Prasad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934** **Crl.Rev.Pet.No. 1313 of 2002** **---------------------------------------[CRL.A.NO.178/99 OF THE IIIRD ADDITIONAL SESSIONS COURT, KOLLAM DTD. 11/03/2002, S.C. NO.214/97 OF THE ASSISTANT SESSIONS COURT, KOTTARAKARA DTD. 02/12/99]** **..............** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **PRASAD, S/O. LALITHA, ROAD PURAMPOKKIL VEEDU, CHIRAVOOR MURI, CHITHARA VILLAGE, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KADAKKAL, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. REMA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 1313 of 2002 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of March, 2013. ## **ORDER** Faced with the concurrent finding of guilt, the accused has approached this court under revisional jurisdiction seeking interference with his conviction and sentence of rigorous imprisonment for four years and fine of Rs. 10,000/- with a default sentence of rigorous imprisonment for one year for the offence under Section 376 of I.P.C. 2. P.W.3 is the victim. She seems to be aged 15 years on the date of occurrence. The date of occurrence is 16.8.1996. The allegation against the accused is that on that day, she was called to the house of the accused to do household work and she went there and then she found she was all alone in the house. The accused entered through the kitchen door, caught hold of her and sexually assaulted her. She conceived. Since there was a promise of marriage, she delayed the lodging of complaint. Ultimately when it Crl.R.P.1313/2002. 2 was refused, the first information statement was laid on 15.4.1997. P.W.7 the Sub Inspector of Police, recorded Ext.P3 FIS and as per Ext.P6 he registered the crime. P.W.9 took over investigation. He prepared Ext.P5 scene mahazar and filed a report showing the name and address of the accused as Ext.P8. He had the victim sent for medical examination. P.W.1 examined her and furnished Ext. P1 medical certificate. After the arrest of the accused, he hwas subjected to potency test by P.W.2 who issued Ext.P2 certificate. He recorded the statements of witnesses, completed investigation and laid charge before court. 3. The JFCM-II, Kottarakkara, before whom final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kottarakkara under Section 209 Cr.P.C. The said court made over the case to Assistant Sessions Judge, Kottarakkara for trial and disposal. The said court on getting records and on 3 Crl.R.P.1313/2002. appearance of the accused framed charge for the offence under Section 376 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 8 and had Exts.P1 to P8 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined D.W.1 and had Ext.D1 marked. 8. On an appreciation of the evidence in the case, the trial court came to the conclusion that the evidence of P.W.3 is convincing enough and that the offence has been made out. Accordingly, the accused was convicted and sentenced as already mentioned. 9. The accused chose to assail the conviction and sentence before the Sessions court by way of Crl.Appeal Crl.R.P.1313/2002. 4 No.178 of 1999. The Sessions court, after an independent evaluation of the evidence in the case, found no reason to disagree with the trial court and confirmed the conviction and sentence. The said findings are assailed in this revision. 10. Learned counsel appearing for the revision petitioner pointed out that the prosecution case is dependent solely on the evidence of P.W.3 and the evidence of P.W.3 is open to serious doubt. Attention was drawn to the fact that Ext.P3 first information statement was laid by the victim and a short while thereafter Ext.P3(a) statement is also given by the victim and these two statements are contradictory to each other. It was also pointed out that the incident had occurred on 16.8.1996 and the first information statement has been laid only on 15.4.1997 after a period of 8 months and there is considerable delay in laying the complaint for which no satisfactory explanation has been offered. These vital aspects have been omitted to be noticed and that has resulted in a wrong conviction Crl.R.P.1313/2002. 5 being entered into by the court below. 11. Learned Public Prosecutor emphasized that unless it is shown that the findings suffer from any illegality, irregularity or impropriety, merely because this court feels that a different view is possible, interference will not be justified in law. There is nothing to show that P.W.3 had any oblique motive in implicating the accused. The reason for the delay has already been given by P.W.3 and there is no reason to reject the same. In short, according to the learned learned Public Prosecutor, no grounds are made out to interfere with the said finding. 12. True, the evidence regarding the incident is confined to the evidence of P.W.3, the victim. It is now beyond challenge that the victim was only aged 15 on the date of the incident even though it was strongly contested during the trial stage. The prosecution case is that on the date of the incident the victim had gone to the house of the accused to cook food for him and the accused entered Crl.R.P.1313/2002. 6 through the back door of the house, caught hold of her and ravished her. Both the courts found that the evidence of P.W.3 is convincing and cogent. This court also, in order to ascertain whether there is any miscarriage of justice has been caused to the accused, perused the evidence of P.W.3. She has given a vivid description of what had transpired on the relevant date. Even though it is contended that the statements in Ext.P3 (a) which was subsequently given, are contradictory to the statements in Ext.P3, those contradictions are not seen put to P.W.3 or her attention was drawn to those statements. On going through the records, it would appear that the crime was registered on the basis of Ext.P3, and any subsequent statement has the effect of statement under Section 161 Cr.P.C. It is for the defence to draw the attention of the victim to those statements. This exercise had not been undertaken by the accused and therefore the contention that the statements in Exts. P3 and P3(a) are contradictory cannot be accepted. Crl.R.P.1313/2002. 7 13. Learned counsel relied on the decision reported in **K.P.Thimmappa Gowda v. State of Karnataka** (AIR 2011 SC 2564) and contended that delay is fatal. A reading of the judgment would show that the victim there was aged 21 and admittedly she was having regular sexual intercourse with the accused. On one such occasion she objected to the conduct and complaint was laid eight months after the incident. In the said case, the Apex Court observed that delay is fatal to the prosecution and if there is no satisfactory explanation put forward by the prosecutrix, then the benefit should enure to the accused. 14. The case on hand stands entirely on a different footing. Here, the victim is aged 15 years and she has given a description of what had occurred on 16.8.1996. She offered an explanation for the delay in lodging the FIS. She stated that there was a promise of marriage and she and her family believed the promise. They were taken for a ride. The lower appellate court chose to accept the said Crl.R.P.1313/2002. 8 explanation for the delay and has found that it is convincing. Sitting in revisional jurisdiction, it may not be proper for this court to say that the finding of the lower court in that regard is perverse or unwarranted on the evidence on record. 15. Both the courts below have analysed the evidence in considerable detail and had come to the conclusion that the evidence is sufficient to show that the offence has been made out against the accused. On an independent consideration of the materials, this court finds that there is no reason to take a different view. 16. It is seen that at the time of admission, this court felt that sentence imposed is too meager and therefore issued notice to the accused to show cause why the punishment should not be enhanced. The notice so issued to the accused returned unserved and also the warrant issued against him is also returned unexecuted with the endorsement that his whereabouts are not known. Crl.R.P.1313/2002. 9 17. On the basis of the evidence available, the conviction has been rightly entered into and the sentence as already noticed does not call for interference since it is too meager considering the facts and circumstances of the case. The result is that, this revision petition is without merits and it is only to be dismissed. I do so. P. BHAVADASAN, JUDGE sb.