Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 2ND DAY OF JULY 2013 11TH ASHADHA, 1935 CRL.A.No. 856 of 2006 ( ) -------------------------- (AGAINST THE ORDER/JUDGMENT IN SC.NO. 133/2000 OF ADDL.SESSIONS COURT-I, MAVELIKKARA DATED 06 04-2006) ---------------------------- APPELLANT(S)/ACCUSED: ------------------------------------------ 1. RADHA, PUNTHALA KOICKAL PADEETTATHIL, PELAMURI, KUNNAMANGALAM VILLAGE.
2. MOHANKUMAR @ AMBALAM, KANNADIKKAVIL PUTHENVEETTIL, MATTOM NORTH MURI, KANNAMANGALAM VILLAGE.
3. JOY,AIRATTIL VEETTIL, KADAVOOR MURI, KANNAMANGALAM VILLAGE.
4. SAJEEV, PUNTHALA KOICKALY, PADEETTATHIL, PELA MURI, KANNAMANGALAM VILLAGE. BY ADV. SRI.R.KRISHNA RAJ BY SRI.P.VIJAYA BHANU,SENIOR ADVOCATE BY ADV. SRI.P.M.RAFIQ RESPONDENT(S)/COMPLAINANT: ------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, MAVELIKKARA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. *ADDL.R2 IMPLEADED *R2: MINI @ USHA,AGED 4 YEARS, D/O.OMANA, CHIRAERAMBATH,NELLIVILA COLONY, KOZHENCHERRY, PATHANAMTHITTA DISTRICT, NOW RESIDING AT KOOTTIL KIZHAKKATHIL, SAKTHIKULANGARA, SAKTHIKULANGARA.P.O., KOLLAM-691 525 *IS IMPLEADED AS THE ADDITIONAL 2 D RESPONDENT AS PER ORDER DATED 2 07/2013 IN CRL.M.A.NO.4867/2013 IN CRL.A.NO.856/2006. R1 BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN R2 BY ADV.SRI.B.H.MANZOOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts CRL.A.NO.856/2006 APPENDIX PETITIONER'S ANNEXURES: ANNEX A COPY OF THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT SIGNIFYING THE FACTUM OF SETTLEMENT OF DISPUTED WITH THE ACCUSED IN THE CASE. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 856 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 02nd day of July, 2013 JUDGMENT
Eight persons were sought to be prosecuted for the offences punishable under Sections 343, 366, 326 and 376 read with 34 of IPC. Among them, A7 and A8 had been absconding. A4 and A5 were acquitted on trial. A1 to A3 and A6 were found guilty of the offences alleged against them. They were convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- with a default clause of six months rigorous imprisonment for the offence under Section 343 of IPC, rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- with a default clause of two years rigorous imprisonment for the offence under Section 366 of IPC and also to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- with a default clause of rigorous imprisonment for two years more for the offence under Section 376 of IPC. If Crl.A. No.856/2006 -2- the fine amount was realized, a sum of Rs. 25,000/- shall be given to the victim as compensation. Set off as per law was allowed.
2. PW9 is the victim in this case. She is a casual labourer. She was married about seven years prior to the date of incident. Her husband passed away about 2 = months prior to the laying of First Information Statement. He was a driver by profession. She had two children. After the death of her husband, she was staying with her mother- in-law in the matrimonial house. Unable to bear quarrel with the mother-in-law, PW9 shifted her house to Pela Muri. She later took up residence in the house of one Thankamma. On 30.03.1997, she had gone for work at Changanassrry and she happened to meet a lady by name Radha. She agreed to make available a house for PW9. In the evening, they went to the house of said lady, Radha. Due to her compulsion, PW9 stayed in the said house. She entrusted the money she had to Radha. The allegation is that in the Crl.A. No.856/2006 -3- night, by about 8.00 p.m., two persons came to the house of Radha and it is alleged that the said Radha compelled PW9 to have sex with them. When she resisted, she was threatened with dire consequences and ultimately she had to concede. She was locked up in the room and she remained there till 04.04.1997. She says that at the instance of said Radha, she was compelled to entertain quite a few persons including the son of Radha. PW9 would say that she managed to escape from that house and she mounted an autorikshaw. The autorikshaw was taken to some distant place and stopped in front of a building which was under construction. When she was reluctant to get down from the autorikshaw, she was caught hold of and dragged into the building. She fell down herself while climbing the steps in the building. She was taken to the hospital from where she laid Ext.P7, First Information Statement. Crl.A. No.856/2006 -4- 3. PW10, the Sub Inspector of Police getting intimation from the Government Hospital, went out to the hospital and recorded statement of PW9. He returned the station and registered crime as per Ext.P12, FIR. He prepared Exts.P2 and P3, scene mahazar. The investigation was taken over by PW11. PWs 11, 12, and 13 are the Investigating Officers who recorded statement of witnesses, completed investigation and laid charge before the court.
