Mammooty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933** **Crl.Rev.Pet.No. 1571 of 2002()** **------------------------------** **CRA.16/1997 of ADDL. SESSIONS COURT (ADHOC), KALPETTA SC.45/1996 of ADDL.SESSIONS JUDGE, SULTHANBATHERY** **....................** **REVN. PETITIONER/ APPELLANT/ACCUSED:** **------------------------------** **MAMMOOTY, S/O. AVULLAH, KARINHAKUNNU, KOTTATHARA AMSOM, VYTHIRI, WAYANADU.** **BY ADV. SRI.LALJI P.THOMAS SRI.V.A.MATHAI** ## **RESPONDENT/ RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR, SMT.S.HYMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S.GOPINATHAN, J.** ## **---------------------------Crl.R.P.No.1571 OF 2002 ----------------------------Dated this the 24[th] day of November, 2011** ## **O R D E R ~~~~~~~** Revision petitioner is the accused in Sessions Case No.45/96 on the file of the Assistant Sessions Judge, Sulthanbathery. He was convicted by the learned Assistant Sessions Judge for offence under Sections 376 and 506(ii) IPC. He was sentenced to rigorous imprisonment for 7 years and a fine of Rs.10,000/- under Section 376 IPC. For offence under Section 506(ii) IPC, he was sentenced to simple imprisonment for one year. A default sentence of rigorous imprisonment for one year was also slapped for non-payment of fine. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.16/97 before the Sessions Judge, Wayanad. The Additional Sessions Judge (adhoc), Wayanad, to whom the appeal was made over, by judgment dated 31.8.2002, confirmed the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred. Crl.A.No.1571/2002 2 2. I have heard Adv.Sri.Lalgi.P.Thomas, the learned counsel appearing for the appellant as well as Smt.S.Hyma, the learned Public Prosecutor. The judgments of the courts below were also perused. The learned counsel for the appellant submitted that he is not assailing the conviction and confining the appeal to sentence alone. He produced document No.487/2011 along with a photocopy of the same. He also produced the prosecutrix (PW2) stating that 4.05 Ares of land in Resurvey 382/2/1 of Kottathara Village was assigned in favour of PW2, who had agreed to settle the matter. The learned counsel had also canvassed my attention to the decision reported in Baldev Singh v. State of Punjab [AIR 2011 SC 1231] and submitted that following the decision of the Apex Court in the light of the assignment of the land in favour of PW2 sought for letting the revision petitioner free of substantive sentence. 3. PW2, as on the date of the crime, was only 17 years old. At about 2. p.m., about six months prior to 18.4.1995, the date of complaint, while PW2 was going to the nearby river for fetching water, the appellant, who, was hiding in a nearby coffee Crl.A.No.1571/2002 3 garden jumped into the byelane, caught hold of her, overpowered and made her lie at the byelane and committed rape on her. She was further intimidated that in the event it was disclosed, she would be done away. Being got intimidated, PW2 didn't disclose the incident. As a result of the rape, PW2 was conceived. By the advancement of pregnancy, prenatal illness persuaded her to disclose the incident to PW3, her sister-in-law, on 17.4.1995. Accordingly, PW3 took PW2 to PW1, who was working as Medical Officer in Wayanad Co-operative Hospital, Kalpetta. On examination, PW1 noticed that PW2 was pregnant and her uterus was enlarged to 26 weeks size. Advised by PW1, PW2 was taken to Leo Hospital, Kalpetta for ultrasound evaluation. PW10, the Medical Officer in that hospital, after scanning, reported that PW2 had a single live foetus having 25 weeks and 5 days size. Thereupon, Ext.P2, First Information Statement was lodged before PW12, the Head Constable, who registered the case as Crime No.73/1995 by Ext.P9 First Information Report. The investigation was taken over by PW11, the Circle Inspector, which was completed by PW13, another Circle Inspector and submitted the chargesheet before the Chief 4 Crl.A.No.1571/2002 Judicial Magistrate, Kalpetta, where it was numbered as C.P.2/96. Since the offence alleged is triable by a court of session, the Chief Judicial Magistrate committed the case to Court of Session, Kalpetta, fromwhere it was made over to the Assistant Sessions Judge. 4. The revision petitioner, in response to the process issued, entered appearance and pleaded not guilty to the charge when framed and explained. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 13 were examined. Exts. P1 to P9 and D1, D1(a), D2 and D2(a) were marked. The revision petitioner took up a defence of total denial. Though he was called upon to enter his defence, no defence evidence was adduced. The learned Assistant Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced as above. 