Murali v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944** ## **CRL.A NO. 1305 OF 2018** **AGAINST THE JUDGMENT DATED 20.11.2017 IN SC.NO.1358/2014 OF ADDITIONAL SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN), THIRUVANANTHAPURAM** **CP 44/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, ATTINGAL CRIME NO.130/2014 OF KAZHAKKUTTOM POLICE STATION, THIRUVANANTHAPURAM** ## **APPELLANT:** **MURALI, S/O GOPI, C.NO.2242 CENTRAL PRISON, THIRUVANANTHAPURAM** **BY SMT.ANUROOPA JAYADEVAN, STATE BRIEF** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.12.2022, THE COURT ON 30.1.2023 DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & SOPHY THOMAS, JJ.** =========================================== Crl. Appeal No.1305 of 2018 _(arising out of the impugned judgment dated 20.11.2017 in S.C.No.1358/2014 on the file of the Court of the Addl. Sessions Judge for the trial of cases relating to atrocities and sexual violence against women and children, Thiruvananthapuram)_ =========================================== Dated this the 30[th] day of January, 2023 ## **J U D G M E N T** ## **ALEXANDER THOMAS, J.** The appellant is the sole accused in Sessions Case, S.C. No. 1358 of 2014 on the file of the Additional Sessions Judge for the trial of cases relating to atrocities and sexual violence against women and children, Thiruvananthapuram (arising out of Crime No. 130/2014 of Kazhakuttom Police Station), for committing offences punishable under Secs. 450 and 376 IPC. 2. By judgment dated 20.11.2017, the Additional Sessions Court, Thiruvananthapuram has convicted and sentenced the accused to undergo imprisonment for life, which shall mean imprisonment for the remainder of his natural life and imposed a fine of Rs. 50,000/-, default of which would entail him to suffer rigorous imprisonment upto 2 years for the offence under Sec. 376(2)(l). For the offence Crl.Appeal No.1305/2018 - : 2 :- under Sec. 450 IPC, he was sentenced to rigorous imprisonment for 5 years and a fine of Rs. 20,000/-, in default of which he shall undergo rigorous imprisonment for 6 months. 3. The brief facts leading to the case are as follows: On 27.01.2014 at 11:30 AM, the accused committed house trespass into the house of P.W-1 at Thattathumala Desom, Pazhayakunnummel Village and committed rape on her daughter, who is a 20-year-old mentally and physically challenged girl. 4. The indictment against the accused is that, at about 11.30 A.M. on 27.01.2014, the accused committed house trespass and committed rape on the victim, who is mentally retarded. For the occurrence of the above crime, Ext.P-1 FIS was lodged by PW-1, who is the mother of the victim, before PW-14 CPO attached to Kilimanoor Police Station on 28.01.2014 at 5:25 PM. PW-15, Sub-Inspector of Police, Kilimanoor has registered Ext.P-10 FIR on the same day. 5. The investigation was conducted by PW-17 Circle Inspector of Police, Kilimanoor Police Station. PW-17 had reached the place of occurence and prepared Ext.P-2 scene mahazar and had taken MO-1 dress, worn by the victim at the time of the incident, into Crl.Appeal No.1305/2018 - : 3 :- custody. He recorded the statements of the witnesses and arrested the accused on 31.01.2014. Ext. P-12 is the arrest memo of the accused. Ext. P-3 mahazar consists of the shirt and dhoti worn by the accused at the time of commission of the offence, which is marked as MO2 and MO3. MOs. 1-3 were send for examination to the FSL through court, vide Ext. P-14 forwarding note, whereby Ext. P-17 FSL Report was subsequently submitted. Ext. P-6 is the Potency Certificate of the accused and Ext. P-15 is the address report of the accused. 6. On committal, on the basis of the materials on record, the Asst. Sessions Court framed charge against the appellant under Secs. 376 and 450 of the IPC, to which he pleaded not guilty. 7. During the trial, the prosecution examined PWs 1 to 17 and has marked Exts. P-1 to P-17 documents and MO1 to MO3 (material objects) on the prosecution side. On the basis of the evidence on record, the accused was questioned by the Asst. Sessions Court under Sec. 313(1)(b) of the Cr.P.C. 8. The Asst. Sessions Court did not deem fit and proper for recording acquittal under Sec. 232 of the Cr.P.C. and the accused was called upon to enter on his defence evidence, which he might have in Crl.Appeal No.1305/2018 - : 4 :- support thereof. The accused had not adduced any defence evidence. 9. Subsequently, the case was transferred to the Additional Sessions Judge for the trial of cases relating to atrocities and sexual violence against women and children, Thiruvananthapuram. 10. The Additional Sessions Court, on conclusion of the trial and after appreciation of the evidence on record, has convicted the appellant for the offences punishable under Secs. 450 and 376(2)(l) of the IPC. 11. Heard Smt. Anuroopa Jayadevan, learned counsel appearing for the appellant (sole accused), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State. 12. Both sides have made extensive submissions and we have considered the same. 13. The main submissions made by Smt.Anuroopa Jayadevan, learned counsel appearing for the appellant (sole accused) are as follows: That, in the instant case, the conviction is solely based on circumstantial evidence and there is no direct evidence and the same is Crl.Appeal No.1305/2018 - : 5 :- not supported by any cogent and reliable scientific evidence, regarding the factum of rape. The only witness, who is said to have seen the accused coming to the house of the victim etc., is PW-2 (the victim's grandmother), who would mainly say that the accused had come there at about 10 A.M. in the morning, whereas the specific case of the prosecution is that the accused had trespassed and entered into the house and committed the act some time between 11.30 A.M. and 12.30 noon. If the version of PW-2 (grandmother) is true, then she would have certainly shouted at him or would have made some noise to inform and alert the neighbours. PW-2 has no such case that she has made any such noise or any attempt to alert the neighbours. Further that, even going by the case set up in the FIS as well as in the deposition of PW-1 (victim's mother), PW-2 (grandmother) has not immediately told PW-1 about the entry of the accused and it is only after some time, when PW-1 queries as to whether anyone had come to the house, that PW-2 gave the version that the accused Murali had come to the house. Further that, PW-2 has clearly stated that she had heard the clinking of keys when the accused had come, whereas the case of PW-1 is that the front door Crl.Appeal No.1305/2018 - : 6 :- of the house was kept closed, when she left the house at 10 A.M. and that, if the accused had entered the house through the back door, then ordinarily, PW-2 (grandmother) would not have heard the noise of the key, as the key is that of the front door. Further, none other than PW-17 (Investigating Officer) has stated in Cross Examination that a person cannot see if the accused came through the back door of the house. So, the only evidence regarding the alleged entry of the accused to the house is that of PW-2 and her version appears to be incorrect and false and further that, she is an elderly lady in her mid nineties, who is said to be paralyzed and lying down in a cot. So, the sole evidence, regarding the alleged trespass and entry of the accused to the house of the victim, is unbelievable and improbable. 14. Further, the appellant's counsel would vehemently urge that there is nothing to connect the appellant/accused with the incident and that, PW-1 and PW-2 are very close relatives of the victim, being her mother and grandmother. That, as held by the Apex Court in para 14 of the celebrated decision in _**Sharad Birdhichand Sarda v. State of Maharashtra** [(1984) 4 SCC 116],_ the Court should examine the evidence of close relatives with great caution and Crl.Appeal No.1305/2018 - : 7 :- care, as they have a tendency to exaggerate or add facts which may not have been stated to them at all. Further that, the claim of PW-1 (victim's mother), that there was blood on the waist and dress of the victim, could only be an exaggeration, as PW-9 (Doctor) has stated in her deposition that the blood could only be due to menstruation. Further that, Ext.P-5 Medical Certificate, issued by PW-9 (Doctor), would show that the victim girl was having irregular menstruation. 15. Further that, the evidence given by the parents of the victim (PW-1 & PW-5), that after the incident, they had taken the victim to four other hospitals and that, advice was given by the doctors there, etc. have to be proved by adducing oral evidence of doctors and by producing medical records from those hospitals. Non examination of witnesses and non production of documents from these hospitals, other than the one which has issued Ext.P-5, is a serious lacuna and would be fatal and the said lacuna has not been explained by the prosecution. That, the prosecution has failed to complete this vital missing link in the chain of circumstances. Further that, the appellant would contend that the alleged blood stain, found in the dhothi/lungi of the accused, cannot be used Crl.Appeal No.1305/2018 - : 8 :- against him, as no specific question was put to him in Sec.313 questioning process. DNA Profile has admittedly not been done. There is no scientific evidence, yet, to show how old the stain allegedly found in the lungi of the accused is. Further, the contention of the prosecution, that various answers given by the accused in Sec.313 Cr.P.C. questioning process as merely stating that those aspects are "false", will be a favourable circumstance to the prosecution, cannot stand the test of law. That, even in Sec.313 questioning process, the accused has the Right to Remain Silent, which is his Constitutional Right, or even give false answers. There is no necessity or compulsion for the accused to suggest his defence or explanation. Further that, as per Sec. 315(1)(b) of the Cr.P.C., the failure of an accused to give evidence shall not be made the subject of any comment by any parties or the Court or give rise to any presumption against himself or anyone charged together with him at the same trial. 16.Further that, the various case laws cited by the prosecution, regarding the implication of the alleged unconvincing response of the accused to Sec.313 questioning process is against the fundemental canons of Crl.Appeal No.1305/2018 - : 9 :- criminal jurisprudence as well as the Constitutional Right of an accused to remain silent, conferred as per Clause (3) of Article 20 of the Constitution of India. Further, the reliance placed by the prosecution, in the decisions of the Apex Court as in _**Deep Chand & Ors. v. State of Haryana** [(1969) 3 SCC 890],_ regarding the adverse inferences on account of non explanation of the blood found in the dress of the accused etc., have no application in this case. Further, crucially, that, even as per the prosecution case, the accused is a resident of the locality and is a coconut plucker by avocation and he usually comes to the said area for work and therefore, there is nothing unusual in his presence in the immediate locality. 17. Further, it is urged by the appellant that there are various contradictions in the evidence given by the prosecution witnesses, which does not corroborate with each other. That, PW-2 would state that the accused came to the house at about 10 A.M. whereas PW-1 would state that she had left the house at 10.30 A.M. and that, the crime incident would have taken place between 11.30 A.M. and 1 P.M. Further that, PW-1 has stated that, when she came back to the house, at about 1 P.M., the back door of the kitchen was found open, Crl.Appeal No.1305/2018 - : 10 :- whereas her FIS version is that it was closed from outside. That, the case of PW-1 in her FIS is that PW-2 (victim's grandmother) had told her that she had seen the accused Murali coming to the house. But, there is no version therein that she has seen his departure as well. Whereas, PW-2 in her evidence has stated that she has seen the accused Murali coming to the house and had seen his departure too. Further that, in Ext.P-4 scene plan, the bed used by PW-2 is not shown. Hence, it is very difficult to believe that PW-2, who is in her mid 90's and lying paralyzed, would have seen the accused entering the house and had seen his departure. PW-17 (Investigating Officer) in Cross Examination has stated that it is very difficult for a person to see anyone entering into the house of the victim through the back door. 18. Further that, PW-3 is the only witness who has stated that he had seen the accused entering into the house. Whereas, in his Sec.161 Cr.P.C. Statement, he has stated that he had seen the accused going in the direction of the house of the victim. That, PW-3 is a property broker and that the specific case of the accused in his Sec.313 Statement is that the charges have been falsely foisted on him Crl.Appeal No.1305/2018 - : 11 :- only to grab his property. 19. Further, PW-4 has only stated that he saw the accused near the road in question, near the victim's house and he has not stated that he had seen the accused entering into the house of the victim. Further that, it is very difficult to believe PW-4's version that he had seen the accused going to the victim's house and had also seen him later, returning from there after some time. 20. Further that, Ext.P-9 Medical Certificate, issued by PW-9, would clearly show that there is no evidence of recent vaginal penetration. Ext.P-16 Chemical Analysis Report of the Forensic Sciences Laboratory would show that semen and spermatozoa were not detected in the specimens collected from the victim. Further that, in Ext.P-5 it is stated that there are no visible injuries on the body and that the vulva appears normal. That, merely because it is stated in Ext.P-5 that the hymen appears ruptured and that one finger can be introduced in the vagina, etc. it cannot be the basis to hold that there has been vaginal penetration. Further that, the blood on the waist of the victim, said to have been seen by PW-1, could be menstrual blood. That, if there was rape, as alleged by prosecution, there should have Crl.Appeal No.1305/2018 - : 12 :- been more injuries on the victim. Further, absence of semen and spermatozoa from the vaginal swabs, etc. would also clinchingly show that there was no rape. Further, the appellant would contend that, though Ext.P-17 FSL Report would show blood stain in MO1 dress of the victim and MO2 dress of the accused, the precise blood group has not been identified. So, Ext.P-17 would be the pointer as to whose blood was found in those material objects and whether the same blood was there in both MO1 and MO2 and also, as to whether the blood stain is old or recent. Not only was the blood group not detected, even DNA Profiling has not been done. 21. Since the victim is unable to depose, due to her mental and physical disabilities, the prosecution should have been more vigilant to do their part and should have resorted to DNA Profiling, etc. Further, the finding made in the last portion of para 18 on page 16 of the impugned judgment of the Sessions Court, that the prosecution has established that there was blood on the private parts of the victim and the dress worn by her at the time of incident, etc., are only on the basis of suspicion. That, the circumstantial evidence, said to have been proved by the prosecution, cannot be said to be one Crl.Appeal No.1305/2018 - : 13 :- which is beyond the shadow of reasonable doubt and, more particularly, due to the absence of medical evidence regarding rape. Further, none of the belongings of the accused has been found in the house of the victim and his presence in the locality is quite natural, as it is part of his job. That, conviction, especially based on circumstantial evidence, cannot be merely on the basis of suspicion and surmises, etc. Accordingly, the counsel for the appellant would strongly urge that the impugned conviction imposed on the appellant is unreasonable and does not stand the test of law. Alternatively, the appellant would also urge various grounds, that the sentence of life imprisonment till the remainder of the life of the accused, etc., is grossly disproportionate to the alleged offence in the facts and circumstances of the case. Those aspects relating to impugned sentencing will be dealt with by us later, after dealing with the issue of conviction. 22. The prosecution has also strongly opposed, by raising various grounds and contentions. Those aspects of the matters would be dealt with seperately. 23. Before dealing with the cardinal aspects of the evidence Crl.Appeal No.1305/2018 - : 14 :- given by various prosecution witnesses, it may be pertinent to refer to the core version in Ext.P-1 FIS, which are as follows: _(i) The First Information Statement was given by the mother of the victim (PW-1), who has stated that she is living with her husband, his mother, Ayisha Beevi, and her three children, victim, Suhrabeevi and Faizil. She has stated that her elder daughter, victim, aged 20 years, is deaf and dumb since birth and that, she is also mentally challenged. It was further stated that she is unable to take care of even her daily needs without help and that, the victim stays in a room at the west side of the house. On the day of the commission of the crime (i.e., 27.01.2014) in the morning, between 10 A.M. and 11 A.M., PW-1 went to the rubber house, which is situated about two to three buildings apart from the house, for rubber tapping. At that time, only the mother-in-law, Ayisha Beevi (PW-2), aged 80 years, was in the house and she stayed at the east side of the house. Before leaving, PW-1 had closed all the doors and had kept the key under the mat in the sit out area. After tapping the rubber and letting it to coagulate, PW-1 went back to the house at about 1 P.M. and entered using the keys under the mat and went to_ Crl.Appeal No.1305/2018 - : 15 :- _the west side, to check on her daughter (the victim). In order to ensure that their daughter does not go out and the door would not slam when there is wind, the parents have fixed a nail on the threshold and tied a small cloth around it. However, when PW-1 came back, the above cloth was seen loosened. She immediately went in to check on the victim and saw her sleeping. It was also seen_ _that the wooden latch of the kitchen door was open and that, the door was locked from outside. Then, PW-1 went to make lunch, gave the food to PW-2 and went to give food to the victim. Then, PW-1 noticed that the victim's bed had been moved a little from the wall and at that time, since her husband had also come in, PW-1 enquired as to whether it was he who had shifted the bed, wherein he answered in the negative. When PW-1 went near the victim to give her food, she appeared tired and unable to eat food. So, she checked her body and found that blood was trickling from her maxie and many parts of her lower body, including from the waist, legs, feet etc. On suspicion, PW-1 asked PW-2 (Mother-in-law), whether anyone had come to the house and she said that Sarojini's son, Murali (accused), had come in but that she did not see him leave and_ Crl.Appeal No.1305/2018 - : 16 :- _that, he was wearing a red shirt and saffron coloured lungi. She said that she also heard keys jingling and asked PW-1 to check whether he had stolen anything from the house. Subsequently, PW-1 bathed the victim, wherein more blood was washed away._ _(ii) Realising that something bad had happened, PW-1 and her husband (PW-5) hired a car and took the victim to Suchithra Medical Centre. The doctor, after checkup, stated that there is internal injury and asked them to take the victim to SAT Hospital. Due to ease of access, the parents took her to Kadakkal Hospital. However, since there was no Gynaecologist there and since it was getting late, the victim was taken to Gokulam Medical College. The doctor there asked them to take the victim to SAT Hospital. Since it was late, the family came back home and the next day (28.01.2014), at about 7.30 A.M., they went to SAT Hospital and took the victim to the emergency ward. A checkup was done and some samples were taken from inside and her nail and hair samples were also taken for examination. Since she was tired, they gave her an I.V. drip. On the doctor's direction, a report of the incident was intimated to the Medical College Police Station. Thereafter, the_ Crl.Appeal No.1305/2018 - : 17 :- _doctor gave an i-pill (Levonorgestrel) and asked PW-1 to give the medicine immediately, as it was seen that the victim was involved in sexual intercourse. PW-1 gave the pill to the victim immediately._ Further, it is also stated in the FIS that the Hospital authorities of SAT Hospital, had given intimation to the police authorities concerned regarding the above crime incident, which led to the registration of Ext.P-10 FIR in Crime No. 130/2014 of Kilimanoor Police Station, Thiruvananthapuram, on 28.1.2014 at 5.25 P.M. on the basis of Ext.P-1 FIS lodged by PW-1 on the same day. Immediately, after the registration of Ext.P-10 FIR on 28.1.2014 at 5.25 P.M., the said police authorities had deputed a Woman Civil Police Officer to accompany the victim to the Government Women and Children Hospital, Thiruvananthapuram, where, the victim was examined by PW-9 (Doctor) on the same day (28.1.2014) at about 8.05 P.M. Ext. P-5 dated 28.1.2014, issued by PW-9, is the Medical Certificate with the caption 'Form of examination and Report of the victim of rape' pursuant to the medical examination conducted on the requisition received from the Crl.Appeal No.1305/2018 - : 18 :- Sub Inspector of Police, Kilimanoor Police Station. 