Kerala High Court
Muhammeduppa vs State Of Kerala on 20 February, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934
CRL.A.No.1286 of 2003
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SC.132/2000 of ASSISTANT SESSIONS COURT, OTTAPPALAM
APPELLANT/ACCUSED:
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MUHAMMEDUPPA, S/O. RAYAN,
MATHAKKAL HOUSE, PLATHARA, CHUNANGAD.
BY ADVS.SRI.V.V.RAJA
SRI.M.T.SURESHKUMAR
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REP. BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN, J.
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Crl. Appeal No.1286 OF 2003
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Dated this the 20th day of February, 2013.
J U D G M E N T
The accused in this case was prosecuted for the offences punishable under Sections 366, 376 and 506(1) of Indian Penal Code. He was found guilty on all counts. He was convicted and sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs.5,000/- and in default of payment of which to suffer rigorous imprisonment for a further period of six months under Section 366 IPC. He was also directed to suffer rigorous imprisonment for eight years and to pay a fine of Rs.20,000/- and in default of payment of which to undergo rigorous imprisonment for a further period of two years under Section 376 IPC. He was also sentenced to suffer rigorous imprisonment for a period of six months under Section 506(1) of IPC. It was further directed that if the fine amounts are recovered, the same shall be paid to PW1 as compensation. Set off as per law was also allowed.
Crl.Appeal No.1286/2003 2
2. PW1 is the victim in this case. She stays with her father, sisters and brothers. It is claimed that on the date of the incident i.e. on 12.01.1998, the victim had picked up a quarrel with her sister and decided to go out of the house and to go to the house of the friend of her mother, Janaki. She approached the accused for an amount of Rs.50/- in the morning on 12.01.1998. The accused asked her to come in the afternoon. The allegation is that in the afternoon at about 3.30 p.m, the accused went over to the house of the victim where she was all alone at the relevant time. He asked her to get ready and promised her that he would take her to her mother. She went along with him. She was taken to Perinthalmanna and was made to sit in a lodge for some time promising her that her mother would reach that lodge soon. But short while thereafter, the accused showed his true colour. It is alleged that PW1 was raped on that day by the accused. It is also alleged that the said act was repeated twice on the same day and on the next day also she was kept in the company of the accused and raped. It is further alleged that on 13.01.1998, on her way, she had occasion Crl.Appeal No.1286/2003 3 to meet Janaki, the friend of her mother, who refused to take her to the house since she had left her house after picking up a quarrel in the house. Finally the victim was let out of the custody of the accused on 14.01.1998 on which day she returned home. She did not disclose the incident to anybody at that time and on 16.01.1998 she revealed the incident to her brothers. They went to the police station and laid Ext.P1 First Information Statement. Ext.P1 was recorded by PW15 who registered a crime as per Ext.P15 First Information Report. Investigation was taken over by PW19. He had the PW1 examined by PWs 7 and 18 who issued Exts.P4 and P17 respectively. PW19 visited the lodges where the victim as well as the accused were alleged to have stayed and seized the relevant documents namely, Exts.P10, P11 etc. He prepared the scene mahazars also. He recorded the statement of witnesses, procured necessary documents, completed the investigation and laid charge before the court.
3. The Judicial First Class Magistrate Court, Ottapalam before whom final report was laid took cognizance of the offences and on finding that the offences are exclusively triable by the Crl.Appeal No.1286/2003 4 Court of Sessions, the case was committed to Sessions Court, Palakkad. The Sessions Court, Palakkad made over the case to Assistant Sessions Court, Palakkad Division at Ottapalam for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, framed charges for the offences punishable under Sections 366, 376 and 506(1) of Indian Penal Code. To the charge, the accused pleaded not guilty and claimed to be tried.
4. The prosecution, therefore, examined PWs 1 to 19 and had Exts.P1 to P17 marked. M.O.s 1 to 8 were also got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure regarding the incriminating circumstances brought out in evidence against him. He denied all the circumstances 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. On an appreciation of the materials produced before the court, the court below came to the Crl.Appeal No.1286/2003 5 conclusion that the offences alleged have been made out and accordingly, convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal.
5. Learned counsel appearing for the appellant very vehemently contended that none of the findings of the court below can be sustained either on facts or in law. Going by the prosecution case, it is clear, according to the learned counsel, that PW1 had gone out of her house on her own volition and therefore, it cannot be said that she was enticed away from the house. It was pointed out by the learned counsel that even though the prosecution had adduced evidence to show that the victim was taken to two lodges and had examined the witnesses to prove the same, significantly enough, none of those witnesses have identified PW1 as the girl who had came to the lodge along with the accused. This lacuna has been omitted to be noticed by the court below. It is fatal, according to the learned counsel. It was then pointed out that the evidence of PW18 taken along with Ext.P17 would belie the prosecution version that the victim was Crl.Appeal No.1286/2003 6 sexually assaulted. The medical evidence completely rules out any such possibility and therefore, it can be seen that the entire allegations are false and cooked up, only for the purpose of implicating the accused with ulterior motive. Learned counsel also pointed out that, even according to PW1, she wanted to leave the house and to go to the house of Janaki, one of her mother's friends and when the victim had occasion to meet her on 13.01.1998, it is surprising, according to the learned counsel, to note that even though the victim had undergone an agonising experience on the previous day, she does not reveal the fact to Janaki whom she was urging to meet. This fact also casts suspicion about the prosecution evidence.
