SALI ALIAS MAKKU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 **Crl.Rev.Pet.No. 210 of 2001()** **-----------------------------** CRA.252/1997 of ADDL. SESSIONS COURT, ALAPPUZHA SC.24/1997 of ASSISTANT SESSIONS COURT, CHERTHALA .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- SALI ALIAS MAKKU, SON OF VASUDEVAN, PUTHIYANIKATHIL HOUSE, WARD XII, THURAVOOR PANCHAYAT, ALAPPUZHA. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------Crl.R.P. No.210 of 2001 -------------------------------------Dated this the 15[th] day of October, 2008.** ## **ORDER** Revision petitioner faced trial for offence punishable under Section 376 of the Indian Penal Code. Charge is that on 21.12.1995 at about 5 p.m. he committed rape on PW1 who was then aged five years. Learned Assistant Sessions Judge found the revision petitioner guilty, convicted and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/Appeal preferred by the revision petitioner ended in confirmation of conviction and sentence. Hence this revision. 2. Heard both sides. 3. Counsel for revision petitioner submitted that the courts below went wrong in accepting the evidence of PWs 1 to 3. According to the learned counsel, there are material contradictions in the evidence of PWs 1 to 3 which caused suspicion regarding the truth of their version. It is also argued by learned counsel that though the alleged incident occurred on 21.12.1995, first information regarding the incident was given to the police only after eight days. According to learned counsel, delay in lodging first information in this case is fatal and placed reliance on the decision in **Ramdas and others v. State of Maharashtra ((2007) 2 SCC 170).** Public Prosecutor contended that the case is proved beyond doubt and no interference is required. **Crl.R.P.No.210/2001** 2 4. Ext.P1 is the first information given by PW2, father of the victim (PW1) on 28.12.1995 at about 4 p.m. while the victim was undergoing treatment at Government Hospital, Cherthala, As per that version, the incident occurred on 21.12.1995 at about 5 p.m.. PW1, the victim was studying in the third standard at the time of her examination in the trial court. She identified revision petitioner and claimed that revision petitioner committed rape on her. She claimed that after the incident, revision petitioner threatened to kill her in case she disclosed the incident to her mother. The same day evening when her father (PW2) returned after work, she told PW2 about what had happened. Thereon, she was taken to the hospital. PW2 stated that he returned home after work on the day of incident by about 5 p.m. and then, PW1 told him about the incident. PW3, mother of PW1 stated that on the day of incident while she was cooking tea at her house, PW1 came there weeping and when she asked the reason, PW1 said that there was nothing. When PW2 returned home after work, PW1 told the incident to PW2. PW4, a neighbour did not support the prosecution. 5. PW7 is the Medical Officer of Green Garden Hospital at Cherthala which is also known as Mathilakam Hospital. He issued Ext.P5 and claimed to have examined PW1 in that hospital on 21.12.1995 at about 9.40 p.m.. PW1 was brought by her father with the allegation that 'Makku' (identified by PW1 as revision petitioner) tried to rape her in his house at about 5 p.m. on that day. The duty doctor also examined PW1. There were multiple small lacerations on external genitalia but there was no active bleeding . PW7 went to inform the police over telephone and returned to the casualty ward by about 10 p.m. PWs **Crl.R.P.No.210/2001** 3 1 and 2 could not be seen there. PW8 is the Medical Officer at Government Hospital, Cherthala who issued Ext.P6. PW8 examined PW1 in that hospital on 24.12.1995. History and alleged cause was stated as attempt to rape by 'Makku' on 21.12.1995 at about 4.30 p.m. PW1 told PW8 that 'Makku' attempted to rape her. PW2 claimed that he had taken PW1 to various hospitals and ultimately reached the Government Hospital, Cherthala. According to PW8, at the time of her examination on 24.12.1995 there were no symptoms of attempt to rape but in re-examination he clarified that no symptoms can be seen after four days of the incident. It is also the version of PW8 that PWs 1 and 2 had come to the Government Hospital, Cherthala from Venkiteswara Hospital. PW9 conducted the potency test of the revision petitioner and certified his potency as per Ext.P7. 