IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 CRL.A.No.1886 of 2007(A) ------------------------------- SC.353/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CP.71/2006 of CHIEF JUDICIAL MAGISTRATE, KALPETTA .................... APPELLANT: -------------- KANNAPPAN @ SANKARAN, C.NO.4396, CENTRAL PRISON, KANNUR. BY ADV. SRI.C.T.JESTIN(STATE BRIEF) RESPONDENT: ---------------- STATE OF KERALA. REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1886 of 2007 ------------------------------------------------ Dated this the 23rd day of January, 2008 JUDGMENT Convict No.8018 Kannappan alias Sankaran has preferred this appeal from Central Prison, Kannur assailing the conviction and sentence passed against him by the Additional Sessions Judge (Adhoc)-II, Kalpetta in S.C.353/06 vide judgment dt.31/01/07 for offence under Section 376 and 506(1) IPC. Consequent on conviction, he was sentenced by the court below to undergo rigorous imprisonment for a term of seven years for offence under Section 376 IPC and to undergo rigorous imprisonment for a term of six months under Section 506(1) IPC with benefit of concurrency and right of set off. 2. The prosecution case is that on 23/04/06 he committed rape on PW1 Liji, aged Crl. Appeal No.1886 of 2007 -2- 13 years, the daughter of his wife in her first marriage, putting her to fear of death. 3. PW1 gave Ext.P1 F.I.statement to PW7 the Head Constable of Meppadi police station at 5.00 p.m on 27/04/06 and on the basis thereof, he registered the case as Crime No.80/06 for offence under Section 376 and 506 (1) IPC drawing up Ext.P1 F.I.R in that behalf. PW11, the Sub Inspector of Police, Meppadi conducted the investigation in the case on instructions from the Circle Inspector of Police. He prepared Ext.P8 mahazar of the scene of occurrence; questioned the witnesses and effected arrest of the appellant. PW12 the Circle Inspector of Police, Kalpetta took over the investigation in the case on 23/05/06 and he completed the rest of the investigation in the case and submitted final report before the Crl. Appeal No.1886 of 2007 -3- Chief Judicial Magistrate's Court, Kalpetta. 4. The learned Chief Judicial Magistrate after complying with all the legal formalities committed the case to the Sessions Division, Kalpetta where the case was taken on file assigning the number as S.C.353/06. The case was made over to the Additional Sessions Judge (Adhoc)-II, Kalpetta for trial and disposal. On production of the appellant before that court, he engaged his own lawyer to defend the case on his behalf. Thereafter, preliminary arguments were heard; charge was framed against the appellant for offence under Sections 376 and 506(1) IPC; was read over and explained to him and he was questioned. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. Crl. Appeal No.1886 of 2007 -4- 5. Prosecution examined PWs.1 to 12 and got marked Exts.P1 to P8. On the prosecution closing their evidence the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circum- stances appearing in evidence against him and maintained that he is innocent. According to him, it is true that PW1 and her mother are residing with him and that he was marrying the mother of PW1 on the death of her first husband. According to him, there was dispute with respect to right over the property that stood in the names of PW1 and her mother between himself and Raju/the elder brother of PW1; that there were altercations and exchange of blows between himself and the said Raju on one Sunday; that thereafter, he went to the shop to purchase provision and on return he Crl. Appeal No.1886 of 2007 -5- found that PW1 was not there and that she had been taken to the house of George by Raju and his wife Sindhu/PW9; that he saw the child only after a week thereafter, that himself and his wife had gone in search of the child and he came to know that the child had been taken to Meppadi town by PW9 and her husband Raju and that he was being apprehended by the police while he was coming over to the town along with his wife (PW8). However, he did not adduce any evidence in defence. 6. The court below considered the case in the light of the evidence adduced as aforesaid found the appellant guilty of the offence punishable under Sections 376 and 506(1) IPC; convicted him thereunder; heard him on the question of sentence and sentenced him as already stated. Hence, this appeal by the Crl. Appeal No.1886 of 2007 -6- aggrieved appellant. 7. In this appeal preferred from jail, Advocate Sri.C.T.Jestin was appointed as counsel on State Brief as the appellant had not engaged a lawyer of his choice to argue the appeal on his behalf. 8. It is vehemently contended before me by the learned counsel appointed on State Brief Sri.C.T.Jestin that the case is one foisted against the appellant by PW9/Sindhu and her husband Raju as the appellant had several disputes between the said Raju and there were quarrels also between himself and Raju and his wife PW9/Sindhu and that this case is foisted by the said Raju, PW9/Sindhu and one George who is their neighbour making use of PW1 as a tool in their hands; and that a proper analysis of the evidence in the case Crl. Appeal No.1886 of 2007 -7- would show that no occurrence has taken place as alleged. He has taken me through the entire evidence in the case to establish the contention advanced by him as above. 