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1992 DIGILAW 430 (KER)

Anil Kumar v. State of Kerala

1992-11-09

CHETTUR SANKARAN NAIR

body1992
JUDGMENT Chettur Sankaran Nair, J. The appellant stands convicted of offences under S.342, 506, 376 and 307 I.P.C., on a charge that at or about 2 p.m. on 21st April 1990, he wrongfully confined PW. 1 in a bath room, intimidated her, committed rape on her and attempted to murder her by putting her in a well. Under the first count, he was sentenced to rigorous imprisonment for three months, under the second to imprisonment for two years, under the third to imprisonment for nine years, and under the last to imprisonment for four years. Appellant challenges the conviction, as unsupported by reliable legal evidence. 2. PW. 1, aged around sixteen was working as a maid-servant in the house of one Ganga sister of appellant. While Ganga was away, it is said that appellant approached PW. 1, clasped her hands and entreated her 'to give herself to him'. She repelled his overtures, and went her way. In a short while, Ganga came and PW. 1 addressed here self to her daily chores. While she was drawing water from a well standing inside a bath room, it is said that the appellant entered the room, bolted the doors from inside and intimidated PW. 1, stating that he would do away with her, if she did not yield to him. She states that dumb with fear, she took off her skirt and blouse. Appellant made her lay down and effected penetration and she cried out in pain. Unabated appellant adhered to his design and after a while when done with, PW. 1, threatened the appellant that she will divulge his doings to his sister, Ganga. Appellant flew into a rage, lifted PW. 1 and put her in the well. When she raised a hue and cry, PWs. 2, 4 and others came to the well, found her, rescued her and took her to the hospital in the charge of PW. 7. PW. 7 (Dr. Mohandas) made an external examination and sent Ext. P-6 intimation, to the police. Later, for a gynaecological examination, she was sent to PW. 8 Doctor, who issued Ext. P-7 wound certificate. Acting on Ext. P-6 .intimation, PW. 11 registered Ext. P-l (a) first information report, and PW. 12 - Circle Inspector of Police, conducted the investigation. In due course, a charge sheet was filed. This, in brief is the prosecution case. 3. Later, for a gynaecological examination, she was sent to PW. 8 Doctor, who issued Ext. P-7 wound certificate. Acting on Ext. P-6 .intimation, PW. 11 registered Ext. P-l (a) first information report, and PW. 12 - Circle Inspector of Police, conducted the investigation. In due course, a charge sheet was filed. This, in brief is the prosecution case. 3. The defence of appellant in his statement under S.313 of the Code, was that the charge was foisted on him, and that he was away at Thrissur to see a football match at the material time. 4. Accepting the prosecution evidence, the court below found the charge. PW. 1 speaks to the case as noticed hereinbefore. PWs. 2 and 4 would say that when they went near the well attracted by the cries of PW. 1, they saw her inside the well, that she was rescued with the help of a rope, and taken to the hospital. PW. 4 would add that when he saw her, she had only a chemise, and that she wore a blouse only after reaching the hospital, whether she was taken in an unconscious state. PWs. 3 and 4 would also say that after gaining consciousness from the hospital, PW. 1 stated that she was raped by the appellant. Ext. P-12 certificate of chemical examination would reveal that the chemise worn by PW. 1 at the material time, was found stained with seminal plasma. 5. Learned counsel for appellant would submit that the evidence does not establish the charges, that the case of rape was a subsequent refinement, that the absence of vaginal injuries would militate against the case of rape, that the absence of appellant in the closed bath room which had to be broken, open, would suggest that he was not on the scene, and that in the absence of satisfactory evidence 1 of penetration, the charge under S.376 cannot stand. 6. The first information report was registered after PW. 1 regained consciousness and upon PW. 7 Doctor sending an intimation to the police, within twelve-hours of the occurrence. According to PW. 7, the Prosecutrix was under great mental stress and in a disoriented state. Yet, f the first information statement contained clear allegation of rape. The first information report reached the court without delay. 1 regained consciousness and upon PW. 7 Doctor sending an intimation to the police, within twelve-hours of the occurrence. According to PW. 7, the Prosecutrix was under great mental stress and in a disoriented state. Yet, f the first information statement contained clear allegation of rape. The first information report reached the court without delay. It was- recorded around midnight on Saturday, Sunday was a holiday, and the F.I.R. reached the Magistrate at 10-30 a.m. on Monday. The statement in the first information report made not long after the occurrence and perhaps before the prosecutrix could gather her faculties together, accords fully with her version in the court. Prompt despatch of the first information report reinforces its authenticity. Thus there is no reason to discard the evidence of PW. 1, which receives corroboration from the earliest statement, made at a time when frills and embroidery could not be expected. In other broad aspects also her evidence receives reassuring corroboration, from independent witnesses and unimpeachable circumstances. For example, PW. 2 who was certainly not a witness