IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 3^RD DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.A NO. 787 OF 2018 AGAINST THE JUDGMENT IN S.C.NO 437/2010 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST WOMEN AND CHILDREN, THALASSERY APPELLANT/ACCUSED:

RABEESH, AGED 33 YEARS S/O. BASKARAN, AGED 33/2018, KOYITTANDITHAZHE, KUNIYIL HOUSE, CHOKLI AMSOM, KAVIYOOR DESOM, THALASSERY.

BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)

RESPONDENT/COMPLAINANT:

THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY ADVS.

SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN &

CHILDREN & WELFARE OF W & C SMT SHEEBA THOMAS -PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT This appeal has been preferred by the accused in S.C.No.437/2010 on the file of the Special Court for the trial of offences against Women and Children, Thalassery (for short 'the court below') challenging the judgment of conviction and sentence dated

29.5.2018.

2. The accused faced trial for the offence punishable under Section 376 of IPC.

3. The victim was a deaf and dumb girl aged 31 years at the time of occurrence. The prosecution case in short is that on 23.6.2007 at 9.30 am., when PW1 went to a well, near to her house to take water, the accused reached there, took the victim to the nearby open bathroom and committed rape on her and thereby committed the offence.

4. The incident was at 9.30 am. On the same day at 1.30 pm. the crime was registered by PW14, on the basis of the statement given by the sister of the victim who was examined as PW10. Ext.P6 is the first information statement. Ext.P10 is the FIR. PW12, the Circle Inspector of Police, Panoor conducted initial part of the investigation. PW13, the Circle Inspector of Police, Panoor conducted remaining part of the investigation and filed final report before the Magistrate. The Magistrate, after completing the statutory formalities committed the case to stand trial before the Court of Sessions. Thereafter, the case was made over to the court below.

5. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Section 376 of IPC. The charge was read over and explained to the accused who pleaded not guilty.

6. The prosecution examined PWs1 to 14 and marked Exts.P1 to P10. MOs1 to 6 were identified.

7. Considering the evidence on record, the court below found the accused guilty for the offence punishable under Section 376 of IPC and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-, in default to suffer rigorous imprisonment for a period of one year. Challenging the said conviction and sentence, the accused preferred this appeal.

8. I have heard Sri.Johnson Varikkappillil, the learned counsel for the appellant and Smt.Sheeba Thomas, the learned Public Prosecutor.

9. The learned counsel for the appellant impeached the findings of the Court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that even if the prosecution case is believed in toto, still on the basis of the materials brought on record by the prosecution, offence u/s 376 of IPC is not attracted. According to the counsel at best Section 354 and Section 511 of 376 of IPC alone is attracted. The counsel further submitted that the conviction is based on the uncorroborated testimony of the victim who is deaf and dumb. The counsel submitted that the evidence of the sister of the victim, PW10, that she witnessed the incident is absent in her statement given to the police, which has been brought out as omission amounting to contradiction. The counsel also submitted that the alleged incident was taken place in a bathroom situated on the side of the public road, that too, in the morning at 9.30 am., but no indep