Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE4H DAY OF NOVEMBER201313TH KARTHIKA, 1935 CRL.A.No. 746 of 2006 ( ) -------------------------------- SC1132005 of SESSIONS COURT,KOTTAYAM CRIME NO.66/2005 OF ERATTUPETTA POLICE STATION. .......... APPELLANT(S)/ACCUSED:: --------------------------------------- DEVASIA @ BABY, S/O. VARKEY, KAKKAKATTIL HOUSE, MANNANAM KARA, KOOTTICKAL VILLAGE. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW SRI.ANIL GEORGE MADHAVAPPALLY SRI.A.V.TELLES SRI.VIJO JOSE RESPONDENT(S)/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE PALAI, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON0411-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 746 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 04th day of November, 2013
JUDGMENT
The accused in this case was prosecuted for the offences punishable under Sections 323 and 376 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. He was found guilty on all counts. He was convicted for all the offences and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of 1,000/- for the offence under Section 376 of IPC and sentenced to suffer rigorous imprisonment for six months for the offence under Section 323 of IPC. He was also sentenced to suffer rigorous imprisonment for six months and to pay a fine of 1,000/- for the offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act with a default clause of simple imprisonment for one month. Substantive sentences were directed to run concurrently and set off as per law was allowed. Crl.A. No.746/2006 -2- 2. PW1 is the victim in this case. She was aged 50 at the relevant time. She is a house wife. She stays with her younger son Subhash. The elder son Suresh lives separately. On 26.02.2005 at about 10.45 p.m., it is alleged that she went to answer the call of nature. While so, the accused came from behind, caught hold of her, closed her mouth, dragged her to the eastern side of her compound and then she was ravished. He threatened her with dire consequences if she revealed the incident to anybody. The victim went to the house of the elder son, woke them up and told them what had transpired. She was taken to the hospital in a jeep driven by PW3. PW8 examined her and issued Ext.P6 certificate. The next day, when she was examined by another doctor, she revealed the incident to him and the matter was informed to the police. PW12 went over to the hospital and recorded Ext.P1, First Information Statement and registered crime as per Ext.P1(a), FIR. On the subsequent day, PW1 was examined by PW9 who issued Crl.A. No.746/2006 -3- Ext.P7 certificate. PW14 took over investigation. He prepared Ext.P3 mahazar and seized MOs 1 and 2. He recorded statement of witnesses, had the materials collected during investigation sent for chemical analysis report and obtained Ext.P13 report. On the arrest of the accused, he filed a report showing his detail as Ext.P14. The accused was subjected to potency test. After completing investigation, he 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 Special Court, the case was committed to Sessions Court, Kottayam. The said court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 323 and 376 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act.
4. To the charge, the accused pleaded no guilty and claimed to be tried. The prosecution therefore examined Crl.A. No.746/2006 -4- PWs 1 to 13 and had Exts. P1 to P14 marked. After the close of the 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 also pointed out that PW1 had very close acquaintance with him for the last two or three years and that he had sexual relationship with her on one occasion. He would say that he had put up a latrine for the victim for which money was not paid to him. He would also say that the victim had borrowed amount from him. Then he says that PW1 used to come to his house and call him and demand for money. He did not relent. Due to that grudge, a complaint had been filed against him. He would also say that prior to the incident, the brother of the accused was taken by PW1 to her house and he stayed their for a few days.
5. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his Crl.A. No.746/2006 -5- defence. He chose to examine Dws 1 and 2. On an appreciation of the evidence in this case, the court below found that the offences are made out and accordingly found that he was found guilty on all counts. Conviction and sentence are assailed in this appeal.