24. Ext.P-10 FIR was registered on 28.1.2014, in which the appellant herein has been arrayed as the sole accused, for offences punishable under Secs.376 & 450 of the IPC, for having unlawfully intruded and trespassed into the residence of the 1st informant (PW-1) and having committed rape on her 20-year-old mentally and physically challenged daughter (the victim) on 27.01.2014 between 11 A.M & 1 P.M., etc. 25. As against the column for the gist of the allegations, it is clearly stated in the FIR that the accused herein, with the intention to gratify his lust, had unlawfully intruded and trespassed into the residence of the de-facto complainant/first informant and had committed rape on the victim, the 20-year-old mentally and physically challenged daughter of the first informant, etc. 26. At the outset, before dealing with the evidence given by the main prosecution witnesses, it is pertinent to note that PW-11 (Professor of Psychiatry, Government Medical College, Thiruvananthapuram) has issued Ext.P-7 Medical Disability Crl.Appeal No.1305/2018 - : 19 :- Certificate, which is the mental status report of the victim. There is no dispute regarding the contents of Ext.P-7 as well as the evidence given by PW-11. Ext.P-7 would make it clear that the victim has no speech capacity and she is not capable of attending self care and she needs support and 100% assistance in daily living activities. That, she has a history of seizure, treated till 12 years from Pediatric Neurology though not on any treatment now. The disability evaluation done earlier, on 6.10.2012, would show that she has 80% disability. On examination, it was found that she is unable to walk without support, unable to speak, eye contact poor, not comprehending instructions and not co-operative for detailed evaluation. The clinical diagnosis is that she has profound intellectual disability and mental retardation, birth asphyxia, cerebral palsy, seizure disorder (4/0), hearing and speech impairment, etc. For disability evaluation, she was graded as severe 3 for Perceptual Motor Score and stated that, she has marked impairment in co-ordination, poor balance, restricted movement and marked delay in gross motor and fine motor areas and she needs assistance for mobility. Further that, in concern to her self care score, she was graded as Profound-4 and stated that, she is Crl.Appeal No.1305/2018 - : 20 :- totally dependent on parents for self care, maintenance of hygiene and cleanliness and needs continuous custodial care and self help activities and has no bowel or bladder control. As regards, communication and socialisation score, she was graded as Profound-4 and stated that, she has no verbal and non verbal expressions, she is unable to follow even very simple instructions and there is total absence of reciprocal social interactions. That, there is nil academic performance and even absence of pre-academic concepts, like shape, colour, size etc. and that, she has nil work performances. Her total score of disability was graded as 19 out of 20 and percentage of disability was graded as 95%. PW-11 (Professor of Psychiatry) has deposed that he has issued Ext.P-7 Certificate and has also stated the victim has profound severe mental retardation and that, this is probably due to brain injury during birth. Details of other disabilities are also mentioned therein that she is unable to speak, no verbal and non-verbal communication, etc. 27. The victim was cited as a charge witness in the final report/charge sheet filed by the investigating agency in this case. The victim was summoned to the court for evidence on 18.11.2015. Crl.Appeal No.1305/2018 - : 21 :- The records would show that the _voir dire_ examination of the victim was conducted on 18.11.2015 to assess the competency of the said witness and that, the learned Asst. Sessions Judge has found, after interacting with the victim, that the victim is not capable of speaking anything before the court and thus, the court was satisfied that the victim is incapable of giving evidence as a witness before the court. 28. Now, we will deal with the evidence given by the main prosecution witnesses: 29. PW-1 (victim's mother) has deposed that the victim is a mentally retarded child and she is not able to speak or do anything without the help of others. Further that, PW-1 has stated that her mother- in-law (PW-2), aged 90 years, is also lying in the adjacent room situated in the eastern side of the house. That, on the day of the incident (27.1.2014), her husband had earlier gone to another place and she had to go to work to collect rubber latex in a nearby place and she left the house between 10 A.M. and 11 A.M., after leaving all the doors, including the back door, closed and the front door was locked and the key was kept underneath the mat near the sit out. After she had left, only the victim and PW-2 (grandmother) were Crl.Appeal No.1305/2018 - : 22 :- there in the house. PW-1 came back to the house at around 1 P.M. on that day. When she reached the victim's room, she noticed that the internal latch on the back door near to the kitchen was removed and she also noticed that the outer latch on the external portion of the back door was closed. When she went in to give food to the victim, the victim was not showing any interest to come forward. The coat was found lying away from the wall. On inspection, she found blood seeping out from the waist and lower part of the victim's body and blood was also found in the victim's maxi. Then, PW-1 asked PW-2 (grandmother), whether someone had come to the house. Then, PW-2 replied that the accused, Murali, son of Sarojini, had come there. Since blood was found on her body, the victim was given a bath by PW-1. After bathing the victim, she (victim) was taken to Suchitra Hospital, Kilimanoor and the doctor of that hospital, after examination, informed that the victim was sexually abused by somebody and they were instructed to take the victim to SAT Hospital. Thereafter, the parents of the victim had taken her to the nearby Government Hospital, Kadakkal, where a Gynaecology Department was available. But, on that day, the Gynaecologist was Crl.Appeal No.1305/2018 - : 23 :- not present. So, they had taken the victim to the Gokulam Medical College Hospital. But, the victim was not examined there and they were advised to take the victim to SAT Hospital. By that time, it was beyond the duty time of the SAT Hospital and so, they could not go to SAT Hospital on that day. Immediately, the next day (28.1.2014) morning, at 7.30 A.M., they went to the SAT Hospital, where the victim was examined by the doctor, who informed that the victim has internal injuries on her body, meaning thereby injuries on her private parts. Then, the SAT Hospital authorities informed the matter to the Medical College Police Station authority on 28.1.2014 and PW-1 had then lodged Ext.P-1 FIS and registered Ext.P-10 FIR on the same day, 28.1.2014 at 5.25 P.M. to Kilimanoor Police Station, etc. 30. PW-2 (victim's paternal grandmother & PW-1's motherin-law), has specifically deposed that the accused (Murali) had come through the courtyard and entered the house and she had further stated that she had seen the accused leave after some time. PW-2 has clearly deposed that she had seen the accused, through the window and the door in her room. Of course, PW-2 has stated that the accused (Murali) would have come to her house by about 10 A.M., Crl.Appeal No.1305/2018 - : 24 :- whereas, PW-1 (victim's mother) has stated that she had left the house between 10 A.M & 11 A.M. on that day. 31. PW-5 (husband of PW-1 and son of PW-2) is the father of the victim girl. He has testified that the victim in question, who is his daughter, is a mentally retarded girl and that, she is not able to talk or walk. That, on 27.1.2014, he had gone to a place and later, his wife had left the house to collect rubber latex from another property and that, at that time, the victim and his mother (PW-2) were alone in the house. That, he came back to the house by about 2 P.M. on that day. Then, after interacting with his wife, he could realize that his daughter might have been subjected to sexual violence and he could learn that the accused Murali had come to his house and thereafter, the victim was taken to Suchitra Hospital and from there, she was taken to Government Hospital, Kadakkal, and since there was no Gynaecologist at Kadakkal, she was taken to Gokulam Medical College, but the victim could not be examined there. The next day, the victim was taken to SAT Hospital. Further that, later PW-5 was informed by PW-3 & PW-4 that the accused Murali had come to his house on the fateful day in question. Crl.Appeal No.1305/2018 - : 25 :- 32. PW-6, who is the brother of PW-5, has testified that he had accompanied PW-5 to take the victim to the hospital and then, it was disclosed that she was sexually abused. Ext.P-3 seizure mahazar dated 31.1.2014 has been attested by him. PW-6 has identified the dresses (MO-2 & MO-3, shirt & lungi of the accused respectively) taken to custody as per Ext.P-3 mahazar. I. Issue as to whether the accused had trespassed and intruded into the house of the victim's family. 33. Going by the evidence given by the prosecution witnesses, the accused was seen in the locality at around 11.30 A.M. on that day. Serious critique has been made by the appellant, regarding the alleged falsity of the evidence of PW-2, merely on the basis that she has stated that she had seen the accused at around 10 A.M. It has to be remembered that PW-2 is an elderly lady, in her 90's and her sense of time need not be accurate and merely because she may have gone wrong in remembering the exact time, at which the accused had come there, etc., it cannot be the basis to disbelieve the evidence of PW-2. Crl.Appeal No.1305/2018 - : 26 :- Further, the appellant has strongly urged that neither PW-2 nor the prosecution has a case, whatsoever, that PW-2 had seen the accused inside the house and that, she had raised any hue and cry or alerted the immediate neighbours, etc., and that, the said behaviour of PW-2 is quite unnatural and that, therefore, her core version itself is false. However, it is common ground that the accused is a coconut plucker in the locality and he used to come to the above house as well as the other houses in the locality, for his coconut plucking work. 34. As argued by the learned Prosecutor, PW-2 is an aged and almost paralyzed lady and she would have found it more prudent not to make a hue and cry, lest the intruder indulge in any violent activity. Moreover, as pointed out by the learned Prosecutor, the specific case of the prosecution, as emerging from Ext.P-1 FIS, is that, when PW-1 had queried to PW-2, as to whether any one had come to the house, after seeing blood seeping through the waist and clothes of the victim girl, the response of PW-2 was that the accused (Murali) came there and specifically queried as to whether the accused (Murali) had committed any theft. So, the aged lady, who knows the accused, who is in his mid 50's, initially would not have suspected that the accused Crl.Appeal No.1305/2018 - : 27 :- would have intruded in the house for the purpose of committing rape on the mentally and physically challenged girl. But that, he would have come there for committing theft inside the house. Hence, PW-2 would have thought it prudent not to make any hue and cry, as she and the mentally challenged girl were alone in the house and also, to avoid any violent response from the intruder accused. It is only later, when PW-1 (victim's mother) had come to the house, that they had a strong suspicion that the victim might have been raped by the intruder accused, seeing the blood on her waist, etc. Therefore, seen from this perspective, the abovesaid response of a frail and elderly aged woman (PW-2), in her 90's, appears to be quite prudent. Hence, merely because she has not raised any hue and cry, as she has seen the accused in the house, cannot be the ground to disbelieve her version. Morever, a reading of the evidence given by PW-2 would also make it clear that she has given cogent and precise evidence before the Court, despite her age and she has not exaggerated her version. Further, the above crucial evidence of PW-2 is broadly corroborated by PW-3, who is a neighbour of the victim. 35. The appellant has also strongly urged that the version of Crl.Appeal No.1305/2018 - : 28 :- PW-2, that she had seen the accused through the windows and the door, etc., is highly improbable, inasmuch as PW-17 (Investigating Officer) has stated in the cross-examination that it may be difficult for anyone inside the house to see a person entering into the house through the back door. PW-2 (grandmother) was lying in the bedroom, which is adjacent to the front road and on the eastern side of the house, whereas the victim was lying in the bedroom which is adjacent to the dining hall and the said bedroom is on the western side of the house. PW-2's bedroom, which is on the eastern side of the house, is having two windows and a door. 36. The specific case of the prosecution is that the intruder accused has come from the road and then gone to the pathway leading to the house and from the frontside of the house, had gone to the backside of the house and that, since there are two windows in the room of PW-2, she could easily see the accused going from the frontside of the house and then, through the courtyard of the house on the eastern side to the backside of the house on the southern side, etc. So also, taking into account the layout of the bedroom of PW-2, it m ay not have been very difficult for her to see someone, who has Crl.Appeal No.1305/2018 - : 29 :- already gone from the eastern courtyard to the backside and who enters the house from the backside and who later enters into the room of the victim. 37. All what has been stated by PW-17 (Investigating Officer) is that, if somebody comes from the back door of the house into the house, then, it would be very difficult for a person lying in the bedroom of PW-2 to see such a person coming into the house. But, it has to be remembered that the specific case of PW-2 is that she had seen the accused coming from the front side of the house and then, going across the eastern courtyard, etc., and then, she could have easily seen the accused from the two windows in her bedroom, one of which is on the southern side and the other is on the eastern side. After being alerted that a person has gone from the front side of the house to the backside through the eastern courtyard, then such a person inside the house is already alerted and could have seen the intruder getting into the house through the back kitchen door. 38. It has to be borne in mind that PW-1 has clearly deposed that, before leaving the house in the morning, she had closed all the doors of the house, including the back door and then, locked the front Crl.Appeal No.1305/2018 - : 30 :- door and kept the key underneath the mat on the front side. Further, on later coming to the house, PW-1 entered the house by opening the front door and thereafter, she could see that the wooden latch on the kitchen door was found open (which she had earlier closed) and the latch on the external side of the said kitchen back door (which was earlier left open by her) was found to be closed. Hence, the learned Prosecutor is right in submitting that the clear inference, going by the prosecution evidence, is that the accused intruder would have come from the front side of the house and gone through the back side of the house through the eastern courtyard and then, would have forced open his entry from the back door and after the incident, he would have left through the back door with the result that the internal wooden latch of the kitchen door was left open, which was earlier closed by PW-1 and the intruder would have closed the wooden latch on the exterior side of the kitchen door, which was earlier left open by PW-1. 39. Serious contention has also been raised by the counsel for the appellant that PW-2 has got a specific case that she heard the clinking of the keys, when the accused Murali had initially come to Crl.Appeal No.1305/2018 - : 31 :- the spot and that, therefore, it implies that the case of the prosecution is that the intruder would have taken the key kept underneath the door mat and opened the front door and if that be so, the alleged entry into the house is from the front door and not from the back kitchen door, etc. True that, PW-2, who is an elderly lady, has stated that she had heard the clinking of keys initially and as the learned Prosecutor would rightly submit, the clinking of the keys may be some keys with the accused or that he would have initially taken the key of the house, which was kept under the door mat, and on second thought, he may have decided that the better option is to enter through the back door. Merely because PW-2 has stated that she had heard the clinking of the keys, cannot be the basis to disbelieve the crucial evidence given by PW-2, regarding the intrusion and entry of the accused to the house. An overall assessment and evaluation of the evidence on record and on appreciating the facts and circumstances of this case, in the light of such evidence, we are of the view that the entry of the accused would have been through the back door of the house, as above, as the internal wooden latch of the kitchen door (which was earlier closed by PW-1 when she left the house in the morning) was Crl.Appeal No.1305/2018 - : 32 :- later found by her, in the afternoon, to be opened and further, the exterior wooden latch on the back kitchen door (which certainly would have been left open by PW-1, as she had already closed the kitchen door from inside the house) was later found by her in the afternoon to be closed and latched. For these reasons, we are constrained to reject the abovesaid contentions of the learned counsel appearing for the appellant/accused. 40. Some of the key evidence of PW-2 has been strongly corroborated by other prosecution witnesses, like PW-3. PW-3 is the neighbour of the victim and he has deposed that he had seen the accused Murali going towards the east in the public road in question and by the time PW-3 reached the said public road, he had seen the accused entering into the house of PW-5 - Sulaiman (father of the victim, husband of PW-1 and son of PW-2). PW-3's deposition in that regard is as follows: "ഞഞാൻ വവീടട്ടിൽ നട്ടിന്നു 11.30 AM നന് ഇറങങ്ങുന്ന സമയയം പ്രതട്ടി മങ്ങുരളട്ടി കട്ടിഴകകഞാടങ്ങുള കറഞാകഡ നടക്കുന്നതന് കണങ്ങു. ഞഞാൻ കറഞാഡട്ടിൽ എതട്ടിയ സമയയം പ്രതട്ടി സങ്ങുമലലൈമഞാ _(husband of PW-1)_ ന്റ വവീടട്ടികലൈകന് കയറട്ടിപന്കപഞാകുന്നതന് കണങ്ങു.” **ന** In Cross Examination, PW-3 has further affirmed that he had indeed seen the accused entering into the house of PW-5 (Sulaiman) and the Crl.Appeal No.1305/2018 - : 33 :- ## said evidence is as follows: "ഞഞാൻ കനഞാക് **ക** ുമഞാൾ പ്രതട്ടി സങ്ങുലലൈമഞാന്റ വവീടട്ടികലൈക്കു കയറങ്ങുന്നതു കണങ്ങു." **ന** 41. PW3 is residing on the eastern side of the property of PW-1, as can be seen from Ext.P-2 scene mahazar. 