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
CRL.A.No. 1244 of 2018
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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
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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/-