Kerala High Court
Baby vs The State Of Kerala on 6 September, 2012
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934
Crl.Rev.Pet.No. 612 of 2010 (B)
----------------------------------------
CRA.415/2005 of DISTRICT COURT & SESSIONS COURT,KOLLAM
SC.94/2000 of ASSISTANT SESSIONS COURT, KOTTARAKKARA
.......................................................
REVISION PETITIONER/APPELLANT/ACCUSED:
------------------------------------------------------------------------
BABY,
S/O.PHILIPOSE,CHARUVILA PUTHEN
VEEDU,NEAR 6 KANNARA BRIDGE,
ANDOOR PACHA MURI
EDAMON VILLAGE,
PATHANAPURAM TALUK,
KOLLAM DISTRICT
BY ADV. SRI.E.S.ASHRAF
RESPONDENT:
---------------------
THE STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 06-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DCS
S. SIRI JAGAN, J.
-------------------------------------------
Crl. R.P. No.612 of 2010
----------------------------------------------
Dated this the 6th day of September, 2012
ORDER
The accused in Sessions Case No.94/2000 of the Assistant Sessions Judge, Kottarakara and the appellant in Crl.Appeal No.415/2005 of the Court of Sessions, Kollam, is the revision petitioner in this Criminal Revision Petition. The prosecution was under Section 376 of the Indian Penal Code. The prosecution case was as follows:
The accused was aged above 60 years when the charge sheet was filed in the month of December 1997. On 11.8.1996, his neighbour-PW1, a minor girl aged 13 years, went to the nearby forest in Edamon Village in Andoor Pacha Muri to collect grass for cattle. While she was cutting grass, the accused, who was a neighbour, came to the spot, where the girl was collecting grass and made sexual advances to her. When the girl resisted, he induced the girl promising that he would purchase new dresses for her and there was nothing to be afraid of. Thereafter, Crl. R.P.No.612/10 2 he physically lifted the girl, laid her on the ground and raped her till he reached orgasm. Subsequently, another man by name Vijayan also raped her in his house, while she went to his house to return an umbrella belonging to him, kept in the house of the victim. After some time, the sisters of the girl found that the girl was showing signs of pregnancy. Her sisters questioned her. Her mother is no more and her father was laid up at that time. The victim disclosed both the incidents to her sisters. They in turn informed the matter to the wife of PW2, Sasidharan, who is the brother of the girl. The said Pushpa took the girl to the doctor, who examined her and confirmed that she is pregnant. Thereafter, the girl went to the Police Station along with her brother and filed a F.I. Statement against both the accused and the said Vijayan, based on which an FIR was registered on the allegation of rape by the accused as well as the said Vijayan. The said Vijayan is absconding and therefore, the case was split up and the case against the accused alone was proceeded with for the present. The charge sheet was filed before the JFCM Court, Punalur. The Magistrate committed the case against the accused to the Sessions Court, Kollam, under Section 209 (9) Cr.P.C., after Crl. R.P.No.612/10 3 completing the formalities, since the offence under Section 376 is exclusively triable by the Court of Session. The learned Sessions Judge made over the case to the Assistant Sessions Judge, Kottarakara for trial and disposal. The Assistant Sessions Judge framed charge under Section 376 of the Indian Penal Code against the accused and proceeded with the trial. Eight witnesses were examined on the side of the prosecution and Exts.P1, P1(a) and P2 to P9 were marked. MO-1 and MO 1
(a) namely, the dress allegedly worn by the PW1 when the occurrence took place were also marked. On the basis of the evidence adduced, the Assistant Sessions Judge found the petitioner guilty of the offence under Section 376 and sentenced him to undergo rigorous imprisonment for a term of five years and also directed him to pay a fine of Rs.50,000/-
(Rupees fifty thousand only) with a default sentence of one year. If the fine amount was realised, it was directed to be paid to PW1 as compensation. Against the conviction and sentence, the petitioner filed Criminal Appeal No.415/2005 before the Sessions Judge, Kollam. After hearing both sides, the Sessions Judge entirely agreed with the Assistant Sessions Judge and upheld both the conviction and the sentence. The Crl. R.P.No.612/10 4 petitioner is challenging the judgments of the lower courts in this Criminal Revision Petition.
