1. This appeal is at the instance of the sole accused in S.C.No.644/2009 on the files of the Principal Sessions Judge, Thalassery, and he assails the judgment dated 12.11.2013 in the said case. State of Kerala is the respondent.

2. Heard Advocate Adithya Narayan.K.G, the learned State Brief, since Advocate Ajoy P.B, the learned counsel for the appellant, relinquished his vakalat. Gone through the verdict under challenge and the evidence available. Also heard the learned Public Prosecutor in detail. Perused the verdict impugned and the evidence available.

3. The prosecution case is that at about 5.30 p.m on 29.07.2009, the appellant/accused committed rape on PW1, a 13 years old girl, at his residence. Thus the prosecution alleges commission of offence punishable under Section 376(2)(i) of the Indian Penal Code (`IPC’ for short hereafter), by the accused/appellant.

4. When the case was committed to the Sessions Court, the Sessions Court proceeded with the trial after complying with the pre-trial formalities. Thereafter charge for the offence punishable under Section 376(2)(i) of IPC was framed and evidence was recorded. PW1 to PW15 were examined and Exts.P1 to P14 as well as M.O1 to M.O4 were marked on the side of the prosecution. No defense evidence was adduced. The learned Sessions Judge, on appreciation of evidence, found that the appellant/accused had committed the offence punishable under Section 376(2)(i) of IPC and accordingly he was sentenced as under:

                  “In the result, the accused is sentenced to undergo Rigorous Imprisonment for a period of 10 (ten) years and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) in default to undergo Rigorous Imprisonment for a period of 6 (six) months for the offence under Section 376 (2) (i) of IPC. If the fine amount is realised it will be paid to PW1 as compensation. MOs 1 to 4 will be destroyed after the period of appeal or after the disposal of appeal as the case may be. The accused is entitled for eligible set off.”

5. The learned State Brief vehemently argued that the evidence of PW1 supported by the evidence of PW2 and PW3 as well as the evidence of the doctors, who were examined as PW12 and PW10, supported by Exts.P9 and P7, were relied upon by the learned Sessions Judge to find commission of the offence punishable under Section 376(2) (i) of IPC by the accused/appellant. According to the learned State Brief, the evidence of PW1 is not trustworthy to be acted upon, since she had admitted during cross examination that there was some dispute between the family of PW1 and that of the accused. Therefore, the learned Special Judge went wrong in giving reliance on the evidence of PW1 to prove the occurrence. He also pointed out that CW2 and CW3, two witnesses who are holding the status of PW2 and PW3, were omitted to be examined and same also is fatal to the prosecution. On the above grounds, the learned State Brief zealously argued to interfere in the verdict under challenge.

6. Whereas the learned Public Prosecutor strongly resisted the contention raised by the learned State Brief and pointed out the evidence of PW1, PW10, PW12, PW2 and PW3 as well as Exts.P7 and P9, to justify the conviction and to assert the point that no interference with the verdict impugned is warranted in the facts of the case.

7. In view of the rival submissions, the points arise for consideration are:

                  (i) Whether the learned Sessions Judge is right in holding that the accused committed the offence punishable under Section 376(2)(i) of IPC?

                  (ii) Is it necessary to interfere with the impugned judgment in any manner?

                  (iii) The order to be passed?

Points (i) to (iii)

8. In this case, in order to prove the occurrence alleged by the prosecution, the prosecution mainly relied on the evidence of PW1. Before examination of PW1, the learned Sessions Judge conducted a voir dire examination to find as to whether PW1 was capable of understanding the questions and giving rational answers thereto in terms of Section 118 of the Evidence Act and on recording the said satisfaction, she was examined. PW1 deposed that she was a resident of IHDP colony, Kozhichal and she had deposed that she was residing along with her parents and one elder sister. At the time of occurrence, she had been studying in 8th standard and on the day of occurrence her father had gone for job in Cherupuzha and mother went for job in a house. Further, her sister had gone to the house of her mother’s sister and she was alone at the house and the occurrence was on a day during the Onam holidays. She deposed further that on the date of occurrence, one Devassikutty a nearby resident of her house had died and the people in the locality had gathered at his house. At 5.30 p.m, the accused called her to his house and the accused is none other than the son of the brother of her father. Then the accused entrusted her with Rs.20/- to purchase some snacks for tea. Though she had gone to purchase snacks, all the shops were closed and she returned to the house of the accused. Thereafter, the accused requested her to prepare tea for him and when she got engaged in the preparation of tea, the accused then came into the kitchen, took her to his room, and laid down her there. At that time, she wore a churidar and the accused removed her pants and inserted his penis into her vagina and she had cried loudly. Then he had threatened to kill her and she had bleeding. Thereafter she put down the accused and ran away to the house of the deceased person and she had informed the same to Mini, Narayani and Clara. Then Omana informed the same to her mother. Thereafter her mother’s siblings and the husband of the mother’s sister along with her mother had taken her to hospital and the doctor examined her and on the next day the police came and recorded her evidence. She identified the statement so given as Ext.P1 (FIS). She also identified the churidar top and pants worn by her as M.O1 and M.O2 and the lungi worn by the accused as M.O3, at the time of commission of the offence. She identified the accused at the dock. During cross examination, the family details were asked and PW1 deposed that 2- 3 days before the occurrence, the wife of the accused left his house and the accused used to make quarrel with his wife. She answered all the queries with rational answers. It is true that during cross examination she stated that there was a property dispute between the family of the accused and PW1. However, they used to speak to each other, although her parents did not speak to the accused. This evidence was highlighted by the learned Amicus Curiae to disbelieve the version of PW1 and to treat the same as untrustworthy. In fact, this evidence is the true state of affairs came from the mouth of PW1 and her evidence is that they used to speak each other despite the property dispute and though her parents did not speak to the accused. When a question was put to PW1 suggesting that her mother used to quarrel with the accused, the same was specifically denied by PW1. In fact, the mere admission of a property dispute between the two families, who are siblings, by itself cannot be considered fatal so as to render the evidence of PW1 unbelievable. In fact, the evidence of PW1 inspired the confidence of the Sessions Court, and therefore, the learned Sessions Judge rightly relied upon the same to record conviction.

