KUNHAMMED @ MUHAMMED @ AHAMMED v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 30TH DAY OF MAY 2013/9TH JYAISHTA 1935** **CRL.A.No. 1405 of 2006 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 304/2001 of ADDL. DIST. COURT (ADHOC)-II, KALPETTA DATED 19-07-2006** **--------------** **APPELLANT/ACCUSED: ------------------** **KUNHAMMED @ MUHAMMED @ AHAMMED AGED 43 YEARS, S/O.MOIDU HAJI, KUALAPARAMBATH THAZHAKUNI, MUTHUVADATHOOR.P.O, VIA PURAMEL VADAKARA.** **BY ADVS.SRI.KRISHNA PRASAD. S SRI.C.K.RAFEEK** **RESPONDENT:** **-----------** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA (FOR CI OF POLICE, MEENANGADI POLICE STATION CR.NO.94/93).** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vk** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1405 of 2006 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of May, 2013. ## **JUDGMENT** The accused was prosecuted for the offence punishable under Section 376 of Indian Penal Code. He was found guilty. He was, therefore, convicted and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.25,000/-, in default, to suffer simple imprisonment for six months. It was also directed that if the fine amount is realised, the same shall be paid as compensation to the defacto complainant. Set off as per law was allowed. 2. P.W.2 is the victim in this case. She was aged more than 16 years as on the date of the incident. It seems that right from her childhood, she was attending to work in various houses and as per the prosecution allegation, she was taken as a house maid to the house of one Ahammed Haji. On reaching there, she found it difficult to continue there and wanted to return. She informed her parents and they sent the accused to fetch her back. The prosecution Crl.Appeal.1405/2006. 2 case is that the accused went to the house of Ahammed Haji and returned along with P.W.2. On the way, since it became too late in the night, they stayed in the house of P.W.14. The allegation is that there, in the night, the accused ravished P.W.2 twice. The next day, on reaching home, she conveyed the information to her mother, who in turn informed her father, who are P.Ws.4 and 5 respectively. She was then taken to the hospital where she was examined by P.W.1 who issued Ext.P1 certificate. On getting intimation from the hospital, P.W.10 went over to the hospital and recorded Ext.P3 first information statement furnished by P.W.2. On the basis of the said information, he registered Crime as per Ext.P3(a) FIR. Investigation was taken over by P.W.15. He prepared Ext.P8 scene mahazar and seized M.Os. 1 and 2 as per Ext.P4 mahazar. He filed Exts.P10 and P11 reports before the court. On the arrest of the accused, P.W.15 had the potency test of the accused conducted and obtained Ext.P9 certificate. He recorded the statements of Crl.Appeal.1405/2006. 3 witnesses. His successor-in-office P.W.16 completed investigation and laid charge before court. 3. The court before which final report was filed took cognizance of the offence. Finding that the case is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Wayanad under Section 209 Cr.P.C. The Sessions Court made over the case to Additional Sessions Court (Adhoc) II, Kalpetta for trial and disposal. 4. The later court, on receipt of records and on appearance of the accused, framed charges for offence punishable under Section 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 16 and had Exts.P1 to P12 marked. M.Os. 1 to 3 were got identified and marked. The defence had Exts.D1 to D3 marked, which are the contradictory portions in the statement under Section 161 Cr.P.C. of the respective witnesses. After the close of 4 Crl.Appeal.1405/2006. 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. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. 5. On an appreciation of the evidence in the case, the court below found the evidence of P.W.2, the victim, convincing enough to hold that the victim was sexually abused by the accused. Accordingly, the conviction and sentence as already mentioned followed. 6. The said conviction and sentence are assailed in this bail. 7. Learned counsel appearing for the appellant pointed out that the court below has erred both on facts and in law in placing implicit faith on the evidence of P.W.2. Relying on the evidence of P.W.2, learned counsel 5 Crl.Appeal.1405/2006. contended that, on a close scrutiny of the evidence of P.W.2 it can be seen that she had given contradictory versions regarding the material aspects of the case. According to the learned counsel, even assuming that P.W.2 has stated that she has been ravished, that claim of P.W.2 does not get support from medical evidence. There is nothing to show, according to the learned counsel, that P.W.2 was either threatened or intimidated so as not to reveal the incident either to the inmates of the house where they had stayed or to her parents. Learned counsel also drew the attention of this court to the fact that in Ext.P1 FIS, the victim has stated that the second incident occurred almost 15 – 20 minutes after the first incident, whereas in her evidence she had stretched it to after 2 – 3 hours. Attention was drawn to the fact that there are considerable inconsistencies and contradictions regarding the persons who had taken P.W.2 to the house of Ahammed Haji. On going through the evidence of P.Ws.2 and 4, it was contended that if one reads the Crl.Appeal.1405/2006. 