Kerala High Court
Vijeesh vs State Of Kerala on 1 April, 2013
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935
CRL.A.No. 872 of 2006 (A)
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AGAINST THE JUDGMENT IN SC.177/2001 of SESIONS COURT
WAYANAD
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APPELLANT/ACCUSED:
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1. VIJEESH, AGED 24, CHOORIYATTA HOUSE,
FOUR CENT COLONY, VENGAPPALLY AMSOM, VYTHIRI TALUK
WAYANAD.
2. SHIJO, S/O.VASU, AGED 28,
CHOKKUZHY MADAM, VENGAPPALLY AMSOM, VYTHIRI TALUK
WAYANAD.
BY ADVS.SRI.M.P.ASHOK KUMAR
SMT.PRIYA RAMESH
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
P. BHAVADASAN, J.
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Crl.Appeal. No. 872 of 2006
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Dated this the 1st day of April, 2013.
JUDGMENT
The accused, two in number, faced prosecution for the offences under Sections 376(2)(g) and 506(i) of Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and they are found guilty of the offence punishable under Section 376(2)(g) of I.P.C. only. They were, therefore, convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay Rs.20,000/- each as fine with a default sentence of rigorous imprisonment for one year each. It was also directed that if the fine amount is realised, a sum of Rs.20,000/- shall be paid as compensation to P.W.1. Set off as per law was allowed. They were acquitted of the other offences charged against them.
2. P.W.1 is the victim in this case. Her father had left her long ago and she was residing with her mother. Crl.Appeal.872/2006.
2She belonged to Scheduled Tribe and she had studied upto 5th standard. On 5.9.1998 she had gone to the house of her uncle and after taking lunch, her uncle and aunt went for a movie and she and the daughter of her uncle alone were at home. Going by the initial allegation, at about 3 p.m. in the noon, the accused is said to have come over to the house where P.Ws. 1 and 6 were staying and told P.W.1 that she would be abducted in the night. She ran inside and conveyed the information to P.W.6. The further allegation is that at 8 p.m. in the night on the same day, the accused persons again came to the house and called P.W.1 out. She went out to them. No sooner than she got out of the house, P.W.6 followed her. Seeing the accused, P.Ws.1 and 6 ran through the garden land of one Sami and they were chased by the accused. P.W.1 was apprehended by the accused, laid her on the ground and going by the initial allegation, she was gagged by one of the accused and attempted to rape her. It is alleged that the first accused Crl.Appeal.872/2006.
3removed her ear studs. She warded off further attack from the accused and cried aloud. That made the accused to ran away from the scene. Frightened, it is claimed, both P.Ws.1 and 6 remained in the garden land for the rest of the night. On the next day, when the uncle and aunt of P.W.1 came in search of them, they were found in the coffee plantation of Sami and they have told about what had transpired on the previous night. On 7.9.1998, P.W.1 was taken to the hospital and admitted in the said hospital for treatment.
3. On intimation being given from the hospital, P.W.10, the Sub Inspector of Police went over to the hospital and recorded Ext.P1 first information statement given by P.W.1. P.W.10, on the basis of Ext.P1, registered crime as per Ext.P1(a) FIR. Investigation was taken over by late P.K. Haridas, the then Dy.S.P. He prepared Ext.P15 scene mahazar and seized M.O.1 as per Ext.P9 seizure mahazar. He recorded the statements of witnesses. Crl.Appeal.872/2006.
4Subsequent investigation was taken over by P.W.14, who also recorded the statements of witnesses and who, during his investigation, found that the second accused had no role to play in the incident and filed a report seeking to have his name deleted. He then had the statements of P.Ws.1 and 6 taken under Section 164 Cr.P.C. by P.W.7, who recorded the statements as per Exts.P2 and P7. Finding that in her Statement under Section 164 Cr.P.C., P.W.1 had implicated the second accused, a report was filed by P.W.14 to incorporate the name of second accused also. It may be mentioned here that in the hospital, P.W.1 was examined by P.W.13, who prepared Ext.P13 report. On the arrest of the accused they were subjected to potency test and obtained Exts. P11 and P12 reports. The investigating officer had the material seized during investigation sent for chemical examination and obtained Exts.P14 report. Vaginal swab and vaginal smear collected during medical examination were sent for chemical examination and Crl.Appeal.872/2006.
