IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
MONDAY, THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940
CRL.A.No. 1244 of 2018
IN SC 37/2010 OF SPECIAL COURT UNDER POCSO ACT, KANNUR
IN CP 33/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
PAYYANNUR
CRIME NO. 683/2008 OF PAYYANNUR POLICE STATION, KANNUR
APPELLANT/S:
MAJEED, AGED 55 YEARS
S/O MOIDU, KOCHUTHARA HOUSE, PAYYANNUR AMSOM
KAVVAYI DESOM (NOW IN CENTRAL PRISON, KANNUR)
BY ADV. SRI.T.V.JAYAKUMAR NAMBOODIRI
RESPONDENT/S:
STATE OF KERALA
TO BE REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
BY SMT.AMBIKA DEVI S,
SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN
OTHER PRESENT:
SRI SANTHOSH PETER-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
CRL.A.No. 1244 of 2018
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JUDGMENT
The appellant herein challenges the conviction
and sentence against him under Section 376 of
the Indian Penal Code in SC No. 37 of 2010 of
the Court of Sessions, Thalassery. He faced
trial before the learned Special Judge for the
Trial of Offences against Women and Children,
Thalassery on the allegation that about 5.30
pm on 26.11.2008, he committed brutal rape on
a girl child of third standard, aged 8 years,
who was also his neighbour, at his house when
his wife and children were away.
2. The police registered the crime on the
complaint made by the victim’s mother on the
same day at about 10.30 pm. During
investigation, the victim was got examined by
a medical practitioner, and her statement was
also recorded by the learned magistrate under
Section 164 Cr.P.C. After completing
investigation, the police submitted final
report.
CRL.A.No. 1244 of 2018
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3. The accused entered appearance before the
learned trial judge and pleaded not guilty to
the charge framed against him. The prosecution
examined 14 witnesses in the trial court
including the victim, and proved Exts.P1 to
P20 documents. MO1 to MO7 material objects
were also identified.
4. The accused denied the incriminating
circumstance and projected a defence that this
is a false case foisted against him by the
mother of the victim for the reason that her
request to lend Rs.50,000/- was declined by
him on the ground that she is a woman of bad
character. The accused did not adduce any
evidence in defence.
5. On an appreciation of the evidence, the trial
court found a case of rape against the accused
and he was convicted. On conviction, he was
sentenced to undergo rigorous imprisonment for
ten years and to pay a fine of Rs.1,00,000/-.
The trial court also passed orders protecting
CRL.A.No. 1244 of 2018
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the interest of the minor victim and masking
her identity. Aggrieved by the said judgment
of conviction dated 27.06.2017, the accused
has come up in appeal.
6. On hearing both sides and on a perusal of
materials I find that a clear case of
attempted rape is well-proved in this case by
the evidence of the three witnesses including
the victim, though the evidence is not
satisfactory to prove a clear case of actual
rape.
7. The learned counsel for the appellant
submitted that what is proved against the
accused is only outrage of modesty under
Section 354 IPC. I do not agree. There is
clear evidence of sexual abuse or assault on
the victim by the accused. But, unfortunately,
the prosecution did not elicit, in clear
terms, as to what exactly was the nature of
the sexual assault made by the accused and
whether the accused had, in fact, caused
CRL.A.No. 1244 of 2018
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penetration constituting actual offence of
rape. The medical evidence given by the
doctor, who examined the girl, is also not
fully satisfactory to prove a case of actual
rape. But, the medical evidence well
convinces the court that the doctor had seen
signs of sexual assault.
8. Of the 14 witnesses examined in court, PW2 is
the victim of offence, and PW1 is her mother,
who made the complaint. PW3 is the brother of
the victim examined to prove a strong
circumstance. PW7 is the doctor, who
examined the victim after the incident, and
issued Ext.P6 medical certificate. There is
nothing to show that there was any flaw or
irregularity or illegality in the
investigation conducted by the police in this
case. The statement of the victim under
Section 164 Cr.P.C. was proved as Ext.P2.
9. The prosecution case is that when the victim
and her brother (PW3) reached the house of the
CRL.A.No. 1244 of 2018
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accused as asked by him, the accused sent the
brother to the shop for purchasing something,
and after that, the accused took the victim to
his house where there was no one else, and
despite the objection and resistance made by
the girl, he abused the girl sexually, and
satiated his lust on her. PW3 has stated in
evidence that he and his sister came at the
house of the accused as asked by him for
purchasing something from the shop, and he was
sent by the accused to the shop to purchase
some fruits. When he came back, he saw his
sister at the courtyard of the house with some
sweets in her hands. Thus, the evidence of PW3
proves a strong circumstance as to how the
victim happened to come to the house of the
accused.