9. Apart from the evidence of PW1, PW2, Mini, referred by PW1 during her chief examination and one Omana got examined by the prosecution in order to prove the events that occurred immediately after the sexual assault.

10. PW2 was a neighbour of the victim as well as the accused. She would testify that about 4 years back one day during the Onam holidays the incident had occurred and on that particular day, one of their neighbours by name Areekkal Devasya had died and almost all residents of the Colony had gone to his house and when the dead body was taken to the church for cremation, she remained at the house along with CW2 and CW3 and at that time PW1, the victim, came to the house by holding a churidar bottom with her hands and told that she had been raped by the accused. She would further say that she had seen blood stains in the churidar bottom and so immediately informed it to one Omana, a close relative of the child and Omana contacted her mother, who rushed to the house and took her to the hospital. She also deposed that at the time of occurrence the wife of the accused was residing separately from him due to some quarrel with him and he was staying all alone at his residence.

11. Omana also got examined as PW3. She is a resident of Kozhichal. According to her, about four years back one day while she was at her house, at about 5.30 p.m CW3 came and told her that PW1, the victim informed her that she was raped by the accused. So she immediately informed the matter to Yeshoda, the mother of the victim and the victim was taken to the hospital by her along with the mother of the victim, her mother's sister and her husband. According to her, the victim had bleeding when she had seen her and on enquiry she told that the accused had called her to his house and asked her to prepare tea; and when she was at the kitchen, the accused came to the kitchen and taken her into his bed room and committed rape on her. She had fully corroborated the deposition of the victim and also identified the accused, who is a person known to her as he is a resident of the locality.

12. Apart from the evidence of PW2 and PW3, PW5, who is a relative of PW1, also deposed in support of the prosecution case on par with the evidence of PW2 and PW3.

13. PW10 examined in this case is Dr.M. Muralidharan. According to him, while he was working as Civil Surgeon, Government Hospital, Payyannur, he had examined Kunhinarayanan (accused) and issued Ext.P7 certificate and he made opinion that “there is nothing to suggest that the above person is incapable of performing the sexual act”. No serious challenge was raised as regards to the evidence of PW10 and Ext.P7. PW12 examined in this case is Dr.Ranjith V.A, who worked as Superintendent of Taluk Hospital, Payynnur, and he supported Ext.P9 certificate he had issued after examination of victim (PW1) which would suggest that “hymen torn at left lateral position”. As per Ext.P9, it was observed further that vaginal smear taken and minimal bleeding present. The mahazar pertaining to M.O1 to M.O3 was proved through PW6. PW15 is the Investigating Officer and he supported the prosecution. PW13, the then Assistant Sub Inspector of Police, Payyannur, recorded Ext.P1 FIS from the hospital as that of PW1, also deposed in support of the same and registration of crime as Ext.P10 FIR. PW15, the Investigating Officer, supported the investigation, the arrest of the accused, preparation of Ext.P2 scene mahazar, collection of evidence from PW10 and PW12 as well as filing of the final report on completion of investigation.

14. According to the learned State Brief, CW2 and CW3 were not examined and same is fatal to the prosecution. In fact, CW2 and CW3, PW2 and PW3 were cited by the prosecution to prove the event subsequent to commission of rape on PW1. Among them, PW2 and PW3 were examined and they fully supported the prosecution. Therefore, non examination of CW2 and CW3 is of no serious consequence, since the immediate event closely connected with commission of rape in the form of res gestae evidence, was proved by the prosecution through PW2 and PW3. In such a case, mere non examination of CW2 and CW3 would not be fatal to the prosecution.

15. In the instant case, the ingredients necessary to prove the offence under Section 376(2)(i) of the IPC could be gathered from the evidence of PW1, supported by other evidence. In view of this, the learned Special Judge is justified in finding that the accused committed the offence punishable under Section 376(2)(i) of the IPC. Therefore, the conviction doesn’t require any interference.

16. Coming to the sentence, in the back ground facts of the case, the same appears to be very reasonable and no interference is warranted.

17. In the result, this appeal must fail and is accordingly dismissed. Consequently the conviction and sentence imposed by the Special Court are confirmed. As a sequel thereof, the order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.

18. The accused is directed to surrender before the Special Court to undergo the sentence forthwith, failing which the Special Court shall execute the sentence forthwith.

                  Registry is directed to forward a copy of this judgment to the Special Court for compliance and further steps.