Kizhakkinakath Bhaskaran Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934** **Crl.Rev.Pet.No. 2081 of 2003 ( )** **--------------------------------(AGAINST THE ORDER/JUDGMENT IN CRA.NO.291/2001 OF SESSIONS COURT,MANJERI DATED 11-07-2003) SC.NO.70/1999 of ASSISTANT SESSIONS COURT, TIRUR** **-----------------------** **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **KIZHAKKINAKATH BHASKARAN NAIR, S/O.KUTTIKRISHNAN NAIR,VATTAMKULAM,PONNANI.** **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.C.S.SUNIL** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.R.REMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J. --------------------------------------Crl.R.P. No.2081 OF 2003 --------------------------------------Dated this the 6[th] day of March, 2013.** ## **O R D E R** Faced with the concurrent findings against him for having committed the offences against none other than his daughter PW4 the victim, the accused was convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- and in default of payment of which to undergo rigorous imprisonment for a period of one year by the trial court. The appellate court, though confirmed the conviction, modified the sentence as rigorous imprisonment for four years and directed payment of Rs.1 lakh to PW4 and in default of payment of which to suffer further rigorous imprisonment for two years. The facts necessary for the disposal of the case are follows: 2. PW4, the victim, from the 1[st] standard till 1[st] year PreDegree, was staying with her grandmother whereas her parents **Crl.R.P. No.2081/2003** **2** and siblings were living elsewere. While she was studying for the 1[st] year Pre Degree, she happened to go to the house of the accused for attending a function in the neighbourhood. The allegation is that thereafter she was not allowed to go back to her grandmother's house and she was retained there. The accused used to give her pills which made her drowsy and later she was ravished by him. Later, she had conceived and at his instance, the pregnancy was aborted. Finally, PW4 laid Ext.P8 First Information Statement before the police. A crime was registered on the basis of the same and investigation was done. After completing the investigation, charge was laid before the court. 3. Cognizance of the offence was taken by the court concerned which found that the offence is exclusively triable by a Court of Sessions and committed the case to Sessions Court, Tirur. The latter court made over the case to Assistant Sessions Court, Tirur for trial and disposal. The said court framed charge for the offence punishable under Section 376 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be **Crl.R.P. No.2081/2003** **3** tried. The prosecution had therefore examined PWs 1 to 14 and had Exts.P1 to P15 marked. 4. 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. He stated that her eldest daughter, who is PW4, used to stay separately from her childhood onwards and ultimately due to the instance of the wife and her parents, she was brought to his house. She got admitted in the 2[nd] year PDC and then often she used to go to her earlier residence without informing PW4's mother also. He brought back her from there. When they used to go there, she used to be missing from that place and she used to go to the house of Balakrishnan Nair. When she was taken back, the said Balakrishnan Nair picked up quarrel with him for that. He then says that when he asked about her pregnancy, she said that it was Balakrishnan Nair who is responsible for the same and he had nothing to do with him. On finding that the accused could **Crl.R.P. No.2081/2003** **4** not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence. 5. On an appreciation of the evidence in the case, the trial court found the accused guilty of the offence under Section 376 IPC which was confirmed in appeal. The said findings are under challenge in the Criminal Revision Petition. 6. Learned counsel appearing for the revision petitioner pointed out that a close reading of Ext.P8 First Information Statement, Ext.P10 Section 164 Cr.P.C statement given before the Magistrate court, the evidence of the victim PW4, would show that there are inconsistencies and contradictions and therefore, it is unsafe to rely on the same and it could not be found to be credit worthy. It is also pointed out that PW4 has no consistent case. At one point of time, she would say that she was given pills and on consumption of pills, she used to go to sleep and in another version she says that she could not sleep after taking pills. It is also pointed out that if, as a matter of fact, PW4 had any complaint against the conduct of the accused, she is free to **Crl.R.P. No.2081/2003** **5** go to the grandmother's house or at least have disclosed the matter to her mother. 