Crl.A.No.2629 of 2008 & Crl.A.No.2661 of 2008 v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** **CRL.A.No.2629 of 2008 (E)** **-------------------------(AGAINST THE ORDER/JUDGMENT DATED 7-8-2008 IN SC.NO.501/2005 OF ADDITIONAL DISTRICT COURT AND SESSIONS COURT (FAST TRACK-I), TRIVANDRUM.)** ## **APPELLANT(S)/2ND ACCUSED:** **---------------------------------------------** **RAJU, S/O.PACHAN VADAKKUMPURAM KUNNIL VEEDU, CHINTHANIKONAM, ADAYAMON DESOM, PAZHAYAKUNNUMMEL VILLAGE.** **BY ADVS.SRI.T.A.UNNIKRISHNAN, SRI.K.SATHEESH KUMAR.** **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.RAJEEV K.K.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8-2-2013, ALONG WITH CRA. NO.2661/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **C.R.** # **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = Crl.A.No.2629 of 2008 & Crl.A.No.2661 of 2008 = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of February, 2013 ## **JUDGMENT** ## **Ramakrishna Pillai, J.** The accused, who were tried, found guilty, convicted and sentenced to undergo imprisonment for life and to pay a fine of `25,000/- and in default, to undergo simple imprisonment for a further period of three years by the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram, for offences punishable under Section 376 IPC on a charge sheet laid by the Circle Inspector of Police, Kilimanoor, in Crime No.166 of 2003 of the Kilimanoor Police Station, are in appeal before us. The allegation was that they committed rape on the prosecutrix, a minor, on different occasions during the first half of the year 2003. 2. The appellant in Crl.A.No.2661 of 2008 is the first accused, who is none other than the father of the victim. He has preferred the appeal from the Central Prison, Thiruvananthapuram, where he is undergoing imprisonment. Crl.A.No.2629 of 2008 is filed by the second accused, who is the first cousin of the victim. For convenience of discussion they can be referred to as they are arrayed in the impugned judgment. **-:2:-** Crl.As.2629&2661/08 3. The first accused is defended by a counsel engaged at the expense of the State and the second accused is defended by a counsel of his choice. 4. Briefly put the prosecution case, as unfolded through the oral testimonies of PW1 to PW11 and Exts.P1 to P9, is as follows: The first accused, who is the father of the prosecutrix (PW1) married PW2, Chempakakutty, an illiterate woman. Her younger sister was Radha, who was unmarried when the first accused married PW2. All the three, after the marriage, were residing under the same roof. Taking advantage of the absence of PW2 in the house at times, the first accused developed an intimacy and an unwholly relationship with Radha which resulted in the birth of PW1. Thereafter, Radha did not live long. Thus, PW1 was brought up by PW2 and the first accused. In addition to them an old woman named Kunji, who is the elder sister of PW2 was also residing in the house. On a day in May, 2003, PW1 was brought from school by her friends to the house, as she had shown some signs of uneasiness consequent to an unusual vomiting. Though PW1 had attained puberty, she had no menstruation since four months prior to that. But, this was not seriously taken note of by PW2 because PW1 was pale and anaemic in nature. However, as PW1 had uneasiness and vomiting, she was taken to Community Health Crl.As.2629&2661/08 ## **-:3:-** Centre at Kesavapuram, where she was examined by a doctor, who opined that she was carrying. He advised her to go to S.A.T Hospital, Thiruvananthapuram, to undergo medical termination of pregnancy. Thus, she was admitted to S.A.T Hospital on 16.5.2003. When asked, PW1 revealed to PW2 that her father (first accused) had raped her since five months back, four or five times, putting her under fear of death while nobody was in the house. She also revealed that the second accused, who is the son of Savithri, another sister of PW2 residing in the adjacent house, also committed the same act on her four or five times. This was under the threat that he had the knowledge that the first accused was fulfilling his lust on PW1. Both the accused had threatened and warned her that if the matter were disclosed to anybody, they would finish her off. PW1 did not disclose her unusual experience to anybody apprehending danger. PW6, the doctor attached to the S.A.T Hospital, who examined PW1, though concluded that there was no evidence of gestation, found that there was evidence of vaginal penetration and rupture of the hymen. PW6 also noticed collection of blood in the uterine cavity. PW10, the Sub Inspector of Police, Kilimanoor, getting information from S.A.T Hospital, reached there and recorded Ext.P1 First Information Statement of PW1 on 23.5.2003. He prepared Ext.P1(a) body note of PW1. Crl.As.2629&2661/08 **-:4:-** Thereafter, he registered Ext.P7 F.I.R against both the accused under Sections 366 and 376 read with Section 34 IPC. It was he, who conducted the major part of the investigation. Ext.P2 scene mahazar was prepared in the presence of PWs.4 and 5. He obtained Ext.P3 certificate from PW6, who examined PW1 at S.A.T. Hospital. He arrested the first accused. He got the potency test of the first accused conducted by PW7, the then C.M.O., Medical College Hospital, Thiruvananthapuram, and obtained Ext.P4 certificate. He got Ext.P5 scene plan prepared by PW8 who was the then village officer. Ext.P6 certificate, for proving the age of the victim was obtained from PW9, who was the headmistress of U.P.S.Adayamon where PW1 was studying at the relevant time. During the course of investigation the second accused surrendered before the court. PW10 got the potency test of the second accused conducted by PW11 and obtained Ext.P9 certificate. Ext.P8 report was filed by him for deleting Section 366 IPC from the F.I.R. PW10 also questioned the witnesses and recorded their statements. It was the Circle Inspector of Police, who verified the investigation conducted by PW10 and laid charge before the court. 5. The learned Additional Sessions Judge to whom the case was made over after committal, proceeded with the trial complying with all the legal formalities. At the trial, in addition to the witnesses referred to above, a Crl.As.2629&2661/08 ## **-:5:-** neighbour of the victim was examined on the side of the prosecution as PW3 to prove that the second accused had frequented the house of PW1. But, he was not loyal to the prosecution. 6. Two witnesses were examined on the defence side as DW1 and DW2, who are neighbours, with a view to establish that family members of the second accused were at loggerheads with the family members of the first accused, for years. 7. The trial court, after evaluating the evidence, came to the conclusion that both the accused had committed rape on PW1, who was a minor at the relevant time. Thus, they were found guilty, convicted and sentenced as stated in the opening paragraph. 8. We have heard Mr.T.A.Unnikrishnan, the learned counsel appearing for the appellant in Crl.A.No.2629 of 2008, Smt.S.A.Sherly, State Brief appearing for the appellant in Crl.A.2661 of 2008 and Sri.Rajeev K.K., the learned Public Prosecutor appearing for the respondent, quite in extenso. The impugned judgment and the lower court records were perused. 9. While the learned counsel appearing for the accused assailed the impugned judgment on various grounds, the learned Public Prosecutor supported the conviction and sentence and insisted for dismissal of the appeals. The argument advanced by the learned counsel for the accused can Crl.As.2629&2661/08 ## **-:6:-** be briefly summed up as follows: (i) It has not been proper on the part of the trial court to place too much reliance on the testimony of the prosecutrix, who was examined as PW1, to enter into the finding against the accused as the alleged incidents were revealed by her after a long interval. (ii) There is discrepancy between Ext.P1 statement and the testimony of PW1 regarding the period during which the alleged incidents had occurred. (iii) The trial court should not have relied on Ext.P6 certificate issued by the headmistress of the school where the prosecutrix had studied, to come to the conclusion that she was below 16 years of age at the relevant time (iv) The sentence imposed by the trial court is excessive. 10. Before visiting these arguments, it is useful to bear in mind the judicial opinions regarding the evidentiary value of the testimony of the prosecutrix in rape cases. 11. In **Aman Kumar** v. **State of Haryana** [AIR 2004 SC 1497] it was observed by the Apex Court that a prosecutrix in a rape case is not an accomplice and she stands at a higher pedestal than an injured witness. In **Sri.Narayan Saha and another** v. **State of Tripura** [AIR 2005 SC 1452] the Apex Court has observed that if the totality of the circumstances appearing on the record of the case does not have a strong motive to falsely Crl.As.2629&2661/08 ## **-:7:-** involve the persons charged, the court should obviously have no hesitation in accepting the evidence. The trend of judicial opinion is that in rape cases corroboration is not a matter of law, but a guide of prudence as the testimony of the victim is vital unless there are compelling reasons for corroboration (See **Gurcharan Singh** v. **State of Haryana** [AIR 1972 SC 2661] and **Shri Bodhisattwa Gautam** v. **Miss Subhra Chakraborty** [AIR 1996 SC 922]). 