6 evidence of P.W.2, her evidence is to the effect that as a result of the act committed by the accused she had bleeding and blood has fallen on the sheet on which she had slept. That sheet has not been seized and there is nothing to show that the claim made by P.W.2 is true. Referring to the FSL report, proved through P.W.11, it is contended that none of the materials sent for examination showed the presence of semen and spermatozoa, that according to the learned counsel, is sufficient to show that the claim made by P.W.2 is incorrect. Referring to the evidence of P.W.2, it was pointed out that she has infact conceded that there was a demand for money from the accused and she was prepared to settle the matter on the date of examination. This would show that the real intention of the victim was to extract money from the accused. Referring to the evidence of P.W.2, it was contended that according to her, the accused had closed her mouth with one of his hands so as to disable her from making any noise. But, in cross examination, she had Crl.Appeal.1405/2006. 7 deposed that the accused had used both his hands to remove her undergarments. According to the learned counsel, that would show the weakness in the evidence of P.W.2. There is nothing, according to the learned counsel, to show that the accused had threatened the victim, so that the victim was afraid to reveal the incident to the inmates of the house where they had stayed overnight. Referring to the decision reported in **State of Orissa v. Sukru Gouda** ((2009) 2 SCC 118), it was contended that if two views are possible, the view in favour of the accused should be accepted. Referring to the decision reported in **Devinder Singh v. State of H.P.** ((2003) 11 SCC 488), it was contended that medical evidence is of utmost importance and when medical evidence belies the prosecution case, the evidence of prosecutrix cannot be accepted. Reliance was also placed on the decision reported in **Thomas A.O. v. State of Kerala** (2009(1) KLD 370), where the importance of medical evidence, according to the learned counsel, was Crl.Appeal.1405/2006. 8 highlighted by this court. 8. Apart from the evidence of P.W.2, there is absolutely no evidence which would show that the claim made by the victim is true. Learned counsel would emphasis that the inconsistencies and contradictions in the evidence of P.W.2, the fact that medical evidence does not support the victim, the fact that the bed sheet containing blood was not seized, and also the entries in the FSL report show the hollowness of the prosecution case. Referring to the evidence of P.W.1, the doctor, who examined the victim, it was contended that the doctor does not say that there was any evidence of rape. Under these circumstances, learned counsel contended that the court below was not justified in coming to the conclusion that the evidence of P.W.2 is of such a sterling character, so as to inspire confidence in the mind of the court. According to the learned counsel, therefore, the conviction and sentence cannot stand. Crl.Appeal.1405/2006. 9 9. Per contra, learned Public Prosecutor contended that the fact that the victim has undergone medical examination within a short span of the incident and also the fact that the first information statement has come into existence within a day of the incident gives credence to the version and rule out any embellishment or development. It was contended that though there was a suggestion that when Rs.5000/-, which was paid to the parents of P.W.2 when she had taken for work in the house of Ahammed Haji, was demanded back, the victim and her parents foisted a false case against the accused, but there was no such explanation offered by the accused at the time of questioning under Section 313 of Cr.P.C. Learned Public Prosecutor also pointed out that it will not be correct to say that the medical evidence does not support the prosecution case. The evidence of P.W.1 does not rule out the possibility of sexual assault and the hymen was seen ruptured. He does not say that the rupture of the hymen was seen to be 10 Crl.Appeal.1405/2006. an old one. Learned Public Prosecutor pointed out that penetration, however slight, is sufficient to attract offence under Section 376 of I.P.C. In support of the said contention, learned Public Prosecutor relied on the decision reported in **Chenthamara v. State of Kerala** (2008(4) K.L.T. 290). It was contended that it is inconceivable that a girl would taken upon herself such a humiliating act so as to wreak vengeance for having demanded return of Rs.5000/-. Learned Public Prosecutor contended that the court below, which had the opportunity to watch the demeanor of the witnesses, has chosen to believe the version given by P.W.2 and unless it is shown that the findings of the court below are perverse or contrary to the evidence on record, interference may not be justified. 