6. Referring to the evidence of PWs 2 and 3, it was contended that according to PW2, on the date on which PW1 returned home i.e. on 16.01.1998, PW3 was not at home and even though he came to know about the incident, he thought that further steps need to be taken only after PW3 returned from Sabarimala. The evidence of PW3 is to the effect that he had came from Sabarimala on 15.01.1998 evening. Therefore, it is Crl.Appeal No.1286/2003 7 contended that the evidence of PWs 2 and 3 in this regard is inconsistent and contradictory and that also belies the prosecution case. It is also pointed out that, for obvious reasons, the clothes and the bed sheets which have been seized have not been sent for chemical examination and that shows that the prosecution was shy to send them for fear of getting a negative result. In short, according to the learned counsel, there is absolutely no evidence of any sexual assault by the accused and the allegation of rape is without any basis. It was also pointed out that, going by the evidence of PW1, she had offered stiff resistance on each of the occasions when the accused committed sexual assault but still no external injuries were noticed on the body of PW1. Learned counsel also pointed out that in the light of the above facts and circumstances, the evidence of PW1 cannot be taken as gospel truth and unless it is corroborated from other items of evidence, a solitary evidence of PW1 cannot form basis to convict the accused.
7. Learned counsel then pointed out that the offence under Section 366 IPC by no stretch of imagination is attracted to the Crl.Appeal No.1286/2003 8 facts of the case. It was pointed out that in order to attract the said provision, there should be an abduction or kidnapping. Going by the evidence of PW1, she had voluntarily gone along with the accused and there was no taking or enticing away the victim. Therefore, the finding of the court below that the offence under Section 366 has been made out is without basis. If it is found that the offences under Sections 366 and 376 IPC are not made out, then automatically the finding of commission of offence under Section 506(1) IPC also falls to the ground.
8. Learned Public Prosecutor, on the other hand, chose to support the findings of the court below on several grounds. It is pointed out by him that the victim is a girl who had studied only upto 9th standard and she is coming from a poor family. It is significant to notice, according to the learned Public Prosecutor, that in the morning she had approached the accused for borrowing a sum of Rs.50/- to go and meet her mother's friend Janaki. But she was asked to come in the afternoon. However, instead of she going to the house of the accused, the accused came over to her house and promised her that he would take her Crl.Appeal No.1286/2003 9 to her mother. Believing the same, PW1 went along with the accused and suffered the consequences. The evidence of PWs 10 to 13, according to the learned Public Prosecutor, are sufficient to show that the accused had hired rooms in the two lodges made mention of by them respectively and the girl had accompanied the accused. The mere fact that these witnesses might not have identified the girl in the court does not help the defence at all. Learned Public Prosecutor pointed out that the evidence of PW18 taken along with Ext.P17 by itself is insufficient to come to the conclusion that there has been no rape at all especially when PW1 categorically asserts that she was sexually violated and there is no reason suggested to her as to why she should falsely implicate the accused. According to the learned Public Prosecutor, the inconsistencies and contradictions pointed out in the evidence of PWs 2 and 3 are of little significance and they had nothing to do with the actual incident complained of. Even going by the evidence of PW1, she had not disclosed the incident till 16.01.1998 and that is the evidence of PWs 2 and 3 also. The question as to whether Ext.P1 had been given on 15.01.1998 Crl.Appeal No.1286/2003 10 therefore has no relevance at all.
9. As regards the contention based on Section 366 IPC is concerned, the learned Public Prosecutor pointed out that it was because the accused had promised the victim that he would take her to her mother and that prompted the minor girl to go along with the accused and it cannot be said that she had gone voluntarily along with the accused. Since PW1 was made to believe that she was being taken to her mother, the victim was in such a state of mind that she would have readily agreed and gone along with the accused for meeting her mother. She was thus taken away from the lawful guardianship and the offence under Section 366 IPC is certainly attracted. In short, learned Public Prosecutor pointed out that the court below, having appreciated the evidence, came to the conclusion that the offences are made out and therefore, it is submitted that the appeal is only to be dismissed.
10. As usual, the entire case rests upon the veracity of the evidence of PW1. Admittedly, she was aged above 16 years at the relevant time but below 18 years. If any evidence in this Crl.Appeal No.1286/2003 11 regard is needed, that is furnished by PW8. Ext.P5 is the birth certificate produced by PW8.
