{"id":195210,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-state-of-kerala-on-9-july-2010"},"modified":"2014-11-09T01:36:52","modified_gmt":"2014-11-08T20:06:52","slug":"suresh-vs-state-of-kerala-on-9-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-vs-state-of-kerala-on-9-july-2010","title":{"rendered":"Suresh vs State Of Kerala on 9 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Suresh vs State Of Kerala on 9 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 1361 of 2002()\n\n\n1. SURESH, S\/O. DIVAKARAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY PUBLIC\n                       ...       Respondent\n\n                For Petitioner  :SRI.PIRAPPANCODE V.SREEDHARAN NAIR\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :09\/07\/2010\n\n O R D E R\n            M.SASIDHARAN NAMBIAR,J.\n          ===========================\n          CRL.R.P.No. 1361   OF 2002\n          ===========================\n\n      Dated this the 9th day of July,2010\n\n                     ORDER\n<\/pre>\n
    Petitioner was convicted and sentenced for<\/p>\n
the offence under section 376 of Indian Penal<\/p>\n
Code by Assistant Sessions Judge, Nedumangad in<\/p>\n
S.C.147\/2005  which   was  confirmed   by   the<\/p>\n
Additional Sessions Judge, Thiruvananthapuram<\/p>\n
in Crl.A.372\/1996.   Prosecution case is that<\/p>\n
PW1 who was aged seven years,  was studying in<\/p>\n
second  standard.    She lost her mother.   Her<\/p>\n
father after    second marriage was residing<\/p>\n
separately.    She  was  living  with  PW3  her<\/p>\n
grandmother though not the  direct grandmother,<\/p>\n
and PW4 the sister of her father.  On 13.4.1994<\/p>\n
at about 1.30 p.m. petitioner came towards<\/p>\n
their house and enquired to PW4 where was PW1,<\/p>\n
under the guise that she could be given dates<\/p>\n
to eat.  PW4 called PW1.  Petitioner asked PW1<\/p>\n
Crl.R.P.1361\/2002            2<\/span><\/p>\n
to follow him         to his house promising to give<\/p>\n
dates.       On reaching the house, petitioner made PW1<\/p>\n
to enter his room.       Thereafter she was made to lie<\/p>\n
on the coat.      Petitioner removed her under garments<\/p>\n
and thereafter committed rape on her.         When she<\/p>\n
cried, petitioner made her to sit on his lap and<\/p>\n
tried to have penal penetration. There was bleeding<\/p>\n
from her vagina.       Petitioner threatened her not to<\/p>\n
disclose it to anybody.         PW1 washed her private<\/p>\n
parts and went to her       house. She did not disclose<\/p>\n
it to anybody.      On 15.4.1994 she felt pain and also<\/p>\n
difficulty to pass urine.       She was thus  compelled<\/p>\n
to disclose it to PW3. She       in turn along with PW4<\/p>\n
took her to Primary Health Centre, Kanyakulangara.<\/p>\n
PW2 the doctor examined her and prepared Ext.P2<\/p>\n
wound      certificate.     she  was  admitted  as   an<\/p>\n
inpatient.         On  getting  information  from   the<\/p>\n
hospital, PW8 the Head Constable of Vattappara<\/p>\n
Police Station reached the Hospital and recorded<\/p>\n
Ext.P1 First Information Statement based on which<\/p>\n
crime was registered under Ext.P1 F.I. statement<\/p>\n
Crl.R.P.1361\/2002              3<\/span><\/p>\n
for the offence under section 511 of 376 of Indian<\/p>\n
Penal Code.          PW9, the Sub Inspector of Police<\/p>\n
investigated the case prepared Ext.P3 scene mahazar<\/p>\n
and recovered M01, the bed sheet from the           house<\/p>\n
of the petitioner under Ext.P4 and also M0s 2 to 4<\/p>\n
the dresses worn by PW1 at the time of incident<\/p>\n
under Ext.P5 mahazar.         PW10, the Circle Inspector<\/p>\n
of Police, Venjaramood took over the investigation.<\/p>\n
On     investigation     he   found  that   the   offence<\/p>\n
committed is under section 376 of Indian Penal<\/p>\n
Code. He        submitted Ext.P9 report incorporating the<\/p>\n
offence under section 376 of Indian Penal code.        He<\/p>\n
arrested the petitioner on 11.11.1994 and got him<\/p>\n
examined by PW6 the Civil           Surgeon, who issued<\/p>\n
Ext.P6 potency certificate.         After completing the<\/p>\n
investigation charge for the offence under section<\/p>\n
376 of Indian Penal code was laid, which was taken<\/p>\n
cognizance and committed to the Sessions court.<\/p>\n
Sessions Judge took the case on file and         made it<\/p>\n
over to the Assistant Sessions court, Nedumangad.<\/p>\n
When charge for the offence under section 376 of<\/p>\n
Crl.R.P.1361\/2002             4<\/span><\/p>\n
Indian       Penal  Code  was  framed  and  read  over,<\/p>\n
petitioner        pleaded  not  guilty.     Prosecution<\/p>\n
examined Pws. 1 to 10 and marked Exts.P1 to P9 and<\/p>\n
identified M0s 1 to 3.           Though petitioner was<\/p>\n
called upon to enter on his defence and adduce<\/p>\n
evidence, he did not adduce any evidence.<\/p>\n
      2. Learned Assistant Sessions Judge on the<\/p>\n
evidence held that evidence of PW1 corroborated by<\/p>\n
PW2 establish that petitioner committed rape on PW1<\/p>\n
a minor girl. After hearing the petitioner on the<\/p>\n
question of sentence he was sentenced       to rigorous<\/p>\n
imprisonment for five years and a fine of Rs.5000\/-<\/p>\n
and in default rigorous imprisonment for a further<\/p>\n
period of one year.       Learned Sessions Judge in the<\/p>\n
appeal reappreciated the evidence and found that<\/p>\n
evidence of PW1 is trustworthy and reliable. He<\/p>\n
confirmed        the conviction and  sentence  for  the<\/p>\n
offence under section 376 of Indian Penal Code.<\/p>\n
Revision is filed challenging the conviction and<\/p>\n
sentence.\n<\/p>\n
      3.         Learned  counsel  appearing  for   the<\/p>\n
