Kerala High Court
Anil Kumar vs Ayyappan on 5 April, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935
Crl.Rev.Pet.No. 2280 of 2003 ( )
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CRA.30/1997 OF ADDITIONAL SESSIONS FAST TRACK COURT-I, PALAKKAD.
SC.10/1996 OF ASSISTANT SESSIONS COURT, OTTAPPALAM.
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PETITIONER-APPELLANT/ACCUSED:
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ANIL KUMAR, S/O.APPAN,
KALAPARAMBATHU HOUSE, KUTTIKKODE DESOM,
THRIKKADEERI AMSOM, OTTAPPALAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.SRI.V.V.RAJA,
SRI.M.T.SURESHKUMAR.
RESPONDENTS-COMPLAINANT & STATE:
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1. AYYAPPAN, S/O.CHAMI,
PALAKKARIYATTIL HOUSE,
THRIKKADEERI AMSOM, KUTTIKKODE DESOM,
OTTAPPALAM TALUK, PALAKKAD DISTRICT.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR MR.ROY THOMAS.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 05-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
P.BHAVADASAN, J.
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Crl.R.P. No.2280 OF 2003
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Dated this the 5th day of April, 2013.
O R D E R
The accused was prosecuted for the offence punishable under Section 376 of the Indian Penal Code. He was found guilty of the said offence and was therefore convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/- with default clause of six months simple imprisonment. It was also directed that if the fine amount is realised, it shall be paid to the victim as compensation.
2. PW3 is the victim in this case. She was aged, as going by the charge framed by the court, 17 years as on the date of framing of charge. According to the allegations, PW3 was alone at home on the date of the incident i.e. on 11.02.1991. The accused is said to have jumped over the fence and caught hold of her and dragged her into the room and ravished her on 11.02.1991. PW3 would say that there was bleeding as a result of the act committed by the accused. However, she washed the Crl.R.P.No.2280/2003 2 clothes and wore fresh clothes. She would say that out of fear, she did not initially disclose the incident to anybody including her parents and later since the accused promised her that he would marry her, she thought it not necessary to reveal the incident to anybody. However, when she was eight months pregnant, swelling appeared on her body and she was taken to the hospital. Then it was revealed that she was pregnant and on questioning by parents, she told them that it was the accused who was responsible for the same. The allegation is that the parents went to the house of the accused. The accused as well as his mother denied any relationship with PW3 and the accused refused to marry her. It is stated that a complaint was filed before the Police Station concerned and also that several complaints were sent to various authorities. The Police, however, filed a refer report and notice on which was given to the complainant. It is seen that the private complaint was filed by PW2 on 30.06.1992.
3. Initially, since the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was also incorporated in the complaint, it seems that Judicial First Class Crl.R.P.No.2280/2003 3 Magistrate Court concerned before which the complaint was filed returned the complaint to be filed before the appropriate court. This, it is pointed out, was after taking the sworn statement of the complainant. When the complaint was returned and re- presented before the Special Court contemplated under the SC/ST (PA) Act, that court on evaluation found that the allegations are insufficient to attract the provisions of the SC/ST (PA) Act and since the court had to deal only with the offence under Section 376 IPC, the said court felt that unless there is a committal, it could not proceed with the trial. Then the complaint was again returned to the complainant to be presented before the appropriate court. The complaint was re-presented before the Judicial First Class Magistrate Court concerned.
4. The Judicial First Class Magistrate Court, Ottappalam, after following the procedures, committed the case to Sessions Court, Palakkad which made over the case to Assistant Sessions Court, Ottappalam for trial and disposal. Later on, the said court framed charges for the offence under Section 376 IPC to which the accused pleaded not guilty and claimed to be tried. The Crl.R.P.No.2280/2003 4 prosecution, therefore, had examined PWs 1 to 4 and had Exts.P1 to P9 marked.
5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C wherein 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. He had examined DWs 1 and 2 and had Exts.D1 and D2 marked.
6. On an analysis of the evidence in the case, the court below found the evidence of PW3, the victim to be convincing enough and held the accused guilty and the conviction and sentence as already mentioned followed.
