High Court Kerala High Court

Ayyappan vs State Of Kerala on 22 September, 2009

Kerala High Court
Ayyappan vs State Of Kerala on 22 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1572 of 2005()


1. AYYAPPAN, S/O. VELU,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

                For Petitioner  :SRI.K.P.MUJEEB

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :22/09/2009

 O R D E R
    K. BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ.
               ----------------------------------------
               Crl.Appeal No.1572 OF 2005
               ----------------------------------------
        Dated this the 22nd day of September, 2009

                       J U D G M E N T

~~~~~~~~~~~

Balakrishnan Nair, J.

The appellant was the accused in Sessions Case

No.187/2003 on the files of the Additional Sessions Judge, Fast

Track Court No.I, (Ad hoc), Manjeri.

2. The case of the prosecution in brief is as follows:

The accused, who is none other than the father of PW1,

committed rape on her on three successive days from 11.5.2001

against her will and without her consent and she became

pregnant. The offence took place while they were residing in a

rented house bearing door No.25/123 of Perinthalmanna

Municipality. On those days, the mother of PW1 was away.

PW1’s uncle, PW2, came to her house and found her pregnant.

An young child was also found there. As her marriage did not

take place, PW2 questioned PW1, how she became pregnant.

On her request, PW2 took her to his house and in the night she

Crl.Appeal No.1572/2005 2

narrated the harrowing experience, she had at the hands of her

father from 1995 onwards. She has to undergo medical

termination of pregnancy twice and she gave birth to two

children out of her relationship with father, which was against

her will and consent. Next day, that is on 8.1.2002, PW2 took

PW1 to the Perinthalmanna Police Station and the Sub Inspector

of Police recorded Ext.P1 First Information Statement and

registered Ext.P8 First Information Report. PW8, Circle

Inspector of Police, took over the investigation, which was

completed by PW9, who filed the final report before the Judicial

First Class Magistrate’s Court, Perinthalmanna. The learned

Magistrate on finding that the offence alleged against the

appellant was exclusively triable by a Court of Sessions,

committed the case to the Sessions Court, which in turn was

made over to the Fast Track Court No.1 (Ad hoc), Manjeri.

3. The appellant pleaded not guilty to the charge framed

against him for the offence under Section 376 of the IPC. The

prosecution to prove its case examined PWs1 to 10 and produced

Exts.P1 to P10 . The defence contended that sex was consensual

Crl.Appeal No.1572/2005 3

and delay is fatal to the prosecution case. But overruling the

contentions of the defence, the learned Sessions Judge found the

appellant guilty of the offence under Section 376 of the IPC and

sentenced the appellant to undergo imprisonment for life and

also to pay a fine of Rs.Two lakhs and in default he was to under

go imprisonment for a further period of five years. Feeling

aggrieved by the conviction and sentence, the appellant has

preferred this Criminal Appeal.

4. We heard Sri.K.P.Mujeeb, learned counsel for the

appellant and Sri.Noble Mathew, learned Public Prosecutor, for

the State. The learned counsel for the appellant took us through

the deposition of the witnesses and the documents produced in

this case. The learned counsel for the appellant submitted that

PW1 has consented to the relationship. She is a major and

therefore, no offence of rape will lie against him. Further, the

First Information in this case was lodged after the delay of eight

months. Therefore, the same will weaken the prosecution case

and the appellant is entitled to get the benefit of doubt. The

learned counsel also pointed out that PW3, who was stated to be

Crl.Appeal No.1572/2005 4

aware of the commissions and omissions of the accused, did not

corroborate the version of PW1. So, in the absence of

corroboration, it is unsafe to sustain the conviction based on

the solitary evidence of PW1. The learned Public Prosecutor, on

the other hand, submitted that the victim was put under fear of

death, as evident form her deposition, if she spoke about the

truth to others. Therefore, the silence or non-resistance cannot

be considered as manifestation of consent.

5. Before referring to the rival contentions, we will

presently refer to the deposition of the witnesses. PW1 stated

that up to 10th standard she has studied in Kerla. She stayed

along with her uncle, PW2, and another, in their family house.

Her parents were residing at Gudallur in Tamil Nadu. After the

examination of 10th standard, she along with her aunt and

grandmother, went to Gudalloor. Soon she was sent to study

Typewriting. After the result of the SSLC examination was