10.Of course, PW1 has no direct knowledge about
the incident alleged. She made complaint on
the basis of the narration made by the victim
as to what really happened at the house of the
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accused. The incident happened at about 4.30
or 5 pm, and the mother saw the victim after
the incident at about 6 pm. Within the said
one hour, everything was narrated to the
mother by the victim when she asked the child
what happened to her, or when she noticed
something strange or unusual. Thus, without
any delay, everything that transpired at the
house of the accused was narrated by the girl
to the mother, as to what happened to her, and
how she was molested and abused sexually by
the accused. This evidence of the mother is
acceptable as res gestae evidence under
Section 6 of the Evidence Act. The medical
evidence given by PW7 is that when she
examined the victim at the hospital, she had
seen signs of some sexual assault. The hymen
was seen torn and the vagina admitted only the
tip of a finger. When asked by the defence
whether the doctor had noticed whether the
tear on the hymen was fresh or old, the doctor
CRL.A.No. 1244 of 2018
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could not say anything definitely. The doctor
has also explained that tear of hymen is
possible otherwise too. Here, it assumes
importance that the minute details of the
incident were not elicited by the prosecution
through the victim as to or how exactly the
accused molested and abused her sexually, or
whether the accused had, in fact, caused
penetration to constitute an offence of rape.
When the medical evidence is not certain on
the material aspects, and the child has also
not specifically or definitely stated whether
the accused had caused penetration, a clear
case of actual rape cannot be found by the
court.
11.The victim examined as PW2, has given clear
and definite evidence explaining the sexual
abuse made by the accused. Her evidence is
that after sending her brother to the shop,
the accused took her to his house where there
was nobody else, and she was molested by him
CRL.A.No. 1244 of 2018
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at the bedroom. The accused removed her dress
and when she cried, he gagged her mouth. After
doing everything, she was threatened not to
disclose things to anybody. The girl narrated
that the molestation was done by the accused
with his penis. He did something on her
vagina, but the girl did not specifically
explain or disclose whether the accused had
actually caused penetration. Anyway it is a
fact proved by the evidence of PW2 that the
accused had sexually molested or abused her,
and on this aspect, the evidence of the victim
is quite clear and convincing. I find no
reason to disbelieve the victim or to reject
her evidence. I find no reason to disbelieve
the mother who had retold what the daughter
said about the incident. I find no reason to
disbelieve PW3 who gave a strong circumstance
regarding the incident. The medical evidence
is also quite clear to convince or prove that
sexual abuse and molestation had happened on
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the victim. The victim is definite that it was
done by the accused.
12.As discussed above, a clear case of attempted
rape is well made out by the evidence though a
clear case of actual rape is not very much
proved by satisfactory evidence. The case on
facts is well proved by the evidence of PW1 to
PW3 corroborated by the medical evidence given
by PW7. Of course, it is true that signs of
spermatozoa were not seen on chemical
examination. Ext.P20 is the report of
analysis. The report shows that slight human
blood was detected on the shirt worn by the
victim at the time of incident. But, signs of
spermatozoa were not detected in any of the
items sent for analysis. It has come out in
evidence that after the incident, the victim
had taken bath, and the dress materials were
also washed. The accused must have also washed
everything after the incident. That is why on
his dress items also, signs of spermatozoa
CRL.A.No. 1244 of 2018
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could not be detected.
13.Though a clear case of actual rape is not
proved, I find that the accused had, in fact,
attempted rape on the victim at his house at
the evening when his wife and children were
away. The victim or her mother has no reason
to foist a false case against him. No mother
would use her daughter to create or foist such
a case, which would ultimately affect the
future of the girl. I find no blemish on the
prosecution case anywhere. In view of the
findings above, the accused is liable for
conviction under Section 376 read with Section
511 IPC.
14.The alleged incident happened in November,
2008 when the child was aged only 8 years. The
accused is her neighbour. As a neighbour and
also the father of two children, the accused
was bound morally to protect the victim, a
small girl of 8 years residing at his
neighbourhood. Instead, when he got
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opportunity, he molested and abused the small
girl sexually. He does not deserve any
sympathetic consideration in the matter of
sentence. For assessing the quantum of
sentence for attempted rape, the period of
sentence can be taken as 12 years. If so, the
maximum sentence would be imprisonment for ten
years. Anyway on a consideration of various
aspects, I find that rigorous imprisonment for
four years would be the reasonable and
adequate sentence in the present
circumstances.
In the result, this appeal is allowed in part.
The conviction against the appellant in SC No.
37 of 2010 of the Sessions Court, Thalassery
is confirmed subject to the alteration that
the conviction shall be under Section 376 read
with Section 511 IPC. Accordingly, the
substantive sentence imposed by the trial
court will stand altered to Section 376 read
with Section 511 IPC, and also modified and
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reduced to rigorous imprisonment for four
years. The fine sentence with the default
sentence thereon is maintained subject to the
alteration that it shall be under Section 376
read with Section 511 IPC.
Intimate the result of this appeal immediately
to the Central Jail where the appellant has
been undergoing sentence.
Sd/-
P.UBAID
JUDGE
Bka/-