7. Disappointed, the accused carried the matter in appeal as Crl.Appeal No.30/1997 which was dismissed by the appellate court confirming the conviction and sentence of the trial court. The said concurrent findings against the accused are attacked in this criminal revision petition.
8. Learned counsel appearing for the revision petitioner Crl.R.P.No.2280/2003 5 pointed out that there is serious procedural irregularity in the proceedings which vitiates the entire proceedings and therefore, the accused is entitled to an acquittal. It is also pointed out that there is nothing to show that being a case triable exclusively by the Sessions Court, the procedure under Section 202 Cr.P.C was followed. If that be so, the entire proceedings become bad in law and the committal cannot be supported nor can the issuance of summons to the accused. According to the learned counsel, this irregularity goes to the root of the matter and is not something which can be cured or ignored. That alone is sufficient, according to the learned counsel, to set aside the conviction.
9. On the merits of the case, learned counsel appearing for the revision petitioner pointed out that the solitary evidence regarding the incident is furnished by PW3, the victim. It is significant to notice, according to the learned counsel, that the evidence adduced is limited to one single incident of sexual assault and PW3 claims that she had conceived because of that act. Apart from the evidence furnished by PW3, there is no other evidence regarding the incident. Of course, according to the Crl.R.P.No.2280/2003 6 learned counsel, it might show that the victim had disclosed to the doctor that she had been ravished as is reflected in her evidence but there is no mention about who had committed rape. Further it is pointed out that the evidence of PWs 2 and 3 show that they had preferred several petitions before various authorities and had produced acknowledgment cards regarding the sending of those complaints. But, for the reason best known to the prosecution, they had not produced a copy of any such complaint. Therefore, the petitioner has no knowledge about the contents of the complaint.
10. It is also pointed out by the learned counsel that the evidence shows that a complaint was alleged to have been filed before the Police and on the basis of which the crime was registered and after investigation, a refer report was filed by the investigating officer concerned. Even those documents were not called for. Further it is pointed out that the long delay in laying the complaint is also not explained. According to PWs 2 and 3, at least by September 1991, the accused had made his position clear that he did not intend to marry the victim. However, the Crl.R.P.No.2280/2003 7 private complaint is filed only on 30.06.1992. There is no explanation for the long delay. It is also pointed out that a petition seems to have been filed before the appellate court producing a document in support of his case. Learned counsel pointed out that there appears to have been a proceedings in which maintenance was claimed by PW3 for the child which is said to be belong to the accused. In that petition, on receipt of notice, it is stated that the accused moved for DNA test by filing a petition. When that petition came up for hearing, the petition filed by the victim for maintenance was withdrawn and it was dismissed as not pressed. The reluctance on the part of PW3 to undergo the DNA test reveals the falsity of the complaint and that has not been duly considered. In short, learned counsel pointed out that, at any rate, the reconsideration of the entire issue is absolutely necessary even if this Court feels that there is some substance in the complaint.
11. Learned Public Prosecutor, on the other hand, opposed the claim and cautioned this Court that it is exercising its revisional jurisdiction which is extremely limited in scope and Crl.R.P.No.2280/2003 8 ambit. Unless it is shown that the findings suffer from illegality, irregularity or impropriety, this Court will not be justified in interfering with the findings of the court below. Learned Public Prosecutor emphatically stated that a re-evaluation or re- appreciation of evidence is not warranted in exercise of the revisional jurisdiction. There is nothing to show that the findings of the courts below are either perverse or not warranted by the facts of the case. May be that, a different view may be possible but that is not a ground to interfere in the revisional jurisdiction. Learned Public Prosecutor also pointed out that there is nothing to suspect the evidence furnished by PW3 and she had no reason to falsely implicate the accused.
12. The evidence of PW3 to a certain extent gets corroboration from PW4 and also from PW2, the father of the victim. Both the courts below have considered the evidence in considerable detail and had come to the conclusion that the offences have been made out. Therefore, there is no reason to interfere with the findings of the courts below, according to the learned Public Prosecutor.
