Raju @ Raju Mesthri v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935** ## **CRL.A. No.1389 of 2010 (C)** **--------------------------AGAINST THE ORDER/JUDGMENT DATED 15-1-2010 IN SC.NO.85/2009 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM, IN C.P.NO.8/09 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA IN CRIME NO.451/2008 OF PALA POLICE STATION.** ## **APPELLANT(S)/ACCUSED:** **--------------------------------------** **RAJU @ RAJU MESTHRI,S/O.VARGHESE, C.NO.7982, CENTRAL PRISON, VIYYUR THRISSUR.** ## **BY ADV. SHIRAZ ABDULLAHMS. [STATE BRIEF].** **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** = = = = = = = = = = = = = = = = = = = Crl.A.No.1389 of 2010 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of March, 2013 ## **JUDGMENT** ## **Ramakrishna Pillai, J.** This appeal is preferred from the Central Prison, Viyyur, where the appellant is undergoing imprisonment consequent to the conviction and sentence passed by the Additional Sessions Judge (Adhoc-II), Kottayam, in S.C.No.85 of 1999. The appellant, who stood indicted by the Circle Inspector of Police, Pala, in Crime No.451 of 2008, was tried, found guilty, convicted and sentenced to undergo rigorous imprisonment for life under Section 376 Indian Penal Code and to undergo rigorous imprisonment for one year under Section 506(1) of the Indian Penal Code; the sentences to run concurrently. The allegation is that the appellant committed rape on PW1, who is none other than his daughter, on several occasions under threat. 2. The prosecution case, unfolded through the oral testimonies of PW1 to PW9 and Exts.P1 to P12, is as follows:- **2** Crl.A.1389/10 PW1, who is the daughter of the appellant, was born and brought up in Tamil Nadu. She had studied up to V[th] Standard. She lost her mother when she was 1 ½ years old. For many years, the appellant was residing at Kumbani in Kerala. During that time, PW1 along with her brother was residing with her uncle at Tamil Nadu. In the year 2007, she came to Kumbani. At that time, her step-mother Pennamma was residing with the appellant. Some time after her coming to Kumbani, PW1 lost her brother also. As Pennamma did not like the stay of PW1 in the house, with the assistance of PW2, who is residing nearby, PW1 was sent to a convent at Ayamkudy of which PW6 was the Principal and Mother Superior. Later, Pennamma left the house and the appellant started to live with another lady by name Usha. But, after some time, she also left the appellant. On 9.7.2008 the appellant brought PW1 back from the convent. On that day, the appellant and PW1 alone were there in the house. During night, PW1 was sleeping on a cot and the appellant was lying on the floor in the same room. While PW1 fell asleep, the appellant approached her, removed her clothes and committed rape on her. The appellant was drunk at that time. Though PW1 resisted, the appellant threatened that she would be done away with. The appellant repeated the heinous act for 8 days, sometimes during day times also threatening that she would be finished off if she divulge the matter to anybody. However, PW1 revealed this incident to PW2 and PW3, who were residing nearby, seeking their help to go back to the convent. With the assistance of other ladies in the locality PW2 lodged Ext.P1 complaint before the police. PW9, the Additional Sub Inspector of Police, Pala, who **3** Crl.A.1389/10 recorded the same, registered the crime under Ext.P6 F.I.R. The subsequent investigation was conducted by PW10, the Circle Inspector of Police. He arrested the appellant and he was subjected to potency test by PW5 and obtained Ext.P3 potency certificate. PW1 was clinically examined by PW4, who issued Ext.P10 certificate wherein, it was stated that she was subjected to sexual intercourse. PW10 interrogated the witnesses, including PW6, the then Principal and Mother Superior of the convent where PW1 was working for some time. He seized MO1 to MO4, the dress worn by PW1 at the relevant time under Ext.P4 scene mahazar in the presence of PW7. He got Ext.P5 scene plan prepared by PW8, the then Village Officer. He forwarded Ext.P8 report adding Section 506 IPC and Ext.P9 report, stating the name and address of the accused, to the Court. He prepared Ext.P10 property list. The material objects with the property list were produced before the Court. Ext.P11 is forwarding note sent along with the material objects. The material objects were subjected to analysis by Forensic Science Laboratory, Thiruvananthapuram, from where, Ext.P12 report was issued. After completing the investigation, PW10 laid charge before the Court. 3. The Judicial First Class Magistrate Court, Pala, committed the case for trial to the Sessions Court, Kottayam. The trial court, after considering the evidence on record, found the appellant guilty of the offence, charged with, which resulted in conviction and sentence, as stated in the opening paragraph. **4** Crl.A.1389/10 4. As the appellant has not engaged a counsel of his choice, he was defended by the counsel at the expense of the State. 5. Arguments have been heard. The impugned judgment, including the lower court records were perused. 6. While the learned counsel for the appellant assailed the conviction and sentence on various grounds, the learned Public Prosecutor supported the impugned judgment and argued that there is no scope for interference by this Court against the conviction and sentence passed by the court below. 