42. PW-4 is yet another prosecution witness, whose evidence has also corroborated the evidence of PW-2 and PW-3. PW-4 (Satheesan) is a neighbour of the victim's family residing on the southern side of the house of PW-3. PW-4 would testify that on 27.1.2014, at about 11.30 A.M., while he was engaged in betal cultivation, he had seen the accused going through the road towards the east, namely the road leading to the house of Sulaiman (husband of PW-1). Further, he has also stated that he has seen PW-3 coming out from his house and going to Thattathumala. After one hour, he had seen the accused returning through the same route of the victim's family's house and the said evidence of PW-4 is as follows: > "11.30 AM മങ്ങുരളട്ടി കഞാവട്ടി ലകലൈട്ടി കറങ്ങുതതുയം ചങ്ങുവപങ്ങു വരകളങ്ങുയം ഉള ഷർടങ്ങുയം ധരട്ടിച്ച കട്ടിഴകകഞാടങ്ങു ആയതന് സങ്ങുലലൈമഞാൻ കഞാകയങ്ങുനട വവീടട്ടിലൈട്ടികലൈക്കുള വഴട്ടികയ കപഞാകുന്നതന് കണങ്ങു. ഏകകദേശയം ഒരു മണട്ടിക്കൂർ കഴട്ടിഞ്ഞപന്കപഞാ,പ്രതട്ടി മങ്ങുരളട്ടി സങ്ങുലലൈമഞാൻ കഞാകയങ്ങുനട വവീടട്ടികലൈക്കു കപഞാകുന്ന വഴട്ടിയട്ടിലൈലൂനട തട്ടിരട്ടിഞ്ഞങ്ങു കപഞാകുന്നതന് കണങ്ങു. " Hence, it can be seen that the evidence of PW-2 (grandmother), that Crl.Appeal No.1305/2018 - : 34 :- the accused came through their courtyard and entered the house, etc., has thus, been corroborated by the evidence of PW-3 & PW-4. It has to be noted that PW-3 & PW-4 are neighbours and have previous acquaintance and knew the accused and the members of the victim's family very well and they have also identified the accused before the Court. The Cross Examination of these prosecution witnesses has not, in any manner, contradicted them and there is not even a suggestion that these prosecution witnesses, like PW-3 & PW-4 etc., were in inimical terms with the accused or that they had any motive to give any false evidence against the accused before the Court. The only feeble suggestion given by the accused in the Sec.313 questioning process is that the case has been falsely foisted on him with a view to grab his property. Even in the said version, he has no case as to who is allegedly having the evil motive to grab his property and who has falsely foisted the case against him, etc. There is not even a remote suggestion in the Cross Examination made by the defence of these prosecution witnesses that they are giving false evidence with a view to grab the property of the accused or that there are any other circumstances to show that these prosecution witnesses Crl.Appeal No.1305/2018 - : 35 :- were in inimical terms with the accused, etc. The evidence of PW-1 to PW-4 are quite natural and it inspires confidence to believe their testimony. Hence, the abovesaid evidence of these prosecution witnesses would clearly prove that the accused had reached the house of the victim family at about 11.30 A.M. and had spend some time in the said house. In other words, the accused intruder was the sole male person and stranger who was within the proximity of the victim girl between 11.30 A.M. and 12.30 noon on the fateful day. PW-7 is yet another prosecution witness who has deposed that, on the day in question (27.9.2014), at around 10.30 A.M. or so, he had seen the accused going through the road in front of ' _Narayanan School'._ 43. It is strongly urged by the counsel for the appellant that the specific prosecution case is that the accused is a coconut plucker by avocation and the specific case in the charge framed by the Court is that the accused is a neighbour of the victim family, etc. and, if that be so, the presence of the accused in the locality and near to the house of the victim family is not, in any manner, extra ordinary or strange and is quite natural, etc. True that, the specific prosecution case is that the accused is an immediate neighbour of the victim's family and that, he Crl.Appeal No.1305/2018 - : 36 :- is a coconut plucker by avocation and that, he used to do coconut plucking in the nearby families, including that of the victim's family, etc. However, the entry of the accused into the house compound of the victim's family and later, inside the house of the victim's family, between 11.30 A.M. and 12.30 noon on the fateful day, cannot be glossed over by contending that his presence in the locality is otherwise natural. The core aspect of the matter is that, the evidence led by the prosecution has proved that the accused was not only in the nearby locality but had indeed entered the house compound of the victim's family and had intruded inside the house and would have remained there between 11.30 A.M. and 12.30 noon. It is not as if the accused was called in order to do coconut plucking work on that day by the victim's family or that he had just come to the outside compound of the house to get back some articles in relation to his work he had left temporarily in the house compound of PW-1, etc. Whereas, the specific case is that he has unlawfully trespassed and intruded inside the house of the victim's family, which is nothing but a criminal offence. Hence, for these reasons, the unlawful entry and intrusion of the accused into the house of the victim's family and that, Crl.Appeal No.1305/2018 - : 37 :- he had access in that house between 11.30 A.M. and 12.30 noon on the fateful day in question has been cogently proved and established by the prosecution. - II. Issue as to whether the victim has been subjected to rape: 44. In this case, PW-1 has stated that, after being alerted about the incident, the victim was initially taken to Suchitra Hospital and the doctor had then informed that the victim has been sexually abused by somebody and the parents were asked to take the victim to SAT Hospital, from where they had taken the victim to the nearby Government Hospital, Kadakkal, where there was a Gynaecology Department and, as no Gynaecologist was present on that day, they had to take the victim to Gokulam Medical College. But the victim was not examined there and the said hospital authorities also advised them to take the victim to SAT Hospital and since, by that time, it was evening, it was not feasible for such consultation. That later, on the next day, the victim was taken to SAT Hospital, at about 7.30 A.M., and the doctor there had informed that there are internal injuries in the victim's body, which means on her private parts, etc. and the SAT Hospital authorities had informed the matter to the Police, which led Crl.Appeal No.1305/2018 - : 38 :- to the lodging of Ext.P-1 FIS and registration of Ext.P-10 FIR on the same day, ie. 28.1.2014. However, no other evidence has been led in by the prosecution, regarding the taking of the victim to the four hospitals, more particularly, Suchitra Hospital and the SAT Hospital. Evidence in relation to the medical examination has been made mainly through the deposition of PW-9 doctor (Gynaecologist of the Government Women & Children Hospital, Thycaud, Tvm). Ext.P-5 dated 28.1.2014 is the form of examination and report on victim of rape, which has been certified and proved by PW-9. A reading of Ext.P-5 would show that the victim was examined on 28.1.2014 at about 8.05 P.M. in the Government Women & Children Hospital, Thycaud, Thiruvananthapuram. The victim's name and age are stated therein and it is also clearly stated that the said report is pursuant to the registration of the instant Crime No. 130/2014 of Kilimanoor Police Station, Thiruvananthapuram and that, the victim was accompanied by one woman Civil Police Officer, viz., PW-13. 45. In the column, as against the history related to the incident, it is clearly endorsed as follows: "അയൽവഞാസട്ടിയഞായ ഒരഞാൾ വവീടട്ടിൽ മങ്ങുതട്ടിർന്ന ആളട്ടിലൈന്ലൈഞാത സമയത _rape_ വന്നു നചയന് തതഞായ സയംശയതട്ടിൽ നവച്ചന്" Crl.Appeal No.1305/2018 - : 39 :- ie., the victim has been brought on the basis of a suspicion that the victim might have been raped in her house by a neighbour. 46. It is further stated therein that the victim is bed-ridden. Further, it is clearly certified that she was not found to be menstruating on the day of the examination (28.1.2014). It is further stated therein that the victim's menstrual cycle (MC) is irregular. In the entry “ _date of last menstrual period_ (LMP)” it is endorsed as LMP – 12.12.2013, ie. the last menstrual period of the victim was 12.12.2013 as on the day of her examination on 28.1.2014. Further, as regards the details of the local examination, it is stated that the vulva appeared to be normal and that, the hymen was ruptured and that, fourchette and posterior commissure are found torn. Further, it is endorsed that one finger could be introduced easily into the vagina. As regards the entry regarding the injuries on the body, it is endorsed that there are no visible injuries. Further, it is stated that vaginal smear and swab have been preserved and nail clippings and combings of pubic region and pubic hair sample have been preserved, etc. 47. In the column towards opinion, there appears to be confusion in two out of the three entries made therein, viz., the first Crl.Appeal No.1305/2018 - : 40 :- and the third entries. The second entry appears to be clear. The second entry is as follows: _“There is evidence/ no evidence of resistance”._ Therein PW-9 has underlined the portion, _“no evidence of resistance”_ . So, it should imply that her finding is that there is no evidence of resistance. Entry C under physical examination regarding the injuries on the body, wherein she has noted as follows: _“No visible injuries”._ However, it has to be noted that, while so, PW-9 should have struck out the appropriate part of the second entry which is not applicable. Hence, for the sake of clarity, PW-9 should have struck out the portion _“evidence”_ appearing in the second entry, so that it should have been read as there is no evidence of resistance. But, we have to say that, since PW-9 has underlined the latter portion of the second entry, viz, _“no evidence of resistance”_ , it implies that what she means is that there is no evidence of resistance. Now, the controversial part comes in the first entry and the third entry under opinion. Crl.Appeal No.1305/2018 - : 41 :- ## The printed format for the first entry is as follows: _“there is evidence/ no evidence of recent/ past vaginal penetration”_ . As against the said printed entry, PW-9 has struck out the portion of _“evidence”_ appearing as the third word in that entry and has underlined the last three words thereof, viz. _“past vaginal penetration”_ and over and above that, she has made a handwritten note just above the words, _“past vaginal penetration”_ and the said added words in handwriting are _“evidence of”_ . Hence, after taking into account the struck out portion, the said entry may literally read as follows: _“There is no evidence of recent vaginal penetration, but there is evidence of past vaginal penetration”._ The confusing manner in which she has made her findings regarding that entry may presumably imply that, what PW-9 wants to convey thereby is that there is no evidence of recent vaginal penetration, but that there is evidence of past vaginal penetration. But, the matter does not stop there. The third printed entry reads as follows: _“There is evidence/no evidence of recent sexual intercourse” (based on results of the laboratory examinations)._ Crl.Appeal No.1305/2018 - : 42 :- Therein, instead of striking out the third word _“evidence”_ she has endorsed it with a circle and not a circle with a striking out 'X'. But at the same time, she has struck out the words _“no evidence”_ appearing immediately thereafter. So, literally, it may read as there is evidence of recent sexual intercourse. But at the same time, after the printed three words _“recent sexual intercourse”,_ appearing in the third entry and just before the printed words _“(based on the results of laboratory examination)”,_ PW-9 has made a written endorsement, which read as follows: _“After chemical analysis of semen, sperm/spermatozoa.”_ Hence, it appears that, what PW-9 intends to convey is that there is evidence of recent sexual intercourse after analysis of semen, sperm/ spermatozoa and the sensible way to read it would be that, there is evidence of recent sexual intercourse, but subject to confirmation after chemical analysis of semen, sperm/spermatozoa. We say so, as in Ext.P-5 itself, PW-9 has endorsed that the vaginal smears and swab have been taken and preserved from the victim on that day and obviously, it could have been sent to Forensic Sciences Laboratory, Crl.Appeal No.1305/2018 - : 43 :- etc., only later. Due to reasons which are not discernible, PW-9 has thus made this confusing entry. No attempt was made by the Prosecutor to elicit the correct details from PW-9, either during the course of the Chief Examination or Re-Examination. Even the Sessions Court concerned has not taken any effort to elicit the factual details in that regard from PW-9, which the Court could have easily done, by taking recourse to the powers conferred on that Court in terms of Sec. 165 of the Indian Evidence Act, 1872, etc. However, this lack of clarity need not detain us, as PW-9, in her Chief Examination, has stated that, there is evidence of vaginal penetration and result in part can be opined on chemical analysis of semen in the vaginal secretion and that, she had sent the vaginal secretion to the chemical laboratory. But, in Cross Examination, she has stated that, based on certification, presumably in reference to Ext.P-5, it cannot be concluded that there was present vaginal penetration. In Chief Examination, she has stated that, she has examined the victim and has issued Ext.P-5 and that, the victim was found to be handicapped, deaf and dumb. That, the victim was examined at 8 P.M. on 28.1.2014 in the Government Women and Children Hospital, Crl.Appeal No.1305/2018 - : 44 :- Thiruvananthapuram. That, externally, there is no abnormal findings but that hymen was found ruptured and fourchette and posterior commissure were torn and that, one finger could be introduced easily to the victim's vagina, etc. It appears that a specific question was put by the defence during her Cross Examination as to whether the blood, if any found, could be due to menstruation. To this, she has replied that, if bleeding is formed from the cervix, then it is most probably due to menstruation. Further, she has stated that no injury and abrasions were there at the vagina. She has further opined that recent penetration cannot be found out with one finger admission. Further, she has stated that there was no earlier bleeding. That is, presumably, it means that, when she examined the victim on 28.1.2014 and prior to issuance of Ext.P-5, she could not find any bleeding in the private parts of the victim, etc. 48. Further, Ext.P-16 is the Chemical Examination Report issued by the Chemical Examiner's Laboratory, regarding the vaginal smear and swab, nail clippings and pubic hair of the victim, where it is certified that the seals on the packets were intact and found tallied with the sample seal provided by the Government Women & Children Crl.Appeal No.1305/2018 - : 45 :- Hospital, Thycaud, Thiruvananthapuram, consequent to the requisition dated 28.1.2014 received from PW-9. It is further certified, in page 2 of Ext.P-16 Chemical Analysis Report, that semen and spermatozoa were not detected in the specimens covered by the items 1 to 4 mentioned in page 1 of Ext.P-16. So, it is common ground that semen and spermatozoa were not detected in the specimens of the vaginal smear, swab, pubic hair, etc. of the victim sent for lab testing, in pursuance of Ext.P-5. 49. The learned counsel appearing for the appellant/accused would strongly urge that, on the basis of the evidence tendered by PW-9 as well as the entries and opinion given in Ext.P-5 certificate, issued by PW-9 as well as Ext.P-16 chemical analysis report, it can be seen that there are no materials to even remotely prove that the victim has been raped, as alleged by the prosecution. Whereas, the learned Prosecutor would strongly contend that the absence of semen, spermatozoa, etc. in the vaginal area of the victim is not, in any manner, suggestive that no rape has taken place at all and that, aspect of the matter is medically and legally well settled in case laws relating to sexual violence. Crl.Appeal No.1305/2018 - : 46 :- 50. Ext.P-17 is the report of the FSL, which would show that MO-1 maxi of the victim and MO-2 lungi of the accused sent for lab testing were found to have blood stains. Of course, there is no certification therein as to which blood group the blood stains belong to and there is no mention therein about the blood group and RH factor of the blood stains found in MO-1 and MO-2. The learned Prosecutor would strongly urge that the evidence of PW-9 as well as the factual entries in Ext.P-5, coupled with the evidence of PW-1, regarding finding of blood on the private parts and dress of the victim, immediately after the incident, and the certification of the presence of blood stains in MO1 and MO2, more particularly MO-2 lungi of the accused, would be sufficient proof, beyond the shadow of reasonable doubt as well as the legal principles relating to appreciation of expert medical opinion, on the basis of which the Court will have to conclude about the factum of rape or otherwise, etc., would lead to the clear supposition that there is more than sufficient proof, beyond the shadow of reasonable doubt, to establish that the victim was indeed raped and the consequential inexorable finding is that the rape has been committed by the accused, who was Crl.Appeal No.1305/2018 - : 47 :- the only male person in the proximity of the victim, at the time of the incident. 51. We need not get into the nitty-gritty of the rival arguments, as we proceed to make our finding on these matters. 52. Before we evaluate the factual aspects and render our legal findings on these matter, it will be very pertinent to refer to some of the case laws on the subject. 53. In the decision in _**Madan Gopal Kakkad v. Naval Dubey & Anr.** [(1992) 3 SCC 204]_ , the Apex Court dealt with a case where, after medical examination, the medical officer found that the victim, aged 8 years, was found to have abrasion on medial side of labia majora and redness around labia minora with white discharge, but hymen was intact, while admitting tip of little finger (see para 7 thereof). The medical officer then opined that this would amount to absence of signs of full penetration and therefore, it was opined that it is a case of attempt to rape. The Apex Court held, in para 34 and 35 of the above decision in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204],_ that a medical witness, called in as an expert to assist the Court, cannot be a witness of fact and the evidence given by Crl.Appeal No.1305/2018 - : 48 :- the medical officer is really of an advisory character, given on the basis of the symptoms found on examination and the expert witness is expected to put before the Court all materials, inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case, by explaining the terms of science, so that the Court, although not an expert, may form its own judgment on those materials, after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. After placing reliance on a foreign judgment, the Apex Court has noted, in para No.35 thereof, that the evidence of a medical man or other skilled witnesses, however eminent they may be, is ordinarily a matter of mere opinion. Further, it is also noted, in para No.36, that medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused and as to the exact time when the appellants may have had sexual intercourse with the prosecutrix. Thereafter, the Apex Court placed reliance on the opinion expressed in the authoritative text book authored by Modi in Medical Jurispurdence and Toxicology Crl.Appeal No.1305/2018 - : 49 :- [Twenty First Edition, page 369 (see para 37 of the decision in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204]]_ , wherein it has been opined in the said treatise that rape is a crime and not a medical condition and rape is a legal term and not a diagnosis to be made by the medical officer treating the victim and the only statement that can be made by the medical officer is that there is evidence of recent sexual activity and whether the rape has occurred or not is a legal conclusion, not a medical one. Further, it was held, in para 38, that the slightest degree of penetration of the vulva by the penis with or without emission of semen would constitute rape and that, legally, it is quite possible to commit the offence of rape without producing any injury to the genitals or leaving any seminal stains. After quoting Halsbury's Statutes of England and Wales [(Fourth Edition) Volume 12] and Harris's Criminal Law (Twenty Second Edition) as well as American Jurisprudence, it was held that even the slightest degree of penetration is sufficient to prove sexual intercourse. The explanation to Sec. 375 of the I.P.C., as it stood prior to the present amendment made effective from 3.2.2013, stipulated that penetration is sufficient to constitute the sexual Crl.Appeal No.1305/2018 - : 50 :- intercouse necessary to the offence of rape. It will be pertinent to refer to the legal principles laid down by the Apex Court in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204]_ in paras 34 to 45, which read as follows: _**34.