Kerala High Court
Arunlal vs State Of Kerala on 2 July, 2025
2025:KER:48272
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
CRL.A NO. 168 OF 2014
AGAINST THE JUDGMENT DATED 07.02.2014 IN SC NO.602
OF 2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
V, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
ARUNLAL
S/O.SUBASH LAL, MADATHIL VEEDU,
MULLANALLOOR, KUDAVOOR VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.U.S.GANESH KUMAR
SRI.A.CHANDRA BABU
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN-682031.
SMT. HASNA MOL N.S, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.06.2025, THE COURT ON 02.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:48272
CRL.A NO. 168 OF 2014
2
CR
JUDGMENT
Dated this the 2nd day of July, 2025 The sole accused in C.C.No.602/2012 on the files of the Additional Sessions Court-V, Thiruvananthapuram, assails conviction and sentence imposed against him in the above case dated 07.02.2014. The State of Kerala, represented by the Public Prosecutor, is the respondent herein.
2. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor in detail. Perused the trial court records and the decisions placed by the learned counsel for the appellant/accused.
3. I shall refer the parties in this appeal as 'prosecution' and 'accused' for easy reference.
4. The prosecution case is that at about 3 pm on 19.04.2004, while the victim, who was examined as PW3, was collecting firewood from the rubber plantation of one 2025:KER:48272 CRL.A NO. 168 OF 2014 3 Muhammed Kannu, the accused herein had pushed her on the ground, beat on her face and thereafter, he committed rape on her. Thus the prosecution alleges commission of offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as 'IPC' for short) by the accused.
5. When the matter was made over to the Additional Sessions Court for trial, the learned Additional Sessions Judge framed charge for the said offence and recorded evidence. PW1 to PW14 were examined, Exts.P1 to P18 and MO1 series were marked on the side of the prosecution. One witness, DW1, was examined on the side of the defence. The learned Additional Sessions Judge, on appreciation of the evidence, found that the accused was guilty for the offence punishable under Section 376 of IPC and he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/-. In 2025:KER:48272 CRL.A NO. 168 OF 2014 4 default of payment of fine, six months default imprisonment also was imposed on the accused, with direction to pay compensation to PW3, on realisation of the fine amount.
6. While assailing the conviction and sentence imposed by the trial court, the learned counsel for the accused argued that the entire case was foisted in retaliation to a case registered against the brother of the victim, who was examined as PW4, when he noticed a consensual relationship between PW3 and the accused, and thereafter, he assaulted the accused. It is pointed out by the learned counsel for the accused further that during cross-examination, PW3 initially stated that she went along with the accused. It is pointed out further that even though during further cross-examination of PW3, she had given evidence that she had been dragged to the place of occurrence, no corresponding injuries were noted. According to him, the allegation of the prosecution is not proved beyond reasonable doubt since the evidence of PW3 2025:KER:48272 CRL.A NO. 168 OF 2014 5 regarding the occurrence is not credible. It is also pointed out that as per the evidence of PW10, the then Village Officer, the approximate distance between the place of occurrence and the house of PW3 is only 20m and the same would also indicate the fact that the overt acts are the outcome of consent. If at all, relying on the evidence of PW3, sexual intercourse is found and the same is purely consensual, and no offence of rape would attract. Accordingly, he pressed for interference in the conviction and sentence imposed by the trial court and canvassed acquittal of the accused.
7. Dispelling this argument, the learned Public Prosecutor would submit that PW3 is having some sort of mental deficiency and as per Ext.P4 and as deposed by PW2, it has come in evidence that the approximate mental age of PW3 would come in between 9 and 10 years. According to the learned Public Prosecutor, on reading the evidence given by PW3, the sexual intercourse at the instance of the accused 2025:KER:48272 CRL.A NO. 168 OF 2014 6 against her will was established so that the trial court was right in holding that the accused committed offence punishable under Section 376 of IPC. Therefore, the verdict under challenge is only to be confirmed.