Crl.R.P.1361\/2002             5<\/span><\/p>\n
petitioner and the learned Public Prosecutor were<\/p>\n
heard.\n<\/p>\n
      4.      Learned counsel argued that  courts below<\/p>\n
did not appreciate         the evidence in the proper<\/p>\n
perspective.        It was contended that though the<\/p>\n
incident allegedly occurred on 13.4.1994, Ext.P1<\/p>\n
First Information Statement was furnished only on<\/p>\n
19.4.1994 and the inordinate delay was not properly<\/p>\n
appreciated and on the evidence it should have been<\/p>\n
found that the case of rape was             subsequently<\/p>\n
developed.       Learned counsel pointed out that as per<\/p>\n
Ext.P2 wound certificate, PW1 was admitted in the<\/p>\n
hospital only on 18.4.1994 and was discharged on<\/p>\n
22.4.1994 and the evidence of PW2, the doctor<\/p>\n
establishes that there was no injury warranting<\/p>\n
her       admission or treatment as an inpatient for<\/p>\n
seven days and in the nature of the case it is<\/p>\n
clear that there is manipulation.        It was pointed<\/p>\n
out that Ext.P2 shows that the alleged cause of<\/p>\n
injury is finger manipulation of external genital<\/p>\n
by a man and not          rape and till 19.4.1994 when<\/p>\n
Crl.R.P.1361\/2002             6<\/span><\/p>\n
Ext.P1 First Information Statement was recorded,<\/p>\n
there was no case of any rape and the entry in<\/p>\n
Ext.P2 is made to support the prosecution case that<\/p>\n
PW1      was     under  treatment  when   Ext.P1  First<\/p>\n
Information        Statement  was  recorded.    Learned<\/p>\n
counsel argued that the evidence of PW2 establishes<\/p>\n
that there was no symptom of rape and when she was<\/p>\n
asked whether she could find any sign of rape she<\/p>\n
stated that there was no other        sign of rape  and<\/p>\n
that      answer    was wrongly  misinterpreted by  the<\/p>\n
courts below.        It was argued that if a seven year<\/p>\n
old girl was raped and that too with complete<\/p>\n
penetration        as   deposed  by   PW1,   there  was<\/p>\n
necessarily        injuries on the private part of  PW1<\/p>\n
and      Ext.P2 wound certificate    does not show that<\/p>\n
there was any such injury which should have been<\/p>\n
there if the male organ of a thirty year old man<\/p>\n
had entered into the vagina of PW1 as claimed by<\/p>\n
her and in such circumstances, courts below should<\/p>\n
not have         relied on the evidence of PW1 to prove<\/p>\n
that there was rape.        Learned counsel argued that<\/p>\n
Crl.R.P.1361\/2002             7<\/span><\/p>\n
entries        regarding  the  date  of  admission   and<\/p>\n
discharge in Ext.P2         are in a different ink and<\/p>\n
were created later and the prosecution case as such<\/p>\n
cannot be believed.         Leaned counsel also   argued<\/p>\n
that if necessary an opportunity may be granted to<\/p>\n
further cross examine PW2 and to get the records<\/p>\n
regarding the treatment of PW1 as an inpatient in<\/p>\n
the hospital.       Learned counsel also argued that the<\/p>\n
evidence of PW1 shows that it is tutored version<\/p>\n
and in such circumstances without corroboration her<\/p>\n
evidence should not have been accepted.          Learned<\/p>\n
counsel argued that the medical records do not<\/p>\n
support       the  evidence  of  PW1  and  there  is  no<\/p>\n
scientific evidence to establish the presence of<\/p>\n
spermatozoa inside the vagina of PW1 or in the<\/p>\n
dress worn by PW1 at that time or on the bed sheet<\/p>\n
used while PW1 was allegedly raped and in such<\/p>\n
circumstances,          courts  below should  not   have<\/p>\n
convicted the petitioner.\n<\/p>\n
      5.     Learned Public prosecutor pointed out that<\/p>\n
the      delay    in   lodging  the  First   Information<\/p>\n
Crl.R.P.1361\/2002             8<\/span><\/p>\n
Statement has to be appreciated in the background<\/p>\n
of the case and that too bearing in mind that PW1<\/p>\n
is a rustic girl who lost her mother and father is<\/p>\n
living with his second wife separately.         It was<\/p>\n
pointed out that a rustic grandmother like PW3<\/p>\n
would not like the case of rape being published<\/p>\n
which would ultimately effect the       future life of<\/p>\n
the child        and adversely affect  the name of the<\/p>\n
family and in such circumstances the non disclosure<\/p>\n
of the factum of rape to the police immediately      is<\/p>\n
not fatal.          It was pointed out that when the<\/p>\n
statement of PW1 was recorded on 19.4.1994, she has<\/p>\n
narrated the entire facts and her oral evidence<\/p>\n
from the box       fully corroborated  that version and<\/p>\n
there is no reason to disbelieve the evidence of<\/p>\n
PW1.        Learned Public Prosecutor relying on the<\/p>\n
decision of the Apex Court in Bharwada Bhoginbhai<\/p>\n
Hirjibai v. State of Gujarat         (AIR<\/a> 1983 SC 753)<\/p>\n
argued that the position of PW1 is       above  that of<\/p>\n
an injured and when the evidence of PW1 inspire<\/p>\n
confidence, no corroboration is necessary and even<\/p>\n
Crl.R.P.1361\/2002              9<\/span><\/p>\n
if     assurance from     other materials or evidence is<\/p>\n
necessary,        Ext.P2  wound certificate  shows  that<\/p>\n
inspite of the fact that her examination was after<\/p>\n
two days from the date of the        incident, there was<\/p>\n
redness on the vagina and it furnishes         assurance<\/p>\n
to the         evidence of PW1 that she was raped by<\/p>\n
petitioner.        Learned Public Prosecutor pointed out<\/p>\n
that when          petitioner did    not challenge the<\/p>\n
evidence        of  PWs.1  and  2 with   regard  to  the<\/p>\n
