{"id":130249,"date":"2009-09-22T00:00:00","date_gmt":"2009-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ayyappan-vs-state-of-kerala-on-22-september-2009"},"modified":"2016-10-18T06:52:07","modified_gmt":"2016-10-18T01:22:07","slug":"ayyappan-vs-state-of-kerala-on-22-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ayyappan-vs-state-of-kerala-on-22-september-2009","title":{"rendered":"Ayyappan vs State Of Kerala on 22 September, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ayyappan vs State Of Kerala on 22 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1572 of 2005()\n\n\n1. AYYAPPAN, S\/O. VELU,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.P.MUJEEB\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :22\/09\/2009\n\n O R D E R\n    K. BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ.\n               ----------------------------------------\n               Crl.Appeal No.1572 OF 2005\n               ----------------------------------------\n        Dated this the 22nd day of September, 2009\n\n                       J U D G M E N T\n<\/pre>\n
                       ~~~~~~~~~~~<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n<\/p>\n
     The appellant was the accused in Sessions Case<\/p>\n
No.187\/2003 on the files of the Additional Sessions Judge, Fast<\/p>\n
Track Court No.I, (Ad hoc), Manjeri.\n<\/p>\n<\/p>\n
     2.   The case of the prosecution in brief is as follows:<\/p>\n
     The accused, who is none other than the father of PW1,<\/p>\n
committed rape on her on three successive days from 11.5.2001<\/p>\n
against her will and without her consent and she became<\/p>\n
pregnant. The offence took place while they were residing in a<\/p>\n
rented house bearing        door No.25\/123 of Perinthalmanna<\/p>\n
Municipality. On those days, the mother of PW1 was away.<\/p>\n
PW1’s uncle, PW2, came to her house and found her pregnant.<\/p>\n
An young child was also found there. As her marriage did not<\/p>\n
take place, PW2 questioned PW1, how she became pregnant.<\/p>\n
On her request, PW2 took her to his house and in the night she<\/p>\n
Crl.Appeal No.1572\/2005          2<\/span><\/p>\n
narrated the harrowing experience, she had at the hands of her<\/p>\n
father from 1995 onwards. She has to undergo medical<\/p>\n
termination of pregnancy twice and she gave birth to two<\/p>\n
children out of her relationship with father, which was against<\/p>\n
her will and consent. Next day, that is on 8.1.2002, PW2 took<\/p>\n
PW1 to the Perinthalmanna Police Station and the Sub Inspector<\/p>\n
of Police recorded Ext.P1 First Information Statement and<\/p>\n
registered Ext.P8 First Information Report.           PW8, Circle<\/p>\n
Inspector of Police, took over the investigation, which was<\/p>\n
completed by PW9, who filed the final report before the Judicial<\/p>\n
First Class Magistrate’s Court, Perinthalmanna.       The learned<\/p>\n
Magistrate on finding that the offence alleged against the<\/p>\n
appellant was exclusively triable by a Court of Sessions,<\/p>\n
committed the case to the Sessions Court, which in turn was<\/p>\n
made over to the Fast Track Court No.1 (Ad hoc), Manjeri.<\/p>\n
      3.     The appellant pleaded not guilty to the charge framed<\/p>\n
against him for the offence under Section 376 of the IPC. The<\/p>\n
prosecution to prove its case examined PWs1 to 10 and produced<\/p>\n
Exts.P1 to P10 . The defence contended that sex was consensual<\/p>\n
Crl.Appeal No.1572\/2005         3<\/span><\/p>\n
and delay is fatal to the prosecution case. But overruling the<\/p>\n
contentions of the defence, the learned Sessions Judge found the<\/p>\n
appellant guilty of the offence under Section 376 of the IPC and<\/p>\n
sentenced the appellant to undergo imprisonment for life and<\/p>\n
also to pay a fine of Rs.Two lakhs and in default he was to under<\/p>\n
go imprisonment for a further period of five years.       Feeling<\/p>\n
aggrieved by the conviction and sentence, the appellant has<\/p>\n