5Ext.P14(a) is the relevant report. After completing the investigation, charge was laid before court.
4. Chief Judicial Magistrate Court, Kalpetta, before whom final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kalpetta. The said court framed charges for the offences punishable under Sections 376(2)(g) and 506(i) of I.P.C. and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 13 examined and had Exts.P1 to P18 marked. The defence had the contradictions and inconsistencies in the evidence marked as Exts.D1 and D14. M.O.1 was got identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence Crl.Appeal.872/2006.
6against them and maintained that they are innocent. On finding that they could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence.
5. On an appreciation of the evidence in the case, the court below came to the conclusion that the evidence of P.W.1 is cogent and convincing enough and that is sufficient to prove the guilt of the accused for the offence under Sections 376(2)(g) of I.P.C.. Accordingly, the conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.
6. Learned counsel appearing for the appellant assailed the finding of the court below on several grounds. Learned counsel pointed out that the court below has not appreciated the evidence in the proper perspective and discarded the material contradictions, inconsistencies and developments as insignificant and has erroneously accepted Crl.Appeal.872/2006.
7the evidence of P.W.1 as creditworthy. It was pointed that the evidence furnished by P.W.1 is totally different from what is contained in Ext.P1 FIS, and the court below has not properly appreciated this aspect and has discarded it on the ground that Ext.P1 is intended only to set the law in motion and nothing more. Learned counsel pointed out that that may be true. But that does not mean that the version of the incident given in Ext.P1 which is the virgin statement of the incident can be totally ignored. P.W.1 at the time of evidence came forward with an entirely different case which is conspicuously absent in Ext.P1 and for which no satisfactory explanation is offered.
7. Pointing out that the only word used by P.W.1 is ' ' (rape) and that is not sufficient to bring out ingredients of rape, so contends the counsel for the appellants. The essential features necessary to attract the offences are not spoken to and it is doubtful whether she Crl.Appeal.872/2006.
8was aware of the meaning of the word ' '. This aspect has also been omitted to be noticed by the court below.
8. The story of rape put forward by P.W.1 does not get corroboration from the medical evidence. The evidence of P.W.13, the doctor who had examined the victim and Ext.P13 certificate issued by him would clearly show that there were no indications of recent sexual intercourse and the reasons given by the court below to reject the evidence of P.W.13 and Ext.P13 are not legally sustainable. Merely because P.W.13 is not a lady doctor and he has chosen to examine the victim is not a ground to discard the evidence. Learned counsel also pointed out that it is true that in Ext.P14(a) it is stated that vaginal swab and smear sent for chemical examination did show presence of semen and spermatozoa. But when read in the light of the evidence of P.W.13 and Ext.P13, mere presence of semen and spermatozoa in the vaginal swab and smear may not by Crl.Appeal.872/2006.
9itself be a ground to hold the accused guilty unless it is matched with that of the semen of the accused persons. For the above proposition, learned counsel relied on the decision reported in Krishan Kumar Malik v. State of Haryana ((2011) 7 SCC 130). Referring to Exts.P1, P10 and also Ext.P13, it is contended on behalf of the appellants that the only grievance of P.W.1 at the relevant time was that she was assaulted by two persons and she had no case that she was subjected to the heinous crime of rape by any one of them. It was long afterwards while giving statement under Section 164 Cr.P.C. as evidenced by Ext.P2 that she has stated for the first time that she was subjected to rape by the accused persons. It is significant to notice, according to learned counsel, that initial investigation revealed that accused No.2 had no role to play in the incident and his name was sought to be deleted by filing a report before the court. When the Investigating Officer found that the statement given by P.W.1 under Section 164 Crl.Appeal.872/2006.
10Cr.P.C. contains the name of the second accused that he sought re-induction of the second accused in the party array. This also shows that the story put forward by P.W.1 cannot be true.