treatment of PW1 as an inpatient in         the hospital<\/p>\n
and no question was put based on the entries<\/p>\n
regarding        the  admission and  discharge  seen  in<\/p>\n
Ext.P2, it is futile for the petitioner to develop<\/p>\n
a case based on Ext.P2 for the first time before<\/p>\n
the revisional court and there is no necessity to<\/p>\n
call for the records regarding         the treatment of<\/p>\n
PW1 as an inpatient or further examination of PW2.<\/p>\n
It    was     argued   that  the evidence  was  properly<\/p>\n
appreciated by the courts below and there is no<\/p>\n
reason to interfere with the conviction.<\/p>\n
      6. The evidence of PW1 corroborated by her<\/p>\n
Crl.R.P.1361\/2002             10<\/span><\/p>\n
Ext.P1 First Information Statement is that she was<\/p>\n
subjected to rape at the house of the petitioner at<\/p>\n
about 1.30 p.m. on 13.4.1994.        The evidence of PW1<\/p>\n
is that as petitioner            threatened her not to<\/p>\n
disclose the incident to anybody            she did not<\/p>\n
disclose the incident to others       including PW3   or<\/p>\n
PW4      .    Her case is that after two days she felt<\/p>\n
difficulty for urinating and also pain on her<\/p>\n
abdomen.        In such circumstances PW1 had to disclose<\/p>\n
that fact to PW3.          PW3 took PW1   to the Primary<\/p>\n
Health Centre from where PW2 the doctor examined<\/p>\n
her      and     prepared   Ext.P2   wound   certificate.<\/p>\n
Evidence of PW2 establish that it was not disclosed<\/p>\n
to PW2 that PW1 was subjected to rape or even an<\/p>\n
attempt to commit rape.          On the other hand, the<\/p>\n
alleged cause of injury recorded in Ext.P2,        though<\/p>\n
this was not spoken to by PW2 as it was omitted to<\/p>\n
be put to the witness either by the prosecutor or<\/p>\n
the Judge          is   that ” finger manipulation of<\/p>\n
external genital by          a man”.    As there was no<\/p>\n
allegation of rape or attempt to commit rape, PW2<\/p>\n
Crl.R.P.1361\/2002             11<\/span><\/p>\n
did not conduct a proper examination of PW1 as<\/p>\n
would have been done in the case of a rape or<\/p>\n
attempt to commit rape.         PW2 did not even verify<\/p>\n
whether hymen of PW1 was torn or whether there was<\/p>\n
any injury to the hymen,        evidently because she was<\/p>\n
not informed about the allegation of          rape.   The<\/p>\n
injury       noted  in   Ext.P2  as  deposed by   PW2  is<\/p>\n
“redness of vagina”.        It is also recorded that PW1<\/p>\n
had complained pain on abdomen and difficulty in<\/p>\n
passing urine.          The evidence of PW8, the Head<\/p>\n
Constable with the evidence of PW1 establishes that<\/p>\n
on getting information about the admission         of the<\/p>\n
petitioner       at  Primary   health  Centre  on  sexual<\/p>\n
assault,        PW8 proceeded to the hospital and reached<\/p>\n
there at 4 p.m on 19.4.1994 and recorded Ext.P1<\/p>\n
First      Information   Statement.     In  Ext.P1  First<\/p>\n
Information statement PW1 has narrated the entire<\/p>\n
incident, which was            deposed by PW1 from the<\/p>\n
witness box.        There is no     contradiction in her<\/p>\n
evidence from the box to the version disclosed in<\/p>\n
Ext.P1 First Information Statement.<\/p>\n
Crl.R.P.1361\/2002            12<\/span><\/p>\n
        7. The argument of the learned counsel is that<\/p>\n
as the factum of committing rape was not disclosed<\/p>\n
to the doctor and instead it was alleged that there<\/p>\n
was finger manipulation of external genital by         a<\/p>\n
man in Ext.P2 wound certificate, it is to be found<\/p>\n
that the case of rape was subsequently developed.<\/p>\n
It is for that purpose learned counsel argued that<\/p>\n
PW1 was subsequently admitted on 18.4.1994      as seen<\/p>\n
from Ext.P2 to corroborate the statement in Ext.P1<\/p>\n
that it was recorded while PW1 was being treated as<\/p>\n
an inpatient in the hospital.        As rightly pointed<\/p>\n
out by the learned Public Prosecutor       Ext.P2 wound<\/p>\n
certificate       was   available   with   the   counsel<\/p>\n
appearing for the petitioner before the Sessions<\/p>\n
Court when PW2 was examined. Still the counsel did<\/p>\n
not cross examine PW2 with regard to the entries of<\/p>\n
admission and discharge shown in Ext.P2.          Ext.P2<\/p>\n
shows that       entire writings including the signature<\/p>\n
in     Ext.P2,    except  the   date  of  admission   as<\/p>\n
18.4.1994 and date of discharge as 22.4.1994 are in<\/p>\n
one and same handwriting, and       ink. Evidently they<\/p>\n
Crl.R.P.1361\/2002             13<\/span><\/p>\n
were written on 15.4.1994        when PW1 was examined.<\/p>\n
Therefore entry in Column No.15 that the patient       w<\/p>\n
admitted        was recorded along with the entry in the<\/p>\n
other columns on 15.4.1994 at        9 a.m.  Therefore I<\/p>\n
have no doubt on the fact that PW1 was admitted in<\/p>\n
the hospital on 15.4.1994 itself.        It is more so,<\/p>\n
when the evidence of Pws.1 and 3 on that aspect was<\/p>\n
not challenged in cross examination and there was<\/p>\n
no case for the petitioner before the trial court<\/p>\n
or the appellate court that PW1 was not admitted in<\/p>\n
the hospital on 15.4.1994 but was admitted          only<\/p>\n
subsequently for developing the case to one under<\/p>\n
section 376 of Indian Penal Code.\n<\/p>\n
      8.     The Supreme Court had occasion to consider<\/p>\n
the failure in         reporting   the factum of rape,<\/p>\n
When the doctor examined the prosecutrix in Madan<\/p>\n
Lal v. State of Jammu and Kashmir JT<\/a> (1997 (7) SC<\/p>\n
357).         That was a case where a IXth standard<\/p>\n
