Criminal Revision Petition No. 113 of 2004 · Kerala High Court · 2012

N.K.BALAKRISHNAN, J.--------------------------------Crl.R.P. No.113 of 2004---------------------------------Dated this the 27th day of February 2012O R D E RThe concurrent verdict of conviction and sentencepassed against the accused for offences punishable undersections 343 and 376 of IPC are challenged in this revisionpetition.2.PW1 the victim girl who is the cousin of theaccused/revision petitioner was proceeding to the placewhere her mother had gone for work. The house of theaccused was on the way. When she reached near the houseof the accused, she was invited by the accused to his house.Accepting it she went to his house. He was alone theresince his parents had been to Thiruvananthapuram. It wasalleged that the accused then took her to the room insideand removed her cloths. Though PW1 attempted to screamshe was prevented from doing so. The accused thereafter, Crl.R.P. No.113 of 2004-: 2 :-had sexual intercourse with her. According to theprosecution, the accused thereafter went out of the houselocking the door from outside and he returned to the houseat night and so she was wrongfully confined in that house.Further case of the prosecution is that the accused returnedat night and thereafter, he again had sexual intercoursewith PW1 during that night and also on 5.4.1995 during dayand night. In the morning of 6.4.1995, the accused, in orderto take her to her house, took her to a place/way near herhouse. She then narrated the incident to PW2, a neighbour.That neighbour conveyed the message to PW8, the motherof PW1. The case of the prosecution is that they went to thesociety/organisation of their community and thereafter, theywent to Vellamunda Police Station. Exhibit P1, thestatement given by PW1 was recorded by PW9, the headconstable, based on which the FIR was registered.Investigation was conducted by PW10. It was continued byPW11 and the charge sheet was laid by him. Crl.R.P. No.113 of 2004-: 3 :-3.The Assistant Sessions Judge accepted theevidence given by PW1 and other circumstances to holdthat the accused had sexual intercourse with PW1 withouther consent and against her will. It was further found thatat the time of the incident, PW1 was aged only 13 years. Inappeal, the Additional Sessions Judge re-appreciated theevidence and concurred with the findings entered by thetrial Court.4.The learned counsel for the revision petitionersubmits that the trial Court as well as the appellate Courtdid not consider the fact that the evidence andcircumstance would prove that, if at all the accused hadsexual intercourse with PW1, it was had with her free andconsent voluntarily given by PW1 who is none other thanthe cousin of PW1 (The accused is admittedly the son ofPW1's father's elder sister). It is not disputed that themarriage between cousins is permissible as per the customprevailing in that community. It is also contended that the Crl.R.P. No.113 of 2004-: 4 :-circumstances would show that as the father and mother ofthe accused had gone to Thiruvananthapuram and as theaccused alone was in that house, PW1 might have beeninformed by the accused that it was the ideal time for themto meet and join and it was thus PW1 happened to go to thathouse. It was further submitted by the learned counsel forthe petitioner that though PW1 stated that she was agedonly 13 years at the time of incident that was proved to befactually incorrect. According to PW1 the incident tookplace when she was studying in the 8th standard. Accordingto the defence, PW1 was aged more than 16 years at thetime of the incident.5.Learned Public Prosecutor submits that theevidence given by PW1 that at the time of incident she wasaged only 13 years stands corroborated by the evidencegiven by her mother (PW8) and it is supported by theevidence given by PW6, the Head Master who has provedExt.P6. Similarly, the evidence given by PW1 that the Crl.R.P. No.113 of 2004-: 5 :-accused had sexual intercourse with PW1 on 4.4.1995 and5.4.1995 cannot be doubted at all. The petticoat which wasworn by her at the time of incident which was seized by thepolice contained stains of human sperm and spermatozoa.The further fact that on 6.4.1995 she told the neighbour andthereafter to her mother that the accused had sexualintercourse with her also would lend assurance to the saidversion given by PW1. It is true that the doctor whoexamined PW1 could not be examined but the certificate ofexamination issued by that doctor was proved through PW5who proved Ext.P5. Though the doctor who had examinedthe victim has noted her age as 13 years that could havebeen only based on the statement given to him by PW1. Noother test was conducted to determine the age. Whateverthat be, the fact remains that the evidence given by PW1that the accused had sexual intercourse with her cannot bedoubted. The finding regarding that aspect has to beconfirmed. Crl.R.P. No.113 of 2004-: 6 :-6.The main plank of the defence raised by thelearned counsel for the petitioner is that the circumstanceswould clearly establish that the sexual intercourse was hadwith her full and voluntary consent. It is pointed out thatthough PW1 says that she was threatened by the accusedafter he left the house, even if it was locked from outside,there was no difficulty for PW1 to invite the attention of theneighbours. There is evidence to show that there is a publicwell which is just 7 metres away from the scene house.Admittedly she did not make any alarm or scream nor didshe cry aloud for the help of the neighbours or of personswho had been to that well for collecting water. It waspossible because admittedly the accused gone out andreturned only during late in the evening. There was a longgap of about 8 hours. During that time she could haveinvited the attention of others by calling them or by makingalarm. 