Kerala High Court
Thulaseedharan vs State Of Kerala on 20 March, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934
CRL.A.No. 84 of 2006 ( )
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SC.1934/2003 of SESSIONS COURT,KOLLAM.
CP.21/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVOOR.
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APPELLANT(S)/ACCUSED IN CUSTODY::
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THULASEEDHARAN, S/O.NATARAJAN,
PADIPPURA VEEDU, KADAMBATTUKONAM, PARIPPALLY VILLAGE.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENT(S)/COMPLAINANT::
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
P.BHAVADASAN, J.
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Crl.A. No. 84 of 2006
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Dated this the 20th day of March, 2013
J U D G M E N T
The accused was prosecuted for the offences punishable under Section 376 of IPC and Section 3(1)(xi) of SC/ST(Prevention of Atrocities) Act. He was found guilty on both counts. He was therefore convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 25,000/- with a default clause of imprisonment for one year for the offence punishable under Section 376 and rigorous imprisonment for six months for the offence punishable under Section 3(1)(xi) of SC/ST(Prevention of Atrocities) Act. The substantive sentences were directed to run concurrently.
2. The incident which gave rise to the case is said to have occurred on 10.12.2001 at about 11 AM. PW1 is the victim and PW2 is her mother. On the date of incident as a Crl.A. No.84/2006 -2- harthal had been declared, both victim as well as her mother did not go for work. As per the prosecution case, the victim was employed in a cashew factory. By about 8.00 am in the morning, PWs 1 and 2 along with the aunt of PW1 went to the market at Paripally. While they were in the market, she went to answer the call of nature. PW1 left the company of her mother and her aunt. She had gone behind the vegetable shop. It is alleged that the accused came near her and closed her mouth, took her behind the mill situated nearby and ravished her. When she tried to cry and raise voice, she was threatened. After the incident was over, she returned to her mother and conveyed the information to her mother. They went to the police station and laid Ext. P1, First Information Statement. That was recorded by PW8 who registered crime as per Ext.P1(a) FIR. The victim was sent for medical examination and she was examined by PW3 who issued Ext.P2 certificate. PW9 took over investigation. He prepared Ext.P8 scene mahazar and had MOs 1 to 5 seized Crl.A. No.84/2006 -3- as per Ext.P9. He recorded statements of witnesses. On arrest of the accused, he had him subjected to potency test and obtained Ext.P3 certificate. He also procured Ext. P7 document from PW7 relating to the date of birth of the victim. He completed investigation and laid charge before the court.
3. The court before which final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by court of Sessions, the case was committed to Special Court, Kollam. The said court framed charges for the offences punishable under Section 376 of IPC and Section 3 (1)(xi) of SC/ST (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 9 examined and Exts. P1 to P12 marked. MOs 1 to 5 were got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances Crl.A. No.84/2006 -4- brought out in evidence against him and maintained that he is innocent. He also pointed out that on the date of incident, he was in his house playing cards with three others. There was monetary transaction which resulted in a quarrel and he would say that he was taken from his house by the police. Finding that he could not be acquitted under Section 232 of Cr.P.C., he was asked to enter on his defence. The accused examined DW1. On an evaluation of the evidence in this case, the court below came to the conclusion that the offences have been made out and accordingly conviction and sentence as already mentioned followed. The conviction and sentence are assailed in this appeal.