** A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court._ _**35.** Nariman, J. in Queen v. Ahmed Ally [(1869) 11 Sutherland WR Cr 25] while expressing his view on medical evidence has observed as follows:_ _“The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion.”_ _**36.** Fazal Ali, J. in Pratap Misra v. State of Orissa [(1977) 3 SCC 41 : 1977 SCC (Cri) 447 : AIR 1977 SC 1307] has stated thus:_ _“… [I]t is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused … as to the exact time when the appellants may have had sexual intercourse with the prosecutrix.”_ _**37.** We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 which reads thus:_ _“Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without_ Crl.Appeal No.1305/2018 - : 51 :- _emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”_ _(emphasis supplied_ _**38.** In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:_ _“Sexual intercourse.— In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.”_ _**39.** In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated: “… [E]ven slight penetration is sufficient and emission is unnecessary.”_ _**40.** In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of Section 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes [(1841) 9 C&P 752 : 2 Mood CC 190] ; (2) R. v. Lines [(1844) 1 Car & Kir 393] and R.v. Nicholls [(1847) 9 LT OS 179 : 2 Cox CC 182] ._ _**41.** See also Harris's Criminal Law, (Twenty-second Edition) at page 465._ _**42.** In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of California reads thus:_ _“Rape; essentials — Penetration sufficient.— The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.”_ Crl.Appeal No.1305/2018 - : 52 :- _**43.** The First Explanation to Section 375 of Penal Code, 1860 which defines ‘Rape’ reads thus:_ _“Explanation.— Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”_ _**44.** In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor [(1925) 26 Cri LJ 1185 : AIR 1923 Lah 536 : 88 IC 705] ; (2) Abdul Majid v. Emperor [AIR 1927 Lah 735 (2) : 28 Cri LJ 241 : 100 IC 113] ; (3) Mst. Jantan v. Emperor [(1934) 36 Punj LR 35 : AIR 1934 Lah 797] ; (4) Ghanashyam Misra v. State [1957 Cri LJ 469 : AIR 1957 Ori 78] ; (5) Das Bernard v. State [1974 Cri LJ 1098] . In re Anthony [AIR 1960 Mad 308 : 1960 Cri LJ 927] it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, “Even vulval penetration has been held to be sufficient for a conviction of rape.”_ _**45.** Reference also may be made to Prithi Chand v. State of H.P. [(1989) 1 SCC 432 : 1989 SCC (Cri) 206] though the facts therein are not similar to this case._ 54. After applying the abovesaid legal principles to the facts of the said case, on the basis of the evidence of the victim therein, as well as the medical opinion, the Apex Court has opined, in para 48 of _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204]_ , that on the finding of abrasion on the medial side of labia majora and redness present around the labia minora with white discharge, etc. , it can be safely concluded that there was partial penetration Crl.Appeal No.1305/2018 - : 53 :- within the labia majora or the vulva or pudenda, which, in the legal sense, is sufficient to constitute the offence of rape. Of course, in the said case, the 8 years old victim girl was capable of giving evidence before the court. Whereas, in the instant case, though the victim girl is 20 years old, she is highly mentally and physically challenged and is unable to even speak or communicate and is not in a position to give evidence before the court. It will be pertinent to refer to para 48 of the above decision in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204]_ , which reads as follows: _**48.** When the evidence of PW 1 is taken with the evidence of medical officer who found an abrasion on the medial side of labia majora and redness present around the labia minora with white discharge even after 5 days, it can be safely concluded that there was partial penetration within the labia majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape. Moreover, the respondent himself has confessed twice admitting the commission of rape without rupturing the hymen which confession is not disbelieved by the High Court. The respondent is a medical officer who has got the practical knowledge of the anatomy of a human being and the tender sexual organ of a young girl and who must have been quite aware of the implication of his confession having fully understood the meaning of the word ‘rape’. Therefore, as admitted by the respondent himself, he without forcibly and completely penetrating his penis into the vagina of PW 13 had slightly penetrated within the labia majora or vulva or pudenda without rupturing the hymen and thereby satisfied his lust after emission of semens. In this context, it is not necessary to enter into any nice discussion as to how far the male organ has entered in the vulva or pudenda of PW 13 since it is made clear that there was penetration attracting the provisions of Section 375 IPC. The evidence of PW 13 is amply corroborated not only by the medical evidence and the corroborating evidence of PW 12 but also by the plenary confession of the respondent himself._ 55. A Division Bench of Jharkhand High Court, in the case in Crl.Appeal No.1305/2018 - : 54 :- **Manoj Kerai v. State of Jharkhand** _[2019 KHC 4783]_ , has also applied the legal principle laid down by the Apex Court in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204]_ , wherein it was noted that the medical board had found redness in vulvar region and fourchette, but the presence of semen was not found and hymen was not ruptured, etc. After placing reliance on the legal principles laid down by the Apex Court in paras 35 to 44 and 48 of the decision in _**Madan Gopal Kakkad's case supra** [(1992) 3 SCC 204],_ the Division Bench of the Jharkhand High Court has held, in para 24 of the decision in **Manoj Kerai's case supra** _[2019 KHC 4783],_ that Ext.P-2 medical records therein, would show that hymen was intact, redness on vulvar region and fourchette present and forceful penetration of vagina has been tried, though spermatozoa was not found dead or alive and based on the ocular evidence of the victim girl, it was held by the Jharkhand High Court that the victim girl, aged 7 to 8 years, was sexually assaulted by the appellant though the hymen did not rupture, but there was an attempt of forceful penetration of vagina i.e., vulvar region, which consists of labia majora and labia minora, and that is the reason why the medical Crl.Appeal No.1305/2018 - : 55 :- board has found redness in the vulvar region and fourchette. The presence of semen was not found and hymen was not ruptured, etc. After placing reliance on the abovesaid legal principles, it was held that it is quite possible to commit legally the offence of rape without making any injury to the genitals or leaving any seminal stains and in such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed and rape is a crime and not a medical condition and that the only statement that can be made by the medical officer is that there is evidence of recent sexual activity and that, whether the rape has occurred or not, is a legal conclusion, not a medical one. Hence, it was held in **Manoj Kerai's case supra** [2019 KHC 4783] that the evidence in that case would prove that a case of rape, as understood in the unamended provision of Explanation No.1 of Sec. 375 of the I.P.C., which is punishable under Sec. 376 thereof, is made out. 56. The crime incident in that case was on 4.11.2008 and so, the unamended provisions of Sec. 375 read with Sec. 376 of the I.P.C. were applied to the facts of that case. The Apex Court in the decision in _**Mange v. State of Haryana**_ **[** (1979) 4 SCC 349] has held that Crl.Appeal No.1305/2018 - : 56 :- conviction can be based on the sole testimony of an eye witness, though in this case, testimony was corroborated by blood stains on the clothes of the dumb and deaf prosecutrix, aged 13 years and the medical evidence and that non examination of the prosecutrix, who was deaf and dumb, was held to be not fatal. Therein, the Apex Court held that the finding on medical examination of torn hymen and bruise around the hymen was held to be sufficient and absence of swelling, redness of inflammation was not fatal. It was further categorically held therein that medical expert cannot determine the exact duration or time when rape was committed, etc. 57. In the decision in _**Radhakrishna Nagesh v. State of Andhra Pradesh** [(2013) 11 SCC 688],_ the Apex Court has held that penetration may not always result in tear in the hymen and the same will always depend on the facts of the case and further that, the mere fact that the hymen was intact and there was no actual wound on the victim's private parts is not conclusive of the fact that she was not subjected to rape. In the facts of the case, it was held that there was limited penetration, due to which probably the hymen of the victim girl was not ruptured and the absence of injuries, by itself, would not Crl.Appeal No.1305/2018 - : 57 :- justify drawing of any adverse inference against the prosecution. 58. In the instant case, the crime incident has occurred on 27.1.2014 and so, the provisions of Secs. 375 & 376 of the IPC, as amended with effect from 3.2.2013, would apply. In view of Clause “Seventhly” appended under Sec.375, the offence could be made out, irrespective as to the consent or will of the victim, when she is unable to communicate consent. In the instant case, there is no dispute by the defence that the young victim girl, aged 20 years, is having 95% disability of mental retardation and she cannot speak and communicate and she has no verbal and non verbal expressions and she is having hearing and speech impairment and she is unable to walk without support, unable to speak, etc. Hence, in the present case, the issue of consent is absolutely immaterial. Further, Explanation (1), appended under the amended Sec.375, would stipulate that for the purposes of the said section, "vagina" shall also include labia majora, etc. The incident is said to have taken place between 11.30 A.M. and 12.30 noon on 27.1.2014. PW-1 (mother), at around 1 P.M. on that day, could see blood seeping through the waist and lower parts of the body and it was also found on the victim's Crl.Appeal No.1305/2018 - : 58 :- maxi. The evidence would clearly show that, due to such bleeding, PW-1 was constrained to give a bath to the victim, etc. Moreover, the medical evidence given by PW9, on the basis of Ext.P-5, would clearly show that the victim was not menstruating on the day of examination, which is one day after the day of the incident and, as recorded on 28.1.2014, her last menstrual period was on 12.12.2013. It is also found on evidence that her menstrual cycle was irregular. Hence, there is clear and clinical evidence to show that the victim was not menstruating on the day of the incident, viz. 27.1.2014. Moreover, the finding of blood seeping through the waist and lower part of the body of the victim was one of the main aspects on the basis of which PW-1 was alerted to ascertain whether any intruder had come to her house, which led to her and her husband taking the victim girl to three hospitals immediately thereafter on the same day and also the 4[th] & 5[th] hospitals on the next day. The intimate needs, like menstrual hygiene and care required to be given to the victim girl, was looked after by her mother. A 40-year-old woman, who is the mother of the victim, would certainly know the difference between menstrual blood and the blood flowing out from an injury. The evidence of PW-9 at Crl.Appeal No.1305/2018 - : 59 :- Ext.P-5 would clearly prove that the hymen was found ruptured, fourchette and posterior commissure were found torn and one finger could be easily introduced into the vagina. The evidence on record, including the depositions of the parents of the victim and, more particularly, that of PW-11 (the Psychiatrist who has issued Ext.P-7) would show that the victim girl, though aged 20 years, was almost like a child, due to the extreme mental and physical disability suffered by her due to brain injury at the time of her birth. The evidence has clearly disclosed that, even for her elementary needs, for answering the calls of nature, she was fully dependent on her parents. PW-1 clearly found strange behaviour in the victim immediately after the incident and she was showing aversion in taking food, contrary to her usual habit of showing interest in eagerly taking food at around 1 P.M. Though there is some amount of confusion in Entry Nos. (i) & (iii), appended under the opinion in Ext.P-5, PW-9 has clearly stated that there is evidence of vaginal penetration, but she has further opined that, as to whether it is recent or past penetration, the same can be opined only after chemical examination of semen in the vaginal secretions. As held by the Apex Court in _**Madan Gopal**_ Crl.Appeal No.1305/2018 - : 60 :- ## _**Kakkad v. Naval Dubey** [(1992) 3 SCC 204],_ _**Pratap Mishra v.**_ _**State of Orissa** [(1977) 3 SCC 41]_ etc., medical jurisprudence is not an exact science and it is difficult for a Doctor to say with exactitude as to when a particular injury was caused and as to the time of sexual intercourse, etc. So, the testimony of PW-1, that she found blood seeping through the waist and lower parts of the body of the victim at around 1 P.M. on 27.1.2014 is not, in any manner, disputed or challenged by the defence. Further, this evidence of PW-1 is also corroborated by Ext.P-16 Chemical Analysis Report, where it was found that MO1 maxi, worn by the victim at the time of incident, is having blood stains. In view of the seeping of blood from the lower part of the victim's body, PW-1 (mother) was constrained to give bath to the victim and it is only thereafter that the victim was taken to the first three hospitals on the same day (27.1.2014). Moreover, PW9 could examine the victim only at 8 PM on the next day (28.1.2014). So, it was rather impossible for PW9 to see whether there was any blood on the private parts of the victim. The medical evidence would clearly show that the victim was not menstruating as on the day of incident. As held by the Apex Court as in the decisions as in _**Madan**_ Crl.Appeal No.1305/2018 - : 61 :- _**Gopal Kakkad's**_ case supra _[(1992) 3 SCC 204]_ , it is quite possible to commit the offence of rape without producing any injury to the genitals or leaving any seminal stains and further, it is not necessary that there should be complete penetration with emission of semen and rupture of hymen and partial penetration within the labia majora or vulva or pudenda with or without emission of semen and that, even an attempt of penetration would be quite sufficient for legally bringing the act within the offence of rape. 59. True that, to the suggestion made by the defence in cross examination, PW-9 has stated that if the bleeding is formed from the cervix, then it could be due to menstrual blood. The said aspect is only a reiteration of a well known medical fact that blood coming out from the cervix, which is the lower end of the uterus, could be menstrual blood. There is clinching and indisputable evidence on record to hold that the victim was not menstruating either on the day of the examination or the day prior thereto (day of the incident) and her LMP was on 12.12.2013 and her menstrual cycle was highly irregular. The defence has not even remotely challenged the correctness of the LMP details of the victim as shown in Ext.P-5. In the light of these Crl.Appeal No.1305/2018 - : 62 :- facts and circumstances, it can be safely inferred that the victim was not menstruating on the day of the incident and so the blood seen by the mother could have been caused only by the injuries on her genitals, noted in Ext.P-5, which would clearly be due to the situation that the blood seen is due to the sexual assault suffered by the victim. 60. Applying the legal principles laid down in the afore cited decisions of the Apex Court to the facts of this case, we are fully inclined to confirm the considered findings made by the Sessions Court that the victim was raped on the day of the incident. The clear findings in Ext.P-5, that the hymen was ruptured, fourchette and posterior commissure were torn and that, one finger can be easily introduced into the vagina, etc., coupled with the clear and uncontroverted evidence of PW-1 (mother), that blood was profusely seeping through the waist and lower part of the body of the victim and as corroborated by Ext.P-17 FSL report, regarding the presence of blood on the dress of the victim, would clearly lead to the position that the victim has been subjected to rape on the day of the incident in question. Absence of semen, spermatozoa etc., would be immaterial, in the facts of this case. Moreover, the truthfulness and veracity of the core evidence given by Crl.Appeal No.1305/2018 - : 63 :- PW-1 (victim's mother), PW-5 (victim's father) and PW-2 (victim's grandmother) would be evident from the following aspects: 61. In spite of being highly alerted about the strong possibility of the victim suffering rape, her parents PW-1 & PW-5 did not proceed straightaway to the police station to report about the crime, even though they had every reason to believe the information given to them by PW-2, that the accused, who is an immediate neighbour, had intruded into the house between 11.30 A.M. And 12.30 noon on that day. On the other hand, PW-1 & PW-5 had immediately proceeded to take their victim daughter to the nearby private hospital (Suchitra Hospital), where the doctor had told them that the victim has been sexually violated and that they should immediately take the victim to SAT Hospital. Since, the Government Hospital, Kadakkal was nearer, they proceeded to that hospital, where a Gynaecologist was not available. So, they proceeded to the next nearby hospital, which is the Gokulam Medical College and the Gynaecology Department there did not attend to the victim but advised them to take the victim to the SAT Hospital. By that time, it was late evening and hence, the parents of the victim had no other alternative, but to wait till the next day. Crl.Appeal No.1305/2018 - : 64 :- Early on the next day morning, the victim was taken to the SAT hospital at 7.30 A.M. (on 28.1.2014). There, the doctor had told them that the victim has suffered internal injuries, meaning thereby injuries on her private parts. It is beyond any dispute that, the police got information about the instant crime only on the basis of the intimation given by the SAT Hospital authorities, which led to the registration of Ext.P-1 FIS and Ext.P-10 FIR. It is thus, only after getting the expert opinion of the SAT Hospital and based on the information conveyed by the said hospital authorities that the police has registered the FIS etc. If the parents of the victim wanted to falsely foist a case against the accused, then they should not have taken all the trouble by visiting one hospital after the other and despite all obstacles, they have waited with fortitude and it was only after getting medical confirmation that the crime has been registered and that too, mainly on the intimation given by the SAT Hospital authorities to the police authorities. By around 1 P.M., on 27.1.2014 itself, the parents of the victim had clear information that the accused had unlawfully intruded into the house and had access and proximity to the victim. These aspects would clearly lead to the position that the Crl.Appeal No.1305/2018 - : 65 :- conduct of the parents of the victim have been very honest and sincere and none can even raise a remote allegation that they have any intention, whatsoever, to falsely foist a case against the accused or that they have immediately jumped to the conclusion that the victim has been raped by the accused. Further, the abovesaid factual aspects would also clearly show that the time taken by the parents of the mentally challenged victim in lodging the FIS and the consequential registration of the FIR is adequately and properly explained. True that, the time gap between the date of knowledge of the incident (27.1.2014) at around 1 P.M. upto the registration of Ext.P-10 FIR on 28.1.2014 at about 5.25 P.M. is about a day and a half. The abovesaid conduct of the parents of the victim, in diligently taking the medical route before jumping into a conclusion, would not only manifest that they have no intention to falsely foist the case on the accused but would also adequately and reasonably explain the delay in lodging of the FIS and the registration of the FIR. The Police, immediately, on getting information of the crime incident from the SAT Hospital authorities, have taken further steps to ensure that the FIS of PW-1 was duly lodged, so as to enable the registration of the Crl.Appeal No.1305/2018 - : 66 :- crime. 