CRL.A/556/1999 of VINOD KUMAR,C.NO.6246,C.PRISON,KANNUR Vs STATE OF KERALA on 24 November 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MRS. JUSTICE K.HEMA

THURSDAY, THE 24TH NOVEMBER 2005 / 3RD AGRAHAYANA 1927

CRL.A.No. 556 of 1999()

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SC.47/1998 of ADDL.ASSISTANT SESSIONS COURT, PALAKKAD

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APPELLANT:

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VINOD KUMAR,CONVICT NO.6246,CENTRAL PRISON, KANNUR.

BY ADV. SRI.NIDHI BALACHANDRAN

RESPONDENTS:

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STATE OF KERALA.

BY PUBLIC PROSECUTOR SMT.P.DEEPTHI.

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD

ON 24.11.2005, THE COURT ON 24/11/2005 DELIVERED THE

FOLLOWING:

K.HEMA, J.

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CRL.A.NO.556 of 1999

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Dated this the 24th November, 2005 JUDGMENT

A 12 year old girl, while returning from the school at about4.30 p.m. on 20.10.1997, was alleged to be raped by the accused.She was forcibly removed to the bush nearby, ignoring the resistanceby keeping her moth closed and punching on her abdomen. The girlcried out and on hearing the sound of a pedestrian coming along theway, the accused leaft PW1 and ran away. Later, he was traced outby the uncle of the victim and the people of the locality, on the sameday and the police was informed and he was apprehended. He wastaken to the police station along with the victim and hergrand-mother. First information statement was recorded from PW1and a crime was registered and investigated into and a charge sheetwas laid against the appellant under Section 376 IPC. The prosecutionexamined PWs 1 to 12 and marked Exhibits P1 to P10 and MOs 1 and9. The accused did not adduce any evidence. He pleaded innocence.The court below, after analysing the case in detail found that thetestimony of PW1 is corroborated by medical evidence to hold thatrape was committed on PW1. Plea of denial by the accused wasrejected and he was found to be guilty of offence under Section 376IPC and he was sentenced to undergo seven years rigorousimprisonment and a fine of Rs.10,000/-, in default of which, toundergo simple imprisonment for eighteen months more. Theamount was ordered to be paid to the victim as compensation, ifrealised. The said conviction and sentence are challenged in thisappeal.

2. To prove the prosecution case the prosecution has examinedmainly PW1, the alleged victim, medical evidence etc. were placedbefore the court. PW1 gave evidence that on 20.10.1997 at about4.30 p.m. the incident occurred at a place called, Cherumkadu. Shewas studying in VIIIth standard at that time and she was proceeding toher house after the school while the accused came from the back sideand closed her mouth and beat her on her stomach. Though hewriggled out, he took her to the bushes, removed her panties and liedon top on her and did something and she cried aloud. She said that shewas raped and a person was coming on that way and on seeinghim the accused left her. She went to her house running and hergrand-mother was present there. Both of them came to theplace of occurrence. While she found her uncle coming, shedisclosed the incident to the uncle. Her uncle and other peoplesearched for the accused and they got him and the police wasinformed. PW1, her grand-mother and the accused were taken ina police jeep to the police station. Her statement was recorded fromthere and it is marked as Exhibit P1. She also stated that she hadsustained injuries by the act committed by the accused. Sheentrusted her dresses with her grand-mother which were given tothe police. MOs 1 and 2 were identified as the dress which theaccused had allegedly removed MO2 dress worn by the accused.

3. Though PW1 was cross-examined, nothing was broughtout to discredit her evidence. She specifically stated that she hadsustained injuries in the course of the incident. A suggestion was putto her that the accused was drunk on that day and that she had teasedhim and hence the accused beat her and both of them fell downand that is how she sustained injuries. This suggestion was denied bythe victim. An attempt was also made to convince the court that

PW2 was improving her version at the time of examination. It wasbrought out from her evidence that the fact that the specificallegation made by her regarding the rape and penetration was anomission in her statement to the police. It was admitted by PW1 thatshe told the police in the first information statement that theaccused did what is "forbidden" and she did not specifically statedabout penetration. A suggestion was made that no incident had takenplace and that she had an injury earlier and it was not from theaccused.

4. It is true that the alleged victim did not specifically statein Exhibit P1 first information statement with respect to penetration.The victim was aged only 12 years at the time of giving firstinformation statement. She was studying in VIIIth standard. Theembarrassment of a girl of her age, immediately after theincident within about two hours of the incident has to be understoodwhile assessing the worth of her evidence. She was taken to a policestation and she was made to give a statement to the Sub Inspector ofPolice. A girl of her age and for that matter, even a woman will find itextremely difficult to disclose in clear terms about the meticulousdetails about rape and specify the actual act of penetration. In theabove circumstances, I am of view that the mere fact that a victim ofrape did not speak specifically about penetration, cannot be made aground to hold that no rape was commited.

