{"id":90792,"date":"2009-07-30T00:00:00","date_gmt":"2009-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dileepan-vs-the-circle-inspector-of-police-on-30-july-2009"},"modified":"2016-04-17T06:58:24","modified_gmt":"2016-04-17T01:28:24","slug":"dileepan-vs-the-circle-inspector-of-police-on-30-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dileepan-vs-the-circle-inspector-of-police-on-30-july-2009","title":{"rendered":"Dileepan vs The Circle Inspector Of Police on 30 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Dileepan vs The Circle Inspector Of Police on 30 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1722 of 2003()\n\n\n1. DILEEPAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE CIRCLE INSPECTOR OF POLICE,\n                       ...       Respondent\n\n2. THE STATE OF KERALA,\n\n                For Petitioner  :SRI.K.M.SATHYANATHA MENON\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :30\/07\/2009\n\n O R D E R\n                     M.N. KRISHNAN, J.\n                    ---------------------------\n                    CRL.A.NO.1722 OF 2003\n                   ------------------------------\n               Dated this the 30th day of July, 2009\n\n                           JUDGMENT\n<\/pre>\n
      This is an appeal preferred against the conviction and<\/p>\n
sentence passed by the Additional Sessions Judge, Fast Track<\/p>\n
Court No.I, Manjeri in S.C.No.147\/2001.         The accused was<\/p>\n
charge sheeted for the offences under Sections 451 and 376<\/p>\n
of   the   I.P.C  and had been       convicted   thereunder  and<\/p>\n
sentenced to undergo      10 years imprisonment under Section<\/p>\n
376 and two years imprisonment under Section 451 and the<\/p>\n
sentences are directed to run concurrently.         He was also<\/p>\n
liable to pay   the fine of Rs.50,000\/= under Section 376 and<\/p>\n
Rs. 1,000\/=     under Section    451 of     the   Cr.P.C. Default<\/p>\n
sentence had also been awarded. It is against that decision,<\/p>\n
the accused has come up in appeal.\n<\/p>\n
      2. The points that arise for determination in the appeal<\/p>\n
are (1) whether there are sufficient evidence to hold the<\/p>\n
accused   guilty under Sections 376 and 451 of the Cr.P.C. (2)<\/p>\n
In case of guilt, whether the sentence awarded is proper?<\/p>\n
                                2<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
        3. Yet   another   unfortunate incident in the    restless<\/p>\n
society which has resulted in the      registration of this crime<\/p>\n
and prosecution.   The prosecutrix and    the accused      are the<\/p>\n
children of two sisters.   The prosecutrix was aged 17 years<\/p>\n
at the time of the incident.   It is the case of the prosecution<\/p>\n
that on   24.2.1999    while  she was    taking her bath in the<\/p>\n
bathroom, her cousin came there and opened the door and<\/p>\n
committed sexual assault on her against her consent and<\/p>\n
thereby has committed the offence of rape.<\/p>\n
       4. The defense appears        to be that fabrication of a<\/p>\n
false case on account of the enmity with respect to some<\/p>\n
property dispute.    The offence of rape is a grievous offence<\/p>\n
which cuts at the root of the society and further destroys a<\/p>\n
family including the life of a poor victim.<\/p>\n
      5. The courts have to be guided by principles while trying<\/p>\n
to decide the case under Section 376 of the I.P.C.      The Apex<\/p>\n
Court   had made it    very  clear    that  even uncorroborated<\/p>\n
evidence    of prosecutrix   can be accepted     to convict the<\/p>\n
accused in a case. In order to ensure avoidance of a false<\/p>\n
case, the courts always consider the medical evidence also<\/p>\n
                               3<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
as leak proof method to find out whether the accused is guilty<\/p>\n
or not.\n<\/p>\n
      6.Let me first  to analyse the medical evidence before<\/p>\n
going into the oral testimony of the prosecutrix. The alleged<\/p>\n
incident is said to have taken place in the early ours of a day<\/p>\n
while   the prosecutrix was taking her bath.      Ext.P3 is the<\/p>\n
first wound certificate issued and PW4 is the doctor who had<\/p>\n
examined her.    The wound certificate – Ext.P3 would reveal<\/p>\n
that the girl sustained as many as ten injuries on the body<\/p>\n
and other injuries on the hymen and labia minora. Superficial<\/p>\n