Crl.R.P.No.2280/2003 9
13. After having heard the learned counsel for the petitioner and the learned Public Prosecutor, it is felt that there may be some justification in the complaint raised by the revision petitioner. The incident is said to have taken place on 11.02.1991. A complaint on the basis of which proceedings have now been initiated was filed only on 30.06.1992. The shuttling of the complaint has already been referred to. As rightly pointed out by the learned counsel for the petitioner, the records do not really show what exactly was the procedure followed by the learned Magistrate after the complaint was returned from the Sessions Court to be presented before the appropriate court. May be that, the learned Magistrate had followed the procedure under Section 202 Cr.P.C or it may be that he might have examined all the witnesses without specifically mentioning that he is resorting to the provisions of Sections 202 Cr.P.C. Even assuming that there is some procedural irregularity, that may be curable under Section 465 Cr.P.C. Whatever that be, this aspect does not appear to have been raised either in the trial court or in the appellate court. But, it certainly needs consideration. In the Crl.R.P.No.2280/2003 10 light of the decision that is being taken in this case, it is felt that this Court need not enter a finding in that regard.
14. Coming to the merits of the case, as rightly pointed out by the learned counsel for the revision petitioner, the solitary evidence regarding the incident is furnished by PW3. It is true that, if the evidence of PW3 is found to be above board and without blemish and acceptable and cogent, there no reason why the conviction could not be based on the same. The evidence in this case reveals that the incident has taken place on 11.02.1991 and the complaint on the basis of which the present proceedings have been originated filed on 30.06.1992. It is true that the prosecution has produced acknowledgment cards showing that certain petitions have been sent to certain authorities. But, the prosecution has not produced copy of anyone of those petitions. It is also surprising to note that the records from the Police Station were also not called for. It may be remembered here that, even according to the victim and her father, they had preferred a complaint before the Police and there was an investigation conducted by the Police. From the notice issued to Crl.R.P.No.2280/2003 11 the de facto complainant on the refer report, it could be gathered that the investigating officer sought to have the matter referred as a mistake of fact. It cannot be disputed that the records in the said proceedings will have a bearing on the issue involved in the case. But that was also not looked into or referred to or called for.
15. Finally, it is pointed out by the learned counsel for the revision petitioner that, at the appellate stage a document was produced which would show that maintenance was claimed for the child. Whether such a petition was filed or not is not a matter in dispute. But, one fact is very clear that the order by which the maintenance petition was allowed to be withdrawn was passed subsequent to the judgment of the trial court in S.C.No.10/1996 whereby the petitioner stood convicted and sentenced to suffer a term of imprisonment already made mention of. It is clear that he could not have produced the said order at the time of trial. The significance of the order is that, it is seen that when the petitioner receives summons on the proceedings instituted by PW3 for maintenance of the child, he Crl.R.P.No.2280/2003 12 moved a petition for DNA test. When that petition was taken up for hearing, it is seen that the petitioner submitted that the petition for maintenance is not pressed and that may be dismissed. Normally, DNA test had of no relevance in a case of rape. But, here one has to remember that there is only a solitary incident of violation of the body of the victim and the victim has a definite case that because of the said act she conceived. There is no case for the victim or her father that any subsequent sexual assault had occurred. Under these circumstances, the DNA test assumes significance and importance. Whatever that be, these aspects have not been considered by the courts below. May be because it was not urged at the relevant time. However, it is felt that these matters have a substantial bearing on the issue.
16. It is difficult in this case to pass a conviction on the basis of the solitary evidence of PW3. It is not to say that her evidence is open to doubt. But there are materials available which can support her deposition and which could have been produced by the prosecution. Considering the above aspects, it is felt that re-consideration of the issue is necessary at least at the Crl.R.P.No.2280/2003 13 hands of the appellate court.
In the result, this Criminal Revision Petition is allowed and the order of the lower appellate court is set aside. The matter is remanded to the lower appellate court for fresh consideration in accordance with law in the light of the facts stated above. It will be open to the prosecution to move the court for adducing further evidence so also the accused if he so advised.
P.BHAVADASAN JUDGE smp