5. In my view, it is not necessary that the victim be forced tospeak regarding the actual act, with reference to the male or femaleorgan, penetratin etc. It has to be borne in mind that there are caseswhere even without examining the victim, especially in cases wherethere is rape and murder, the guilt can be proved by the prosecutioneven without examination of the alleged victim. It is not possible in

such cases to get the specific version regarding penetration and thedetails of rape from the mouth of the alleged victim. The state ofaffairs being so, it will be harsh and rude to make a victim of rapeto speak in minute details about penetration etc. which she may findit embarrassing to speak in a court in the presence of strangers.It is sufficient, therefore, if on the materials placed before the courtcan take a decision whether a rape was committed or not. If the courtcan infer from the evidence and circumstances, that it is a case ofsexual assault which involves penetration and sexual intercourse asdefined in Section 375 of IPC it wouold suffice to hold a person guilt ofan offence of rape. Only because the alleged victim did not speakregardeing the minute aspects with respect to the sexual act to thepolice in the first information statement, I am not inclined to discardthe evidence of the victim.

6. I am not inclined to disbelieve PW1 or hold that she gave animproved version before the court at the time of evidence with respectto the sexual act. The records reveal the most natural conduct of agirl aged 12 years. She has stated in Exhibit P1 that she was forciblytaken to bush nearby by the accused, she had forcibly removedher panties, he had also removed his pants and shirt, she was made tolie and thereafter he also lied on top of her and he did what is"forbidden" .

7. PW1 has deposed that the incident happened at about 4.30p.m. on 20.10.1997 and on the same day at 6.30 p.m. the firstinformation statement was recorded from her which is marked asExhibit P1. Such statement is seen to have been received in courton the next day at 3 p.m. The earliest version of the incident wasbefore the court within a few hours of the incident. The said versionhas been spoken to by PW1 while she was examined in court also. To

corroborate her evidence and to test the veracity of her evidence,medical evidence is also available in court. PW3 is the doctor whohas examined her. She has deposed that she was working as CivilSurgeon at District Hospital, Palakkad on 20.10.1997. She hadexamined the victim at 9.30 p.m. on that day. She has recorded theallegation given by her that she was raped. The evidence of thedoctor shows that the girl had not even attained puberty. The doctorexamined the victim and issued Exhibit P2 certificate. The details ofthe examination are as follows:

"Nail wounds and abrasions present overboth cheeks, upper and lower lips, chin and neck.Cloths sailed by mud. Lenian abrasions and nailwounds present over breast and chest. Publichair not developed. Blood stains present overpenninium and inner aspect of thigh Linneanabrasions over inner aspect of thigh and overboth knees. Unilia intact. Hymen torn off. Thereis a tear in the 5 `O' clock position involvingvagina and penninium and slight bleed present.Clots present over vagina. Vaginal tear presentin 5 `O' clock position. Canton over penninumpresent. Pen vaginal examination painful."

8. PW4 deposed that evidence of violence was present and there was signs of recent penetration. It was also deposed that tear in thehymen and vagina could be caused by forceful penetration. Inthe cross-examination the doctor asserted that the nail woundscannot be caused by fall. The doctor was not cross-examined tomake out that it was not a case of rape. The evidence of PW4 fullycorroborates the evidence of PW1 in all material aspects. PW1 had aspecific case that she was forcibly taken away by keeping her mouthshut and violence was used against her by the accused. There wasmark of violence including nail mark which could not be caused by afall. She had also stated that she had pain in the private parts

and injuries were also sustained by her which are all evidencefrom the wound certificate as well as the version given by thedoctor. There is absolutely no reason to disbelieve her evidence. Iam fully satisfied from the evidence of PW1 and the doctor that thevictim was raped by force.

9. Learned counsel for appellant submitted that there is noevidence to establish that the appellant was the offender and that hewas the person who had committed the act against the victim. Whilequestioning under Section 313 Cr.P.C., the accused stated that he wasgoing through the way, after drinking liquor while 15 to 20 personswere standing near a bush. They made enquiries when hedisclosed that he belonged to Bihar and that he was working inSurya Industry. The persons then told him that Hindi speakingpersons were creating nuisance to women and stating this, theydestroyed his watch and took away Rs.460/- from his pocket andhe was entrusted to the police from where he was taken to thepolice station.

