Criminal Appeal No. 215 of 2004 · Kerala High Court · 2007

V. RAMKUMAR, J.- - - - - - - - - - - - - - - - -Crl. Appeal NO. 215 of 2004 - - - - - - - - - - - - - - - - DATED: 09-01-2007JUDGMENTIn this appeal filed by the accused in S.C. 154/2000 on the fileof the Assistant Sessions Court, Payyannur, for an offence punishableunder Sec. 376 I.P.C., he challenges the conviction entered and thesentence passed against him for the aforementioned offence. Theappellant was charge-sheeted by the Circle Inspector of Police,Alakkode.2.The case of the prosecution can be summarised asfollows:-On 21-10-1998 at about 8.50 a.m. from the lean-to of thehouse of P.W.1 bearing building No. IV/426 of Eruvassy Panchayaththe accused committed rape of P.W.1 aged 14 years who is theyounger sister of the wife of the accused. The accused has therebycommitted the offence of rape punishable under Sec. 376 I.P.C. 3. On the accused pleading not guilty to the charge framedagainst him by the court below for the aforementioned offence theprosecution was permitted to adduce evidence in support of its case.The prosecution altogether examined 11 witnesses as P.Ws 1 to 11and got marked 14 documents as Exts. P1 to P14 and 5 material Crl.A. 215/04-:2:-objects as MOs 1 to 5.4.After the close of the prosecution evidence, the accusedwas questioned under Sec. 313 (1)(b) Cr.P.C. with regard to theincriminating circumstances appearing against him in the evidence forthe prosecution. He denied those circumstances and maintained hisinnocence.5.Since the court below did not consider this a fit case forrecording an order of acquittal under Sec. 232 Cr.P.C. the accused wascalled upon to enter on his defence and to adduce any evidence whichhe might have in support thereof. The accused examined twowitnesses as DWs 1 and 2. 6.The learned Addl. Sessions Judge after trial, as perjudgment dated 17-10-2003 found the appellant guilty of the offencecharged against him and sentenced him to undergo rigorousimprisonment for 10 years and to pay a fine of Rs. 25,000/- and ondefault to pay the same, to undergo rigorous imprisonment for onemore year. It is the said judgment which is assailed in this appeal.7. I heard Advocate Sri. Gracious Kuriakose, the learnedcounsel appearing for the appellant and Adv. Sri. Sivakumar, thelearned Public Prosecutor who defended the State.8.The only point which arises for consideration in this appeal Crl.A. 215/04-:3:-is as to whether the conviction entered and the sentence passedagainst the appellant are sustainable or not ?THE POINT:9.What is unravelled by the oral and documentary evidenceadduced by the prosecution is the following:-P.W.1 (Bini) who was aged 20 years on the date of herexamination in Court on 4-3-2003, was the younger sister of the wifeof the accused. P.W.1 was then aged 14 years and studying in VIIIstandard. On 21-10- 1998 the mother (PW2) and elder sister ofP.W.1 left for Kannur in connection with a job for her elder sister. Ontheir way they saw the accused standing at Poopparamba junction.Seeing the accused there it instantly occurred to P.W.2 that P.W.1was alone in the house. P.W.2 sent a neighbour by name Shijo toher house to ask P.W.1 not to stay in the house but to immediately goto school. Shijo, came and told P.W.1 to go to School immediately.Accordingly P.W.1 closed the front door of the house and went to thelean to of the house for keeping the key. The accused who washiding near the door of the lean - to caught hold of P.W.1. draggedand pushed her into the lean - to. When she tried to cry he gaggedher mouth with his hand and inserted cloth into her mouth. She wasthen forcibly taken and laid on the floor after spreading the cloth Crl.A. 215/04-:4:-worn by the accused. He then rolled her skirt and petticoat up andafter removing her underwear he forcibly ravished her during thecourse of which he squeezed her breasts and bit her lips causing ableeding injury. There was blood on her skirt and petticoat and shesuffered excruciating pain. At about 4 p.m. when her motherreturned in the evening she narrated her traumatic experienceweeping. This in short is the occurrence.10.P.W.2 is the mother of the victim. 11.P.W.3 is an attester to Ext.P2 scene mahazar.12.P.W.4 is an attester to Ext.P3 seizure mahazar regardingthe dress of P.W.1.13.P.W.5 is a neighbour who had taken the girl to the hospital.14.P.W.6 is an attester to Ext.P4 seizure mahazar pertainingto the recovery of MO4 lungi of the accused.15.P.W.7 is the A.S.I. who registered Ext.P7 F.I.R. P.W.8 is adoctor who examined the accused and proved Ext.P8 potencycertificate. He also proved Ext.P10 wound certificate of P.W.1 issuedby the doctor who had examined her and who was not availableduring trial.16.P.W.9 is the Village Officer who proved Ext.P9 scene plan.17.P.W.10 is the headmaster of the School where P.W.1 was Crl.A. 215/04-:5:-studying and he proved Ext.P11 certificate to prove the age of thevictim.18.P.W. 11 is the Circle Inspector who conducted theinvestigation.19.D.W.2 is the accused himself. According to him he wasfalsely implicated by P.W.1 and others as he had caught her read-handed while she was having physical relationship with her lover.DW1 is the alleged lover of P.W.1. He, however, did not support theaccused.20.After an anxious consideration of the oral anddocumentary evidence of the case, I have no hesitation to hold thatthe conclusion reached by the court below is fully justified. The trialjudge who had the unique advantage of seeing the witnesses andassessing their credibility has chosen to believe the prosecutionwitnesses, particularly, P.W.1, the victim. I do not find any infirmityin the appreciation of evidence by the learned trial Judge. Theconviction was rightly entered against the appellant/accused.However, the sentence of rigorous imprisonment for 10 years wasslightly on the higher side. The appellant appears to have alreadyundergone imprisonment for 8 years and two months, I am of theview that the sentence of imprisonment for 8 years will suffice for the Crl.A. 215/04-:6:-offence committed by him. Accordingly, the sentence of imprisonmentis reduced from 10 years to 8 years. But the monetary portion of thesentence imposed by the court below, is, however, not interfere with. From out of the fine amount of Rs. 25,000/- as and realised, asum of Rs. 20,000/- shall be paid to P.W.1 by way of compensationunder Sec. 357 (1) Cr.p.C.This Crl. appeal is dismissed confirming the conviction butslightly modifying the sentence as above.V.Ramkumar,Judge.ani.