7.The learned counsel submits that the Crl.R.P. No.113 of 2004-: 7 :-investigating officer who prepared the scene mahazar couldnot note that the outer door of the kitchen could be lockedfrom outside. There was no lock for the door of the roomwhere from the accused was stated to have had sexualintercourse with PW1. That door was leading to thekitchen. If the kitchen room could not be locked fromoutside, there could be no difficulty for PW1 to leave thatroom after it was ensured that the accused was no wherenear the scene. The same was the position on the next dayie; on 5.4.1995 also. PW1 wanted the court to believe thatbecause the accused threatened that she would be killed ifshe made any alarm. She did not make any alarm. It is toohard to be digested. The further fact is that according toPW1 she was not allowed to go out for passing urine or todefecate. There were no indications of the victim havingurinated or defecated inside the house. Admittedly therewas no latrine inside the house. According to her, on4.4.1995 and 5.4.1995 and till she reached the house, she Crl.R.P. No.113 of 2004-: 8 :-did not go at all out to attend the natural calls. That aspectalso adds incredibility to the story told by PW1. It is alsoworthwhile to note that according to PW1, she was notgiven any food or water till the morning of 6.4.1995. PW8did not say that PW1 was seen completely fatigue or tirednor was it noted by PW9 or by the doctor. Normally it couldnot have been so. Therefore, those aspects also would showthat she was not locked from outside and that she couldattend the natural calls during normal hours without anyhindrance. The cumulative effect of all these aspects,according to the learned counsel would unhesitatingly provethat she was a consenting party and that she remained inthe house with full will and volition presumably because theaccused is her cousin. Both of them made use of theopportunity as the parents of the accused were away onthose days. The learned counsel submits that PW1 and theaccused were in love and she thought that she would bemarried by the accused and only because the accused Crl.R.P. No.113 of 2004-: 9 :-seems to have betrayed, she and her mother thought offiling the complaint. Be that as it may, there is no elementof doubt with regard to the case spoken to by PW1regarding the absence of consent. The circumstanceshighlighted above do persuade me to hold that she had fullyconsented to have sexual intercourse.8.As it is found that the sexual intercourse was hadnot against her will or consent, then the question would bewhether she was aged less than 16 years at the relevanttime. PW8, the mother has frankly admitted that she doesnot know the year when PW1 was born. They are rusticvillagers, belonging to Scheduled Caste. The presumptionthat the girl must have been admitted to school on herattainment the age of 5 cannot in such circumstances bedrawn, especially because children of the backwardcommunity especially of Scheduled Caste are admitted toschool at a later age also. It is also in evidence that PW1had failed in 5th standard. If that is taken, the age spoken to Crl.R.P. No.113 of 2004-: 10 :-by PWs.1, 8 and 6 cannot be true. It is also pointed out bythe learned counsel that according to PW6, the girl hadstudied up to 10th standard. Going by the evidence given byPW1 she had appeared in the SSLC examination in 1997.That cannot be correct. Learned counsel submits that thereis irreconcilability in it. As admittedly PW1 had failed in the5th standard, even if she has admitted after she had attained5 years of age, she could not have been appeared for theSSLC examination in 1997. She could have completed her10th standard only after 16 years. Ofcourse, even then theremay be slight difference in the age. The fact remains thatPW8 does not know at what age PW1 was admitted in the 1ststandard nor does she know the year of birth of PW1. Theevidence given by PW6, the Head Master based on Ext.P6may be otherwise admissible. Ext.P6 is the extract of theadmission register but if there is dispute as to the age whenthe pupil was admitted to school, then in the absence of anyother document it may be difficult to accept the age shown Crl.R.P. No.113 of 2004-: 11 :-in Ext.P6. No document showing the age was producedwhen PW1 was admitted to school. PW8, her mother doesnot know the year of birth of PW1. Therefore, the entry inExt.P6 was not made, based on any authentic information.There is irreconcilability in the evidence regarding the agefactor. PW1 could not have attended SSLC examination in1997 especially when she had failed in the 5th standard.Therefore all these aspects, according to the defence, wouldclearly show that the age given by PW1 and PW8 that at thetime of commission of offence PW1 was 13 years can neverbe accepted. It is pointed out by the learned counsel for thepetitioner that when PW1 was examined on 1.12.1998 shehad already been given in marriage and that she was thenpregnant. Therefore, the learned counsel submits that themarriage must have been after her attainment of 18 yearsand since PW1 was married about 8 months prior to1.12.1998 as admitted by PW1, she must have crossed 16years in 1995. Learned Public Prosecutor submits that it Crl.R.P. No.113 of 2004-: 12 :-cannot be assumed that at the time when PW1 was marriedshe had crossed 18 years since in such backward areas,girls belonging to such communities are given in marriageeven before attainment of 18 years. Though theprosecution may be justified in its contention that even ifPW1 was aged more than 13 years, it cannot be below 16years. The learned counsel for the petitioner submits thatsince it is the duty of the prosecution to prove that the girlwas aged less than 16 years the accused cannot be foundguilty on such mere assumptions. Much reliance cannot beplaced on the date of birth shown in Ext.P6 since the factorsmentioned earlier are seen to be irreconcilable. As it isdifficult to accept the age as spoken to by PWs.1, 8 and 6,the benefit of reasonable doubt is to be given to theaccused.9.Since the evidence would show that the case ofthe prosecution that accused had sexual intercourse withPW1 against her will or without her consent is Crl.R.P. No.113 of 2004-: 13 :-unsustainable and that the evidence would show that thecase of the prosecution that PW1 was 13 years or less than16 years is highly doubtful, the benefit of reasonable doubthas to be given to the petitioner. Hence, the conviction andsentence passed against the petitioner are set aside. He isacquitted of the offences charged against him. He is set atliberty.This Crl.R.P. is allowed as above. N.K.BALAKRISHNAN, JUDGE.Jvt/JJJ