preferred this Criminal Appeal.\n<\/p>\n<\/p>\n
      4.     We heard Sri.K.P.Mujeeb, learned counsel for the<\/p>\n
appellant and Sri.Noble Mathew, learned Public Prosecutor, for<\/p>\n
the State. The learned counsel for the appellant took us through<\/p>\n
the deposition of the witnesses and the documents produced in<\/p>\n
this case. The learned counsel for the appellant submitted that<\/p>\n
PW1 has consented to the relationship.      She is a major and<\/p>\n
therefore, no offence of rape will lie against him. Further, the<\/p>\n
First Information in this case was lodged after the delay of eight<\/p>\n
months. Therefore, the same will weaken the prosecution case<\/p>\n
and the appellant is entitled to get the benefit of doubt. The<\/p>\n
learned counsel also pointed out that PW3, who was stated to be<\/p>\n
Crl.Appeal No.1572\/2005         4<\/span><\/p>\n
aware of the commissions and omissions of the accused, did not<\/p>\n
corroborate the version of PW1.         So, in the absence of<\/p>\n
corroboration, it is unsafe to sustain the conviction  based on<\/p>\n
the solitary evidence of PW1. The learned Public Prosecutor, on<\/p>\n
the other hand, submitted that the victim was put under fear of<\/p>\n
death, as evident form her deposition, if she spoke about the<\/p>\n
truth to others. Therefore, the silence or non-resistance cannot<\/p>\n
be considered as manifestation of consent.\n<\/p>\n<\/p>\n
      5.     Before referring to the rival contentions, we will<\/p>\n
presently refer to the deposition of the witnesses. PW1 stated<\/p>\n
that up to 10th standard she has studied in Kerla. She stayed<\/p>\n
along with her uncle, PW2, and another, in their family house.<\/p>\n
Her parents were residing at Gudallur in Tamil Nadu. After the<\/p>\n
examination of 10th standard, she along with her aunt and<\/p>\n
grandmother, went to Gudalloor. Soon she was sent to study<\/p>\n
Typewriting. After the result of the SSLC examination was<\/p>\n
published, she joined for +1 Course. She passed +2 and joined<\/p>\n
in a hospital as trainee to work as Health Assistant. While she<\/p>\n
was studying for +2 course, her father started misbehaving<\/p>\n
Crl.Appeal No.1572\/2005           5<\/span><\/p>\n
towards her. At that time, she fell in love with one<\/p>\n
Mr.Radhakrishnan. He approached PW1’s family proposing to<\/p>\n
marry her. After the said proposal, her father started outraging<\/p>\n
her modesty. When she told, she will tell about it to her mother,<\/p>\n
the appellant said he is doing it with her mother’s consent. The<\/p>\n
misbehavior continued and he started raping her during night.<\/p>\n
When she told her mother, it is stated, mother also told her to<\/p>\n
oblige her father. If she does not give her consent, father used<\/p>\n
to beat her cruelly even using his shoes. Before the public of the<\/p>\n
locality, her father declared that she had illicit relationship with<\/p>\n
Mr.Radhkrishnan and therefore, he is beating her. The sexual<\/p>\n
relationship at night continued and her mother never objected to<\/p>\n
it. While she was studying for +2, she became pregnant. She<\/p>\n
was taken to Gudallur and the pregnancy was medically<\/p>\n
terminated. For some time, there was no problem from the side<\/p>\n
of her father. But, again he started his misconduct and she again<\/p>\n
became pregnant when she was going to complete the +2 course.<\/p>\n
This time she gave birth to a boy in Gudallur hospital. Whenever she<\/p>\n
opposed the advances of her father, he would tell, he will kill her and<\/p>\n
go away.       He used to carry poison or knife in his hand to<\/p>\n
Crl.Appeal No.1572\/2005         6<\/span><\/p>\n
threaten her. In the hospital records, as stated by the parents of<\/p>\n
PW1, name of the father of the child is given as Radhakrishnan.<\/p>\n
The above ordeal of PW1 continued unabatedly. It is not<\/p>\n
necessary to give all the details of the misbehavior of the<\/p>\n
appellant towards PW1.      Finally, the family came back to<\/p>\n
