PALLIYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant was tried for the offences under Sections 376, 323 and 506(ii) of the Indian Penal Code by Sessions Judge, Thrissur in S.C.No.307 of 2007 on the allegation that he committed rape on PW1, his youngest daughter aged 18 years, from the forest, after threatening her with a chopper that she will be murdered in case she resists and also voluntarily caused hurt to her. PW3 is the wife of the appellant and the mother of PW1 and PW2. PW2 is the eldest daughter of the appellant. According to the prosecution case, on 25.1.2006 PW3, the mother, had gone for collecting the grant payable to her being a tribal woman. Appellant along with PW1 and PW2 and the mother of PW3 were there in the house. As per practice, appellant along with the wife and the children used to go to the forest for collecting 'incha' for eking their livelihood. As the 14 year old daughter of PW9, the brother of PW3 was in the house, PW2 did not accompany the appellant to the forest on that day. Appellant along with PW1, PW9 and his wife proceeded to the forest and collected incha. After collecting the incha and making bundles to be carried to their house, appellant told PW9 that foot steps are being heard and disclosed that as PW9 is wanted in a forest case he may be arrested. Apprehending arrest PW9 along with his wife left immediately, leaving the appellant and PW1 there. PW1 along with the appellant collected the bundles of incha and proceeded to the house. On the way, while they were in the forest, appellant put down the bundle of incha and asked PW1 also to do the same. PW1 obeyed it. It is alleged that appellant thereafter forcibly caught hold of PW1 with an evil intention and attempted to remove her nighty and the underwear which was resisted by PW1. Appellant, showing the chopper, threatened PW1 that if she makes any sound or disobeys she will be murdered and he will go into the forest. Though PW1, because of the compulsion, obeyed it and cried aloud there was nobody to help her. Appellant thereafter committed rape on PW1 and made her to wear the dress and proceeded to the house. When PW1 reached the house, finding her face, PW2 asked her what happened. PW1 disclosed that appellant committed rape on her. PW2 disclosed this fact to PW3, the mother, when she came back after collecting the grant. PW3 questioned the appellant. Appellant showing the chopper threatened her that he will kill everybody if the matter is disclosed to anybody and would go into the forest. PWs 1 to 3 therefore could not disclose the fact to anybody except PW9 and his wife when they came to the house to take back their daughter. When there was opportunity, as the appellant left the house after some days from the date of the incident, PW3 along with PWs 1 and 2 reached the house of PW4 Jose, a Ward Member of the Panchayat, and informed him the heinous offence. PW4 advised them to report the matter to the police. PW1 along with PW3 proceeded to the police station on 4.2.2006 and informed the incident in the presence of PW11, the Woman Police Constable. PW13, the Sub Inspector of Police, recorded her Ext.P1 F.I. Statement and prepared Ext.P1(a) F.I.R. and registered the crime for the offence under section 376 IPC. On the same day, he informed PW14, the Circle Inspector of Police, who took over the investigation and forwarded PW1 for medical examination. PW6 Dr.Reena Ravindran examined PW1 on 4.2.2006 and prepared Ext.P5 wound certificate. The vaginal smear and the pubic hairs collected at that time were forwarded for chemical examination. PW14, the Circle Inspector of Police, arrested the appellant and got him examined by PW7, the Doctor, and obtained Ext.P6 potency certificate. When PW1 produced MOs 1 and 2 dresses worn by her at the time of incident, PW14 received them under Ext.P7 mahazar in the presence of PW8. As shown by PW1, PW14 examined the scene of occurrence and prepared Ext.P4 scene mahazar in the presence of PW5. Finding that appellant has committed the offences under Sections 323 and 506(ii) IPC also, PW14 forwarded Ext.P11 report intimating that the case is being investigated incorporating the said offences also. Exts.P2 and P3 statements of PWs 1 and 2 were recorded by PW15, the Judicial First Class Magistrate, under Section 164 Cr.P.C. PW16, the subsequent Circle Inspector of Police, after completing the investigation laid the charge. The learned Magistrate committed the case before the Sessions Court and the learned Sessions Judge took cognizance of the offences. As the appellant did not engage a counsel, the court appointed a counsel at the expense of the State to defend him.

(2.) When charges for the offences under Sections 323, 506 (ii) and 376 IPC were framed and read over and explained to the appellant he pleaded not guilty. Prosecution then examined 16 witnesses and marked 13 exhibits and identified two material objects. When PW9 was examined Ext.D1 portion of his statement recorded by PW14 under section 161 Cr.P.C. was got marked and proved later by the evidence of the Investigating Officer. After closing the prosecution evidence appellant was questioned under section 313 Cr.P.C. Appellant denied the incriminating evidence put to him and contended that the case is foisted by PWs 1 and 2 because of the love affair of PW1 with Ravi, for which the appellant was not agreeable. Finding this not a case for acquittal under section 232 Cr.P.C. learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence, if any, in support of his defence. Appellant did not adduce any defence evidence. Learned Sessions Judge on appreciating the evidence found that the evidence of PWs 1 to 3 are credible and reliable. The learned Sessions Judge based on the evidence of PW1 found that appellant committed rape on PW1, his daughter, from the forest, after making PW9 and his wife leave them and it was committed forcibly against the wishes of PW1 under the threat that she will be murdered and appellant also caused hurt to PW1. The learned Sessions Judge also found that evidence of PWs 2 and 3 fully corroborated the evidence of PW1 and though Exts.P9 and P10 reports of chemical analysis proved by the evidence of PW12, the Assistant Chemical Examiner, do not show the presence of human semen or spermatozoa, as the vaginal smear was collected 10 days after the incident, it does not make any difference. The learned Sessions Judge accepting the evidence of PWs 1 to 3 found the appellant guilty of the offences under Sections 376, 323 and 506(ii) IPC. After hearing the appellant, he was sentenced to imprisonment for life for the offence under Section 376 IPC, rigorous imprisonment for five years for the offence under Section 506 (ii) IPC and rigorous imprisonment for one year for the offence under Section 323 IPC. It was also made clear that appellant would be entitled to set off as provided under Section 428 Cr.P.C. The conviction and sentence are challenged in the appeal preferred from prison. As appellant did not engage a counsel, a counsel from the panel of state brief was appointed to argue the appeal.

(3.) Learned counsel appearing for the appellant argued that the learned Sessions Judge failed to properly appreciate the evidence. It was argued that the version of PW1 in Ext.P2 statement recorded under section 164 Cr.P.C. by PW15 is different from the version stated before the court and disclosed in Ext.P1 and due to the discrepancy and the contradiction, the evidence should not have been relied on. The learned counsel argued that the evidence of PW2 is different from her version in Ext.P3 statement recorded under section 164 Cr.P.C. by PW15 and in such circumstances her evidence also cannot be relied on. The learned counsel argued that evidence of PWs 1 to 3 establish that subsequent to the incident, after the appellant was arrested and kept in custody, PW1 married Ravi and it supports the defence case that the case was foisted as appellant was against the affair of PW1 with Ravi. The learned counsel argued that even though it was alleged that appellant committed rape on PW1, the daughter, on 25.1.2006, it was not reported to the police till 4.2.2006 and the explanation for the delay is not believable and in such circumstances learned Sessions Judge should not have accepted the evidence. The learned counsel also argued that if there was rape as claimed by PW1 and supported by PWs 2 and 3, when PW1 was examined by PW6, the Doctor, she would have noted sufficient materials to corroborate the case of rape and as nothing could be found by PW6, the allegation that appellant committed rape on the daughter is to be disbelieved. The learned counsel finally submitted that in any case the sentence awarded is excessive and leniency is to be shown.