9. Ext.P1 is the F.I.statement given by PW1/the alleged victim of rape. According to her, she was studying in the third standard and was residing with her mother and her step father/the appellant. Her case as evidenced by the F.I.statement is that on last Sunday namely on 23/04/06 at noon at about 1.00 p.m., her step father/the appellant forcibly took her into the house closing the door of the house keeping her mother outside the house and then he committed rape on her laying her on a mat and removing her skirt and jetty and when she began raising alarm she was threatened by the appellant telling her that she would be Crl. Appeal No.1886 of 2007 -8- done away with and closing her mouth with his hand. According to her, after the occurrence she was having bodily pain and acute pain while urinating. It is also her case that the appellant intimidated her mother saying that she would be done away with if any complaint is given and it is therefore, that the matter was not disclosed to anyone. She further stated that for the last about one year she was being harassed by the appellant and on 26/04/06 he again attempted to catch hold of her and therefore, she took refuge in the house of her elder brother/Raju and told the matter to PW9/the wife of Raju and then the appellant followed her and came over to that house and threatened PW9 and that she has come over to the Police Station to give the statement along with PW9 the wife of her elder Crl. Appeal No.1886 of 2007 -9- brother. She has given evidence before court as PW1 and her testimony, on the whole, does not tally with nor is it consistent with the case stated in Ext.P1. According to her, on the date of occurrence, her mother (PW8) was being sent by the appellant to Puthumala by about 11.00 a.m. with firewood; that after her mother went to Puthumala herself and the appellant were alone; that then the appellant removed her skirt and jetty and he penetrated his urinary organ into her urinary organ and did something; and that was within the house and he did so lying on her body and that she felt pain all over the body and blood oozed out from her urinary organ and she wiped off that blood using the dress worn by her and thereafter, she removed that dress and the appellant burned that dress. According to PW1, Crl. Appeal No.1886 of 2007 -10- she told of the occurrence to her mother as also to Sindhu/the wife of her elder brother; and herself and Sindhu were going to the Meppadi Police Station and giving Ext.P1 statement and that was two days after the occurrence. She stated further that she disclosed of the occurrence to her mother on the same day and the appellant threatened her mother that he will beat her, if any complaint is given. In cross examination it has been brought out that her mother had gone for selling firewood on the date of the occurrence. In cross examination she has stated that the appellant removed only her jetty and all other dress worn by her was on her body at the time of the occurrence. According to her, the said jetty had been washed by her mother in the river and that was Crl. Appeal No.1886 of 2007 -11- again used by her. It is also stated that occasionally the appellant picks up quarrel and abuses her elder brother and his wife Sindhu. In cross examination, it has further been brought out that in the night on the date of occurrence herself and Sindhu (PW9) had gone to the house of one George where George is residing with his wife and children to tell him about the occurrence and then he advised to give complaint. It is also stated by her that she was disclosing of the occurrence to her mother at 6.00 p.m when alone she returned and that when herself and PW9 went to the house of George, the appellant was in their house. In re-examination again she has stated that the appellant had removed both, the jetty worn by her as also the skirt and also that the jetty was washed in the water from the Crl. Appeal No.1886 of 2007 -12- water tap when water became available in the tap. It is also stated that the jetty and the skirt were burnt by the appellant only after a few days of the occurrence saying that she need not wear it again. These statements of the victim are not consistent with the statement given by her to the police in Ext.P1. Obviously, there is drastic difference and inconsistency when it is said that she was raped within the house after keeping her mother outside the house closing the door of the house and to say that her mother was sent to Puthumala with firewood for sale at about 11.00 a.m and thereafter, her mother returned only by 6.00 p.m and it was in between that time that she was raped. It is also beyond comprehension as to why PW1 should say that the appellant committed rape on her