Kerala High Court
Ajayan vs State Of Kerala on 15 July, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939
CRL.A.No. 1368 of 2011 (A)
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IN SC 197/2010 of D.C. & SESSIONS COURT,KOTTAYAM DATED 15-07-2011
IN CP 9/2009 of J.M.F.C.,KOTTAYAM
APPELLANT(S)/ACCUSED:
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AJAYAN, S/O. BHASKARAN,
CHURAPARAMBIL HOUSE,
ORAVACKAL RAJEEV GANDHI COLONY,
AREEPARAMBU, MANARCADU.
BY ADVS.SRI.K.SURESH
SMT.DEEPTHI S.MENON
RESPONDENT(S)/COMPLAINANT & STATE:
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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
REPRESENTING BY THE C.I. OF POLICE,,
KOTTAYAM EAST POLICE STATION.
BY PUBLIC PROSECUTOR SRI. C.S. HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ds
P.UBAID, J.
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Crl.A. No. 1368 of 2011
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Dated this the 10th day of October, 2017
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 376 of the Indian Penal Code in S.C.No. 197 of 2010 of the Court of Session, Kottayam.
2. The victim of offence in this case is a girl aged 11 years as on the date of the alleged incident. The prosecution case is that on many occasions, during January, 2008 and September, 2008, the accused sexually abused and ravished the minor girl at different places on different occasions, while residing with the girl's mother as her paramour. The victim and her mother were abandoned by her father, and within no time, the victim's mother started residing with the accused. Without a legal marriage, they resided together at different places during the said period. The minor's grievance is that she was first sexually abused Crl.A. No. 1368 of 2011 -2- by the mother's paramour at the end of January, 2008 at the kitchen of the house, and when she resisted, she was threatened and subdued by the accused. This sort of sexual atrocity and abuse continued till September, 2008, and when the minor girl found things unbearable, she made a complaint before the Police. On the said complaint, the Police registered the crime, and after investigation, the Police submitted final report before the Judicial First Class Magistrate-I, Kottayam.
3. After complying with the procedural requirements, the learned Magistrate committed the case to the Court of Session.
4. The accused appeared before the Court of Session, and pleaded not guilty to the charge framed against him under Section 376 IPC. He was defended by a counsel of his choice. The prosecution examined 13 witnesses, and proved Exts.P1 to P13 documents in the trial court. The MO1 to MO3 properties were also identified during trial. Crl.A. No. 1368 of 2011 -3-
5. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that he had not, in any manner, abused the minor girl, and that she made a false complaint against him at the instigation of her father. The mother of the victim was examined as DW1 in defence by the accused.
6. On an appreciation of the evidence, the trial court found the accused guilty under Section 376 IPC. On conviction, he was sentenced to undergo rigorous imprisonment for 7 years, and to pay a fine of 25,000/-, by judgment dated 15.07.2011. Aggrieved by the judgment of conviction, the accused has come up in appeal.
7. On hearing both sides, and on a perusal of the entire materials, I find no scope or reason for interference in appeal.
8. Of the 13 witnesses examined in the trial court, PW1 is the victim of offence, PWs 2 and 3 are the persons examined to prove that the accused and the Crl.A. No. 1368 of 2011 -4- victim's mother had resided with the victim at different places, PW7 is the doctor who examined the victim at the hospital, and issued the certificate of examination, PW8 is the doctor who examined the accused to test his potency, PW9 is the headmaster of the school examined to prove the Ext.P7 certificate and the Ext.P8 extract of the school admission register proving the age of the victim, PW11 is the Sub Inspector who registered the FIR and initially investigated the case, PW13 is the Circle Inspector of Police who later investigated the case, and PW12 is the Circle Inspector who completed the investigation, and submitted final report in court. The main evidence is that of PW 1, PW7 and PW9, to prove the factual aspects as regards the alleged incident of rape, and the date of birth of the victim. On a perusal of the evidence given by PWs 11 to 13, I find that the case was properly and legally investigated by the Police Officers, and there is nothing to show that there was any flaw, or irregularity or illegality in the investigation Crl.A. No. 1368 of 2011 -5- conducted by them. The defence has also no contention regarding any such flaw or irregularity in the investigation process. So, their evidence need not be discussed much.
9. This is really a strange case where the mother of the minor victim came before the court as a witness on the side of the accused. Of course, she is bound to help the accused because even the prosecution case is that she has been residing with the accused without a legal marriage. Her evidence is that she was abandoned by her husband when he suspected some connection with the accused, and within no time, she started residing with the accused at a rented house along with the minor daughter. She would say that the accused had not at any time sexually abused or ravished her daughter, and that the daughter had not made any such complaint to her. On a perusal of the evidence given by DW1, I find that her evidence is really artificial, and that she supported the accused when the daughter abandoned her, and joined her father. It has come Crl.A. No. 1368 of 2011 -6- out in evidence that the minor's father had also given necessary advice when the minor thought of filing complaint against the accused. Here, what the court will have to suspect is the approach of the mother, who at the initial stage, supported the girl, and advised her to file a complaint, but later during trial, she forsook her minor daughter who joined her father, and helped the accused by giving evidence on his side as DW1. I need not discuss much about the evidence of DW1. Her evidence is really artificial and suspicious, and her evidence will not help the accused, or go against the prosecution case.