4. The court before which the final report was laid, took cognizance of the offences. On finding that the offences are exclusively triable by a Court of Sessions, committed the case to Sessions Court, Mavelikkara. The said court made over the case to Additional Sessions Court, Mavelikkara for trial and disposal.
5. The said court on receipt of records, framed charges for the offences punishable under Sections 343, 366, 326 and 376 read with 34 of IPC. After trial, A1 to A3 and A6 were found guilty and conviction and sentences Crl.A. No.856/2006 -5- already mentioned were followed. The said conviction and sentence are assailed in this appeal.
6. The learned counsel appearing for the appellant contended that the sole evidence regarding the incident is furnished by PW9 and a careful scrutiny of her evidence will show that she was a consenting party to the so called sexual assault. It is also contended that her evidence deviates a lot from Ext.P7 and her evidence is highly improbable and artificial. The court below has not appreciated the evidence in proper perspective. The learned counsel appearing for the appellant pointed out that the whole prosecution case hinges on the evidence of PW1 and if it is found that the evidence of PW9 is vulnerable, then the conviction and sentence cannot stand.
7. The learned Public Prosecutor on the other hand contended that PW9, the victim in her evidence stated what had transpired and how she was forced to have sex with few persons brought by Radha and others. There is no reason to Crl.A. No.856/2006 -6- disbelieve PW9 and there is no reason to doubt her testimony. No oblique motive is attributed to implicate the accused persons as she is the victim of rape. The learned Public Prosecutor pointed out that the court below has accepted the evidence of PW5 and there is no reason as to why this Court should take a different view. In short, the learned Public Prosecutor pointed out that no grounds are made out to interfere with the findings of the court below.
8. As usual, the evidence regarding the incident is confined to PW9, the prosecutrix in this case also. If her evidence is found to be credit worthy and acceptable and it inspires confident in the mind of court, then conviction and sentence can be based on the same. It is not necessary in such circumstances to look for corroboration. If on the other hand, any doubt is created regarding her evidence or if it is found that her evidence is not above board, then it will be prudent on the part of the court to look for corroborative items of evidence. Crl.A. No.856/2006 -7- 9. As already stated, PW9 is the victim in this case. Her grievance is that on 04.04.1997, she was sexually assaulted and thereafter she was made to yield the desires of several persons including accused Nos. 2 and 3. She was specifically stated that on 04.04.1997, at about 8.00 p.m, the sixth accused had ravished her. She has stated in her evidence that she was locked up in a room and made to dance to the tune of Radha and two other persons. Finally, she managed to escape and mounted an autorikshaw who took her to a building which was under construction. When she was reluctant to get down from the autorikshaw, she was dragged from the autorikshaw and in that process, she fell down. Then auto driver took her to his auto and deserted her. On the next day morning that is on 05.04.1997, some passers-by came to her rescue. She was removed to the hospital.
10. PW9 was first examined by a civil surgeon who issued Ext.P8 Medical Certificate. The certificate clearly Crl.A. No.856/2006 -8- shows that the injuries suffered by the victim and that she was subjected to sexual intercourse.
11. It is true that the evidence regarding the incident is confined to PW9, the prosecutrix. She has given a consistent and cogent version regarding the incident and her evidence is consistent with Ext.P7, First Information Statement. She has subsequently stated that even though she tried to resist the act committed by various persons, she was unable to succeed due to the pressure exerted by Radha and others. The evidence of PW9 also shows that she was confined to the house for a few days and fortunately she escaped from that place. She had given a description about Radha and acquaintance with Radha and what transpired thereafter. The court below, on an analysis of evidence found that the offences as against the A1 to A3 and A6 have been established. On an independent evaluation, this Court finds no reason to take a different view since no infirmity is pointed out in the evidence of PW9 and her evidence stand Crl.A. No.856/2006 -9- scrutiny and inspires confidence in the mind of court. In the light of the said fact, the conviction of A1 to A3 and A6 will have to stand.
12. What now remains to be considered is the sentence awarded by the court below. The accused were found guilty of the offences alleged against them. It is necessary to notice that Crl.M.A.No. 4867 of 2013 has been filed for impleading the defacto complainant. The defacto complainant has entered appearance and has filed an affidavit to the effect that she has no grievance in the matter and she was not subjected to forced sexual assault and what had transpired was with her consent and at that time, she was a major and she had entered the sexual acts voluntarily and out of her free will. She therefore, pointed out that she has no grievance against accused Nos. 1 to 3 and 6.
13. The offences of which the accused are found guilty, are not compoundable offences. Under such Crl.A. No.856/2006 -10- circumstances, as per the principles laid down by the Apex Court, leniency can be shown only with regard to the sentence. In the case on hand, the defacto complainant has pointed out that no rape was committed on her and all the acts were with the consent of the victim. In the result, while confirming the conviction for the offences punishable under Sections 343, 366, 326 and 376 read with 34 of IPC, the sentence imposed are set aside and sentence for all the offences shall be confined to the period of detention already undergone by the accused. The sentences for various offences shall be deemed to have run concurrently. Sd/- P.BHAVADASAN JUDGE ds //True copy// P.A. To Judge