Rabeesh v. State of Kerala

``` CRL.A NO. 787 OF 2018 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 ``` ``` CRL.A NO. 787 OF 2018 ``` ``` AGAINST THE JUDGMENT IN S.C.NO 437/2010 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST WOMEN AND CHILDREN, THALASSERY APPELLANT/ACCUSED: ``` ``` RABEESH, AGED 33 YEARS S/O. BASKARAN, AGED 33/2018, KOYITTANDITHAZHE, KUNIYIL HOUSE, CHOKLI AMSOM, KAVIYOOR DESOM, THALASSERY. ``` ``` BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C SMT SHEEBA THOMAS -PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 787 OF 2018 ``` ``` 2 ``` ## JUDGMENT This appeal has been preferred by the accused in S.C.No.437/2010 on the file of the Special Court for the trial of offences against Women and Children, Thalassery (for short 'the court below') challenging the judgment of conviction and sentence dated 29.5.2018. 2. The accused faced trial for the offence punishable under Section 376 of IPC. 3. The victim was a deaf and dumb girl aged 31 years at the time of occurrence. The prosecution case in short is that on 23.6.2007 at 9.30 am., when PW1 went to a well, near to her house to take water, the accused reached there, took the victim to the nearby open bathroom and committed rape on her and thereby committed the offence. 4. The incident was at 9.30 am. On the same day at 1.30 ``` CRL.A NO. 787 OF 2018 ``` ``` 3 ``` pm. the crime was registered by PW14, on the basis of the statement given by the sister of the victim who was examined as PW10. Ext.P6 is the first information statement. Ext.P10 is the FIR. PW12, the Circle Inspector of Police, Panoor conducted initial part of the investigation. PW13, the Circle Inspector of Police, Panoor conducted remaining part of the investigation and filed final report before the Magistrate. The Magistrate, after completing the statutory formalities committed the case to stand trial before the Court of Sessions. Thereafter, the case was made over to the court below. 5. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Section 376 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 6. The prosecution examined PWs1 to 14 and marked Exts.P1 to P10. MOs1 to 6 were identified. 7. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Section 376 of ``` CRL.A NO. 787 OF 2018 ``` ``` 4 ``` IPC and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for a period of one year. Challenging the said conviction and sentence, the accused preferred this appeal. 8. I have heard Sri.Johnson Varikkappillil, the learned counsel for the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor. 9. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that even if the prosecution case is believed in toto, still on the basis of the materials brought on record by the prosecution, offence u/s 376 of IPC is not attracted. According to the counsel at best Section 354 and Section 511 of 376 of IPC alone is attracted. The counsel further submitted that the conviction is based on the uncorroborated testimony of the victim who is deaf and dumb. The counsel ``` CRL.A NO. 787 OF 2018 ``` ``` 5 ``` submitted that the evidence of the sister of the victim, PW10, that she witnessed the incident is absent in her statement given to the police, which has been brought out as omission amounting to contradiction. The counsel also submitted that the alleged incident was taken place in a bathroom situated on the side of the public road, that too, in the morning at 9.30 am., but no independent witness was cited or examined by the prosecution. 10. Per contra, the learned Public Prosecutor supported the findings and verdict handed down by the court below and argued that necessary ingredients of Section 376 of IPC had been established against the accused and the prosecution has succeeded in proving the case beyond reasonable doubt. 11. The prosecution mainly relied on the evidence of PWs 1, 5, 6 and 10 to prove the incident and to fix the culpability on the accused. PW1 is the victim. PW10 is the sister of the victim who witnessed the incident and gave Ext.P6 FI statement. PW6 is the doctor who examined the victim and issued Ext.P3 ``` CRL.A NO. 787 OF 2018 ``` ``` 6 ``` certificate. PW5 is the doctor who examined the accused and issued Ext.P2 potency certificate. 