Manoharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 3RD DAY OF JULY 2013/12TH ASHADHA, 1935** ## **Crl.Rev.Pet.No. 1170 of 2008** **---------------------------------------[AGAINST THE JUDGMENT IN CRL.A.NO.481/2005 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA, DATED 14-09-2007, FROM THE JUDGMENT IN S.C .NO.394/2001 OF THE ASSISTANT SESSIONS COURT, MAVELIKKARA DATED 11-07-2005]** **...........** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **MANOHARAN, AGED 41 YRS., S/O.RAMAN, KUTTIYIL THEKKEKKARA KIZHAKKU, PALLIPPADU VILLAGE, HARIPPAD, ALAPPUZHA DISTRICT.** **BY ADV. SRI.K.RAMANATHAN.** ## **RESPONDENT/RESPONDENT/STATE:** **-----------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.R.P. No. 1170 of 2008 - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of July, 2013. ## ORDER Faced with the concurrent finding of having committed the offence of rape on P.W.4, and having suffered conviction for the offence under Section 376 of Indian Penal Code and sentence of 7 years rigorous imprisonment and fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for six months, the accused has come up in revision. 2. P.W.4 is the victim in this case. She at the relevant time was studying in the 8[th] standard. She was staying with her parents and brother, who was a school going boy. Her parents are casual labourers. The accused, who is closely related to her, resides a little distance away from her house. According to her, the accused quite often used to visit her house and the two families were on cordial terms. On a day in January, 2000, while she was running fever and had not gone to school, the accused came to her house. Her parents Crl.R.P.1170/2008. 2 had gone for work and her younger brother had gone to school. When the accused arrived in the house, she was in the kitchen. According to the allegations, the accused came from behind and caught hold of her and she was forcibly laid on the floor and ravished. The further allegation is that she was threatened with dire consequences in case she dared to divulge the incident to anybody and the further allegation is that the act was repeated on a few subsequent occasions also. Ultimately, on 13.6.2000, when she had developed abdominal pain and she was taken to the doctor, it was revealed that she had conceived. On enquiry by the mother, she revealed what had transpired and person responsible for the same. On 4.7.2000 Ext.P2 first information statement was laid. P.W.14 recorded the first information statement and registered crime as per Ext.P9 FIR. Investigation was taken over by P.W.15 on 4.7.2000. He prepared scene mahazar and Ext. P8 mahazar while seizing M.Os. 1 and 2. He also prepared mahazar seizing Crl.R.P.1170/2008. 3 the clothes worn by the accused. He had seized the admission register from the school where the victim had studied last, recorded statements of witnesses, had the victim examined by P.W.5, and obtained Ext.P3 certificate. He completed investigation and laid charge before court. 3. The court before which final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, committed the case to Sessions Court, Alappuzha. The said court made over the case to Assistant Sessions Court, Mavelikkara for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Section 376 of I.P.C. To the charge, he pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 15 examined and Exts.P1 to P20 marked. M.Os. 1 to 3 were got identified and marked. After the close of the prosecution evidence, the accused was Crl.R.P.1170/2008. 4 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 further stated that he purchased a plot which the parents of the victim wanted to buy and when he went to lay the boundary stone, that was destroyed. On 26[th] January, 2000, it is claimed that the accused went to the plot for constructing a house and there ensued an altercation between the two families. He denied having committed any act as alleged against him. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused examined his wife as D.W.1. 4. On an appreciation of the evidence in the case, the trial court found the evidence of P.W.4 to be convincing enough and other items of evidence which would show that the victim was a minor at the relevant time and also that it was the accused who was responsible for the pregnancy of the Crl.R.P.1170/2008. 5 victim, came to the conclusion that the offence had been made out. The conviction and sentence as already mentioned followed. The disappointed accused carried the matter in appeal and met with failure. 