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Abdul Rasheed, C. No. 3089, Central Prison, Kannur v/s State of Kerala, Represented by The Public Prosecutor, High Court of Kerala, Ernakulam

    CRL.A. No. 655 of 2015 In SC 219 of 2013

    Decided On, 06 January 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.P. JYOTHINDRANATH

    For the Appellant: Joseph Rony Jose (State Brief), Advocate. For the Respondents: D. Chandrasenan, Public Prosecutor.



Judgment Text

1. In this appeal, the appellant is represented by Advocate Sri. Joseph Rony Jose as State Brief. This appeal is preferred against the judgment of conviction and sentence in SC 219/2013 on the files of the Sessions Court, Kalpetta, Wayanad. The conviction is under Sections 376 (2) (f), 354A(I)(i), 506 (ii) IPC. The sentence is to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.50,000/-, in default, rigours imprisonment for one year for offence under Section 376 (2) (f) IPC. Appellant is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- with default rigorous imprisonment for three months for offence under Section 354 A(1)(i) of IPC and also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three months for an offence under Section 506 (ii) IPC. It is further ordered that if the fine amount is realised it shall be paid to the victim girl as compensation under Section 357 (1)(b) Cr.P.C.

2. The learned counsel submitted before this court that here is a case where the trial court failed to appreciate the evidence in its right perspective. It is the submission that as per the prosecution case the appellant herein was committing rape upon the victim for the last so many years. Even though it is the allegation that he was committing rape from 2009 onwards till 2012, the complaint was filed only in the year 2013. It is also submitted before this court that the trial court failed to appreciate the fact that PW2, who supported the prosecution case got previous admitted animosity towards the appellant herein. Under such circumstances, a false implicatio

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n cannot be ruled out. It is also the submission that it can be seen that as per Ext.P6, medical examination report, the hymen was intact. When the case of the prosecution is that for the last so many years there is sexual relationship and intact hymen is an indication of the falsity of the prosecution case. It is also submitted before this court that even though as per the statement given to the doctor the last sexual contact was before Ramzan Fasting in 2012 it is relevant to note that the medical examination was in the year 2013. But when she gave evidence on oath she changed her version to the effect that the last episode was immediately before the Ramzan fasting in the year 2013. Thus it can be seen that the case now put forwarded by the prosecution is not believable much less proved by reliable and cogent evidence. Hence the appellant is entitled for an acquittal.

3. The learned Public Prosecutor submitted before this court that here is a case where the appellant is none other than the father of the victim. When the father of the victim is the accused, naturally, there will be limitation for the victim to divulge the harassment to other persons. In this case, it is also relevant to note that the mother of the victim was working abroad. During the said period, the incident occurred. It is also relevant to note that even in the year 2009 she had divulged the fact of harassment to her teacher and there is recordical evidence for the same. Under such circumstances, there is nothing to disbelieve the case of the PW1. It is also the submission that when natural father of the victim is the accused and he was also the guardian, the delay in reporting the matter to the police cannot be taken as a ground for suspecting the evidence of the victim.

4. After hearing the counsel, I perused the records and evidence in this case. PW1 is the victim. She was examined in camera and she deposed before the court that accused is the father of her. While she gave the compliant, she was residing in the quarters of an estate (paddy). She also deposed that she stopped her studies while she was studying in 9th standard and her date of birth is 21.5.1994. While she was studying in the 6th standard at HIM U.P. School, she was staying with her grandmother Pathumma and her mother was working in gulf. She further deposed that during the said period her father was staying in the estate quarters. She used to go there to clean the rooms. On a day when she went there, her father caught her breast by putting the hand inside the dress and on another occasion she along with her sister went to sleep in the quarters. When her sister slept, accused raped her. When she objected, the accused threatened her and he further told her that if she divulge it to anybody else, she will be murdered. She also deposed before the court that during the said period, she was aged 11 years and 10 months. She changed her studies to GVHS, Kalpetta and her evidence before the court is that the accused continued to do so. She revealed the said fact to a friend of her and she also deposed before the court that she divulged these facts to her teachers Aiswarya as well as Sudha. As the mother of the victim was not at station, they informed these aspects to the sister of her mother. She told the same to her brother Shihab. When the mother came from gulf, she went to the school. Appellant/father assured that hereafter there will be no such incident. As such, no complaint was filed and she further deposed that when her mother returned from gulf they started to reside in the estate quarters.

