IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 635 of 2001()
1. STATE
... Petitioner
Vs
1. UMESHAN. V
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.P.V.MURUGHAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/06/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.635 OF 2001
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Dated 24th June, 2010
O R D E R
Chief Judicial Magistrate, Kasargod
in C.C.19/1999 acquitted the delinquent
juvenile, who was alleged to have committed
offences under Sections 376 and 302 of
Indian Penal Code and set him at liberty.
The order of acquittal is challenged by the
State in this revision filed under Section
38 of Juvenile Justice Act, 1986.
Respondent is the delinquent juvenile.
Prosecution case is that deceased
Prasanthi, daughter of PW1 and sister of
Pws.2 and 3 had gone to take bath to the
nearby river from the residential house, at
about 3 p.m on 27/6/1999. Prasanthi was
aged less than 14 years at that time. Pws.1
CRRP 635/01
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to 3 were in the house. After some time, PW2
had gone along the paramba. He found deceased
Prasanthi lying on the ground and the
delinquent juvenile lying on her body. Finding
PW2, the respondent ran away PW2 called PW3
aloud to reach there and followed the
respondent. Respondent was caught, when he
could not run because of the marshy land. He
was taken back to the place where Prasanthi’s
body was found. By that time Pws.1 and 3 also
reached there. PW2 entrusted the respondent to
PW3, who tied him to a pillar of their house.
PW1 called PW4, a relative and neighbour so as
to take Prasanthi to the hospital. PW1 took
her in a jeep to Government District Hospital,
Kanhangad. PW8, doctor examined her and found
that she was dead. The body was kept at
mortuary and intimation was given to the
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police. PW1 furnished Ext.P1 FI statement,
which was recorded by Assistant Sub Inspector
of Police, Bekal Police Station at 5.15 p.m on
the same day based on which crime No.189/99 was
registered under Ext.P11 FIR. PW15, Circle
Inspector on getting information of the
commission of the offences over the telephone
from Bekal police station, reached the scene of
occurrence took over the investigating and
prepared Ext.P2 scene mahazar and seized Mos.1
to 8 and Mos.13 and 14 from the scene.
Respondent who was found tied on the pillar of
the house of PW1, was arrested and under Ext.P3
mahazar the rope with which respondent was tied
was seized. Under Ext.P9 mahazar, Mos.9 and 10
dresses worn by the respondent were seized on
reaching the police station. At about 10 p.m he
took the respondent to Medical College Hospital
CRRP 635/01
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and submitted a requisition to conduct a
potency test. It was conducted. From the
Medical College Hospital mortuary on 28/6/1999,
PW15 conducted the inquest and prepared
Ext.P4 inquest report and seized Mos.15 to 17,
the bangles found on the hands of the
deceased. He thereafter sent a request for
conducting postmortem examination. PW9
Professor, Forensic Science and Police Surgeon,
Medical College, Pariyaram on 28/6/1999 at
12.30 p.m conducted the autopsy and prepared
Ext.P6 postmortem certificate and noted the
anti mortem injuries. On conducting autopsy
PW9 found that death was caused due to manual
strangulation and there was evidence of
sexual intercourse. The loose hairs found on
the vagina were collected and pubic hairs cut
from the body of the accused and the deceased
CRRP 635/01
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were also collected and sent for examination
to the laboratory. On the request of the
investigating officer on the night of
27/6/1999 delinquent juvenile was examined by
PW9 and prepared Ext.P8 potency certificate and
also prepared Ext.P13 Medico legal certificate
with the finding that no general or genital
injury or positive signs of sexual intercourse
could be found out. Pubic hairs of the
delinquent juvenile collected was also sent for
examination. Ext.P7 report was submitted by
Scientific Assistant (Biology), Forensic
Science Laboratory, Thiruvananthapuram after
examination of the hairs to the effect that out
of five hairs which were the loose hairs
collected from the vagina of the deceased, four
hairs were human pubic hairs similar to the
sample pubic hairs collected from the
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respondent and the remaining one hair was human
scalp hair which could not be compared with any
other scalp hair, as no such sample was
furnished. After completing the investigation,
charge was laid. Accused being a juvenile, case
was enquired by the Chief Judicial Magistrate,
Kasargod in C.C.19/1999. Respondent pleaded not
guilty. On the side of the prosecution 15
witnesses were examined and 14 exhibits were
marked and 18 material objects were identified.
