Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE28H DAY OF NOVEMBER20137TH AGRAHAYANA, 1935 CRL.A.No. 1457 of 2009 ( ) --------------------------- (AGAINST THE JUDGMENT
IN SC.NO. 89/2006 OF ADDL.SESSIONS COURT (ADHOC) III, PALAKKAD DATED0801-2009) ----------------------------- APPELLANT/ACCUSED:- ---------------------------------------- CHANDRAN, S/O.CHAMI, AGED31YEARS, PLASSERI VEEDU, PLACHITHARA, VANIYAMKULAM, OTTAPPALAM TALUK. BY ADVS.SRI.JACOB SEBASTIAN SRI.S.SANTHOSH KUMAR (BALARAMAPURAM) RESPONDENT/COMPLAINANT:- ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE CIRCLE INSPECTOR OF POLICE, OTTAPPALAM. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON2811-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J.
--------------------------------------- Crl. Appeal No.1457 OF2009--------------------------------------- Dated this the 28th day of November, 2013.
JUDGMENT
The accused was prosecuted for the offences punishable under Sections 450 and 376 of Indian Penal Code. He was found guilty on both counts. He was therefore convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- with default clause of rigorous imprisonment for one year for the offence under Section 376 IPC and also to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- with default clause of rigorous imprisonment for three months for the offence under Section 450 IPC. The substantive sentences were directed to run concurrently and set off as per law was allowed.
2. PW1 is the victim in this case. The incident is alleged to have taken place on 08.01.2005 at about 2 p.m. PW1 laid Ext.P1 First Information Statement. As per the allegations, the husband of the victim conducts business of chappels. On 08.01.2005, when she was all alone at home, at about 2 p.m, while she was Crl. Appeal No.1457/2009 2 taking rest, she happened to hear somebody knocking at the door. She went towards the door. Then she found the accused pushing open the door and entering her house and he gagged her mouth. There was a scuffle and she fell down. The allegation is that the accused overpowering the victim, ravished her. As a result of the struggle exerted by her, PW1 would say that she had suffered injuries on her face and nose. The accused left after the incident and when her mother came home, she narrated the incident to her and on the same day, Ext.P1 First Information Statement was laid.
3. PW8 recorded Ext.P1 First Information Statement and on that basis, he registered a crime as per Ext.P1(a) First Information Report. PW9 took over the investigation. He prepared Ext.P2 scene mahazar and he seized the clothes surrendered to him by the victim as per Ext.P3 mahazar. She was sent for medical examination and PW5 examined the victim and provided Ext.P5 certificate. After the arrest of the accused, he was sent for potency test and necessary certificate was obtained. Statement of witnesses were recorded and after Crl. Appeal No.1457/2009 3 completing investigation, final report was laid before court.
4. The court before which final report was laid took cognizance of the offences and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad. The said court made over the case to Additional Sessions Court Adhoc - III (Fast Track-III), Palakkad for trial and disposal.
5. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 376 and 450 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 10 examined and Exts.P1 to P11 marked. M.O.s 1 to 3 were got identified and marked.
6. 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. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence. Crl. Appeal No.1457/2009 4 7. Presumably, acting on the evidence of PWs 1, 2 and 5 and also with the aid of Ext.P5, the court below came to the conclusion that the offences have been made out and the conviction and sentence as already mentioned followed.
8. Learned counsel appearing for the appellant assails the findings of the court below on several grounds. According to the learned counsel, there was a mechanical act on the part of the court below in accepting the evidence of PWs 1 and 2 without ascertaining whether the claims made by them are true and correct. According to the learned counsel, a close reading of the evidence of PW1 will clearly belie her version that she was sexually assaulted. It is contended that if at all there was any physical relationship, that can only be treated as with the consent and willingness of the victim.
9. Drawing attention to Ext.P1, it is contended by the learned counsel for the appellant that according to PW1, she struggled and in that process, she suffered visible injuries on her face and neck. Referring to Ext.P5 and the evidence of PW5, it is pointed out that such injuries as spoken to by PW1 do not find a Crl. Appeal No.1457/2009 5 place in Ext.P1. Further it is contended that the accused is alleged to have forced himself into the house breaking open the door. She is definite that she had shown the broken door to the Police and the pieces of the door lying at the place of occurrence. Referring to Ext.P2, it is contended that there is no mention of door having been broken down or pieces of door lying in the site. This belies the version given by PW1. Further, according to PW1, she had handed over the undergarments to the investigating officer but as far as Ext.P1 is concerned, the item produced is maxi.
10. It is significant to notice, according to the learned counsel for the appellant, that the doctor who had examined the victim did not bother to collect the vaginal swab and smear and sent them for chemical examination. Learned counsel went on to point out that one should remember that the victim is a married woman and the evidence of sexual intercourse cannot be taken as a ground to find that she has been raped by the accused. It is also significant to notice, according to the learned counsel, that the clothes seized during investigation were not sent for forensic Crl. Appeal No.1457/2009 6 examination also. In this unsatisfactory state of affairs, learned counsel contended that the court below was not justified in coming to the conclusion that the offences have been made out.