student was subjected to rape by the Headmaster of<\/p>\n
the school after she was made to go to his house on<\/p>\n
21.5.1986.        The prosecutrix was examined by the<\/p>\n
Crl.R.P.1361\/2002             14<\/span><\/p>\n
doctor on 23.5.1986 and the doctor did not find any<\/p>\n
mark of violence on any part of her        body and on<\/p>\n
local examination there was no mark of violence on<\/p>\n
her private parts like vagina and the hymen was<\/p>\n
intact.        As argued by the learned counsel in this<\/p>\n
case,      reliance   was  placed  on the  evidence  of<\/p>\n
prosecutrix        to   the   effect  that  there   was<\/p>\n
penetration to the extent of one inch, though when<\/p>\n
cross examined she pointed out that depth as one<\/p>\n
quarter of an        inch or one quarter of inch and it<\/p>\n
was argued that if there was penetration, hymen<\/p>\n
would      not   have  been  intact.   Their  Lordships<\/p>\n
cautioned that         evidence is to be appreciated in<\/p>\n
the light of the experience of a young girl who was<\/p>\n
being subjected to sexual harassment for the first<\/p>\n
time and too much cannot be imputed to her evidence<\/p>\n
regarding        penetration.    The Supreme  Court  in<\/p>\n
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat<\/p>\n
(AIR<\/a> 1983 SC 753)considering the unsophisticated<\/p>\n
society where         a girl or woman in the tradition<\/p>\n
bound non-permissive society of India would be<\/p>\n
Crl.R.P.1361\/2002             15<\/span><\/p>\n
extremely reluctant even to admit that any incident<\/p>\n
which is likely to reflect on her chastity had over<\/p>\n
occurred, as she would be conscious of the danger<\/p>\n
of being ostracized by the society or being looked<\/p>\n
down by the society including by her own family<\/p>\n
members, relatives, friends and neighbours,        held<\/p>\n
that      she    would  feel  extremely  embarassed  in<\/p>\n
relating the incident to others being overpowered<\/p>\n
by a feeling of shame on account of the upbringing<\/p>\n
in a tradition bound society where by and large sex<\/p>\n
is    a taboo.     Their Lordships held:-\n<\/p>\n
           “The parents of an unmarried<\/p>\n
           girl as also the husband and<\/p>\n
           members    of  the   husband’s<\/p>\n
           family of a married woman,<\/p>\n
           would also more often than<\/p>\n
           not,want to avoid publicity<\/p>\n
           on account of the fear of<\/p>\n
           social stigma on the family<\/p>\n
           name and family honour.    The<\/p>\n
           fear of the victim herself<\/p>\n
Crl.R.P.1361\/2002            16<\/span><\/p>\n
           being    considered   to    be<\/p>\n
           promiscuous or in some way<\/p>\n
           responsible for the incident<\/p>\n
           regardless of her innocence.”<\/p>\n<\/blockquote>\n
So also a rustic woman will not be disclosing the<\/p>\n
incident which would affect the name and honour of<\/p>\n
the family to a doctor when the prosecutrix is<\/p>\n
being examined .       It is in such circumstances, the<\/p>\n
failure to disclose the factum of rape as such, in<\/p>\n
Ext.P2 wound certificate is to be appreciated .<\/p>\n
The contention of the petitioner was that with<\/p>\n
regard to the property dispute with PW4 a       case was<\/p>\n
foisted. It is clear that when PW1 was first<\/p>\n
examined by the doctor it was not disclosed that<\/p>\n
she was raped or that there was an attempt to<\/p>\n
commit rape.       It could be for the reason that Pws.3<\/p>\n
and 4 who brought PW1 to the doctor might have<\/p>\n
intended not to get publicity on rape and for that<\/p>\n
reason       it  was  reported that   cause  was  finger<\/p>\n
manipulation on the vagina by a man.       Unfortunately<\/p>\n
for the failure to disclose the true facts,          the<\/p>\n
Crl.R.P.1361\/2002            17<\/span><\/p>\n
doctor did not properly examine PW1 to find out<\/p>\n
whether        there was  any   injury  on  the   vagina<\/p>\n
including hymen.\n<\/p>\n
      9.     I have gone through the entire evidence of<\/p>\n
PW1, PW3 and 4, in the light of Ext.P1 First<\/p>\n
Information Statement.       I agree with the findings<\/p>\n
of the learned Assistant Sessions Judge and the<\/p>\n
learned Sessions Judge that         evidence of PW1 is<\/p>\n
trustworthy, credible and reliable.        The question<\/p>\n
is in such circumstance is whether it is necessary<\/p>\n
to have        any corroboration.  The Supreme Court in<\/p>\n
Bhoginbhai Hirjibhai’s case (supra)           held that<\/p>\n
corroboration       is  not  a   sine  qua   non  for  a<\/p>\n
conviction in       a rape case the   refusal to act on<\/p>\n
the testimony of a victim of sexual assault for<\/p>\n
the absence of corroboration as a rule is adding<\/p>\n
insult to injury and if the evidence             of the<\/p>\n
prosecutrix inspire confidence, no corroboration is<\/p>\n
necessary.       The position has been reiterated by the<\/p>\n
Apex     Court    in  State  of  Punjab  v.  Gurmitsingh<\/p>\n
(1996) 2 SCC 384). It was held that a girl in a<\/p>\n
Crl.R.P.1361\/2002            18<\/span><\/p>\n
tradition bound non-permissive society in India,<\/p>\n
would be extremely reluctant even to admit that any<\/p>\n
incident which is likely to reflect on her chastity<\/p>\n
had occurred, being conscious of the danger of<\/p>\n
being ostracized by the society or being looked<\/p>\n
down upon by the society.        Her not informing the<\/p>\n
teachers or her friends at the examination centre<\/p>\n
under the circumstances cannot detract from her<\/p>\n
credibility. In the normal course of human conduct,<\/p>\n
