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:
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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
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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
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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
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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
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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
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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
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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-
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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
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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.
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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
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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,
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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
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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
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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
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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,
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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
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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
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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
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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
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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