5. During the said period also her father harassed her and she also got a case that these aspects were also told to her mother. She also deposed that her mother restrained her father from coming to the house. But during the Ramzan Fasting period 2013, he again came to the house and mother permitted the accused to reside with them and she deposed before the court that on 28.9.2013, while she was watching T.V, appellant tried to hug her. She objected and it was informed to the sister of her mother. Thereafter a complaint was made before the police station and the said complaint was marked as Ext.P1 and the School Admission Register was marked as Ext.P2. She also deposed that she had given consent to the doctor to examine her and she was also examined by the doctor. PW2 is the sister of the mother of the victim. She deposed before the court that in 2009 period, she was summoned by the teacher and told her that accused was physically harassing the victim and she also deposed before the court that when the mother of the victim came back from gulf, the accused was summoned to the school and he gave assurance that thereafter he will not harass the victim. She also deposed before the court that on 28.9.2013, while she was coming back from anganwadi, the victim complained to her about the behaviour of her father. Thereafter she along with the victim went to the police station and made a complaint. PW3 is the teacher to whom the victim made complaint about the harassment. She deposed before the court that in 2009 period, she had given awareness class to the students in the 9th std. She also deposed that PW1 complained about the sexual harassment of her father/accused. She had given a reference note to the counselling teacher and the said note was marked as Ext.P4. PW4 is the grandmother of the victim. She deposed before the court that when the mother of the victim went to gulf the victim as well as her sister was residing with her and the accused was staying in the estate quarters. PW5 is the attestor to the scene mahazar Ext. P5. PW6 is the doctor who examined the victim and issued Ext.P6 report. She deposed before the court that the victim made an allegation to the effect that there were several episode of sexual assault by her father at her house and she further deposed that on examination, hymen was found fleshy as elastic and vagina admitted 2 fingers. She also opined that findings are consistent with history of sexual assault. PW7 is the Special Village Officer, who prepared the scene plan which was marked as Ext.P7. PW8 is an official attached to the Municipality, who issued Ext.P8 ownership certificate of the building. PW9 is an attestor to Ext.P3 seizure mahazar. PW10 is an Assistant Surgeon, Government Hospital, Kalpetta who examined and issued Ext.P9 potency certificate of the accused. PW11 is the Additional S.I. of police who recorded the First Information Statement of the victim. He further deposed that on the basis of Ext.P1, he registered the crime and FIR is marked as Ext.P10. PW12 is the C.I. of Police who investigated the crime and filed the charge.

6. Prosecution altogether examined 12 witnesses and Exts.P1 to P12 were marked. In this case, the main argument advanced by the learned counsel appearing for the appellant is that for a very long period there was no complaint regarding rape upon the victim. It is also submitted before the court that as per Ext.P6, it can be seen that the hymen of the victim was not torn or it was intact. If that be so, without corroboration, it may be highly unsafe to convict a person who is none other than the father of the victim. It is also the argument of the learned counsel that it is relevant to note that the mother of the victim was not made as a witness. The mother will be the natural witness at least to corroborate the case of the victim. When the mother of the victim is not a witness and when the hymen of the victim was not seen torn and there was inordinate delay in divulging the fact to the police, relying upon the sole evidence of the victim, coming to a conclusion that the appellant committed such a heinous crime is very dangerous. It is the stand of the learned counsel that the appellant is entitled for benefit of doubt. It is also the submission of the learned counsel that as per the court charge, the period shown is more than one year and the relevancy of the same highlighted by the learned counsel is that originally when the victim was examined by PW6, the doctor, the stand of the victim was that the last episode was prior to the Ramzan days in 2012. But when evidence was given on oath, a very cunning change was made that it was in the year 2013. The relevancy of this change is that if the incident was in 2012 within a span of one year there will not be an incident or averment regarding the incident. Thus, court charge on which conviction entered will cause prejudice to the appellant. Foreseeing this danger, a change was made while evidence was tendered by the victim. Now, relying upon this embellishment, court came to a conclusion that appellant had committed rape upon his own daughter that also relying upon the oral testimony of PW1.