9. Learned counsel pointed out that the significant omissions, contradictions, inconsistencies and developments and embellishments made by P.W.1 at the time of evidence should have cautioned the court and should have alerted the court and the court should have examined the evidence of P.W.1 more carefully and in a critical manner. According to the learned counsel, he has no quarrel with the proposition that if the evidence of the prosecutrix is of a sterling character, a conviction can be based on the same. But, according to learned counsel, in order to ascertain whether the evidence of prosecutrix is convincing, cogent and is of sterling character, other items of evidence adduced in the case will also have to be appreciated along with the evidence of P.W.1. If that test Crl.Appeal.872/2006.
11is applied, it can be seen that P.W.1 stands discredited in the light of the other evidence. Even assuming that P.W.1 is an illiterate girl coming from the lower strata of the society, her evidence cannot be accepted without careful scrutiny. The court below went wrong in accepting the evidence of P.W.1 in the light of the other items of evidence which belie the version of P.W.1.
10. Learned Public Prosecutor took this court to the judgment of the court below and pointed out that the court below had dealt with each of the contentions raised by the accused and found them to be untenable. The reasons so given by the court below are cogent and convincing and there is no ground to overturn the said findings. It is also contended that the evidence of P.W.1 stands scrutiny and if that be so, the court below was perfectly justified in accepting the same and finding the accused guilty. No motive is suggested to P.W.1 as to why she should falsely implicate the accused persons.
Crl.Appeal.872/2006.
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11. According to the learned Public Prosecutor, the claim of the appellants that medical evidence does not support the prosecution case is without basis. First of all, according to the learned Public Prosecutor, without waiting for the result of the chemical analysis report, P.W.13 ought not to have given an opinion regarding the sexual assault alleged to have been committed on P.W.1. It was without referring to Ext.P14(a) that P.W.13 had ventured the opinion that no recent sexual intercourse has been committed. Ext.P14(a) is clear to the effect that semen and spermatozoa were detected in the vaginal swab and smear collected during medical examination and sent for chemical examination. According to the learned Public Prosecutor, the court below had considered all the aspects and there are no grounds to interfere with the finding of the court below.
Crl.Appeal.872/2006.
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12. As rightly pointed out by the learned Public Prosecutor, and also conceded by the learned counsel for the appellants, if the evidence of prosecutrix is found to be convincing, cogent and of high standard, there is no reason why a conviction should not be based on the same. Rape being an offence committed in secrecy, it is imprudent on the part of the court to insist for corroboration. But then one has to remember that the solitary evidence in such cases is the evidence of prosecutrix. However, it may not be possible to suggest that the evidence of prosecutrix will have to be treated in isolation. In order to ascertain whether the evidence of prosecutrix is acceptable and cogent, necessarily, other items of evidence produced by the prosecution in support of the case will have to be looked into and then it has to be ascertained whether the evidence of prosecutrix can be safely accepted. In cases where other items of evidence betray the prosecution, and make the evidence of prosecutrix suspicious or open to Crl.Appeal.872/2006.
14serious doubt, surely, that benefit should go to the accused. As always said, the burden is on the prosecution to prove the case beyond reasonable doubt.
13. Bearing the above principles in mind, an evaluation of the evidence in this case shall be made to ascertain whether the prosecution has succeeded in establishing the case against the accused.
14. At the outset itself, it may be mentioned that Ext.P1, being a virgin statement of the victim regarding the incident, contains no allegation of rape at all. Going by the version in Ext.P1, at 3'0 clock on the date of the incident, the accused are stated to have come to the place where P.W.1 was present at the relevant time and threatened her that she would be abducted in the night. Going by Ext.P1, the further statement is that in the night at 8'o clock both the accused came and called P.W.1 to come out of the house. P.W.1 came out of the house followed by P.W.6. As per Ext.P1, the case of the prosecution is that seeing the Crl.Appeal.872/2006.
15accused persons, both P.W.1 and P.W.6 took to their heels and ran through the garden of Sami. The accused followed them. The accused apprehended P.W.1 and they laid her on the floor and when they attempted to commit rape, she made a hue and cry and then the accused ran away from the scene. P.W.1 has also stated that she was deprived of her ear studs. In no less terms she stated that when she raised hue and cry, the accused left the place.
15. Now one needs to look at the evidence of P.W.1, the prosecutrix in this case. At the time of evidence, she says that the incident had taken place while she and P.W.6 were returning to the house of P.W.6 after watching TV in the house of one Ravi. On the way, she would say that, she was nabbed by the accused persons who had taken her to the plantation of one Sami nearby and the first accused sexually assaulted her followed by the second accused. She was gagged by the accused so as to ensure that no cries were let out by her. She further says that Crl.Appeal.872/2006.
