S.A.Salim @ Abdul Salim v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945`** ## **`CRL.A NO. 1299 OF 2018`** ``` AGAINST THE JUDGMENT DATED 10.07.2015 IN S.C NO.292/2014 OF ADDITIONAL SESSIONS ``` ## **`COURT - II, KALPETTA`** ## **`APPELLANT/ACCUSED:`** ``` S.A.SALIM @ ABDUL SALIM, AGED 48 YEARS, S/O. SHARAFUDEEN, KOTTAVARAMBU, KADATHARIKKAKATH, PANAVOOR P.O., NEDUMANGAD, THIRUVANANTHAPURAM. ``` ``` BY ADV K.MOHAMMAD SALAHUDHEEN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031. ``` ``` BY SMT.NIMA JACOB (PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2023, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO.1299/2018 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 14[th] day of June, 2023. This appeal is directed against a judgment passed by Court of Sessions, Kalpetta, Wayanad (for short, ‘the court below’) on 10.07.2015 in SC No.292/2014. The appellant is the sole accused in the case on hand. The offences for which he stands found guilty, convicted and sentenced are those punishable under Sections 366, 344, 376 and 506(i) of the Indian Penal Code 1860, (for short, ‘the IPC’). 2. For the offence under Section 366 IPC, the accused stands found guilty, convicted and sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo Simple Imprisonment for three years. 3. For the offence under Section 344 IPC, the accused stands found guilty, convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.15,000/- and in default of payment of fine to undergo Simple Imprisonment for six months. ``` CRL.A NO.1299/2018 ``` ``` 3 ``` 4. For the offence under Section 376 IPC, the accused stands found guilty, convicted and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo Simple Imprisonment for three years. 5. For the offence under Section 506 (i) IPC, the accused stands found guilty, convicted and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo Simple Imprisonment for three months. 6. Substantive sentences imposed as above were ordered to run concurrently. Set off for the period already undergone by the accused as an under trial prisoner is also allowed under Section 428 of the Code of Criminal Procedure, 1973 (For short, ‘the Cr.P.C’). Out of the fine amount on realisation, Rs.50,000/- was directed to be paid to the defacto complainant as compensation under Section 357(1) Cr.P.C. 7. Aggrieved by the above judgment, the sole accused has approached this Court in the appeal on hand. 8. According to Sri.Mohammad Salahudeen, the trial court blindly believed the version of PW1, though it was inconsistent on ``` CRL.A NO.1299/2018 ``` ``` 4 ``` several aspects. According to him, PW3 was not an ocular witness, but the trial court believed him and relied on his testimony as an evidence lending corroboration to the version of PW1. According to him, the trial court ought to have scrutinised the evidence of PW1 with care and caution prior to placing reliance on it. 9. Though a specific ground was not taken in the Appeal Memorandum, it was projected by the learned counsel during argument that the medical examination of the victim does not disclose any injuries in her genital area. According to him, vaginal smear and swab of the victim were collected during the course of medical examination, but the microscopic examination of those, did not left any evidence of recent sexual intercourse. The learned counsel canvassed for reversal of the judgment under challenge for those reasons. 10. The learned Public Prosecutor on the contrary has stated that none of the arguments advanced by the learned counsel are tenable and are only liable to be discarded and canvassed for maintaining the judgment under challenge. According to her, the prosecution case stands established by the evidence on record and the trial court is justified in passing the impugned judgment. ``` CRL.A NO.1299/2018 ``` ``` 5 ``` 11. The points of challenge raised would be addressed after having a brief discussion about the prosecution case:- On 21.05.1995 at about 12.00 midnight, the accused had abducted the CWI Raihanath, who was a minor girl under the age of 18 years, from the house bearing door No.IV/142. Muttil Grama Panchayat to Madakkimala and Arekkode. The accused had wrongfully confined the CWI during the period from 25.05.1995 to 03.06.1995 in the house bearing door No.1/188, Oorngattiri Grama Panchayat, Vettilappara Amsom, Malappuram District. It is alleged that the accused had committed rape on her on several times in the premises of the house bearing door No.1/188, Oornganttiri Grama Panchayat Vettilappara Amsom, Malappuram District. It is further alleged that the accused had criminally intimidated the CW1 that she would be done away with, if she revealed the said acts committed by the accused to anyone during the course of the same transaction. Hence, the accused stands alleged to have committed the above said offences. 12. The final report in the case was filed before the Chief Judicial Magistrate's Court, Kalpetta. It was taken on the files as CP 18/1996. After having complied with all legal formalities, the case was committed to the Principal Sessions Court, Kalpetta as per order ``` CRL.A NO.1299/2018 ``` ``` 6 ``` dated 13.03.1998. Accordingly, the case had been made over to the Assistant Sessions Court, Sulthanbathery for trial and disposal as per law. During the pendency of the case before the Assistant Sessions Court, Sulthanbathery, the accused had absconded. Therefore, after having compiled with all legal formalities, the case was transferred to the register for Long Pending Cases, vide LP No. 1/2000. 