Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 31ST DAY OF JULY 2013 9TH SRAVANA, 1935 CRL.A.No. 293 of 2009 -------------------------- AGAINST THE JUDGMENT IN SC 67/2006 of ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD DATED 22 01-2009 APPELLANT/ACCUSED: ------------------------- SAJU, S/O.LAKSHMANAN, SANTHAMPULLY, VENGODI, ELAPPULLY, PALAKKAD. BY ADVS.SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. ROY THOMAS. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J.
--------------------------------------- Crl. Appeal No.293 OF 200.--------------------------------------- Dated this the 31st day of July, 2013. JUDGMENT
An extremely fortunate and lucky accused who was prosecuted for the offence punishable under Section 376(f) of Indian Penal Code and was convicted and sentenced only for the offence under Section 511 of 376(2)(f) IPC, being disappointed with such a casual attitude displayed by the court below, has approached this Court in appeal.
2. PW1 is the victim in the case. She was studying in the 6th standard at the relevant point of time. On the date of the incident, while she was on her way back to home from school, the accused is alleged to have followed her and dragged her near to a dilapidated building and ravished. The girl, after reaching home, conveyed the information to her parents and soon Ext.P1 First Information Statement was laid. PW10 recorded Ext.P1 from the hospital where PW1 was under treatment and registered a crime as per Ext.P8 First Information Report. The girl was Crl. Appeal No.293/2009 2 examined by PW7 who issued Ext.P5 certificate.
3. Investigation was taken over by PW11. He seized the clothes said to have been worn by the victim at the relevant time as per Ext.P2 mahazar. He also seized the clothes of the accused under Ext.P3 mahazar. He arrested the accused and had him subjected to potency test and obtained necessary certificate. He recorded the statement of witnesses and his successor in office completed the investigation and laid charge before court.
4. The court before which final report was laid took cognizance of the offence and on finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court (Adhoc-I), Palakkad for trial and disposal. The latter court, on receipt of records, framed charge for the offence punishable under Section 376(f) IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 13 examined and Exts.P1 to P11 marked. M.O.1 series and M.O.2 series were also identified and marked. Crl. Appeal No.293/200”
5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent.
6. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence.
7. Relying on the available evidence, the court below found that there is want of evidence regarding penetration and it jumped to the conclusion that offence under Section 511 of 376 (2)(f) IPC has been made out. The accused was found guilty of the said offence and was therefore convicted and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- with default clause of rigorous imprisonment for six months. The said conviction and sentence are assailed in this appeal.
8. Learned counsel appearing for the appellant contended that the finding of the court below that the offence under Section 511 of 376(2)(f) IPC is attracted, is legally unsustainable. Even Crl. Appeal No.293/2009 4 accepting the entire prosecution evidence is to be true, only the offence under Section 354 IPC is made out and the finding that offence under Section 511 of 376 (2)(f) IPC is attracted has no legal basis.
9. According to the learned counsel for the appellant, the victim has stated that the act was done while she was in a standing position and that is highly improbable and that makes the version of PW1 open to serious doubt. It is further contended that if, as a matter of fact, the accused had any intention to commit rape, he could have done so because he had detained the child for a quite long time. Learned counsel went on to point out that even the offence of attempt to commit rape is not made out in the light of the fact that the necessary ingredients to attract the said offence is not available in the case.
10. For the above proposition, learned counsel for the appellant relied on the decisions in Koppula Venkat Rao vs. State of A.P. ((2004) 3 Supreme Court Cases
602) and in Amirthalingam vs. State (1995 (2) KLT S.N.51 Case No.68). Learned counsel went on to point out that some incident has Crl. Appeal No.293/2009 5 taken place but to say that there was an attempt to commit rape is unfounded. It is therefore contended that the conviction and sentence for the offence under Section 511 of 376(2)(f) IPC needs interference.
11. Learned Public Prosecutor, on the other hand, contended that it is a case where the accused should have found guilty of the offence under Section 376(f) IPC. The medical evidence is so clinching that there has been at least partial penetration which is sufficient to attract the offence under Section 376 IPC. The court went on a fleeting imagination and came to the conclusion that there was no penetration at all, which is contrary to the evidence on record. Learned Public Prosecutor pointed out that the court below has not bothered at all to read the evidence of PW7 and to look into Ext.P5 certificate issued by the doctor. Had the court taken some time to look into that document, it may not be possible to come to the conclusion that offence of rape is not made out.