No evidence was adduced by the respondent.
Learned Chief Judicial Magistrate, on the
evidence found him not guilty and acquitted
him. It is challenged in this revision.
2. Learned Public Prosecutor and
Learned counsel appearing for the respondent
were heard. When the revision was posted on
16/6/2010, learned Public Prosecutor was
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heard. At the time of arguments learned
counsel for respondent was asked to support the
order of acquittal in view of the perverse
appreciation of evidence by the Chief Judicial
Magistrate. Learned counsel sought time. When
the case was posted for today, learned
counsel appearing for the respondent submitted
that mother of the delinquent juvenile wanted
the case to be transferred to another Bench.
According to the learned counsel it is because
of the apprehension that family of the deceased
has some connection with me. There is
absolutely no basis for the said apprehension
as I have nothing to do with the prosecution
witnesses. Evidently, attempt is to avoid the
Bench, on the apprehension that the order of
acquittal may not be upheld. Such an attempt
cannot be allowed to succeed. Therefore, the
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attempt to avoid the bench was rejected and
learned counsel appearing for the respondent
was heard.
3. Learned counsel appearing for the
respondent submitted that learned Chief
Judicial Magistrate has appreciated the
evidence in the proper perspective, after
conducting a local inspection and sufficient
reasons were shown why the prosecution case
cannot be believed and in such circumstances,
there is no reason to interfere with the order
of acquittal. Learned counsel would argue
that evidence of Pws.1 to 3 that PW2 had seen
the delinquent juvenile lying on the body of
the deceased cannot be believed and case of PW1
in Ext.P1 FI statement is that the deceased had
gone to take bath, when the incident occurred
and not when she was returning after taking
CRRP 635/01
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bath and therefore, development in the case is
to be properly appreciated. It was argued that
respondent was catching fish from the nearby
river and as the real culprit ran away, local
people caught hold of the respondent and
produced him before the police and he is not in
any way connected with the incident. Learned
counsel would argue that absence of any injury
on the respondent and failure to find any
evidence of recent sexual intercourse, when
respondent was examined on the same night,
indicate that respondent did not commit rape
and he is innocent and the case has been
foisted due to the pressure of Senior police
officer related to PW1. Learned counsel would
argue that in such circumstances, when on
appreciation of evidence the view taken by the
Chief Judicial Magistrate is a reasonable view
CRRP 635/01
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which could be taken, in a revision against the
order of acquittal, order of acquittal may not
be interfered.
4. Fact that Prasanthi, a girl aged 14
years was murdered on 27/6/1999 and she was
subjected to rape and the cause of her death
was manual strangulation are not disputed.
Evidence of PW9, Professor of Forensic Science
Medicine and Police Surgeon, Medical college,
Pariyaram who conducted the autopsy and
prepared Ext.P6 postmortem certificate
establish that at the time of autopsy he noted
following antemortem injuries.
“1. Contused abrasion over an
area 9×5 cm on the front of
neck, more towards the right
side.
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2. Multiple small abrasion,
some of them curved, measuring
in size from 0.3 cm to 0.5 cm
on the undersurface of chin and
upper part of left side of
neck.
3. Abrasion 0.2 x 0.1 cm over
the left angle of jaw.
Underneath injuries 1 to 3,
the strap muscles of the neck
were found infiltrated with
blood. The soft tissues around
the superior horn of thyroid
cartilage on the right side
were also infiltrated with
blood, cartilages and hyoid
bone were intact.
4. Abrasion 0.3 x 0.1 cm on
the right side of chin, 2 cm
below and outer to the angle of
mouth.
5. Abrasion 0.7 x 0.1 cm,
horizontal on the left cheek, 4
cm outer to the mouth.