10. PW1, the victim has given definite evidence, and it is fully consistent with her versions in the Ext.P1 complaint made by her. The complaint was made on 26.09.2008. Her complaint is that ever since she and her mother started residing with the accused, he started sexually abusing and molesting her. Her mother started residing with the accused at the end of January, when she Crl.A. No. 1368 of 2011 -7- was abandoned by the father. They took a house for rent at Arumanoor. Just after four days, she was taken by force to the kitchen of the house by the accused when the mother fell asleep due to the sedative effect of some medicines taken by her, and at the kitchen, she was raped by the accused. When she resisted she was threatened by him, and she was subdued. After a few months, they shifted to a rented house at Neerikkodu. There also, the accused continued his evil ways, and abused the girl sexually. When the mother and the accused used to pick up quarrels unnecessarily, the house owner at Neerikkodu asked them to vacate the house. Accordingly, they shifted to a house at Thalikkallu, and they started residing with an old lady. There also, the accused continued his habits. This continued till September, 2008. Thus, till September, 2008, she had been sexually ravished and exploited by the accused on many occasions at the three different rented houses they occupied at different places. When she complained to the Crl.A. No. 1368 of 2011 -8- mother, she did not take things seriously. However, when the girl felt things unbearable, she decided to make a complaint. By that time, her mother and the accused had fallen apart, and in such a situation, the mother supported her to file a complaint.
11. The evidence given by PW1, when examined in chief, is fully consistent with the versions in the Ext.P1 complaint, as stated above. The defence could not bring out anything in her cross examination to suggest that she was advised by her father or mother to make a false complaint, or to suggest that she had any reason or grudge or ground to make a false complaint against the accused.
12. PWs 2 and 3 have given evidence that they had seen the accused, the victim and her mother residing together at a rented house. PW2 had seen them at Arumanoor, and PW3 had seen them at Neerikkodu. It has come out in evidence that the owner of the rented house at Neerikkodu asked DW1 to vacate the house when she and Crl.A. No. 1368 of 2011 -9- the accused started picking up quarrels everyday. Both the witnesses are definite that the victim in this case had also been with them at the rented houses.
13. The important question raised by the defence is regarding the actual age of the victim at the time of the alleged incident. In fact, the learned trial judge has recorded that on appearance itself, the court was satisfied that she is a minor. The date of birth of the minor is 14.10.1997. This is proved by Exts.P7 and P8 documents. These documents are proved by the headmaster of the school, examined as PW9. Ext.P7 is the certificate issued by the headmaster, and Ext.P8 is the true extract of the school admission register, wherein, the date of birth is entered as 14.10.1997. It is curious to note that with the object of helping the accused, the victim's mother stated that the girl was born in 1991. She does not have any material to substantiate her case that the daughter was born in 1991. The learned counsel cited two decisions of the Honourable Crl.A. No. 1368 of 2011 -10- Supreme Court in Satpal Singh v. State of Haryana ((2010) 8 SCC 714) and Sunil v. State of Haryana ((2010) 1 SCC 742). In those cases, the Honourable Supreme Court did not accept the age documents relied on by the prosecution for sufficient reasons. But those decisions cannot be applied to the facts of this case. Here, the prosecution has well proved the school admission register extract. The Ext.P7 certificate was issued by PW9 on the basis of the entries made in the school admission register, and not on the basis of the entries in the transfer certificate, or some other documents. There is nothing to show that the birth of the girl was registered at the local authority. When such evidence is there, the important document to prove the age would necessarily be the birth certificate, and in such a circumstance, the entries in the school admission register will not have much importance or significance. But here the position is different. The birth of the girl was not registered at the local panchayat. It is pertinent to note that no serious Crl.A. No. 1368 of 2011 -11- question was asked to PW1 or to PW9 regarding the date of birth, or the age of the victim. Thus practically, that part of the evidence given by the victim and PW9 regarding the age stands not effectively challenged. The court will have to appreciate the age document, and its legal value in such a situation. So, I find that the Exts. P7 and P8 documents are well acceptable, and these documents will definitely prove the date of birth of the victim, that it is 14.10.1997.
14. The evidence given by PW1 is that she was first sexually abused and ravished or raped by the accused at the end of January, 2008, and this continued till September, 2008. This means that the small girl was at her running 11 when she was raped or sexually abused by the accused on many occasions from January, 2008 till September 2008. She was examined in court in April, 2011. On seeing the physical appearance of the girl, during trial in court, the learned trial Judge recorded that in appearance itself, the victim is a small girl, or that she is a minor. Even Crl.A. No. 1368 of 2011 -12- in 2011, the girl appeared to be a minor to the learned trial Judge, and this was recorded in the proceedings and even in the judgment.
15. The evidence given on facts by the victim is well acceptable, and I find no reason to reject her evidence or to disbelieve her. The medical evidence given by PW7 also supports the versions of the victim. On thorough examination, the doctor found signs of the minor girl having undergone sexual act in the recent past. There is nothing to show that the girl had sexual contact with anybody else during the said period. The girl was examined by the doctor in 2008, when she was aged only 11 years. At the age of 11 years, signs of having undergone sexual intercourse could be detected by the doctor on examination. This evidence also supports the version of the victim.
16. On an appreciation of the evidence as discussed above, I find that the prosecution has well proved the case beyond any reasonable doubt, that the accused Crl.A. No. 1368 of 2011 -13- had subjected the victim (PW1) to sexual intercourse and sexual abuse on more occasions than one during the period between January, 2008 and September, 2008 at different places. There is reason to believe that such things happened with the knowledge or silent consent of the mother of the girl. This is really unfortunate. I find no reason for interference in appeal. The sentence imposed by the court below is the minimum possible under the law. There also, there is no scope for interference. I find that the accused was rightly found guilty by the trial court under Section 376 IPC, and the sentence also does not require any interference. There is no special circumstance to deviate from the rule of minimum sentence.
In the result, this appeal is dismissed, confirming the conviction and sentence against him under Section 376 IPC in S.C.No. 197 of 2010 of the court below.
P.UBAID JUDGE ds 25.09.2017