10. As usual, the main evidence in this case regarding the incident is to be gathered from the testimony of P.W.2, the victim. There is evidence to show that P.W.2 from her young days itself was engaged in household work Crl.Appeal.1405/2006. 11 and at the time of incident she was working as a maid in the house of Ahammed Haji. The evidence of P.W.2 as well as P.W.4 would show that P.W.2 found it difficult to continue in the house of Ahammed Haji and she wanted to come back to her house. She informed her parents and they sent the accused to fetch P.W.2 from the house of Ahammed Haji. 11. The evidence of P.W.2 is to the effect that the accused reached the house of Ahammed Haji and she accompanied him to return home. He took her through Thamarassery and they reached Meenangadi by about 12'o clock in the night. When they dismounted from the bus, the accused informed her that there was no bus at that time to her house and therefore, they could stay in a house of the friend of the accused which is nearby. They hired a jeep and got down a little further. They passed through by-lanes and reached the house of the friend of the accused. P.W.2 would say that P.W.14 was there along with another old man. To them, the accused represented that P.W.2 was the Crl.Appeal.1405/2006. 12 daughter of the sister of his mother. They were allowed to stay there. Both of them occupied a small room in which there were two cots, one was occupied by the accused and the other by P.W.2. The version of P.W.2 is to the effect that little while thereafter, the accused came beside her and closed her mouth and asked her not to make any sound. Then she narrates about the incident which took place. At the time of evidence, she would say that the accused, after the first incident told her not to disclose the incident to anybody and if she did so, she would be done away with. Because of that, she did not reveal the incident to anybody. The evidence of P.W.2 shows that the act was repeated once again in the night and they left the house and they reached the house of P.W.2 by about 10 a.m.. She would say that she immediately conveyed the matter to her mother and she was taken to the Government Hospital at Mananthavady. She was admitted in the said hospital and she would say that police came there and she gave Ext.P3 first information 13 Crl.Appeal.1405/2006. statement to the police. 12. P.W.1 is the doctor who had examined P.W.2 along with another doctor when she was brought to the hospital. Ext.P1 is the certificate prepared by them. It is true that no external injuries were noticed by P.W.1. But he has noticed the history given by the patient at the time of examination. The history shown in Ext.P1 as narrated by the victim to him is that she was ravished by the accused. P.W.1 noticed that the hymen was ruptured. But based on his observation, he has given evidence to the effect that there was no resistance offered by the victim. Going by Ext.P1, final opinion was deferred till receipt of chemical analysis report. In his evidence, he would say that since the hymen was not found to be in tact, the possibility of sexual assault cannot be ruled out. 13. The evidence of P.Ws.4 and 5 are of little significance except that P.W.4 would say that her daughter told her about the incident. P.W.5 was declared hostile. He Crl.Appeal.1405/2006. 14 has not told to the police that his daughter had been ravished. 14. P.W.14, the person in whose house the victim as well as the accused are alleged to have stayed in the night of 18.6.1993 did not support the prosecution case. Her evidence is also of no help to the prosecution. But one fact needs to be noticed that her claim that her house had two or three rooms belies the plan prepared where only one room is shown in that house. 15. The inconsistencies and contradictions pointed out regarding the persons who took P.W.2 to the house of Ahammed Haji is of little significance. It does not matter as to who had taken her to the house of Ahammed Haji for the simple reason that there is not much dispute that on 18.6.1993 the accused had gone to the house of Ahammed Haji to fetch her back. This aspect of the case spoken to by the victim gets support from the evidence of P.W.4. Even the accused had no case that the accused had Crl.Appeal.1405/2006. 15 not gone to the house of Ahammed Haji to fetch P.W.2 back. 16. The contention based on Ext.P1 and the evidence of P.W.1 that the medical evidence does not support the claim made by P.W.2 may not be quite correct. It is true that no external injuries were noticed by P.W.1 thereby indicating that there was no resistance offered by the victim. But P.W.2 has not stated that she had offered any resistance. Her evidence is to the effect that when the accused caught hold of her, she was asked not to make any sound and therefore, she kept quiet. She also says that after the first incident, due to fear, she did not make any sound. The contention that P.W.2 did not in so many words say that she was threatened with dire consequences and that she would be done away with if she revealed the incident to anybody and that shows that there was no intimidation, cannot be accepted. True, there are minor developments in this regard at the time of evidence. It is those aspects which have been spoken to by her at the time Crl.Appeal.1405/2006. 