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6. Abrasion 1.5 x 1 cm on the
left inguinal region.
7. Two small scratch marks.
1.5 cm each, closely placed and
parallel to each other on the
outer aspect of left thigh, 10
cm above the knee.
8. Abrasion 0.5. x 0.3 cm on
the front of left knee.
9. Abrasion 0.5 x 0.5 cm on
the front of right leg. 2 cm
below the knee.
10. Multiple small abrasions
over an area 8×6 cm, involving
the uppermost part of right
thigh.
11. Multiple small abrasions and
grazes over an area 19×10 cms
involving the right infra
axillary area, extending up to
right breast.
12. Abrasion 9×4.5 cm on the
back of trunk, 6 cm to the right
of midline and 7 cms below the
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angle of shoulder-blade.”
Ext.P6 with the evidence of PW9 establish that
cause of death of Prasanthi was manual
strangulation and she was subjected to rape
PW9 deposed that she could have been subjected
to rape immediately before death or immediately
after the death. Whatever it be, from Ext.P6
and evidence of PW9 it is conclusively
established that cause of death of Prasanthi
was manual strangulation and she was subjected
to rape.
5. Ext.P1 FI statement was furnished by
PW1 at 5.15 p.m on 27/6/1999 itself. In Ext.P1
PW1 has narrated how he came to know about the
incident and where she found the body and what
all transpired therein. As per the version seen
in Ext.P1, Pws.1 to 3 were in the house at
about 3 p.m on 27/6/1999. After taking noon
CRRP 635/01
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meal Prasanthi had gone to take bath with
clothes to wash. After some time, PW2 went
along the same way. Evidence is that Prasanthi
used to take bath in the nearby river, which
lies east west and to the north of the house of
PW1. It is not disputed that property of PW1
up to the river is lying in four terraces.
Body was found in between the river and the
house of PW1, on the way to the river.
According to the version in Ext.P1, PW2 found
respondent lying on the body of the deceased.
He rushed to the spot. Respondent ran away.
While following him, PW2 called for PW3. Pws.1
and 3 on hearing it, rushed to the spot. By
that time, respondent was caught hold of by
PW2 and taken to the place, where her body was
lying. Pws.1 and 3 found the body of the
deceased lying with injuries on the neck,
CRRP 635/01
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motionless. PW2 entrusted the respondent with
PW3 and the deceased was taken in a jeep to the
hospital. PW3 tied the respondent to a pillar
of the residential house. Later PW15 arrested
him. PW1 deposed the fact personally known to
him. PW2 who had seen the respondent lying on
the body of the deceased and who had caught
hold of the respondent, had given evidence as
to what he had seen and how he caught hold of
the respondent and how he called for PW3 and
thereafter entrusted the respondent to PW3. PW3
had also deposed as to what he had seen on
rushing to the spot along with PW1 and also the
fact that respondent was entrusted to him by
PW2 and he tied the respondent with a rope on
the pillar of their house. Learned Chief
Judicial Magistrate did not accept these
evidence. Question is whether the evidence of
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Pws.1 to 3 could be brushed aside as has been
done by the learned Chief Judicial Magistrate.
6. Learned Chief Judicial Magistrate
disbelieved the prosecution case firstly for
absence of any injury on the body of the
respondent or his private parts, holding that
as the deceased sustained injuries, there
should have been a scuffle which should have
resulted in injury on the body of the
respondent. Learned Chief Judicial Magistrate
also found that as the respondent was examined
by the doctor on the same night and if he had
subjected the deceased to rape, there would
have been injuries to his pennis as the
victim is only aged 14 years and there should
have been traces of sexual intercourse on the
pennis of the respondent and as there was no
traces of any injury or of sexual intercourse
CRRP 635/01
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as proved by the evidence of PW9, the
prosecution case cannot be believed. Though
Ext.P7 report which establishes that pubic
hairs collected at the time of autopsy by PW9
from the body of the victim was found to be
similar to the pubic hairs of the respondent
collected by PW9 and sent for examination, and
pubic hair of the respondent could not have
been found on the private part of the victim
unless he is the person who committed the
rape, learned Chief Judicial Magistrate held
that there was possibility of plucking hairs of
the respondent and placing them on the body of
the deceased to create evidence as respondent
was in the custody of the police on the night
of 27/6/1999 and pubic hairs of the victim was
collected only on the next day. Question is
whether these are valid grounds to disbelieve
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the evidence of Pws.1 to 3 and the scientific
evidence.
