IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE 12TH DAY OF AUGUST 2013 21ST SRAVANA, 1935 CRL.A.No. 1918 of 2005 ( ) --------------------------- AGAINST THE JUDGMENT
IN SC 93/2005 of ADDL.SESSIONS COURT (ADHOC-1), KOTTAYAM DATED 27 10-2005 CP 18/2002 of J.M.F.C.,PALA CRIME NO.134/2000 OF RAMAPURAM POLICE STATION. ------------- APPELLANT/ACCUSED.: ------------------ REGHU, S/O.KUMARAN, NOLLAMKUZHY HOUSE, EZHACHERRY KARA, VELLILAPPALLY VILLAGE. BY ADV. SRI.P.RAVINDRA BABU RESPONDENT/COMPLAINANT.: ----------------------- THE STATE OF KERALA CIRCLE INSPECTOR OF POLICE, RAMAPURAM REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1918 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2013 JUDGMENT
The accused was prosecuted for the offences punishable under Sections 450 and 376 of IPC. He was found guilty on both counts. He was convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of ` 500/- with a default clause of 7 months rigorous imprisonment and also sentenced to rigorous imprisonment for three years and to pay a fine of ` 250/- with a default clause of rigorous imprisonment for three months for the offence under Section 450 of IPC. Sentences were directed to run concurrently. Set off as per law was allowed.
2. The incident which gave rise to the case occurred on 11.12.2000. On that day, as per the prosecution case, PW5, the mother of the victim namely PW3 had gone to attend the marriage of her son, Prakasan who is also the Crl.A. No.1918/2005 -2- brother of PW3. PW3 is a handicapped lady who is unable to move about on her own. Therefore, on the date of incident, she remained alone at home. The allegation is that after the inmates of the house had gone for the wedding, while PW3 was alone at home, the accused is alleged to have come to the house, taken her inside, laid her on a cot and ravished her. When PW5, the mother returned after the wedding, she found her daughter in a disorganized manner. On enquiry, the incident was revealed to her. She informed her husband and later in the evening, they went and laid Ext.P4, First Information Statement. That is recorded by the Station House Officer. The then Station House Officer who registered crime as per Ext.P4(a), FIR. The investigation was taken over by PW9. He had the victim sent for medical examination. PW2, the doctor examined PW3 and issued Ext.P2 certificate. PW9 prepared Ext.P6 scene mahazar seized Mos 1 to 5 as per Ext.P7 mahazar which are the clothes said to have been worn by the victim at the time of Crl.A. No.1918/2005 -3- incident. After arrest of the accused, he had him subjected to potency test by PW1, the doctor who issued Ext.P1 certificate. He had also seized the clothes worn by the accused as per Ext.P8 mahazar. He recorded statement of witnesses, completed investigation and his Successor in Office laid charge before the court.
3. The court before which the final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Kottayam. The said court made over the case to Additional Sessions Court, (Adhoc) - I, Kottayam for trial and disposal. The latter court, on receipt of records, framed charges for the offences punishable under Sections 450 and 376 of IPC.
4. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 9 examined and had Exts. P1 to P11 marked. MOs 1 to 6 were got identified and marked. After the close of the Crl.A. No.1918/2005 -4- prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He further stated that he and the brother of the victim namely Prakasan were thick friends and due to their activities, there were several cases against the said Prakasan. It is stated by him that the members PW3's family believed that he was causing hindrance for the marriage of Prakasan. He claims to be innocent and said that he has been falsely implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.
5. On a consideration of the materials before it, the lower court came to the conclusion that the offences have been made out and accordingly conviction and sentence followed. The said conviction and sentence are assailed in this appeal. Crl.A. No.1918/2005 -5- 6. The main thrust of argument for the appellant is that going by Exts. P10 and P11, it can be seen that there is no medical evidence to support the findings of the court below. PW2, the doctor who had examined the victim had stated that she cannot conclusively say regarding the issue of rape unless she had the chemical analysis report. Ext.P11 which is the chemical analysis report is against the prosecution. Referring to Ext.P2 certificate, it was contended that the ulcers found in the vagina of the victim could not have been as a result of the act committed by the accused and since there was no bleeding etc, the allegation of rape is false. It was contended that no semen or spermatozoa were detected in the vaginal swab and smear and that belies the prosecution case. Referring to the evidence of PWs 3 and 5, it was contended that their evidence is replete with contradictions and inconsistencies and omissions and those factors make their evidence extremely vulnerable. In short, the contention is that there Crl.A. No.1918/2005 -6- are no convincing items of evidence to come to the conclusion that the accused had committed the offence of rape on the victim.