12. With these principles in mind, now we will approach the evidence in this case. 13. To prove the guilt of both the accused, the prosecution mainly relied on the testimony of PW1, who is the victim. It is true that PW1 had revealed the incidents to PW2 only in May, 2003, i.e. when she was asked by her on the basis the observation of suspected pregnancy made by the doctor at Community Health Centre, Kesavapuram, where she was admitted consequent to some uneasiness. PW1 narrated the incidents also to PW6, who examined her at S.A.T Hospital. Clinical Examination by PW6 revealed that PW1 had been subjected to sexual intercourse. It was from S.A.T Hospital that PW1 gave Ext.P1 statement to PW10 who reached there receiving intimation from the hospital. She had narrated the incidents to PW10 in her own way and it was on the basis of that, the law was set in motion. Crl.As.2629&2661/08 ## **-:8:-** 14. It was pointed out by the learned counsel for the accused that her version in Ext.P1 regarding the period during which the alleged incidents were said to have taken place does not tally with her version before the trial court. In Ext.P1, she has stated that the first accused, her father, committed rape on her, four or five times about five months prior to the date on which F.I.Statement was recorded. At that time, according to her, she was aged 15 and she was studying in VI[th] standard. While examined before the trial court, she stated that the alleged incidents had occurred while she was studying in V[th] standard. This was pointed out as a serious discrepancy by the defence side. 15. We take judicial notice of the fact that schools in Kerala following State Syllabus normally close for mid-summer vacation by the end of March and re-open during the first week of June. Ext.P1 statement was recorded in the month of May 2003 i.e. when only a few days were left for reopening of schools. It is also relevant to note that promotion of all students to higher classes up to X[th] standard is the rule in this State. So, it was quite natural for PW1 to state that she was studying at VI[th] standard while Ext.P1 was recorded. We also notice from the testimony of PW1 that she was not so intelligent to give a foisted version. 16. It was her specific case that she was subjected to sexual Crl.As.2629&2661/08 ## **-:9:-** intercourse by the first accused on different occasions when nobody was in the house, under threat of death and the second accused, who had occasion to know this, taking advantage of that, also committed rape on her on different occasions. It is her definite case that she could not inform this to anybody as she was threatened by both the accused. The learned Sessions Judge has reproduced the relevant portions of her testimony in the impugned judgment. 17. It would be too idle to expect that a minor girl living in a primitive village condition would disclose such an experience to others without fail. We cannot loose sight of the fact that PW1 was living under the protection of the first accused. The second accused was also in a position to dominate the will of PW1. The conduct of PW1 in this regard appears to us to be most natural. Her not informing other relatives or friends cannot detract from her reliability, as her conduct is an accord with the natural human conduct of a female. We do not see any reason to approach the testimony of PW1 with any element of distrust or suspicion. Her testimony is corroborated by the testimony of PW2, who is the wife of the first accused. 18. PW6, who was the Assistant Professor of S.A.T Hospital, had occasion to examine PW1. She, who gave Ext.P3 certificate, has stated that her examination revealed rupture of hymen though there was no evidence of Crl.As.2629&2661/08 ## **-:10:-** intra or extra uterine gestation. Only collection of blood was seen inside the uterine cavity. The testimony of PW6 would further reveal that PW1 had narrated to her that she had sexual contacts with both the accused. 19. It has been the consistent approach of this Court as well as the Apex Court that in assessing the testimonial reliability of the prosecutrix the courts must have a very practical approach resulting from various circumstances. As stated earlier, it is settled law that corroboration is not the sine qua non for conviction of the accused in a rape case. If further corroboration is insisted in this case, it will add only insult to injury. 