IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 CRL.A.No. 850 of 2003() -------------------------------- SC.158/2000 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY .................... APPELLANT/ACCUSED: ---------------------------------- MEKKARAKANDY SATHYAN, S/O.ACHUTHAN, MEKKARAKANDY HOUSE, KOLARIAMSOM DESOM, THALASSERY TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT: -------------------------------------------- THE SUB INSPECTOR OF POLICE, MALUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09 /2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl.A.No.850 of 2003 ----------------------------------------- Dated this the 23rd day of September, 2011 JUDGMENT Aggrieved by the conviction and sentence imposed against the appellant u/s.452 and Section 376 read with Section 511 of IPC, this appeal is filed. 2. The prosecution case is that the accused one day, during Christmas vacation in 1998 at about 10.a.m after having committed house trespass namely, the house of one Narayanan comprised with No.1/560 in Sivapuram Amsom, committed rape on one Rejina, daughter of the above said Narayanan- a girl aged 11 years. On the basis of the above allegation Crime No.33/1999 was registered in the Malur Police Station for the offence punishable u/s.452 and 376 of IPC. After the investigation, Police preferred the report before the Judicial First Class Magistrate, Kuthuparambu, wherein instituted CP No.83/1999. At the time of filing the charge, according to the Police, the accused has committed the offence punishable u/s.452, 376 read with Section 511 of IPC. But according to the committal court, the materials produced by the Police would show that the accused has committed rape on the girl and Crl.A.No.850 of 2003 2 therefore, the learned Magistrate had taken the case on file for the offence u/Ss.452 and 376 of IPC and thus, by order dated 3.3.2000 in CP No.83/1999, the learned Magistrate of the Judicial First Class Magistrate court, Kuthuparambu, committed the case to the court of Sessions, Thalassery wherein the case is received as SC No.158/2000. Subsequently, the case was transferred to the trial court for disposal. 3. Thus, on appearance of the accused, after hearing the prosecution as well as the defence, the court has framed a formal charge against the accused for the offence punishable u/s.452 and 376 of IPC and when the charge was read over and explained to the accused, he denied the same and pleaded not guilty. Thereafter the prosecution examined PWs.1 to 15 and marked Ext.P1 to P12. MO1 and 2 were also identified and marked. After the prosecution evidence is over, the incriminating circumstances and evidence, which emerged during the prosecution evidence, when put to the accused u/s.313 of Cr.P.C, he denied the same. From the side of the defence DW1 was examined. Finally, the trial court has held that, the prosecution has clearly succeeded to prove that the accused has committed the offence punishable u/ss. 452 and 376 read with Section 511 of IPC and accordingly, he is convicted for Crl.A.No.850 of 2003 3 the said offences. On such conviction, the learned Sessions Judge sentenced the appellant/accused to undergo imprisonment for 5 years u/s.376 of Section 511 of IPC. He is also sentenced to pay fine of Rs.10,000/- and in default he is directed to undergo simple imprisonment for one year. Similarly, the appellant is also sentenced to undergo simple imprisonment for 3 years and also to pay fine of Rs.5,000/- and default he is directed to undergo simple imprisonment for 3 months for the offence u/s.452 of IPC. It is also ordered that if the fine amount is realised, Rs.10,000/- shall be given to the victim by way of compensation. It is also ordered to run the substantial sentences concurrently. It is the above finding, conviction and sentence are challenged in this appeal. 4. In order to substantiate the allegation against the accused/appellant, as I indicated earlier, PWs.1 to 15 were examined and Exts.P1 to P12 were marked. Among the prosecution witnesses, PW1 the victim is the main witness depended by the prosecution to prove its case. When, PW1 was examined she had deposed in terms of the prosecution allegation and during her examination, MO1 maxi and MO2 jetty were identified and marked. Ext.P1, FI Statement was also got marked by the prosecution through PW1. PW2 is the mother and Crl.A.No.850 of 2003 4 PW3 is the sister of victim, PW1. Both of them have no direct knowledge about the incident other than what gathered from PW1. PW4 an independent witness turned hostile and he had deposed that he had only hear say knowledge. PW5 is an attester to P2 scene mahazar. PW6 is another attester to Ext.P3 seizure mahazar with respect to the seizure of MO1 and MO2. PW7 is the Head master through whom the prosecution got marked Ext.P4 