an      unmarried minor girl, would not like to give<\/p>\n
publicity        to the traumatic  experience she   had<\/p>\n
undergone and would feel terribly embarassed in<\/p>\n
relation to the incident to narrate it to her<\/p>\n
teachers and others and in such circumstances the<\/p>\n
failure to report the incident not immediately is<\/p>\n
to be appreciated.      Their Lordships in Amankumar v.<\/p>\n
State of Haryana (2004) 4 SCC 379 clarified the<\/p>\n
position thus:-\n<\/p>\n
            “It is well settled that a<\/p>\n
            prosecutrix complaining of<\/p>\n
            having been a victim of the<\/p>\n
Crl.R.P.1361\/2002            19<\/span><\/p>\n
            offence of rape is not an<\/p>\n
            accomplice after the crime.<\/p>\n
            There is no rule of law<\/p>\n
            that her testimony cannot<\/p>\n
            be   acted   upon   without<\/p>\n
            corroboration  in  material<\/p>\n
            particulars.  She stands on<\/p>\n
            a higher pedestal than an<\/p>\n
            injured witness.    In the<\/p>\n
            latter   case,   there   is<\/p>\n
            injury   on  the   physical<\/p>\n
            form, while in the former<\/p>\n
            it is both physical as well<\/p>\n
            as     psychological    and<\/p>\n
            emotional.  However, if the<\/p>\n
            court  of  facts  finds  it<\/p>\n
            difficult   to  accept   th<\/p>\n
            version of the prosecutrix<\/p>\n
            on its face value, it may<\/p>\n
            search for evidence, direct<\/p>\n
            or   circumstantial,  which<\/p>\n
Crl.R.P.1361\/2002            20<\/span><\/p>\n
            would lend assurance to her<\/p>\n
            testimony.       Assurance,<\/p>\n
            short of corroboration as<\/p>\n
            understood in the context<\/p>\n
            of   an  accomplice,  would<\/p>\n
            suffice.”\n<\/p><\/blockquote>\n
In B.C.Deva v. State of Karnataka (2007) 12 SCC<\/p>\n
122) their Lordships held that the plea that no<\/p>\n
marks of injuries were found either on the person<\/p>\n
of the accused or the person of the prosecutrix,<\/p>\n
does not lead to any inference that the accused has<\/p>\n
not committed forcible sexual intercourse on the<\/p>\n
prosecutrix.       Though the report of the gynacologist<\/p>\n
pertaining       to  the  medical  examination  of  the<\/p>\n
prosecutrix       does not   disclose any  evidence  of<\/p>\n
sexual intercourse, yet even in the absence of any<\/p>\n
corroboration       by    medical  evidence,  the  oral<\/p>\n
testimony of the prosecutrix, which is found to be<\/p>\n
cogent, reliable, convincing and trustworthy has to<\/p>\n
be accepted.\n<\/p>\n
      10. On a proper analysis of the evidence of PW1<\/p>\n
Crl.R.P.1361\/2002             21<\/span><\/p>\n
it is absolutely clear that the version given by<\/p>\n
PW1     that     petitioner  called her   to  his  house<\/p>\n
promising to give dates to eat       and made her lie on<\/p>\n
the coat and removed her dress       and laid on her is<\/p>\n
cogent, reliable,       convincing and trustworthy which<\/p>\n
is to be accepted.         The question then is what is<\/p>\n
the offence committed.       The argument of the learned<\/p>\n
counsel is that as there is no evidence to prove<\/p>\n
penetration, an offence under section 376 of Indian<\/p>\n
Penal Code is not attracted.         It was argued that<\/p>\n
the evidence of PW1 is to be believed to hold       that<\/p>\n
there was complete penetration.         If that be the<\/p>\n
case,      when   she  was  examined  by  PW2  two  days<\/p>\n
thereafter there would have been sufficient data<\/p>\n
establishing        penetration and therefore an offence<\/p>\n
under section 376 of Indian Penal Code is not<\/p>\n
attracted.        Learned counsel also argued that when<\/p>\n
Ext.P2 wound certificate does not show any sign of<\/p>\n
rape and        evidence of PW2 also does not show that<\/p>\n
there was any symptom of rape, the courts below<\/p>\n
were not justified in finding          commission of an<\/p>\n
Crl.R.P.1361\/2002            22<\/span><\/p>\n
offence under section 376 of Indian Penal Code.     As<\/p>\n
stated earlier Ext.P2 shows the injury       found on<\/p>\n
PW1 was “redness on vagina, complaint of pain on<\/p>\n
abdomen and difficulty in passing urine.”    When PW2<\/p>\n
was examined, she was asked whether the redness<\/p>\n
noted on the vagina can be caused by an attempt of<\/p>\n
penetration of penis into the vagina.     She said it<\/p>\n
could be.        Learned counsel pointed out that the<\/p>\n
Sessions Judge has recorded in the judgment that<\/p>\n
this answer was given after taking time and answers<\/p>\n
given by PW2 in cross examination rules out any<\/p>\n
rape.        The relevant portion of cross examination<\/p>\n
reads:\n<\/p>\n
           “I    got  no   information<\/p>\n
           regarding    rape.       On<\/p>\n
           examination  you  have  not<\/p>\n
           noticed any signs of rape<\/p>\n
           (Q). No other signs(A). You<\/p>\n
           did not see any symptoms of<\/p>\n
           rape (Q) No (A) Redness of<\/p>\n
           vagina difficulty to pass<\/p>\n
Crl.R.P.1361\/2002            23<\/span><\/p>\n
           urine would be caused by<\/p>\n
           infection.”\n<\/p>\n<\/p>\n
    11. The argument of the learned counsel is that<\/p>\n
the      answer    given   by  PW2  was   not  properly<\/p>\n
appreciated        by the courts below and there was no<\/p>\n
evidence of committing rape.       Though PW2 was asked<\/p>\n
whether there was any symptom of rape on PW1 and<\/p>\n
she answered in the negative,          it is not clear<\/p>\n