7. Relying on the decisions in _**Ramdayal** vs._ _**State of M.P and Others**_ (2008 KHC 6278), _**Vettikuzhiyil Jaison alias Jose** vs._ _**State**_ (2003 KHC 2477) and in _**State of Maharashtra** vs._ _**Subhash Sitaram Sangare**_ (2001 KHC 2753), it was contended that the claim of PW4 that she did not divulge the incident to her mother is unnatural and unbelievable and that makes her evidence extremely vulnerable. If a daughter could not have revealed such a matter to the mother, that shows that she had something to hide. A reading of Ext.P14 will show that she was unwilling to stay with her father. Learned counsel pointed out that on an analysis of the evidence, it can be seen that the offence under Section 376 IPC is not made out. 8. Learned Public Prosecutor, on the other hand, reminded this Court of its revisional jurisdiction and it is pointed out that this Court will not be justified in interfering with the concurrent findings unless it is shown that there is any illegality, irregularity **Crl.R.P. No.2081/2003** **6** or impropriety in the findings which are contrary to the provisions. Both the courts below have chosen to place reliance on the evidence of PW4 and the learned Public Prosecutor pointed out that the same stands scrutiny. There is no reason to take a different view and the learned Public Prosecutor emphasized that it is too difficult to believe that a daughter would implicate his father in a case like this unnecessarily and without any justification. It is, therefore, pointed out that no grounds are made out to interfere with the findings of the courts below. 9. Even though the jurisdiction exercised by this Court under Section 397 Cr.P.C is extremely limited, since the learned counsel for the revision petitioner pointed out that the evidence of PW4 has considerable bearing on the issue, he was permitted to read the same before this Court. 10. PW4 is the victim. Her evidence is the crucial evidence. She speaks about the incident. Of course, there are some inconsistencies and contradictions in her evidence when compared to PWs 8 and 10. But those are regarding only one **Crl.R.P. No.2081/2003** **7** aspect i.e. after taking pills, she could sleep or not and has nothing to do with the actual incident which is represented by the father. It was then pointed out that she was made to lie in a separate room and if she did not like the approach of the father, she would have bolted the room from inside. There is no suggestion in that regard to PW4. In the absence of any suggestion, the the said contention cannot be considered at the revisional stage. It is seen from the evidence that PW4 has been staying with her grandmother for a long time and while she was doing the 1[st] year Pre Degree, she came to the house of the accused and thereafter she was not allowed to go back. It is an undisputable fact that during the period while she was retained and detained in the house of the accused, she had conceived. Even though there is no suggestion that the person responsible for the same was Balakrishnan Nair, in the light of the evidence of PW4 and other evidence, it is extremely difficult to accept that allegation. The contention that the unnatural conduct of PW4 should result in discarding her evidence is also without any basis. **Crl.R.P. No.2081/2003** **8** A reading of her evidence shows that when she disclosed about the approach of the father towards her to the mother on an earlier occasion, she told her that he will not do that and the mother conveyed that news to her father and she was beaten. Because of that, she could not trust or have faith in her mother. Thereafter she did not say anything to her mother also. There is no reason to disbelieve her evidence as there is ample reason for not revealing the act of the father to the mother. One cannot omit to note the statement of father that he told her daughter that if she revealed his acts, nobody will believe her and he would see that somebody else is named by her in front of the public. In the light of the evidence of PW4, there is nothing unnatural about her conduct. The contention that even in the house of the accused, her mother, brother so also the mother of the accused were staying and therefore, the version spoken to by PW4 cannot be believed is also unacceptable. PW4 has given a full description of what has transpired in the house and how the accused has approached her. **Crl.R.P. No.2081/2003** **9** 11. As rightly pointed out by the learned Public Prosecutor, it is inconceivable that a daughter would simply stand up against the father with such an allegation. Whatever that be, the courts below have considered the evidence of PW4 in detail and found the same to be acceptable. The contention that none of the other relatives of the victim are examined and that was deliberate because had they been examined, the truth will come out, is also without any basis. 12. One may again recall the evidence of PW4. It is to the effect that when she threatened her father that she would disclose the incident, he told that nobody will believe her and that has already been referred to. Therefore, PW4 could not be found fault with. There is no merit in the contention that not examining the other relatives of the victim, the victim should be disbelieved. 13. In spite of the best efforts of the learned counsel for the revision petitioner, he was unable to point out any irregularity in the findings of the courts below which warrants interference by this Court in revisional jurisdiction. **Crl.R.P. No.2081/2003** **10** Learned counsel appearing for the revision petitioner then pointed out that the family of the accused is depending solely on him. Learned Sessions Judge who considered the appeal has been extremely considerate to the revision petitioner and has reduced the substantive sentence from seven years to four years. A further reduction is not warranted and if at all the lower court has erred in interfering with the sentence, it has erred on the side of leniency. The revision petition is without merit and it is liable to be dismissed and I do so. The revision petition is dismissed. ## **P.BHAVADASAN JUDGE** smp