6. It is contended that evidence of PWs 1 to 3 is not reliable and that there are material contradictions in their version. According to PW1, she went to the hospital on the day of the incident itself (along with PW2) and returned the same day. The next day, they went to another hospital. According to PW2, he had taken PW1 to Venkiteswara Hospital on the very same day after he thought they were not getting proper attention or treatment at Mathilakam Hospital (where PW7 had examined PW1 on 21.12.1995). The further discrepancy pointed out is that according to PW1, there was ill-will between PW2 and the revision petitioner but PW2 denied that. Yet another argument advanced is that first information was delayed by eight days, with no proper explanation for that. 7. It is true that prosecution has not examined the Medical Officer of **Crl.R.P.No.210/2001** 4 Venkiteswara Hospital, or produced any certificate to show that PW1 was admitted or treated in that hospital. It is also true that when questioned about that, answer given by PW12 who investigated the case, is that the information he got was that the child was taken to Venkiteswara Hospital for treatment of asthma and therefore. But, it is in evidence from the testimony of PW8 and Ext.P6 that PW2 had told PW8 that before coming to the Government Hospital, Cherthala, PW1 had been taken to Venkiteswara Hospital where PW1 had undergone treatment. Failure of PW12 to investigate into that matter cannot be taken detrimental to the prosecution, or sufficient to discard the version of PWs 1 and 2. In fact, the details of various hospitals where PW1 was taken by PW2 is stated by PW8, which I find no reason to disbelieve. There is the evidence of PW7 supported by Ext.P5 that PW1 was examined by PW7 as well as the duty doctor of Mathilakam Hospital within four hours of the alleged incident when PW7 found multiple small lacerations on the external genitalia of PW1, though, there was no active bleeding (which means, there was bleeding though not active). It is suggested to PW7 that the said injuries could be caused by PW1 scratching with fingers. That possibility was ruled out by PW7. According to PW7, no child would indulge in such forcible scratching to cause the injuries stated in Ext.P5. Therefore, that suggestion of the revision petitioner stands exploded. So far as the delay in giving first information is concerned, even as per the decision relied on by the counsel, its effect should depend on the facts of each case. Here is a case where evidence revealed that PW2 was going to various hospitals with PW1 for treatment as evidence of PWs 1 to 3, 7 and 8 **Crl.R.P.No.210/2001** 5 revealed. It is ultimately on 24.12.1995 that PW1 was admitted in Government Hospital, Cherthala where from PW8 gave intimation to the police and as seen from Ext.P1, statement was recorded on 28.12.1995. In fact, the evidence of PW7 would show that even as on 21.12.1995 after examination of PW1 at 9.40 p.m., PW7 intimated the matter to the Mararikulam Police over telephone. According to PW7, he had disclosed the matter stated to him by PW2 including the name and address of PW1 as well as revision petitioner to the Mararikulam Police. Going by the version of PW12, telephonic information was received by Kuthiathodu Police ( may be a mistake in the name of police station either by PW12 or by PW7) even before intimation was received from Government Hospital, Cherthala. Records do not show that police who got telephonic information from PW7 moved a little finger in the matter. That, there was negligence or lethargy on the part of the police in initiating action is also no ground to disbelieve the version of PW1 if it is otherwise acceptable. Though it was suggested to PW2 that himself and revision petitioner are at logger heads, he denied. PW1 stated ofcourse, that there was some ill-will between PW2 and the revision petitioner. But even then, it is not clear whether PW1 was referring to the period after the incident. Assuming that being neighbours there was some ill-will between the revision petitioner and PW2, that also is not suffice to ignore the evidence of PW1 which gets corroboration from the medical evidence given by PWs 7 and 8 and the evidence of PWs 2 and 3. There is sufficient evidence to show that revision petitioner indulged in the act spoken by PW1 on her on the relevant day and time. Learned Assistant Sessions Judge observed **Crl.R.P.No.210/2001** 6 that even the slightest penetration is sufficient to complete the act of rape. I have gone through the judgments of the courts below and find no reason to interfere with the conviction. 8. So far as the sentence part is concerned, it is to be born in mind that the sexual assault was made on a girl aged about five years at the relevant time. The social stigma and mental agony caused to the victim and her relatives on account of that is also to be born in mind. I find no reason to interfere. Revision Petition fails. It is dismissed. Bail bond is cancelled. Crl.M.P.No.914 of 2001 shall stand dismissed. **THOMAS P.JOSEPH, JUDGE.** **cks** **Crl.R.P.No.210/2001** 7 ## **Thomas P.Joseph, J.** **Crl.R.P.No.210 of 2001** ## **ORDER** **15[th] October, 2008**