Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE27H DAY OF MARCH20146TH CHAITHRA, 1936 Crl.Rev.Pet.No. 4 of 2013 () ----------------------------- CRA202008 of ADDL. SESSIONS COURT (ADHOC)-I, KOLLAM SC5122001 of ASST. SESSIONS COURT, KOTTARAKKARA ----------- REVISION PETITIONER(S)/APPELLANT/ACCUSED :- ----------------------------------------------- ABDUL HUCK, SON OF ABDULKARIM, SABEENA MANZIL VEEDU ILLAMPAZHANOOR, KADAKKAL. BY ADVS.SRI.ALAN PAPALI SRI.J.VIMAL RESPONDENT/RESPONDENT/COMPLAINANT :- -------------------------------------- STATE OF KERALA (CRIME NO.139/2000 OF KADAKKAL POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON2703-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J.
-------------------------------- Crl.R.P. No.4 of 2013 ----------------------------- Dated this the 27th day of March 2014 ORDER
This revision is directed against the concurrent verdict of conviction passed against the revision petitioner for offence punishable under Sec.511 of 376 IPC. The incident took place about two months prior to 21.4.2000. PW2 the victim girl was then aged about 7 years. When she was examined before court, she was aged 12 years and 7 months. The learned Assistant Sessions Judge, after conducting voir dire was satisfied of the competency of PW2 to give evidence before court. Her evidence was thus recorded. Her evidence would show that the accused was called by her as 'vaappa'. The accused is the father of PW6 - Shani. Shani was the tuition teacher of PW2.
2. It was testified by PW2 that when she was a student of 1st standard, she was residing in a rented house near the house of PW6. At that time, she used to attend the tuition class conducted by PW6 in her house. It is her case that during school working days the tuition class used to be had in the evening, Crl.R.P. No.4 of 2013 -:
2. :- after school hours. On holidays, the tuition class used to be started at 10 AM. According to PW2, the accused used to take the students to a room for showing cinema and after sometime, other students will be allowed to go but he used to retain PW2 in his house and she (PW2) will not be allowed to go out of the room. It is her case that the accused will thereafter undress her and make her to lie on a cot. It was also stated that he used to show 'dirty cinemas', to mean; pornographic films. It was also sworn by her that the accused used to take out his penis and press it against her vagina. The evidence would show that the accused did so when the girl was lying supine and when the accused lay upon her. She says that the accused pressed his organ against her vagina more than once and so, she had pain on her private parts. Her other version is that when she cried aloud the accused allowed her to go after putting on her dress. Her mother was examined as PW1.
3. It was further stated by PW2 that one day, when the accused was seen in front of his house and when he asked PW2 why she was not going for tuition class, she immediately ran to her own house because of fear. After she entered the house, she Crl.R.P. No.4 of 2013 -:
3. :- was asked by her mother why she ran back to the room. Then she told her mother that "she was afraid of vaappa". Then the mother enquired what was the reason. It was then only PW2 told the entire incident to her mother.
4. Before the trial court PW1 to PW13 were examined and Exts.P1 to P9 were marked. Ext.D1, the remand application was marked on the side of the defence.
5. It is vehemently argued by the learned counsel for the revision petitioner that it is a false case foisted against the accused. The case put forward by the defence was not considered at all by the courts below, the learned counsel submits. It is vehemently argued that, according to PW2, she was examined by one Dr.Nassar but PW13, the investigating officer did not question Dr.Nassar and no certificate was obtained from Dr.Nassar with regard to the examination if any conducted upon PW2. The girl was again examined by another lady Gynaecologist on 23.4.2000. Ext.P5 is the certificate issued by Dr.Leelamony, who had examined PW2, the victim girl on 23.4.2000. Since the girl was examined by a Senior Gynaecologist and certificate with regard to the same was Crl.R.P. No.4 of 2013 -:
4. :- produced before court, there was no necessity to examine the other doctor who also was stated to have examined the girl. Ext.P6 is the certificate issued by PW11 - Dr.Vasantha Kumari for having examined PW2 on 2.5.2000. At that time, PW2 was aged 7 years. It was testified by PW11 that the girl told her that she (PW2) was tortured by 'maaman' ( )and his male organ was "passed through" her private part and breast was handled. It was testified by PW11 that partial penetration to labia, majora and vulva is possible without rupturing of hymen. A clear allegation was made by PW2 to the doctor that she was assaulted by her tuition mistress's father, who is the accused/petitioner. The allegation made by PW2 to the doctor was that the male organ of the accused "passed" or "pressed" (it is not clear) to/through her private part. (It happened to be so because it was given by a girl aged 7 years).