Perinthalmanna and started living in a rented building near the<\/p>\n
hospital, in which PW1 was working. While so, one evening her<\/p>\n
mother went to Gudallur along with her younger sister. Mother<\/p>\n
was away for three days. On all the three days, the appellant<\/p>\n
raped PW1 and she became pregnant out of the relationship,<\/p>\n
which continued even after her mother returned. While so, PW2<\/p>\n
came to the house of the appellant. On finding that PW1 was<\/p>\n
pregnant though she was unmarried, PW2 enquired who is<\/p>\n
responsible. Then she said, if he saves her, she can tell the<\/p>\n
details. Thereupon PW2, the uncle of PW1 took her to his house<\/p>\n
along with the child. She told the real facts regarding her<\/p>\n
pregnancy. Next day, PW2 took PW1 to Perinthalmanna Police<\/p>\n
Station and Ext.P1 FIR was lodged.          Though the defence<\/p>\n
extensively cross-examined her, nothing was brought out to<\/p>\n
discredit her version. PW2 also gave evidence corroborating the<\/p>\n
Crl.Appeal No.1572\/2005          7<\/span><\/p>\n
deposition of PW1. PW3, mother of PW1 and wife of the<\/p>\n
appellant, turned hostile and did not support the prosecution.<\/p>\n
PW4 is the doctor, who examined the appellant and gave Ext.P4<\/p>\n
potency test certificate. PW5 is the doctor, who examined PW1,<\/p>\n
immediately after the registration of the crime and gave Ext.P5<\/p>\n
wound certificate. PW6 is the Village Officer who prepared the<\/p>\n
scene plan and PW7 is a witness to Ext.P7 scene mahazar.<\/p>\n
Ext.P8 FIR was registered by PW8 Sub Inspector of Police. PW9<\/p>\n
took over the investigation and completed substantial portion of<\/p>\n
investigation. PW10 completed the investigation and filed the<\/p>\n
final report.\n<\/p>\n<\/p>\n
      6.     Going by the deposition of PW1, the contention of the<\/p>\n
defence that she consented to the sexual intercourse cannot be<\/p>\n
accepted. PW1 has deposed that the appellant threatened her<\/p>\n
that in case she states the truth to anybody, he will kill her and<\/p>\n
go away. She has also stated that PW3 also compelled her not to<\/p>\n
tell the truth. Her mother told her that if her uncles knew about<\/p>\n
the incident, they will kill the appellant and there will not be<\/p>\n
anyone to look after them. So, by threat and coercion from the<\/p>\n
Crl.Appeal No.1572\/2005           8<\/span><\/p>\n
part of the appellant and PW3, she was prevented from speaking<\/p>\n
and she was able to move the police only when PW2, her uncle,<\/p>\n
gave her courage and support. Therefore, the contention<\/p>\n
regarding consent and delay raised by the defence cannot be<\/p>\n
accepted. PW3 has turned hostile to the prosecution. But, that<\/p>\n
was not in anyway affected the prosecution case. We believe the<\/p>\n
version of PW1. It has got of the ring of truth and we find no<\/p>\n
reason for her to falsely implicate her father. No girl will do<\/p>\n
that.   We notice that the learned Sessions Judge has rightly<\/p>\n
found the appellant guilty of the offence under Section 376 of<\/p>\n
the I.P.C. relying on the evidence of PW1. Having regard to the<\/p>\n
facts of the case, appropriate sentence has been imposed on him.<\/p>\n
We find no reason to interfere with the same also.<\/p>\n
      In the result, the Criminal Appeal fails and it is dismissed.<\/p>\n
                            (K.BALAKRISHNAN NAIR, JUDGE)<\/p>\n
                               (P.Q.BARKATH ALI, JUDGE)<\/p>\n
ps<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ayyappan vs State Of Kerala on 22 September, 2009 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>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-130249","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAyyappan vs State Of Kerala on 22 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ayyappan-vs-state-of-kerala-on-22-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ayyappan vs State Of Kerala on 22 September, 2009 - 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