IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1722 of 2003()
1. DILEEPAN,
... Petitioner
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/07/2009
O R D E R
M.N. KRISHNAN, J.
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CRL.A.NO.1722 OF 2003
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Dated this the 30th day of July, 2009
JUDGMENT
This is an appeal preferred against the conviction and
sentence passed by the Additional Sessions Judge, Fast Track
Court No.I, Manjeri in S.C.No.147/2001. The accused was
charge sheeted for the offences under Sections 451 and 376
of the I.P.C and had been convicted thereunder and
sentenced to undergo 10 years imprisonment under Section
376 and two years imprisonment under Section 451 and the
sentences are directed to run concurrently. He was also
liable to pay the fine of Rs.50,000/= under Section 376 and
Rs. 1,000/= under Section 451 of the Cr.P.C. Default
sentence had also been awarded. It is against that decision,
the accused has come up in appeal.
2. The points that arise for determination in the appeal
are (1) whether there are sufficient evidence to hold the
accused guilty under Sections 376 and 451 of the Cr.P.C. (2)
In case of guilt, whether the sentence awarded is proper?
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3. Yet another unfortunate incident in the restless
society which has resulted in the registration of this crime
and prosecution. The prosecutrix and the accused are the
children of two sisters. The prosecutrix was aged 17 years
at the time of the incident. It is the case of the prosecution
that on 24.2.1999 while she was taking her bath in the
bathroom, her cousin came there and opened the door and
committed sexual assault on her against her consent and
thereby has committed the offence of rape.
4. The defense appears to be that fabrication of a
false case on account of the enmity with respect to some
property dispute. The offence of rape is a grievous offence
which cuts at the root of the society and further destroys a
family including the life of a poor victim.
5. The courts have to be guided by principles while trying
to decide the case under Section 376 of the I.P.C. The Apex
Court had made it very clear that even uncorroborated
evidence of prosecutrix can be accepted to convict the
accused in a case. In order to ensure avoidance of a false
case, the courts always consider the medical evidence also
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as leak proof method to find out whether the accused is guilty
or not.
6.Let me first to analyse the medical evidence before
going into the oral testimony of the prosecutrix. The alleged
incident is said to have taken place in the early ours of a day
while the prosecutrix was taking her bath. Ext.P3 is the
first wound certificate issued and PW4 is the doctor who had
examined her. The wound certificate – Ext.P3 would reveal
that the girl sustained as many as ten injuries on the body
and other injuries on the hymen and labia minora. Superficial
injuries seen on the face would reveal that it is a nail mark.
There was also a nail mark on the right jaw. Semi lunar
marks on the lower part of angle of left jaw and an abrasion
of 0.5cm long in the lip, contusion of 2×2 cm on the left
breast, tenderness on the right breast. Linear abrasion of
1.5 cm on the forearm, abrasion on the scalp etc. The vagina
admits one finger. The injuries seen on the private part are
contusion on the labia minora and a small tear on the left
side of the hymen.
7. PW4 is the doctor, who had issued Ext.P3. Her
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evidence would reveal that the girl was brought during the
night hours with a complaint of fever etc. She was examined
and found to have some superficial injuries on the body of the
girl and immediately after the mid night she was admitted in
the hospital. The first consultation was done from the
house and at that time, the doctor had noted the injury and
subsequently it has been re-recorded when she had been
examined from the hospital. It is deposed by her that all
injuries of this nature could be caused if the girl was
subjected to rape.
8. In the cross examination, materials were attempted
to be bought out to hold that she is not speaking the truth.
To a specific question, she had clearly answered that in the
wound certificate she had copied the injures noted by her at
the time of her first examination. She would also depose
that she had examined the girl after two or three days of
the alleged incident and it may take 2-3 days for creation
of the reddish lunar colour. She would depose that the
wounds mentioned in Ext.P3 may take 4 or 5 days to
disappear. She had reiterated that she had seen the tear of the
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hymen.
9. The learned counsel for the appellant had brought to
my notice the certificate issued by DW1 and the document
Ext.D2. The said doctor examined her on 1.3.1999 and she
found that there were no external injuries that the hymen was
intact. When she was examined as DW1, she had deposed
about the examination and repeated what she had given in
Ext.D2. When she was cross examined, she would depose that
if she had examined the person immediately after the
incident within a day or two, the injuries would have been
visible. She said that there were no fresh injuries noted on
1.3.1999. She adds that some times, the injury might have
been healed. It is also pointed out by her that the child as
well as the mother had pointed out the marks seen on the body
of the girl. But the doctor would say that she was not able to
see any injury on the breast. As far as the injuries on the
breast are concerned, even going by Ext.P3, there are only
tenderness and contusions and the examination is done
about 5 days after the alleged incident and therefore it may
have faded out. There is no virtual conflict between the
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evidence of PW4 and DW1. PW4 had the opportunity to see
the patient immediately i.e, within 2 days whereas DW1 did
get the opportunity only after 5 days. There is no motive for
PW4 to point out the injuries on a person without seeing it.