injuries seen on the face would   reveal that it is a nail mark.<\/p>\n
There was also a nail mark on the      right jaw.    Semi lunar<\/p>\n
marks on the lower part of angle of left jaw and an abrasion<\/p>\n
of 0.5cm     long in the lip, contusion of 2×2 cm on the left<\/p>\n
breast, tenderness on the right breast. Linear       abrasion of<\/p>\n
1.5 cm on the forearm, abrasion on the scalp etc.    The vagina<\/p>\n
admits one finger. The injuries seen on the private part are<\/p>\n
contusion on the labia minora and     a small tear on the left<\/p>\n
side of the hymen.\n<\/p>\n
      7. PW4 is    the doctor,  who had issued Ext.P3.      Her<\/p>\n
                               4<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
evidence would reveal that the girl was brought     during the<\/p>\n
night hours with a complaint of fever etc. She was examined<\/p>\n
and found to have some superficial injuries on the body of the<\/p>\n
girl and   immediately after the mid night she was admitted in<\/p>\n
the hospital. The first consultation was done from the<\/p>\n
house and at that time, the doctor had noted the injury and<\/p>\n
subsequently it   has been re-recorded    when she    had been<\/p>\n
examined from the hospital. It is deposed by her that all<\/p>\n
injuries of this nature  could be caused    if the    girl was<\/p>\n
subjected to rape.\n<\/p>\n
        8. In the cross examination, materials were attempted<\/p>\n
to be bought out to hold that she is not speaking the truth.<\/p>\n
To a specific question, she had clearly answered that in the<\/p>\n
wound certificate she had copied the injures noted by her at<\/p>\n
the time of her first examination.    She would also depose<\/p>\n
that she had examined     the girl  after two or three days of<\/p>\n
the alleged incident   and it may take 2-3 days for    creation<\/p>\n
of the reddish lunar colour. She would depose that the<\/p>\n
wounds mentioned in Ext.P3     may     take   4 or 5  days   to<\/p>\n
disappear. She had reiterated that she had seen the tear of the<\/p>\n
                                5<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
hymen.\n<\/p>\n
      9. The learned counsel for the appellant had brought to<\/p>\n
my notice the certificate issued by DW1 and the document<\/p>\n
Ext.D2.    The said doctor examined her on 1.3.1999 and she<\/p>\n
found that there were no external injuries that the hymen was<\/p>\n
intact. When she was examined as DW1, she had deposed<\/p>\n
about the examination and repeated what she had given in<\/p>\n
Ext.D2. When she was cross examined, she would depose that<\/p>\n
if  she had     examined the person     immediately  after   the<\/p>\n
incident within a day or two, the injuries would have been<\/p>\n
visible. She said that there were no fresh injuries noted on<\/p>\n
1.3.1999. She adds that some times, the injury might have<\/p>\n
been healed.    It is also pointed out by her that the child  as<\/p>\n
well as the mother had pointed out the marks seen on the body<\/p>\n
of the girl. But the doctor would say that she was not able to<\/p>\n
see any injury on the breast.      As far as the injuries on the<\/p>\n
breast are concerned, even going by Ext.P3, there are only<\/p>\n
tenderness and contusions        and the examination is done<\/p>\n
about 5 days after the alleged incident and therefore it may<\/p>\n
have faded out. There is no virtual conflict between the<\/p>\n
                               6<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
evidence of PW4 and DW1. PW4 had the opportunity to see<\/p>\n
the patient immediately i.e, within 2 days whereas DW1 did<\/p>\n
get the opportunity only after 5 days. There is no motive for<\/p>\n
PW4 to point out the injuries on a person without seeing it.<\/p>\n
So, the medical evidence available in this case indicates the<\/p>\n
following:\n<\/p>\n
      10. That the girl had been subjected to an attack. There<\/p>\n
had been injuries on her private parts as well as her face, lip,<\/p>\n
back etc.    It has  to be  remembered     that  the  scene of<\/p>\n
occurrence is a small bathroom. In that, there is a platform<\/p>\n
which is intended for washing the cloths. Besides this, there<\/p>\n
was a bucket full of water. It is the case of the prosecutrix<\/p>\n
that the accused opened the latch, entered the room and<\/p>\n
caught hold of her     and committed rape on her. She had<\/p>\n
deposed that she had fallen and she also speaks about the<\/p>\n
