Ramakrishnan @ Vesamani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 31ST DAY OF JULY 2013/9TH SRAVANA, 1935** ## **Crl.Rev.Pet.No. 1351 of 2010 ( )** **--------------------------------CRL.A.NO. 306/2007 OF ADDITIONAL SESSIONS COURT (ADHOC-1), PALAKKAD SC.NO. 238/2003 OF ASSISTANT SESSIONS COURT, OTTAPPALAM** **---------------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **-------------------------------------------------------------------------** **RAMAKRISHNAN @ VESAMANI, S/O. SANKARAN, AGED 35 YEARS, AALUKUNNATH VEEDU, CHERPULASSERY, PALAKKAD DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** **RESPONDENT/COMPLAINANT/STATE :** **------------------------------------------------------** **STATE OF KERALA, REPRERSENTED BY THE CIRCLE INSPECTOR OF POLICE, CHERPULASSERY POLICE STATION, PALAKKAD DISTRICT, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.R.P. No. 1351 of 2010 - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of July, 2013. ## ORDER The petitioner, who was put in the dock and tried for the offences under Sections 450, 376 and 506(i) of the Indian Penal Code, after trial, was found guilty on all counts and convicted and sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.10,000/- with a default clause of simple imprisonment for six months for the offence under Section 376 I.P.C., simple imprisonment for three years for the offence under Section 450 of I.P.C. and simple imprisonment for six months for the offence under Section 506(i) of I.P.C. The sentences were directed to run concurrently and set off as per law was allowed. It was also directed that if the fine amount is realized, the same was directed to be paid as compensation to P.W.1. 2. P.W.1 is the victim in this case. The accused is said to be a cobbler having his workshop near to the house of Crl.R.P.1351/2010. 2 the victim. The incident is said to have occurred on 5.3.2002 at about 10.30 a.m. On that day, the victim was alone at home. The accused under the pretext of having water went to the house of the victim and when she brought water for him, he caught hold of the victim, pulled her into the house and it is alleged that he had ravished the victim. Out of fear, threat, humiliation, she did not disclose the incident to anybody. She became pregnant. Later, she revealed the incident to her mother, and thereafter the complaint was laid on 13.11.2002. It was recorded by the Station House Officer and after investigation, final report was laid. 3. The court, before which the final report was laid took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Palakkad. The said court made over the case to Assistant Sessions Court, Ottappalam for trial and disposal. Crl.R.P.1351/2010. 3 4. The latter court, on receipt of records and on appearance of the accused framed charge for the offences punishable under Sections 450, 376 and 506(i) of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 11 and had Exts.P1 to P7 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 against him and maintained that he is innocent. He also pointed out that he has not had any physical contact with the victim and that the child delivered by the victim does not belong to him. He also expressed his readiness and willingness to undergo DNA test. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. The trial court, on an appreciation of the evidence, found the accused guilty of the offences alleged Crl.R.P.1351/2010. 4 against him and accordingly, convicted and sentenced him as already mentioned. 5. The matter was taken up in appeal as Crl. Appeal No. 306 of 2008 before the Additional Sessions Court (Adhoc) I, Palakkad. The appellate court found the conviction to be proper, but felt that the sentences are harsh and therefore, interfered with the sentence and modified the sentences on all counts. The said findings are assailed in this revision petition. 6. Learned counsel appearing for the revision petitioner contended that both the courts below have not properly evaluated the evidence in detail in the light of the FIS. It is pointed out by the learned counsel that apart from the fact that there are inconsistencies in the evidence of P.Ws.1, 2 and 4 and the allegations in the FIS, the inherent improbability has not been taken note of by the court below. There was no justification for P.W.1 to wait till 13.11.2002, which is almost eight months after the incident, to lay the first Crl.R.P.1351/2010. 5 information statement. No satisfactory explanation is offered by the victim or her family members for the long delay. In support of his contention, learned counsel relied on the decision reported in Vijayan v. State of Kerala ((2008) 14 SCC 763). It is also contended that there was no attempt from the side of the prosecution to ascertain whether the child delivered by the victim belonged to the accused. According to the learned counsel, DNA test ought to have been conducted and the prosecution should have established the said fact. In the absence of such evidence and also in the light of the long delay in filing the complaint, learned counsel for the revision petitioner pointed out that the conviction and sentence cannot stand. 7. Learned Public Prosecutor on the other hand pointed out that the delay has been reasonably explained and both the courts below have accepted the reasons for the delay. It was pointed out by the learned Public Prosecutor that at the Crl.R.P.1351/2010. 