4. The learned counsel appearing for the appellant pointed out that the prosecution case is inherently improbable because the incident, going by the prosecution version, is alleged to have been taken place near a market which is a public place and it is inconceivable that nobody would have seen the incident. Highlighting the above Crl.A. No.84/2006 -5- argument, the learned counsel for the appellant pointed out that even going by the evidence of PW1, she was dragged from the national highway which would have normally attracted the attention of passers by and the prosecution has not chosen to examine any witness who had seen the accused taking away the victim. The case put forward was that it was harthal day and that there was no one in the road cannot be believed. The learned counsel pointed out that Paripally market is a very busy area which is frequently visited by people and it is inconceivable that when the victim was dragged by the accused, no would have seen the same. It was further pointed out that the evidence of PW1 is to the effect that when she was taken from the road as well as when she was subjected to offensive act she had been crying aloud. If that be so, it is inconceivable that the cries of PW1 would not have attracted the attention of anybody especially when the scene of occurrence is surrounded by the residential area. There is no case for the prosecution Crl.A. No.84/2006 -6- that those houses were uninhabited. It was then pointed out that even if the evidence of Pws 1 and 3 are accepted, there is no evidence of penetration and therefore, the offence under Section 376 cannot be attracted. In support of the above proposition, the learned counsel relied on the decision reported in Aman Kumar And Another v. State of Haryana [2004 4 SCC 379]. It was also pointed out that according to PW1, she was bleeding after the incident which is belied by Ext.P2, medical certificate. It must be noticed according to the learned counsel that the medical examination was almost immediately after the incident and if there was any bleeding as claimed by PW1, it would have been noticed by PW3. It was further pointed out that going by the version of PW1, she was dragged from the place of occurrence, and she had suffered injuries on her body. This is also belied by the medical evidence which only shows the abrasion on the left ankle and nothing more. These aspects have not been properly appreciated by the court below and Crl.A. No.84/2006 -7- had it done so, it could have been easily seen that there was an attempt to falsely implicate the accused. The learned counsel pointed out that the above infirmities make the evidence of PW1 open to serious doubt and it may not be safe to base of conviction on the evidence of PW1 alone. The learned counsel therefore contended that the conviction and sentence are clearly unsustainable in law.
5. The learned Public Prosecutor on the other hand pointed out that the court below has chosen to accept the evidence of PW1, the victim in this case. It is true that the prosecution case is that the child was taken from the road. But it was the day of Harthal and it may be that there was no one at the relevant time on the road and it was not necessary that anybody should notice taking away of the child by the accused from the road. There is nothing to indicate or there is no suggestion to anybody that there were people at the place who could have seen the incident. Referring to the place of incident, the learned Public Crl.A. No.84/2006 -8- Prosecutor pointed out that the scene mahazar would show that it was slightly a bush area where the incident had taken place and there were over growth of grass and therefore, the contention that had the incident occurred at an open place where it is alleged, it would have been noticed by others is baseless. It is also true that PW1 has stated that she did cry both at the time when she was taken away from the road as well as when the offences being committed. However, merely because nobody had heard her cry or had she could not attracted the attention of anybody is by itself is not a ground to doubt the version given by PW1 when she in her evidence gets sufficient corroboration from the medical evidence as well as from the forensic evidence. The learned Public Prosecutor pointed out that the court below has for cogent and convincing reasons found that there is sufficient evidence to come to the conclusion that the offence under Section 376 is made out. There are no grounds to interfere with the conviction and sentence.
Crl.A. No.84/2006 -9-
6. As usual, the evidence regarding the incident in this case also remains confined to the victim who is examined as PW1. The date of birth of PW1 is proved through the evidence of PW7, the Head Master of the school who issued Ext.P7. A contention was raised by the learned counsel for the appellant that the said document does not show that it relates to the victim because the name of mother shown in the document is wrong.
7. Unfortunately for the appellant, there was no suggestion either to PW7 or PW9, the investigating officer that certificate produced namely Ext.P7 does not relate to the victim but it belongs to some other child. PWs 7 and 9 have categorically in their chief examination stated that the said document relates to the victim and there was no challenge in the cross examination. So, that evidence in respect of that document makes unimpeached.
8. Ext.P10 is the FSL report. It is seen that the clothes worn by the victim alone were sent for medical Crl.A. No.84/2006 -10- examination and on two of the items, semen and spermatozoa were detected. The learned counsel appearing for the appellant raised a contention that though MOs 1 to 5 of which two items form a part it was seized on 10.12.2001, it reached the court only on 02.01.2002. The possibility of manipulation cannot be ruled out.
9. Though, the contention may look attractive at the first blush, one has to refer to the evidence of PW9 again. He has specifically stated about the seizure of the clothes handed over to him and he has also stated that he had entrusted a right of forward the same to the court. True, there is delay in articles reaching the court. But there is nothing to show that there was any manipulation with regard to those items. Anyhow, even if the said evidence is eschewed, there are other items of evidence which show that the offences have been made out.
10. Of course, it is now necessary to refer to the evidence of PW1, the victim. The victim says that she along Crl.A. No.84/2006 -11- with her aunt and PW2, the mother had gone to the market on the day, on which a Harthal was declared and they could not go for work. She bought a packet of curd and handed over to her mother and then she told her mother that she wanted to ease out and she went to the nearby place. It was then on her way back, she was picked up by the accused and she says almost the details of the incident. She also says that she was raped by the accused. Of course, the evidence of PW1 is to the effect that she was dragged along and she had several injuries on her body.