after Crl. Appeal No.1886 of 2007 -13- removing both her skirt and jetty in chief examination and to say in cross examination that she was wearing all the rest of her dress except the jetty which alone was removed by the appellant. Her evidence however, further shows that there were quarrels between the appellant on the one side and her elder brother and his wife Sindhu on the other. Further, if at all late in the evening on the date of the occurrence PW1 and PW9 had gone to the house of George and told him of the occurrence and he advised them to give complaint it does not stand to reason why the complaint was further delayed by three days as the complaint was given only on 27/04/06 when the occurrence is stated to have taken place on 23/04/06. Crl. Appeal No.1886 of 2007 -14- 10. PW8 is the mother of PW1 and the wife of the appellant. According to her, the appellant sent her with firewood to the shop and it was thereafter, that he committed rape on PW1 and PW1 told her of the occurrence when she returned whether it be at 1.00 p.m as she stated or at 6.00 p.m as stated by PW1. 11. According to PW8 also, there was blood on the dress worn by PW1 and that had been burnt by the appellant after a week. According to her, complaint was lodged before the police only after a week as they were afraid of the appellant. In cross examination PW8 also has stated that there was incident of the appellant closing the door of the house keeping her outside and that was for catching hold of PW1 and on the same day she told about that to her daughter-in-law Sindhu (PW9). She Crl. Appeal No.1886 of 2007 -15- also stated that she sent PW1 along with Sindhu to the house of Loosi George on the same day and that was the day on which blood was found on the skirt of PW1 and PW1 had been instructed to tell the details to PW9. She has also stated that when she returned to house, appellant was there in the house and he has seen her going to the house of PW9 and she went over to the house of PW9 and told her about the occurrence. She has also stated that her first husband was Chathan and on his death the residential house and the land on which it is put up has devolved on herself and her daughter and there is cultivation of pepper and coffee in their residential garden and the yield thereof is taken by them as also her elder son Raju. In re-examination it has been brought out that the occurrence of the Crl. Appeal No.1886 of 2007 -16- appellant closing the door of the house keeping her outside was one month prior and that she did not tell it to anybody being afraid of the appellant. 12. PW9 is the wife of the elder brother of PW1 and is the daughter-in-law of PW8 and the appellant. According to her, when PW1 disclosed of the occurrence to her, she got down PW1 to her house and the appellant thereupon came over to her house and threatened to assault her also, in case PW1 is not sent with him. PW9 has also stated that the next day complaint was lodged before the police. She has further stated that it was on 23/04/06 that PW1 came over to her house at noon complaining that the appellant tried to catch hold of her by force. However, the fact remains that the complaint was lodged on Crl. Appeal No.1886 of 2007 -17- 27/04/06. She has stated further that before lodging complaint to the police herself and PW1 went over the house of Loosy George and Loosy wrote a complaint and gave it to her and the next day with the said complaint she took PW1 to the police station but the said complaint however, was not given to the police as the police were recording the statement of PW1. Thus, on the evidence of PWs.1, 8 and 9, it is evident that before going to the police station to lodge complaint PW1 accompanied by PW9 had gone to the adjacent house of George and his wife Loosy George, and disclosed to Loosy George of the occurrence. But neither the said George nor the said Loosy George is questioned by the investigating officer nor are they examined as witnesses. Thus, the evidence as regards the occurrence comes only Crl. Appeal No.1886 of 2007 -18- from PWs.1, 8 and 9 who are respectively the victim who is the daughter of the appellant; wife of the appellant and the daughter-in-law of the appellant. 13. The evidence of PW11/the investigating officer shows that the place of occurrence is within a colony where there are a lot of houses. If at all it was a colony it is very likely that the occurrence would have come to the knowledge of the inhabitants in all the houses there, considering the natural human conduct of people residing in such colonies. 