Sreekumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934** **CRL.A.No. 439 of 2002 (U) --------------------------** **AGAINST THE ORDER/JUDGMENT IN SC.NO.312/1999 OF ASSISTANT SESSIONS COURT,NEYYATTINKARA DATED 12-06-2002** **...** **APPELLANT(S)/ACCUSED:: ------------------------------------------** **SREEKUMAR, S/O. KOCHAPPI PILLAI, OLIPPUSALA THAZHE PUTHEN VEEDU, ATHIYANNOOR.** **BY ADV.SRI.SONY VINCENT(STATE BRIEF) BY SRI. K. SREEKUMAR(PARTY IN PERSON)** ## **RESPONDENT(S)/COMPLAINANT::** **------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. R. REMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.439 OF 2002 --------------------------------------Dated this the 14[th] day of March, 2013.** ## **J U D G M E N T** The accused was prosecuted for the offences punishable under Sections 450 and 376 of the Indian Penal Code. He was found guilty on both counts and therefore convicted and sentenced to suffer rigorous imprisonment for a period of eight years and to pay a fine of Rs.10,000/- and in default of payment of which to suffer rigorous imprisonment for a period of six months for the offence punishable under Section 376 IPC and rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of which to suffer rigorous imprisonment for a period of six months for the offence punishable under Section 450 IPC. It was also directed that if the fine amount is realised, a sum of Rs.15,000/- will be given to PW1 as compensation. Set off as per law was allowed. 2. PW1 is the victim in this case. She was aged 13 years at the relevant time. The incident is said to have occurred on **Crl.Appeal No.439/2002** **2** 23.03.1998 at about 5.30 p.m. The allegation is that on that day, the victim namely, PW1 had gone to the nearby canal to take bath and while she was taking bath, the accused reached there and caught hold of her skirt. She objected to his conduct. After taking bath, PW1 returned home and while she was drying her hair, it is stated that the accused reached the place and caught hold of her, took her forcibly inside the house and ravished her. 3. As per the allegations, at the relevant time, PW1 was alone at home. It would appear that soon after the incident, she went to the house of a relative and later on when her mother reached the house, the information was conveyed to her. Her father returned on the next day and he was also told about the incident. They went to the Police Station on 24.03.1998 and laid Ext.P1 First Information Statement. PW11, the Sub Inspector of the Police Station concerned recorded Ext.P1 First Information Statement furnished by PW1 and registered a crime as per Ext.P8 First Information Report. Investigation was taken over by PW12. He had the victim sent for medical examination and obtained **Crl.Appeal No.439/2002** **3** Ext.P2 certificate. PW13 prepared Ext.P4 scene mahazar and had seized M.Os 1 to 3 the dresses said to have been worn by the victim at the relevant time as per Ext.P5 mahazar. He had those materials sent for chemical examination and obtained the FSL report. After the arrest of the accused, he had him subjected to potency test and obtained necessary certificate. He recorded the statement of witnesses, completed the investigation and laid charge before the court. 4. The Judicial First Class Magistrate Court-I, Neyyattinkara before whom final report was laid took cognizance of the offence. On finding that the offences are exclusively triable by the Court of Sessions, the learned Magistrate committed the case to Sessions Court, Thiruvananthapuram under Section 209 Cr.P.C. The said court made over the case to Assistant Sessions Court, Neyyattinkara for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, framed charges for the offences punishable under Sections 376 and 450 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution had, therefore, examined PWs 1 to 13 and **Crl.Appeal No.439/2002** **4** had Exts.P1 to P12 marked. M.O.s 1 to 3 were also identified and marked. 5. 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 in evidence against him and maintained that he is innocent. He pointed out that he was running a 'thattukada' and that he has aged parents, wife and two children and that he has not committed any act as alleged against him. On 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. 6. On an appreciation of the evidence in the case, the trial court came to the conclusion that the offences have been made out and accordingly, found the accused guilty of the offences under Sections 450 and 376 IPC and conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. 