6. The learned counsel appearing for the appellant contended that the court below was not justified in coming to the conclusion that the offences have been made out. Apart from the unnatural version given by the victim, the court below has omitted to note that on the first occasion, when PW1 was examined by PW8 and Ext.P6 certificate was issued, there was no case for the victim that she had been ravished. The only complaint she then had was that she had been physically assaulted by the assailant. Had the version given by PW1 been true, obviously mention would have been made by PW8 when she was examined and the absence of any mention of rape in Ext.P6 belies the version given by the victim. It was further contended that the evidence of PW1 Crl.A. No.746/2006 -6- shows that human semen will be present only for 24 hours and if that be so, Ext.P8 report can be of no use. It is also pointed out that Ext.P13, the FSL report is against the prosecution and that would again belie the version given by the prosecution. These aspects are not taken note of by the court below and therefore conviction and sentence cannot stand.
7. The learned Public Prosecutor on the other hand pointed out that the court below has meticulously analyzed the evidence in the case and has come to the conclusion that the evidence of PWs 1 to 4 suffer from no infirmity and there is no reason to disbelieve PW1. The mere fact that PW8, the doctor who examined the victim first, had not been told about rape by itself cannot be a ground to doubt the version regarding the incident. The victim has offered an explanation which is satisfactory and acceptable. It is clear from the evidence of PW9 and Ext.P7 taken along with Ext.P8 that the victim had been ravished as alleged by her. Crl.A. No.746/2006 -7- According to the learned Public Prosecutor, no infirmities can be seen in the evidence of PWs 1 to 4. Ext.P8 chemical analysis report relates to the examination of any other swab and smear and that shows semen or spermatozoa which fortify the prosecution case. None of the contentions raised by the appellant has any merit and according to the learned Public Prosecutor, this appeal is only to be dismissed.
8. As is the usual case, here too, the evidence regarding the actual incident remains confined to PW1, the victim. If, on a consideration of the evidence with the infirmities pointed out by the learned counsel appearing for the appellant, it is found to be acceptable and credit worthy and there is no reason to disagree with the lower court. Normally, a victim of rape is not treated as an accomplice but is in the position of an injured witness whose evidence is entitled to considerable weight. It is also well settled that if the evidence of the victim inspires confidence in the mind of court, that evidence alone can form the basis of conviction. Crl.A. No.746/2006 -8- The court needs for corroboration only when the evidence of the victim appears to be suspicious or her evidence is rendered suspicious by other items of evidence adduced in this case. Since the act is such that it is done in secrecy, it will be imprudent normally to insist for corroborative item of evidence, except possibly some support from the medical evidence.
9. PW1 narrates the incident in detail. She at the time was staying with her younger son and her elder son was staying in a separate house. She says that on 26.02.2005, that is the date of incident, at about 10.45 p.m., she went to answer the call of nature on the north eastern side of her house. The accused came there, caught hold of her, dragged her, took her to the north eastern corner of her property and ravished her. After the incident, he said to have stated that he has been waiting for an opportunity which he got then. He also threatened her with dire consequences if she revealed the incident to any person. Crl.A. No.746/2006 -9- She says that as a result of the dragging done by the accused, she had injuries on her body. She claims to have gone to the house of her elder son Suresh and hearing her cries, Suresh and his wife, PW2 came out of the house. She told PW2 in detail as to what had transpired. She was made to change her dress and the husband of PW2 fetched a jeep. They went to the Taluk Hospital at Pala. She would say that she was examined by a doctor. She says that she did not disclose the entire details to the doctor and only stated that she had been assaulted physically. She had severe pain in the chest and she was confused as to whether she should disclose the incident to the doctor. She remained in the hospital for eight days. On 27.02.2005, she was examined by another doctor at about 1.30 in the noon. To that doctor, PW1 says that she disclosed that she had been ravished.
10. PW2, the daughter-in-law of PW1 confirms that hearing the cries of PW1, she and her husband had come out and had seen the miserable fate of PW1. She would say that Crl.A. No.746/2006 -10- PW1 was given a wash and her clothes were changed. By that time, her husband had brought the jeep driven by PW3 and the victim had taken to the Taluk Hospital at Pala. She would say that she and her husband had gone along with the victim.