published, she joined for +1 Course. She passed +2 and joined

in a hospital as trainee to work as Health Assistant. While she

was studying for +2 course, her father started misbehaving

Crl.Appeal No.1572/2005 5

towards her. At that time, she fell in love with one

Mr.Radhakrishnan. He approached PW1’s family proposing to

marry her. After the said proposal, her father started outraging

her modesty. When she told, she will tell about it to her mother,

the appellant said he is doing it with her mother’s consent. The

misbehavior continued and he started raping her during night.

When she told her mother, it is stated, mother also told her to

oblige her father. If she does not give her consent, father used

to beat her cruelly even using his shoes. Before the public of the

locality, her father declared that she had illicit relationship with

Mr.Radhkrishnan and therefore, he is beating her. The sexual

relationship at night continued and her mother never objected to

it. While she was studying for +2, she became pregnant. She

was taken to Gudallur and the pregnancy was medically

terminated. For some time, there was no problem from the side

of her father. But, again he started his misconduct and she again

became pregnant when she was going to complete the +2 course.

This time she gave birth to a boy in Gudallur hospital. Whenever she

opposed the advances of her father, he would tell, he will kill her and

go away. He used to carry poison or knife in his hand to

Crl.Appeal No.1572/2005 6

threaten her. In the hospital records, as stated by the parents of

PW1, name of the father of the child is given as Radhakrishnan.

The above ordeal of PW1 continued unabatedly. It is not

necessary to give all the details of the misbehavior of the

appellant towards PW1. Finally, the family came back to

Perinthalmanna and started living in a rented building near the

hospital, in which PW1 was working. While so, one evening her

mother went to Gudallur along with her younger sister. Mother

was away for three days. On all the three days, the appellant

raped PW1 and she became pregnant out of the relationship,

which continued even after her mother returned. While so, PW2

came to the house of the appellant. On finding that PW1 was

pregnant though she was unmarried, PW2 enquired who is

responsible. Then she said, if he saves her, she can tell the

details. Thereupon PW2, the uncle of PW1 took her to his house

along with the child. She told the real facts regarding her

pregnancy. Next day, PW2 took PW1 to Perinthalmanna Police

Station and Ext.P1 FIR was lodged. Though the defence

extensively cross-examined her, nothing was brought out to

discredit her version. PW2 also gave evidence corroborating the

Crl.Appeal No.1572/2005 7

deposition of PW1. PW3, mother of PW1 and wife of the

appellant, turned hostile and did not support the prosecution.

PW4 is the doctor, who examined the appellant and gave Ext.P4

potency test certificate. PW5 is the doctor, who examined PW1,

immediately after the registration of the crime and gave Ext.P5

wound certificate. PW6 is the Village Officer who prepared the

scene plan and PW7 is a witness to Ext.P7 scene mahazar.

Ext.P8 FIR was registered by PW8 Sub Inspector of Police. PW9

took over the investigation and completed substantial portion of

investigation. PW10 completed the investigation and filed the

final report.

6. Going by the deposition of PW1, the contention of the

defence that she consented to the sexual intercourse cannot be

accepted. PW1 has deposed that the appellant threatened her

that in case she states the truth to anybody, he will kill her and

go away. She has also stated that PW3 also compelled her not to

tell the truth. Her mother told her that if her uncles knew about

the incident, they will kill the appellant and there will not be

anyone to look after them. So, by threat and coercion from the

Crl.Appeal No.1572/2005 8

part of the appellant and PW3, she was prevented from speaking

and she was able to move the police only when PW2, her uncle,

gave her courage and support. Therefore, the contention

regarding consent and delay raised by the defence cannot be

accepted. PW3 has turned hostile to the prosecution. But, that

was not in anyway affected the prosecution case. We believe the

version of PW1. It has got of the ring of truth and we find no

reason for her to falsely implicate her father. No girl will do

that. We notice that the learned Sessions Judge has rightly

found the appellant guilty of the offence under Section 376 of

the I.P.C. relying on the evidence of PW1. Having regard to the

facts of the case, appropriate sentence has been imposed on him.

We find no reason to interfere with the same also.

In the result, the Criminal Appeal fails and it is dismissed.

(K.BALAKRISHNAN NAIR, JUDGE)

(P.Q.BARKATH ALI, JUDGE)

ps