5. Learned counsel appearing for the revision petitioner contended that the courts below have mechanically accepted the evidence of P.W.4 without ascertaining whether it stands scrutiny compared to the other evidence adduced in the case. It was pointed out that the documents relating to delivery had been deliberately withheld by the prosecution and had they been produced, that would show that the father of the child could not have been the accused. Relying on the evidence of P.Ws. 1 and 5, it was contended that going by their evidence and the age of the foetus as spoken to by them, it is clear that the victim could not have been conceived by the act alleged to have been committed by the accused in January, 2000. Crl.R.P.1170/2008. 6 6. Learned counsel then pointed out that there is considerable delay in lodging the FIS. It is contended that the incident had taken place on 24.1.2000. Even assuming that the victim was put under threat, at least on 13.6.2000 when they came to know that P.W.4 was pregnant and who was responsible for the same, there was nothing which made them wait till 4.7.2000 to lay the complaint. It was clear from the evidence of P.Ws.1, 12 and 13 that it was after due deliberation and consultation that the FIS was laid. That shows that there was a deliberate attempt to implicate the accused though he was not responsible for the pregnancy of P.W.4. 7. It was contended that there is no acceptable evidence to prove that the victim was a minor at the relevant time. According to the learned counsel for the revision petitioner, Ext.P1 proved through P.W.2 cannot establish the Crl.R.P.1170/2008. 7 age of the victim as that is only on the basis of a Transfer Certificate and not on the basis of the register of the school where P.W.4 had admitted for the first time. Therefore, the courts below were not justified in coming to the conclusion that the victim was a minor. It is also contended that it was impossible, as spoken to by P.W.4, that rape could have occurred. It was also contended that the child has been deliberately removed with a view to cause prejudice to the accused and deny him the valuable opportunity of establishing that he was not the father of the child. It is also pointed out that the final report was laid on 17.2.2001 and that was after the delivery of the child by P.W.4 and the investigating officer ought to have known the importance of the delivery and the documents thereof for the purpose of proving the case alleged against the accused. It was knowing fully well that those documents would belie the prosecution version, they were not either produced or the child was removed. These vital aspects Crl.R.P.1170/2008. 8 have been omitted to be noticed by the court below and that has resulted in miscarriage of justice. 8. Meeting the above contentions, learned Public Prosecutor contended that this court should remind itself that it is exercising the revisional jurisdiction which is considerably limited in scope and ambit. Unless it is shown that the findings of the courts below suffer from any illegality, irregularity or impropriety, an interference by this court at the revisional stage is not warranted. It has to be shown that the findings are either perverse or are against the evidence on record so as to compel this court to interfere in revision. Referring to the evidence, learned Public Prosecutor pointed out that both the courts below have independently analysed and considered the evidence in considerable detail and came to the identical conclusion that the offence has been made out as against the accused. These are findings on facts and the appellate court being the final court on facts, the findings of Crl.R.P.1170/2008. 9 the courts below in this regard are unassailable. None of the contentions pointed out by the learned counsel for the revision petitioner merits consideration, according to the learned Public Prosecutor. The delay in lodging the FIS, according to the learned Public Prosecutor, is properly explained by the prosecution. Initially the victim was threatened with dire consequences and that prevented the victim from disclosing the acts committed by the accused to anybody. Even assuming that on 13.6.2000 the pregnancy was revealed and the family members of the victim came to know about the incident, still they would have been reluctant to make the issue public since it is a humiliating act and only brings stigma to P.W.4. Thereafter on 4.7.2000 the FIS was laid. Under these circumstances, it was contended that it could not be said that there was undue delay in lodging the FIS. 9. Learned Public Prosecutor pointed out that the evidence of P.Ws.1 and 5 are insufficient to show that P.W.4 Crl.R.P.1170/2008. 10 could not have conceived as a result of the sexual act committed by the accused on 24.1.2000. The mere fact that they have stated that P.W.4 would have had sexual intercourse before that does not mean that she could not have conceived as a result of the act committed by the accused. Both the courts below have considered these aspects and placed reliance on forensic text books to come to the conclusion that P.W.4 could conceive as a result of the first act committed by the accused on 24.1.2000. 