JUDGMENT

Ranjan Gogoi, J.-The appellant O.M. Baby (since deceased), had been convicted by the learned Sessions Judge, Wayanad, Kalpetta, Kerala under Sections 376, 506 (ii) and 342 IPC. He was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 376 IPC; two years for the offence under Section 506 (ii) IPC and for a period of one year for the offence under Section 342 IPC. Additionally, for the offence under Section 376 IPC, a fine of Rs.50,000/-, in default, further imprisonment for two years was imposed on the appellant. The fine amount was directed to be paid to the prosecutrix (PW 2). The learned trial court had also directed that the sentences are to run consecutively.

2. Aggrieved, the deceased-appellant filed appeal before the High Court of Kerala. By the judgment and order dated 13.01.2005, the appeal was dismissed by the High Court. However, the sentence imposed under Section 376 IPC was reduced to three years. The sentences imposed under Sections 506 (ii) and 342 IPC were maintained but were directed to run concurrently. Aggrieved by the aforesaid, this appeal has been filed.

3. During the pendency of the appeal, the appellant, O.M. Baby, died on 07.10.2008. On an application filed, the wife of the deceased was allowed to be pursue the appeal.

4. At the outset, the case of the prosecution, in brief, may be noticed. According to the prosecution, the family of the victim (PW 2) was maintaining an account with the appellant, who was running a provision shop in the locality. Different articles were purchased from the shop of the accused on credit which were adjusted from time to time by payments made as well as by the amount due to the family of the victim who used to supply milk to the accused. The prosecution has alleged that on 25.12.1993 at about 8 AM, PW 2 who, was then aged about 12 years, went to the shop of the accused with milk and also to make a few purchases. As 25.12.1993 happened to be Christmas day, the shop was closed from the front. After PW 2 handed over milk to the accused she wanted some articles from the shop on credit. The accused, according to the prosecution, asked PW 2 to go inside the shop. Thereafter, the accused supplied the articles as demanded by PW 2; however, soon thereafter, the accused came from behind, put a cloth on the face of PW 2, took her to adjacent room and closed the same. He then committed rape on her after putting her into fear of death. Consequently, according to the prosecution, PW 2 did not offer any resistance and also did not raise any alarm.

5. The further case of the prosecution is that after PW 2 reached her house, she told her mother about the incident. As the father of the victim was away, her mother (PW 4) informed her own brother (PW 3) and after his arrival, they took the victim to the Taluka Headquarter hospital. However, as there was no Gynaecologist in the hospital they took the victim to the District hospital where PW 1 examined her at about midnight of 25.12.1993. According to the prosecution, PW 1 issued the report of the medical examination (Ext. P 1) and also informed the Gynaecologist (PW 18) who came to the hospital and took the vaginal swab and smear of the victim which was sent for chemical analysis. Thereafter, according to the prosecution, report of the analysis dated 13.07.1994 (Ext. 2) was submitted.

6. The prosecution had further alleged that as PW 4 (the mother of the victim) suspected that the doctors of the District hospital where the victim was taken on 25.12.1993 may not be fair, she had filed a petition in the Court of the Judicial Magistrate First Class, Sulthan Bathery and on the basis thereof, the Investigating Officer of the case (PW 13) got the victim examined by another Gynaecologist (PW 8) in the Medical College Hospital at Calicut. PW 8 took the vaginal swab and smear of the victim and sent the same for chemical analysis. The report of the medical examination of the victim by PW 8 (Ext. P-8) as we