62. True that, the prosecution has not taken care to ensure the adducing of evidence of the doctors concerned of the first 4 hospitals or atleast that of the first and the fourth one, namely Suchitra Hospital and the SAT Hospital. The flaw on the part of the investigating agency to do that, cannot result in disbelieving the versions of the evidence of the parents of the victim that they had taken the victim to 4 hospitals, before they could take the victim to the 5[th] hospital, which had issued Ext.P-5 certificate. If the defence is allowed to take advantage of the flaws committed by the investigating agency on these aspects, so as to disbelieve the version of the prosecution witnesses, it would be a serious injustice to a mentally and physically challenged young girl, who has been suffering 95% disability since the time she has been born on this Earth. The unfortunate young victim girl has been in this highly disabled condition due to extreme brain injury suffered at the time of her birth. If she could speak and respond, she would have certainly given evidence before the Court. The Courts will be treating a mute, deaf and dumb young girl, having 95% mental retardation disability with injustice if such Crl.Appeal No.1305/2018 - : 67 :- hypertechnical approach is taken. True that, there are quite a few flaws in the conduct of the investigation and the prosecution. The preparation of Ext.P-5 medical certificate is far from satisfactory. The Prosecutor could have easily elicited clarifications in the Chief Examination, at least in Re-examination, regarding the confusing entry nos. (i) and (iii) in Ext.P-5, in the absence of which, atleast the Additional Sessions Court, which had initially dealt with the matter, could have shown greater sensitivity by seeking such clarifications from PW-9 by taking recourse to the discretionary powers under Sec.165 of the Evidence Act. That, none of these options have unfortunately been resorted, does not mean that the trial court and this Court, as the appellate court, should be helpless spectators to such a scenario. We are constrained to invoke the words of judicial wisdom, tendered by His Lordship Justice K.T.Thomas in the decision rendered in _**State of Karnataka v. K.Yarappa Reddy** [(1999) 8 SCC 715, para 19]_ that, it is well settled that, even if the investigation is illegal or even suspicious, the rest of the evidence should be scrutinized independently of the impact of it. Otherwise, criminal trial will plummet to that level of investigating officers ruling Crl.Appeal No.1305/2018 - : 68 :- the roost. The Courts must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal Justice should not be made casualty for the wrongs committed by the investigating officers in the case, etc. 63. It is beyond any dispute that action for registration of Ext.P-10 FIR, was taken by the competent police authorities concerned, pursuant to the intimation given by the SAT hospital authorities on 28.01.2014, after the victim was medically examined in the morning. Though the prosecution has not led any evidence from the SAT hospital authorities, since the indisputable fact is that action for registration of Ext.P-10 FIR was taken in pursuance of the intimation given by the SAT hospital authorities, it can be easily inferred that the said hospital authorities would have so reported, only after being convinced that the victim was subjected to serious sexual assault. This is also one of the crucial, vital and relevant circumstances, which would pinpoint that the rupturing of hymen, tear in fourchette and posterior commissure, etc., as found in Ext.P-5, could have been only because of sexual violation suffered by the victim and in the instant case, there is absolutely no question of the Crl.Appeal No.1305/2018 - : 69 :- victim giving any consent, as envisaged in Sec.375, inasmuch as Clause Seventhly appended under Sec.375 clearly mandates that rape will be made out consequent to penetration, full or part, on satisfying any of the other ingredients in clauses (a) to (d) of Sec.375, when the victim is unable to communicate consent. Going by the indisputable evidence flowing out from Ext.P-7 disability certificate and the evidence of PW-11, the victim is not only a physically challenged girl, but also a seriously mentally challenged girl, on account of the injury sustained on her brain at the time of her birth. In that regard, the Legislature has also guardedly made provisions, in terms of clause (l) of Sec.376(2), which deals with a special punishment for rape committed on a woman, who is suffering either from physical disability or mental disability. In the instant case, the victim is suffering from both mental and physical disability. Hence, the subsequent disclosure, relating to the medical findings or facts in Ext.P-5, regarding the rupturing of hymen, tear in fourchette and posterior commissure and easy insertion of one finger in the vagina, etc., would be clinching pointers in the special facts and circumstances of this case, that those injuries could have been caused Crl.Appeal No.1305/2018 - : 70 :- only by sexual assault. In that regard, it is also highly relevant to note that the accused has not even made a remote suggestion or challenge during the cross-examination of the main prosecution witnesses, like PW-1 (mother), PW-2 (grandmother), PW-5 (father), PW-9 (the doctor who issued Ext.P-5), PW-17 (Investigating Officer), etc., that the categorical medical findings or facts made in Ext.P-5 regarding the hymen rupture, torn fourchette and posterior commissure, easy insertion of finger in the vagina, etc., could have been caused by a previous sexual assault suffered by the victim. In the case of a healthy and active young girl, it is quite possible that the hymen could be ruptured due to any activities, including running, falling down, cycling, etc. Though the victim in this case is 20 years old, she has been totally immobilised and incapacitated since her birth and is almost always in a lying down condition and therefore, it is highly improbable that she would have suffered rupture of the hymen, due to any such activities. It can be easily inferred that such possibilities could be ruled out. The torn condition of the fourchette and posterior commissure, will not happen ordinarily, unlike hymen rupture in the case of healthy active girls. The torn condition of the Crl.Appeal No.1305/2018 - : 71 :- fourchette and posterior commissure, as found by PW-9 in Ext.P-5, is a clear pointer that the victim was subjected to serious sexual violence. The accused has not even the remotest case, either by a suggestion or challenge during the cross-examination of the main prosecution witnesses above or even during his Sec.313 Cr.P.C. Proceedings, that the abovesaid serious injuries, noted on the private parts of the victim, could have been caused by some other previous incident of sexual assault, etc. There is clear and clinching evidence that the accused was the only male person present very proximately to the victim between 11.30 a.m. and 12.30 p.m. on the fateful day. He has not offered any explanation, as to why he has made the intrusion and trespassed into the house of the victim on that day. The potency of the accused is not beyond any dispute, on the basis of the evidence of PW-10 Doctor, who has issued Ext.P-6 potency certificate. In the cross-examination of PW-10, the accused has not raised any suggestion or challenge against the evidence given by the said witness and about the findings in Ext.P-6 potency certificate. Therefore, the only reasonable inference that is appended, on the basis of the abovesaid evidence and the unrebutted circumstances, is that the Crl.Appeal No.1305/2018 - : 72 :- victim was subjected to rape by the accused, on the fateful day, as alleged by the prosecution. 64. Further, the consistent and persevering conduct of the parents of the victim in immediately taking the victim to three hospitals on the first day and to the fourth hospital and the fifth hospital on the second day, as has been said above, would also be highly relevant, as understood in Sec.8 of the Indian Evidence Act. Sec.8 speaks about conduct of any party or any agent of a party to any suit or proceedings, in reference to such suit or proceedings or in reference to any factual issue therein or relevant thereto and conduct of any person, an offence against whom, is the subject matter of any proceedings, is relevant to such conduct influenced by any factual issue and material fact and whether it was previous or subsequent thereto. The abovesaid consistent conduct of the parents of the victim, in taking the victim to one hospital after the other, would be a highly relevant conduct, which would point out that the parents were highly alerted that the victim may have been subjected to serious sexual assault, on seeing the blood seeping from her waist and lower part of the body, etc., on the day of the incident. The visit to the Crl.Appeal No.1305/2018 - : 73 :- second and third hospitals is also a pointer that the parents would have been told by the Doctor of the previous hospital that the victim has been sexually abused and therefore, should go to a well-equipped hospital. The parents have explained in evidence that, from the first hospital, though they were advised to go to SAT Hospital, they do not do so, as the Government Hospital, Kadakkal, which is having a Gynaecology Department, was much more nearer. This is a highly reasonable explanation, inasmuch as both the parents are rustic villagers and they would have been guided by the consideration that the child should be immediately examined in the nearest hospital having a Gynaecology Department, instead of going to a far off hospital, so that the examination and diagnosis of the victim is done effectively without any loss of time. The further explanation of the parents that, they could not get the victim admitted to the second hospital, as the Gynaecologist in the said Government Hospital, Kadakkal was not available on that day, is not, in any manner, even remotely disputed or challenged by the defence. The further explanation of the parents that, then they had opted to go to the next nearest medical institution, which is a private medical college Crl.Appeal No.1305/2018 - : 74 :- (Gokulam Medical College), is also quite reasonable and probable, inasmuch as any ordinary and prudent person, would be justified in thinking that the best services of a Gynaecologist would be available in such a Medical College Hospital. Unfortunately, the said private medical college authorities did not accept the victim for examination and referred them to go to SAT hospital. The explanation of the parents as to why they could not immediately go to the SAT hospital on the same day, is also highly probable and true, inasmuch as, according to them, by that time, it was late evening and there was no point in going to the hospital at that late hour. 65. The further conduct of the parents of the victim are also highly relevant, inasmuch as they had in fact taken the victim to SAT hospital on the next day morning at about 7.30 a.m. The fact that they had gone to the SAT hospital, is evident from the indisputable fact that action for registration of Ext.P-10 FIR was taken by the police, in pursuance of the intimation given by the SAT hospital. Thereafter, the FIS of the mother of the victim was taken and the FIR was registered and the police authorities deputed a woman police constable to accompany the victim for detailed examination at the Crl.Appeal No.1305/2018 - : 75 :- Government Women & Children Hospital , which led to the medical examination referred to in Ext.P-5 issued by PW-9. 66. So, each of these previous and subsequent conduct of the parents of the victim, as mentioned above, is highly relevant, as understood in Sec.8 of the Evidence Act, since such conduct is influenced by the fact in issue, as to whether or not the victim has suffered sexual violence or any fact relevant thereto. 67. As repeatedly held by the Apex Court in various decisions including the one in _**State of Karnataka v. Suvarnnamma &**_ _**anr.** [(2015) 1 SCC 323 (para 10)]_ , that the Court dealing with criminal trial has to perform the difficult task of ascertaining the truth from further materials before it and just as it has to protect the innocent, it has to punish the guilty. The burden of proof is on the Prosecution and the Prosecution has to establish its case beyond reasonable doubt, but much weight cannot be given on minor discrepancies etc. It will be pertinent to refer to para 10 of the decision in _**Suvarnnamma's case supra** [2015 (1) SCC 323],_ which reads as follows: Crl.Appeal No.1305/2018 - : 76 :- _**“10.** The court dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it. It has to punish the guilty and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. Much weight cannot be given to minor discrepancies which are bound to occur on account of difference in perception, loss of memory and other invariable factors. In the absence of direct evidence, the circumstantial evidence can be the basis of conviction if the circumstances are of conclusive nature and rule out all reasonable possibilities of the accused being innocent. Once the prosecution probabilises the involvement of the accused but the accused takes a false plea, such false plea can be taken as an additional circumstance against the accused. Though Article 20(3) of the Constitution incorporates the rule against self-incrimination, the scope and the content of the said rule does not require the court to ignore the conduct of the accused in not correctly disclosing the facts within his knowledge. When the accused takes a false plea about the facts exclusively known to him, such circumstance is a vital additional circumstance against the accused.”_ 68. The Apex Court has held in the case in _**Trimukh Maroti Kirkan** v._ _**State of Maharashtra** [(2006) 10 SCC 681]_ that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in the circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon by the courts. Further that, a judge does not preside over a criminal court merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin Crl.Appeal No.1305/2018 - : 77 :- a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence, which it is capable of leading, having regard to the facts and circumstances of the case. Hence, it was held that it is necessary to keep in mind that Sec.106 of the Evidence Act, which stipulates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 69. It was also be _inter alia_ observed in para 16 of **Trimukh Maroti Kirkan's case** supra _[(2006) 10 SCC 681]_ that the law does not require the prosecution to prove the impossible and all that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue and the legal proof is not necessarily perfect proof and often it is nothing more than a prudent man's estimate as to the probabilities of the case. 70. In the decision in _**State of Haryana** v._ _**Bhagirath** [(1999) 5 SCC 96]_ (paras 8 to 11), it has been held by the Apex Court that it is nearly impossible in any criminal trial to prove all the Crl.Appeal No.1305/2018 - : 78 :- elements with a scientific precision and that a criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. The expression “ _reasonable doubt_ ” is incapable of precise definition and modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge. Further, placing reliance on the learned Author Francis Wharton, on criminal evidence, it has been held by the Apex Court therein that 'reasonable doubt' is not a mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. Further, it has been held therein that "It (reasonable doubt) is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in a conviction to a moral certainty of the truth of the charge.” 71. It will be pertinent to refer to the case in _**State of Haryana** v._ _**Bhagirath** [(1999) 5 SCC 96]_ , paras 8 to 11, which read as follows : _**“8.** It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression “reasonable doubt” is incapable of definition. Modern_ Crl.Appeal No.1305/2018 - : 79 :- _thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge._ _**9.** Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:_ _“It is difficult to define the phrase ‘reasonable doubt’. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says: ‘It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.’ ”_ **10.** In the treatiseThe Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus: _“The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt.”_ _**11.** In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489] this Court adopted the same approach to the principle of benefit of doubt and struck a note of caution that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. This Court further said: (SCC p. 799, para 6)_ _“The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.”"_ 72. The Apex Court has also placed reliance on the dictum Crl.Appeal No.1305/2018 - : 80 :- laid down in **Bhagirath's case** supra _[(1999) 5 SCC 96]_ , in paras 12, 12.4 of the decision in _**State of Karnataka** v._ _**Suvarnamma** [(2015) 1 SCC 323]_ . 73. The Apex Court in the decision in _**Sharad Birdhichand Sarda v. State Of Maharashtra** [(1984) 4 SCC 116],_ in paras 155 & 156 thereof, has referred to the statement of law as to the mode of proof in a criminal case, depending on circumstantial evidence, in the absence of a corpus deliciti, which was also laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry,(l) in [1952] N.Z.L.R. 111, wherein it was held that before the accused can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis, other than murder, can the facts be accounted for. Further that, Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'. Further, it is held in para 157 in _**Sharad's case supra** [(1984) 4 SCC 116]_ that this indicates that the cardinal Crl.Appeal No.1305/2018 - : 81 :- principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 74. It will be pertinent to refer to paras 155 & 156 in ## _**Sharad's case supra** [(1984) 4 SCC 116, p.185 to 186]_ which reads as follows: _**155.** It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus:_ _“Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.”_ _**156.