7. The prosecution mainly relied on the testimony of PW1, who is the victim, to prove the case against the appellant. PW1 has given a graphic account of the gruesome incident in which, her father had ravished her, taking advantage of the absence of anyone in the house. Her testimony is fortified by the testimony of PW2, who is her neighbhour. She stated as to when the appellant and the victim came to Kumbani. She also had narrated the circumstances which led to the stay of PW1 in the convent headed by PW6. PW1 as well as PW2 have stated that Pennamma, the step-mother used to pick up quarrels with PW1 and with the help of PW2, **5** Crl.A.1389/10 PW1 was taken to the convent at Ayamkudy. PW6, the Principal-cumMother Superior of the convent (the name of the convent is Asha Nikethan Residential School, Ayamkudy) stated that PW1 was a helper in the convent since 20.8.2007 and as she developed somnambulism after the death of her brother, the appellant was informed that PW1 could not be allowed to continue in the convent. Thus, on 9.7.2008, the appellant came to the convent. Though PW1 was not willing to go from there, the appellant was very much interested to take her back. Accordingly, they sent PW1 along with the appellant. PW6 further added that on 16.7.2008, the nearby residents of PW1 informed her over telephone that PW1 should be taken back to the convent on account of some problems in the house. Thus, she along with the Assistant Provincial Sister came to the house of PW1 and at that time, PW1 told them that she was sexually molested by her father. 8. Corroborating the testimony of PW6, there is the testimony of PW2, who deposed that on the day succeeding the day on which PW1 was brought back to the house from the convent by the appellant, PW1 met her and told her that she had something to say. However, she could not say **6** Crl.A.1389/10 anything at that time, as her father was there in the house. In the evening, when the appellant went to purchase liquor, PW1 approached PW2 and told in a mixed language that she had some unpleasant experience from her father. She did not understand what PW1 was telling. She asked PW1 to explain what had happened. Then, PW1 narrated the sequence of the events that had taken place during night. PW2 could not believe it. But, on the next day also PW1 approached her weeping and told that she wanted to go back to the convent. She also complained of pain on different parts of her body. Then, PW2 was convinced that PW1 was subjected to rape by the appellant. It was in this context that PW2 informed PW6, the Principal-cum-Mother Superior of the convent, to take PW1 back to convent and made Ext.P1 complaint before the Police. On a careful analysis of the testimonies of these three witnesses, we see a ring of truth. 9. The case against the appellant is supported by medical evidence also. PW4, the then Senior Lecturer, Department of Gynaecology, Medical College, Kottayam, who examined PW1 on 16.7.2008, issued Ext.P2 certificate. It was stated by her that the victim was brought to her by the Police with the history of alleged rape by her father, several times since the **7** Crl.A.1389/10 previous Wednesday, the last of which was on 16.7.2008 morning. She had certified that there was evidence of sexual intercourse. 10. It was argued by the learned counsel for the appellant that much reliance cannot be placed on the medical report, as PW1 herself has admitted in cross-examination that while she was residing with the appellant and Pennamma, Chacko, the brother of Pennamma committed rape on her and regarding that, there was a quarrel between the appellant and the said Chacko. Hence, according to the learned counsel for the appellant evidence of sexual intercourse that was found in clinical examination cannot be attributed to the appellant. But, even if, the medical evidence is eschewed, we have the unshattered testimony of PW1, who is the victim, well fortified with the testimonies of PW2 and PW6. 11. Here, we remind ourselves of the following observations of the v. Apex Court in **Bharwada Bhoginibhai Hirajadpai State of Gujarat** [AIR 1983 SC 753]: _“In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule_ _**is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be**_ **8** Crl.A.1389/10 _**viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male-dominated society.”**_ (emphasis supplied) 12. Of course, it is a different matter if, in a given case, the evidence on record throws serious doubt on the veracity or the trustworthiness of the evidence of prosecutrix or suggests evil motivation on her part to set up a false case against the accused or being pressurized by powerful individuals to so implicate him. In such similar or other situations, it is the duty of the Court to look for corroboration. 13. Here, we cannot loose sight of the fact that the appellant is the father of the victim. The gruesome act was perpetrated by the appellant on PW1 in the absence of anyone in the house and she was threatened that she would be finished of, if she divulged the story to anybody. But, in spite of this, she opened her mind to PW2 in her own way, which led to the arrest of the accused. Though, it was pointed out by the learned counsel for the appellant that there was delay in informing the matter to the Police, we are not impressed by the said argument, as the delay in reporting the matter to the Police is quite natural, in cases like this. **9** Crl.A.1389/10 14. On a totality of the evidence now placed on record, we are of the definite view that the court below has appreciated the evidence in the correct perspective and arrived at the correct finding. We hold that the finding of the guilt and consequential conviction are not liable to be interfered with. 15. The learned counsel for the appellant further submitted that some leniency be shown to the appellant as far as the sentence is concerned. But, this Court cannot loose sight of the fact that the appellant, who was expected to protect PW1, had subjected her to his sexual lust. We see absolutely no reason to show any leniency to reduce the punishment. Therefore, we confirm the sentence also. In the result, the appeal fails and is accordingly dismissed. No costs. ## sd/- **T.R.RAMACHANDRAN NAIR JUDGE** ## sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj //TRUE COPY// P.A. TO JUDGE