7. Before considering the evidence of
Pws.1 to 3, presence of pubic hairs of the
respondent found on the private parts of the
victim is to be appreciated. Ext.P7 report of
the Scientific Assistant (Biology) establish
that all hairs in item Nos.1,2 and 3 were
cleaned in soap solution and then in ether
alcohol solution and thereafter they were
examined under the microscope before and
after bleaching. Item No.1 was the hairs of
the victim collected by PW9 at the time of
autopsy. Item No.2 was five loose hairs
collected by PW9 from the private parts of the
victim at the time of autopsy. Item No.3 was
pubic hairs of the respondent collected by PW9.
Ext.P7 report shows that the pubic hairs of the
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deceased cut at the time of autopsy and
preserved and sent for analysis varied in
between between 0.3 c.m and 2.9 cm. The root
portions were found cut and the tips were found
pointed. Out of the hairs in item No.2, four
hairs which are described in report as type-I
hairs, were having a length of 4.9 cm, 5.1 cm,
6 c.m and 6 c.m. Roots were of telogen phase
in three of the four hairs while it was of
anagen phase in the remaining one hair. Tips
were found pointed in three of the four hairs
while it was cut in the remaining one hair.
Remaining one which was described as Type-II
hair was a black coloured hair of length of 3
cm and root was of telogen phase and tip was
found cut. On examination it was found to be a
scalp hair. Ext.P7 report shows that as the
sample of scalp hair of either the victim or
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the respondent was not sent, it could not be
verified whether it relates to the victim or
the respondent. Item No.3 is the pubic hair of
the respondent. On examination it shows that
root portions were cut and tips were found
pointed in 11 out of the 20 hairs while the
tips were found cut in the remaining nine
hairs. The findings were stated as follows:
“1) Of the five hairs in item
No.2, four hairs (type-I) were
human public hairs similar to the
sample pubic hairs in item No.3 and
not similar to the sample pubic
hairs in item No.1.
2) Remaining one hair (Type-II)
in item No.2 was a human scalp
hair. Comparison of this hair was
not possible as sample scalp hairs
were not provided.”
Result of examination shows as follows:
1) Of the five hairs in
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item No.2 four hairs (Type-I) are
human public hairs which are
similar to the sample pubic hairs
in item No.3
2) The remaining one hair
in item No.2 (Type-II) is a human
scalp hair.
Based on Ext.P7 it can conclusively be found
that the pubic hairs of the respondent were
found on the private parts of the deceased when
autopsy was conducted by PW9. Question is how
far the evidence on the basis of comparison of
hair could be accepted.
8. Apex court in K.K.Jadav v. State of
Gujarat (AIR 1966 SC 821) held:
“The writers of medical
jurisprudence, have stated
that from the microscopic
examination of the hairs it is
possible to say whether they
are of the same or ofCRRP 635/01
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different colours or sizes and
from the examination it may
help in deciding where the
hairs come from.”
In Maghar Singh v. State of Punjab (1975 (4)
SCC 234) identification of the accused was made
on the basis of scientific examination of the
hair found in the weapon of offence which was
accepted by the court. This court in Mohanan
Kani v. State of Kerala (1992 (2) KLT 839) had
considered the evidentiary value of the report
based on comparison of the hair and held that
scientific evidence is reliable. Therefore,
presence of the pubic hair of the respondent in
the private parts of the deceased is definitely
a satisfactory test to conclude that it was the
respondent who committed the rape.