8. In response to the arguments tendered by both sides, the questions arise for consideration are:
1. Whether the trial court went wrong in holding that the accused committed offence punishable under Section 376 of IPC?
2. Whether there is any material available to hold that the sexual intercourse, if any, was the outcome of consent?
3. Whether the verdict under challenge would require any interference by this Court?
4. Orders to be passed
9. Points Nos.1 to 3:
In this case, the crucial evidence is that of PW3, who is the victim. During her chief examination, PW3 testified that she had studied upto 7th standard and was residing with her 2025:KER:48272 CRL.A NO. 168 OF 2014 7 parents and younger brother. Further, her three sisters were already married and she had given statement to the police regarding the occurrence. She deposed that she had familiarity with the accused, who committed the above offence at 3 pm on the date of occurrence and she identified the accused at the dock, wearing red shirt as the offender by pointing at him. Her further version is that when her father was sleeping and her mother was outside, she was at the place of occurrence for collecting firewood. Then the accused dragged her and pushed her, she fell down and he beat her. Then he lifted her skirt and removed her panties (At this stage, witness taken time to answer and the said demeanor was recorded by the learned Sessions Judge in her deposition). Then PW3 stated that then the accused sat on her abdomen. (Thereafter, again the witness taken time to answer and the said demeanor was recorded by the learned Sessions Judge as "witness taking time, very much reluctant/scratching hands on the 2025:KER:48272 CRL.A NO. 168 OF 2014 8 witness box"). Later, she deposed that he raped her and it was clarified that he put his penis into her vagina, caught hold on her both breasts and kissed on her face. Further, he also closed her mouth and lifted upwards and downwards, which resulted in ejaculation. Then the accused ran away from the spot and he was a person residing nearby her house. She identified the maxi, shammi, skirt, bra, panties, and shawl worn by her at the time of occurrence.
10. During cross-examination, when a relevant question was asked to the witness suggesting that the accused had invited her to the place of occurrence, the witness answered that when she was brought by the accused, nobody witnessed the same. (While answering this question, again, the witness began to weep and the court gave her time to relax and the said demeanor also was recorded in her deposition). Then she testified during further cross-
2025:KER:48272 CRL.A NO. 168 OF 2014 9 examination that she was dragged to the place of occurrence by the accused.
11. In this case, Dr.Vidhukumar, who examined PW3's intelligence quotient (IQ), was examined as PW2 and he deposed before the court that on examination by the clinical psychologist, the IQ of PW3 is between 40 and 50. At the same time, PW2 deposed that the approximate mental age of the witness is between 9 and 10 years. Ext.P4 is the certificate so issued. It is true that during cross-examination of PW2, he admitted that the assessment regarding the mental age of the victim was not written in Ext.P4. The learned counsel for the accused vehemently challenged the evidence of PW2 to the effect that the mental age of the victim as 9 and 10 years and submitted that when the IQ level is in between 40 and 50 the same is that of a normal matured person. In order to consider this argument, when judicial notice regarding 2025:KER:48272 CRL.A NO. 168 OF 2014 10 the mental age of a person with IQ level 40-50 is taken, this Court noticed that when the IQ level is 50 of a person having 30 years of age, the mental age is 6 to 9 years, as deposed by PW2. Further when the IQ is in between 40-50 the same is moderate intellectual disability. Therefore, the contention raised by the learned counsel for the accused otherwise is found unsustainable.
12. PW1 examined in this case is Dr.C.S.Sreedevi, who examined the victim on 20.04.2004 while working as the senior lecturer in Forensic Medicine and Assistant Police Surgeon at MCH Thiruvananthapuram, deposed that she had examined the victim of this crime, after recording the version of victim regarding the occurrence as stated by her in detail. On examination, the following observations were made in Ext.P1 certificate.
1. Moderately built and nurished female of height 151 cm weight 45 kg. Cloths were found changed.
2025:KER:48272 CRL.A NO. 168 OF 2014 11
2. No pain during walking.
3. Secondary characters well developed.
4. Appears to be mentally subnormal. (വയസ്സിനു തക്ക മാനസിക വളർച്ച ഇല്ലാത്ത അവസ്ഥ ) General examination showed following injuries.
1. Abrasion 3.1 x 0.3 cm oblique on the inner aspect of right forearm its lower front end was 12.5 cm above the wrist.
2. Abrasion 0.4 x 0.3 cm on the back of left hand at the first web space.
3. Abrasion 0.3 x 0.1 cm and 0.1 x 0.2cm 2.8 cm apart on the front of right leg, the upper one being 12 cm below the knee.