6 time of cross-examination of P.W.1, it was suggested to her whether she was willing to undergo DNA test to which she answered in the affirmative. Except for the statement while questioning under Section 313 Cr.P.C. that the accused was willing to undergo DNA test, for reasons best known to the accused, he did not take any steps to do so. After having not taken any steps in that regard, it comes too late in the day, according to the learned Public Prosecutor, for the revision petitioner to contend that it was the bounden duty of the prosecution to establish that the child was that of the accused. Learned Public Prosecutor also reminded that this court is sitting in revision where the scope of interference is considerably limited. Referring to the sentences awarded by the court below, it was pointed out by the learned Public Prosecutor that the appellate court has been extremely lenient with regard to the sentence and there is no reason to interfere with the conviction and sentence passed by the court below. Crl.R.P.1351/2010. 7 8. The evidence regarding the incident is confined to the evidence of P.W.1. She says in detail about the incident, which has been referred to by both the courts below. She has also given reasons as to why she did not disclose the incident to anybody. Of course, there is slight inconsistency regarding the exact time at which she revealed the incident to her mother. While P.W.2, the mother of the victim, would say that at the time when the victim was five months pregnant, it was revealed to her by the victim, that she had been raped by the accused on 5.3.2002. P.W.1 on the other hand would say that she told her mother when she was 2 - 3 months pregnant that the accused had sexually assaulted her. Even if there is the above inconsistency and contradiction in the evidence of P.Ws.1 and 2 in this regard, that by itself is not sufficient to doubt the evidence regarding the incident. 9. In the decision reported in Vijayan v. State of Kerala ((2008) 14 SCC 763) delay was considered as fatal and Crl.R.P.1351/2010. 8 also the non-conduct of DNA was taken note of by the Apex Court and it was held in the facts and circumstances of that case that the accused is entitled to an acquittal. 10. In the case before the Apex Court, no reasonable explanation has been offered by the victim and it is found that the evidence of the victim was open to serious doubt. 11. In the case on hand, the victim, P.W.1, had offered an explanation which found favour with both the courts below. It is seen that the court below was of the opinion that the delay has been reasonably explained and it will not be proper for this court to interfere in revision especially when the views taken by the courts below are possible views. 12. What now remains is the question regarding the DNA test. In cross-examination of P.W.1 it was suggested to her whether she was willing to undergo DNA test, and she Crl.R.P.1351/2010. 9 answered in the affirmative. At the time of questioning under Section 313 Cr.P.C. he claims to be innocent and he made a statement that he intends to undergo DNA test. But for reasons best known to the revision petitioner, he thereafter took no steps in that regard and the result is that the testimony of P.W.1 remained unimpeached in that regard. Probably, the prosecution could have taken steps to have the DNA test conducted. But this court had occasion to hold that DVA test is not sine quo non in a case of rape and infact this court had occasion to hold that it may not have much relevance in a case of forced sexual assault. After having made a statement before the court that he intends to undergo DNA test, and later on refrains from doing so, he cannot now be heard to say that it was the duty of the prosecution to conduct the DNA test. Further, no reason is also suggested to P.W.1 as to why she should falsely implicate the accused. Of course, it is true that in cross-examination it is stated that Crl.R.P.1351/2010. 10 one Sudheer had committed suicide on the day on which the complaint was laid. But the suggestion ends there. There is no reason suggested to P.W.1 by the accused as to why he should have been stated by P.W.1 as her sexual assailant. 13. As rightly pointed out by the learned Public Prosecutor, this court is exercising revisional jurisdiction and the power and scope of interference is considerably limited. Unless it is shown that the findings of the courts below suffer from any illegality, irregularity or impropriety, even if this court is inclined to take a different view, interference with conviction and sentence may not be called for. The lower appellate court has been extremely considerate with regard to the question of sentence also. 14. Both the courts below found the evidence nf P.Ws.1 and 2 to be convincing enough and both the courts have also found that the delay has been properly explained by P.W.1. Under those circumstances, this court may not be Crl.R.P.1351/2010. 11 justified in interfering with the conviction and sentence passed by the court below. This revision petition is without merits and it is only to be dismissed. I do so confirming the conviction and sentence passed by the lower appellate court. P. BHAVADASAN, JUDGE sb.