11. PW2 is the mother of the victim whose evidence is not of much relevance except that the incident was conveyed to her soon after the incident had occurred and she and PW1 had gone to the Police station and laid the complaint. But the fact remains that since the information was conveyed immediately after the incident, her evidence may fall within the category of Res gestae.
Crl.A. No.84/2006 -12-
12. PW1 was examined by PW3 who issued Ext.P2 certificate. PW3 both in his evidence and in Ext.P3 certificate has clearly stated that there is evidence of vaginal penetration.
13. In the decisions relied on by the learned counsel for the appellant it was held as follows:
" Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). it is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See S.P. Kohli (Dr) v. High Court of Punjab and Haryana.] In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no Crl.A. No.84/2006 -13- bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less Crl.A. No.84/2006 -14- forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. Labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 of IPC. "
14. A reading of the decision does not actually disclose the entire facts of the case and it is difficult to Crl.A. No.84/2006 -15- understand under what context the above observation was made. However in the instant case, the evidence of PW3 coupled with the entry in Ext.P2 that there is evidence of vaginal penetration has not been challenged in cross examination. It was not suggested to him that the findings so entered by him and the statement made by him is not supported by any material or that it is factually incorrect going by the entries in Ext.P2 certificate. Therefore, the result is that the evidence of PW3 taken along with evidence of PW2 remain unchallenged. Therefore the claim that there is no penetration cannot be accepted.
15. One cannot omit to note that the FIS has come into existence within a short span of the incident and the victim was medically examined also within a very short span of time. It is extremely difficult therefore to come to the conclusion that there was any manipulation or there was any false implication.
Crl.A. No.84/2006 -16-
16. One has necessarily to consider the defence evidence also. At the time of questioning under Section 313 of Cr.P.C., the accused had a case that he, on the relevant day, he was playing cards in his house. In order to establish the said fact, he had examined DW1. However, DW1 would say that they were playing cards in the house of one Kumar. Therefore, the evidence of DW1 is of no help to the appellant.
17. The evidence of PW1 does not suffer from any infirmities. There is nothing to show that the child had any reason to falsely implicate the accused. Her evidence seems to be natural and convincing. There is a ring of truth about the same. Of course, she might have exaggerated a little bit but it is natural in such cases. But her evidence in court is in tune with her statements in Ext.P1. Ext.P1 therefore substantially corroborates her evidence in court. No contradictions or inconsistencies could be brought out in cross examination of PW1. Therefore, there is unimpeached, Crl.A. No.84/2006 -17- convincing, sterling evidence of PW1 regarding the incident.
18. Further, as rightly pointed out by the learned Public Prosecutor that lower court has chosen to accept the evidence of PW1 and as rightly noticed by the learned Public Prosecutor that court had occasion to watch the demeanor of the witnesses. Unless cogent and convincing reasons are shown as to why the victim should be disbelieved, her evidence cannot be rejected. It is well settled by now that the prosecutrix is not to be treated as an accomplice but is in the position of an injured witness whose evidence is entitled to considerable weight. Applying the standards required to assess the evidence of prosecutrix, one has necessarily to observe that it passes all the test. The court below has rightly accepted the evidence of PW1. When the evidence of PW1 is viewed in the light of medical evidence and forensic evidence, there can be little doubt regarding the prosecution version of the incident. The court below was therefore, justified in come into the conclusion that the Crl.A. No.84/2006 -18- offence under Section 376 has been made out.
19. However, one fact remains to be considered whether the court was justified in holding the accused guilty of the offence punishable under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. In the FIR there was no allegation regarding the commission of offence under the Act. It seems that a report was filed during investigation regarding the same. In order to attract the said provision, it is trite that the offence should have been committed by the accused knowing fully well that the victim belonged to the Scheduled Caste/Scheduled Tribe and that with the intention of committing an offence against such a member i.e., there should be racial prejudice. Such an ingredient is not proved in the instant case. Therefore the court may not be right in convicting the accused for the offence punishable under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. Crl.A. No.84/2006 -19-
Therefore, while setting aside the conviction and sentence of the accused for the offence punishable under Section Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, the conviction and sentence passed by the court below for the offence punishable under Section 376 stands confirmed.
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P.BHAVADASAN, JUDGE ds //True copy// P.A. To Judge