IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN &

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

FRIDAY, THE 10^TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 CRL.A NO. 94 OF 2017 AGAINST THE JUDGMENT DATED 30.11.2016 IN SC 189/2014 OF SPECIAL COURT FOR TRIAL OF OFFENCES UNDER POCSO ACT & CHILDREN'S COURT (ADDITIONAL SESSIONS COURT-I), KALPETTA, WAYANAD (CRIME NO.179/2014 OF Vythiri Police Station, Wayanad)

APPELLANT/S:

MANI BALAN, S/O KAYAMA, CONVICT NO.1002/16 CENTRAL PRISON, KANNUR.

BY ADVS.

SRI.RISHIKESH SHENOY.M (LEGAL AID COUNSEL)

SRI.P.MOHAMED SABAH, KUM.SAIPOOJA RESPONDENT/S:

STATE OF KERALA BY SMT.BINDU O.V., PUBLIC PROSECUTOR.

THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON

09.09.2021, THE COURT ON 10.09.2021 DELIVERED THE FOLLOWING:

K.Vinod Chandran & Ziyad Rahman A.A., JJ.

---------------------------------------------

Crl. Appeal No. 94 of 2017 ---------------------------------------------

Dated this the 10^th September 2021

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 10^th standard and also failed twice earlier. A 14-year-old, who failed twice cannot be in the 10^th standa