IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 454 of 2004(B)
1. JIJO, S/O. KUNJUMON, PODIPPARA HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/08/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.No. 454 OF 2004
===========================
Dated this the 12th day of August,2010
ORDER
Revision petitioner, the accused in
S.C.40/1996 on the file of Assistant
Sessions Court, Thiruvalla was convicted and
sentenced to rigorous imprisonment for
seven years and fine of Rs.1,000/- and in
default rigorous imprisonment for six
months for the offence under Section 376 of
Indian Penal Code. Petitioner challenged
the conviction and sentence before Sessions
Court, Pathanamthitta in Crl.A.51/1998.
Learned Additional Sessions Judge on re-
appreciation of evidence confirmed the
conviction and reduced the sentence to
rigorous imprisonment for four years
retaining the fine. Revision is filed
Crl.R.P.454/2004 2
challenging the concurrent conviction.
2. Prosecution case is that on
15/10/1995 at about 2.30 p.m, PW1 the
prosecutrix was proceeding along Pullukuthi
Neelampara public road to call her father, who
was working in the nearby property. On the way
she found petitioner and PW6 Haridas sitting
on the side of the road. Petitioner called her
and followed her. When PW1 reached near the
culvert, petitioner caught her from behind and
forcibly took her into the culvert and
committed rape on her. PW3, her mother searched
for PW1, as she did not reach the house,
though PW4 the father reached there. PW3 found
the petitioner running from the culvert and
also PW1 lying inside the culvert. She dragged
her out. By that time PW2, the mother of PW4
also reached there. They took PW1 to the
hospital from where PW7 the doctor examined
her on 17/10/1995 and prepared Ext.P4 wound
Crl.R.P.454/2004 3
certificate. PW11 Head Constable recorded
Ext.P1 FI statement of PW1 on 16/10/1995, at
12.30 p.m and under Ext.P8 FIR, crime
No.163/1995 was registered by PW12 under
Section 376 of Indian Penal Code. PW13
investigated the case and PW14 successor Circle
Inspector lodged the charge which was taken
cognizance by the learned Magistrate and
committed to the Sessions Court. Learned
Sessions Judge made over the case for trial
to Assistant Sessions Court, Thiruvalla.
Petitioner pleaded not guilty, when the charge
for the offence under Section 376 of Indian
Penal Code was framed and read over to him.
Prosecution examined 14 witnesses and marked
Exts.P1 to P8 and identified Mos.1 to 3. When
petitioner was called upon to enter on his
defence and adduce evidence, after questioning
him under Section 313 of Code of Criminal
Procedure and hearing the prosecution and
Crl.R.P.454/2004 4
defence and finding that it is not a case
without any evidence, petitioner examined Dws.1
and 2. Learned Assistant Sessions Judge
thereafter on appreciation of the evidence
found the petitioner guilty. He was convicted
and sentenced for the offence under Section 376
of Indian Penal Code. Learned Additional
Sessions Judge in the appeal filed by the
petitioner re-appreciated the evidence and
confirmed the conviction and reduced the
sentence to rigorous imprisonment for four
years. Revision petitioner would contend that
courts below did not properly appreciate the
evidence and on the evidence, the conviction is
unsustainable.
3. Learned counsel appearing for
the petitioner and learned Public Prosecutor
were heard.
4. Argument of the learned counsel
is that prosecution case should have been
Crl.R.P.454/2004 5
disbelieved as it is highly improbable. It was
pointed out that as per Ext.P5 scene mahazar
the culvert is having only a height of 53 cm.
