IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.Rev.Pet.No. 680 of 1998() ----------------------------- CRA.202/1993 of SESSIONS COURT, KOTTAYAM CC.152/1991 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER: ------------------ RAJU S/O.RAJAPPAN, PUTHENVEETTIL, MUKKALIMUZHAYANAL, AGED 58 COLONIYIL, ANI KADU KARA, ANIKADU VILLAGE. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: ------------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR SRI.SASIKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.680 of 1998 =================== Dated: 22.07.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C., the petitioner, who is the accused in C.C. No.152 of 1991 on the file of the J.F.C.M-1,Changanassery for an offence punishable under Section 377 challenges the conviction entered and the sentence passed against him by the courts below for the said offence. 2. The case of the prosecution can be summarised as follows: On 22.12.90 at 2 p.m., accused caused PW2 the nine year old daughter of PW1 to lie on the western room of his house bearing No.454 in Ward No.III of Pallikkathodu panchayath after removing her clothes and under clothes and lay on her and inserted his male organ in between her thighs and thereby committed carnal intercourse on her. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offence, the prosecution was permitted to adduce evidence in Crl.R.P.No.680/1998 -:2:- support of its case. The prosecution altogether examined 9 witnesses as P.Ws 1 to 9 and got marked 11 documents as Exts. P1 to P11 and 4 material objects as Mos 1 to 4. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 15.9.93 found the revision petitioner guilty of the offences and sentenced him to undergo rigorous imprisonment for one year. On appeal preferred by the revision petitioner as Crl.Appeal No.202/93 before the Sessions Court, Kottayam, the learned Additional Sessions Judge as per judgment dated 5.08.98 confirmed the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. PW1 is the father of the alleged victim. He turned completely hostile to the prosecution and even denied his case diary statements to the effect that the accused had inserted his male organ between the thighs of PW1's daughter and had Crl.R.P.No.680/1998 -:3:- carnal intercourse resulting in ejaculation of semen on her thighs. PW2 is the victim and was aged 9 years on the date of occurrence. According to her, she was playing with PW7, who is a relative of hers. They were sitting on the varandha of the house of the accused. It was 2 p.m.at that time. While so, the accused asked PW7 to buy some beedies and match box and also some sweets. The accused gave Rs.2/- to PW7. After sending PW7 away to buy beedies and sweets, the accused took her into his house and asked her to lie on a mat. After removing her under clothes he inserted his male organ in between her thighs and lay on her. After some time remarking that PW7 was back, the accused left her alone. At that time she saw PW7 peeping through the window. She narrated to her step mother PW4 (Radha) what had happened to her, PW4 in turn conveyed the same to PW1. She also claims to have narrated the occurrence to her father who had then gone to the Police Station and lodged a complaint. This in short was her chief examination. 7. During cross-examination, PW2, however, confessed that whatever she deposed during her chief examination was as narrated to her by her father and her father and the accused were not on good terms at the time of occurrence. PW7 a boy Crl.R.P.No.680/1998 -:4:- with whom the PW1 was allegedly playing has only stated that when he looked through the window, he saw the accused and PW2 lying embraced. He did not mention about the acts which PW2 had mentioned in her chief examination. PW3- Syamala the shop owner to whose shop the accused had allegedly sent PW7 for buying beedies and sweets also turned hostile to the prosecution and deposed before court that herself and PW1 are neighbours. She denied the statement of PW7 that PW7 came to her shop to buy some beedies and sweets. PW6, Radha is the step mother of PW2. She is the 2nd wife of PW1. She also did not support the prosecution case to any extent. PW5 is the mother of the accused and she was examined to prove MO4-lungi of the accused and MO3 mat. MO3 mat and MO4 lungi were produced by her before the Police. According to her there was some dispute regarding wages between PW1 and the accused and PW5 was summoned in connection with the above dispute and PW5 was caught hold of and given a push. The lungi as well as mat were produced by her as requested by the Police, who wanted the same to be produced. PW6 is the doctor who examined PW2 after 9 days and had issued Ext.P6 certificate as per which the allegation was that a person forcibly inserted his Crl.R.P.No.680/1998 -:5:- male organ between the thighs of the patient at 2 p.m. on 22.12.90. PW6 examined her at 4 p.m. on 1.1.91. His findings were that the vulva of the girl was normal, Hymen intact and there was no evidence of causing injuries to the external genitalia. There was no evidence of any injury over the thighs of PW2. PW8 is the doctor, who after examining the accused, issued Ext.P7 Potency certificate. 8. The accused in this case has been convicted on the sole testimony of PW2, the alleged victim. There is nothing on record to show that the learned Magistrate who tried the accused had conducted any voire dire examination of PW2 for ascertaining her testimonial competence. As mentioned earlier, PW2 has confessed during her cross-examination that what she deposed in her chief examination was as narrated to her by her father. Her own father namely PW1 did not support the prosecution at any extent. When PW2 has no case that the alleged act was attended with ejaculation of semen on her thighs, PW1 when questioned by the Police had gone to the extent of saying that there was an emission of semen. No doubt, PW1 denied having given such a statement to the Police. When PW2 herself has conceded that her testimony in chief examination was as Crl.R.P.No.680/1998 -:6:- instructed by her father, the courts below should not have given any credence to her statement particularly when it was after 9 days of the alleged occurrence that PW2 was taken to the doctor (PW6) and even at that time the name or identity of the accused was conspicuously not revealed. All that she told was that one person' did the act. The dress allegedly worn by the accused were not sent to forensic science laboratory for confirmatory tests. Under these circumstances, the conviction recorded by the courts below overlooking the above vital aspects of the matter cannot be supported at all. The revision petitioner is accordingly acquitted of the offence punishable under Section 377 IPC and shall be set at liberty. This Crl.R.P. is allowed as above. Dated this the 22nd day of July, 2008 V.Ramkumar, Judge. sj Crl.R.P.No.680/1998 -:7:-