from nail marks. So the evidence of PW5 coupled with the entries in Ext.P5 would indicate that in the recent past the prosecutrix had been CRL.A.No.2068 OF 2003 7 subjected to attack thereby she had sustained a nail mark on the breast, tear mark on the hymen. There can not be any injury on her private parts for the reason it admits two fingers. Just because there is a history of a lady or a girl subject to intercourse previously, one can not hold that she has not been a subject matter of sexual intercourse immediately in the past. So the indication of the medical report coupled with the oral evidence of the prosecutrix only points out in one direction that she had been subjected to sexual intercourse as deposed by her. 3. Then it has to be remembered that especially in the Indian society ladies consider chastity as the most valuable part in their life and no parents or girls would come and depose before the court that they had been subjected to rape by a person, if she had not been subjected to that. There is no suggestion in the cross examination, regarding the previous familiarity or any love between the accused and the victim and there is no case for the accused that the intercourse was with CRL.A.No.2068 OF 2003 8 the consent of the girl. The case of the accused is of a total denial of the incident. I feel that the evidence adduced both by the prosecutrix and the medical evidence, substantiate her case. The learned counsel for the accused had drawn my attention to, the delay caused in lodging the first information statement. Apex Court had always stated that a delay of few days in lodging the fist information statement can not be a fatal to the prosecution, for the reason that the woman in Indian society are very slow in reacting to these type of complaints because it cuts at the root of their family life. Here it is well explained by stating that the girl was in an atmosphere of fear, then she later told her mother and thereafter there was illness of her father and so the delay of two days caused in lodging first information statement is properly explained. Now the learned counsel had drawn my attention to the decision reported in KIR 1973 Supreme Court, page 343. The learned counsel referred to para 26 wherein, a reference was made to the evidence of Dr.Katiyar, Medical Officer of District Jail Rae Bareli, who stated that, `if a girl of 10 CRL.A.No.2068 OF 2003 9 or 12 years who is virgin and whose hymen is intact is subjected to a rape by a fully developed man, there are likely to be injuries on the male organ of the man.' So far as this case is concerned, admittedly the medical evidence is to show that she is not a virgin and her vagina admits two fingers. So the theory of this girl having hymen intact and the virgin subjected to sexual intercourse can not be raised. The medical evidence even shows that the victim has evidence of vaginal penetration in the past. So the said passage relied upon by the learned counsel would not help him in this case. So from the evidence available, I have absolutely no hesitation to hold that the prosecution has proved the guilt u/s.376 of Indian Penal Code. 4. Lastly, coming to the question of punishment, Section 376 of IPC mandates a minimum punishment of 7 years. When the accused was questioned, he said that he had nothing to say about the sentence. Nothing is brought out to show that the punishment to be less. When there is a statutory mandate to impose a minimum punishment, unless there are cogent CRL.A.No.2068 OF 2003 10 materials to detract from the same, court is not expected to reduce the sentence on sympathetic grounds. Further it has to be borne in mind that, a young minor girl who was subjected to the act of intercourse, while she was returning from the temple by following her, which clearly indicates the intention of the person who committed the rape, that it was not an accidental act but a deliberate one. So I do not find any reason to reduce the sentence as well. So from these discussions, I hold that there is nothing to interfere with the decision of sentence as well. In the result this criminal appeal fails and the same is dismissed and the lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.