** Lord Goddard slightly modified the expression “morally certain” by “such circumstances as render the commission of the crime certain”. ”_ 75. In the light of these aspects, we are of the firm view that the Prosecution has brought in sufficient materials to prove beyond the shadow of reasonable doubt that the victim has suffered at least partial penetration, and thus, she has suffered rape, as understood from Sec. 375 of the IPC. Crl.Appeal No.1305/2018 - : 82 :- III. Issue as to whether the accused has committed the offence as per Sec. 376, more particularly Sec. 376 (2)(l) of the I.P.C. on the victim girl. 76. The next consequential issue is as to whether there is sufficient proof to hold that the accused has committed the act of rape on the victim. We have already held that there is clinching materials and evidence to prove that the accused had unlawfully intruded and trespassed into the house of the victim and had remained in that house and had access and proximity to the victim for about one hour from 11.30 am to 12.30 noon or so, on the day of the crime incident, viz., 27.01.2014. As we have already held, it may be true that the accused is very often in the immediate neighborhood and is a coconut plucker by vocation and he is doing the work of coconut plucking in the nearby houses, including that in the house of the victim. His mere presence in the locality of the neighborhood cannot be problematic. However, the fact of the matter is that there is clinching evidence that he had trespassed into the house of the victim and was having access and proximity to the victim for about one hour or so on the day of the incident. Therefore, the mere fact that he is a person of the locality Crl.Appeal No.1305/2018 - : 83 :- cannot, in any manner, absolve him from the abovesaid act of intrusion and trespassing into the house of the victim, which is a criminal offence. Thus, it has come out in evidence that, when the victim girl and PW2 (victim’s grand mother) were alone in their house, the accused had illegally gained access and proximity to the victim, as above. Then, certainly, the principles discernible from Sec. 106 of the Indian Evidence Act would come into play, as the accused was the last male stranger, who had access and proximity to the victim, before the incident of sexual violence was alerted to PW-1 at about 1 pm on that day. Hence, Sec. 106 of the Indian Evidence Act would require that, where any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The defence has no explanation whatsoever to put forward any reasonable version of hypothesis to explain the presence and proximity thus gained by the accused inside the house of the victim during the above time. Repeatedly, to various questions put forward during the Sec. 313 process, the accused has blandly stated that the version of the Prosecution, as brought out in each of those incriminating circumstances, is false. No explanation, whatsoever, has been Crl.Appeal No.1305/2018 - : 84 :- temporarily put forward by the defence even by giving suggestions and challenge during the cross-examination of Prosecution witnesses. Further, very crucially, Ext.P17 FSL report would clearly show that the scientific Laboratory Testing process has disclosed that MO2 (lungi worn by the accused on the day of the incident in question) and MO1 (maxi worn by the victim on that day) were having blood stains. Further that, Ext.P-17 FSL report also states that the blood found in MO2 lungi of the accused and MO1 maxi of the victim are of human origin. The learned counsel for the appellant would strongly urge that no material has been brought forward, either in Ext.P17 FSL report or in any other evidence brought in by the Prosecution, to show exactly as to which blood group and RH factor that the blood stains detected in MO1 and MO2 belong to and whether it belongs to the same person etc and therefore, the said evidence, based on Ext.P17 relating to MO2 lungi worn by the accused, can, in no manner, connect the accused with the alleged culpability. This is strongly opposed by the learned Prosecutor by relying on the various decisions of the Apex Court. It has been held by the Apex Court in the case in **R.Shaji v. State of Kerala** _[2013 (14) SCC 266]_ , paras 31 & 32, that, it is possible, either because the stain is insufficient or due to haematological Crl.Appeal No.1305/2018 - : 85 :- changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard and once the recovery is made in pursuance of a disclosure statement made by the accused, matching or non-matching of blood groups loses its significance. Hence, the Apex Court held, in para 32 thereof, that it is not possible to accept the submission that, in the absence of a report regarding the origin of the blood, the accused cannot be convicted, for it is only because of the lapse of time that blood could not be classified successfully. Therefore, no advantage can be conferred upon the accused to enable him to claim any benefit and the report of the disintegration of the blood etc., cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken etc. 77.In the case in _**State of Rajasthan** v._ _**Teja Ram** [(1999) 3 SCC 507, para 25]_ , the Apex Court has held that failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not Crl.Appeal No.1305/2018 - : 86 :- have been human blood at all and sometimes it happens, either because the blood stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Further that, doubting as to whether the blood would have been animal blood, etc., is true and realistic and effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension, which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused, etc. 78. Further, placing reliance on the aforecited decision of the Apex Court in _**Teja Ram's case**_ supra _[(1999) 3 SCC 507]_ , the Apex Court has held in the decision in _**Gura Singh** v._ _**State of Rajasthan** [(2001) 2 SCC 205]_ , in para 20, that there is no substance in the submissions of the accused in that case that in the absence of the report regarding the origin of the blood, the trial court could not have convicted the accused and that the Serologist and the Chemical Examiner had found that the material seized in consequence of the disclosure statement made by the appellant was stained with human blood and as with the lapse of time, the classification of the blood could not be determined, no bonus is Crl.Appeal No.1305/2018 - : 87 :- conferred upon the accused to claim any benefit on the strength of such a belated and stale argument and that the trial court and the High Court were justified in holding the circumstance as proved beyond doubt against the accused therein, etc. 79. The Apex Court in a recent verdict in _**Veerendra v. State of Madhya Pradesh** [2022 (8) SCC 668]_ has observed therein that the serological report did not indicate the group of the blood stains found in the pants of the accused. The accused therein has contended that, in view of the failure of the prosecution to establish that the blood stains found thereon belonged to the deceased, it could not, in anyway, connect him with the crime and hence, could not have been taken as an incriminating circumstance against him. The Apex Court therein, after discussing previous case laws on the subject, as in _**Kansa Behera v. State of Orrisa** (AIR 1987 SC, 1507),_ _**R. Shaji v. State of Kerala,** [(2013) 14 SCC 266]_ , etc. held that the presumptive finding, that the blood stains was only one of incriminating circumstances and the accused had no case that the pants were not the ones recovered from his residence. Therein, the analysis report showed that the blood stains were of human Crl.Appeal No.1305/2018 - : 88 :- origin and hence, it was held that, in view of the decision of the Apex Court in _**R. Shaji's**_ **case supra** _[(2013) 14 SCC 266],_ once the blood stains were ascertained as that of human origin the mere nondetection of blood group would be of no consequence and no advantage could be conferred upon the accused to enable him to claim any benefit in such a situation, etc. It will be pertinent to refer to paras 83, 84 & 85 of the decision of the Apex Court in _**Veerendra's case supra** [(2022) 8 SCC 668]_ , which read as follows: _**“83.** PW 16, Shri Jitendra Nagaich proved Ext. P-8 seizure memo by which a pants and a shirt were recovered from the residence of the appellant. PW 2 also deposed to the same effect and he testified his thumb impression in Ext. P-8 seizure memo. In Ext. P-21 FSL report human blood was found on the said pants (Article-C). True that the serological part of Ext. P-21 report did not indicate the group of the bloodstains found in the pants. This aspect was highlighted by the appellant before the High Court as also before us to contend that in view of the failure of the prosecution to establish that the bloodstains found thereon belonged to the deceased it could not in any way connect him with the crime and hence, could not have been taken as an incriminating circumstance against him. At the first blush this contention would appear to be attractive and acceptable. However, as per the impugned judgment [State of M.P. v. Veerendra, 2016 SCC OnLine MP 1389] the High Court had rightly repelled the said contention by relying on the decision of this Court in Kansa Behera v. State of Orissa [Kansa Behera v. State of Orissa, (1987) 3 SCC 480 : 1987 SCC (Cri) 601 : AIR 1987 SC 1507] . In the said decision this Court exposited that when conviction is to be recorded solely on the basis of presence of bloodstains in any article(s) seized from the accused concerned the prosecution has to prove beyond doubt that the blood found on that article(s) is that of the deceased and for that the group of the blood found on the seized article(s) should match with that of the deceased upon their grouping. At the same time, it was further held therein that when other circumstances are available non-_ Crl.Appeal No.1305/2018 - : 89 :- ## _detection of blood group by itself would not be fatal._ _**84.** The decision of this Court in R. Shaj v. State of Kerala[R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] also assumes relevance in this context. This Court held thus : (SCC pp. 279-80, paras 30-32)_ “ _30_ . It has been argued by the learned counsel for the appellant that as the blood group of the bloodstains found on the chopper could not be ascertained, the recovery of the said chopper cannot be relied upon. _31_ . A failure by the serologist “ _to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all”_ . Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance. (Vide _Prabhu Babaji Navle_ v. _State of Bombay_ [ _Prabhu Babaji Navle_ v. _State of Bombay_ , AIR 1956 SC 51] , _Raghav Prapanna Tripathi_ v. _State of U.P._ [ _Raghav Prapanna Tripathi_ v. _State of U.P._ , AIR 1963 SC 74] , _State of Rajasthan_ v. _Teja Ram_ [ _State of Rajasthan_ v. _Teja Ram_ , (1999) 3 SCC 507 : 1999 SCC (Cri) 436] , _Gura Singh_ v. _State of Rajasthan_ [ _Gura Singh_ v. _State of Rajasthan_ , (2001) 2 SCC 205 : 2001 SCC (Cri) 323] , _John Pandian_ v. _State_ [ _John Pandian_ v. _State_ , (2010) 14 SCC 129 : (2011) 3 SCC (Cri) 550] and _Sunil Clifford Daniel_ v. _State of Punjab_ [ _Sunil Clifford Daniel_ v. _State of Punjab_ , (2012) 11 SCC 205 : (2013) 1 SCC (Cri) 438] .). _32_ . _In view of the above, the Court finds that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood, the accused cannot be convicted, for it is only because of the lapse of time that the blood could not be classified successfully. Therefore, no advantage can be conferred upon the_ Crl.Appeal No.1305/2018 - : 90 :- _accused to enable him to claim any benefit, and the report of disintegration of blood, etc. cannot be termed as a missing link, on the basis of which the chain of circumstances may be presumed to be broken_ .” ` (emphasis supplied) 80. In the present case also, the accused has not, in any manner, challenged the evidence of the prosecution witnesses concerned relating to the recovery of the dresses of the victim and that of the accused. Hence, by placing reliance on the abovesaid legal position, well settled by the Apex Court's aforecited decisions, we are constrained to overrule the objection of the appellant/accused that no incriminating inference can be made, based on the presence of blood stains in MO-2 lungi of the accused, as the same does not disclose the blood group or RH factor, etc. 81. Further, the other contention raised by the learned counsel for the appellant, that omission to conduct DNA profiling in this case would be fatal to the prosecution case, for placing reliance on the abovesaid incriminating material based on the blood stain is Crl.Appeal No.1305/2018 - : 91 :- also only to be rejected, in view of the dictum laid down by the Apex Court in para 53 of the decision in _**Veerendra's case supra**_ [(2022) 8 SCC 668], which reads as follows: _**“53.** In view of the nature of the provision under Section 53A CrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour. “_ 82. Moreover, the Apex Court, in para 88 of the above decision, has also held that when there are strong incriminating circumstances against the accused, his blank responses, either as “ _it is false_ ” or “ _I do not know_ ”, will also be then used as adverse circumstances against him. 83. It has been held by the Apex Court in the case in _**Deep Chand & Others v. State of Haryana** [(1969) 3 SCC 890]_ that without any explanation for such blood was a valid piece of evidence, Crl.Appeal No.1305/2018 - : 92 :- which, together with the other circumstances, went a long way in lending trustworthiness to the evidence against the appellants, in spite of a part of it, as regards the accused, is untrue etc. On this basis, the learned Prosecutor has urged that the conspicuous absence of any explanation on the part of the accused, regarding the presence of human blood stains on MO2 lungi worn by him, as evident from Ext.P17 FSL report, along with other incriminating circumstances mentioned above would be another adverse circumstance in the case etc. This is strongly opposed by the learned counsel appearing for the appellant by stating that no specific and precise question was put to the appellant/accused in his Sec. 313 CrPC questioning process to give his explanation to the prosecution version that human blood was detected in MO2 dress of the accused, as per Ext.P17 FSL report etc. Question no.47 put to the accused in Sec. 313 questioning process is to the effect that MO2 and MO3 shirt and lungi were recovered from the accused and MO’s 1 to 3 were sent for chemical examination analysis, as per Ext.P-16 report etc. Response of the accused to this query is that it is false. Further, it was put to the accused in question no.49 that Ext.P16 is the chemical examination Crl.Appeal No.1305/2018 - : 93 :- report, received in pursuance of the above forwarding note and Ext.P17 is the FSL report in that regard, as deposed by PW17 etc. To this also, the response of the accused was that it is false. It was very much known to the defense that Ext.P-17 FSL report would show that the test analysis has detected blood stains on MO2 lungi of the accused etc. Therefore, we are not in a position to hold that these aspects were not specifically pointed out to the defence/accused. Almost all the responses of the accused to about 50 and odd questions in the Sec. 313 process is that the Prosecution version is false. Hence, we are inclined to hold that the presence of blood stains on the MO-2 lungi of the accused and MO-1 maxi of the victim, as certified in Ext.P17 FSL report, along with the various other adverse circumstances pointed out herein above, would surely lend trustworthiness to the evidence led by the Prosecution against the accused. As regards the issue of responses of the accused in the Sec. 313 CrPC questioning process, the following case laws would be relevant. In **Harivadan Babubhai Patel v. State of Gujarat** , _[2013 (7) SCC 45]_ , it has been held by the Apex Court, in paragraph 28 thereof, that though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he Crl.Appeal No.1305/2018 - : 94 :- chose not to give any explanation under Sec. 313 CrPC, except choosing the mode of denial, it is well settled that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives false answers, the same can be counted as providing a missing link for building the chain of circumstances. In the said case on hand, though a number of circumstances were put to the accused, he had made a bald denial and did not offer any explanation whatsoever and the Apex Court thus held that this is also a circumstance that goes against him. Para 28 of the decision in _**Harivadan Babubhai Patel v. State of Gujarat** , [2013 (7) SCC 45]_ reads as follows: _**“28.** Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] .) In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him.”_ 84. It has been held by the Apex Court in _**Edmund S.Lyngdoh v. State of Meghalaya** , [2016 (15) SCC 572],_ in paras Crl.Appeal No.1305/2018 - : 95 :- ## 21 & 22, as follows: _“21. Where the accused gives evasive answers in his cross-examination under Section 313 CrPC, an adverse inference can be drawn against him. But such inference cannot be a substitute for the evidence which the prosecution must adduce to bring home the offence of the accused. The statement under Section 313 CrPC is not evidence. In Bishnu Prasad Sinha v. State of Assam [Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467 : (2008) 1 SCC (Cri) 766] , this Court held that conviction of the accused cannot be based merely on his statement recorded under Section 313 CrPC which cannot be regarded as evidence. It is only the stand or version of the accused by way of explanation explaining the incriminating evidence/circumstances appearing against him. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to other evidence led by the prosecution. The statements made under Section 313 CrPC must be considered not in isolation but in conjunction with the other prosecution evidence._ 22. _In the present case, it is not as if the High Court arrived at the conclusion and based conviction only on the statement made by the first accused under Section 313 CrPC. As seen from the reasonings of the High Court extracted above, the statement of the first accused under Section 313 CrPC was taken with the evidence of PW 6 and PW 13 and Item 7(17) of Ext. P- 5 as a link to complete the chain of circumstances against A-1. As elaborated earlier, the answers given by the first accused were considered not in isolation but in conjunction with other oral and documentary evidence. We find no substance in the contention that the High Court erred in taking the statement of the first accused under Section 313 CrPC as a link to complete the chain of circumstances.”_ 85. It may also be pertinent to refer to para 12 of the Apex ## Court's decision in _**Fainul Khan v. State of Jharkhand & anr.**_ ## _[(2019) 9 SCC 549],_ which reads as follows: _**12.** Section 313 CrPC incorporates the principle of audi alteram partem. It provides an opportunity to the accused for his defence by making him aware fully of the prosecution allegations against him and to answer the same in support of his innocence. The importance of the provision for a fair trial brooks no debate:_ _“_ _**313. Power to examine the accused** .—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—_ _(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;_ Crl.Appeal No.1305/2018 - : 96 :- _(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:_ _Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)._ _(2) No oath shall be administered to the accused when he is examined under sub-section (1)._ _(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them._ _(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed._ _(5) The court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”_ _But equally there cannot be a generalised presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder. Ultimately it will be a question to be considered in the facts and circumstances of each case including the nature of other evidence available, the kind of questions put to an accused, considered with anything further that the accused may state in his defence. In other words, there will have to be a cumulative balancing of several factors. While the rights of an accused to a fair trial are undoubtedly important, the rights of the victim and the society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial.'_ 86.After hearing both sides, we are constrained to hold that the contention of the Appellant/accused, that the abovesaid legal position held by the Apex Court are _per incuriam_ or that it goes against the Constitutional Right to Remain Silent as envisaged in Article 20(3), cannot be countenanced. The legal position has been well settled by the Apex Court in the above regard. There are a catena of case laws on Crl.Appeal No.1305/2018 - : 97 :- the above subject, in line with the afore cited decisions and by the mandate of Article 141 of the Constitution of India, the same would amount to the binding law declared by the Apex Court. Hence, the bland total denial, adopted by the accused in Sec. 313 questioning process, by stating that “it is false” etc. together with the other incriminating circumstances, could also be taken as another adverse circumstance against him, etc. Moreover, the appellant has no explanation whatsoever to the scenario posed by Sec. 106 of the Evidence Act. The appellant has no explanation whatsoever as regards his intrusive presence inside the house of the victim, which proves that he was the only male person in the vicinity of the victim during 11.30 A.M. to 12.30 A.M. on the fateful day. Therefore, the only reasonable conclusion that can be reached by the court is that it was the accused who has committed rape on the victim on the day in question. 