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
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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
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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
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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
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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
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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
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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
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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
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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