11. Learned Public Prosecutor, on the other hand, very vehemently contended that the evidence of PWs 1 and 2 are clinching enough and they are sufficient to show that the offences have been made out. True, there are infirmities in the evidence of PWs 1 and 2. But they are not so glaring enough to make their evidence unacceptable. Their evidence clearly show that the offences have been committed by the accused. The medical evidence also supports the findings of the court below. Learned Public Prosecutor pointed out that the court below which had the opportunity to watch the demeanour of the witnesses has chosen to accept the evidence of PWs 1, 2 and 5 and there is no reason as to why this Court should take a different view. Accordingly, it is contended that the conviction and sentence will have to stand.
12. It is true that in case of rape, evidence of the prosecutrix assumes considerable significance and importance. She is treated as an injured witness and not as an accomplice Crl. Appeal No.1457/2009 7 and therefore, her evidence is normally entitled to considerable weight. If the evidence of the prosecutrix is found to be convincing and cogent enough which inspires confidence in the mind of court, the court need not look for corroboration. But, if the evidence of the victim is open to doubt due to other items of evidence, it will be only proper for the court to look for corroboration. One should remember that the offence being committed in secrecy, it may be imprudent on the part of the court to insist for independent corroborative evidence.
13. Bearing the above principles in mind, an attempt shall now be made to ascertain whether PW2 is of such a character based on which a conviction can be drawn as against the accused.
14. It is true that the First Information Statement was lodged within a short period of the incident. That, to a certain extent, guaranties that the incident has happened. Going by the version given in Ext.P1, while the victim was taking rest in the afternoon, she heard a knock at the door and she went to open the door and then the accused barged in and committed rape on Crl. Appeal No.1457/2009 8 her. At the time of evidence, PW1 maintains that he forced open the door and committed rape on her. Surprisingly enough, in the chief examination, she does not mention about the struggle offered by her and the injury suffered by her which finds a place in Ext.P1.
15. PW2 is the mother of the victim. Her knowledge about the incident is as told to her by PW1. She also would say that she happened to see blood on the nose of the victim and when she asked for the reason, the victim narrated the incident to her.
16. PW5 is the doctor who had examined the victim. She did not notice external injuries as spoken to by PWs 1 and 2. But, on the other hand, she noticed only a small abrasion. Of course, her conclusion is that 'on examination, there was evidence of vaginal penetration past or recent'. It was the evidence of PW1 taken along with PW5 and Ext.P5 which persuaded the court below to come to the conclusion that the offences have been made out. But, as rightly pointed out by the learned counsel for the appellant, the fact that there were indications of vaginal penetration can be of no significance in the Crl. Appeal No.1457/2009 9 case on hand because the victim was a married woman and it is possible that she used to regular sexual intercourse with her husband. It is surprising, as pointed out by the learned counsel, that no vaginal swab and smear was collected to ascertain whether there was any spermatozoa or semen in those samples. No reason is also given for not doing so. Merely because there is evidence of recent vaginal penetration, as rightly pointed out by the learned counsel for the appellant, that cannot lead to the conclusion that rape has been committed on the victim.
17. It will not be inappropriate at this juncture to refer to the statements made by the victim in her cross examination. It would appear that the accused was a regular visitor and she was very familiar with him. She asserts that she had suffered visible injuries on her face and chest as a result of the act committed by the accused. But, as already noticed, none of them find a place in Ext.P1 nor in the evidence of PW5. Strangely enough, at the time of evidence, she comes forward with a different case altogether. She says that first she was ravished on the sopha and then she was thrown on the floor and again she was Crl. Appeal No.1457/2009 10 ravished. This is a case set up when she was cross examined. Of course, she gets support in this regard from PW2 also. But, as already stated, her evidence is confined to what is told to her by PW1.
18. It may be remembered that the definite case of PW1 at the time of giving First Information Statement was that she heard a knock at the door and when she went to open the door, the accused forced himself into the house. There is considerable shift in the stand while at the time of evidence. At the time of evidence, she says that when she was sleeping, she was assaulted and then she woke up and found the accused. Then again her definite case is that the accused had broken open the door and forced himself into the house. She is definite that the broken piece of door was available at the site.
19. PW9 is the investigating officer. He prepared Ext.P2 scene mahazar. There is absolutely no indication of any broken door and pieces of broken door and it must be noticed that the scene mahazar was prepared on the very next day and there is no case that anyone has tampered with the site by the time Crl. Appeal No.1457/2009 11 scene mahazar was prepared. The accused has a case that he has been falsely implicated. In cross examination, a specific question was put to PW1 as to whether she has consulted anybody before filing the complaint. Her answer was that she consulted with party leaders and they told her to file a complaint before the Police Station. She did so.
20. In the light of the above unsatisfactory state of affairs, it is difficult to understand how the court below has come to the conclusion that the evidence of PW1 is clinching enough that a conviction can be based on the same. She has no consistent case and various factors made mention of by her stand belied by other items of evidence. Probably, as rightly pointed out by the learned counsel for the appellant, it was a consensual act and converted into rape under some compelling circumstances. Whatever that be, this Court is unable to accept the finding of the court below that the accused had committed rape on the victim. In the result, this appeal is allowed. The conviction and sentence passed by the court below for the offences under Sections 376 and 450 IPC are set aside and it is held that the Crl. Appeal No.1457/2009 12 accused is not guilty of the said offences. His bail bond shall stand cancelled and he is set at liberty forthwith. If he has paid the fine amount, the same shall be refunded to him. P.BHAVADASAN JUDGE smp