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Surendran vs State Of Kerala on 27 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.UBAID

TUESDAY ,THE 27TH DAY OF NOVEMBER 2018 / 6TH AGRAHAYANA,
1940

Crl.Rev.Pet.No. 2995 of 2003

AGAINST THE ORDER/JUDGMENT IN CRA 44/1995 of ADDL.D.C.-II
MACT, MAVELIKKARA DATED 08-10-2003

AGAINST THE ORDER/JUDGMENT IN SC 40/1993 of SUB COURT,
MAVELIKKARA DATED 22-03-1995

REVISION PETITIONER/APPELLANT/ACCUSED:

SURENDRAN, VAZHANKERIL VEETTIL,
KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE.

BY ADVS.
SRI.PRASAD MATHEW
SMT.BEENA JOHN
SRI.SANAL.S
SRI.S.SANKARAN THAMPI
SRI.VIPIN NARAYAN

RESPONDENT/RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM – 682 031.

2 ADDL.R2 KANCHANA, AGED 43 YEARS
D/O.THANKAPPAN, KATTUANDATHIL, KARUVATTA NORTH,
KARUVATTA, ALAPPUZHA DISTRICT.
(ADDL. R2 IS IMPLEADED AS PER ORDER DATED
31/10/2018 IN CRL.M.A.NO.2/2018)

PUBLIC PROSECUTOR SRI. SANTHOSH PETER
SRI.VISHNU BABU

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 27.11.2018, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.Rev.Pet.No. 2995 of 2003
-2-

O R D E R

The revision petitioner herein is the

accused in S.C. No. 40 of 1993 of the Court of

Session, Alappuzha. He faced trial before the

learned Assistant Sessions Judge, Mavelikkara,

under Section 376 of the Indian Penal Code on the

allegation that at about 11.00 a.m. on 08.02.1992,

he trespassed into the house of a mentally retarded

girl aged 15 years when her parents were away, and

he subjected the said girl to sexual intercourse by

force and without her consent. The police

registered the crime on the complaint made by the

father of the girl. After investigation, the

police submitted final report in court.

2. The accused appeared before the

learned trial Judge, and pleaded not guilty to the

charge framed against him. The prosecution

examined 14 witnesses, including the victim, and
Crl.Rev.Pet.No. 2995 of 2003
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proved Exts.P1 to P12 documents in the trial court.

The MO1 to MO3 properties were also identified

during trial.

3. The accused denied the incriminating

circumstances when examined under Section 313

Cr.P.C., and projected a defence of total denial.

He did not adduce any oral evidence, but Ext.D1 was

marked on his side.

4. On an appreciation of the evidence,

the trial court found the accused guilty. On

conviction, he was sentenced to undergo rigorous

imprisonment for five years, and to pay a fine of

Rs.2,500/-.

5. Aggrieved by the judgment of

conviction dated 22.03.1995, the accused approached

the Court of Session, with Crl.A. No. 44 of 1995.

In appeal, the learned Additional Sessions

Judge(II), Mavelikkara, confirmed the conviction

and sentence, and accordingly, dismissed the
Crl.Rev.Pet.No. 2995 of 2003
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appeal. Now the accused is before this Court in

revision, challenging the legality and propriety of

the conviction and sentence.

6. When this revision petition came up

for final hearing, it was submitted from both sides

that the parties have come to terms amicably out of

court. The lower court records, including the

judgment of the trial court, reveal that the victim

is a mentally retarded girl. Her age was 15 years

in 1992. An affidavit was filed in court reporting

the settlement. To verify whether the victim is

competent to come to settlement, I directed

appearance of the victim and the accused in court.

On interaction with the victim, I could notice that

she is still having some degree of mental

retardation, and she is not fully normal. In such

a situation, the affidavit filed by her cannot be

accepted. However, her mother, who accompanied

her, submitted in court that they have come to
Crl.Rev.Pet.No. 2995 of 2003
-5-

settlement. The victim being a lady with mental

retardation, the settlement as such cannot be

accepted by the court. So, let me examine the

factual aspects and the evidence adduced.