So, the medical evidence available in this case indicates the
following:
10. That the girl had been subjected to an attack. There
had been injuries on her private parts as well as her face, lip,
back etc. It has to be remembered that the scene of
occurrence is a small bathroom. In that, there is a platform
which is intended for washing the cloths. Besides this, there
was a bucket full of water. It is the case of the prosecutrix
that the accused opened the latch, entered the room and
caught hold of her and committed rape on her. She had
deposed that she had fallen and she also speaks about the
sitting position in which she was made to sit and the other
acts regarding sexual abuse. So, it is in this background, the
injuries have to be viewed. The injuries present on the body
indicate the genuineness of the version. So far as the offence
of rape is concerned, it may have to be stated that in small
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children, the hymen is not usually ruptured, but may become
red and congested along with the inflammation and bruising
of the labia. If considerable violence is used, there is often
laceration of fourchette and perinaeum. We find that labia
minora as well as the hymen is injured and therefore an
offence of rape can be easily said to have taken place. Now
it is in this background one has to analyse the evidence of
prosecutrix-PW1.
11. PW1 a poor girl who is not in a position to express
freely and there is also some hearing impairments for her.
Her mother had left her in the house as she had to visit the
hospital to admit her son. At that time, the mother of the
accused and sister-in-law were asked to look after her and
when the father returned from the hospital, they had gone
back to her residence and it is in that morning, unfortunately
the incident alleged to have taken place. The girl as PW1
had deposed that she had entered the bathroom and poured a
mug of water on her head. It was at that time the accused
had opened the latch and removed his clothes and put it on
the door. Thereafter it is stated that the accused had bitten her
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lips which resulted in the flow of blood. She attempted to
raise a hue and cry. Her mouth was shut and thereafter he
had molested her and she was pushed back to the wall and in
that process her hand got injured. Thereafter he had kicked
the bucket and the girl was forced to the ground. Thereafter
an attempt to widen her thigh and thereafter it is stated that
the act was committed and blood oozed out from her vagina
and there was also flow of semen and he went back
threatening that he would kill her if she states it to anybody.
12. She had been cross examined at length. Northing
serious has been brought out in the cross examination and she
had deposed that there were marks on her breast and blood
oozed out from the lips. She had also spoken about the fact
that she had shown these injuries to the doctor. It is also her
case that the accused had taken his dothi and left the place.
Thereafter the mother of the accused came and she also told
her not to divulge the matter to anybody.
13. PW2 is the mother of the victim. She had also
elaborately spoken about the matter. She is not an eye witness
and had spoken about what had transpired thereafter and she
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had denied the suggestion that there was no enmity between
the families so as to foist a false case. PWs 3, 5,6 and 7
are all official witnesses and PW9 is the person who had laid
the charge.
14. The learned counsel for the appellant would submit
that the chemical examiner’s report – Exts.P8 and P9 does not
support the case of the prosecution. Ext.P9 is the chemical
analysis report with respect to Vagina swab which would show
that semen and spermatozoa were not found in the vaginal
swab. Ext.P8 which relates to the cloth of the accused also.
Item No.3 is the cloth which was alleged to be worn at the
time of the incident and the prosecutrix had stated that the
accused had taken it back. In that analysis, it had been found
that human blood was there. Human blood was not detected
in the shirt or the towel. It has to be remembered that the
incident had taken place in the morning hours at 6.15 a.m on
24.2.1999. The factum is reported on 26.2.1999. The
seizure etc takes place only thereafter. Therefore, non
presence of spermatozoa on the vaginal swab does not ipso
facto indicate that no rape had taken place at all. The
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materials available would show that the there had been an
attack on this girl and that her private parts namely the hymen
and labia minora had sustained abrasion or injuries. Unless a
penetration is effected, one cannot say whether there was
complete penetration. It can be said that evidence is sufficient
to hold that there is partial penetration at least. Under the
provisions of the I.P.C, a partial penetration is sufficient to
constitute an offence of rape under Section 376.
15. So, from the materials available here, I am inclined
to hold that on the unfortunate morning on 24.2.1999 the
accused had entered into a bathroom where the prosecutrix
was taking her bath, had physically assaulted her for the
purpose of committing the rape and thereafter he had
committed rape on her thereby satisfying the ingredients to
constitute the offence of rape. It is unfortunate that a brother
had raped a sister and when a human being losses the
rationality, his conduct would be worse than that of an animal
and that is why scholars say that human being is a rational
animal. When rationality is lost, he forgets the society, forgets
the relationship and commits henus acts which even an
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animal may not do.
16. Now turning to the question of sentence. It is
submitted by the learned counsel that the accused is aged
about 40 years now and he has a family to be looked after and
some leniency should be shown.
17. The court below has awarded the imprisonment of
10 years under Section 376 of I.P.C. The minimum
punishment of 7 years have to be imposed unless there are
special reasons. It is absent here. I am inclined to reduce the
imprisonment from 10 years to 7 years and retain the
punishment under Section 451 with a direction that sentences
shall run concurrently. I am inclined to reduce the fine
amount from Rs.50,000/= to Rs.30,000/= and on realisation
of the fine amount, let the amount of Rs.15,000/= be given
to the prosecutrix -Pw1.
18. In the result, the criminal appeal is disposed as
follows:
1. The finding of guilt under Sections 376 and 451 of
I.P.C is confirmed.
2. The sentence is modified and the accused is
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sentenced to undergo R.I for a period of 7 years and to pay a
fine of Rs.30,000/= for the offence under Section 376 of the
IPC and to undergo 2 years imprisonment under Section 451 of
IPC and to pay a fine of Rs.1,000/=. The sentences shall run
concurrently. If the fine amount is realised, let Rs.15,000/= be
given to the prosecutrix – PW1 and in default of payment of the
fine, there will be further imprisonment for a period of three
months under Section 376 and one month under Section 451 of
the IPC. The accused will be entitled to set off as contemplated
under Section 428 of the Cr.P.C
M.N. KRISHNAN, JUDGE
cl
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