7. The learned Public Prosecutor on the other hand pointed out that a physically handicapped lady namely PW3 has been sexually assaulted. Her statement to the effect that she was taken from the chair outside to the bedroom by the accused and that she was ravished and also the fact that she was found in a disorganized manner when the mother returned from the place of marriage are not seen seriously challenged in the cross examination. Of course, there is a suggestion that no such act has been committed. But the definte prosecution case is that PW3 who was sitting outside the house when the other inmates of the house left for the marriage, was found sitting inside the house on a cot when the mother returned and she was found crying. PW3, the victim has narrated the incident in detail. PW5 also says about having seen her daughter crying when she returned Crl.A. No.1918/2005 -7- on enquiry being told about what had transpired. It is significant to notice according to the learned Public Prosecutor that the First Information Statement has come into effect soon after the incident and that to a good extent fortifies the prosecution case. The evidence of PW2, the doctor also supports the prosecution case. The doctor who had issued Ext.P2 certificate has noticed in the certificate that there are injuries on the body of the victim and also the features of the vagina would indicate that there could have been penetration. The learned Public Prosecutor went on to point out that there is no reason to disbelieve PWs 3 and 5 and their evidence are sufficient to warrant a conviction. Accordingly, it is contended that no grounds are made out to interfere with the conviction and sentence passed by the court below.
8. As is the usual case, the evidence regarding the incident remains confined to PW3, the victim. There is no challenge to the fact that she is a handicapped lady who is Crl.A. No.1918/2005 -8- unable to move about on her own. The evidence of PWs 3 and 5 show that when the inmates of the house went for the marriage of Prakasan which was to be held on the very same day, the victim namely PW3 was made to sit outside the house on the Varandha on a chair. The statement given by PWs 3 and 5 to the effect that when PW5 returned after marriage, the victim was found inside sitting on a cot and crying, is not challenged in cross examination.
9. As already noticed, the evidence regarding the incident is confined to PW3. PW3 gives a detailed narration about what had transpired after the other inmates of the house had left for marriage. She would say that even though, she pleaded not to do any harm to her, the accused did not heed to it and he took her inside, removed her clothes and sexually assaulted her. There are some contradictions and omissions in her evidence. Some of the statements given by her at the time of evidence is not seen reflected in her 161 statement to the Police. The suggestion Crl.A. No.1918/2005 -9- to PW3 that it was because they believed that the accused had tried to interrupt the marriage of Prakasan that he was made a scapegoat, was denied by PW3.
10. The evidence of PW5 is to the effect that when she returned after the wedding, she did not find her daughter outside who had been left there when they went for the marriage and instead when she entered the house was found her daughter, PW3 sitting on a cot in a disorganized manner. She would say that on enquiry, she came to know what had transpired. She would then say that she had taken her daughter to the hospital and also to the Police Station and laid the First Information Statement.
11. PW2 is the doctor who had examined PW3. Her evidence is of considerable relevance in the case. She had occasion to issue Ext.P2 certificate. She has noticed the external injuries on the forehead and on the root left nipple. She would say that the history of the incident was given by the victim and that it was a case of rape. To a pointed Crl.A. No.1918/2005 -10- question whether she was of the opinion that there was any penetration, she answered in the affirmative. However, she reserved her final opinion pending receipt of chemical examination report. It does not appear that the final opinion has been obtained. But her evidence as on record discloses that she could not rule out the possibility of forced sexual intercourse.
