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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. Suresh Kumar, J.
Thankappan P.K. - Appellant
Versus
State of Kerala - Respondent
CRL.A.No.564 of 2018
Decided On : 29-06-2020
Indian Penal Code - Section 376 ;; The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989- Sections 3(1)(xii) and 3(2)(v)- The accused was a fatherly figure for the victim girl -Sexual assaults including rape are crimes of gender inequality- In social reality, sex that is actually desired by a woman is never termed consensual, for when a sexual interaction is equal, consent is not needed and when it is unequal, the consent cannot make it equal-Conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse.
Statement of facts:
The accusation in the case is that on a Sunday in the month of February 2009, and on various subsequent days, the accused committed rape on the victim girl, a minor aged 14 years belonging to a Scheduled Caste, and impregnated her. The offences alleged against the accused are the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as it stood then.
Finding of the court:
Conduct on the part of the victim girl in surrendering before the accused as and when desired by him cannot be said to be unusual or abnormal and such surrender can never be construed as consensual acts of sexual intercourse-No merit in the contention advanced by the learned counsel for the appellant.
Result: Appeal is dismissed.
JUDGMENT :
The conviction of the appellant and the sentence imposed on him in S.C.No.495 of 2010 on the files of the Sessions Court, Pathanamthitta are under challenge in this appeal. The appellant is the sole accused in the case.
2. The accusation in the case is that on a Sunday in the month of February 2009, and on various subsequent days, the accused committed rape on the victim girl, a minor aged 14 years belonging to a Scheduled Caste, and impregnated her. The offences alleged against the accused are the offences punishable under Section 376 of the Indian Penal Code (the IPC) and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as it stood then.
3. On the accused pleading not guilty of the charges, the prosecution examined 15 witnesses as PW1 to PW15 and proved 31 documents as Exts.P1 to P31. The witnesses examined on the side of the prosecution have also identified MO1 to MO4 material objects in the case. The accused was thereupon questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out against him by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined, PW1 is the victim girl. PW1 proved Ext.P1 First Information Statement and Ext.P2 statement given by her under Section 164 of the Code. PW2 is the mother of the victim girl. PW3 is a person residing in the neighbourhood of the house of the victim girl. PW4 is the witness to Ext.P3 Scene Mahazar. PW5 is the doctor who examined the victim girl and issued Ext.P4 report. PW6 is the doctor who subjected the victim girl to ultrasound scanning and issued Ext.P5 report. PW7 is the doctor who issued Ext.P6 Potency Certificate after examining the accused. PW8 is the Tahsildar who issued Ext.P7 certificate indicating the caste of the victim girl. PW9 is the doctor who attended the victim girl for her delivery. PW9 has also collected the blood samples of the victim girl and the child delivered by her for DNA analysis. PW9 has proved Exts.P9 report and Ext.P10 seal. PW10 is the official of the Forensic Science Laboratory. PW10 proved Ext.P11 seal, Ext.P12 request, Ext.P12(a) report, Ext.P13 report and Ext.P14 photograph. PW11 is the Village official who issued Ext.P15 Scene Plan. PW12 is the witness to Ext.P16 Mahazar. PW13 is the Head master of the school where the victim girl was pursuing her studies. PW13 has proved Ext.P17 letter and P17 extract of the Admission Register of the school containing the age of the victim girl. PW14 is the doctor who proved the signature of Dr.Umesh in Ext.P12(a) report. PW15 is the Investigating Officer. PW15 has proved Ext.P18 First Information Report, Ext.P19 report concerning the handing over of the investigation, Ext.P20 arrest memo, Ext.P21 inspection memo, Ext.P22 custody memo, Ext.P23 remand application, Ext.P24 report concerning the address of the accused, Ext.P25 property list, Ext.P26 forwarding note, Ext.P27 report of the Forensic Science Laboratory, Ext.P28 property list, Ext.P29 property list, Ext.P30 forwarding note, Ext.P31 consent and Ext.P31(a) report.
5. The court below, on a detailed evaluation of the materials on record, found that the accused had sexual intercourse with the victim girl and it is the accused who has impregnated her. Although the court found that the prosecution has not proved the age of the victim girl and failed to establish that the case is one that falls under the sixth description in the definition of 'rape' in terms of Section 375 of the IPC as it stood then, it held that in the absence of any case for the accused that the sexual intercourse he had with the victim girl was consensual, the accused is guilty of the offence punishable u
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