7. Now, analysing the evidence what comes out is that here is a case where the conviction is under Section 376(2) (f), 354A(1)(i) and 506 (ii) of IPC. It is a case of custodial rape. The appellant herein is none other than the father of the victim. It is to be remembered that, as per the evidence, at the initial period i.e. when the victim was residing with the grandmother, her mother was working in gulf. Thus, the person to whom she can make a complaint will be none other than the appellant himself. A guardian when turned as a rapist, then if she was made silent by threat and the power of guardianship, the delay cannot have much relevance. It is further to be remembered that when the mother of the victim came to the native place, the school authorities summoned the appellant herein as evident from the evidence of PW3. It is also relevant to note that while she was studying in 9 th standard i.e. in 2009 period itself, there was a complaint that the appellant herein was sexually harassing. When this was informed to PW3, she referred the matter to the counselling teacher and a note was provided which was marked as Ext.P4. It cannot be assumed or presumed that a former teacher was also helped the police to create a false evidence. Thus, Ext.P4 can be fully relied upon. If Ext.P4 is reliable, the evidence of PW3 is also seen corroborated by the same. What comes out is that even in the year 2009, there was a complaint against the appellant herein in respect of sexual harassment. On the background of the said evidence, when the evidence of PW1 is appreciated, it can be only said that the evidence of PW1 is reliable. It is also relevant to consider the nature of the evidence tendered by the victim in this case. She only deposed regarding the overt act as 'C C C rB"B7B" C&B:C C1C!'. The definition of 'rape' given under Section 375 IPC is as follows:

375. Rape.- A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--

First.- - Against her will.

Secondly. -- Without her consent.

Thirdly. -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.-- With or without her consent, when she is under eighteen years of age.

Seventhly.-- When she is unable to communicate consent.

Explanation 1.-- For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.-- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.-- A medical procedure or intervention shall not constitute rape.

Exception 2.-- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

Surely, in this case there is no oral evidence tendered by the victim that the penis of the appellant/accused penetrated into the vagina of the victim. But she only stated that 'MALAYALAM'. It is relevant to note that there is no cross examination on this point by the defence. The meaning given for the word 'MALAYALAM' in 'Sabthatharavali Sreekandeswaram' by Sri. Sreekandeswaram G. Padmanabha Pillai 4th Edition is that 'MALAYALAM' Rape'. In N.B.S. Malayalam-English dictionary written by Sri. C. Madhavan Pillai the meaning of 'MALAYALAM' is given as 'rape'. Thus, what comes out is that the victim gave an evidence that she was raped. Thus, if the ingredients was not deposed to by deposing 'MALAYALAM' she had brought out the act by given the word signifying the same. Under such circumstances, it can be only held that she had deposed to regarding the ingredients of the offence by using Crl.A.No.655 of 2015 15 the word 'MALAYALAM'. Thus, what comes out is that what she deposed regarding the rape is reliable and hence an offence under Section 376 (2) (f) is seen proved. In respect of 506 (ii) of IPC the victim got a specific case that the accused was doing the same after threatening of death. It can be only held that an offence under Section 506 (ii) was also seen made out. Then next question is regarding Section 354A (1)(i) of IPC. In this case immediately before the filing of the complaint, the victim got a case that her father on 28.9.2013 at noon time at 1.30 hours while she was watching T.V. came and hugged her. Thus, what comes out is that after the amendment brought to Indian Penal Code the offence committed. Thus, the offence under Section 354A (I) (i) is also seen made out. Under such circumstances, there is nothing to interfere with the conviction entered into. The only question is that of sentence. Here is a case where the appellant is none other than the father of the victim. Victim's date of birth as brought out in evidence is 21.5.1994. The minimum Crl.A.No.655 of 2015 16 sentence prescribed is 10 years. The court below awarded a sentence of 12 years. It can be only held that the sentence awarded is only proportionate to the crime committed by the appellant. The sentences awarded on the other heads are also not harsh. Under such circumstances, there is nothing to interfere with the conviction and sentence entered into by the court below. Hence the appeal is dismissed.

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