10. The question is whether the plea of innocence can bebelieved or not. First of all, this is not a case where the accusedcould not be apprehended immediately after the incident. As per theevidence adduced in this case, the victim's uncle and people ofthe locality caught hold of the accused and he was handed over to thepolice immediately after the incident. PW1, the victim was alsopresent when he was handed over. PW1 identified the accused fromthe witness box. The victim had sufficient opportunity to see theaccused and identify him. The incident happened in broad day light.There was sufficient opportunity for the alleged victim to see thefeatures of the accused and identify him correctly. In fact she hadgiven evidence that the person who assaulted her sexually was a

Hindi speaking person and when she cried aloud, he was statingsomething in Hindi. If as a matter of fact an innocent person hadbeen caught hold by the people of the locality, she would havedefinitely brought to their notice about the mistake. But there is nosuch case for PW1. There is absolutely nothing to disbelieve PW1 inrespect of her evidence in identifying him at the time of occurrenceand immediately after the occurrence and thereafter at the PoliceStation and from the court also.

11. In addition to this, there is evidence of the police officialwho had arrested the accused from around the scene of occurrence.PW11 deposed that he was working as Sub Inspector of Policeduring the relevant time and when at about 5.30 p.m. on 20.10.1997he got information that a girl studying in the school near N.S.S.College was raped and that a person was apprehended by the peopleof the locality and on getting such information, he proceeded tothe spot. On reaching there, he saw the victim, her grand-motherand also a person who was speaking Hindi who was detained bythe people of the locality. On making enquiries, he was satisfiedthat rape was committed and immediately the accused, PW1 and hergrand-mother were taken to the Police Station in a jeep, from wherethe statement of PW1 was recorded. The evidence of PW1 also fullycorroborates the evidence of PW11. There is absolutely no reasonto discard the evidence of PW11. Though PW11 is a police official,nothing is brought out in his evidence to show that he had anymotive to falsely implicate the accused in this case. It is not broughtout in evidence in this case that any person was interested inimplicating an innocent person and for securing a conviction for theaccused. In such circumstances, I do not find any reason to hold thatthe version given by the accused that he was not the person involved.

12. However, learned counsel for the appellant submittedthat absence of injury has to be considered as a circumstance to holdthat the accused was not guilty of offence. It is true that the doctor,PW4, gave evidence that he had examined the accused on the sameday of the incident at 9.15 p.m. He had not stated anything withrespect to any injury on the private part of the accused. Exhibit P3 isthe wound certificate. But it does not contain any observationregarding the injuries. The doctor has given evidence that there isnothing to suggest that he is incapable of performing sexual act.However, it is not brought out from the medical evidence whetherinjuries are likely if a rape of this nature is committed by force on thevictim. If, as a matter of fact it is possible that injury could besustained in a rape as alleged, this fact could have been brought outfrom the doctors who are examined in this case. It is not understoodwhy such questions were not put to the doctors, while examinationin court. For the mere reason that no injury was found on theprivate parts of the accused, I cannot presume that no rape wascommitted. If a finding is entered on the basis of the argumentadvanced, I will be entering a finding on surmises and guesses. Thiscourt cannot make such conclusions without any evidence. In theabsence of this, I am not inclined to conclude that because of theabsence of injury, the accused has not committed the offence.

13. It was also strongly contended by the defence counsel thata material witness was not examined and hence there is noconclusive proof that the accused was involved in the offence. Theevidence of PW1 shows that her uncle and people of the locality hadgone in search of the accused and they had caught hold of theaccused. None of the witnesses of the locality were examined tospeak with respect to the actual manner in which the accused was

caught. But the evidence of PW11 is overwhelming on thisaspect. Immediately after the incident PW11 had gone to thespot and he had deposed that the accused was entrusted to him bythe people of the locality. PW1 was also present at the scene andboth of them were taken to the Police Station. In the abovecircumstances, the non-examination of any person from the locality tospeak about the circumstances under what the accused is taken intocustody is not fatal. It cannot lead to adverse inference. It is onlyin cases where the court is satisfied that a witness is withheld orkept away from examination in the court deliberately that anadverse inference can be drawn against the prosecution. In this casethere is nothing to show that the uncle of the victim was notexamined by the prosecution fearing that he would speak againstthe prosecution. It cannot be said that any of the witnesses wereheld back by the prosecution with any ulterior motive. In suchcircumstances, the mere non-examination of material witness andfurther material will not affect the prosecution case adversely.

14. I am satisfied that the court below has rightly convicted theaccused for offence under Section 376 IPC and the sentence awardedis not at all excessive. I am not inclined to interfere with thesentence passed.

The appeal is dismissed.

K.HEMA, JUDGE

vgs

K.HEMA, J. ------------------------------CRL.A.NO.556 OF 1999 ------------------------------

JUDGMENT

24.11.2005