12. According to the learned Public Prosecutor, the evidence of PW1, the victim is sufficient to show that the act has Crl. Appeal No.293/2009 6 been committed by the accused. There is nothing to suggest that she had any reason to falsely implicate the accused. The court below has been extremely gracious to come to the conclusion that offence under Section 511 of 376 (2)(f) IPC alone has been made out.
13. The accused is fortunate in the sense that the State has not come up in appeal. As rightly pointed out by the learned Public Prosecutor, one has left with no doubt after going through the evidence of PW7 and Ext.P5 that offence of rape is clearly made out. True, as regards the incident, we have the solitary evidence of PW1, the victim. She was tender age at the relevant time. She narrates the incident in detail. Even though she was cross examined, there is nothing brought out in her evidence which would show that she had a reason either to speak falsehood or to falsely implicate the accused. She speaks about the resistance offered by her and also that she felt pain at the relevant time. It is significant to notice that she does not add or subtract anything from what had actually transpired.
14. It needs to be noticed that the victim was examined by Crl. Appeal No.293/2009 7 the doctor soon after the incident. PW7 is the doctor who had examined the victim. Ext.P5 is the certificate issued by the doctor. Ext.P5 shows that hymen ruptured and vagina admitted one finger. PW7, the doctor who had examined the victim is of the definite opinion that there is evidence of past vaginal penetration. There is nothing brought out in evidence to show that the opinion so formed by the doctor is either unjustified or unfounded. The court below went on a fleeting imagination to find that there is no possibility of penetration as spoken to by PW1 since she claimed that the act was done in a standing position.
15. One fails to understand how the court jumped to the conclusion that there is no possibility of penetration if such an act could have been done in a position as spoken to by PW1. What is significant is that the injuries noticed by PW7 soon after the incident. Learned Public Prosecutor also brought to the notice of this Court Ext.P11 which is the certificate of examination of the accused which shows that he had scratch marks on the inner portion of left upper limb which would show the resistance Crl. Appeal No.293/2009 8 offered by the victim.
16. It is true that in the decisions relied on by the learned counsel for the appellant namely, Koppula Venkat Rao vs. State of A.P. ((2004) 3 Supreme Court Cases
602) and in Amirthalingam vs. State (1995 (2) KLT S.N.51 Case No.68), what amounts to attempt to commit rape has been considered. In the latter case, considering the facts therein, it was found that offence under Section 354 IPC alone is made out. Obviously, there was no evidence in the above cases with regard to penetration as is available in the present case.
17. This Court is not unaware of the fact that the evidence of the incident is confined to PW1 who is also a child witness. But it is not as if her evidence stands in isolation. It gets sufficient corroboration at the hands of PW7 and the entries in Ext.P5. What is more significant is Ext.P1 First Information Statement came into existence within a short span of time containing the entire details. It is also useful to notice that no contradiction or inconsistency is brought out in the evidence of PW1 in relation to what she has spoken at the time of giving First Crl. Appeal No.293/2009 9 Information Statement or in other words, Ext.P1 is in consonance with her evidence. These items of evidence could not have been brushed aside by the court below.
18. It is extremely difficult to accept the finding of the court below that the offence under Section 376(f) IPC is not made out and that offence under Section 511 of 376(2)(f) IPC alone is made out. Even though this Court is of the definite opinion that offence under Section 376(f) IPC is clearly made out, this Court is handicapped for want of appeal by the State to do anything more. Therefore, the conviction for the offence under Section 511 of 376(2)(f) IPC is only to be upheld.
19. Coming to the sentence, considering the nature of the act committed by the accused, the age of the victim and the manner in which the offence was committed, sentence of rigorous imprisonment for three years seems to be absolutely reasonable and if at all any error has been committed by the court below, it is on the side of leniency. The sentence also does not call for any interference. In the result, the appeal is without merits and it is liable to Crl. Appeal No.293/2009 10 be dismissed. I do so confirming the conviction and sentence passed by the court below. Sd/- P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.