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2021 Supreme(Online)(KER) 25178
HIGH COURT OF KERALA
K VINOD CHANDRAN, Ziyad Rahman A. A, JJ
MANI BALAN, C.NO.1002/16 – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/94/2017
SRI.RISHIKESH SHENOY.M (LEGAL AID COUNSEL), SRI.P.MOHAMED SABAH, KUM.SAIPOOJA
The court established that the absence of physical injuries does not preclude a conviction for rape, emphasizing the weight of credible testimony and corroborative evidence.
Headnote:
Rape - Minor Victim - IPC Sections [376(2)(i), 450] and POCSO Act Sections [5(i), 6] - Court affirmed the conviction of the accused for rape under IPC and clarified that the victim, being 14 years old, did not qualify for aggravated charges under the POCSO Act.
Fact of the Case:
The case involves a minor victim who was allegedly raped by a neighbor while alone at home. The prosecution relied on the victim's testimony, corroborated by her mother and medical examination, though inconsistencies and questions about the credibility arose during defense arguments.
Finding of the Court:
The court upheld the victim's testimony as credible, highlighting the corroboration from medical evidence and the victim's consistent accounts. The absence of physical injuries did not negate the occurrence of the crime, and the trial court's assessment was endorsed.
Issues: The key issues revolved around the credibility of the victim's testimony, the adequacy of legal representation for the defense, and the applicability of POCSO Act provisions given the victim's age.
Ratio Decidendi: The conviction for rape was confirmed based on the victim's account and supporting evidence; however, the aggravated charges under the POCSO Act were dismissed as the victim was above the threshold age of 12 for such charges.
Final Decision: The court set aside the conviction under POCSO Sections 5(i) and 6, affirming the conviction under IPC Sections 376(2)(i) and 450.
JUDGMENT
Vinod Chandran, J.
It is a shame that every other case we consider is sadly a rape of a minor. A minor child was pounced upon by a neighbour, when she was alone in her house and forcefully molested, which is the case of the prosecution.
2. Kum. Sai Pooja, learned Counsel for the appellant, vehemently argued in defence, claiming the improbability of the story and stressing upon the inconsistencies. Though in cases of rape, it is trite that a conviction can be based on the sole testimony of the prosecutrix; corroboration would be necessary if the evidence is found to be not of sterling quality. Discrepancies in the evidence of the victim, PW1 and her mother, PW9 are specifically highlighted. The incident is portrayed as a very violent one, but the injuries detected in medical examination are not commensurate with the violence alleged. It has been deposed that the victim was forcefully taken inside the room of her house and rape was carried out with equally violent penetration alleged. There were no visible injuries either on the body or the genitals of the victim. The complaints of pain noticed by the Doctor can always be pretended. As for the evidence regarding penetration, an extract from the book 'Forensic Medicine for the Police'; by Dr.B.Umadethan, a celebrated Doctor of Forensic Medicine, has been placed on record. It is pointed out that the presence or absence of hymen does not indicate the virginity of a woman. Emphatically the statement 'Virginity can be proved; but cannot be disproved' is pointed out. The mere finding that there was a hymen tear would not conclusively prove the sexual act of penetration.
3. PW1 and PW9 have stated the time differently;
while PW9 says that the meeting which kept her away from home was at 5 O'clock, PW1 says it to be at 4.00 p.m and the incident as recorded in Ext.P2 certificate of medical examination is at 4.30. The house in which the crime is perpetrated is situated in a colony which is thickly populated. The scene of occurrence was not properly identified and the description of the scene does not reveal the space available; which is significant insofar as the violent act of dragging the victim inside the house, throwing her on a cot and forcefully penetrating her. The scene plan Ext.P5 and scene mahazar Ext.P6 does not show the measurements of the rooms. It also shows only one access into the house. The evidence of PW1 is that when her mother came home, the accused ran away, in which event the mother would have definitely seen the accused, to which end PW9 does not depose. It is pointed out that while PW9, the mother admitted that there were issues with the family of the accused, PW13, the father of the victim, asserted that the accused was his friend. The evidence of PW1, the victim clearly shows that she was tutored and leading questions were put to her in the chief-examination. She is said to have failed in the 10th standard and also failed twice earlier. A 14-year-old, who failed twice cannot be in the 10th standard and PW1 does not remember when she stopped her studies, a deliberate falsehood. There is hence suppression of material facts and PW1 is not a witness of sterling quality. The entire incident as spoken of by the prosecutrix; in the thickly populated area is prima facie unnatural. There is no valid proof of date of birth since only a certified copy of the birth certificate was produced and it was not marked through the custodian of such a document.
4. The learned Counsel would argue that the defence was conducted shabbily and it clearly indicates that the accused did not have proper legal aid. Reliance is placed on Varghese @ Biju v. State of Kerala , 2007 (2) KHC 310 to urge a remand. Ganesan v. State represented by Inspector of Police, (2020) 10 SCC 573 is placed reliance on to urge this Court to seek corroboration to the testimony of the prosecutrix, who is not credible. Santosh Prasad @ Santosh Kumar v. State of Bihar, (2020) 3 SCC 443 is also relied upon to se