7. PW1 examined in the trial court is the

victim of offence. When examined in court in

October 1994, her age was 17 years. It appears

that some voire dire test was made by the learned

trial Judge to verify whether the victim was

competent to give evidence. The learned trial

Judge recorded her evidence after finding that she

was competent to give evidence. She explained the

things that transpired at her house, and how she

was molested by the accused. Of course, it is seen

recorded by the learned trial Judge in the

deposition that during trial, the victim was seen

in some slightly abnormal condition, and when asked

about the crucial things regarding the offence

under Section 376 IPC, she was found laughing.
Crl.Rev.Pet.No. 2995 of 2003
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However, when examined in detail, the victim

explained the things, and told the court what

actually happened to her, or what the accused did

on her body, or how he molested her. Though she

was extensively cross examined by the defence,

nothing could be brought out to create any sort of

suspicion regarding her versions in court except

that the victim has some degree of mental

retardation.

8. Of course, it is true that there is no

direct evidence corroborating the evidence of the

victim. Her parents have given evidence regarding

the things that transpired at their house. They

have no reason to foist a false case against the

accused who is known to them very well. The victim

stated in court that the accused is a person of the

locality, and rather, a neighbour. The victim has

explained that she was molested by him when her

parents were away from the house. It appears that
Crl.Rev.Pet.No. 2995 of 2003
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the accused came there knowing that her parents

were away, and he had the intention to molest the

mentally retarded girl. On an evaluation of the

evidence given by the victim and other witnesses, I

find no reason for interference in revision on the

factual aspects, or the findings and the conviction

made by the courts below concurrently.

9. The alleged offence of rape stands

very well proved by the evidence of the victim,

supported by other circumstances and the evidence

of other witnesses. The scope of interference in

revision is very limited. When factual aspects are

clear and the evidence is acceptable, the

revisional court cannot make any sort of

interference. I find that the accused was rightly

convicted by the courts below.

10. Now the question of sentence. It

appears that the accused and the mother of the

victim have come to some sort of settlement though
Crl.Rev.Pet.No. 2995 of 2003
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the victim is not mentally matured enough to

consent for such a settlement. The alleged

unfortunate incident happened in 1992 when the

accused was at his prime age of 28 years. Of

course, he cannot find any excuse for molesting a

girl, or spoiling her life. 26 years have elapsed

since the date of incident. It is submitted that

the revision petitioner is now aged around 55

years, and he has wife and grown up children.

Besides jail sentence, the trial court has imposed

a nominal fine sentence of Rs.2,500/-, and the fine

amount is ordered to be given as compensation to

the victim. In the present circumstances, on a

consideration of all the relevant aspects, I find

that a substantial amount will have to be imposed

as fine, and the entire amount of fine can be given

to the victim as compensation. In lieu of such

modification, the term of jail sentence can be

reduced to a term of three years. The trial court
Crl.Rev.Pet.No. 2995 of 2003
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has already made a slight deviation in the matter

of sentence. Anyway, in the present circumstances,

I feel that some modification can be made by this

Court also so as to do justice to the victim by

payment of compensation.

In the result the conviction against the

revision petitioner under Section 376 IPC in

S.C.No. of 40 of 1993 of the court below is

confirmed, and the revision petition is disposed of

accordingly. However, the jail sentence imposed by

the court below will stand modified and reduced to

rigorous imprisonment for 30 (thirty) months. In

lieu of such modification, the amount of fine

imposed by the trial court will stand enhanced to

Rs.40,000/- (Rupees Forty Thousand only). In case

of default, the accused will have to undergo a

default sentence of rigorous imprisonment for two

years. If realised, the entire amount of fine

shall be given to the victim (PW1) as compensation
Crl.Rev.Pet.No. 2995 of 2003
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under Section 357(1)(b) Cr.P.C.. The amount of

fine shall be released to the victim directly if

she is found competent to receive the amount by the

trial court, or else, the amount can be released

to the mother of the victim on proper

identification. The revision petitioner will

surrender before the trial court within four weeks

from this date to serve out the modified sentence,

and to make payment of the fine amount

voluntarily, on failure of which steps shall be

taken by the trial court to enforce the modified

sentence, and realise the amount of fine, or

enforce the default sentence. He will be entitled

to get the benefit of set off as already ordered by

the trial court.

Sd/-

P.UBAID
ds 28.11.2018 JUDGE

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