and width of 1.02 metre and evidence of PW1
that she was taken into that culvert by the
petitioner forcibly, undressed her and
committed rape is not at all probable. Learned
counsel argued that Ext.P4 wound certificate
with the evidence of PW7 the doctor establish
that she did not sustain any injury, which
cannot be the case, if she was taken inside the
culvert by force and that too without her
consent and thereafter in spite of resistance
petitioner laid on her and then committed
rape. It is therefore argued that evidence of
PW1 should not have been believed. Learned
counsel argued that incident allegedly
occurred inside the culvert where two persons
together cannot enter as deposed by PW13 and
there are houses near to the scene of
Crl.R.P.454/2004 6
occurrence and if PW1 had cried as claimed by
her, neighbouring residents would have heard
the cry and in such a place petitioner would
have dared to commit a heinous offence. It
is also argued that evidence of PW7 the doctor
with Ext.P4 wound certificate does not
establish any recent sexual intercourse when
PW1 was subjected to examination. Learned
counsel therefore argued that case of rape
should not have been accepted by the courts
below. Learned counsel also argued that
though PW7 claimed that vaginal swab and smear
were collected and sent for examination, the
certificate of chemical analysis was not
produced before the court and that could only
be for the reason that it did not disclose
presence of spermatozoa and if there was rape
as claimed by PW1, there should necessarily be
presence of spermatozoa on the vaginal smear
and swab and therefore, courts below should
Crl.R.P.454/2004 7
have acquitted the petitioner. Learned
counsel finally submitted that in any case,
considering the fact that incident took place
in 1995 and petitioner was only 16 years at
that time leniency may be shown, pointing out
that PW1 subsequently married and is now
leading a happy married life.
5. Learned Public Prosecutor pointed
out that Assistant Sessions Judge, who had the
opportunity to note and appreciate the
demeanour of PW1 had found her evidence
trustworthy and reliable. It was also pointed
out that there is no improbability in the
evidence of PW1 and her evidence inspires
confidence and was corroborated by the evidence
of Pws.2 and 3 and in such circumstances, there
is no reason to interfere with the conviction
and sentence.
6. PW1 the prosecutrix unveiled the
entire incident with all the minute details. In
Crl.R.P.454/2004 8
Ext.P1 FI statement itself she has disclosed
what transpired while she was walking along the
road and finding petitioner along with PW6
sitting on the side of the road. Evidence of
PW2 the mother-in-law of PW3 corroborates the
evidence of PW3 on material aspects. Evidence
of PW2, the grand mother of PW1 also
corroborates the evidence of PW1 on certain
aspects. Learned Assistant Sessions Judge and
learned Sessions Judge found the evidence of
Pws.1 to 3 credible and trustworthy. Question
is whether appreciation of evidence was
perverse and whether conclusions arrived by
the courts below could be arrived on the
evidence on record.
7. PW1 was aged only 16 years at the
time of incident in 1995 as proved by Ext.P6,
her school admission register, which was not
disputed at the time of recording the evidence.
Though learned counsel appearing for the
Crl.R.P.454/2004 9
petitioner vehemently argued that the incident
as spoken to by PW1 is highly improbable,
taking into consideration the height and width
of the culvert and absence of injuries on the
body of the victim, on appreciating the entire
evidence, in the proper perspective, I cannot
agree with the submission. Though height of
the culvert is only 53 cm., that does not make
the prosecution case or the evidence of PW1
improbable.
8. Though it was argued that absence of
injuries on the body of PW1 improbabalise the
version of PW1, evidence establish that inside the
culvert there was no rock or stone and instead
there was only sand and mud. In such circumstances
absence of injury on the body of PW1 does not
falsify her evidence. Though learned counsel argued
that for the failure of the prosecution to produce
the report of chemical analysis of the vaginal swab
and smear, non production of the report could only
be for the absence of spermatozoa found , even if
Crl.R.P.454/2004 10
it is taken that there was no sperm found on the
vaginal swab or smear, that will not make the
evidence of PW1 unreliable or untrustworthy. To
constitute an offence under section 376 of Indian
Penal Code, it is not the law that semen should
eminate from the male partner. The penetration
itself will be sufficient to constitute an offence.
Evidence of PW1 establishes that there was
penetration.