4. Abrasion 0.2 x 0.2 cm on the inner aspect of right leg 13.5 cm below knee.
5. Abrasion 0.4 x 0.4 cm on the front of left leg 22.5 cm below knee.
6. Contusion 7.5 x 0.5cm and 7.5 x 0.6 cm oblique on the outer aspect of left thigh with a pale area of width 0.6 cm in between.
7. Contusion 8 x 0.5 cm and 9 x 0.5 cm obliquely placed 2025:KER:48272 CRL.A NO. 168 OF 2014 12 on outer aspect of left thigh with a pale area of width 0.5 cm in between.
8. Contusion 2.5 x 0.3 cm and 7 x 1 cm obliquely placed on the outer aspect of left thigh with a pale area of width 0.5 cm in between.
Injury Nos.6, 7 and 8 were (reddish) parallel to each other and were 2.5 cm and 3.5 cm apart respectively over an area and 18 x 12 cm with infilteration of blood bluish around lower end of lower one being 20 cm above (corrects below in knee).
The above abrasions (injuries 1 to 5) were covered with adherent reddish crest.
13. While addressing the arguments mooted by the learned counsel for the accused that there are no injuries to the victim to prove the allegation that she was dragged to the place of occurrence by the accused, injuries discussed in Ext.P1, as extracted above, supported by the evidence of PW1, in no way would justify the contention. To the contrary, 2025:KER:48272 CRL.A NO. 168 OF 2014 13 the evidence of PW1 supported by Ext.P1 corroborates the version of PW3 that she was dragged to the place of occurrence and the accused beaten her. PW4 examined in this case is none other than the brother of PW3. He deposed that PW3 was unmarried and she had some mental retardation. According to him, between 2 pm and 3 pm on 19.04.2004, while he was returning home after seeing film, his father was sleeping at the house, he could not find PW3, and he called her and enquired at the nearby house. He also looked into the well nearby. Then he called aloud and found that a person was walking from the rubber plantation and leaving the place. When he reached the place of occurrence, he found that PW3 was in a fatigued state, and the person who left the place was the accused at the dock and he was the resident of the nearby house. Then he deposed about the occurrence and commission of rape by the accused. He deposed that the rubber plantation is the place where the 2025:KER:48272 CRL.A NO. 168 OF 2014 14 occurrence took place, and the occurrence, if any, at the said place could not be witnessed normally by the nearby residents. During cross-examination, PW4 stated that there was allegation that the accused used to misbehave with two children while working as a conductor.
14. In this matter, Ext.P14 is the First Information Report registered at 7 pm on 19.04.2004, i.e, 4 hours after the time of occurrence, alleging commission of offence punishable under Section 376 of IPC by the accused and by naming him as "neighbour Balan". Even though it is argued by the learned counsel for the accused that another crime No.51/2004 was registered against PW4 when he had beaten the accused on seeing the accused and PW3 together, neither the copy of FIR, the final report, nor any records pertaining to the criminal case were tendered in evidence. No such question also was asked during cross-examination of PW4. But it is argued by the learned counsel for the accused that 2025:KER:48272 CRL.A NO. 168 OF 2014 15 this fact has been stated by PW11, the Circle Inspector of Police, Kilimanoor, when he was examined. It is true that PW11, who investigated the crime, deposed in support of the investigation and it was through him, the final report was filed after verifying investigation done by CW16. Even though during cross-examination, when a suggestion was made to the effect that the accused absconded after he had sustained injuries for a period of 18 months, the Circle Inspector of Police answered that on 21.04.2004, he was questioned. He also deposed about crime No.51/2004 stating that the accused therein was not arrested and that crime was investigated by the Sub Inspector of Police. In fact, whether such a crime was registered against PW4 also not deposed by PW11. During cross-examination of PW4, no such suggestion was made, though he had admitted that after the occurrence, he went abroad. Apart from the evidence of PW3 and PW4, PW5 - Muhammed Kannu also deposed in support of the prosecution 2025:KER:48272 CRL.A NO. 168 OF 2014 16 by identifying the accused as the person who was residing on the southern side of his house. According to him, he knew the occurrence on 19.04.2004 and it was happened when he was at the courtyard of his house. According to him, he heard a noise from the place of occurrence and found that the accused was leaving the place of occurrence and later, he noticed that PW3 was found at the place of occurrence in a tiresome state. PW4 turned hostile to the prosecution. PW7, Dr. N.A.Balaram, examined the accused and deposed that the accused was examined by him as he was produced by the Sub Inspector of Police for conducting epithelial test and for any other clue in the alleged case. He obtained written consent and conducted examination and penile tissue was collected for further examination. An injury was noted as abrasion 2.5 cm on the left side of face and 2 cm outer ankle of left eye and no injury was noted on the external genitalia. PW8 examined in this case is the Joint Director, Research at Forensic Science Lab, 2025:KER:48272 CRL.A NO. 168 OF 2014 17 Thiruvananthapuram. He has given evidence that while working as Assistant Director, of Biology division FSL, Thiruvananthapuram, as on 21.04.2004, he received sealed parcel from Sub Inspector of Police, Pallickal in connection with crime No.50/2004 and the parcel contained one sealed packet, sealed with tallying specimen, and the same was in tact. He sent Ext.P6 report to the effect that the item contained vaginal epithelial cells in the sample. PW9 is the Headmistress, B.V.UP School, Maruthikkunnu, and he has produced school register showing the date of birth of the victim as on 25.05.1980. No cross-examination effected to disbelieve the age.