12. As stated already, PW1 is deaf and dumb. She was examined with the help of a translator, who was examined as PW2. The statement of the victim was also recorded by the police with the help of a translator, who was examined as PW3. PW1 deposed that on the date and time of the incident she went to draw water from the well which is situated near to her house. There is a bathroom without the door near to the well. It is evident from the evidence of PW1 and PW10 as well as from the scene mahazar, which was marked as Ext.P7. Her evidence would show that while she was taking water, the accused came there, closed her mouth, pressed her against the wall of the bathroom, pulled down her dress and then inserted his penis into her vagina. She further deposed that then she screamed and when she tried to object, the accused pushed her against the wall. She also deposed that at that time PW10, her younger sister reached there and the accused ran away. She added ``` CRL.A NO. 787 OF 2018 ``` ``` 7 ``` that blood came out of her vagina. She identified the dress worn by her at the time of incident, which were marked as MOs 1 to 3. PW2 is the translator. She was extensively cross examined. She clearly deposed that she translated after fully understanding the evidence given by PW1. She also deposed that she could understand the evidence given by PW1 from her gestures and sound. 13. PW10, the sister of PW1, deposed that on 23.6.2007 at about 9.30 am, as she was suffering from fever, she asked PW1 to go and collect water from the nearby well. She further deposed that since PW1 did not return, she went out in search of her. She also deposed that when she searched the bathroom situated near to the well, she saw the accused by closing the mouth of PW1 penetrating his penis to the vagina of PW1. She also deposed that the pants worn by the accused was pushed downwards and the top worn by PW1 had been lifted upwards and the pants worn by her was lying on the floor and was torn. She further deposed that when the accused saw PW10, he closed the zip of the pants, pushed PW10 and ``` CRL.A NO. 787 OF 2018 ``` ``` 8 ``` ran away. Her evidence would further show that she thereafter went to the Chokli Police Station and gave Ext.P6 first information statement. It was marked through her. 14. PW6 is the doctor who attached to the Government Hospital, Thalassery. She deposed that she examined PW1 on 23.2.2007 at 2.45 pm. and issued Ext.P3 certificate. She categorically deposed that there was evidence of vaginal penetration. 15. I have perused the evidence of PW1 meticulously. Even though she was cross examined at length by the learned counsel for the accused, nothing tangible could be extracted from her crossexamination to create any shadow of doubt that she is not a truthful witness. She clearly deposed the manner in which the accused raped her. She specifically deposed that in the standing position the accused overpowered her and inserted his penis into her vagina. There was no successful cross examination on this vital piece of evidence. She gave reliable, consistent and credible version of the crime and her evidence inspires confidence. There was no reason for ``` CRL.A NO. 787 OF 2018 ``` ``` 9 ``` PW1, a deaf and dumb person to speak falsehood against the accused who was even not known to her or PW10. 16. It is settled that the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Normally there will not be any eye witnesses to the sexual assault, especially for the rape. But, here is a case where an eye witness was cited by the prosecution. The evidence of PW10 would clearly show that as she was suffering from fever, she sent PW1 to take water from the nearby well and when she could not find PW1 returning, she went towards the well in search of her where, in the nearby bathroom, she found the accused committing rape on her. The learned counsel for the appellant vehementlly argued that the evidence given by PW10 that she saw the accused inserting his sexual organ into the private part of the victim was conspicuously absent in the 161 statement given by her and it was brought out as omission through PW10 as well as through the investigating officer. It is true that, that is an omission amounting ``` CRL.A NO. 787 OF 2018 ``` ``` 10 ``` to contradiction. However, the remaining part of the evidence given by PW10 that when she reached the spot at a time or immediately after the incident, she saw the accused and the victim together inside the bathroom, remains unchallenged. The rest of the evidence given by her that when she saw both of them in the bathroom, the top worn by PW1 was lifted upwards and the pants worn by her was laying on the floor and was torn off and when the accused saw her, he closed the zip of his pants and pushed her and ran away by taking