IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 Crl.Rev.Pet.No. 999 of 2000() ---------------------------------------- CRL.APPL.111/1998 of SESSIONS COURT, KOZHIKODE SC.69/1997 of III ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- HANEEFA, S/O.KUNHIMOIDEENKUTTY, CHEKKENINTEPURATHIL HOUSE, PARAPPANANGADI, TIRUR TALUK. BY ADV. MR.K.A.SALIL NARAYANAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- STATE OF KERALA, REPRESEENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (S.C.NO.69/97 OF THE COURT OF SESSIONS, KOZHIKODE DIVISION). BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 999 of 2000() ORDER ON CRL. MP.NO.5363/2000 IN CRL.RP.NO.999/2000. DISMISSED 31/03/2009. SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.999 OF 2000 () ----------------------------------- Dated this the 31st day of March, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 376 of the Indian Penal Code. He was prosecuted for the offences punishable under Sections 376, 307 and 457 of IPC on a charge laid by the S.I. of police, Beypore police station. The accused pleaded not guilty to the offences. The learned Assistant Sessions Judge, after trial, found him guilty of the offence punishable under Section 376 IPC and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- with default term of simple imprisonment for one year. He was found not guilty of the offences charged under Sections 307 and 457 IPC and acquitted of those offences. In appeal, the Sessions Judge confirmed the conviction under CRL.R.P.999/00 2 Section 376 of IPC and upheld the sentence without any modification. Aggrieved by the conviction and sentence, the accused has preferred this revision. 2. The case of the prosecution in brief is thus: PW1, the victim of rape and the prosecutrix in the case, at the time of incident was aged 14 years. She belongs to fishermen community and has studied only upto 4th standard. Sister of the accused resided in her neighbourhood. About three months prior to the date of incident, it is the case of the prosecutrix, while she was outside the house, during night, to attend the call of nature, the accused caught hold of her and raped her overcoming her resistance with brute force. After accomplishing his lust, he persuaded her not to disclose the incident promising to marry her. He continued to seduce her thereafter whenever he got opportunity to get into her house while other inmates were away making her believe that his relatives would agree for their marriage if only she got impregnated through him. She became pregnant, and the matter was informed to the relatives of the accused, who CRL.R.P.999/00 3 turned down the proposal for marriage. While so, at about midnight on 6.5.1996, removing the tiles of her house, the accused sneaked in and throttled her with the intention to commit her murder. Hearing her alarm, her brother sleeping in the veranda woke up, and caught hold of the accused while he attempted to flee. The local people gathered, but due to the intervention of the close relatives of the accused, he was released. The next morning, prosecutrix reported the matter before the police and recording her Ext.P1 statement, the crime was registered for the offences punishable under Sections 376, 307 and 457 of IPC. After investigation and filing of the final report indicting the accused for the offences under Sections 376, 307 and 457 of IPC, and on compliance of committal of proceedings, the case was made over to the Assistant Sessions Judge for trial, before whom, the accused entered appearance. He pleaded not guilty to the offences when the charges framed against him were made known. Prosecution examined PWs.1 to 18, got marked Exts.P1 to P11 and identified MO1 to prove its case. During the course of the prosecution evidence, the accused got marked a portion of the CRL.R.P.999/00 4 161 statement of a prosecution witness, contradicted in evidence, as Ext.D1. The accused, when questioned under Section 313 of Cr.P.C., denied the incriminating circumstances appearing against him in the prosecution evidence and maintained his innocence. He contended that he had been falsely implicated in the case. No defence evidence was adduced. The learned Additional Sessions Judge, after consideration of the materials produced, found the accused guilty of the offence under Section 376 of IPC and not guilty of the offences under Sections 307 and 457 IPC. He was convicted for the offence under Section 376 IPC and sentenced as indicated earlier. As already stated the Sessions Judge in appeal confirmed the conviction and also the sentence imposed. 3. I heard the learned counsel for the accused and also the learned Public Prosecutor. Conviction of the accused is challenged by the learned counsel contending that the materials produced by the prosecution would prima facie disclose that the prosecutrix PW1 had affair with several CRL.R.P.999/00 5 persons and she got impregnated by such illicit relationship with several people. There is no material in the case, according to the counsel, to incriminate the accused other than the interested version of the prosecutrix that he had continuously seduced her over a period of time and got her impregnated with a false promise that a marriage between them would be accepted by his relatives only if she was impregnated by him. The case so developed by the prosecutrix is hardly susceptible, and in the absence of corroboration, her version should not have been accepted, is the submission of the counsel. The learned counsel inviting my attention to Ext.P5, the case sheet of the prosecutrix, when she went over Koya's Hospital, Cheruvannur for termination of her pregnancy, contended that she had represented before the doctor that she was married and was aged 18 years. When such a representation had been made by her that she was married, according to the counsel, both the courts below were not justified in placing reliance on her testimony to hold that she got impregnated by the accused in the circumstance alleged by her. The learned counsel also invited my attention CRL.R.P.999/00 6 to Ext.D2, certified copy of the birth certificate of a child, which is delivered by the prosecutrix. In Ext.D2, the father of the child is shown as one Aboobacker and not the accused, which, according to the learned counsel, reinforces the plea canvassed by the accused that she had sexual intercourse with several persons and she got impregnated by someone other than the accused. The entries in these two documents, Exts.D2 and P5, according to the learned counsel, shatter the trustworthiness and credibility of PW1, the prosecutrix, that she was a victim of rape by the accused and she got impregnated from him. Conviction entered against the accused, in view of the aforesaid circumstances, for the offence under Section 376 of IPC, according to the learned counsel, is liable to be set aside and the accused to be acquitted of the offence. 