7. Learned counsel appearing for the appellant attacked the findings of the court below on several grounds. Learned counsel **Crl.Appeal No.439/2002** **5** pointed out that the evidence of the incident remains confined to the testimony of PW1 and unless it is found to be without blemish, it will not be proper to rest a conviction on the basis of her testimony alone. Learned counsel also pointed out that the medical evidence is against the prosecution case. PWs 1, 2 and 3 have a definite case that M.O.3 was the undergarment of PW1 which was used to wipe off the semen that fell on the body of PW1 and when PWs 2 and 3 saw the said undergarment, they had noticed semen on the same. Learned counsel drew the attention of this Court to the fact that M.O.3 was handed over to the investigating officer. There is no case for the prosecution that subsequent to the incident, M.O.3 had been washed. In fact, in the re-examination of PW1, prosecution seems to have developed its case that M.O.3 was the undergarment which was used for wiping off the semen on the body of the victim. Drawing attention to Ext.P11 FSL report, it was pointed out that the said report negatives the claim made by the prosecution that M.O.3 was the undergarment which was used to wipe off semen on the body of the victim and as per the report, M.O.3 contained no **Crl.Appeal No.439/2002** **6** semen or spermatozoa. 8. Referring to the evidence of PW5 the doctor who had examined PW1 and the certificate issued by the doctor namely, Ext.P2, it was pointed out that all that could be discerned from the certificate is that a scratch mark was seen on the right breast of the victim and nothing more. Going by the evidence of PWs 1 and 2, there were bite injuries on the breast of PW1 which is belied by Ext.P2 and the evidence of PW5. The evidence of PW5, according to the learned counsel, does not show that there was any sexual assault on the victim. Learned counsel conceded that it is true that in the medical evidence, it is stated that the vagina admitted two fingers. But there is no evidence either in Ext.P2 or in the testimony of PW5 to the effect that there is any sign of recent penetration which is absolutely essential to attract the offence under Section 376 IPC. 9. The evidence of PWs 2 and 3 are only hearsay evidence and they have only information as conveyed to them by PW1. Learned counsel for the appellant went on to point out that since the evidence of PW1 does not get support from the scientific **Crl.Appeal No.439/2002** **7** evidence and also from the medical evidence, it will be extremely hazardous to pass a conviction solely based on the testimony of PW1. If there is any doubt regarding the evidence of PW1, learned counsel pointed out that the same should go in favour of the accused. 10. Learned Public Prosecutor, on the other hand, tried to sustain the findings of the court below. It was pointed out by her that the evidence of PW1 is in tune with the First Information Statement and that is sufficient in law to warrant a conviction. It was also pointed out that in Ext.P2 certificate issued by PW5, the learned counsel mention of a scratch mark on the breast of the victim and that confirms the testimony given by PW1. Further it was pointed out that there is no suggestion to PW1 as to why she could falsely implicate the accused. 11. The court below, according to the learned Public Prosecutor, for convincing reasons, has chosen to accept the version given by PW1 and there is no reason to take a different view. In short, the contention is that there are no grounds to interfere with the conviction and sentence passed by the court **Crl.Appeal No.439/2002** **8** below. 12. It is well settled by now that in the cases of rape, the evidence of the prosecutrix is utmost importance and significance. It is difficult to get independent corroborative occurrence witness evidence as rape is always committed in secrecy. If the evidence of the prosecutrix is found to be convincing, cogent and reliable, the court can, without looking for corroborative evidence, confirm the conviction. If, on the other hand, it is felt that the evidence of the prosecutrix is open to suspicion, then the court has to look for other corroborative evidence. It is true that corroboration is not a rule of law. It is also well settled that the prosecutrix has the status of an injured person and her evidence is entitled to considerable weight. 13. Bearing the above principles in mind, an attempt shall now be made to evaluate the evidence in this case to ascertain whether the findings of the court below can be sustained. 