his cover and umbrella also remains unchallenged. These evidence are sufficient to corroborate the evidence given by PW1. That apart, it is settled that the conviction in a sexual assault can be based on the solitary evidence of the victim. The Apex Court in Krishan Lal v. State of Haryana (AIR 1980 SC 1252) has held that to seek substantial corroboration of the victim's evidence in a rape case is to sacrifice common sense. In State of Himachal Pradesh v. Asha Ram (AIR 2006 SC 381), it was held that it is well within the limits to rest a conviction based on ``` CRL.A NO. 787 OF 2018 ``` ``` 11 ``` the solitary testimony of the victim whose evidence is more reliable than that of the injured witness. 17. The evidence of PWs1 and 10 gets corroboration from the evidence of the doctor, PW6, who examined the victim on the same day itself at 2.45 pm. On examination of the victim the doctor opined that there was evidence of vaginal penetration. The counsel for the appellant submitted that even as per the prosecution version, the alleged sexual assault was committed in a standing position. The counsel further submitted that the evidence of the doctor coupled with Ext.P3 would show that there was no injury at all either on the private parts or other parts of the body of the victim which rules out the possibility of a penetrative sexual assault. It is true that there is no injury on the private parts or other parts of the body of the victim. But, the doctor categorically deposed to a specific question that from the complaint stated by the sister of the victim and on examination of the victim she can very well say that the penetration stated in Ext.P3 is vaginal penetration. The doctor added that even ``` CRL.A NO. 787 OF 2018 ``` ``` 12 ``` if the penetration was forceful, there need not be marks of injury in the vagina. As to the argument made by the learned counsel that there was no possibility to have a sexual assault while in a standing position, when a specific question was put to the doctor, she answered that it is possible to have sexual intercourse on a healthy woman by holding her against the wall without her consent if she was overpowered and if the vagina was spaculus. In re-examination the doctor specifically stated that there was evidence of recent sexual penetration. Thus, the medical evidence also supports the oral testimony given by the PW1 as well as PW10. 18. According to Section 375 of IPC, (prior to amendment in 2013), the offence of rape is the commission of a penetrative sexual intercourse upon a woman by a man under circumstances falling under any of the six descriptions specified therein. The Apex Court by referring to offence of 'rape' in Sakshi v. Union of India and Others (AIR 2004 SC 3566) held that 'sexual intercourse' is heterosexual intercourse involving penetration of the vagina by the ``` CRL.A NO. 787 OF 2018 ``` ``` 13 ``` penis. Needless to say, even the slightest penile vaginal entry will amount to sexual intercourse. The Apex Court in various decisions have made it clear that the 'penile accessing' would be sufficient to constitute 'penetration' in the sexual intercourse which is necessary for the offence of 'rape', which occurs, even in the absence of actual entry of the male organ through vagina or rupture of hymen [ Ranjith v. State of Kerala 2022 (1) KLT 19] . The evidence of PW1 would clearly show that the accused had inserted his penis into her vagina. Hence, offence u/s 376 of IPC is clearly attracted. The evidence of PW5 coupled with Ext.P2 certificate would show that the accused was capable of performing sexual act on the date of occurrence. Hence, I am of the view that the court below was absolutely justified in convicting the accused under Section 376 of IPC. 19. What remains is the sentence. The Court below sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for one year for the offence punishable u/s 376 of IPC. ``` CRL.A NO. 787 OF 2018 14 ``` In State of M.P. v. Babulal [(2008) 1 SCC 234], the Apex Court held that once a person is convicted for the offence of rape, he should be treated with heavy hands and an undeserved indulgence or liberal attitude in not awarding adequate sentence would encourage potential criminals. In the instant case a poor, deaf and dumb girl was brutally raped and ravished by the accused. I find no mitigating circumstances to interfere with the punishment imposed by the Court below. In the light of the above findings, the Criminal Appeal is dismissed. Sd/- ## DR. KAUSER EDAPPAGATH JUDGE ab