16 of evidence which are pointed out as omissions and contradictions, which according to the learned counsel for the appellant, would make the evidence of P.W.2 vulnerable. 17. Admitting that the victim has not in so many words stated that she was threatened with dire consequences and she would be done away with if she revealed the incident to anybody, she had of course mentioned in Ext.P1 that she was afraid and that at the time of the first incident she was asked not to make any sound. If as a matter of fact fear was created in the mid of the victim because of the conduct of the accused, the mere fact that the victim has not stated in somany words that she was threatened with dire consequences and she would be done away with if she revealed the matter to anybody, does not assume importance at all. One has to remember the plight of the victim at the relevant time and the position in which she was placed. Crl.Appeal.1405/2006. 17 18. Going by the evidence of P.W.1 and Ext.P1, it could not be said that there is no evidence of penetration at all. In the decision reported in **Chenthamara v. State of Kerala** (2008(4) K.L.T. 290), it has been held as follows: _“(i) Slightest penile-vaginal entry will amount to sexual intercourse._ _(ii) The term penetration means, the process of finding access through; making/forcing a way through; passing through something or finding access into; making/forcing a way into something. (iii) The penis in its attempt to find an “access into” or make/forces a way into or towards vagina, for which, there need not be any entry of penis through vagina; would necessarily and forcibly come into contact with some other external portion of the female genitalia and such penile access to the external portions of the female genitalia can also be treated as penetration for the purpose of S.375._ _(iv) Penile accessing of the external portions of the female genitalia is sufficient to attract the offence of rape._ Crl.Appeal.1405/2006. 18 _(v) Penile/vaginal entry is not a must and on the contrary, even in the absence of such entry, rupture of hymen, injury on the vagina, or presence of sperm in the vaginal smear etc., the offence of rape can be committed. (vi) Penetration into vulva/pudendum, labia majora etc. is sufficient to constitute the offence of rape.”_ The fact that hymen was seen ruptured shows that there was penetration and that was sufficient to attract offence under Section 375 I.P.C. 19. It is true that P.W.2 has stated that as a result of the act committed by the accused, there was bleeding from her private part and there was blood on the sheet. P.W.15 has stated that he has not seized the sheet nor did he find one. The mere fact that P.W.2 has spoken so and no sheet was recovered does not make the entire evidence of P.W.2 unacceptable. It is true that P.W.2 has stated that after the second incident, there was ejaculation from the Crl.Appeal.1405/2006. 19 accused and she had wiped off semen and spermatozoa using her undergarments. It is here that learned counsel for the appellant relies heavily on Ext.P7 report marked through P.W.11 in which it is mentioned that no semen and spermatozoa were detected from M.Os. 1 to 3, which are the garments said to have been worn by the victim at the relevant time. 20. However, learned counsel for the appellant forgets the fact that P.W.2 as well as P.Ws.4 and 5 stated that when the victim reached the house, she washed her cloths and the evidence of P.W.11 would indicate that when the cloths are washed it is possible that semen and spermatozoa may not be detectable at all. Absence of semen and spermatozoa by themselves are not grounds to come to the conclusion that there was no rape at all. 21. The contention based on the interval between the two incidents mentioned by P.W.2 in Ext.P3 and in her evidence is not of much significance. One has to remember Crl.Appeal.1405/2006. 20 that the victim had been undergoing a traumatic experience and it is imprudent to expect that the victim should remember the interval between the first incident and the second incident. It is true that at the time of lodging Ext.P3 FIS she has stated that it is after 15 minutes of the first incident that the second incident occurred, while at the time of giving evidence, she would extend the time by 2 - 3 hours. Apart from the fact that one cannot expect a photographic narration of the incident, it is also difficult to expect a victim to speak with mathematical precision the time lag between the two incidents. 22. The contention that P.W.2 had admitted that money was demanded from the accused and she is willing to give a quietus to the matter on getting money shows the hollowness of the prosecution case and also that a false case has been foisted as contended by the learned counsel for the appellant cannot be readily accepted. It has come out in evidence that at the relevant time the accused was married. Crl.Appeal.1405/2006. 21 Probably, finding that the accused could not marry the victim, or that the victim was not interested in marrying the accused, as a matter of fact she would have been satisfied by compensation. That answer given by P.W.2 cannot be given undue importance and that cannot be equated to the situation that the entire case has been foisted for money. 