14. PW1 is the victim in this case. She gives evidence regarding the incident which is also in tune with Ext.P1. However, her evidence show that she had bite marks on the **Crl.Appeal No.439/2002** **9** breast and also that semen which had fallen on her body as a result of the act committed by the accused was wiped off with M.O.3. She would say that while she was standing in the verandha of the house, the accused came there and forced her to the room and ravished her. PW3, who is a relative of the victim, would say that soon after the incident, PW1 came to her house and she had occasion to see semen on all over her body. She would also say that M.O.3 is the undergarment of PW1 which is alleged to have worn by her and which was used to wipe off semen on the body of the victim and she also saw stains of semen on the same. PW2, the mother of the victim, who came later to the house and who was told about the incident by PW3 also says having seen stains of semen on M.O.3. 15. PW5 is the doctor who had occasion to examine the victim on 24.03.1998 soon after the registration of the crime. Ext.P2 is the certificate issued by PW5. Going by Ext.P2, it is true that the doctor has noticed a scratch on the right breast of the victim and it also says that vagina admitted of two fingers. However, the certificate mentions that final opinion is reserved till **Crl.Appeal No.439/2002** **10** the receipt of chemical examination report of the samples of vaginal swab and smear that had taken during the examination of the victim. Surprisingly, there is no attempt either to obtain chemical report or to get final opinion from the doctor regarding the allegation of sexual assault. Therefore, the evidence of PW5 is not of much help. 16. Going by Ext.P11 which is the FSL report, it mentions that the objects examined scientifically in the lab did not reveal that they contained semen and spermatozoa. Therefore, the claim of the prosecution and as spoken to by PWs 1, 2 and 3 that M.O.3 was the undergarment which was used to wipe off semen found on the body of the victim stands belied. It will not be out of place to notice another fact. Soon after the First Information Statement was laid, a woman constable examined the body of the victim. It is significant to notice that no injuries were noticed by the woman constable on the body of the victim and it only mentions of having pain on the chest and private parts of the victim. 17. Learned counsel for the appellant, relying on the **Crl.Appeal No.439/2002** **11** decision of the Apex Court in _**Venkateshwarlu K.** vs._ _**State of Andhra Pradesh**_ (2012 KHC 4439), contended that in the said case also medical evidence belied the version given by the prosecutrix and that was sufficient according to the Apex Court to acquit the accused. A reading of the said decision shows that therein the accused was acquitted by the trial court and the acquittal was reversed by the High Court from which an appeal was filed before the Apex Court. It is also significant to notice that in the said case, the parents of the victim betrayed the prosecution and also that there was evidence to show that three of them namely, the victim and the parents had been detained number of days in the Police Station before the crime was registered. It was under that circumstance, the Apex Court found the evidence of the prosecutrix to be suspicious. Even though the facts in this case differ, some help can be drawn from the above decision and as in the above decision, here also the medical evidence does not corroborate with the version given by PW1. There was no attempt from the side of the prosecution to elicit from PW5 the doctor who had examined PW1 that either the **Crl.Appeal No.439/2002** **12** scratch mark noticed on the breast was a fresh injury or that there was any evidence of penetration. It is surprising to note that there is not even a suggestion at the time of examination in court that there was any evidence of recent sexual assault. 18. For the reasons best known to the prosecution as already stated, no report of chemical examination is obtained and so also the final opinion by the doctor PW5. Under these circumstances, it will not be proper to solely rely on the evidence of PW1 to come to the conclusion that offence of rape has been committed. However, it is evident that the accused had trespassed into the house of the victim and had tried to molest her. There is no reason to disbelieve PW1 to that extent. Therefore, at any rate, the offence under Section 354 IPC will be attracted. Thus, this Court is unable to confirm the findings of the court below that offence under Section 376 IPC is made out. However, the court below has rightly entered a finding that offence under Section 450 IPC is established. While confirming the conviction and sentence of the accused for the offence under **Crl.Appeal No.439/2002** **13** Section 450 IPC, the conviction and sentence for the offence under Section 376 IPC is set aside and instead he is found guilty of the offence under Section 354 IPC and he is sentenced to undergo rigorous imprisonment for a period of one year. Substantive sentences shall run concurrently. Set off as per law is allowed. The Crl.Appeal is disposed of as above. **P.BHAVADASAN JUDGE** smp