admission register by which it is proved the date of birth of PW1 as 10.12.1987 and she was studying in the 5th standard at the relevant time. PW8 is the then Panchayath Secretary through whom Ext.P5 residential certificate was proved. PW9 is the Village Assistant, who prepared Ext.P6 plan. PW10 is the doctor, who issued Ext.P7 medical certificate, who was, at that time working as the Asst. Surgeon, Government Hospital, Thalassery. When PW10 was examined the contents of Ext.P7 was proved through him. Similarly, PW11 is another doctor, who was, working as the Asst. Surgeon, Govt. Hospital, Thalassery, at relevant time, who after examining PW1, issued Ext.P8 certificate. PW12 was the then Civil Surgeon, Govt. Hospital, Kuthuparambu, who after examining the accused, issued Ext.P9 potency certificate. PW13 was the then Circle Inspector of Police, Peravur, Police Station, who undertook the Crl.A.No.850 of 2003 5 investigation. According to him, he had prepared the scene mahazar and after questioning witnesses recorded their statements and also seized MO1 and MO2. He had also deposed that on 3.8.1999, he had arrested the accused and subjected him for potency test and he had made request before the court for sending the material objects for chemical examination and Ext.P10 is that request. He had filed a report to incorporate Section 482 of IPC. PW14 is the then Sub Inspector of Police, Malur Police Station, who had recorded Ext.P1 FI Statement and thereafter registered Ext.P1(a) FIR in Crime No.33/1999. He had deposed that he had sent PW1 for medical examination with requisition for the same. PW15 was also worked as Circle Inspector of Police, Peravur Police Station and conducted part of the investigation and according to him on getting the opinion of the Public Prosecutor, he had incorporated Section 511 of IPC and a report was filed to that effect. The report which filed by PW15 to add Section 511 of IPC is marked as Ext.P12. These are the evidence and materials relied on by the court below to convict the appellant, which conviction and sentence are now challenged in the appeal. 5. I have heard Sri. Sunny Mathew, learned counsel appearing for the appellant and Sri.K.S.Sivakumar, the learned Crl.A.No.850 of 2003 6 Public Prosecutor. 6. The learned counsel for the appellant vehemently submitted that the entire prosecution case is a false one created at the instance of PW2, the mother of PW1 since she was in inimical terms with his sister whose daughter was married by the accused. In order to substantiate the above argument, the learned counsel took me through the evidence of PW1 and the evidence of the medical expert and further submitted that even though, according to PW1, she was subjected to sexual inter course and she had claimed forceful sexual harassment at the instance of the accused, who is a able bodied man, the medical expert ruled out any possibility of any forceful sexual inter course and harassment. According to the learned counsel if the version of PW1 regarding the forceful sexual inter course is true, there would have been some symptoms and signs which would not have disappeared by the passage of time or delay of four months and therefore, the entire prosecution case is false one. After inviting my attention to the deposition of PW2 and 3, it is the submission of the learned counsel that the animosity of PW2 towards the accused and her evidence are manifest and the learned judge of the trial court miserably failed to consider the above aspect and came into a wrong conclusion that the Crl.A.No.850 of 2003 7 prosecution has succeeded in establishing the case, beyond reasonable doubt. Thus, according to the learned counsel, in the absence of any positive and believable evidence to substantiate the prosecution allegation that the accused has attempted to commit rape on PW1, the conviction and sentence imposed against the appellant is liable to be set aside. 7. On the other hand, Mr.K.S.Sivakumar, learned Public Prosecutor resisting the contentions advanced by the learned counsel for the appellant, it is strenuously submitted that the deposition of PW1, the victim clearly established the prosecution allegation against the appellant/accused and the absence of any signs of sexual harassment is only for the reason that the medical experts have got the chance to examine the victim only after 4 months from the date of the alleged incident and therefore, even though, the medical evidence is silent about the allegation of forceful sexual harassment, the trial court is fully justified in convicting the accused/appellant on the basis of the evidence of PW1. According to the learned Public Prosecutor, though PW1 was subjected to lengthy cross examination, her evidence with respect to the incident is in tact and satisfactory. It is also pointed out by the learned Public Prosecutor that the defence case is that the case was foisted due to personal Crl.A.No.850 of 2003 8 animosity of the father of PW1 against his sister, nothing brought on record to show that either PW1 or her father had any animosity against the accused and therefore, the defence plea that the case was registered, due to animosity cannot be accepted and liable to be rejected. Thus, according to the learned Public Prosecutor, no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have carefully perused the judgment of the trial court and scrutinized the evidence and materials on record. 