STATE OF KERALA Vs. M AYOOB

JUDGEMENT

(1.) The State has come up with this appeal, when the respondent was acquitted of the charges for the offence under S.376 IPC. PW 4, the father of the victim filed a private complaint as CMP No. 678/91 before the then Second Class Magistrate, Parapanangady. It was on 19.2.1991. The Magistrate forwarded it to the police in terms of S.156(3) Cr.P.C. There upon the police registered Ext. P9 FIR as Crime No. 33/91 of Tirurangadi police station. PW 14 and PW 15 conducted investigation. Successor to PW 15 laid the charges. The prosecution examined 15 witnesses and marked 11 documents. The defence evidence consists of the oral testimony of DWs 1 to 6 and Exts. D1 to D15.

(2.) It is contended by the Public Prosecutor that the victim being a minor aged 15 years in March, 1990, below the consenting age provided under clause sixthly of S.375 IPC and being a student of 7th standard and as there is evidence of she being pregnant and giving birth to a child, the factum of rape has been proved in this case. Of course there was delay in preferring Ext. P1 complaint by about 11 months and 4 days. It has been sufficiently explained through PWs 2, 3 and 4 that the victim did not divulge the information of the sexual intercourse to any one. It was when she complained of stomach pain and taken to a hospital that PW 3, her mother, was told by the doctor that she was pregnant. It was then alone, the victim PW 1 divulged the factum of rape by the accused to PW 3 who in turn informed PW 4, the father of the victim. Thereafter PW 4 approached the accused and the accused promised to marry the victim after delivery. Later he withdrew from that promise. These facts are proved through the evidence of PWs 2, 3 and 4. Therefore, the delay has been sufficiently explained.

(3.) He further submits that, PW 1 the victim had spoken to about the incident in a natural way. Of course Ext. P1 gives the date of occurrence as 15.3.1990. PW 1 had stated that the occurrence was on an examination day. Even though, through DW 1 it is said to be proved that the examination started only on 19.3.1990, no such suggestion was made to PW 1 during cross examination by the defencee. So even if there is a slight discrepancy in the date, it cannot materially affect the prosecution, as PW 1 had never stated about the date in her examination before the Court below. The date was mentioned by her father in Ext. P1 after about 11 months. In such circumstances the discrepancy in a date cannot be a reason to reject the prosecution case. It is further submitted that, as spoken to by PW 2, the Panchayat President and the mediator, there was a proposal to conduct DNA test of the child and the accused. But it did not materialise obviously because there was no consent forthcoming from the accused. Therefore, there was no reason for the Court below to acquit the accused in the light of the documentary evidence on record and from PWs 1 to 4 and other witnesses. There is due corroboration of the incident spoken to by PW 1 through the evidence of PWs 2 to 4 and also because of the child birth to a minor unmarried girl. So in every aspect the case shall end in conviction. The acquittal has therefore to be reversed. He has relied on the decision reported in State of Punjab v. Gurmit Singh and Others, AIR 1996 SC 1393 , Smt. Kamti Devi and Another v. Poshi Ram, AIR 2001 SC 2226 , Syed Mohd. Ghouse v. Noorunnisa Begum, AIR 2001 (Crl.) Law Journal 2028, State of Rajastan v. N. K., (2000) SCC (Crl.) 898 and State of Karnataka v. Manjanna, 2000 SC (Crl.) 1031.