5. PW2, the prosecutrix, is the sole witness in support of the offence alleged. She had given evidence is support of the First Information Statement, Ext.P2. Though she was subjected Crl.A.No.1571/2002 5 to searching cross-examination, no material was disclosed to disbelieve her. Of course, there are minor discrepancies in the evidence of PW1. The evidence of the sister-in-law as PW3 corroborates with the evidence of PW2. The evidence of PWs1 and 10 also corroborate with the evidence of PW2. The only defect I notice is that PW2 didn't complain soon after or within a reasonable time. She had got a very convincing explanation that she was intimidated to death. The learned Assistant Sessions Judge, who had the occasion to watch the demeanour of the witness, did believe her. No good reason is there to disbelieve the witness. It is pertinent to note that the revision petitioner has no case of any ill-will or malice against PW2. The son born out of the rape is now aged 17 years. He was also produced by the learned counsel for the revision petitioner. Though late, the revision petitioner has to concede and the document mentioned earlier pertaining to 4.05 Ares of land reflect the guilty conscience of the revision petitioner. Sitting in revision, I find no reason to interfere with the concurrent finding of the courts below after believing PW2. Therefore, I find no reason to interfere with the conviction under challenge. Crl.A.No.1571/2002 6 6. Though the learned counsel for the revision petitioner vehemently argued for modifying the substantive sentence after giving reliance to the decision in Baldev Singh's case (supra), I find that it would not be just and appropriate to reduce the substantial sentence on the basis of the assignment of 4.05 cents of land through the document produced before me. On my request, the learned Public Prosecutor enquired with the Tahsildar, Bathery regarding the nature of the property. It was told that the land at that area may fetch Rs.30,000/- per cent. It is also reported that there was some coffee plants. It is a matter of common knowledge that such yield would not fetch anything for the survival of PW2 with the child. By appearance, PW2 and the child are ill-nourished. The learned counsel for the revision petitioner submitted that the revision petitioner had arranged some petty job to the son of PW2 in a shop at Bangalore and getting some payment. However, it is not disputed that even the child didn't get basic education and he has to go to another State to fetch pittance for the bread. It is also revealed out that PW2 had filed petition before the Family Court, Kalpetta seeking Crl.A.No.1571/2002 7 order for maintenance of the child. It is in that circumstance, the land was assigned in favour of PW2. Whatever may the circumstance, since the revision petitioner had assigned land worth about Rupees three lakhs in favour of the prosecutrix and having followed the decision of the Apex Court in Baldev Singh's case (supra), I find that it would be just and appropriate to reduce the substantive sentence to the sentence already undergone and enhance the fine amount to a substantial amount, which may be given to PW2 as compensation, so as to have the same invested and to get some amount by way of interest on investment in Fixed Deposit. Therefore, I find that it would be appropriate to modify the sentence to the imprisonment already undergone with a fine of Rs. three lakhs. 7. In the result, the Revision Petition is allowed in part. While confirming the conviction, the substantive sentence is reduced to imprisonment already undergone with a fine of Rs.Three lakhs. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for three years. The fine amount, if collected, shall be paid to PW2 as Crl.A.No.1571/2002 8 compensation. The Assistant Sessions Judge, before releasing the amount to PW2, shall ascertain that the amount is invested in Fixed Deposit at least for a period of five years with liberty to PW2 to withdraw the periodical interest. In the event she proposes to withdraw the amount, she shall make application to that effect before the Assistant Sessions Judge, who, on satisfaction of the need urged can release the amount in part or in full as the circumstance warranted. The revision petitioner is granted two months time to remit the fine amount. The learned Assistant Sessions Judge shall see the execution of the sentence and report compliance and also see that PW2 was actually put in possession of the land assigned to her by the revision petitioner as per the document now produced before me. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/29/11**