11. The evidence of PW3, the driver of the jeep confirms that on 26.02.2005, at late in the night, the owner of the jeep called him over phone and asked him to bring the jeep where PW2 was staying. He took the jeep there and he says that PW1 and other mounted the jeep and he dropped them at Taluk Hospital. He has also stated that when they reached the hospital, he was told that PW1 was sexually assaulted. PW4 is the neighbour and a friend of PW2. His evidence disclosed that the husband of PW2 called him in the dead of night and told him that his mother had been taken to the hospital. He came along with the husband of PW2 to their house and there he was made aware of the incident. He also would say that when they reached the Crl.A. No.746/2006 -11- hospital, he told the jeep driver what had transpired.
12. Even going by the stand taken by the defence, the accused was acquainted with PW1. He would say that he had put up a latrine for her and the victim had not paid the money that was due to him. It was suggested to PW1 that on several occasions, they had sex. But that was stoutly denied by PW1.
13. One of the infirmities pointed out is with regard to the place where the accused had dragged the victim before being ravished. In Ext.P1, the direction stated is north eastern side whereas at the time of evidence, PW1 stated a different direction. This inconsistency, if at all any, is too insignificant as it has not much relevance regarding the actual incident. It is immaterial whether it is on the eastern side or north eastern side where the incident had occurred. The question is whether the version given by PW1 regarding the incident is acceptable or not. Crl.A. No.746/2006 -12- 14. In fact, there is no merit in any of these contentions because the scene mahazar clearly shows the place of incident which is as spoken to by PW1.
15. PW8 is admittedly the doctor who had examined the victim at the first instance when she was taken to the Taluk Hospital at Pala. Ext.P6 is the wound certificate issued by him. Ext.P6 shows a contusion on the lower lip, abrasion on the left elbow, pain on the right side of chest, pain on the back of chest, pain on the left side of face and pain on the front of neck. One may recollect here that PW1 has a definite case that from the place where she was answering the call of nature, she was picked up by the accused and dragged her to some distance. That version of PW1 gets corroboration from the entries in Ext.P6 which shows the external injuries.
16. It is true that to PW8, it does not appear that the accused had disclosed that she had been ravished. But, PW1 has offered an explanation for the same and that Crl.A. No.746/2006 -13- seems to be just and reasonable. The examination of PW8, in the light of what was disclosed to her, was confined to the various parts of the body. There was no examination by PW8 with specific reference to the sexual assault. However, PW8 has stated that the injuries noticed by him are of recent origin.
17. Even though neither PW1 nor others who had accompanied the victim to the hospital had disclosed to PW8, who examined PW1 initially that there has been sexual assault, one has to remember that the family must have been in dilemma as to whether the facts should be disclosed, considering the nature of acts and humiliation and agony caused to the victim. The mere fact that to PW8, the incident as a whole has not been disclosed, cannot make the evidence of PW1 unacceptable.
18. It is here that one has to notice the evidence of PW9 and the entries in Ext.P7. PW9 is the Gynecologist who had examined the victim on 28.02.2005 at about 9.00 a.m.. Crl.A. No.746/2006 -14- To the said doctor, PW1 had disclosed that she had been ravished. In Ext.P7, PW9, the doctor has entered her findings. She had collected the vaginal swab and smear for chemical examination. Based on her findings, PW9 has given evidence to the effect that she is convinced that there is evidence of physical violence.
19. It is true that PW9 has stated that the semen and spermatozoa will be available only for 24 hours. This is highlighted by the learned counsel appearing for the appellant contended for the position that the presence of semen and spermatozoa when PW9 examined the victim on 28.02.2005, cannot be believed since the incident had taken place on 26.02.2005.
20. The above contention is without any merits whatsoever. A stray sentence out of the evidence of PW9 cannot be picked out and given undue significance or relevance. PW9 has categorically stated that the vaginal swab and smear collected by her and sent for chemical Crl.A. No.746/2006 -15- examination as per Ext.P8 report shows the presence of semen and spermatozoa. In court, she has given the mobility period as 24 hours. There is no reason to disbelieve PW1 in this regard and her evidence is convincing to show that there has been physical violence and sexual assault.
