Radhakrishnan vs State of Kerala

P. Bhavadasan, J.—Faced with concurrent findings against the accused, this criminal revision petition has been preferred challenging the conviction and sentence for the offences punishable under Sections 450 and 376 of the Indian Penal Code. He was convicted for both the offences and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- and in default of payment of which to suffer simple imprisonment for a period of one year u/s 450 IPC and also sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for a period of one year for the offence u/s 376 IPC. The substantive sentences were directed to run concurrently. Set off as per law was allowed. PW1 is the victim in this case. Going by the prosecution allegations, she resides with her parents and she had put an end to her studies due to Epilepsy. On the date of the incident, i.e. on 03.09.1998, when her father had gone out for work and her mother had also gone for usual work and while PW1 was alone at him, the accused is alleged to have forced himself into the house and committed sexual assault on her. While the assault was going on, it appears that her father came and knocked at the door and when the door was opened, the accused ran out of the house. PW1 narrated what had transpired in the house to her father PW2. On the next day i.e. on 04.09.1998, PW1 along with her parents went to the Police Station and laid Ext. P1 complaint. Ext. P1 was recorded by PW12 who registered a crime as per Ext. P1(a) First Information Report. PW11 took over the investigation. In the meanwhile, PW1 had gone to the hospital and she was examined by PW6 doctor who issued Ext. P4 certificate. The investigating officer recorded the statement of witnesses and he had the accused arrested and sent him for potency test. He seized the dress worn by the victim and had the same sent for chemical examination and obtained Ext. P11 chemical analysis report. Scene mahazar was prepared and after completing the investigation, charge was laid before the court. The court before which final report was laid took cognizance of the offence. On finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad. The latter court made over the case to Assistant Sessions Court (Addl.), Palakkad for trial and disposal. The said court, on receipt of the records and on appearance of the accused, framed charges for the offences punishable under Sections 450 and 376 IPC. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution, therefore, had PWs1 to 14 examined and Exts. P1 to P11 marked.

After the close of the prosecution evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He came forward with a case that he was not in station at the relevant time and he was elsewhere. On finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. He examined DWs 1 and 2 and had Exts. D1 and D2 marked.

On an appreciation of the evidence in the case, the trial court came to the conclusion that the prosecution has succeeded in establishing the guilt of the accused and therefore, found the accused guilty of the offences under Sections 376 and 450 IPC and the conviction and sentence as already mentioned followed. Disappointed, the accused challenged the matter in appeal as Crl. Appeal No. 50/2003 before the Additional Sessions Court (Fast Track-II), Palakkad. The said court, on an independent evaluation of the evidence, found no reason to take a different view from that of the trial court and confirmed the conviction and sentence.

Learned counsel appearing for the revision petitioner assailed the findings on several grounds. It is pointed out by him that the evidence of PW1 would clearly show that Ext. P1 was laid after due deliberations as tutoring and as instructed by certain persons especially Rajan and Ramesh who, according to PW1, were throughout with her and her parents at the time of giving Ext. P1 First Information Statement. It is also pointed out that the evidence of PW1 would show that they also had read the First Information Statement and had approved the same and thereafter she had signed on the same.

Referring to the evidence of PWs1 and 2, it was contended that they stay in a thickly populated area with houses nearby and had an incident of the nature as alleged taken place, surely the neighbours would have come to know about the same. Attention was drawn to the fact that even as per the prosecution case, while the offensive act was being committed on PW1, PW2 the father of PW1 had come to the house and knocked at the door. On opening of the door, the accused is said to have ran out of the house. At least at that time, according to the learned counsel, neighbours would have noticed. But, strangely enough, no neighbours are seen examined either to prove that anybody had seen the accused going into the house of PW1 or coming out of her house. This shows that no such incident had taken place. It is also pointed out that there is delay in lodging the First Information Statement that shows falsity of the incident.

Referring to the evidence of PWs1 to 3, it was contended that they say that all the neighbours were at home on the relevant date as it was previous day to ''Thiruvonam'' and if that be so, the incident of a present nature would have been noticed by the neighbours. Referring to the evidence of PWs2 and 3, it is pointed out that they are extremely shy and reluctant to admit the presence of Ramesh and Rajan who, according to PW1, had gone along with her and parents to the Police Station and were throughout with them while giving Ext. P1 First Information Statement and when it was read over to them and also when she signed on it. The reluctance on the part of PWs2 and 3 to admit their presence shows that they had cooked up the incident and were trying to give it a colour of genuineness. It was then pointed out that except for saying that PW1 was raped, the ingredients necessary to attract the offence of rape are not mentioned in Ext. P1 and that lacuna has been overlooked by the courts below. Referring to the medical evidence, it was contended that from the evidence of the doctor namely, PW6 and the certificate Ext. P4, it can be seen that the victim was used to sexual intercourse and there is nothing to show that there was any fresh injury or bleeding on the date of the examination i.e. on the next day of the incident. The chemical analysis report namely, Ext. P11 shows that no semen or spermatozoa were detected in the undergarment. It was contended that these vital aspects clearly belie the claim made by PW1 that she had been sexually assaulted and they have not been considered by the courts below.

According to the learned counsel for the revision petitioner, Ext. P7 cannot be relied on to arrive at a conclusion regarding the date of birth of the victim. Admittedly, the name of the child was inserted after the incident as spoken to by PW9 and that affects the veracity of the document. In short, the learned counsel went on to point out that these vital aspects have not been considered by the courts below and these have a material bearing on the issues involved in the case and that would show that the story is false. It was also pointed out that the courts below have not considered the defence evidence in the proper perspective even though the plea of the accused is supported by Exts. D1 and D2. On this ground also, it is pointed out that the conviction and sentence are unsustainable.

