Baiju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934** ## **CRL.A.No. 644 of 2006 ( )** **-------------------------SC.40/2003 OF II ADDITIONAL ASSISTANT SESSIONS COURT, THRISSUR. CP.17/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, THRISSUR.** **.............** ## **APPELLANT/ACCUSED::** **------------------------------------** **BAIJU, S/O.ANTONY, KANNAMPUZHA HOUSE, J.P. NAGAR, NADATHARA, THRISSUR.** **BY ADVS.SRI.P.VIJAYA BHANU, SRI.P.M.RAFIQ.** ## **RESPONDENT/COMPLAINANT::** **----------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MR.ROY THOMAS.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **P.BHAVADASAN, J.** -----------------------------------------Crl.A. No. 644 of 2006 -----------------------------------------Dated this the 20[th] day of March, 2013 ## **J U D G M E N T** The appellant was prosecuted for the offence punishable under Section 376 of IPC. He was found guilty. He was therefore convicted and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/- in default of payment of which, he had to suffer rigorous imprisonment for three more months. It is also directed that if the fine amount was realized an amount of Rs.8,000/- should be given to PW1 as compensation. Set off as per law was allowed. 2. The incident which gave rise to this case is said to have occurred on 22.01.2001 at about 2.30 in the after noon while PW1, the victim was alone at home. It is seen that the neighbor of PW1 used to entrust her child to PW1 to be looked after while she went for work. As usual, on the date of incident also PW1 was attending to the child. Her mother **-2-** ## **Crl.A. No.644/2006** had gone out for some business. Her father and sisters had gone for work. While she was attending to the child of her neighbour, someone is said to have come from behind and caught hold of her and when she looked back, she found that it was the accused. Though she objected to the conduct of the accused, it is alleged that she was threatened and the objectionable act was committed. While the act was going on, the allegation is that the mother happened to come home and then the accused fled away from the scene. On enquiring about what had transpired, PW1 narrated the incident to PW3. In the evening, when the husband of PW3 came home, they went to the Police Station and laid Ext.P1 First Information Statement. PW7 recorded the same and registered crime as per Ext.P7, FIR. He had MOs 1 to 4 seized as per Ext.P8 mahazar. Investigation was taken over by PW8. He had PW1, the victim examined by PW5 who issued Ext.P5 certificate. After the arrest of the accused, he had subjected him to the potency test and had seized **Crl.A. No.644/2006** **-3-** clothes worn by the accused. He had the materials collected during investigation, sent for chemical analysis and obtained Ext.P4 report. He recorded statement of witnesses, completed investigation and laid charge before the court. 3. The court before whom final report was laid, took cognizance of the offence. On finding that the offences are exclusively triable by a court of sessions, the case was committed to the Sessions Court, Thrissur. The said court made over the case to Second Additional Assistant Sessions Court, Thrissur for trial and disposal. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution examined PWs 1 to 9 examined and had Exts.P1 to P16 marked. MOs 1 to 6 were got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. However, he stated that there was a proposal to have PW1 married to him and **Crl.A. No.644/2006** **-4-** on the date of incident, while he was about to take his meal, PW1 is said to have called him to her house. He went there, after closing the door, he embraced PW1 and kissed her. While that was going on the mother is said to have come to the house and he left the place. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 4. The lower court mainly relied on the evidence of PW1 and came to the conclusion that the offence has been made out and accordingly conviction and sentence followed as already mentioned. The said conviction and sentence are assailed in this appeal. 5. The learned counsel appearing for the appellant assailed the findings of the court below on several grounds. Emphasis was laid on the fact that while PW1, the victim would admit acquaintance with the accused, her mother PW2 was bend upon denying any sort of relationship or **Crl.A. No.644/2006** **-5-** familiarity with the accused and there is every reason to believe that PW1 was a tortured witness. The anxiety on the part of PW2 to deny any sort of acquaintance with the accused, is betrayed by Ext.P5 certificate issued by PW5 wherein, the history of the cause as narrated by PW1 is seen mentioned. It was then contended that as per the evidence furnished by PW1, while the act was being committed since she cried in pain when the first insertion was made, the accused wanted to take coconut oil into his palm and he had taken the bottle and poured the coconut oil and committed the act. The learned counsel for the appellant pointed out that the scene mahazar would show that there was no rack where the coconut oil could have been kept and that in fact the coconut oil was located in the kitchen. 6. The learned counsel appearing for the appellant pointed out that even though, PW1, PW2 or PW3 had no case that there was any ejaculation as a result of the act alleged to have been committed by the accused and none of them **-6-** ## **Crl.A. No.644/2006** had stated that they had occasion to see stains of semen or spermatozoa on the clothes alleged to have been worn by the victim at the relevant time, the FSL report namely Ext.P14 shows that sperms and spermatozoa were detected on four items. Two of them belonged to the accused and two the victim. This indicates the clear attempt to manipulate the evidence to somehow rope in the accused. That should have been considered by the court below. It shows the anxiety on the part of PWs 2 and 3 to implicate the accused under any circumstances. It was also contended that the court below was not justified in relying on Exts. P2 and P3 documents to prove the age of the victim. Ext.P2, the extract of the register maintained by the local authority was produced by her father namely PW3 and so also the extract of the admission register of the school where the victim had studied. The learned counsel went on to point out that these documents are not proved in accordance with law and they could not have been relied on. ## **Crl.A. No.644/2006** **-7-** For the said proposition, the learned counsel relied on the decision reported in **State of Haryana v. Ramsingh** [ **2002 (2) SCC 426]** and **Munshi Prasad and others v. State of Bihar [2002 (1) SCC 351]** . 