21. It is true that the dress items which was collected during investigation was sent for forensic examination. Ext.P13 is the FSL report. That indicates that no semen and spermatozoa were detected in any of the dress materials examined by the laboratories.
22. Merely because, Ext.P13 is negative and is against the prosecution, it cannot make a conclusion that the evidence of PW1 is to be disbelieved.
23. It is true that PW9 has stated that she has not found any visible injuries on the genital. But that is not necessary in all cases of rape. It is also to be remembered that the victim is 50 years of age. The grievance of the victim that she was raped stands largely fortified by the Crl.A. No.746/2006 -16- evidence of PW1 taken along with the entry in Ext.P6. The result of chemical examination as reflected in Ext.P8 further confirms the testimony of PW1.
24. It is significant to notice that the soon after the incident, the victim had been taken to the hospital. This court is not forgetful of the fact that PW8 who initially examined the victim, has not told about the sexual assault. But the reason for that has already been referred and is found to be acceptable.
25. Quite significantly, as already noticed, the external injuries noticed in Ext.P6 correspond to the testimony of PW1. The other items of medical evidence consisting of the testimony of PW9 and Exts. P7 and P8 also confirm the testimony of PW1.
26. Therefore, in this case, apart from the evidence of PW1, we have the evidence of PWs 8 and 9 and also Exts. P6, P7 and P8. Crl.A. No.746/2006 -17- 27. The story given by the accused in 313 statement cannot be accepted. It is also significant to note that Ext.P1, First Information Statement which was taken from the hospital and which was laid on 27.02.2005 contains all the necessary details. It could not be said that there is any embellishment or development at the time of evidence by PW1. One must also notice that no serious inconsistency or contradiction could be brought out in the evidence of PW1. This is a case where the evidence of PW1 stands scrutiny and is convincing, cogent and credit worthy. There is no reason to disbelieve PW1 with regard to the incident. The court below was perfectly justified in coming to the conclusion that forced sexual assault has been committed on the victim.
28. What now remains to be considered is what are the offences committed by the accused. Of course, on the allegations and in the light of the testimony furnished by PW1 and other items of evidence , the offences under Crl.A. No.746/2006 -18- Sections 323 and 376 are obviously made out. The accused was rightly found guilty of those offences.
29. However, the position may be different with regard to the finding under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. There is neither any allegation nor any evidence to show that the offence was committed with the full knowledge of the accused that the victim belonged to SC/ST or as a result of the racial prejudice or word by the accused.
30. Merely because a member of Scheduled Caste or Scheduled Tribe has been subjected to some offence by assault, it does not automatically follow that the provisions of the Act are attracted. There must be some element of racial prejudice or some evidence of the Act being directed against the victim because she belonged to a Scheduled Caste of Scheduled Tribe. There is no such evidence in the case on hand and therefore, conviction and sentence for the offence under Section 3(1)(xi) of SC/ST (Prevention of Crl.A. No.746/2006 -19- Atrocities) Act has to be set aside.
31. Coming to the question of sentence, the sentence awarded under Section 323 seems to be reasonable. Coming to the sentence under Section 376 of IPC, the court below has extremely considerate and has awarded only a minimum sentence. But the fact remains that the incident had taken place about eight years ago and the circumstances might have been changed. Considering the totality of the circumstances, it is felt that the sentence of imprisonment awarded to the accused for the offence under Section 376 of IPC is slightly on the high side. This appeal is partly allowed. Conviction and sentence for the offence under Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act is set aside and it is held that the accused is not guilty of the said offence. He is acquitted of the said offence. Conviction for the offences under Sections 323 and 376 are confirmed so also the sentence for the offence under Section 323 of IPC. The sentence awarded for the Crl.A. No.746/2006 -20- offence under Section 376 is set aside instead he is sentenced to undergo rigorous imprisonment for five years and to pay a fine of 2,500/- in default of payment of which he is to undergo rigorous imprisonment for a further period of one year. If the fine amount is realised, the same shall be paid to PW1, the victim as compensation. Set off as per law is allowed and substantive sentences shall run concurrently. P.BHAVADASAN JUDGE ds