Learned Public Prosecutor, on the other hand, reminded this Court that this Court is exercising its revisional jurisdiction which is considerably limited in scope and the Court can interfere with the findings of the courts below only if it is shown that there is any illegality, irregularity or impropriety in the findings. It is pointed out that unless it is shown that the findings are so perverse, merely because this Court may feel that a different view is possible, it is not a justification for interfering with the findings of the court below. Learned Public Prosecutor pointed out that there is no reason to disbelieve the evidence of PWs1 and 2 even though there may be some infirmities or inconsistencies in their evidence. That is bound to occur when the witnesses depose after a long time after the incident and it is imprudent on the part of the court to insist for mathematical precision. It is too difficult to believe, according to the learned Public Prosecutor, that a lady who is a minor would cook up such a false case which brings humiliation and permanent stigma to wreak vengeance against the accused. There is nothing to show that PW1 is giving a false story. The evidence of PW6 doctor who had examined the victim taken along with Ext. P4 certificate would show that there have not any vaginal penetration. Support to the prosecution case so is obtained from the reddishness and tenderness noticed in Ext. P4 certificate by the doctor. The reasons urged for discarding the medical evidence cannot be accepted.

Referring to Ext. P7 which shows the date of birth of the victim, it was contended by the learned Public Prosecutor that it was a true extract of the register kept by the local authority which is authentic and it is not challenged by the accused. Merely because the name of the child is seen inserted later that does not mean that Ext. P7 certificate is a suspicious document. There is no case that the parents shown in the document are not the parents of the victim. At any rate, according to the learned Public Prosecutor, a re-appreciation or re-evaluation of the evidence is not warranted and there is nothing to interfere with the findings of the courts below.

As rightly pointed out by the learned Public Prosecutor, this Court sitting in its revisional jurisdiction exercises a supervisory jurisdiction. It is considerably limited in scope and ambit. Unless it is shown that the findings are perverse and are contrary to the provisions, no interference is warranted. Both the courts below have chosen to accept the evidence of PWs1 and 2 and the doctor''s evidence and has come to the conclusion that there has been forceful sexual assault on PW1.

In Ext. P1, PW1 narrates the incident. She says that she was alone at home at the relevant time and she was dragged to the room of the southern side where the act was committed. It is true that the evidence of PWs1 and 2 do say that there are houses nearby and the inhabitants of the houses were there at the relevant time. One cannot omit to notice the evidence of PW1 to the effect that when she tried to raise alarm, she was gagged by the accused and that prevented her from letting out a cry. PW1 has also stated that while she was subjected to sexual intercourse, her father had arrived which made the accused run away from the place. The said testimony of PW1 gets sufficient corroboration at the hands of PW2, who is none other than the father of the victim. He would also say that after having returned from work, he knocked at the door of the house and it was opened and the accused ran out of the place. He then asked his daughter what had transpired and his daughter had told about the unfortunate incident. The suggestion to these witnesses is that PW2 had borrowed a sum of Rs. 2,500/- from the accused and when he sought return of the same, apart from refusing to return the money, he was threatened with dire consequences and that in order to wreak vengeance, a false case has been cooked up. Both denied the said suggestion. Even otherwise, it is extremely difficult to believe that to escape from returning money, such a case would be cooked up which only cause considerable stigma to PW1 which remains throughout the life of the victim. The suggestion to PW2 that he had utilised his daughter for mulcting such a case was totally denied. Whatever that be, there is no evidence to show that any such incident has taken place.

As rightly pointed out by the learned Public Prosecutor, the evidence of PW1 gets adequate support from the medical evidence also. The doctor namely, PW6 has no doubt stated that the victim is used to sexual intercourse. But there is no suggestion to PW6 that the penetration noticed by her is not of a recent origin or that there is nothing to show that PW1 has been recently ravished. On the other hand, the observation made in Ext. P4 certificate would suggest some violation recently on that part of the body. Therefore, it could not be said that the medical evidence is totally against the prosecution case. The contention that Ext. P1 does not graphically describe the incident does not help the prosecution at all. Merely because certain details are absent in Ext. P1, that by itself does not make the over all statement unacceptable. At any rate, no inconsistency or contradiction is shown in the evidence of PW1 that relates to the statement in Ext. P1. The incident spoken to by PW1 is almost the same as contained in Ext. P1 and therefore, it gets corroboration from Ext. P1 also.

As rightly pointed out by the learned Public Prosecutor, the contention based on Ext. P7 is baseless. There is no suggestion to PW2 that the name shown in Ext. P7 is not that of the victim or that the parents of PW1 do not have the names as shown in Ext. P7 and Ext. P7 is duly proved by PW9 a responsible officer of the local authority. Going by Ext. P7, the date of birth of PW1 is 13.11.1983.

The contention that Ext. P1 was laid after due deliberations and consultations and therefore it should not be given undue importance is also baseless. One has to remember that the victim and her parents hail from a lower state of the society and they need not know what to do when such a serious issue had arisen. In that state of affairs if they thought of taking advice from certain people, they cannot be found fault with. Of course, it is true that PWs 2 and 3 disown the association of two other persons made mention of by PW1 who, according to PW1, were throughout with them at the time of giving the First Information Statement. Merely because of this inconsistency, it may not be proper to jump to a conclusion that Ext. P1 is a manipulated document.

Both the courts below have considered the evidence in detail and had come to the conclusion that the offences are made out. Since no serious infirmities are pointed out in the findings of the courts below, interference in the revisional jurisdiction is not warranted. The conviction is only to stand. Coming to the sentence, as far as the offence u/s 376 IPC is concerned, only minimum sentence has been awarded. The trial court have been extremely considered the same and that also does not call for any interference.

In the result, the revision petition is without merit and it is accordingly dismissed.