7. The learned counsel then went on to point out that even assuming all what prosecution case is proved the court below had erred grievously in come into the conclusion that the offence under Section 376 is made out in the case. At best, according to the learned counsel, an offence under Section 354 alone is attracted. It is therefore contended that the conviction and sentence cannot stand. 8. The learned Public Prosecutor on the other hand highlighted that the evidence of PW1 is natural, convincing and cogent enough. Even though, PW2, the mother of the victim was over enthusiastic and anxious to deny any sort of familiarity or acquaintance or relationship with the accused. PW1 was more loyal and she did say that she had a liking for him. The learned Public Prosecutor also drew attention of **Crl.A. No.644/2006** **-8-** this Court to Ext.P5 and pointed out that assuming it to be true, that also goes on to show that there were some contact between the accused and PW1 which is admitted by PW1. The learned Public Prosecutor contended that if as a matter of fact, PW1 was a tutored witness, PW2 would have certainly seen that she would have denied any sort of acquaintance or familiarity with the accused so as to be in tune with the evidence given by PW2. The evidence of PW1 did not correspond to the evidence of PW2. The evidence of PW1 shows the natural spontaneous answers given by her to the questions put to her and that shows that she is the truthful witness. There is no reason to disbelieve her. 9. The learned Public Prosecutor went on to point out that the contention based on the absence of any rack or any other Almirah in the room where the incident had taken place where that coconut oil could have been kept is not of much help to the appellant. It is not necessary that there should be Almirah or rack to keep the coconut oil. The mere ## **Crl.A. No.644/2006** **-9-** fact that at the time of preparing scene mahazar, the coconut oil was detected in kitchen is also not much significance. Of course, the learned Public Prosecutor pointed out that there seems to be some difficulty in explaining the presence of semen or spermatozoa as noticed in Ext.P14. But that is not a ground to disbelieve the entire prosecution case. The learned Public Prosecutor also pointed out that the contention raised against Exts. P2 and P3 are without basis. Referring to the decision relied on by the learned counsel for the appellant, it was contended that those were cases where the post mortem report was in issue and it was held that unless the doctor is examined the contends cannot be taken as evidence. The learned Public Prosecutor pointed out that that principle cannot be applied in the facts of this case for the simple reason that the birth register is the authoritative document under Section 74 and under Section 65, a certified copy of the same is admissible in evidence. More over, it is produced by none other than ## **Crl.A. No.644/2006** **-10-** the father of the victim a person who is most competent to produce the document and therefore, the challenge made against the admissibility and the contents of Exts. P2 and P3 will have to fail. If Ext.P2 is accepted then the learned Public Prosecutor pointed out that Ext.P3 fades into insignificant. 10. The learned Public Prosecutor went on to point out that the court below had appreciated the evidence of PW1 and had found it to be acceptable and there is no reason as to why this Court to take a different view. It is therefore contended that no grounds are made out to interfere with the findings of the court below. 11. As is the usual case, in this case also the decision has to depend upon the acceptability of the evidence of PW1, the victim. Of course PW2, the mother had come home while the incident was taking place, but she had not seen the incident as such. However, she had occasion to see the accused leaving the house. Her evidence is to the effect that she had gone inside and asked her daughter what ## **Crl.A. No.644/2006** **-11-** had transpired who then conveyed the events that took place in the house. It is true that PW2 seems to be over anxious to deny any sort of familiarity or acquaintance with the accused and deny that either she or her daughter used to go to the house of the accused or the accused used to visit their house. 12. PW1, as already stated, is the victim. Going by the evidence on record now available, she was below the age of 15. She unlike her mother admits that she had a liking for the accused. It would appear that there were close contact between the accused and the victim. PW1 gives a detailed description of what transpired on the date of incident. She would say that the accused would try to penetrate his organ into her but when she wriggled and cried out in pain, he wanted to fetch coconut oil to smoothen the action. By that time the mother had arrived and the act was aborted. She would also say that she had gone to the police station along with her parents and furnished Ext.P1, **-12-** ## **Crl.A. No.644/2006** First Information statement. She, as already noticed in cross examination, admitted that she used to visit the house of the accused. It is significant to notice that a suggestion in the cross examination is that her mother had arrived while the accused was actually kissing the victim. That is denied by the victim. PW1 has also admitted that she was aware of the fact that the marriage of the accused had been arranged. This, one may recollect is denied by PW2, the mother of the victim. 