IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 950 of 1999()
1. KUNHUMUHAMMED
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :19/06/2007
O R D E R
K.R.UDAYABHANU, J
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Crl.R.P.No.950 of 1999
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Dated this the 19th day of June, 2007
O R D E R
The revision petitioner stands convicted for the offence
under Section 376 IPC and convicted, as modified by the
appellate court, to undergo simple imprisonment for three years
and to pay a fine of Rs.5,000/- and in default, to undergo simple
imprisonment for six months.
2. The prosecution case is that the accused committed
rape on PW1, a girl of less than 16 years of age, on 28.6.1995 at
about 10.30 a.m. in her residence at Anapara Silver Jubilee
Colony.
3. The evidence adduced in the matter consisted the
testimony of PWs’ 1 to 10, Exts. P1 to P15 and Mos’ 1 to 4. PW1
the defacto complainant/the victim as well as PW2 have testified
with respect to the incident. PW3 has deposed that he saw the
accused entering the house of the victim and closing the door
and as he felt suspicious he followed him and saw the accused in
the act and on seeing PW3, the accused fled from the scene of
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occurrence. The matter was reported on 30.6.1995 i.e., on the
second day of the incident. Of course, the examination of the
doctor, PW9, and Ext. P5 certificate of examination did not
disclose any injuries on the private parts. The dress of the
accused and that of the defacto complainant was sent for
chemical analysis. But the report was negative. The evidence of
PWs’ 1 and 2 did not contain any material discrepancies and no
contradictions or omissions with respect to the previous
statements. In the circumstances, I find that the evidence as to
the incident appears convincing as held by the court below.
4. The contention of the counsel for the revision
petitioner is that as per Ext. P7 birth certificate of PW1 her date
of birth is mentioned as 4.9.1979 and hence, she would be just
aged 3 months less to attain 16 years. It is pointed out that the
birth was registered only on 28.5.1984 as evidenced from the
birth certificate. PW11, the secretary of the Panchayath, who
issued Ext. P7 certificate has deposed that if the birth is
registered after one year, sanction of the RDO is required. He
has testified that there was RDO’s sanction. It is also pointed out
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that PW2, the mother, has not mentioned the year of birth as she
could not remember the same. I find that she has recollected
that the girl was born in the Malayalam month of Chingam in the
date of 22nd. All the same, I find that nothing has been brought
out to indicate that age mentioned in Ext. P7 is incorrect.
Although, evidently there is no resistance, even consent could
not help the accused as the girl is aged under 16 years vide
sixthly of Section 375 IPC. In the circumstances, I find no
reasons to to interfere in the findings of the court below. The
prosecution case stands established beyond reasonable doubt.
5. So far as the sentence is concerned, the counsel for
the revision petitioner has pleaded for leniency pointing out that
the incident has taken place more than ten years back and that
so far the accused has been facing the criminal proceedings and
he is right now aged 62 years. It is also pointed out that he had
undergone pretrial detention for two months. In the
circumstances, I find that the sentence is liable to be modified.
Sentence is modified to imprisonment already undergone and to
pay a fine of Rs.50,000/- and in default, to undergo simple
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imprisonment for six months. The fine amount, if realised, shall
be paid to PW1, the victim. Revision petitioner is granted three
months’ time to remit the fine amount. The revision petitioner
shall appear before the court below on 20.9.2007 to receive the
sentence.
The criminal revision petition is disposed of as above.
K.R.UDAYABHANU,
JUDGE
csl