that what        symptom was intended by the counsel as<\/p>\n
well as by the doctor is not clear.            But the<\/p>\n
earlier question is clear and that is whether PW2<\/p>\n
had noted any sign of rape when PW1 was examined by<\/p>\n
the doctor. It was answered by the doctor as no<\/p>\n
other sign was noted.         As rightly found by the<\/p>\n
courts below        that answer could only be that   no<\/p>\n
other sign that        what was  recorded in Ext.P2 was<\/p>\n
noted.         If that be so, the answer is that apart<\/p>\n
from the redness on vagina and the complain of pain<\/p>\n
on the abdomen and difficulty in passing urine,<\/p>\n
there was no other sign.        The question is whether<\/p>\n
Crl.R.P.1361\/2002            24<\/span><\/p>\n
the redness of vagina and pain on the abdomen<\/p>\n
answer       would  make   the  evidence   of  PW1   not<\/p>\n
believable or reliable.\n<\/p>\n
      12.     Though PW1 deposed that there was complete<\/p>\n
penetration, it is       clear that if PW1 a child aged<\/p>\n
seven years was subjected to rape and there was<\/p>\n
complete penetration of the male organ of a thirty<\/p>\n
year old man into       the vagina of a seven year old<\/p>\n
girl,      there would be  rupture of hymen and  injury<\/p>\n
to the vagina, apart from the redness of vagina<\/p>\n
noted by the doctor.       Modi’s Medical Jurisprudence<\/p>\n
& Toxicology twenty second edition at page 504<\/p>\n
dealt with the examination and the      findings of the<\/p>\n
victim of a sexual        offence. The relevant portion<\/p>\n
reads:-\n<\/p>\n
           “In   small  children,  the<\/p>\n
           hymen    is   not   usually<\/p>\n
           ruptured, but may become<\/p>\n
           red   and  congested  along<\/p>\n
           with the inflammation and<\/p>\n
           bruising of the labia.   If<\/p>\n
Crl.R.P.1361\/2002             25<\/span><\/p>\n
           considerable    violence  is<\/p>\n
           used,     there   is   often<\/p>\n
           laceration    of  fourchette<\/p>\n
           and perinaeum”.<\/p><\/blockquote>\n
    In the light of the medical evidence, a complete<\/p>\n
penetration into the vagina of PW1 can only be<\/p>\n
ruled out.        But the question is whether a complete<\/p>\n
penetration is necessary and if not whether there<\/p>\n
is sufficient evidence to constitute an offence<\/p>\n
under section 376 of Indian Penal Code.<\/p>\n
      13. Explanation to Section 375 of Indian Penal<\/p>\n
Code      provides    that  penetration  during   sexual<\/p>\n
intercourse is sufficient to constitute an offence<\/p>\n
of    rape.      Question is  what  is  penetration  and<\/p>\n
whether it is necessary to penetrate the entire<\/p>\n
penis into the vagina or a partial penetration will<\/p>\n
be sufficient. A Learned single Judge of this Court<\/p>\n
in Mohammed v. State of Kerala<\/a> (1987 (2) KLT 565)<\/p>\n
held that partial penetration of the penis within<\/p>\n
the labia majora of the vulva or pudendum with or<\/p>\n
without        emission  of  semen   is  sufficient   to<\/p>\n
Crl.R.P.1361\/2002         26<\/p>\n
constitute an offence under Section 376 of Indian<\/p>\n
Penal Code. The Honourable Supreme Court in State<\/p>\n
of U.P. v. Babul Nath<\/a> ((1994) 6 SCC 29) held “even<\/p>\n
partial or slightest penetration of the male organ<\/p>\n
within the labia majora or the vulva or pudendum<\/p>\n
with or without any emission of semen or even an<\/p>\n
attempt at penetration into the private part of the<\/p>\n
victim would be quite enough for the purpose of<\/p>\n
Sections 375 and 376 of Indian Penal Code. That<\/p>\n
being so, it is quite possible to commit legally<\/p>\n
the offence of rape, even without causing any<\/p>\n
injury to the genitals or leaving any seminal<\/p>\n
stains. A learned single Judge of this Court in<\/p>\n
Mohammed Kunju v. State of Kerala<\/a> (2007 (3) KLT<\/p>\n
218) with due respect, did not follow the said<\/p>\n
dictum and instead followed the decision in Madan<\/p>\n
Lal v. State of Jammu & Kashmir (JT<\/a> 1997 (7) SCC<\/p>\n
357) and on the     facts, held that as the medical<\/p>\n
evidence clearly shows that there was no injury<\/p>\n
over the external genitalia of PW6 nor was there<\/p>\n
any discharge in her vagina and the hymen of the<\/p>\n
Crl.R.P.1361\/2002                     27<\/span><\/p>\n
girl was found intact, the offence attracted is<\/p>\n
only 511 of 376 and not Section 376 of Indian Penal<\/p>\n
Code. The observation of the Honourable Supreme<\/p>\n
Court in Madan Lal’s case (supra), quoted by the<\/p>\n
learned single Judge reads:\n<\/p>\n<\/p>\n
             The difference between preparation and an attempt
\n             to commit an offence consists chiefly in the grater
\n             degree of determination and what is necessary to
\n             prove an offence of an attempt to commit rape has
\n             been committed is that the accused has gone
\n             beyond the state of preparation. If an accused
\n             strips a girl naked and then making her flat on the
\n             ground undresses himself and then forcibly rubs
\n             his erected penis on the private part of the girl but
\n             fails to penetrate the same into vagina and on such
\n             rubbing ejaculates himself then it is difficult for us
\n             to hold that it was a case of merely assault under
\n             Section 354 of Indian Penal Code and not an
\n             attempt to commit rape under Section 376 read
\n             with 511 of Indian Penal Code. In the facts and
\n             circumstances of the present case, the offence of
\n             an attempt to commit rape by accused has been