13. On 12.11.2014, the accused was arrested and produced before the Assistant Sessions Court, Sulthanbathery. It was renumbered as SC 292/2014. After that, the case was withdrawn from the files of the Assistant Sessions Court, Sulthanbathery 14. On production of the accused before this court, it was ascertained as to whether the provisions under Section 207 Cr.PC was complied with. The accused was provided with a legal aid counsel. After hearing both sides, a charge under Sections 366, 344, 376 and 506(1) IPC was framed, read over and explained to him. The accused had pleaded not guilty, and claimed to be tried. 15. The trial commenced then and on the side of the prosecution PWs 1 to 11 were examined, Exts P 1 to P18 and MO 1 were marked. On the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C by putting ``` CRL.A NO.1299/2018 ``` ``` 7 ``` the incriminating circumstances brought against him in evidence by the prosecution. He denied all those and pleaded total innocence. After that, the case was heard under Section 232 Cr.P.C. Grounds having not been made out to record an order of acquittal, the accused was asked to enter on his defence. He did not adduce any evidence. 16. After the arrest of the accused and his production before Assistant Sessions Court, Sulthanbathery, he absconded and his presence for trial was procured only on 12/11/2014. Therefore, by the time trial was held, the victim girl was a house wife aged 35 years. 17. In the light of the challenges raised, this Court finds it important to have a critical analysis of the oral evidence tendered by PW1. 18. According to PW1 while she was studying in VIII[th] standard and aged 15 years and two months, the accused was residing near to her house alongwith his wife and children. He had acquaintance with her father and therefore was a frequent visitor of her house. On a fine day, PW1 was taken by the accused to the house of PW2 and introduced her as his sister. They stayed there for some days and thereafter went to the house of CW3. There, they ``` CRL.A NO.1299/2018 ``` ``` 8 ``` stayed for 12-13 days and the accused commited rape on her several times. She was also criminally intimidated that she would be done away, if she would not co-operate to satisfy his sexual desire. She was constrained to divulge the factum to CW3, who informed PW3, her brother. Immediately, PW3 visited the house of CW3 and took her to their house and the law was set in motion by lodging the First Information Statement at Kalpetta Police Station. She was then subjected to medical examination. 19. Though PW1 was subjected to elaborate cross examination, she remained consistent throughout. Thus not even a material contradiction liable to discredit her version was brought out by the defence. The suggestion made to her by the defence on falsity and fabrication of the case were stoutly denied by her. PW2 was examined by the prosecution with a view to have the version of PW1 corroborated. According to PW2, the accused is known to her husband and therefore he visited their house with PW1 and stayed there. However, the defence failed to cross examine PW2 on material aspects. PW2 is an independent witness and it supports the version of PW1 that the accused took her out from the lawful custody of parents to PW2’s house and stayed together after introducing her as his sister. ``` CRL.A NO.1299/2018 ``` ``` 9 ``` 20. According to PW3, PW1 was found missing from their house. They were enquiring about her and obtained information from CW3 that PW1 was brought to her house by accused and is available there. PW3 went to CW3’s house and got her released from the illegal custody of the accused. Therefore the evidence of PW3 also supports the version of PW1 that she was removed by the accused from the lawful custody of her parents and stayed at her house. The version of PW3, corroborates with the version of PW1 that, she was rescued from the custody of accused and taken back home. 21. The argument advanced by the learned counsel that the prosecution failed to cite and examine any independent ocular witnesses of the alleged sexual act, is absolutely devoid of any merits since the culprit of such offences would not prefer to commit the offence openly. It is unlikely for the commission of the kind of offence to be witnessed by any other person. The argument advanced on that count being devoid of any merits and is discarded. 22. The accused’s capability to have sexual intercourse stands proved by the oral evidence of PW4 who examined him on 09.06.1996 and issued Ext.P3. It was opined by PW4 after examining him medically and certified in Ext.P3 that nothing ``` CRL.A NO.1299/2018 ``` ``` 10 ``` suggestive of his incapacity to perform sexual act was found in the examination. PW4 was not subjected to cross examination by the accused and thus his version stands uncontroverted. 23. The victim was subjected to medical examination on 06.06.1995. the doctor examined her was examined as PW10 and the certificate issued by him was marked in evidence as Ext.P8. The alleged cause was spoken to the doctor by PW1 as “സലിം 25.05.1995. ൽ ബലാൽസംഗം ചെ യ്തു” 24. The findings derived in the medical examination of the victim were recorded in Ext.P4 as :- “Hymen Partially ruptured, carunculae present and vagina admits two fingers.” 