87. Sec. 376 deals with the punishment for rape and clause (l) of sub section (2) of Sec. 376 deals with punishment for rape on a woman suffering mental or physical disability. Hence we are of the firm view that the conclusion arrived at by the Sessions Court in the Crl.Appeal No.1305/2018 - : 98 :- impugned judgment that the accused has committed the rape, as per Sec. 375 of the I.P.C. and that he is liable to be punished in terms of Sec. 376 (2)(l) of the I.P.C., does not suffer from any legal infirmity and hence, the finding of conviction rendered by the Sessions Court as per the impugned judgment, is not amenable for any appellate interference at the hands of this Court. IV. Issue of sentence to be awarded to the appellant/accused and the compensation to the victim. 88. The learned Sessions Court, in the issues of sentence to be awarded to the accused and the compensation to be granted to the victim, has held, in the last para, on page 23 of the impugned judgment, as follows: _“In the result, convict is sentenced to suffer Imprisonment for life which shall mean imprisonment for the remainder of his natural life and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) for the offence punishable under section 376(2)(1) of IPC. In default of payment of fine, the convict shall undergo Rigorous Imprisonment for 2 years. He is further sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 20,000/- (Rupees Twenty Thousand only) for the offence punishable under section 450 IPC. In default of payment of fine, he shall undergo rigorous imprisonment for six months. The period of detention undergone by the convict is to be considered when remission is given by the Appropriate Government u/s.432 Cr.P.C. or u/s.55 IPC r/w Sec.433(b) Cr.P.C. However, offence u/s.376(2)(1) of IPC specifies that imprisonment for life shall imprisonment for person's natural life._ Crl.Appeal No.1305/2018 - : 99 :- _Fine amount of Rs. 70,000/-, if realised, shall be given to the victim girl as compensation as provided w/s.357 (1) (b) of Cr.P.C. The above said amount is quite inadequate for the rehabilitation of the victim. In the facts and circumstances of the case, I recommend an amount of Rs.2,00,000/- (Rupees Two Lakhs only) as additional compensation to the victim. The State Government of Kerala, shall pay the above said Rs.2,00,000/- to the victim from the Victims Compensation Fund established under Section 357-A Cr.P.C. The Secretary, DLSA, Thiruvananthapuram is required to do the needful and correspond with the State Government for earlier payment of compensation to the victim in accordance with the Victim Compensation Scheme 2014. Office will forward a copy of the judgment to the DLSA, Thiruvananthapuram.”_ 89. The Criminal Law (Amendment) Ordinance 2013 (Central Ordinance No.3/2013) was promulgated and made effective from 03.02.2013 for amending Secs. 375 & 376 and also for introducing Sec.376A of the IPC. As a result of the Criminal Law Amendment Ordinance, 2013, made effective from 03.02.2013, the sentences for the offences under Secs. 376(1) and 376(2) were retained in the same fashion. Later, the Criminal Law (Amendment Act, 2013) (Central Act, 13 of 2013), was published on 02.04.2013, but was given retrospective effect from 03.02.2013. Then, the punishment provided as per Sec.376(2) stipulated that it could be rigorous imprisonment for not less than 10 years, which shall extend to the imprisonment for life, which shall mean “imprisonment for the remainder of that Crl.Appeal No.1305/2018 - : 100 :- person’s natural life”(for details, see the discussion of paras 12.2, 12.3, 13.2, 13.3, 13.4 etc. of the decision of the Three Judges' Bench of the Apex Court in _**Shatrughna Baban Meshram v. State of Maharashtra** [(2021) 1 SCC 596])._ Clause (l) of Sec. 376(2) deals with punishment for rape on woman suffering from mental or physical disability. As per the amendment made effective from 03.02.2013, it has been stipulated, as per Sec. 376(2)(l), that, whoever commits rape on a woman, who is suffering from mental or physical disability, shall be punished with rigorous imprisonment for a term which shall be not be less than 10 years, but which shall extend to imprisonment for life, which means imprisonment for the remainder of that person’s natural life and also shall be liable for fine. 90. The learned Sessions Judge, as per the impugned judgment, as noted above, has convicted the appellant/accused and thus ordered to sentence him to suffer imprisonment for life, which shall mean imprisonment for the remainder of his natural life and to pay a fine of Rs.50,000/- for the offence punishable under Sec.376(2)(l) of the IPC and in default of payment of fine, he has been ordered to undergo RI for 2 years. For the offences punishable under Crl.Appeal No.1305/2018 - : 101 :- Sec.450 of the IPC, he has been sentenced to undergo RI for 5 years and fine of Rs.20,000/- and in default of the said fine, he has been ordered to undergo RI for 6 months. Further, it has been ordered that the abovesaid total fine amount of Rs.70,000/- shall be given to the victim girl as compensation, as provided under Sec. 357(1)(b) of the CrPC. Further, it was recommended that the State Government shall award compensation of Rs.2,00,000/- to the victim from the Victim’s Compensation Fund, established as per the Victim’s Compensation Scheme framed under Sec. 357A of the CrPC. Smt. Anuroopa Jayadevan, learned counsel appearing for the appellant/accused, has submitted that, in case this Court is confirming the impugned conviction of the appellant, then, without prejudice to his contentions against conviction, she would alternatively urge that the impugned sentences, more particularly, the one rendered as per Sec. 376(2)(l) for life imprisonment for the remainder of the natural life of the accused, is grossly disproportionate and unreasonable, taking into account the facts and circumstances of this case and that this Court may interfere in the matter, so as to reduce the impugned sentences in a just and fair Crl.Appeal No.1305/2018 - : 102 :- manner. 91. The learned counsel appearing for the appellant/accused would also urge that life sentences have been judicially disapproved internationally and therein, it has been held to attack the essence of human dignity. That the European Court of Human Rights has declared such sentences as illegal, it did not provide the prisoner, a rate of consideration for early release. That Namibia has held that such sentences amount to cruelty and reduces the prisoner to a “thing” rather than a “person”. 92. Further, the learned counsel for the appellant/accused has reminded us that the Apex Court, while dealing with such situations has quoted the words of Oscar Wilde that “Every saint has a past and every sinner, a future”. At the outset, it has to be noted that, in view of the concluded judicial verdicts rendered by the Apex Court and various High Courts on the abovesaid subject, it is not possible for us to hold that the sentence of life imprisonment till the remainder of a person’s natural life, as envisaged in Sec. 376(2) of the IPC, is unconstitutional and ultra vires. Of course, we are bound to consider the plea as to whether the impugned sentence actually awarded to the Crl.Appeal No.1305/2018 - : 103 :- appellant in this case is lawfully disproportionate and unreasonable, taking into account, the facts and circumstances of this case. In that regard, Smt.Anuroopa Jayadevan, learned Counsel appearing for the appellant/accused, would urge that it is the admitted case of the Prosecution that the accused is of a very humble origin and is having the humble avocation of coconut plucking in the locality and he is living by the dint of his hard work and he belongs to a socially and economically deprived section and that, in view of his involvement in the present case, he and his family has been economically ruined and he had been made penurious and the sole livelihood of the family has also been lost in view of his incarceration. Further, she would point out that the Calender Statement in the instant Sessions Case, as borne out from page 26 of the impugned judgment, would clearly show that the accused was apprehended on 31.01.2014 and that, he had never secured bail thereafter, and that, he has now been convicted and sentenced as per the impugned judgment on 20.11.2017 and that, thus, the accused has been suffering incarceration since 31.01.2014. That, it also clearly shows that the sole source of income of the accused as a coconut plucker has been totally lost and that he does Crl.Appeal No.1305/2018 - : 104 :- not even having the financial capacity to pay the heavy fine amounts imposed on him. Reliance is placed on the dictum laid down in para 21 of the decision of the Apex Court in _**Kumaran v. State of Kerala** [(2017) 7 SCC 471],_ where it has been held that default sentence is not imperative, but only permissive. Further, the learned counsel for the accused would point out that the accused has not been involved in any other past criminal cases and that he has been indicted for the first time in the instant case and that there is no complaint with any authority, including the Police, that the accused has indulged in any Criminal activity, including those relating to allegations of the present nature. Hence, it is strongly urged by the counsel for the appellant/accused, that, as held by the Apex Court in cases of this nature, the Court will have to judiciously consider the entire matrix of the facts and circumstances of this case and take into account the various mitigating circumstances and then bring harmony between retributive justice and restorative justice, so that the highly disproportionate punishment, as the one now imposed, could be avoided and an appropriate and proportionate punishment be imposed, more particularly taking into account, not only the aggravating circumstances, but also the mitigating Crl.Appeal No.1305/2018 - : 105 :- circumstances and also the harmonizing parameters based on retributive justice and restorative justice. The Prosecution has contended that the impugned sentences imposed, as per the impugned judgment, are reasonable and commensurate and does not warrant any interference in the matter. ## 93. _**Shatrughna Baban Meshram v. State of Maharashtra**_ _[(2021) 1 SCC 596],_ decided on 2.11.2020, is a case which involved the rape and death of a 2½ year old girl child on 11.2.2013. The trial court convicted the accused for the offences punishable under Secs. 376(1), (2) (f), (i) & (m) of the IPC, Sec. 376-A of the IPC, Sec. 302 of the IPC and Sec.6 of the Protection of Children from Sexual Offences Act ( _"The POCSO Act"_ ). The trial court imposed death sentence on the accused on two grounds, Sec.302 of the IPC and Sec.376-A of the IPC. The confirmation of death sentence in the Death Sentence Reference as well as the Criminal Appeal filed by the accused were heard together by the Bombay High Court. The High Court affirmed the conviction and sentence rendered by the trial court and also confirmed the death sentence. The Apex Court, ultimately, allowed the Criminal Appeal, which led to the instant decision in _**Shatrughna Baban Meshram's**_ case Crl.Appeal No.1305/2018 - : 106 :- supra _[(2021) 1 SCC 596],_ by holding that the case does not fall within any of the first three clauses under Sec. 302 of the IPC and that, the appellant/accused does not deserve death penalty. In respect of the offence under Sec.376-A of the IPC, it was held by the Apex Court that the appellant does not deserve to suffer death sentence on that ground as well. Further, the Apex Court commuted the death penalty to life imprisonment for the offence punishable under Sec. 302 of the IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Sec. 376-A of the IPC. The conviction and sentence recorded by the courts below for the offences punishable under Secs. 376(1), (2)(f), (i) & (m) of the IPC and under Sec.6 of the POCSO Act were affirmed. 94. The Apex Court held, in para 15 thereof, that since the victim was about 2½ years of age, at the time of the incident on 11.2.2013 and since it was the afore Criminal Law (Amendment) Ordinance, 2013, which came into force on 3.2.2013, which was then holding the field as on the date of commission of the offence on 11.2.2013, the provisions in the Ordinance, i.e., clauses (f), (h) & (l) of Sec.376(2) would get attracted. The Apex Court, accordingly, held that this higher punishment, compared to the punishment imposed as Crl.Appeal No.1305/2018 - : 107 :- per the afore Ordinance, comes with retrospective effect and in such a situation, where such prescription was not available in the statute book, as on the date of commission of the offence, then such a punishment for the criminal offence would be _ex-post facto_ prescription and would be inconsistent with the protection offered under Clause (1) of Article 20 of the Constitution of India, which _inter alia_ guarantees that no person shall be subjected to penalty greater than that which might have been inflicted under the law in force, at the time of commission of the offence. 95. This is so, in the facts of that case, as on the date of commission of the offence on 11.2.2013, the punishment in vogue was the one as per Sec.376(2), as per the afore Ordinance, which came into force on 3.2.2o13 and not the higher punishment as per the Amendment Act, which was published only on 2.4.2013, though it was given retrospective effect from 3.2.2013. Hence, the Apex Court declared that the said impugned punishment under Sec. 376(2), in the facts of that case, cannot apply to the stipulation that life imprisonment "shall mean remainder of that person's life" and similarly, the prescription under Sec.6 of the POCSO Act, which came Crl.Appeal No.1305/2018 - : 108 :- by way of an Amendment in 2019, would not be applicable and the governing provision for punishment for the offence under the POCSO Act has been taken to be the pre-amended position, as noted therein. However, it was held that the position covered by Sec.376-A of the IPC would stand on a different footing, as the punishment, as per the Ordinance provision and as per the Amendment Act provision, was the same and hence, there was no provision of any _ex-post facto_ action or any inconsistency with Article 20(1) of the Constitution of India. 96. Thus, in the facts of that particular case, the Apex Court, for the offence as per Sec. 376-A of the IPC, which relates to the rape and death of a 2½ year old minor victim girl, imposed the punishment of rigorous imprisonment for 25 years, instead of the death penalty imposed by the trial court and as confirmed by the High Court. _**Mohd. Firoz v. State of Madhya Pradesh** [(2022) 7 SCC 443]_ decided on 19.4.2022 and _**Mohd. Firoz v. State of Madhya Pradesh** [2022 SCC OnLine SC 1474]_ decided on 21.10.2022 : 97. The date of commission of the offence in this case was on Crl.Appeal No.1305/2018 - : 109 :- 17.4.2013, which is after the coming into force of the afore Ordinance on 3.2.2013 as well as the afore Amendment Act which was published on 2.4.2013. This decision rendered by the Three Judges Bench of the Apex Court dealt with a case where a young girl, aged 4 years, was raped on 17.4.2013 and later, died on 29.4.2013 and the Postmortem Report stated that the cause of death must be due to smothering of the nose and the mouth. The trial court convicted accused No.1 and awarded him death sentence for the offence as per Sec. 302 of the IPC. Further, for the offences under Secs. 376(2)(i) & 376(2)(m) of the IPC and Secs. 5(i) & 5(m) read with Sec. 6 of the POCSO Act, the accused was convicted and ordered to undergo life imprisonment and pay fine of Rs.2,000/-. Further, he was convicted and ordered to undergo rigorous imprisonment for 7 years and pay a fine of Rs.2,000/- for the offence as per Sec. 363 and rigorous imprisonment for 10 years and pay fine of Rs.2,000/- for the offence as per Sec. 366 of the IPC. The Criminal Appeals filed by the two accused persons and the Death Sentence Reference came up for consideration before the Madhya Pradesh High Court. The High Court allowed the appeal of A-2 but dismissed the appeal of A-1 and confirmed the death Crl.Appeal No.1305/2018 - : 110 :- sentence. A-1 approached the Apex Court, which led to the afore decision in _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443]_ decided on 19.4.2022. The Apex Court, as per the decision in _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443],_ affirmed the dismissal of the Appeal by the High Court but in the matter of death sentence, the Apex Court commuted the sentence of death to imprisonment for life. Further, in para 61 of _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443],_ the Apex Court ordered that, while balancing the scales of retributive justice and restorative justice, it was deemed to be appropriate to impose upon the appellant/accused, the sentence of imprisonment for a period of 20 years, instead of imprisonment for the remainder of the person's natural life, under the offence as per Sec. 376-A of the IPC. The conviction and sentence recorded by the Courts below, for the other offences under the IPC and the POCSO Act, were affirmed and it was further ordered that all the punishments imposed shall run concurrently. Later, the abovesaid appellant/accused preferred Review Petition as Review Petition (Criminal) No. 282/2022 in the said Criminal Appeal, which led to the decision of the Apex Court on 21.10.2022 in _**Mohd. Firoz v. State of Madhya Pradesh** [2022_ Crl.Appeal No.1305/2018 - : 111 :- _SCC OnLine SC 1474]._ 98. The Apex Court held, in para 6 of _**Mohd. Firoz's**_ case supra _[2022 SCC OnLine SC 1474],_ that earlier, while commuting the sentence of death to sentence of life imprisonment for the offence as per Sec.302 of the IPC and while imposing the sentence to undergo imprisonment for 20 years and not imprisonment for the remainder of his natural life for the offence as per Sec.376-A of the IPC, the Apex Court had tried to balance the scales of retributive justice and restorative justice. Hence, the sentences imposed, as per the original judgment of the Apex Court, as modified in the Review order, would be that, for the offence as per Sec.302 of the IPC, the accused was sentenced to undergo life sentence, which is subject to lawful remissions as per the Cr.P.C. and for each of the other offences, as per Secs.376-A, 376(2)(i) & 376(2)(m) of the IPC and the afore offences as per the POCSO Act, the accused was to undergo 20 years imprisonment. Further, the rest of the original judgment was unchanged and the effect of the earlier direction is that all these modified punishments would run concurrently. 99. A reading of the afore decisions of the Apex Court in Crl.Appeal No.1305/2018 - : 112 :- _**Mohd. Firoz's**_ cases supra, both the original and the review, would clearly lead to a position that the courts, while imposing sentences in criminal offences, will have to take necessary steps for harmonising both retributive justice and restorative justice. In para 60 of _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443]_ the Apex court has held that, taking into account the facts of the case relating to the rape and death of a 4 year old young victim girl in that case, the sentence of imprisonment for the remainder of the accused's natural life would have been an appropriate sentence for the offence as per Sec.376-A of the IPC. Thereafter, the Apex Court was reminded of the words of 'Oscar Wilde' that "The only difference between a saint and a sinner is that every saint has a past and every sinner has a future". Further, in para 61 thereof, the Apex Court holds that one of the basic principles of restorative justice, as developed by the Apex Court over the years, is to give an opportunity to the offender to repair the damage caused and to become a socially useful individual, when he is released from jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, Their Lordships of the Apex Court held, in para 61 thereof, Crl.Appeal No.1305/2018 - : 113 :- that, for balancing the scales of retributive justice and restorative justice, it was found to be appropriate to impose upon the appellant/accused the sentence of imprisonment for a period of 20 years, instead of imprisonment for the remainder of his natural life, for the offence as per Sec.376-A of the IPC, etc. 100. It will be pertinent to refer to paras 60 & 61 of _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443]_ . The same approach of balancing the scales and harmonizing retributive justice and restorative justice, is strongly echoed and made out in _**Shatrughna Baban Meshram's**_ case supra _[(2021) 1 SCC 596]._ 101. Applying the legal principles laid down by the Apex Court in the aforecited decisions in _**Shatrughna Baban Meshram's**_ case supra and the decisions in _**Mohd. Firoz's**_ case supra, this Court is under the bounden duty to balance the scales of aggravating circumstances and mitigating circumstances and thus, to harmonize the interest of retributive justice, and restorative justice in a just and fair manner, so that a just and proportionate sentence is imposed on the appellant/accused. 