friendly to the prosecution, states that PW. 1 was found in the well. This corroborates the prosecution case, in one of its vital details, namely that PW. 1 was thrown into a well. Significantly, and providing further corroboration, PW. 4 states that PW. 1 was in a state of undress, wearing only a chemise while seen in the well. This is further corroborated by the evidence of the Doctor PW. 7, who has no axe to grind against the accused. He states that when he examined PW. 1 she was wearing only a chemise and that she had no skirt or blouse or other wearing apparel. That, normally is not the state in which a young girl of PW. 1's age, goes to a hospital. These circumstances corroborate the evidence of PW. 1, warp and woof and lend such assurance of reliability, as is necessary to commend acceptance. The contention that there is no reliable evidence to support the charge, has only to be rejected. 7. Notwithstanding that, counsel for appellant highlighted certain circumstances which according to him, erode the evidentiary value of the prosecution case. He would submit that the only door of the bath room where the incident is alleged to have taken place, was found bolted from inside when PWs. 7. Notwithstanding that, counsel for appellant highlighted certain circumstances which according to him, erode the evidentiary value of the prosecution case. He would submit that the only door of the bath room where the incident is alleged to have taken place, was found bolted from inside when PWs. 2, 4 and others reached the scene, and that it had to be broken open. When it was broken open, appellant was not inside. From this, it is argued that the appellant would not have been present at the scene. At the first blush, the argument is attractive, though not on deeper scrutiny. There was an opening in the wall 90 cms. x 39 cms. on its south and there was a window, or an approximation of a window, 107x60 cms. on the north for baking water. Though the prosecution did not establish, which way the appellant went out if there is a way through which he could have gone out, there is nothing wrong in making a reasonable and legitimate inference that he went out that way. Appellant would have made good hi: escape through the opening on the north towards the well, which was large enough for a person to go through and get out of the bathroom. If as the prosecution states, it was big enough for PW. 1 to go through, or to be thrown out by the appellant, appellant could certainly have known that he could also go out through that. True, the trial Judge made an inference which does not stand to reason. According to him, the accused would have gone through the other opening, 90 cms. x 39 cms. It is difficult to understand, what could have persuaded the trial Judge to the conclusion, that the appellant would have gone out through a small hole, when he was aware that there was a large opening, large enough for a human body to pass through. The argument of counsel that the appellant was not at the scene, though attractive, does not carry conviction, on close scrutiny. 8. It was then argued that PW.1 made refinements, from time to time, and that she had no case of rape in the first instance. This is not so. As noticed earlier, when the first information statement was recorded, PW. 1 clearly stated that she was raped. According to P. Ws. 8. It was then argued that PW.1 made refinements, from time to time, and that she had no case of rape in the first instance. This is not so. As noticed earlier, when the first information statement was recorded, PW. 1 clearly stated that she was raped. According to P. Ws. 3 and 4, the word, used is "the appellant outraged" (in vernacular) and not "raped". The nuances between 'outraging' modesty and 'raping' would not have been in the forefront of the mind of PW.1 at that time. That apart, the expression used by her is often used to indicate rape. That a young girl like PW. 1 did not use a coarse expression, or an expression projecting a graphic imagery of the happening, is no reason to think that she was guilty of exaggerations. 9. The absence of injuries in the genetalia, does not falsify the prosecution case. It is not always necessary that penetration should rupture hymen. . Besides, the case of PW. 1 is that, when she cried out in pain, the appellant withdrew and that discharge was brought about otherwise and outside her vagina. 10. It was then argued that there is no conclusive evidence of penetration. The evidence of PW.1 is unambiguously to the effect that there was penetration. The degree of penetration is immaterial for a charge under S.376 I.P.C. As observed by the Supreme Court in Madan Gopal Kakkad v. Naval Dhubey and another 1992 (3) SCC 204 vulval penetration is sufficient for establishing a charge of rape. If the male organ of appellant had entered PW. 1's person (she says so), the ingredient of penetration is proved. The offence of rape is thus established, beyond reasonable doubt. The evidence of PW. 1 would further establish the offences of wrongful confinement and intimidation, Throwing a person into a well, credits the doer of that act, with the knowledge that, normally thereby he would cause the death of the person thrown into the well. The charge under S.307 is also established. The conviction is therefore confirmed, While confirming the conviction, the sentence for the offence under S.376 I.P.C. is reduced to rigorous imprisonment for seven years. The other sentences are maintained. Sentences will run concurrently. Subject to this modification, the conviction and sentence are confirmed, and the appeal is dismissed.