\n             clearly established and the High Court rightly
\n             convicted him under Section 376 read with 511 of
\n             Indian Penal Code.\n<\/p><\/blockquote>\n
<\/blockquote>\n
Another learned single Judge in Chenthamara v.<\/p>\n
State of Kerala<\/a> (2008 (4) KLT 290) followed the<\/p>\n
dictum in Babul Nath’s case (supra) in the light of<\/p>\n
the decision in Aman Kumar v. State of Haryana<\/p>\n
Crl.R.P.1361\/2002            28<\/span><\/p>\n
((2004) 4 SCC 379) and held that penile accessing<\/p>\n
would be sufficient to constitute penetration in<\/p>\n
sexual intercourse, which is necessary for the<\/p>\n
offence of rape and absence of actual entry of male<\/p>\n
organ through the vagina, resulting in rupture of<\/p>\n
hymen, etc. is not necessary. In Madan Lal’s case<\/p>\n
(supra),        the  prosecution  case  was  that   the<\/p>\n
Headmaster of the school called the prosecutrix, a<\/p>\n
student of that school, to his house and thereafter<\/p>\n
committed rape on her. The trial Judge, finding the<\/p>\n
evidence of the prosecutrix unworthy, acquitted the<\/p>\n
accused.        In  appeal,   the  High  Court,   after<\/p>\n
scrutinising the evidence of the prosecutrix, held<\/p>\n
that the statement was so convincing that it did<\/p>\n
not       require     any   corroboration   and   minor<\/p>\n
discrepancies       pointed  out   are  irrelevant  and<\/p>\n
reversed        the findings  of the  trail  Judge  and<\/p>\n
convicted the accused for the offence under Section<\/p>\n
376 read with Section 511 of Indian Penal Code. In<\/p>\n
that case, medical evidence does not show any<\/p>\n
injury        to   the  vagina.  The   salwar  of   the<\/p>\n
Crl.R.P.1361\/2002             29<\/span><\/p>\n
prosecutrix, which was seized and sent to the<\/p>\n
chemical examiner, was sent to Forensic Science<\/p>\n
Laboratory and the chemical and microscopical test<\/p>\n
revealed presence of semen\/Human Spermatozoa, which<\/p>\n
was found to be corroborated by the evidence of<\/p>\n
PW1. It is based on that evidence, the Honourable<\/p>\n
Supreme Court held that the offence attracted is<\/p>\n
511 of 376 of Indian Penal Code. In Aman Kumar’s<\/p>\n
case (supra), it was held that an attempt to commit<\/p>\n
an offence is an act or series of acts, which leads<\/p>\n
inevitably        to  the  commission of  the   offence,<\/p>\n
unless,       something,  which  the  doer of   the  act<\/p>\n
neither foresaw nor intended, happens to prevent<\/p>\n
this and an attempt may be described to be an act<\/p>\n
done      in    part-execution  of  a criminal   design,<\/p>\n
amounting        to  more  than mere  preparation,  but,<\/p>\n
falling         short   of   actual  consummation    and<\/p>\n
possession, except for failure to consummate, all<\/p>\n
the elements of the substantive crime. In other<\/p>\n
words, an attempt consists in it the intent to<\/p>\n
commit       a   crime,  falling short  of,  its  actual<\/p>\n
Crl.R.P.1361\/2002           30<\/span><\/p>\n
commission. Their Lordships held “in order to find<\/p>\n
an accused guilty of an attempt with intent to<\/p>\n
commit rape, court has to be satisfied that the<\/p>\n
accused, when he laid hold of the prosecutrix, not<\/p>\n
only desired to gratify his passions upon her<\/p>\n
person, but that, he intended to do so at all<\/p>\n
events and notwithstanding any resistance on her<\/p>\n
part.” On the facts of the case, it was found that<\/p>\n
there is no material to show that accused were<\/p>\n
determined to have sexual intercourse in all events<\/p>\n
and in that background, the offence cannot be said<\/p>\n
to    be     an  attempt to  commit rape to  attract<\/p>\n
culpability under Section 376 read with Section 511<\/p>\n
of Indian Penal Code, but, it would only amount to<\/p>\n
an offence under Section 354 of Indian Penal Code.<\/p>\n
The Honourable Supreme Court in Santhosh Kumar v.<\/p>\n
State of M.P. (AIR<\/a> 2006 SC 3098) held that to<\/p>\n
constitute an offence of rape, it is not necessary<\/p>\n
that there should be complete penetration of penis<\/p>\n
without emission of semen and rupture of hymen and<\/p>\n
partial       penetration of penis within the labia<\/p>\n
Crl.R.P.1361\/2002            31<\/span><\/p>\n
majora or the vulva or pudenda with or without<\/p>\n
emission of semen or even an attempt at penetration<\/p>\n
is quite sufficient for the purpose of law.<\/p>\n
      14. Though, in order to constitute an offence<\/p>\n
under Section 375, punishable under Section 376 of<\/p>\n
Indian Penal Code, penetration in the course of<\/p>\n
sexual intercourse is necessary, it is not the<\/p>\n
requirement of law that there should be a complete<\/p>\n
penetration       of   penis inside  the  vagina.  Even<\/p>\n
partial         penetration  is   sufficient.   Partial<\/p>\n
penetration of penis within the labia majora or the<\/p>\n
vulva or pudenda by itself will constitute an<\/p>\n
offence under Section 375 punishable under Section<\/p>\n
376 of Indian Penal Code and it is not necessary<\/p>\n
that there should be emission of semen.<\/p>\n
      15. The question is whether there is evidence<\/p>\n
to prove such penetration as provided under Section<\/p>\n
375 of Indian Penal Code. Even though PW1 deposed<\/p>\n
that there was full penetration and that portion of<\/p>\n
her evidence cannot be accepted, her evidence would<\/p>\n
definitely       establish  that  there was   at  least<\/p>\n
Crl.R.P.1361\/2002             32<\/span><\/p>\n
partial         penetration.  Though   learned   counsel<\/p>\n
vehemently argued that there is no evidence to<\/p>\n
prove even partial penetration, Exhibit P2 would<\/p>\n