4. I am afraid the submissions made by the counsel to assail the conviction are hardly sufficient to doubt the worthiness of the testimony of the prosecutrix, PW1, which had been concurrently found reliable, credit worthy and CRL.R.P.999/00 7 acceptable to the courts below. The learned Additional Sessions Judge, who examined and recorded the evidence of the prosecutrix PW1, and, thus, had the opportunity to watch her demeanour and deportment, found her evidence reliable and convincing to reach a conclusion that the accused had subjected her, a minor girl, at the time of occurrence aged 14 years, to rape, and that he continued to seduce her over a period of time with promises of marriage making false representation that if only she got impregnated through him, then only his relatives would agree to a marriage between them. Considering the age of the girl and also her rustic background, who, admittedly, belongs to fishermen community and, that she had education only upto 4th standard, there appears to be no reason whatsoever to doubt the case presented by the prosecutrix as to the circumstances under which she was compelled to have sexual intercourse with the accused after she had been ravished in a dark night, against her will with brute force. The acquittal of the accused for the offences under Sections 307 and 457 of IPC, which were based on the allegation that one night, after she became CRL.R.P.999/00 8 pregnant, he had criminally trespassed into the house of the prosecutrix and attempted to murder her by throttling her, for which there was only the evidence of the prosecutrix, in no way affect the worthiness of her evidence as regards the commission of rape on her by the accused. The medical evidence tendered in the case through PW14, doctor, and the certificate prepared by her over the person of PW1, the prosecutrix also lend assurance that the girl was pregnant at that time of her medical examination. By the time her evidence was recorded by the court, she had already delivered a child. The circumstances canvassed by the learned counsel for the accused, based on the entries in Ext.P5 and those in Ext.D2 to exonerate the accused, to say the least, are unworthy of any value. On the reverse page of the facing sheet of Ext.P5, some entries are prescribed as “married 6/12, wants MTP now due to financial instability, and patient is very weak”. Those entries are projected by the learned counsel to unsettle the concurrent conviction passed against the accused contending that the entries were recorded on the basis of the representation by PW1, the prosecutrix. Further more, it CRL.R.P.999/00 9 should be noted that when the relatives of the accused including his sister, were informed of her impregnation through the accused, and requested to arrange their marriage, it is the evidence of PW1, the sister of the accused assuring to arrange a marriage with the accused, took her to a hospital, for medical check up, and then without her consent medical termination of her pregnancy was arranged, to which she resisted and left the hospital. Her version was found convincing and reliable to the trial Judge, and, in fact the entries in Ext.P5 would also show that she was not prepared to have termination of her pregnancy. When that be so, it is futile to contend solely on the basis of the entries made on the reverse side of the facing sheet of Ext.P5 that she had represented to the doctor that she was married and aged 18, both of which are factually incorrect. The entries relied by the counsel, appearing in Ext.P5, in all probablities might have been made by some who accompanied the girl, and, perhaps, by the sister of the accused. When the proved facts in the case demonstrate that she was hardly aged 14 years and she was unmarried, the entry made in Ext.P5, as referred to CRL.R.P.999/00 10 above, has absolutely no relevance at all. The other entry relied by the counsel is covered by Ext.D2, the birth certificate, which is stated to have been issued in respect of the child delivered by the prosecutrix. That document was produced by the accused in the appeal and was got marked as Ext.D2. The learned Additional Sessions Judge, commenting upon that document, has observed that it is not possible to hold that the mother named in Ext.D2 is the prosecutrix. It is interesting to note that even when Ext.D2 document was produced, no attempt was made by the accused for recalling the prosecutrix PW1, for further examination if at all he had a case that the entries in Ext.D2 had been made on the statement given by the prosecutrix. Ext.D2 was never put to PW1, and the belated production of the birth certificate, which is not even proved as having any connection with the prosecutrix, will no way assist the accused to escape from the punishment imposed on the conviction founded against him, which is established by cogent and convincing legal evidence. The concurrent finding entered by both the courts below that the prosecution has proved its case that the CRL.R.P.999/00 11 accused raped the prosecutrix, PW1, who, then, was below 14 years of age, and had continued to seduce her over a period of time, and thereby she got impregnated, and thus he had committed the offence punishable under Section 376 of IPC, is fully supported by legal evidence. The challenges made on the basis of the entries in Ext.P5 and D2, to assail the conviction, needless to point out, is devoid of any merit. There is no merit in the revision, and, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.999 OF 2000 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 31st March, 2009