9. On a proper analysis of the evidence of PW1
the evidence was found trustworthy, credible and
reliable. Her evidence has been further
corroborated by the evidence of PW3. Though minor
contradictions were pointed out by the learned
counsel appearing for the petitioner, they are not
fatal. Relying on the decision of the Apex Court in
Dinesh Jaiswal v. State of Madhya Pradesh (2010) 3
SCC 232), Bibhishan v. State of Maharashtra (2008)
3 SCC (Cri) 163), and Sadashiv Ramrao Hadbe v.
State of Maharashtra and another(2007) 1 SCC (Cri)
161 it was argued that absence of materials to
prove rape by medical evidence, prosecution case is
Crl.R.P.454/2004 11
to be disbelieved, I cannot agree with the
submission on the facts of the case. The evidence
of PW1 corroborated by the evidence of PW3 and to
certain extent by the evidence of PW2, establish
the commission of offence. It is to be born in mind
that even the defence case was that PW1 had sexual
intercourse on that fateful day. What was suggested
by the petitioner to the witness was that PW1 had
an affair with Biju, her cousin brother and
petitioner and PW6 taunted Biju on this account
and on that fateful day they found Biju proceeding
towards the house of PW1 and they followed him and
on reaching the house, they went to the back side
of the house and there they found PW1 engaged in
sex with Biju and they made hue and cry and people
gathered there and because of the incident the case
was foisted against the petitioner. At the outset
itself the defence story is so improbable that it
cannot be believed. Evidently the case of sexual
intercourse with Biju was alleged to explain the
sexual act to which PW1 was subjected to. That
strengthens her evidence. Moreover, even if it is
Crl.R.P.454/2004 12
taken that PW1 was having an affair with Biju, it
is none of the petitioner’s concern and even if it
is taken that petitioner interfered with in that
relationship, it is improbable to believe that PW1
or PW3 the mother or PW4 the father would foist a
case tarnishing the future of their daughter. In
the Indian society chastity of a girl is treated as
paramount importance. No parent will be prepared
to risk the honour and the fame of the family or
daughter taking the risk of foisting a false case
that their daughter was subjected to rape. So
also, no girl at the age of PW1 would falsely
allege that she was subjected to rape and that too
for the reason that petitioner and his friend had
insulted Biju with whom she had an alleged
relationship. It is to be born in mind that
whatever be the fate of the case, the allegation of
rape is affecting the honour of the family as well
as the name and fame of PW1. In such
circumstances, I have no hesitation to hold that
learned Assistant Sessions Judge and learned
Addl.Sessions Judge appreciated the evidence in the
Crl.R.P.454/2004 13
proper perspective and found that petitioner
committed rape on PW1. Conviction of the
petitioner for the offence under section 376 of
Indian Penal Code is therefore legal and correct
and warrants no interference.
10. Then the only question is regarding the
sentence. Though learned Assistant Sessions Judge
awarded rigorous imprisonment for seven years,
learned Addl.Sessions Judge reduced the sentence to
rigorous imprisonment for four years. The question
is whether the sentence is to be further modified.
Though learned counsel argued vehemently that
considering the time lag and the age of the
petitioner, sentence is to be reduced and also
shown a medical certificate that petitioner was
involved in a road traffic accident on 31.7.2010
and sustained grievous hurt, I find these
circumstances insufficient to interfere with the
sentence. An offence of this nature warrants
proper punishment. Still in the interest of
justice the sentence is reduced to rigorous
imprisonment for three years.
Crl.R.P.454/2004 14
Revision is allowed in part. Conviction of the
petitioner for the offence under section 376 IPC is
confirmed. Sentence is modified by reducing the
substantive sentence to three years from 4 years
awarded by the learned Additional Sessions Judge in
Crl.A.51/1998 maintaining the fine. Petitioner is
directed to appear before Assistant Sessions Judge
on 15.9.2010. Assistant Sessions Judge is directed
to execute the sentence.
M.SASIDHARAN NAMBIAR
JUDGE
uj/tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006