16frightened by the same, she remained in the garden land during that night and in the morning her uncle and aunt came in search of her and they took her with them. In chief examination, she would say that on the next day she went to the Government Hospital, Kalpetta from where her statement was taken by P.W.10. On the next day, she was produced before the Magistrate Court. However, in cross examination, she says that she was first taken to the police station, from where she was taken to the hospital. She in no less terms stated that her statement was taken by P.W.10, and she signed on the same. It was the police who had directed her to the hospital. She asserted in cross examination that she had given the entire details to the doctor, and that she was again questioned by the police in the hospital. At that time also she had narrated the entire details. It is significant to notice that P.W.1 does not totally disown the narration of the incident in Ext.P1. She confirms in cross-examination that she had narrated the entire Crl.Appeal.872/2006.
17details to the police. Several of the contradictions and inconsistencies in her evidence are marked as Exts.D1 to D5. In cross examination, she also says that what she had told at the time of furnishing Ext.P1 are true.
16. The court below seems to have taken the view that being a member of Scheduled Tribe, and coming from the lower strata of the society, some allowance can be given while appreciating her evidence. The court below held that Ext.P1 is intended only to set the law in motion and not of much significance or importance.
17. While it may be true that the first information statement is intended to set the law in motion, it is difficult to accept the view of the court below that the first statement is of no significance. Even though Ext.P1 need not contain all the details, P.W.1, at the time of evidence has given a totally different version regarding the incident. The view of the court below in this regard cannot be accepted.
Crl.Appeal.872/2006.
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18. As already noticed, the evidence of P.W.1 is totally different regarding the incident than that is given in Ext.P1 first information statement. One would also notice that P.W.1 is definite that she and her uncle along with P.W.6 had gone to the police station first and statement was taken by the police and her signature was obtained therein. If that be so, that would constitute the first information statement. One has to notice that P.W.1 betrays her statements in the first information statement and that stares at the face of the prosecution. It is not possible to ignore the version given in Ext.P1 altogether and place implicit reliance on what P.W.1 has stated at the time of evidence.
19. This court is not forgetting the fact that in Ext.P2, which is the Section 164 statement, P.W.1 has given version of the incident similar to the one spoken to by her at the time of evidence. One cannot also forget the fact that P.W.1 gave Section 164 statement after 1 = years after Crl.Appeal.872/2006.
19the incident and long after the first information statement was laid. The circumstances which prompted the victim to conceal the true version at the time of furnishing Ext.P1 and coming forward with a different case at the time of giving Section 164 statement before the Magistrate is not discernible from the records. There is no case for the prosecution that she was either threatened or there are reasons for not disclosing the incident at the time of giving Ext.P1 first information statement.
20. The court below brushed aside the medical evidence on several grounds. According to the learned trial Judge P.W.13 could not have examined the victim and the examination ought to have been done by a lady doctor. Several flaws are found in the Ext.P13 certificate also. The trial court feels that if as a matter of fact the history given by the victim was only that of assault, it was unnecessary for P.W.13 to examine the victim as in the case of an offence of rape.
Crl.Appeal.872/2006.
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21. While coming to the above conclusion, the court omitted to notice that the victim was examined on the requisition by police. The police had characterized her as a victim of attempted rape and therefore P.W.13 was competent to examine her from that angle. There is no suggestion to P.W.13 whether any lady doctor was available and what had persuaded him to examine the victim or he was incompetent to examine the victim. True, it is too early for P.W.13 to say that there was no evidence of sexual assault when chemical analysis report was pending. On that ground, the court below may be justified is holding that the opinion of P.W.13 that there is no evidence of recent sexual assault is too premature. But taking note of Ext.P14
(a) which shows that the samples collected during medical examination and sent for chemical examination contains semen and spermatozoa, that was not put to P.W.13 and his opinion was not sought for thereafter. No explanation is offered by P.W.13 since it had not been put to him that Crl.Appeal.872/2006.