25. During examination, PW10 has also categorically stated that rupture of hymen is evidence of sexual intercourse. The ingredients to constitute an offence of rape are incorporated in Section 375 IPC and it reads: ## 375. Rape.-- A man is said to commit "rape" if he-- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of ``` CRL.A NO.1299/2018 ``` ``` 11 ``` a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First -Against her will. Secondly -Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent, when she is under eighteen years of age. Seventhly-When she is unable to communicate consent.” A man is said to commit “rape” who, except in the case hereinafter exempted, has sexual intercourse with a woman under circumstances falling under any of the six descriptions elaborated under Section 375 IPC . The sixth among the above is with or without her consent, when she is under sixteen years of age. ``` CRL.A NO.1299/2018 ``` ``` 12 ``` 26. The Head Master of Wayanad Orphanage Vocational Higher Secondary School was examined by the prosecution as PW5. The certificate issued by him is also marked in evidence as Ext.P4. According to him, Ext.P4 was issued based on the requisition made by the police and it was prepared by extracting the particulars from the admission register maintained at the school. According to PW5, PW1 was a student there during the academic year 1994-1995 and her date of birth is 08.03.1980. The above evidence tendered by PW5 was not controverted by the accused. Therefore, it stands successfully proved by the prosecution that PW1, at the relevant time of commission of the offences was only below the age of 16 years. Therefore, it was proved beyond reasonable doubt that PW1 was aged below 16 years as on date of commission of offences against her by the accused. Ext.P4 is an authentic document to prove the age of PW1 and there is every reason to rely on it and the Trial Court has relied on it. The victim girl being aged below sixteen years as on date of commission of the offence, her consent for the offence is irrelevant. 27. The dictum of the Apex Court in State of Maharastra v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658) speaks about the manner in which the evidence of a victim in a rape case is to be ``` CRL.A NO.1299/2018 ``` ``` 13 ``` ## appreciated. It reads: “ A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the EvidenceAct similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no ``` CRL.A NO.1299/2018 ``` ``` 14 ``` doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness.” 28. In Wahid Khan v. State of Madhya Pradesh [2010 Crl.L.J 517 SC], the Apex Court held that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. 29. When evidence adduced by the prosecution in the case on hand is appreciated in the backdrop of the dictums referred to supra, the evidence tendered by PW1, though solitary is admissible in all respects and minor discrepancies if any are there, being immaterial are only to be discarded while appreciating the evidence. After ascertaining the competency of the minor to depose that she was examined as PW1. As PW1, she deposed all aspects, materials and relevant to attract the offence of rape. She has also spoken categorically about removal of her from the lawful guardianship by the accused. PW1 maintain the stand taken by her during examination in chief even in the corss examination. During cross examination also she reiterated all aspects of the incident boldly and confidently. The trial was held after almost twenty years from the ``` CRL.A NO.1299/2018 ``` ``` 15 ``` date of occurrence. The accused kept himself away from the court and his non co-operation alone delayed the trial. By the time the victim was called upon for examination, she reached the age of 35 years and was married also. 30. The courage and wisdom shown by PW1 to speak about the incident categorically evenafter transformation as a houswife, is liable to inspire more confidence on her version. It is all the more sufficient to rule out the version of the defence that the prosecution case is only a false and fabricated one. 31. The versions of PW2 and PW3 also corroborate with the version of PW1 on material aspects constituting the offences. The medical evidence on record also indicate that the offence alleged was committed on the victim. Want of spermatozoa in the vaginal smear and swab collected from the victim cannot be taken as a circumstances to rule out the material evidence stand adduced by the witnesses of the prosecution, discussed above. The victim was medically examined on 06.06.1995 i.e after 12 days of the alleged incident. Therefore, there is every reason for such sort of evidence to be lost in washing the private parts and bathing. 32. The above discussion, compels this Court to take a view that the prosecution case stands successfully proved and the court ``` CRL.A NO.1299/2018 ``` ``` 16 ``` below is justified in passing the judgment against the accused, finding him guilty for the offences and convicting and sentencing him. Crl.Appeal fails for the reasons stated above and is dismissed. **`Sd/-`** MARY JOSEPH JUDGE JJ