Unfortunately, learned Chief Judicial
Magistrate ignored this vital evidence on the
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ground that pubic hair of the respondent could
have been planted by the police. Learned Chief
Judicial Magistrate dealt with this aspect as
follows:
“It is pertinent to note that
at this juncture that the
public hair was collected from
the body of the delinquent
juvenile by PW9 the doctor at
about 10 p.m on 27/6/1999. At
that time the body of the
Prasanthi was not even brought
to the Medical College. It was
in the custody of the police
and kept in the mortuary of
Kanhangad hospital. The
delinquent juvenile was also in
the custody of the police right
from 7 p.m on 27/6/1999. So the
possibility of the police
collecting some public hair
from the body of the delinquent
juvenile and placing near theCRRP 635/01
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vaginal portion of the
Prasanthi cannot be ruled out
from the circumstances.”
It is not known how Chief Judicial Magistrate
can arrive at such a conclusion. Ext.P7 shows
that pubic hairs of the respondent collected by
PW9 and examined at the laboratory were loose
pubic hairs and pubic hairs which were cut and
preserved at the time of autopsy. Ext.P7 shows
that root portion of the loose four pubic hairs
are similar to that of the respondent. The root
portion of those public hairs were not cut, as
is the case that pubic hairs of the victim
collected by PW9 which was marked at the
laboratory as item No.1 or pubic hairs of the
respondent, which were marked as item No.3. The
root portion of all those hairs were cut while
the root of the four pubic hairs of item No.2
were not found cut. When PW15 investigating
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officer was examined, there was not even a
suggestion that pubic hairs of the respondent
were collected by the investigating officer,
either on the night of 27/6/1999 or on
28/6/1999 or at any point of time. True, when
the respondent was questioned under Section 313
of Code of Criminal Procedure he has stated
that after his arrest his hairs were pulled.
Respondent has not stated that his pubic hairs
were pulled. He has also no case that those
alleged pulling of hair was either on 27/6/1999
or on 28/6/1999. In such circumstances, Chief
Judicial Magistrate was not justified in
observing that possibility of hairs of
respondent being collected by the police and
placing them on the vaginal parts of the
deceased cannot be ruled out. Such imagination
is not permissible in law, especially when the
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records show that after the arrest of the
respondent he was produced before the learned
Magistrate on 28/6/1999 at 6.30 p.m and
learned Magistrate has specifically recorded
that he has no complaint about the police ill-
treatment. If pubic hairs of the respondent
was collected as imagined by the learned
Magistrate, respondent would have mentioned
about it when he was produced before the
Magistrate. Therefore, on the evidence I find
no justification for the learned Magistrate
to brush aside the scientific evidence based on
unreasonable and baseless suspicion.
9. Evidence of Pws.1 to 3 were
disbelieved by the learned Magistrate for the
reason that if deceased had gone to take bath
and incident occurred on her returning after
taking bath as is the case set up by the
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prosecution and PW2 had gone after 15 minutes,
the case could not be true as deposed by Pws.1
to 3 and therefore, their evidence cannot be
believed. The appreciation of evidence was
perverse. There is no evidence that either PW1
or PW2 or PW3 were watching the clock and
finding when exactly the deceased had gone to
take bath and when thereafter PW2 had gone out
as deposed by them. Only thing is that Pws.1 to
3 deposed that PW3 had gone 15 minutes after
the deceased has gone. No arithmetical
calculation could be made to disbelieve the
evidence of Pws.1 to 3, as has been done by
the learned Magistrate based on the local
inspection conducted by him on the time spoken
to by the witnesses. According to the learned
Magistrate based on the local inspection, it
will take ten minutes for a person to reach the
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river from where the deceased had taken bath
and therefore, if PW2 had gone to that place
after 15 minutes and the deceased had gone 15
minutes earlier, she could not have taken bath
and returned so as the enable PW2 to witness
the incident and so he is not telling the
truth. As stated earlier, evidence cannot be
appreciated in that way. The time, spoken to
by Pws.1 to 3, as 15 minutes is only their
assessment and not based on any clock. It can
only be appreciated in that light, especially
when they are all rustic villagers and were not
deposing with reference to any clock.
