IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 310 of 2002()
1. RAFEEQUE, AGED 21 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.V.V.RAJA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :14/10/2008
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
Crl.R.P. No.310 of 2002
--------------------------------------
Dated this the 14th day of October, 2008.
ORDER
On a charge of committing rape on a six year old girl on 2.10.1992
at about 4.30 p.m. in House No.II/155 of Kanhirappuzha Panchayat, revision
petitioner faced trial in the court of learned Assistant Sessions Judge,
Ottappalam for offence punishable under Section 376(2)(f) of the Indian Penal
Code (for short, ‘the Code). Learned Assistant Sessions Judge found revision
petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment
for seven years and payment of fine of Rs.10,000/-. Appeal preferred by him
was dismissed. Hence, this revision.
2. Heard.
3. Learned counsel for revision petitioner submitted that
there is no evidence to prove the charge against the revision petitioner. He also
submitted that the trial court had not examined the capacity of PW3 to give
evidence. According to the learned counsel, in the way PW3 has given wavering
evidence it is clear that she was not capable of giving proper evidence.
4. Though PWs 4 to 7 were examined to support the
case of prosecution, they did not speak in favour of prosecution. PW4, father of
the alleged victim refused to support and claimed that he took PW3 to the
Crl.R.P.No.310/2002
2
hospital since PW3 told him that when she went to the house of Kurikkal
Muhammed something happened to her private part and she felt pain. PWs 8
to 10 are attestors in mahazars for seizure of the cloths of revision petitioner,
PW3 and the certificate issued by PW12, Executive Officer of Panchayat to
prove the age of PW3. PW11 gave intimation to the police on PW3 being
admitted in the hospital. PW14 recorded the statement of PW3 at the hospital.
PW15 prepared Ext.P6, mahazar for scene of occurrence. He arrested revision
petitioner and seized his cloths (MOs 2 to 4) as per Ext.P8. Ext.P14 is the report
of chemical examination which states that test for determination of blood and
semen on MOs 1 to 4 (clothes of PW3 and revision petitioner) were negative.
PW1 conducted potency test of revision petitioner and issued Ext.P1. PW2
examined PW3 and issued Ext.P2. Though PW2 is said to have collected
vaginal swab and smear and nail clippings of PW3, the same are not seen sent
for chemical examination. Evidence in that way is lacking. What remained is
only the evidence of PW3, victim of alleged rape. She was aged 10 years at
the time examination. Learned Assistant Sessions Judge has recorded that he
questioned PW3 regarding her capacity to understand questions and give
rational answers and was satisfied that she is capable of giving evidence.
5. Though PW3, pointing to revision petitioner who was
in the box stated that “he did something on me”, she did not stand by that
statement in further examination. She did not say what the revision petitioner
had allegedly done to her and the Public Prosecutor who conducted the
Crl.R.P.No.310/2002
3
prosecution wanted PW3 to say whether she knows or could speak anything
further about the incident. She claimed that she does not know anything and
cannot say anything also. Thereon she was permitted to be confronted with her
previous statement. To the suggestion on behalf of the prosecution that she is
refusing to speak the entire things in order to save revision petitioner, she
answered in the affirmative. In cross-examination by defence counsel, though
she gave certain hints as if it was the revision petitioner who had done
“something” on her, she answered in the affirmative when it was suggested that
somebody else had taken her and did something. Thus, evidence of PW3
appeared to be wavering as to whether revision petitioner is involved in the
incident and at any rate as to what exactly was done by him.
6. Learned Public Prosecutor submitted that the fact
that PW3 was aged 10 years at the time of examination has to be taken note of.
Certainly allowance has to be given to that fact while considering the evidence
of PW3. But, in a case where there is no other corroborative evidence,
question is whether evidence of PW3 alone is sufficient. To PW2, what PW3 is
said to have told is that somebody had done something on her. Had PW3
referred to the revision petitioner at that point of time, certainly that could have
been taken as a corroborative material. Ext.P14 shows that chemical
examination for identification of blood and semen on MOs 1 to 4 clothes of
PW3 and revision petitioner produced negative result. The vaginal swab and
smear are not tested for the presence of blood or semen. None of the
Crl.R.P.No.310/2002
4
prosecution witnessess have given evidence to the effect that PW3 was seen in
the company of revision petitioner at the relevant time. Evidence of PW3 itself
is not clear as to what had happened. In these circumstances, I am inclined to
accept the contention that in the absence of corroboration, evidence of PW3 by
itself is not sufficient to warrant conviction of the revision petitioner. Sentence
imposed on him cannot therefore be sustained.
Revision Petition is allowed. Conviction and sentence
imposed on the revision petitioner are set aside and he is acquitted of the charge
made against him giving him benefit of doubt. Bail bond is cancelled.
Crl.M.P.No.2265 of 2002 shall stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
Crl.R.P.No.310/2002
5
Thomas P.Joseph, J.
Crl.R.P.No.310 of 2002
ORDER
14th October, 2008