20. We remind ourselves of the feminine psychology and behavioural probability which may lead to a tendency to conceal such gruesome incidents. Also, we bear in mind the impossible position of getting independent corroboration of the evidence of the victim in such cases. We are of the view that even medical evidence need not be insisted upon, unless, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 21. Here, we have the unshattered testimony of PW1 corroborated by the evidence of PW2 and PW6 which would reveal that PW1 was subjected to rape on different occasions by both the accused while she was studying in the V[th] standard. Crl.As.2629&2661/08 ## **-:11:-** 22. Arguments were advanced to the effect that there is no convincing evidence on record to show that PW1 was a minor at the relevant period. In Ext.P3 certificate, the doctor has certified that she was only 15 years old at that time. Another piece of evidence to prove the age of the victim is Ext.P6 which is the certificate issued by PW9 who was the headmistress of the school where PW1 was studying at the relevant time. The argument was that Ext.P6 cannot be relied on as the basic proof regarding the age of the prosecutrix is not forthcoming. 23. According to the learned counsel the admission register from the school could have been produced to prove the age of the victim. But the testimony of PW9 would reveal that she had issued Ext.P6 certificate based on the entries in the school admission register. She further added that the entries in the admission register were carried down from the T.C. produced by the parents of PW1 at the time of admission. Evidently and admittedly too, PW9 is the headmistress of an upper primary school. It was after obtaining T.C. from a lower primary school that PW1 was admitted to the upper primary school. The entires in the admission register of the upper primary school were made on the basis of the contents of the T.C. which was issued by the lower primary school in a statutory form. It was on the basis of the entries in the said admission register that PW9 has issued the certificate. We see no Crl.As.2629&2661/08 **-:12:-** reason to discredit either the testimony of PW9 or Ext.P6 issued by her. PW9 by issuing Ext.P6 was performing an official act. Official acts are presumed to be done properly unless proved otherwise. We notice that there is absolutely no challenge regarding the genuineness of Ext.P6 in the cross examination of PW9. 24. Relying on the testimony of DW1 and DW2, it was strenuously argued by the learned counsel for the second accused that the family members of the second accused were in inimical terms with the family members of the victim on account of an incident which had taken place about ten years back. It was also pointed out that PW3, who was cited to prove that the second accused used to go to the house of PW1 while she was alone, turned hostile to the prosecution. But, we have the eloquent testimony of PW1 to prove the involvement of the second accused in the alleged crime. 25. Here, we would like to remember the following observation made by the Apex Court in **State of U.P.** v. **Krishna Gopal and Another** [AIR 1988 SC 2154]:- “Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. Crl.As.2629&2661/08 ## **-:13:-** The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must in the last analysis, rest on the robust commonsense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.” 26. On the totality of the circumstances now placed on record, we are of the definite view that the court below has entered into the correct finding based on acceptable and reliable legal evidence. We see absolutely no reason to disturb the conviction of the accused based on such finding. 27. Coming to the sentence awarded, it was argued on behalf of both the accused that life imprisonment is the upper limit provided for offences punishable under Section 376 IPC and that some leniency be shown to both the accused regarding sentence considering their age. 28. In our view, the object of punishment for crime is two fold. Firstly, a punishment would impress upon the guilty person and other like minded persons that the life of crime does not pay. Secondly, it would promote the cause of an orderly and civilised society. Therefore, a sentence should Crl.As.2629&2661/08 **-:14:-** neither be too lenient nor disproportionately severe. If the sentence is lenient, it looses its deterrent effect. Hence, the court while awarding sentence has a duty to guard itself against the two tendencies and should draw a proper balance between them. 29. The evidence in this case unravels a shocking monstrous incident perpetrated by persons who are expected to be the saviors of a minor girl. The judicial conscience of this Court does not permit to reduce the sentence imposed upon both the accused who had committed such a heinous crime. In the result, both the appeals fail. Accordingly, we dismiss the appeals upholding the finding and confirming the consequential conviction and sentence imposed by the trial court on the appellants. We also uphold the direction of the trial court offsetting the period undergone by both the accused during investigation/trial against the respective sentence imposed by the trial court. **sd/T.R.RAMACHANDRAN NAIR JUDGE** ## **sd/A.V.RAMAKRISHNA PILLAI JUDGE** ## **//TRUE COPY// P.A. TO JUDGE** **krj**