sitting position in which she was made to sit and the other<\/p>\n
acts regarding sexual abuse. So, it is in this background, the<\/p>\n
injuries have to be viewed.   The injuries present on the body<\/p>\n
indicate the genuineness of the version.  So far as the offence<\/p>\n
of rape is concerned, it may have to be stated that in small<\/p>\n
                                7<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
children, the hymen is not usually ruptured, but may become<\/p>\n
red and congested along with the inflammation and bruising<\/p>\n
of the labia. If considerable    violence is used, there is often<\/p>\n
laceration of fourchette and perinaeum.       We find that labia<\/p>\n
minora    as well as the hymen is injured and therefore       an<\/p>\n
offence of rape can be easily said to have taken place. Now<\/p>\n
it is in this background one has to analyse the evidence of<\/p>\n
prosecutrix-PW1.\n<\/p>\n
      11. PW1 a poor girl who is not in a position to express<\/p>\n
freely and there is also some hearing impairments for her.<\/p>\n
Her mother had left her in the house as she had to visit the<\/p>\n
hospital to admit her son. At that time, the mother of the<\/p>\n
accused and sister-in-law were asked to look after her and<\/p>\n
when the father returned from the hospital, they had gone<\/p>\n
back to her residence and it is in that morning, unfortunately<\/p>\n
the incident alleged to have    taken place.    The girl as PW1<\/p>\n
had deposed that she had entered the bathroom and poured a<\/p>\n
mug of water on her head. It was at that time       the accused<\/p>\n
had opened the latch and removed his clothes and put it on<\/p>\n
the door. Thereafter it is stated that the accused had bitten her<\/p>\n
                                 8<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
lips which    resulted in the flow of blood. She     attempted to<\/p>\n
raise a hue and cry. Her mouth was shut and thereafter he<\/p>\n
had molested her and she was pushed back to the wall and in<\/p>\n
that process her hand got injured. Thereafter he had      kicked<\/p>\n
the bucket and the girl was forced to the ground. Thereafter<\/p>\n
an attempt to widen her thigh and thereafter it is stated that<\/p>\n
the act was committed and blood oozed out from her vagina<\/p>\n
and   there was    also   flow   of  semen and he      went back<\/p>\n
threatening that he would kill her if she states it to anybody.<\/p>\n
      12. She had been       cross examined at length. Northing<\/p>\n
serious has been brought out in the cross examination and she<\/p>\n
had deposed that there were marks on her breast and blood<\/p>\n
oozed out from the lips. She had also spoken about the fact<\/p>\n
that she had shown these injuries to the doctor. It is also her<\/p>\n
case that the accused had taken his dothi and left the place.<\/p>\n
Thereafter the mother of the accused came and she also told<\/p>\n
her not to divulge the matter to anybody.\n<\/p>\n
     13. PW2 is the        mother of the victim. She had also<\/p>\n
elaborately spoken about the matter. She is not an eye witness<\/p>\n
and had spoken about what had transpired thereafter and she<\/p>\n
                               9<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
had denied the suggestion that there was no enmity between<\/p>\n
the families so as to foist    a false case. PWs 3, 5,6 and 7<\/p>\n
are all official witnesses and PW9 is the person who had laid<\/p>\n
the charge.\n<\/p>\n
     14. The learned counsel for the appellant would submit<\/p>\n
that the chemical examiner’s report – Exts.P8 and P9 does not<\/p>\n
support the case of the prosecution.   Ext.P9 is the chemical<\/p>\n
analysis report with respect to Vagina swab which would show<\/p>\n
that semen and spermatozoa were not       found in the vaginal<\/p>\n
swab. Ext.P8 which relates to the cloth of the accused also.<\/p>\n
Item No.3 is the cloth which was alleged to be worn at the<\/p>\n
time of the incident and the prosecutrix had stated that the<\/p>\n
accused had taken it back. In that analysis, it had been found<\/p>\n
that human blood was there. Human blood was not detected<\/p>\n
in the shirt or the towel. It has to be remembered that the<\/p>\n
incident had taken place in the morning hours at 6.15 a.m on<\/p>\n
24.2.1999.      The  factum is  reported on   26.2.1999.   The<\/p>\n
seizure   etc   takes place only  thereafter.   Therefore, non<\/p>\n
