Aji vs State Of Kerala

C.Pratheep Kumar, J.

This revision Petition is filed by the appellant in Crl.Appeal 1/2011 on the file of the Additional Sessions Judge-IV Thiruvananthapuram, against the judgment dated 14.10.2015, confirming the judgment of the Assistant Sessions Judge-I, Attingal in S.C.No.1557/2006 convicting him under Section 354 IPC.

The prosecution case is that on 18.10.2005 at about 7.00 a.m, the accused induced PW2, a 7 year old girl to his house, removed her dress and inserted his finger into her vagina and caused her to touch his penis.

The evidence in the case consists of the oral testimonies of PWs1 to 7 and Exts.P1 to P6. No evidence was adduced by the accused. After evaluating the evidence on record, the trial court found the accused guilty of the offence under Section 354 IPC and convicted and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, which was confirmed by the appellate court.

Aggrieved by the above judgment of the appellate court, the accused preferred this revision raising various grounds.

Now the point that arise for consideration is the following :-

Whether the impugned judgment of conviction and sentence passed by the trial court and confirmed by the appellate court calls for any interference in the light of the grounds raised in the revision petition ?

Heard both sides.

The point :- Smt.Santhy M., the learned counsel for the revision petitioner would argue that the prosecution has not succeeded in proving the charge against the accused beyond reasonable doubt. She therefore prayed for allowing the revision petition and for the acquittal of the accused. On the other hand, Smt.Maya M.N., the learned Public Prosecutor would argue that there is absolutely no grounds to disbelieve the evidence of PW2, the victim and therefore, she prayed for dismissing the revision petition.

PW1 is the mother of the victim who had given Ext.P1 FI statement with respect to the incident to the police. She would swear that on 18.10.2005, at about 5.00 a.m. she went for the job of coir manufacturing. She returned on that day at about 2.00 p.m. In the morning her 7 year old daughter went for purchasing milk from a nearby residence. When she returned, the accused who is a neighbour, called her and requested her to purchase cigarette for his use. When her daughter returned after purchasing cigarette, the accused took her to his house, locked the door, removed her dress and abused her. At about 5.00 p.m., while she was about to bath her daughter, she complained of pain on her private part and disclosed about the incident to her. When she removed her panties, it was full of blood. When PW1 was asked about the reason for the delay of two days in reporting the matter to the police, she clarified that she decided to report the matter to the police after consulting with her husband and other relatives.

PW2, the victim, deposed that on 18.10.2005, at about 7.00 a.m, she went for purchasing milk from a nearby residence. When she returned and reached near the house of the accused, he requested her to purchase a cigarette. He also gave her one rupee for purchasing sweets. When she returned after purchasing the cigarette, he invited her into his residence. When she entered the house, the accused raised her frock, removed her panties and touched on her vagina. Thereafter, he sat on the floor and asked her to touch on his penis and she did accordingly. To a question put by the court, she clarified that the accused inserted his finger into her vagina. She also deposed that at that time she felt pain in her private part.

PW4 was the Assistant Surgeon, Taluk hospital, Chirayinkeezhu. She would swear that on 20.10.2005, at about 4.45 pm, she had examined PW2 and issued Ext.P2 certificate. The alleged history given by the child to her was that one uncle by name Aji touched on her private part and caused her to touch on his private part on 18.10.2005. On examination, the hymen was found intact. According to her, there was no evidence of recent sexual act and no evidence of signs of resistance.

PW6 was the Sub Inspector of Police, Mangalapuram police station, who had arrested the accused and caused to conduct his potency test. PW7 was the sub inspector, Mangalapuram police station, who registered Ext.P4 FIR and prepared Ext.P5 scene mahazar.

The prosecution has mainly relied upon the evidence of PWs1 and 2 to prove the charge. Out of which, PW1 is the mother of the victim who has not seen the incident. Therefore, the crucial evidence available in this case is that of PW2, the victim. At the time of evidence, PW2 in clear terms deposed that the accused invited her into his residence, removed her dress and touched on her vagina and caused her to touch on his penis. She also deposed that the accused inserted his finger into her vagina and she felt pain. Though PW2 was examined in length, nothing material could be brought out to discredit her testimony. I do not find any grounds to disbelieve her testimony.

It was argued by the learned counsel for the revision petitioner that there is no medical evidence in support of the evidence of PW2. It is true that PW4, the Assistance Surgeon Taluk hospital, Chirayinkeezhu, deposed that on examination, hymen was found intact. She also deposed that there was no signs of recent sexual act and signs of any resistance. PW4 admitted that if the victim is examined after a delay of 56 hours, the scope of detection of pain and inflammation will be much less. In this context it is to be noted that the alleged incident was on 18.10.2005 at about 7.00 a.m while the victim was examined at 4.45 p.m. on 20.10.2005. She also deposed that if finger is inserted into vagina forcefully, there is chance for rupture of hymen. In this case the prosecution has no case that the accused used force for the commission of the offence. In the above circumstances, for the mere reason that when the child was examined by PW4 no pain or inflammation was detected, and hymen was found intact, it does not mean that there was no insertion of finger into the vagina. Therefore, it cannot be taken as a ground to disbelieve the evidence of PW2, who is a minor child of 7 years at the time of incident and 12 years at the time of examination, that the accused outraged her modesty.

During the examination of PW1, the suggestion put by the learned counsel for the accused was that there was enmity between himself and PW1 as her request to advance a sum of Rs.15,000/- was turned down by him. However, when the accused was examined under Section 313 Cr.P.C, his version was to the effect that PW1 requested for a loan of Rs.5000/- and since it was declined, she was on inimical terms with him. Apart from the above suggestion, there is no evidence to prove that PW1 had any animosity towards the accused so as to implicate him in such a heinous case.

On the other hand, at the time of evidence, PW1 deposed that she along with the wife of the accused, is doing the same job of coir manufacturing and also that on the date of incident, she returned along with the wife of the accused, from the place of work. She also deposed that the wife of the accused requested her not to complain against her husband and that was also a reason for the delay in reporting the matter to the police. Moreover, the evidence of Pws1 and 2 to the effect that in the morning on the date of incident the accused requested PW1 to purchase a cigarette for his use and that, accordingly PW1 purchased a cigarette and went to the the residence of the accused, was not disputed in cross-examination. Therefore, from the evidence of Pws1 and 2, it can be seen that there was no animosity between the accused and PW1 and as such there is no merits in the contention raised by the accused that he was falsely implicated to wreck vengeance against him.

As I have already noted above, there is absolutely no grounds to disbelieve the oral testimony of PW2 that on 18.10.2005, at about 7.00 a.m, the accused invited her to his residence and outraged her modesty, which is an offence punishable under Section 354 of IPC. Therefore, I do not find any irregularity or illegality in the finding of the trial court as well as the appellate court that the prosecution has succeeded in proving the offence under Section 354 IPC against the accused.

In this case, it is proved that the accused invited PW2, a minor child of 7 years into his residence, removed her dress and inserted his finger into her vagina and caused her to touch his penis. Though the offence charged is only under Section 354 IPC, it is an aggravated form of outraging the modesty of a woman and hence it is very serious in nature. In the above circumstances, the accused does not deserve any leniency. Therefore, the sentence imposed on the accused by the trial court and confirmed by the appellate court namely, rigorous imprisonment for two years and a fine of Rs.10,000/- is not at all excessive or exhorbitant. I do not find any grounds to interfere with the sentence also. In the above circumstances, this revision petition is liable to be dismissed. Point answered accordingly.

In the result, the Revision Petition is dismissed.