Ravi @ Raveendran vs State Of Kerala

Dr. Kauser Edappagath, J

This appeal has been preferred by the accused in S.C. No. 358/2016 on the file of the Additional District and Sessions Court (for the trial of cases relating to Atrocities & Sexual violence against women and children), Ernakulam (for short, 'the court below') challenging the judgment of conviction and sentence dated 27/01/2017.

The accused faced trial for the offences punishable under Sections 450, 342 and 376(2)(l) of IPC.

The victim is a mentally retarded girl aged 27 years and the accused is her immediate neighbour. The prosecution case in short is that, on 19/12/2015, while the victim was washing clothes at the backyard of her house at Malayattur village, the accused with the intention of committing rape, trespassed into her house, shut her mouth, dragged her to the bathroom and committed sexual assault on her.

The  crime  was  registered  on  the  basis  of  Ext.P4 statement given by the father of the victim to the Sub Inspector of Police, Kalady. After completing the investigation, the final report was filed at the JFCM, Kalady and the learned Magistrate has committed the case to the Sessions Court which was later made over to the Court below for trial and disposal.

The accused was on remand ever since his arrest. He was produced at the court below. After hearing both sides, the court below framed charge against him under Sections 450, 342 and 376(2)(l) of IPC. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PW1 to PW12, marked Exts. P1 to P17 and MO1 to MO7 got identified. No defence evidence was adduced. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Sections 450 and 376(2)(l) of IPC and he was convicted for the said offences. He was found not guilty for the offence punishable under Section 342 of IPC and he was acquitted for the said offence. He was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ₹10,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 450 of IPC and to undergo rigorous imprisonment for ten years and to pay a fine of ₹20,000/-, in default to suffer rigorous imprisonment for one year for the offence punishable under Section 376(2)(l) of IPC. Challenging the said conviction and sentence, this appeal has been preferred.

Since the appellant is not represented by a lawyer, this court appointed Sri.Deepak B. as crown counsel. I place on record the appreciation for the able assistance rendered by him.

I have heard Sri.Deepak B., the learned counsel appearing for the appellant and Smt. Bindu O.V., the learned Public Prosecutor.

The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and the resultant finding as to the guilt. The counsel submitted that the conviction is based on the uncorroborated testimony of the victim which suffers from contradictions and omissions. The prosecution miserably failed to prove the guilt of the accused beyond reasonable doubt, argued the counsel. Per contra, the learned Public Prosecutor supported the findings and verdict handed down by the court below and argued that the prosecution has succeeded in proving the case beyond reasonable doubt.

The prosecution mainly relied on the evidence of PW1, PW4, PW6 and PW12 to prove the incident and to fix the culpability on the accused. PW1 is the victim and PW6 is her mother. PW4 is father of the victim who gave Ext. P4 Statement. PW 12 is the doctor who examined the victim and issued Ext. P17 medical certificate.

PW1, the victim, deposed that the accused is her immediate neighbour and on one day at about 12 noon, when she was washing clothes at the backyard of her house, the accused trespassed into their property, shut her mouth, dragged her to the bathroom, forcibly removed her dress, sucked her breast and bit on her vagina. She further deposed that when she cried and bit on the shoulder of the accused, he left the place by jumping the compound wall. She further deposed that, all these acts were committed while she was alone in her house when her parents went for their work. She also deposed that, she revealed the entire incident to her mother at 1.00 p.m. on the same day itself, when her mother came home for taking lunch.

PW6,  the  mother  of  the  victim  deposed  that,  on 19/12/2015, when she came home from the vegetable shop of PW4 for taking lunch, PW1 told her about the sexual assault committed by the accused. She deposed that, PW1 complained that neighbour Ravi came and shut her mouth, dragged her to the bathroom, removed her dresses, bit on her breast and vagina and inserted his fingers into her vagina. She had produced MO1 to MO4 dresses of the victim to the police.

PW4, the father of the victim deposed that on 19/12/2015, when his wife came back to the shop at noon, she narrated the sexual assault committed by the accused on their daughter. He further deposed that, he went to the police station on the same day itself and gave Ext.P4 FI statement.

PW12 is the doctor, who examined PW1 on 20/12/2015 and issued Ext. P17 certificate. On examination, she could find fresh hymen tear in 12’O clock and 6’O clock position. She deposed that vagina admitted one finger loose and there was evidence of penetrative sexual assault.

I have perused the evidence of PW1 meticulously. Even though she was cross-examined by the learned counsel for the accused, nothing tangible could be extracted from her testimony to create any shadow of doubt that she is not a truthful witness. She clearly deposed the manner in which the accused committed sexual assault on her. She gave a reliable, consistent, and credible version of the crime which inspires confidence. In the chief examination, she clearly deposed that the accused shut her mouth, dragged her to the bathroom, forcibly removed her dress, sucked her breast and bit on her vagina. It was not successfully challenged in cross-examination.

It is settled that, the evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. The learned counsel for the accused submitted that the conviction was based on the sole evidence of the victim and no occurrence witness was examined. In State of Himachal Pradesh v. Asha Ram (AIR 2006 SC 381), it was held that it is well within the limits to rest a conviction based on the sole testimony of the victim, whose evidence is more reliable than that of injured witness. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384], the Apex court took the view that in cases involving sexual molestation, even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. It was further held that, the courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. The sexual assault took place at the house of the victim when there was nobody at the house. Thus, there cannot be an independent witness. The evidence of the victim is found to be genuine, credible and reliable. That apart, the evidence of PW6, the mother of the victim would show that, the victim complained of and narrated the entire incident to her immediately after the incident when she came back to the home. There is nothing to doubt the said evidence given by PW6. The conduct of the victim in complaining to her mother about the sexual assault made by the accused immediately after the incident is relevant and can be received in evidence under Section 8 of the Indian Evidence Act since it constitutes subsequent conduct of the victim.

The oral evidence of PW1 gets corroboration from the medical evidence submitted by the prosecution through PW12 and Ext.P17. The evidence of PW12 and Ext.P17 would show that, there is a fresh hymen tear in 12’O clock and 6’O clock position and vagina admits one finger loose. She clearly deposed that there is evidence of penetrative sexual assault.

The learned counsel for the appellant further submitted that even if any sexual act has taken place, the same is done with the consent of the victim. But to substantiate the said plea, there is no convincing evidence. On the other hand, PW3, the doctor who examined the accused and issued Ext.P3 certificate found 4 teeth bite marks on the left shoulder of the accused and noted the same in Ext. P3. She further deposed that, “when asked, accused told her that, he was bitten by a lady”.

The prosecution evidence clearly establishes that the accused with intention to commit rape of the victim, trespassed into her house and committed rape on her. The evidence of PW2, the doctor who examined the victim, would prove that the victim was a mentally retarded person. Hence, the prosecution has succeeded in establishing that the accused has committed the offence punishable under Sections 450 and 376(2)(l) of IPC.

What remains is the sentence. The court below sentenced the accused to undergo rigorous imprisonment for ten years and to pay a fine of ₹10,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 450 of IPC and to undergo rigorous imprisonment for ten years and to pay a fine of ₹20,000/-, in default to suffer rigorous imprisonment for one year for the offence punishable under Section 376(2)(l) of IPC. This is a case where the accused sexually assaulted a mentally retarded woman. Considering the entire facts and circumstances of the case, I am of the view that the sentence imposed by the Court below is absolutely reasonable. Accordingly, this criminal appeal stands dismissed.