presence of spermatozoa on the vaginal swab      does not ipso<\/p>\n
facto indicate    that no rape had taken place at all. The<\/p>\n
                                10<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
materials available would show that the there had been an<\/p>\n
attack on this girl and that her private parts namely the hymen<\/p>\n
and labia minora had sustained      abrasion or injuries. Unless a<\/p>\n
penetration is   effected, one  cannot say whether there      was<\/p>\n
complete penetration. It can be said that evidence is sufficient<\/p>\n
to hold that there is partial penetration    at least. Under the<\/p>\n
provisions of the I.P.C,   a partial penetration is sufficient to<\/p>\n
constitute an offence of rape under Section 376.<\/p>\n
      15. So, from the materials available here, I am inclined<\/p>\n
to hold that on the      unfortunate morning on 24.2.1999 the<\/p>\n
accused had entered into a bathroom where the prosecutrix<\/p>\n
was taking her bath,      had physically assaulted her for the<\/p>\n
purpose of      committing   the rape and thereafter he had<\/p>\n
committed rape on her thereby satisfying the ingredients to<\/p>\n
constitute the offence of rape. It is unfortunate that a brother<\/p>\n
had raped a sister and when a human being losses the<\/p>\n
rationality, his conduct would be worse than that of an animal<\/p>\n
and that is why scholars say that human being is a rational<\/p>\n
animal. When rationality is lost, he forgets the society, forgets<\/p>\n
the relationship and commits       henus acts     which even an<\/p>\n
                               11<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
animal may not do.\n<\/p>\n
     16. Now     turning to the    question of  sentence. It is<\/p>\n
submitted by the learned counsel that the accused is aged<\/p>\n
about 40 years now and he has a family to be looked after and<\/p>\n
some leniency should be shown.\n<\/p>\n
     17. The court below has awarded the imprisonment of<\/p>\n
10 years      under Section    376 of    I.P.C. The   minimum<\/p>\n
punishment of 7 years have to be imposed unless there are<\/p>\n
special reasons. It is absent here. I am inclined to reduce the<\/p>\n
imprisonment     from 10 years to 7 years and retain the<\/p>\n
punishment under Section 451 with a direction that sentences<\/p>\n
shall run concurrently.    I  am inclined to reduce   the  fine<\/p>\n
amount from Rs.50,000\/= to Rs.30,000\/= and on realisation<\/p>\n
of the fine amount, let the amount of Rs.15,000\/= be given<\/p>\n
to the prosecutrix -Pw1.\n<\/p>\n
     18. In the    result,  the criminal appeal is disposed as<\/p>\n
follows:\n<\/p>\n
     1. The finding of guilt under Sections 376 and 451 of<\/p>\n
I.P.C is confirmed.\n<\/p>\n
     2. The sentence      is modified    and   the  accused is<\/p>\n
                               12<\/span>
\nCRL.A.NO.1722\/03<\/p>\n
sentenced to undergo R.I for a period of 7 years and to pay a<\/p>\n
fine of Rs.30,000\/= for the offence under Section 376 of the<\/p>\n
IPC and to undergo 2 years imprisonment under Section 451 of<\/p>\n
IPC and to pay a fine of Rs.1,000\/=. The sentences shall run<\/p>\n
concurrently. If the fine amount is realised, let Rs.15,000\/= be<\/p>\n
given to the prosecutrix – PW1 and in default of payment of the<\/p>\n
fine, there will be further imprisonment for a period of three<\/p>\n
months under Section 376 and one month under Section 451 of<\/p>\n
the IPC. The accused will be entitled to set off as contemplated<\/p>\n
under Section 428 of the Cr.P.C<\/p>\n
                               M.N. KRISHNAN, JUDGE<\/p>\n
cl<\/p>\n
                    13<\/span>
\nCRL.A.NO.1722\/03<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Dileepan vs The Circle Inspector Of Police on 30 July, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1722 of 2003() 1. DILEEPAN, … Petitioner Vs 1. THE CIRCLE INSPECTOR OF POLICE, … Respondent 2. THE STATE OF KERALA, For Petitioner :SRI.K.M.SATHYANATHA MENON For Respondent : No Appearance The Hon’ble […]<\/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-90792","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nDileepan vs The Circle Inspector Of Police on 30 July, 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\/dileepan-vs-the-circle-inspector-of-police-on-30-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dileepan vs The Circle Inspector Of Police on 30 July, 2009 - 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