9. The crux of the prosecution allegation is that the accused after having trespassed into the house of PW2, where herself and her family, including PW1 were residing, committed rape on PW1. After analysis of the evidence and materials on record particularly in the light of the medical evidence on record which consists of the oral evidence of PW10, 11 and 12 and the documentary evidence such as P7, P8 and P9 medical certificates, the trial court has come into the conclusion that the offence u/s.376 of IPC is not established and the prosecution has succeeded in proving the offence u/s.452 and Section 376 read with Section 511 of IPC against the accused. In the light of the above finding and materials and evidence on record and the rival Crl.A.No.850 of 2003 9 pleadings, the question to be considered is whether the trial court is justified in its finding that the accused has committed the offence u/s.452 of IPC and Section 376 read with Section 511 of IPC. 10. I have already referred to the evidence of the prosecution and the materials produced by PW1, to substantiate its case. When PW1 was examined, she had deposed fully in terms of the prosecution allegation and Ext.P1, FI Statement was proved through PW1. On a scrutiny of the deposition of PW1 especially in comparison with Ext.P1 FI Statement, it can be seen that there is no variation, from the version given by PW1 in Ext.P1 FI Statement, when she was examined in the court as PW1. PW1 has categorically stated that on the date of the incident that one day during the year 1998, when the accused came to their house, her parents had gone out for work and at that time PW1 and her sister only were in the house and at the instance of the accused her sister, PW3 was persuasively sent for watering vegetable cultivation. She had also deposed that the accused entered into the house and laid on the floor and she was also made to lay along with him and thereafter the accused laid on her. She had also deposed that MO1 Maxi was raised and MO2 jetti was removed by the accused and thereafter, the Crl.A.No.850 of 2003 10 accused penetrated his penis into her vagina and made some actions, as a result of which lastly some gum like thing appeared and as directed by the accused she had rubbed off the same. PW1 has also deposed that after the incident he was given Rs.10 and told her not to disclose the incident to anyone and he was compelled to swear in the name of Parassinikadavu Muthappan and Mundayanparambu Bhagavathi. Thus, according to the victim because of the threat of the accused, she did not disclose the matter to anybody and the accused left the place. She had also deposed that the same incident was repeated and finally she disclosed the entire incident to her mother and thereafter her parents had taken her to the Police Station where she gave Ext.P1 Statement. She had also deposed that as directed by the Police, she herself was subjected to medical examination. Though PW1 was cross examined extensively, nothing brought on record to disbelieve her version regarding the incident though the defence had succeeded in proving out some fact to show that there was some animosity of the father of PW1 against his sister. But as far as the prosecution allegation is concerned her evidence has supported the same and remained it intact. It is true, as argued by the learned counsel for the appellant, when the doctors namely, PW10 and PW11 were examined, PW1, there Crl.A.No.850 of 2003 11 was no sign of rape or forceful sexual intercourse as such no evidence for rape. But it is relevant to note that even though there was delay of 4 months in launching Ext.P1 FI Statement and getting examine PW1, by the doctors, the contemporary documents would suggest that in terms of the prosecution allegation, the complaint has been launched before the Police authorities and as directed by them the victim was subjected to medical examination immediately thereafter. As rightly pointed out by the learned judge of the trial court, at the relevant time, PW1 was a small girl, who was only at the age about 10 or 11 years and she may not be aware whether the penis entered into her vagina or not. Thus, it can be seen that in the absence of any positive