102. The aggravating circumstances are quite serious. The Crl.Appeal No.1305/2018 - : 114 :- victim in this case is a 20 year old mentally and physically challenged young girl. She has been immobilized in her life all throughout, right from the moment she was born in her mother's womb and fell into the lap of Mother Nature. Indeed, fate was very cruel to her, as she suffered serious brain injury at the time of her birth, with the result that she is having 95% disability and thus, she is having serious disabilities as a mentally and physically challenged person. The proved act of the accused is quite injurious not only to the victim but also to society at large. Now, we have to consider the extenuating circumstances. The accused was about 52 years of age at the time of the incident in January 2014 and therefore, he must be in his early 60's by now. He has been suffering incarceration in this case since 31.1.2014 onwards. He is a coconut plucker by avocation and obviously, is hailing from a socially and economically marginalised section of the society. The prosecution has no case that the accused has any previous antecedents of criminal activities, including the offence of the present nature. If that be so, it appears that the accused is a first time offender. We do not have any reason to disbelieve the submissions made by the learned counsel appearing for Crl.Appeal No.1305/2018 - : 115 :- the appellant, that he has become penurious since his incarceration. Going by the overall facts and circumstances of the case, there are no materials before this Court, even to remotely hold that the opportunity for reformation etc. is seriously foreclosed in this case. After all, the appellant/accused has made out his living through his avocation as a coconut plucker. In the facts of this case, we have no hesitation to hold that the maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. An opportunity has been given to the offender to repair the damage caused and to become a socially useful individual not only to his family but also to the society at large. A reading of the impugned directions of the Sessions Court would indicate that none of these crucial and materials aspects have ever been remotely taken into consideration by the said Court, while awarding the maximum punishment of life imprisonment till the remainder of the accused's natural life. It would also be pertinent to refer to para 3 of the decision in _**Phul Singh v. State of Haryana**_ **,** (1979) 4 SCC 413, wherein Justice V.R. Krishna Iyer has stated that: Crl.Appeal No.1305/2018 - : 116 :- Para 3. _“…...Punitive therapeutics must be more enlightened than the blind strategy of prison severity where all that happens is sex-starvation, brutalisation, criminal companionship, versatile vices through bioenviromnental pollution, dehumanised cell drill under “zoological conditions” and emergence, at the time of release, of an embittered enemy of society and its values with an indelible stigma as convict stamped on him — a potentially good person “successfully” processed into a hardened delinquent, thanks to the penal illiteracy of the Prison System. The Court must restore the man”._ It is well settled, going by the legal position enunciated by the Apex Court, that the punishment of life imprisonment till the remainder of the accused's natural life is Constitutionally valid. In the instant case, the option is for rigorous imprisonment for not less than 10 years or life imprisonment as above. From the earlier rulings of the Apex Court in cases as in _**Jagmohan Singh v. State of U.P.** [(1973) 1 SCC 20, para 24] ,_ the policy of law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards and all what could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum punishments prescribed for an offence, they should, on balancing the aggravating and mitigating circumstances, as disclosed in the case, judicially decide what would Crl.Appeal No.1305/2018 - : 117 :- be the appropriate sentence. Further, in _**Vinter & Ors. v. The United Kingdom**_ (Judgment, Grand Chamber rendered on 9.7.2013) the European Court of Human Rights has declared that providing whole life sentence, without the prospect of a release or review of sentence, would amount to inhumane and degrading punishment hit by Article 3 of the Europen Convention on Human Rights (ECHR). However, as observed by the Bombay High Court in _**Rohan Dhungat v. State** [2019 SCC OnLine Bom. 376],_ the said view of the European Court of Human Rights may not be acceptable in our country, in view of the rulings of the Constitution Bench of the Apex Court in _**Union of India v. V.Sriharan @ Murugan & Ors.** [(2016) 7 SCC 1]._ Nevertheless, the Court has to endeavour to strike a balance between the expectations of the victim's parents, that the perpetrators of such ghastly crimes are awarded the severest sentences and the expectations of the convicts, that they too are given a chance to hope, a chance to reform. In the result therein, a convict, who is deprived of a chance to hope, at the stage of judicial sentencing itself, may have no incentive, whatsoever, to reform, to turn a new leaf. Further that, as a Court, we have to necessarily balance the Crl.Appeal No.1305/2018 - : 118 :- demands of retribution and deterrence in one scale, with the demands of restorative justice in the other. Just as a sentence cannot be manifestly inadequate, the same must also not be disproportionately severe. The principle of proportionality in sentencing, is by now, well entrenched in our criminal jurisprudence. 103. In that case, the Bombay High Court refused to enhance the sentence, due to a lack of adequate material to evaluate "several of the relevant considerations". 104. In that case, the accused persons, on 14.08.2006, kidnapped the victim, who was below the age of 18 years, for ransom and later, murdered him by strangulation and assault with baseball bats on his head. The Children's Court, State of Goa, in Special Case No. 28/2006, vide Judgment and Order dated 23.06.2014 convicted the accused persons for the offences under Sections 201, 302, 364-A read with Section 120-B of the Penal Code, 1860 (IPC) and Section 8 of the Goa Children's Act 2003 (Children's Act) and sentenced them to Life Imprisonment. Criminal appeals were filed by A1 to A4 before the Bombay High Court and Criminal Revision Application was filed by the father of the victim, seeking for enhancement of the Crl.Appeal No.1305/2018 - : 119 :- punishment to death sentence or in the alternate, to life imprisonment for the remainder of the natural life of the accused, without remission. 105. The Division Bench of the Bombay High Court, vide common judgment dated 04.03.2019, upheld the conviction imposed by the Children's Court and dismissed the revision application for enhancement of sentence, holding that the matter is best left to the appropriate authority/Executive to decide whether the convicts should serve the remainder of their nature lives in prison, without remission or whether, the convicts should serve sentences far in excess of the statutory minimum, without remission or whether, the convicts should be considered for remission after they complete the statutory minimum sentence prescribed under Section 433-A of Cr.P.C. ## 106. It will be pertinent to refer to _**Rohan Dhungat v. State**_ ## _[2019 SCC OnLine Bom. 376, para 228 & 230]_ which read as follows: _"_ _**228.** In Vinter v. United Kingdom (Judgment, Grand Chamber dated 9/7/2013), the European Court of Human Rights has declared that providing a whole life sentence, without the prospect of release or review of sentence, would amount to inhumane and degrading punishment hit by Article 3 of ECHR. Though, in terms of the ruling of the Constitution Bench in V. Shriharan (supra), that may not be the presently accepted position in_ Crl.Appeal No.1305/2018 - : 120 :- _our country. Nevertheless, Court, has to endeavour to strike a balance between the expectations of the Victim's parents that the perpetrators of such ghastly crimes are awarded the severest of sentences and the expectations of the convicts that they too are given a chance to hope, a chance to reform. A convict who is deprived of chance to hope at the stage of judicial sentencing itself may have no incentive whatsoever to reform, to turn a new leaf. As a Court, we have to necessarily balance the demands of retribution and deterrence in one scale with the demands of reformation in the other. Just as the sentence cannot be manifestly inadequate, the same must also not be dispassionately severe. The principle of proportionality in sentencing, is by now, well entrenched in our criminal jurisprudence._ **==> picture [236 x 6] intentionally omitted <==** _**230.** For the present, though we are convinced that the convicts have committed a heinous crime and that too in a dastardly manner against a helpless, unsuspecting and an extremely well meaning Victim, nevertheless, we are not convinced that any direction to preempt the Executive from even taking up the case of the convicts for remission is called for. One of the reasons for this is because we do not have before us much material to evaluate several of the relevant considerations, such as the conduct of the convicts in prison, their proclivity at reform, etc. Therefore, in the facts and circumstances of the present case, and for want of adequate material before us to evaluate the several relevant considerations which might arise, we feel that the matter can be best left to the appropriate authority/Executive to decide whether the convicts should serve the remainder of their nature lives in prison, without remission or whether, the convicts should serve sentences far in excess of the statutory minimum, without remission or whether, the convicts should be considered for remission after they complete the statutory minimum sentence prescribed under Section 433-A of Cr.P.C. Though, we are not inclined to direct that the convicts undergo prison sentences for the remainder of their natural lives without remission, we may not be misunderstood to have observed that the cases of the convicts must be considered for remission, no sooner they complete the statutory minimum sentence. All that we say at this stage is that this is a matter which is best left to the appropriate authority/Executive. We have no doubt that the appropriate authority/Executive will be mindful of the statutory checks applicable to such cases and will further take into account relevant considerations whilst eschewing irrelevant ones, if and when the occasion arises to consider the cases of the convicts for remission. We also clarify that if the parents or the relation's of the Victim are dissatisfied with the orders, if and when, made by the appropriate authority/Executive, they will undoubtedly have the liberty to challenge such orders by taking out appropriate proceedings seeking judicial review on all available grounds, including, but not restricted to the grounds that the statutory checks and relevant considerations have been ignored and irrelevant considerations have been_ Crl.Appeal No.1305/2018 - : 121 :- _take into account. In order to enable them to to do so, we direct the appropriate authority/Executive to make available copies of such orders to the applicant in Criminal Revision Application No. 44/2014 at least 30 days before such orders, if and when made, are actually implemented."_ 107. After hearing both sides, we are of the view that the views expressed by the Bombay High Court in _**Rohan Dhungat's**_ case supra _[2019 SCC OnLine Bom. 376]_ are broadly in consonance with the legal principles adumbrated by the Apex Court in paras 60 & 61 of _**Mohd. Firoz's**_ case supra _[(2022) 7 SCC 443]_ . After applying the afore legal principles, laid down by the Apex Court in the facts of the case, we are of view that we will not be justified to impose the maximum punishment of life imprisonment till the last breath of the accused's life, due to the reasons given by us and also because various relevant aspects of the matter are not now before us. The adjudication of sentencing process in the Indian context has not become quite fine tuned and advanced, with the result that there is lack of inputs from both sides. In the instant case, the accused is in jail since January 2014 and he has filed the above Jail Appeal through a Legal Aid Counsel. As usual in these cases, the State is also blissfully ignorant about various factual inputs that should be given to the Court. In the facts of the case, if we give the maximum punishment of life Crl.Appeal No.1305/2018 - : 122 :- imprisonment till the last breath of the accused's life, then the appellant would be deprived of a chance of hope, even at least at this late stage of appellate sentencing and therefore, he would lose all incentives to reform and to turn a new leaf. Hence, balancing the scales of aggravating circumstances and mitigating circumstances and harmonizing the interest of retributive justice and restorative justice, we are of the view that the option of maximum punishment of life imprisonment till the last breath of the accused's life in the facts of the case would be really disproportionate and unjust. Going by the legal principles laid down in the afore cited Apex Court decisions and since the minimum punishment in this case is not less than 10 years, we have to seriously consider the option of minimum punishment of rigorous imprisonment for not less than 10 years and the maximum punishment. Taking cue from the Legislative Policy of the Parliament, adumbrated in Sec.433-A of the Code of Criminal Procedure, 14 years is the minimum sentence required for consideration of remission in respect of life sentence. Accordingly, we are of the view that, taking into consideration various aspects in this case, awarding of rigorous imprisonment of 14 years Crl.Appeal No.1305/2018 - : 123 :- would appropriately subserve the ends of justice and would lead to a fine tuned balance and harmony between the interests of retributive justice and restorative justice. We are also of the view that, since the appellant is now financially impoverished, the relatively high fine amounts imposed in this case should be approriately modulated. Further, we are of the strong view that, the compensation to be awarded to the victim, to be paid by the State Government, in accordance with the Scheme framed under Sec.357-A of the Code of Criminal Procedure, should be fairly increased to ensure that proper justice is accorded to her. We say so, as we are of the view that the compensation of Rupees Two Lakhs, recommended by the Sessions Court, is disproportionately low, taking into consideration the sufferings of the 95% disabled mentally and physically challenged victim girl and we would be appropriately giving directions in that regard. 108. Accordingly, the impugned sentences awarded by the Sessions Court will stand modified and substituted as follows:- The appellant/accused is sentenced to undergo rigorous imprisonment for a period of 14 years and he shall also pay a fine of Crl.Appeal No.1305/2018 - : 124 :- Rs.20,000/- for the offence as per Sec.376(2)(l) of the IPC. The appellant/accused is sentenced to undergo rigorous imprisonment for 6 months and pay a fine of Rs.10,000/- for the offence punishable under Sec. 450 of the IPC. The abovesaid sentences for the offences as per Sec.376(2)(l) of the IPC and Sec.450 of the IPC shall run concurrently. Further, it is ordered that the period of detention, already undergone by the appellant/accused in this case, shall be set off, for the purpose of reckoning the sentences imposed, as above, as envisaged in Sec.428 of the Cr.P.C. The fine amounts realized, as above, shall be given to the victim girl, as compensation, as envisaged under Sec.357(1)(b) of the Cr.P.C. 109. Now, we will deal with the issue of compensation to be awarded to the victim, which is to be paid in terms of the scheme framed under Sec.357-A of the Cr.P.C. Sec.357-A deals with victim's compensation scheme and it envisages that every State Government, in co-ordination with the Central Government, shall prepare a scheme for providing funds for the purpose of compensation to the victim or dependents, who have suffered any loss or injury, as a result of the crime and would require Crl.Appeal No.1305/2018 - : 125 :- rehabilitation, etc. Sub-section (2) envisages that whenever a recommendation is made by the Court for compensation, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall decide on the quantum of compensation to be awarded under the scheme referred to in Sub-section (1). We are appraised by the Legal Services Authority that, as per the scheme now in vogue, the minimum compensation payable to a rape victim is Rupees Four Lakhs and the maximum compensation payable is Rupees Seven Lakhs. Further that, the District Legal Services Authority, Thiruvananthapuram has already disbursed the compensation amount of Rupees Two Lakhs recommended by the Sessions Court to the victim on 15.2.2018. 110. We have already elaborately dealt with the extremely disabled conditions of the present victim, who is a mentally and physically challenged young lady, suffering from more than 95% disability and she was 20 years at the time of the incident in January, 2014. Taking into consideration the serious nature of the physical and mental violence inflicted on her and the various Crl.Appeal No.1305/2018 - : 126 :- aspects mentioned hereinabove, we are of the view that the compensation recommended by the Sessions Court, coming to only Rupees Two Lakhs, is rather disproportionately low and it has to be scaled up. Accordingly, it is ordered that there will be a recommendation that the competent authority concerned to award the victim a compensation of Rupees Five lakhs and Fifty Thousand, as per the Scheme to the victim in this case. The competent authority of the Legal Services Authority shall take into consideration this recommendation and take appropriate action, as envisaged in Sub-section (2) of Sec.357-A, without any further delay. If any compensation amount under the scheme has already been paid to the victim in terms of the direction of the Sessions Court, then steps for payment of the balance amount in that regard should be expeditiously taken by the authorities concerned. The steps in this regard shall be duly completed by the competent authorities concerned within a period of 2 months from the date of receipt of a copy of this judgment. The parents of the victim shall use the said amounts only for the welfare and benefit of the mentally challenged victim. Crl.Appeal No.1305/2018 - : 127 :- 111. Accordingly, it is ordered that the impugned conviction rendered by the Sessions Court in this case will stand confirmed. The directions in the matter of imposition of sentence and grant of compensation to the victim, in terms of Sec.357-A of the Cr.P.C., will stand modified and substituted as above. 112. The Registry will forward a copy of this judgment to the competent Legal Services Authority which has to take action in terms of Sec.357-A(2) of the Cr.P.C. With these observations and directions, the above Criminal Appeal will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** ## **Sd/-** **SOPHY THOMAS, JUDGE** sdk+ MMG