certificate,        with  the  evidence of  PW2,   would<\/p>\n
necessarily support the evidence with regard to<\/p>\n
partial penetration. As stated earlier, when PW1<\/p>\n
was      examined     by  PW2   and  Exhibit  P2   wound<\/p>\n
certificate was prepared, it was not brought to the<\/p>\n
notice of PW2 that there was rape or attempt to<\/p>\n
commit       rape.   Therefore,  PW2  did  not   examine<\/p>\n
minutely the private parts of PW1 and instead noted<\/p>\n
only the external injuries to the vagina, namely,<\/p>\n
redness, in addition to the difficulty expressed by<\/p>\n
PW1 for urination. If a girl like PW1, aged seven<\/p>\n
years, was made to lie and erected penis of the<\/p>\n
petitioner,        aged  30  years,  was sought  to   be<\/p>\n
penetrated into her vagina and it partially entered<\/p>\n
the vagina, necessarily, the redness noted by PW2,<\/p>\n
even after two days of the incident, would be<\/p>\n
there.       Therefore,   that aspect  corroborates  the<\/p>\n
evidence        of   PW1  regarding  at  least   partial<\/p>\n
Crl.R.P.1361\/2002            33<\/span><\/p>\n
penetration.\n<\/p>\n
      16. The facts of Santhosh Kumar’s case (supra)<\/p>\n
show that prosecution case was that the prosecutrix<\/p>\n
was coming by a bus in search of a work and after<\/p>\n
she boarded the bus, the conductor enquired where<\/p>\n
she was going and when she informed him that she<\/p>\n
was going in search of some work, he did not ask<\/p>\n
for money and when the bus reached at the place and<\/p>\n
she was trying to get down, he told her that she<\/p>\n
may sleep in the bus itself rather than going<\/p>\n
anywhere in the night, so that, in the morning, she<\/p>\n
could        arrange   some  work.  The  prosecutrix,<\/p>\n
therefore, slept on the rear seat of the bus. After<\/p>\n
the shops were closed, at about midnight, the<\/p>\n
driver       of   the  bus  reached towards her   and<\/p>\n
thereafter pressed her breast and tried to remove<\/p>\n
her dhoti and when she tried to raise alarm, the<\/p>\n
conductor caught hold of her and gagged her and<\/p>\n
then      the    driver  committed rape  on her   and<\/p>\n
thereafter, the conductor also committed rape on<\/p>\n
her. The medical examination of the prosecutrix<\/p>\n
Crl.R.P.1361\/2002            34<\/span><\/p>\n
showed that she received injuries on the front<\/p>\n
portion of the body and also on her hands, but, no<\/p>\n
injuries were found on the private parts of the<\/p>\n
body. Their       Lordships held ” the mere fact that no<\/p>\n
injuries were found on the private parts of her<\/p>\n
body cannot be a ground to hold that no rape was<\/p>\n
committed upon her or that the entire prosecution<\/p>\n
story is false” and ultimately, the conviction was<\/p>\n
confirmed. Similarly, for the reason that there is<\/p>\n
no medical evidence to prove that the hymen of PW1<\/p>\n
was not torn and there was no injury to the hymen,<\/p>\n
it    cannot     be  said  that  there  was  no  partial<\/p>\n
penetration. As stated earlier, evidence of PW1<\/p>\n
inspires confidence. It is credible and believable.<\/p>\n
Evidence of PW1 establishes that petitioner had<\/p>\n
undressed himself and removed the dress of PW1 up<\/p>\n
to the waist and made her lie on the cot and<\/p>\n
thereafter       pushed  the  penis  into  her   vagina.<\/p>\n
Evidence also establish that there was actual entry<\/p>\n
of penis at least partially into the vagina. It<\/p>\n
would      definitely   constitute   an  offence   under<\/p>\n
Crl.R.P.1361\/2002           35<\/span><\/p>\n
Section        376 of  Indian Penal   Code.  In  such<\/p>\n
circumstances, I find no reason to interfere with<\/p>\n
the concurrent conviction of the petitioner for the<\/p>\n
offence under Section 376 of Indian Penal Code.<\/p>\n
      Then      the only question  is  regarding   the<\/p>\n
sentence. Argument of the learned counsel is that<\/p>\n
petitioner was aged 30 years, who is having a wife<\/p>\n
and child and the incident occurred in 1994 and at<\/p>\n
this distant point of time, petitioner may not be<\/p>\n
sent to prison and leniency be shown. It is already<\/p>\n
found that petitioner, who is admittedly the father<\/p>\n
of a child, having his wife, ignoring the fact that<\/p>\n
PW1 is only a child, aged seven years, committed<\/p>\n
rape on her. Such a person does not deserve any<\/p>\n
leniency. In such circumstances, I find no reason<\/p>\n
to interfere with the sentence also.\n<\/p>\n
      Revision fails and it is dismissed.<\/p>\n
\n\n\n\n\n                                 M.Sasidharan Nambiar\n                                         Judge\ntpl\/tkv\n\nCrl.R.P.1361\/2002    36\n\n\n\n\n                       M.SASIDHARAN NAMBIAR\n                                   JUDGE\ntpl\/-\n\nM.SASIDHARAN NAMBIAR, J.\n\n\n\n\n     ---------------------\n    Crl.R.P.NO.1361 \/02\n     ---------------------\n\n\n          ORDER\n\n\n\n\n      9TH JULY 2010\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Suresh vs State Of Kerala on 9 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1361 of 2002() 1. SURESH, S\/O. DIVAKARAN, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY PUBLIC … Respondent For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR For Respondent :PUBLIC PROSECUTOR The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR […]<\/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-195210","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSuresh vs State Of Kerala on 9 July, 2010 - 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\/suresh-vs-state-of-kerala-on-9-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh vs State Of Kerala on 9 July, 2010 - 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