15. It is true that as argued by the learned counsel for the accused, PW10, the Village Officer, who prepared Ext.P8 scene plan, though stated nothing regarding the distance from the place of occurrence and the house of PW3, in Ext.P8, during cross-examination, he deposed 2025:KER:48272 CRL.A NO. 168 OF 2014 18 that distance would come approximately 20m. This distance is pointed out by the learned counsel for the accused to disbelieve the prosecution case. In fact, the consistent evidence coming through PW3, PW4 as well as PW5 and the scene mahazar is that the place of occurrence is a plot of rubber plantation where the presence of others could not be normally available. Therefore, merely because the Village Officer stated that the distance between the place of occurrence and the house of PW3 would come approximate 20m, the same is insufficient to disbelieve the case of the prosecution.
16. Ext.P14 FIR in this case was registered by PW13, the then Sub Inspector of Police Pallickal and it was through him Ext.P14 mahazar pertaining to the recovery of the dress worn by PW3 as well as the forwarding of the same under form 151(a) to the court got marked as Exts.P15 and P16 and it was the Sub Inspector of Police who filed report 2025:KER:48272 CRL.A NO. 168 OF 2014 19 regarding the name and address of the accused and he also deposed about the arrest of the accused and conduct of his potency test and epithelial test. PW14, Dr.Nissa Beggamin, examined the accused on 20.04.2004 to test his potency and as per Ext.P18 certificate issued by PW14, it was stated that "either nothing to suggest that the accused is incapable of performing sexual act".
17. The case advanced by the accused is twofolded. First, the prosecution case is fabricated in retaliation to a case registered against PW4, the brother of PW3. Second, it is argued that although sexual intercourse is proved, it was consensual.
18. Going by the evidence given by PW3 with the demeanor recorded by the learned Additional Sessions Judge while recording her statement, the same would show that the victim narrated the overt acts of the accused, including commission of rape on her. Regarding her mental capacity 2025:KER:48272 CRL.A NO. 168 OF 2014 20 and the mental age, the evidence of PW2 is that the mental age would come only between 9 and 10 years and this Court already deliberated the said fact and found the opinion of PW2 in the instant case, where 'moderate intellectual disability' was found to PW3. In Ext.P1 certificate issued by PW1 also, it was observed that PW3 appears to be mentally subnormal (the mental development is not in accordance with the age). It is relevant to note that the accused has a case that this case was registered in retaliation to a case registered against PW4, when PW4 manhandled the accused when he noticed some compromising relationship between the accused and PW3. But even no such exact suggestion was made during cross- examination of PW4 and no evidence forthcoming to see the said allegation. Thus the evidence discussed herein in toto would establish that the trial court is justified in finding that the accused committed offence punishable under Section 376 of IPC supported by reliable evidence even on re-appreciation of 2025:KER:48272 CRL.A NO. 168 OF 2014 21 the entire evidence. Therefore, the conviction does not require any interference.
19. Coming to the sentence, having considered the nature of the allegations and the same found to be committed against a person with moderate intellectual disability, I am not inclined to re-visit the sentence also, as the same is reasonable in the facts of the present case.
In the result, this appeal fails and is dismissed accordingly.
Registry is directed to forward a copy of this judgment to the jurisdictional court for information and compliance.
Sd/-
A. BADHARUDEEN JUDGE nkr