2. The learned counsel for the petitioner raises three points. The first is that there is unexplained delay in lodging the complaint. According to him, the date of occurrence was on 11.8.1996 and the F.I. Statement was given only on 21.10.1996, more than two months after the alleged incident. With the help of the decisions of the Supreme Court in Vijayan v. State of Kerala [2008(3) KLT SN 86(Case No.106)] and in Raju and others v. State of Madhya Pradesh [(2008) 15 SCC 133], the learned counsel for the petitioner would argue that the delay would strike at the root of the prosecution case. The second contention raised is that the petitioner has been falsely implicated in the case to save the other accused namely, Vijayan. According to the petitioner, the said Vijayan was a relative of the wife of PW2 and only for saving him that the charge was falsely foisted on the petitioner. The third contention is that the medical evidence adduced does not support the prosecution case, insofar as, as per the prosecution case, the PW1 had sexual intercourse only twice at the hands of the accused and the said Vijayan whereas in cross Crl. R.P.No.612/10 5 examination, the doctor, who examined the girl, gave evidence to the effect that the PW1 may have been subjected to sexual intercourse numerous times.
3. I have considered the rival contentions in detail.
4. At the outset I must note that both the trial court and the appellate court judgments are well written dealing with every aspect of the matter convincingly. Every aspect of the case has been elaborately considered by both and both of them have given elaborate reasons as to why they found the petitioner guilty of the charge levelled against him.
5. The first contention of the petitioner is regarding the delay in lodging the complaint. In this connection, we must note that the girl had only just passed 13 years of age at the time of the incident. I am of opinion that even if the sexual intercourse was with her consent, in view of her age, sexual intercourse with her amounts to rape. I am of opinion that even if it was not with her consent, no self respecting girl would immediately report that incident to her sisters because of fear and the stigma that may be cast on her because of the incident. In fact, she never reported either of the two incidents of rape to anybody. It was only when the sisters Crl. R.P.No.612/10 6 noticed symptoms of pregnancy that they questioned her and she was forced to reveal the two incidents. Considering the ignominy which such an incident would cause in the present day society of ours, I am of opinion that this was the only natural course of events that could happen consequent to the rape of the girl, especially when she was only 13 years old. No self respecting girl would behave otherwise than in the manner in which PW1 behaved. As such, according to me, there is no delay in the matter of lodging the FIR. The two decisions of the Supreme Court cited by the learned counsel for the petitioner cannot be pressed into service in this case because of the peculiar facts and circumstances of this case which are different from the fats of this case. In both those cases, the victims were grown up ladies. The fact situation in those cases cannot compared with that of this case, where the girl was a minor only aged 13 years. In any event, I am fully satisfied that the sequence of events was only the natural course of events and this could not have culminated in any other manner. That being so, I do not find any merit whatsoever in the contention regarding delay in lodging the complaint by the girl.
Crl. R.P.No.612/10 7
6. The second contention raised by the petitioner is that he has been falsely implicated in the case to save the said Vijayan,who was allegedly a relative of the wife of the brother of the victim. That question was elaborately considered by both the courts below and the contention of the petitioner in that regard was repelled. It is not disputed before me that the said Vijayan was also implicated specifically as the person, who raped the girl the second time in the FI statement and the FIR. In fact he was also supposed to be prosecuted along with the petitioner in this particular case itself. But, his case was split up only because he was absconding. While cross examining the witnesses of the prosecution, the petitioner did not care to ask any question regarding the alleged relationship of that Vijayan with the wife of the brother of the victim. As such, I am unable to countenance the contention of the petitioner that for saving the said Vijayan, the petitioner was falsely implicated.
7. The third contention is that the medical evidence does not support the prosecution case. This contention is based on an answer elicited in cross examination from the doctor, who was examined as PW3, which reads as follows: Crl. R.P.No.612/10 8
"By two intercourse only whether the vagina admits two finger(Q) More than two intercourse are needed, numerous times intercourse required (A)"
But, it must be remembered that the prosecution had got the doctor to explain the same in re-examination thus:
"Re-exam:- It is possible to admit two finger depending upon the nature of intercourse, force, size of organ."
Even otherwise, even assuming that the girl was subjected to sexual intercourse on other time also, that will not in any way absolve the petitioner from the guilt, insofar as the girl was a minor and sexual intercourse even with her consent would amount to rape. As such, none of the three contentions raised by the petitioner to substantiate his innocence appeals to me.
8. As I have already said in the beginning, both the judgments of the lower courts are very well written, examining the every aspects of the case threadbare. The evidence of the victim as PW1 is very convincing and the defence could not pick any holes in the said evidence in cross examination. It is settled law that evidence of the prosecutrix alone, if convincing, is sufficient to convict a person, of rape. In this case, the evidences not only of PW1 but all the other witnesses were very convincing and as such, I am of opinion that the Crl. R.P.No.612/10 9 only conclusion possible on the evidence available on record is that the petitioner was guilty of raping PW1. I am fully satisfied that the prosecution had succeeded in proving the guilt of the petitioner beyond any reasonable doubt whatsoever. Therefore, I do not find any merit in this Criminal Revision Petition and accordingly the same is dismissed.
S. SIRI JAGAN, JUDGE acd Crl. R.P.No.612/10 10