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.
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Crl.Appeal No.1572 OF 2005
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Dated this the 22nd day of September, 2009
J U D G M E N T
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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