21there is presence of semen and spermatozoa in the articles sent by him for chemical examination. The court below feels that the omission of the doctor to say anything about the same shall not affect the prosecution case. But one should remember that it shall not be used against the accused for the omission to bring it to the notice of P.W.13 and also it cannot be taken aid of by the defence to contend that there is no evidence of sexual assault. At this juncture it is useful to refer to the decision relied on by the learned counsel for the appellants. In the decision reported in Krishan Kumar Malik's case (supra) in paragraph 40 it was held as follows:
"The appellant was also examined by the doctor, who had found him capable of performing sexual intercourse. In the undergarments of the prosecutrix, male semen were fond but these were not sent for analysis in the forensic laboratories which could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the appellant. Crl.Appeal.872/2006.22
This lacuna on the part of the prosecution proves to be fatal and goes in favour of the appellant."
22. The court below feels that the evidence of P.W.1 gets sufficient corroboration at the hands of P.W.6. The court may not be wrong to certain extent. In chief examination, P.W.6 does say that while they were returning after watching T.V., P.W.1 was carried away by the accused. But the infirmity in the evidence of P.W.1 in this regard has already been noticed. However, strangely in cross-examination P.W.6 takes a hostile attitude and denies the entire prosecution case. The court below tries to explain the evidence of P.W.6 as a tactic adopted by the defence to test the memory power of the witness. The court below was of the view that the defence counsel refused to cross examine P.W.6 at the initial stage and thereafter she was cross-examined after four months of chief-examination and was trying to take advantage of the answers given by the witness much later.
Crl.Appeal.872/2006.
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23. It is difficult to accept the above view of the court below. If as a matter of fact when a witness is available for cross-examination, and the defence refuses to cross-examine the witness, the evidence of that witness ought to have been closed and trial proceeded with. Whether at the time of defence evidence, the said witness can be cited as a witness is another matter. To dismiss the evidence of P.W.6 by merely saying that there was deliberate attempt on the pat of the defence to delay the examination of the witness may not be proper. The inconsistencies and contradictions in the evidence of P.W.6 were marked as Exts.D6 to D14. It could thus be seen that the inconsistencies and contradictions in her answers in cross examination reveal a totally different story than what she says in chief examination. She even denies her statements in Section 164 statement.
24. Merely because P.W.6 has chosen to give a totally different version at the time of evidence, her Crl.Appeal.872/2006.
24evidence need not be discarded especially in view of the other items of evidence. One may notice that P.W.6 is illiterate and she hails from the lower strata of the society. But the inconsistencies in the evidence of P.W.1 and the departure from Ext.P1 cannot be omitted to be noticed by the court. When the prosecutrix gives a complete go bye to the initial version of the incident and sets up a totally new and different case altogether, it has to be necessarily viewed with suspicion.
25. In the case on hand, even though there may be some justification in the lower court in criticizing the evidence of P.W.13, who opined that there was no recent sexual intercourse without waiting for the chemical analysis report, P.W.13 had categorically stated that during examination he was unable to notice any indications of recent sexual assault.
26. Thus, it could be seen that none of the reasons given by the court below to accept the evidence of Crl.Appeal.872/2006.
25P.W.1 as against the other items of evidence which would belie the version of P.W.1 can be sustained. This court is unable to accept the finding of the court below that the offence under Section 376(2)(g) of I.P.C. has been made out.
27. Faced with the above situation, learned Public Prosecutor contended that offence under Section 511 of Section 376 of I.P.C. is made out. Even accepting what is stated in Ext.P1, all that was done was that the accused raised the skirt of the victim, namely, P.W.1. But that by itself is insufficient to attract offence under Section 511 of Section 376 of I.P.C.
28. However, the fact remains that atleast as regards the attempt on the part of the accused, there is consistent version given in Ext.P1 and also in the evidence of P.W.1 and hence offence under Section 354 of I.P.C. is attracted.
Crl.Appeal.872/2006.
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Thus, while setting aside the conviction and sentence of the accused for the offence under Section 376 (2)(g) of I.P.C., the accused are found guilty of the offence under Section 354 read with Section 34 of I.P.C. They are convicted and sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs.20,000/- each, in default, to undergo simple imprisonment for three months each. Set off as per law will be allowed.
P. BHAVADASAN, JUDGE sb.