10. Learned Public Prosecutor pointed out that non-production of the documents relating to the delivery has no significance in the case on hand. The claim that DNA test could not have conducted as child was removed and therefore the accused should be given benefit of doubt is without basis. In a case of rape, DNA test has no relevance at all. Even if it is found as a result of the DNA test that the accused is not the father of the child, that does not mean that no rape has been Crl.R.P.1170/2008. 11 committed by the accused. Learned Public Prosecutor pointed out that there is no reason established as to why P.W.4 should falsely implicate the accused especially when he was her uncle and an elderly person of the family. Finally, it is contended that at any rate, no serious infirmities could be pointed out in the evidence of P.W.4 or regarding the finding of the courts below and therefore the conviction and sentence are only to be confirmed. 11. True, here also, as regards the acts committed by the accused, the solitary evidence of P.W.4 alone is available. The question is whether the evidence of P.W.4 is of such a character that it inspires confidence in the mind of the court and which enables the court to accept the same and enter a conviction based on her testimony. 12. The evidence of P.W.4 shows that she was studying in the 8[th] standard at the relevant time and she was aged 14 years. The prosecution seeks to prove the age of the Crl.R.P.1170/2008. 12 victim by relying on the evidence of P.W.2 and Ext.P1 produced through P.W.2. Ext.P1 is the extract of the register of the school of which P.W.2 was the Principal and admittedly P.W.4 had studied there. It is true that P.W.2 has stated that the entries were made in the register on the basis of the transfer certificate of the school where P.W.4 had studied. Here, one may note the contention of the accused that in the light of the admission of P.W.2 in this regard, the date of birth is not properly proved. Since the extract of the school register where P.W.4 was first admitted had not been produced, that needs to be considered. 13. In the decision reported in Raju v. State of Kerala (2013(1) KHC 718 (DB)) this aspect was considered and it has been held that if the extract from the School register where the victim had studied last is duly proved and established and there is no serious challenge to the same, there is no harm in accepting the same and that would be Crl.R.P.1170/2008. 13 sufficient to prove the date of birth of the victim. There is no suggestion either to P.W.1 or P.W.4 to the effect that the entry in Ext.P1 is wrong or the date of birth is not as shown in the document. Since there is no challenge in this regard, the courts below were justified in accepting Ext.P1 as proof of date of birth of the victim. 14. Coming to the evidence of P.W.4, she has stated that after the first attack on 4.1.2000 she was put under severe threat in case she revealed the incident to anyone and that kept her silent. She has also stated that the act was repeated by the accused on several subsequent occasions. Finally, she says that on 13.6.2000 when she felt abdominal pain, she complained to her mother, who took her to P.W.1, who after conducting the necessary tests revealed that P.W.4 was pregnant. She then deposed that on enquiry by her mother she revealed that accused was responsible for the same. She speaks about having laid Ext.P2 FIS and her Crl.R.P.1170/2008. 14 delivery etc. The fact that family came to know that P.W.4 was pregnant on 13.6.2000 is clear from the evidence of P.Ws.12 and 13. Of course, the evidence given by P.W.12 attributing the paternity of the child to the accused was based on hearsay knowledge as told to her by P.W.4. 15. As rightly pointed out by the learned Public Prosecutor, the defence based on the age of the foetus as seen by P.Ws.1 and 5 on the respective dates of examination have been considered in detail. Of course, both of them say that it is possible that P.W.4 would have engaged in sexual intercourse even before 24.1.2000. But that is far from saying that as a result of the act on 24.1.2000, the foetus could not have the size as spoken to by them. There is no suggestion to these doctors that the claim put forward by P.W.4 in this regard cannot be true. In the absence of any suggestion, the courts below have considered the evidence in considerable detail and came to the conclusion that it is possible that the Crl.R.P.1170/2008. 