High Court Kerala High Court

Kunhumuhammed vs State Of Kerala on 19 June, 2007

Kerala High Court
Kunhumuhammed vs State Of Kerala on 19 June, 2007
       

  

  

 
 
  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
                  ---------------------------------------------
                        Crl.R.P.No.950 of 1999
                  ---------------------------------------------
               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

CRRP950/99 Page numbers

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

CRRP950/99 Page numbers

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

CRRP950/99 Page numbers

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