12. Much is made out of the so called omissions brought out in the evidence of PW5 with reference to her First Information Statement that is Ext.P1. One has to remember here that PW5 comes to know about the incident as told by PW3 when she is not in the direct know of things. She has learned about the incident only from her daughter. Under those circumstances, omissions and contradictions are bound to arise. Even otherwise, a witness cannot be expected to mathematically precise while giving evidence in court. As already noticed, her version that she had left PW3 outside the house on a chair and when she returned she was Crl.A. No.1918/2005 -11- found inside in a disorganized manner is not challenged in cross examination.
13. It is not as if the evidence of PW3 stands in isolation. To a good extent, she gets support from the evidence of PW2 and Ext.P2 certificate. It is true that Exts.P10 and P11 reports are against prosecution. But the mere fact that the semen or spermatozoa were not detected in those items is not by itself a ground to come to the conclusion that the prosecution has failed to establish the case against the accused. One goes through the evidence of PW2, it becomes clear that on her findings she is of the opinion that a sexual assault cannot be ruled out. It is in this context that the evidence of PW3 will have to be appreciated. Though handicapped she is in full possession of her mental faculties as noticed by the doctor namely PW2. Of course, there are contradictions and omissions brought out in the evidence of PW3 also. When PW9 was examined, those aspects were put to PW9 who accepted that some of Crl.A. No.1918/2005 -12- the statements made by PW3 in court were not available in Section 161 statement to the Police.
14. But when one goes through the so called omissions and contradictions, it can be easily noticed that they are not regarding the vital aspects of the case at all. As regards the incident as such there is no contradictions or omissions in the evidence of PW3. She gives a graphic description of the incident and there is no reason as to why she should falsely implicate the accused. The suggestion put to PW3 is that it was as a result of the grudge which the family nursed towards the accused due to the reason that being in his company, the brother of PW3 namely Prakasan was involved in several cases and also that he was trying to have the marriage cancelled that a false case has been foisted on him. PWs 3 and 5 stoutly denied this suggestion.
15. It is rather inconceivable that a mother would utilize her daughter in this manner to take out the grudge against the accused. One should remember that by labelling Crl.A. No.1918/2005 -13- herself as a victim of rape, PW3 alone stands to lose. Apart from the agony, she invites humiliation and stigma also and no mother would like it in normal circumstances.
16. As rightly pointed out by the learned Public Prosecutor, the prompt lodging of FIS rules out any possible concoction or development of the case as against the accused. The incident happened on 11.12.2000 in the afternoon and the FIS was lodged late in the evening. PW3 was examined by PW2 on the very same evening and the evidence of PW2 has already been referred to.
17. Even though, PW3 was subjected to lengthy cross examination, there is nothing to show that she is speaking falsehood. Even accepting the omissions and contradictions, her evidence stands scrutiny. There is no reason to believe that she had any specific grudge against the accused and it is difficult to believe that she would have falsely implicated the accused. In fact, her evidence shows that the accused used to visit her house occasionally and she used to play Crl.A. No.1918/2005 -14- cards with him. Under these circumstances, it is difficult to believe that she would have unnecessarily or without justification implicated the accused.
18. It was the above items of evidence and the facts and circumstances which led the lower court to come to the conclusion that the offences have been made out. Findings are based on materials on record and on appreciation of the evidence in the case. Even assuming that a different view is possible, that is not a justification for interfering with the findings of the court below especially when it is a possible and plausible view. One should also remember that the court below which had the occasion to watch the demeanour of PW3 chose to believe the evidence of PW3. Unless there are compelling and convincing reasons it may not be appropriate and proper for a court to disbelieve the version of such a witness. The conviction for the offence under Sections 450 and 376 are only to be upheld and I do so. Crl.A. No.1918/2005 -15- Coming to the question of sentence, the court below has extremely liberal in that regard also. Only the minimum sentence has been awarded for the offence under Section 376 of IPC and the sentence awarded for the offence under Section 450 of IPC is reasonable and just. The result is that no grounds are made out to interfere with the sentence also. The appeal is without merits and is accordingly dismissed. I do so confirming the conviction and sentence passed by the court below. Sd/- P.BHAVADASAN JUDGE ds //True copy// P.A. To Judge