15 accused was responsible for the pregnancy of P.W.4. Sitting in revision, since it is not shown that the findings suffer from any serious infirmity, no interference is called for. 16. Regarding the non-production of the documents relating to delivery etc., and also the inability of the accused to seek DNA test, as rightly pointed out by the learned Public Prosecutor, they are not of much consequence. DNA test is not of much relevance in a case of rape. Of course, attempt could have been made by the prosecution to procure the documents relating to the delivery of P.W.4. There was no attempt from the side of the prosecution to show whether birth was registered with the local authority and the entries regarding the child in the hospital records also. But strangely enough, there is no suggestion from the side of the accused either that the birth has been registered or that the hospital register will show that the accused is not the father of the child. Any how, there is no evidence in this regard at all Crl.R.P.1170/2008. 16 and in the absence of any suggestion that the hospital records or the registers of the local authority show otherwise, that finding need not detain this court for long. It was contended on behalf of the accused that going by the scene mahazar and also the evidence of P.W.15 that there were no doors to the house and it was an open house and anybody could see what was happening inside the house from outside. But as rightly pointed out, the accused being a very familiar man could have managed to find a place where the act could have been committed in secrecy. The mere fact that the scene mahazar does not indicate any door cannot help the accused. 17. As regards the contention that in a lying position the act could not have been committed, it has no merit at all. No suggestion was put to P.W.1 and P.W.5 in this regard though there is nothing to indicate that rape is not possible in a lying position without the co-operation of Crl.R.P.1170/2008. 17 the victim. The evidence of P.W.4 would show that she was brutally ravished. 18. Learned counsel appearing for the revision petitioner had placed reliance on the decisions reported in Sunil v. State of Haryana (2010(1) KLT Suppl.39(SC)) for the proposition that in the absence of primary evidence, the accused is entitled to benefit of doubt. 19. In the said case, medical records was found to be wanting and there is no convincing evidence regarding the age of the victim. The documents produced in that case for proving the date of birth was found not acceptable at all. 20. It is difficult to understand how the principle laid down in the said decision can have any application to the case on hand. In the case on hand, it is held that Ext.P1 proved through P.W.2 is sufficient to prove the age of the victim and there is no challenge to that document nor any challenge to the testimony furnished by P.W.2. Reliance was 18 Crl.R.P.1170/2008. placed on the decision reported in Narender Kumar v. State (NCT of Delhi) (2012(3) K.L.T. Suppl. 24(SC)) and it was contended that merely because the accused had not proved his defence, that by itself is not a ground to hold that the prosecution has not succeeded in establishing its case. 21. It is true that the burden is always on the prosecution to prove the case beyond doubt. Merely because the accused has not established the defence set up by itself is not a ground to hold that the prosecution has succeeded in establishing the case beyond reasonable doubt. 22. In the case on hand, there is a weak suggestion to P.Ws.4, 12 and 13 that there was an enmity between the two families because of a property dispute. That remains as a mere suggestion. There is no convincing evidence to show that any such dispute arose between the parties and there is also a suggestion to P.W.4 that some other person might have Crl.R.P.1170/2008. 19 been responsible for her pregnancy but it was also seen denied. 23. Both the courts below have considered the evidence in considerable detail and had found evidence of P.W.4 to be convincing, cogent and consistent. One has to notice that her evidence in court is substantially in consonance with what is narrated in Ext.P2 FIS and that too to a great extent guarantees the truthfulness of the prosecution version. Apart from that, no serious inconsistencies or contradictions could be pointed out in the evidence of P.W.4 or P.W.12. As rightly pointed out by the learned Public Prosecutor, it is too difficult to think that they would have falsely implicate the accused who is closely related to them and implicate an elderly person. 24. Since the revision petitioner has not been able to show that the finding of the courts below suffer from any serious illegality, irregularity or impropriety, no interference is Crl.R.P.1170/2008. 20 called for with the conviction of the accused for the offence under Section 376 of I.P.C. 25. Coming to the sentence, it is to be noticed that the courts below have awarded the minimum sentence prescribed by the statute and if at all the courts below have erred, it has erred on the side of leniency and no interference is called for with the sentence also. The result is that, this revision petition is without merits and it is only to be dismissed. I do so confirming the conviction and sentence passed by the courts below. P. BHAVADASAN, JUDGE sb.