SIVASANKARAN PILLAI Vs. STATE OF KERALAÄ

JUDGEMENT

(1.) This is an appeal by an accused who was convicted under S.376 and 377, Indian Penal Code, by the Sessions Judge of Trivandrum and sentenced to undergo rigorous imprisonment for two years for the offence under S.377 I. P. C. and three years under S.376, the two sentences to run concurrently.

(2.) The case for the Prosecution may be stated : Padmini (PW 1) is a girl aged 8 years. She was living with her grandmother, PW 2 and PW 6, a daughter of PW 2. PW 5 is a neighbour and a distant relative of PW 2. The accused is a neighbour of these witnesses and his house is about 300 feet distant from that of PW 2. At about 10 A. M. on 28-9-1958 PW 2 gave two annas to PW 1 and asked her to purchase tapioca from the accused. She proceeded to the accused's house with a basket and the money and when she reached the accused's house, he was standing in his courtyard. He was alone in the house at that time. He took PW 1 to the kitchen and gave her some cold rice. PW 1 took the same, washed the plate and placed it in the kitchen. The accused had in the meanwhile closed the doors of the building including that of the kitchen. He sat on a door step and called the girl to come near him and when she came, he placed her on his lap and kissed her. Then he removed his cloth and placed his penis in her hand and asked her to handle it. He wanted to put the penis into her mouth and on her refusal he forced her mouth open with his fingers and introduced it into her mouth. When it touched her throat she closed her mouth. He then withdrew the organ from PW 1's mouth. Thereafter he placed the girl on the floor, removed her cloth and introduced his penis into her sexual organ against her will and thus committed rape. PW 1 attempted to cry and the accused then thrust her cloth into her mouth. After the accused completed the act he rose up and said that he would give her tapioca and that she should not tell anybody about the incident. She refused tapioca and went back to her house and lay down. PW 2 gave her some rice gruel but after taking the same she again went and lay down. PW 1 did not actually tell PW 2 as to what had happened but as there was pain and swelling on her private parts, PW 2 applied hot fomentation the next day. The pain did not subside, and suspecting that the girl was suffering from a kind of swelling ]Xp¡f\ocv PW 2 took PW 1 on 30-9-1958 to the Government Hospital, Attingal. The medical officer directed the compounder to apply some ointment. This did not give any relief. PW 5 went to the house of PW 1 the next day, i. e., 1-9-1958, and asked her about her illness, when she told her what had happened at the accused's house. PW 2 also heard this and on 2-10-1958 PW 1 was again taken to the hospital and this time the Medical Officer was told what the trouble was. He told them that he could not do anything unless PW 1 was taken to him with a letter from the Police. PWs 1 and 2 then returned home and on the next day (i. e., 3-10-1958), they went to the police station at Attingal where PW I gave a statement (Ext. PW 1). The Sub Inspector of Police (PW 14) prepared the first information report (Ext. P14) and sent PW 1 to the Government Hospital at Chirayinkil so that she could be examined by the lady doctor (PW 3).

(3.) The points for decision are whether the accused committed carnal intercourse with PW 1 against the order of nature and whether he committed rape on her. Before considering the evidence relating to the same, it may be stated that the defence of the accused was that the case was concocted against him at the instigation of one Raghavan Pillai with the connivance of PWs 1, 2, 5 and 6 who were on inimical terms with him. Raghavan Pillai's enmity was stated to be due to the fact that the accused worked against him when he stood as a candidate for election to the local Panchayat.