23. The contention that in Ext.P3, it is stated that the accused had used one of his hands to close the mouth of P.W.2, while in her evidence, she had stated that the accused had used both his hands to remove her undergarments is inconsistent and contrary and therefore, the evidence of P.W.2 has to be disbelieved in toto, cannot be accepted. 24. One need not be much concerned as to whether one hand is used or two hands were used by the accused to remove the undergarments of the victim at the time when the initial act was committed. As already stated, a graphic description of the incident cannot be expected Crl.Appeal.1405/2006. 22 from P.W.2 especially when the evidence is taken years after the incident and certain inconsistencies and contradictions are bound to occur in her evidence . 25. It is true that in the decisions reported in **Thomas A.O.'s case** and in **Devinder Singh's case,** medical evidence was considered as one of the main aspects to consider the case of rape. But in none of the decisions, it has been held that unless there is medical evidence which supports the case of the victim, the victim should be disbelieved. It is well settled that absence of injuries or absence of semen and spermatozoa in the undergarments said to have been worn by the victim at the relevant time are not grounds to disbelieve the version of the prosecutrix which if otherwise found to be creditworthy. Therefore, the said decisions can be of no help to the appellant. 26. It is well settled that if the evidence of the prosecutrix is convincing, cogent and creditworthy, conviction can be based on the uncorroborated testimony of Crl.Appeal.1405/2006. 23 the prosecutrix. If on the other hand, it is found that there is doubt regarding the evidence of the prosecutrix, then it is prudent to look for corroboration. 27. One has to remember that in such a case, the victim does not stand to gain anything by taking upon herself such a humiliating act. The incident has occurred in 1993 at a time when the society was very conservative. It is also significant to notice the suggestion made to P.Ws. 2, 4 and 5 is regarding the return of Rs.5000/-. But that fact is not spoken to by the accused at the time of questioning under Section 313 Cr.P.C. and he offered no explanation at all. 28. Learned counsel appearing for the appellant then contended that within an year of the incident, the victim had been married and that would show that the claim is false. One fails to understand the logic behind the said argument. The fact that a person had married the victim does not mean that what she says is not true. Unless it is 24 Crl.Appeal.1405/2006. found that the evidence of P.W.2 is inherently weak or intrinsically improbable, it is imprudent on the part of the court to reject her evidence on the ground that she got married soon after the incident. It is pointed out by the learned Public Prosecutor that soon after the incident the accused had absconded. That may or may not be a ground to suspect the accused. 29. On a careful scrutiny of the evidence of P.W.2, there is nothing to show that she had any oblique motive or reason to falsely implicate the accused. As already noticed, there can be no dispute regarding the fact that it was the accused who had gone to the house of Ahammed Haji to fetch the victim and that they had left the house of Ahammed Haji on 18.6.2003 and reached the house of the victim only on 19.6.2003 at 10 a.m. There is no suggestion to P.W.2 that they had not stayed in any house while returning from the house of Ahammed Haji to her house on 19.6.2003. Therefore, the hostile attitude adopted by Crl.Appeal.1405/2006. 25 P.W.14 speaking in favour of the accused is of no help to the accused. 30. The court below has considered the evidence in considerable detail and has come to the conclusion that the evidence of P.W.2 is acceptable and creditworthy. We should remember that the said court had the opportunity to watch the demeanor of the witnesses and has chosen to accept the evidence of P.W.2. None of the factors urged by the learned counsel for the appellant are sufficient to suspect the evidence of P.W.2. The result is that the evidence of P.W.2 stands scrutiny and there is no reason to reject the same. If the evidence of P.W.2 is acceptable, the court below was justified in entering a conviction. The result is that the conviction has to stand. 31. What then needs to be considered is the question of sentence. The court below has awarded rigorous imprisonment for seven years and fine of Rs.25,000/- with a default sentence of simple imprisonment for six months. At Crl.Appeal.1405/2006. 26 the time of the incident, the victim was aged only little over 16 years while the accused was aged nearly 30 years and the accused was married and had children. If the court below has erred, it has erred only on the side of leniency. The court below has awarded only the minimum sentence and therefore, it calls for no interference. The result is that the conviction and sentence has to stand and this appeal is only to be dismissed. I do so. P. BHAVADASAN, JUDGE sb.