evidence, for forceful sexual intercourse other than the testimony of PW1 the trial court has not entered into a finding that the accused had committed the offence of rape against PW1. Still then, the evidence of PW1, regarding the incident that remained intact and therefore, the trial court is fully justified in its finding that, there was attempt from the part of the appellant to commit rape on PW1. So according to me, though, the medical evidence does not suggest or support the allegation of rape or intercourse on PW1, the evidence of PW1 shows that she was subjected to sexual harassment and attempted to commit on Crl.A.No.850 of 2003 12 her and therefore, it can be safely concluded that the accused has attempted to commit rape on PW1. Thus, the evidence available on record, unerringly proved that the accused had attempted to commit rape on PW1, after having trespassed into the house of PW1. 11. In the light of the above discussion and the materials referred to above, I am of the view that the trial court is fully justified in its finding and convicting of the appellant for the offence u/s.452 of IPC and for the offence u/s.376 r/w Section 511 of IPC. 12. The counsel for the appellant submitted that even according to the prosecution, the incident had taken place during the year 1998 and thereafter 13 years are over and in the meanwhile PW1 has got married and is leading family life and the accused also leading a peaceful married life and therefore, a lenient view may be taken in the matter of sentence. I have carefully considered the above submission of the learned counsel. 13. Even according to the prosecution averments, at the time of the alleged incident of PW1, the victim was only at the age of 10 or 11 years and now 13 years are over and probably she will be now at the age of 23 or 24. Counsel for the appellant Crl.A.No.850 of 2003 13 submitted that now both the appellant as well as the victim, entered into their marital life by establishing their own separate families. I have already referred to the medical evidence involved in this case, which would show that there was no signs of forceful sexual intercourse and any forceful sexual harassment. The prosecution has also no case that the appellant had involved in any other similar offence. Under the above mitigating circumstances, according to me, the sentence imposed against the appellant requires re-consideration and at the same time the interest of the victim has also to be protected. At present, the appellant is sentenced to undergo imprisonment for 5 years u/s.376 r/w Section 511 of IPC and to pay a fine of Rs.10,000/- thereunder and also to undergo simple imprisonment for 3 years and to pay fine of Rs.5,000/- u/s.452 of IPC. The trial court has already granted the benefit u/s.428 of Cr.P.C and also ordered to run the substantive sentence under each count concurrently. Having regard to the facts and circumstances involved in this case, I am of the view that the sentence imposed against the accused/appellant u/s.376 of Section 511 of IPC can be modified and reduced into 3 months imprisonment and the fine amount can be enhanced and sentenced to pay a fine of Rs.30,000/-. Similarly, for the offence u/s.452 of IPC, in Crl.A.No.850 of 2003 14 modification of the sentence ordered by the trial court the appellant can be sentenced to undergo simple imprisonment for one month and to confine the fine amount as ordered by the trial court. In the result, the conviction of the appellant for the offence under Section 376 of Section 511 of IPC and under Section 252 of IPC as recorded by the trial court are confirmed and in modification of the sentence ordered by the trial court, the appellant/accused is sentenced to undergo simple imprisonment for 3 months u/s.376 r/w Section 511 of IPC and he is also sentenced to pay a fine of Rs.30,000/-, in default he is directed to undergo simple imprisonment for a period of 2 ½ years and the appellant is sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.5,000/- in default he is directed to undergo simple imprisonment for 1 year for the offence u/s.452 of IPC. The substantial sentence is ordered to run concurrently and petitioner/appellant is entitled to get set off u/s.428 of Cr.P.C. On realization of the fine amount the entire amount shall be given to the victim by way of compensation. Accordingly, the appellant is directed that the fine amount shall be deposited within 45 days from today, and if there is any failure on the part of the appellant in depositing the fine amount within the above Crl.A.No.850 of 2003 15 stipulated time, the trial court is free to take coercive steps to procure the presence of the appellant and for realization of the fine amount. Crl.Appeal is dismissed, subject to the above modification with respect to the sentence. V.K.MOHANAN,JUDGE pm