6. It is vehemently argued by the learned counsel for the revision petitioner that the allegation made by the girl was about one 'maaman'. It was clearly explained by the girl that the offending act was done by the father of the tuition teacher, who Crl.R.P. No.4 of 2013 -:
5. :- was called 'vaappa'. She identified the accused as the person who did the offending act upon her. It was so stated by her to other doctor - PW11 as well. The allegation made by the girl to the doctor : " - . ." She explained the word " " as her organ through which she passes urine. In other words, the word aforesaid was actually about her vagina. In view of the categoric and unassailable statement given by PW2 that the offending sexual act was done by the accused, who was called as 'vaappa' at several places, would make it indubitably clear that there was no confusion with regard to the person, who did the offending sexual act upon that girl. It is important to note that the girl was aged only 7 years at the time when she was examined by the doctor. There was an incisive cross examination of PW2. Such an incisive cross- examination should not have been permitted upon a girl of that tender age.
7. The fact that PW2 used to attend tuition class conducted by PW6, the daughter of the accused was not in Crl.R.P. No.4 of 2013 -:
6. :- serious dispute. It was argued by the learned counsel for the revision petitioner that other children who used to go for tuition class was not examined. It is not a case that the offending act was done by the accused in the presence of any other child. Therefore, non-examination of any other student/child is of no consequence. Similarly, the question as to whether on the particular day of incident there was tuition class or whether it was a working day is also not of much significance.
8. It is quite evident that PW6 betrayed the prosecution evidently because the accused is her father. It seems, as the accused was the father of the tuition teacher, PW2 and others used to call him as 'vaappa' ( ). The contention that there was some dispute with regard to bamboo plants/ trees between the accused and the father of PW2 and that some amount was borrowed by the mother of PW2 from the accused and with regard to that also there was dispute and so, this case was foisted is only the figment of the fertile imagination of the accused, the learned Public Prosecutor rightly submits.
9. It is only a revision petition. The courts below have analysed the evidence given by PW2 in the correct perspective. Crl.R.P. No.4 of 2013 -:
7. :- Her evidence was fully supported by the evidence given by PW10 and PW11. PW9 has only referred the patient (PW2) to the Gynaecologist of Taluk Hospital. Therefore, there was no occasion for him to have a detailed examination of the girl. Since the offence for which the petitioner was found guilty is only under Sec.511 of 376 IPC, the question whether there is evidence of penetration is also not of much consequence. PW2 has stated that she suffered pain when the accused pressed his organ at her private part (at the place she used to pass urine). Hence, it might be even possible to hold that there was atleast vulva penetration which would attract the offence of rape. However, the learned trial Judge adopted a safer view and held that there was only an attempt to commit rape.
10. Learned counsel for the revision petitioner has vehemently argued regarding non-examination of Dr.Nassar, other students etc. to hold that the prosecution case is unbelievable. There is absolutely no merit in that submission. The contention that the case was a false one foisted against the petitioner is also bereft of any merit. After a meticulous analysis of the evidence, the courts below found that the petitioner was Crl.R.P. No.4 of 2013 -:
8. :- guilty of the offence punishable under Sec.511 of 376 IPC. Though it is not required to have a detailed consideration of the evidence, still to find whether the courts below have correctly approached the issue and assessed the evidence, I also went through the evidence of PW2 and other material witnesses. There is no merit in the submission made by the learned counsel for the petitioner that there is no acceptable evidence to sustain the case against the petitioner. The argument, advanced by the learned counsel for the petitioner is found to be devoid of any merit. The verdict of conviction passed against the petitioner is only to be sustained.
11. The petitioner was sentenced to undergo R.I. for three years and to pay a fine of 10,000/- and in default to undergo R.I. for one year. Learned counsel for the petitioner submits that petitioner is now aged about 72 years and so, sentence may be reduced. But, at the same time, the court has to consider the gravity of the offence as well. Considering all the aspects, I find that the sentence can be slightly modified. In the result, this Crl.R.P. is disposed of as stated below :- Crl.R.P. No.4 of 2013 -:
9. :- The verdict of conviction passed against the petitioner for the offence punishable under Sec.511 of 376 IPC is confirmed. In supersession of the sentence awarded by the courts below, the petitioner is sentenced to undergo R.I. for two years and to pay 50,000/- as compensation to PW2, the victim girl and in default of payment of compensation amount, the petitioner will undergo R.I. for one year. Sd/- N.K.BALAKRISHNAN, J UDGE. Jvt