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Krishnan Chithan Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1962CriLJ650
AppellantKrishnan Chithan
RespondentState of Kerala
Cases ReferredRameshwar Kalyan Singh v. State of Rajasthan
Excerpt:
.....that the crime was committed but must in some way reasonably connect or tend to connect the accused with the crime. the best corroboration in his case is the injury sustained by her. the question was objected to by the counsel for the accused and the objection was upheld, i feel the question could have been allowed as the answer would have been perfectly relevant under section 157 of the evidence act. 8. it is hardly possible that any self-respecting girl or her parents would agree to come to the court with a humiliating statement of having been taped unless the story were true or unless there is a strong motive for falsely implicating the accused. ossification test might be a better or surer test for determining the ago, but courts have acted on the opinion of the teeters arrived..........p.m. on hearing the cry the accused was there and he went to fetch the midwife p.w. 6. p.w. 1 the girl has stated that when the mother came she told her what had happened. p.w. 2 stated that immediately she came home p.w. 1 told her something about the injuries, but that she was not able to make out what she actually stated. she however stated that on that night after returning from the dispensary p.w. 1 told her that she was raped by the accused. it is quite likely that what the child said in that perplexed condition could not have been properly understood by p.w. 2 who was also equally in an agitated mood. the prosecution asked p.w. 6 the midwife as to whether she asked p.w. 1 as to who had caused the injuries. the question was objected to by the counsel for the accused and the.....
Judgment:

P. Govinda Menon, J.

1. The appellant in this case has been convicted for the offence of tape under Section 376, I.P.C.

2. The prosecution case is that on 12.7.1960 at about 4 p.m. the accused, committed rape on P.W. 1, a young girl aged 12 years from inside her house. The accused lives two houses away from the house of P.W. 1. P.W. 9 the father of the girl is employed at Cochin. On the morning of 12.7.1960 as usual P.W. 2 the mother went out for work leaving P.W. 1 and her two other children at home. The two children were sleeping and P.W. 1 was scrubbing the floor of the kitchen. At about 4 p.m. the accused came to the house, got inside the kitchen, took P.W. 1 to an adjacent room, laid her down, thrust his penis inside her vagina and committed rape. As a result of this the girl started bleeding.

3. The accused then hurried to the place where the mother was working and fetched her home. The mother came to the house and the accused ran up to the nearby dispensary and fetched P.W. 6 the midwife. P.W. 6 came and applied some medicine and gave the girl an injection, Bleeding however did not stop and the accused carried her to the dispensary for further treatment. Pw6 again examined her. The girl told her as to what had happened. P.W. 6 therefore advised the mother P.W. 2 to take the child to the Government hospital as it was a case of rape-P.W. 1 was therefore taken to the Women and Children Hospital at Alleppey the next day. P.W. 3 the Medical Officer examined her. She sent intimation (to the Sub-Inspector Later she was examined by 'Pw4 another doctor Ex. P4 is the certificate granted by her.

4. The accused denied the offence. According to him when he was in his house that day he heard the cry of P.W. 1 arid ran up to the house. P.W. 2 the mother who was in the house told him that P.W. 1 fell down from a goa tree and suffered injuries and wanted him to bring P.W. 6 and so he helped them to get P.W. 6 and have the child treated. According to him after true, arrival of P.W. 9 the father, this false case has been foisted on him.

5. The medical evidence in the case discloses that P.W. 1 was raped. Ex. P4 shows two injuries. Injury No. 1 is hymen torn and injury No. 2 is a laceration at the posterior fourchette. P.W. 4 has sworn that the cause of these injuries is penetration of the male organ into the vagina of the girl-She was asked in cross-examination whether the injuries could be caused by a fall from a tree and she stated that it is unlikely. A suggestion was made to P.W. 6 whether the injury could not be caused if a stick had been pierced into her vagina and P.W. 6 has replied that if any such stick had been pierced apart from the hymen being torn there would be other injuries in the vagina which was absent in this case. It is therefore clear that the injuries were caused as a result of rape.