13. On going through the evidence of PW1, in spite of severe cross examination, one is unable to find any inconsistency or contradiction in the evidence of PW1 at all. Her version is corroborated by the statements in Ext.P1, First Information Statement. It is also significant to notice that the FIS was laid within a short time after the incident on the same day itself. It is extremely difficult to believe that Ext.P1 was the result of consultation, manipulation and discussion. **Crl.A. No.644/2006** **-13-** 14. Coming to the medical evidence, PW5 is the doctor who had examined the victim. He deposes having issued Ext.P5 certificate. He says that the history of the case was given by the victim herself. His observations are that there was old tear of hymen and there was no fresh tears and that the vigina admitted one finger easily. The opinion given by PW5 is that the victim might have had occasion to sexual act for the last two to three months. However, he would say that clinically there was no evidence of any recent sexual act. The contention with reference to Exts. P14 and P16 does not help the accused much. May be that going by the evidence adduced by PWs 1 to 3 and so also the evidence of the Investigating Officer, there is nothing to show that at the time when the clothes were handed over, they were aware that there were stains of semen or spermatozoa on the clothes. May be the prosecution has offered no satisfactory explanation for the same. But to conclude from the report namely Ext.P14 that the entire evidence is manipulated and **Crl.A. No.644/2006** **-14-** the case has been foisted on the accused is too fasten and is quite uncalled for. 15. The evidence of PW1 has already been discussed. On a consideration of her evidence, there is nothing to show that she is not speaking the truth. On going through the evidence, it has also been seen that she had no reason to falsely implicate the accused. Of course, she would say that she was in love with the accused. 16. Coming to the contention based on Exts. P2 and P3, as rightly pointed out by the learned Public Prosecutor the contention has necessarily to fail. It is true that in the decision cited by the learned counsel for the appellant with reference to the post mortem report, it was observed as follows: “The post-mortem report is a document which by itself is not a substantive evidence but it is the doctor's statement in court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box. In a similar vein the inquest report also cannot be termed to be a basic or **-15-** ## **Crl.A. No.644/2006** substantive evidence being prepared by the police personnel being a non-medical man and at the earliest stage of the proceeding. In the wake of the aforesaid, a mere omission of a particular injury or indication therein of an additional one cannot, invalidate the prosecution case. Discrepancy occurring between the inquest report and the post-mortem report can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case.” 17. A postmortem report stands on an entirely different footing when the extract of the birth certificate obtained from the local authority. A postmortem report is only an opinion of the doctor and unless its contents are deposed by the doctor, it cannot have any evidential value. It is in that context the Apex Court has occasion to hold that mere marking of the postmortem report will not be the proof of its contents. 18. However, the register kept with the local authority with regard to the entries of birth register under Section 74 of the Indian Evidence Act and under Section 65 of the Indian Evidence Act, a certified copy is certainly admissible in evidence. The contention that unless the Secretary of the **Crl.A. No.644/2006** **-16-** local authority or the concerned officer is examined, Ext. P2 cannot be accepted in evidence is without legal basis. One should remember that a person who has produced Ext.P2 is none other than the father of the victim. It is seen that it is on his application that the same was granted. He is the recipient of the document and the father of the child. It could not be said that he is not competent to produce the document. In the light of Ext.P2, one need not spend time about discussing admissibility of Ext.P3 which is only an extract of the school register. If one goes by Ext.P2, the victim at the relevant time was below the age of 16. 19. The next question that arises for consideration is what is the offence that is committed. Of course, the court below has come to the conclusion that the offence of rape has been committed. But the court below seems to have not bestowed its attention to the evidence in detail especially the medical evidence which does not support the case of the recent penetration at all. Of course, the doctor has stated ## **Crl.A. No.644/2006** **-17-** that there are materials to show that she was used to sexual intercourse but there is nothing to show that there has been a recent penetration. This Court is not forgetting the fact that PW1 has stated that there was an attempt for insertion by the accused. When she wriggled and cried out in pain, he retracted and wanted to insert it again. By that time, her mother had arrived and the action had been aborted. On materials, it is difficult to find that there is penetration and the offence of rape is attracted. However, on a consideration of the evidence in the case, it is clear that there was an attempt to commit rape and that the act of the accused falls within the ambit of Section 511 of 376. 20. The next question that arises for consideration is regarding the sentence. The court below has awarded rigorous imprisonment for eight years on the basis of the offence under Section 376. 21. The learned counsel for the appellant pointed out that the accused had already undergone custody for 42 days ## **Crl.A. No.644/2006** **-18-** and that may be taken into consideration while imposing the sentence under Section 511 of 376. 22. After having given anxious consideration for various aspects, especially the age of the victim, the circumstance under which the offence was committed and also the manner in which it was committed, it is felt that the sentence for rigorous imprisonment for a period of three years will meet the ends of justice. In the result, the appeal is partly allowed and the conviction and sentence passed by the court below for the offence punishable under Section 376 is set aside and instead the accused is found guilty of the offence punishable under Section 511 of 376 and he is sentenced to undergo rigorous imprisonment for a period of three years. Set off as per law will be allowed. **P.BHAVADASAN, JUDGE** ds