14. PW4 the Doctor who has subjected PW1 to medical examination has deposed that on examination of PW1 it was found that the hymen was torn and that it could be due to sexual penetration but that final opinion was deferred pending chemical examination of Crl. Appeal No.1886 of 2007 -19- vaginal swab and vaginal smear. In cross examination, she has admitted that the age of the rupture of the vagina was not noted by her and that it could have been recent or earlier. She has further stated that in girls of twelve years vaginal orifice is very small and inflammation would have been there in such cases though it may subside after two or three days. She has also stated that she did not see any bruise on vulva which is the most exterior portion of vagina and on private parts of the victim. She has admitted also that tearing of hymen could be caused by running, swimming or by doing any hard work and further that if a girl of twelve or fourteen years bleeds after sexual assault, it could be due to injury to the vagina if not due to menstruation. There is no case for the prosecution witnesses that Crl. Appeal No.1886 of 2007 -20- menstruation had started in PW1 at the time of the occurrence. The Doctor has further stated that she has not observed any clotting of blood in the vagina. As against column No.25 in Ext.P4 report of examination of PW1/the victim, PW4/the Doctor has stated that the vagina admits only tip of finger and in her testimony she has further deposed that at the age of twelve or fourteen years the vagina will admit only tip of finger. In this context, it is apposite to remember that the testimony of PW1/the victim is of a completed sexual intercourse having been made by the appellant on her and not that she was let large half way by any interruption whatsoever from any corner. If that be so, presence of semen in normal quantity would certainly have been there on the dress worn by her and on her Crl. Appeal No.1886 of 2007 -21- thighs of which she had nothing at all to say whereas she spoke of presence of blood. This also casts doubt on the prosecution case as to whether PW1 had been raped by the appellant as alleged. Ext.P4 medical report in relation to PW1 shows further that PW1 was not menstruating and that on the date of occurrence on 23/04/06 while she was raped she escaped by kicking(________________________) This is not the case of PWs.1, 8 or 9 and nobody has got any such case and it appears for the first time only from Ext.P4 Medical Certificate issued by PW4/the Doctor on 27/04/06 after three days of the occurrence. PW4 has however, not rendered her final opinion as she has not received result of chemical examination of vaginal swab and smear. Crl. Appeal No.1886 of 2007 -22- 15. PW12/the investigating officer has also stated that vaginal swab and smear was forwarded for chemical examination but according to him no report was received. It is the duty of the investigating officer to get down the report of chemical analysis of vaginal swab and smear if at all it had been entrusted for chemical examination. There is absolutely no proof in that matter. It is also his evidence that as per Ext.P6 certificate the ownership of the house is with the appellant. It is then surprising as to why PW8/the wife of the appellant who is the mother of the victim should give evidence that after the death of her first husband the building and the property wherein the building stands belongs to her and her minor daughter PW1. It has also come out in evidence of Crl. Appeal No.1886 of 2007 -23- PWs.1, 8 and 9 that there was dispute in relation to the said property between PW9 and her husband with the appellant. If there is such a dispute, obviously, it could be to enforce the right as claimed by PW8 as otherwise the husband of PW9 who is the son of PW8 in her first marriage cannot have any right at all over the building that belongs to the appellant. Ext.P6 certificate is proved also by PW6 and that binds the prosecution. The above aspects discussed in detail is sufficient to cast a spell of doubt on the prosecution case that PW1 was being set up to foist a case against the appellant by PWs.8 and 9 who are respectively the wife and daughter-in-law of the appellant among whom at least PW9 and her husband is evidenced to have animosity with the appellant and there were Crl. Appeal No.1886 of 2007 -24- quarrels also between them as evidenced by the testimony of PW1 herself. 16. Considering all the above circumstances, I am of the view that the appellant should have at least been granted benefit of doubt and acquitted, not being carried away by the gravity of the offence alleged in that he is one who has raped the minor daughter of his wife in her first marriage. The conviction of the appellant by the court below, in the circumstances, deserves to be set aside allowing this Criminal Appeal. 17. In the result, allowing this appeal, I set aside the conviction and sentence passed by the court below against the appellant. Communicate a copy of this judgment to the appellant through the Superintendent of Crl. Appeal No.1886 of 2007 -25- Central Prison, Kannur. The appellant who is undergoing the sentence shall be released forthwith from the prison if his detention is not required to be had in connection with any other case. 18. Forward gist of this judgment to the Superintendent of Central Prison, Kannur so as to enable release of the appellant forthwith if his detention is not required to be had in connection with any other case. K.P.BALACHANDRAN, JUDGE kns/-