6. The next question is whether the prosecution has succeeded in proving that it was caused by the accused. The main evidence as in all such cases is that of the victim, herself. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential! ingredients are concerned, the other evidence being merely corroborative. The question has often been raised whether a conviction can be based on the evidence of the prosecutrix alone or whether there should be corroboration of Tier evidence. The Evidence Act nowhere says corroboration is' necessary. The woman who is raped is not an accomplice. It she is ravished she is the victim of an outrage but a large volume of case law has grown up which treats the evidence of prosecutrix some what along the same lines as accomplice evidence and requiring corroboration. This question had been considered in the case in Rameshwar Kalyan Singh v. State of Rajasthan AIR 1952 S.C. 34. It was stated therein that:

The rule, which according to the case has hardened into one of law is not that corroboration as a essential before there can be a conviction but that the necessity of corroboration, as a matter or prudence, except where the circumstances make it safe, to dispense with it, must be present to the and of the Judge, and in jury cases must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so Turth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.

Again it is not necessary that there should be independent corroboration of every material circumstance in the sense that the Independent evidence in the case, apart from the testimony of the complainant should in itself be sufficient to sustain conviction. All that is required is that 'there must he some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. The evidence, no doubt, should not only make it safe to Relieve that the crime was committed but must in some way reasonably connect or tend to connect the accused with the crime. Corroboraticn may be by facts And circumstances. The best corroboration in his case is the injury sustained by her. That she sustained injuries is not disputed and the doctor's wide-rice would make it clear that it could only be caused by rape.

7. In there then evidence to connect the accused with the crime. There is first the evidence of P.W. 1 and there is nothing to distrust her testimony, P.W. 8 a neighbour has sworn that on the date of the occurrence he had seen the accused going to the house of P.W. 1 at 2 p.m. and at about & in the accused was seen leaving the house and going to fetch the midwife. The accused when questioned has admitted this evidence. P.W. 7 likewise has stated that when he went to the house at 4 p.m. on hearing the cry the accused was there and he went to fetch the midwife P.W. 6. P.W. 1 the girl has stated that when the mother came she told her what had happened. P.W. 2 stated that Immediately she came home P.W. 1 told her something about the injuries, but that she was not able to make out what she actually stated. She however Stated that on that night after returning from the dispensary P.W. 1 told her that she was raped by the accused. It is quite likely that what the child said in that perplexed condition could not have been properly understood by P.W. 2 who was also equally in an agitated mood. The prosecution asked P.W. 6 the midwife as to whether she asked P.W. 1 as to who had caused the injuries. The question was objected to by the counsel for the accused and the objection was upheld, I feel the question could have been allowed as the answer would have been perfectly relevant under Section 157 of the Evidence Act.

8. It is hardly possible that any self-respecting girl or her parents would agree to come to the court with a humiliating statement of having been taped unless the story were true or unless there is a strong motive for falsely implicating the accused. No motive has been alleged or proved that either P.W. 2 or P.W. 9 had any enmity wife the accused or any reason for false implication. I have been taken through the evidence of all these witnesses and I do not find any reasons to differ from the conclusions arrived at by the learned Assistant Sessions Judge that the offence has been brought home to the accused free from doubt.

9. A question was raised by the learned Counsel that there is no proper proof of the age of the girl. P.W. 1 has sworn that she is aged 12 years. Her mother P.W. 2 has likewise sworn that P.W. 1 is aged 12 years. This evidence has not been seriously challenged. In Ex. P4 the certificate issued by the doctor the age of the girl is given as 12 years. P.W. 4 the doctor who treated the girl has stated that the girl is aged about 12 years. No doubt the ossification test has not been conducted by the doctor but in fixing the age of a girl the growth of the teeth, pubic and axillaries hairs, the growth of the breast, height and weight of the girl the all relevant considerations. Ossification test might be a better or surer test for determining the ago, but courts have acted on the opinion of the teeters arrived at without conducting any ossification tests and based on October factors indicated above. The doctor's evidence regarding the age is corroborated by the evidence of P.Ws. 1 and 2 also. The learned Assistant Sessions Judge who had the privilege of seeing the girl has accepted evidence and found that the girl was aged 12 as spoken to by the prosecution witnesses and I see no reason to differ from that finding. The prosecution has, therefore, succeeded m proving the offence beyond reasonable doubt The conviction is therefore correct and is confirmed.

10. Crimes of violence on children and women who are not in a position to defend themselves and especially upon children must be put down with a strong hand. But in view of the peculiar circumstances of this case, I am tempted to agree with the submission of the learned Counsel that a sentence of three years would meet the ends of justice. The sentence is therefore reduced to one of rigorous imprisonment for three years. With this modification the appeal is dismissed.


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