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  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1038 OF 2007

M. Ayoob ..... APPELLANT

VERSUS

State of Kerala ..... RESPONDENT

O R D E R

This is an unfortunate matter and in addition to  

the various issues on fact and law which have been  

raised by the learned counsel for the parties, a very  

human issue also arises.   

The appellant before us, M. Ayoob, was charged  

for an offence punishable under Section 376 of the IPC  

for having committed rape on P.W. 1 aged about 15 years  

on the 15th March, 1990.  It appears that the factum of  

rape was not revealed by the prosecutrix to anybody  

including  her  parents  till  a  medical  examination  

several  months  later  showed  that  she  had  been  

impregnated on account of the rape.  It also appears  

that at this stage the prosecutrix divulged the entire  

story to her parents.  Attempts were thereafter made by  

them as also by members of the Panchayat including P.W.

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2 – Abdul Qadir, to see if some settlement could be  

arrived at including a proposal that the prosecutrix  

and the appellant be married.  P.W. 2 – Abdul Qadir  

also suggested, that as the appellant was denying his  

paternity of the child, he should undergo a DNA test  

which would settle the matter once and for all either  

ways.  When all these proposals bore no result, an FIR  

was lodged after a delay of about eleven months.  On  

the completion of the investigation, the matter was  

committed  for  trail.   During  the  trial,  several  

prosecution  witnesses  including  the  prosecutrix,  her  

parents,  P.W.  2-  Abdul  Qadir,  and  several  others  

appeared and gave their depositions.  The prosecutrix  

in order to fix the time of incident, deposed that the  

rape had been committed on 15th March, 1990 i.e. on the  

day she was to attend an examination in her school.  

The trial court relying on the statement of the Head  

Master of the School that no examination/test was to be  

held on the 15th March, 1990 held that the prosecutrix  

had put up a false story and almost exclusively on this  

basis acquitted the appellant.  The State thereupon  

filed an appeal before the High Court which was allowed  

by the impugned judgment dated 4th March, 2007.  The  

High Court observed that there was absolutely no reason

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whatsoever to disbelieve the prosecutrix in particular,  

and also the other  prosecution  evidence and that the  

delay of about eleven months in the lodging of FIR had  

been adequately explained as efforts were being made in  

the  interregnum  to  arrive  at  a  compromise  and  to  

persuade the appellant  to take the prosecutrix as his  

wife.  Having held as above, the High Court sentenced  

the  appellant  to  undergo  seven  years  rigorous  

imprisonment and to pay a fine of Rs. 40,000/- and in  

default  of  payment  of  fine  to  undergo  simple  

imprisonment for a period of one year for the offence  

punishable under Section 376 of the IPC.  The present  

matter is before us by way of special leave.

We have gone through the evidence with the help  

of the learned counsel for the parties and have heard  

them out on the various issues raised.  We find no  

infirmity in the judgment of the High Court as the  

delay in the lodging of FIR has been adequately and  

reasonably  explained  and  the  prosecution  evidence  

clearly reveals that it was the accused-appellant who  

was guilty of having committed the rape on 15.03.1990.  

The statement  of the Headmaster that no test was held  

in  the  School  on  15th March,  1990  does  not,  to  our  

mind,   advance the defence story as the test had been

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held  3  days  later  and  the  prosecutrix,  who  was  

recording her statement after a delay of three years,  

had understandably got confused.  We also notice that  

the High Court had again made an offer to the appellant  

that in case he was willing to undergo the DNA test he  

could  do  so  even  now  and  that  the  same  could  be  

arranged but the appellant had again declined the test  

on a technical plea.   

We, therefore, confirm the findings against the  

appellant.

Mr. M.K. Sreegesh, the learned counsel for the  

appellant, has, further, pointed out on the basis of  

the record that the incident had happened twenty years  

ago and that the prosecutrix, was, as of now, happily  

married with children as well as the child born out of  

the rape and likewise the appellant was married with  

three children and that if the sentence was reduced to  

one already undergone, the appellant would be ready to  

monetarily help out the unfortunate child.  In this  

connection, the learned counsel has placed reliance on  

State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC  

384 and State of Rajasthan v. N.K. (2000) 5 SCC 30. In  

Gurmit  Singh's  case (supra)  this  Court  observed  as  

under:-

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“The  respondents  were  aged  between 21-24 years of age at the time  when the offence was committed.  We are  informed that the respondents have not  been involved in any other offence after  they were acquitted by the trial court  on  1.6.1985,  more  than  a  decade  ago.  All  the  respondents  as  well  as  the  prosecutrix must have by now got married  and settle down in life.  these are some  of the factors which we need to take  into  consideration  while  imposing  an  appropriate sentence on the respondents.  We accordingly sentence the respondents  for the offence under Section 376 IPC to  undergo five years' RI each and to pay a  fine of Rs. 5000 each and in default of  payment of fine to 1 year's  RI each.  For the offence under Section 363 IPC we  sentence them to undergo three years' RI  each but impose no separate sentence for  the offence under Sections 366/368 IPC.  The  substantive  sentences  of  imprisonment  shall,  however,  run  concurrently.”  

Likewise  in  N.K.'s  case (supra)  while  taking  

into  consideration  the  huge  time  gap  between  the  

conviction and the hearing of the appeal, the Court  

came to the conclusion that the ends of justice would  

be met if the sentence was reduced to that already  

undergone.  Both the matters above referred were under  

Section 376 of the IPC.   

Coming to the facts of the present case, we find  

that  prosecutrix  was  less  than  16  years  and  the  

appellant about 20 years of age on the date of the  

incident. More than 20 years have since elapsed which

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would  mean that the prosecutrix would be about 35  

years and the appellant 40 years of age.  Both are said  

to be happily married with families of their own.  We  

are, therefore, of the opinion that keeping in view the  

above circumstances and on the principles referred to  

in the above cited judgments of this Court, we reduce  

the sentence on the appellant to that already undergone  

by him (which we are informed is 1 year and 8 months)  

and to increase the fine to Rs. 2,00,000/- (Rupees Two  

lacs only) to be paid to the child fathered by the  

appellant  and   in  the  custody  of  the  mother-

prosecutrix.  The aforesaid sum shall be payable by way  

of a bank draft made out in the name of the child  

within a period of three months from today.  We make it  

clear that in case the aforesaid amount is not defrayed  

as directed, the appeal will be deemed to have been  

dismissed in toto.  Information about the payment or  

otherwise be conveyed to this Court by the trial court  

immediately after the expiry of three months.

The  appeal  is  disposed  of  in  the  aforesaid  

terms.   

    ..................J      [HARJIT SINGH BEDI]

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    ..................J      [DR. B.S. CHAUHAN]

NEW DELHI AUGUST 18, 2009.

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