10. Question is whether evidence of
Pws.1 to 3 is believable. I had gone through
the entire evidence, and that of Pws.1 to 3 in
particular. The incident occurred after 3 p.m
and Ext.P1 FI statement was furnished by the
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father at 5.15 p.m. The first information was
furnished within two hours after PW1 came to
know about the incident. In Ext.P1 FI
statement, PW1 has stated that he rushed to the
spot with PW3 on hearing the call of PW2 and
when they reached the spot the deceased
daughter was lying on the ground and her dress
was lifted to the top and blood was coming
from her vagina and injuries were found on the
thigh and neck. PW2 disclosed to PW1, that he
had found the respondent lying on the body
of the deceased. If PW1 was not sure and was
not told by PW2 that he found the deceased
lying on the body of the deceased, no father
would report to the police within two hour of
the incident that respondent committed the
offence. If PW1 is not sure that it was the
respondent who committed the offence but
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somebody else and because of personal or
political enmity with the respondent he wanted
to rope in the respondent, he would only rope
in the respondent along with the real culprit
and will not try to shield the real culprit. If
the version in Ext.P1 FI statement is not
genuine and correct, the result would be that
the real culprit who committed rape on his
minor daughter would go free and would be
available in the locality hurting him. No
ordinary human being would allow such a
situation. Therefore, there is intrinsic
guarantee in Ext.P1 that it is the respondent
who committed rape and murdered the deceased.
Though Pws.1 and 3 were cross examined nothing
was brought out to disbelieve their evidence.
There was no material contradiction in their
evidence. When this aspect is appreciated in
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the light of scientific evidence stated
earlier, I have no hesitation to hold that it
is the respondent who committed the offence.
Learned Chief Judicial Magistrate has given one
more reason to disbelieve the prosecution case
namely, absence of injuries on the respondent
and absence of finding of recent sexual act.
Learned Chief Judicial Magistrate pre-supposed
that there was a scuffle and in that scuffle
injuries could have been caused to the
respondent and therefore, absence of the
injuries is a ground to disbelieve the
evidence. Learned Magistrate also found that
as the minor girl was raped injuries would
have been found on the pennis of the
respondent. Learned Magistrate has omitted
to take note of the medical evidence. PW9 was
cross examined with reference to the absence of
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injuries on the pennis of the respondent. PW9
the expert asserted that injuries on the pennis
need not be there. On the absence of traces of
spermatozoa on the pennis, PW9 deposed that if
pennis was washed it will not be there. There
was sufficient opportunity to the respondent to
wash the pennis before his examination by PW9.
Hence these are not also valid ground to acquit
the respondent or to doubt the prosecution
case. On appreciating the entire evidence, I
have no hesitation to hold that appreciation of
evidence was perverse. On a proper appreciation
of evidence, it can only be found that it was
the respondent who committed rape on the
deceased and also caused her death by
strangulation. Order of acquittal can only be
set aside.
11. Under Section 21 of the Juvenile
CRRP 635/01
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Justice Act, 1986 where a juvenile court is
satisfied on inquiry that a juvenile has
committed an offence, then notwithstanding
anything to the contrary contained in any other
law for the time being in force, the juvenile
court may if it so thinks fit, he could only
act as provided under clause (a) to (e). The
Juvenile Justice (Care and Protection of
Children) Act, 2000 which came into force on
22/8/2006, Section 15 of the Act provides the
orders that may be passed regarding a juvenile
in conflict with law as he cannot be sent to
prison. In such circumstances, order of
acquittal is to be set aside and the case is
to be remitted to the Juvenile Justice Board to
pass appropriate order as provided under
Section 15 of Juvenile Justice (Care and
Protection of Children) Act, 2000.
CRRP 635/01
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Revision is allowed. Order of acquittal
passed by the Chief Judicial Magistrate,
Kasargod in C.C.19/1999 is set aside.
Respondent juvenile in conflict with law found
guilty of the offence under Sections 376 and
302 of Indian Penal Code. Case is remanded to
Juvenile Justice Board, Kasargod to pass
appropriate order as provided under Section 15
of Juvenile Justice (Care and Protection of
Children) Act, 2000 in accordance with law.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.