11. PW1 is the prosecutrix. Her evidence needs to be referred to in detail. The prosecution allegation has already been referred to. In her evidence, she says that she resides with her sisters, brothers and father. Her mother had left her two years prior to the incident. On picking up a quarrel on the date of the incident i.e. on 12.01.1998, she decided to go to the house of Janaki, a close friend of her mother. She did not have money for journey. So she went over to the house of the accused. She met the wife of the accused. The wife of the accused asked her to seek money from the accused. She would say that the accused asked her to come in the afternoon. In the afternoon at about 3.30 p.m, according to PW1, the accused came to her house and there was no one at that time in her house. He asked her to get dressed and go along with him so that she can meet her mother. Believing him, she went along with him. They mounted a bus to Perinthalmanna and reached Perinthalmanna at 7p.m. When they reached in front of a lodge, the accused stopped for a while Crl.Appeal No.1286/2003 12 and when PW1 asked for the reason, she was asked to keep mum. The accused hired a room in the lodge and then she was taken to the room. At about 7.30 - 8 p.m, the room was bolted from inside and the offencive act was committed. Even though she wriggled, that was no use. She then would say that the act was repeated twice on the same night. On the next day, promising her that she would be taken to the friend of her mother, she was taken from Perinthalmanna and on the way she says that she met Janaki, the friend of her mother. When she requested Janaki to take her home, Janaki refused because she came to know that PW1 had left the house after picking up a quarrel there. She then mounted a bus from Ottapalam in which Janaki was also travelling. She got down at Ottapalam bus stand and Janaki continued her journey. According to PW1, the accused had followed her in an autorickshaw and as soon as she dismounted from the bus, she was asked to get in the autorickshaw. Even though she was refused do so, he pulled her into the autorickshaw. Then they went to Thrissur. They had food from a hotel near Amala Hospital. According to PW1, the Crl.Appeal No.1286/2003 13 accused wanted to hire a room in one of the lodges available there. But he was unsuccessful in his attempt and therefore she was again taken to Perinthalmanna. PW1 would also say that a room was taken in a different lodge than the previous day and the act was repeated. On the next day, they mounted a bus and reached Kulapully and the accused asked her to go to her house. When she reached her house, PW2 asked her where she was and due to the fear of dire consequences, she did not reveal the incident to him. Her other brother Krishnakumar had gone to Sabarimala and when he returned, she revealed the incident to him. She was taken to the Government Hospital, Ottapalam. She says that she then lodged Ext.P1 First Information Statement.
12. The evidence of PWs 2 and 3 are not of much significance except that they would say that the incident was revealed to them only on 16.01.1998. Even going by the evidence of PW1, she had reached home on 14.01.1998. Of course, there is some inconsistency in the evidence of PWs 2 and 3 and regarding the availability of PW3 on 15.01.1998. But, as Crl.Appeal No.1286/2003 14 rightly pointed out by the learned Public Prosecutor, it is not of much significance at all and has no bearing on the issue of sexual assault on the victim. It is true that the evidence of PWs 10 to 13 show that the accused had hired rooms on 12th and 13th of January 1998 in two different lodges and on both occasions, he was accompanied by a girl. Strictly speaking, these witnesses do not say that the girl who was seen along with the accused was PW1. But that by itself is not sufficient to exonerate the accused. The evidence clearly shows that the accused had taken the girl on 12.01.1998 from her house and that the girl had returned only on 14.01.1998. There is no suggestion to PW1 that she was in the company of anybody else during the relevant period. So the mere fact that PWs 10 to 13 have not identified the victim does not mean that the girl who they had seen with the accused might be someone else.
13. Much was said about the non disclosure of the incident on 12.01.1998 by PW1 when she met Janaki on 13.01.1998. It was pointed out by the learned counsel for the appellant that had the incident as alleged occurred on 12.01.1998, it is Crl.Appeal No.1286/2003 15 inconceivable, in the light of the fact that PW1 was very strongly objected to the conduct of the accused and also that she did not like the acts of the accused, that she would not have revealed the incident to Janaki.
14. Apparently, the argument may seen attractive. But on a close scrutiny of the evidence of PW1, one can say that she was threatened with dire consequences in case she revealed the incident to anybody and in the light of the disinclination on the part of Janaki to take PW1 along with her if PW1 had not revealed the incident, she could not be found fault with and cannot be taken as a ground to suspect the prosecution case.
15. It was pointed out that while PW1 would say that she had decided to leave the house because she picked up a quarrel with her sister, PW2 would say that the victim had left the house of a quarrel with the father. This inconsistency is highlighted to assail the prosecution case. The above inconsistency is of no relevance at all. The fact that remains is that PW1 was taken by the accused along with him. They were seen together by PW9 who had no reason to falsely implicate the accused. Crl.Appeal No.1286/2003 16
16. The evidence of the above witnesses are, therefore, clear to the effect that on 12.01.1998, the accused promising PW1 that she would be taken to her mother had taken her along with him and kept her in his custody on 12.01.1998 and 13.01.1998 and PW1 was let out of the custody only on 14.01.1998. It is significant to notice that there is no suggestion either to PWs 1, 2 or 3 that PW1 had any reason to falsely implicate the accused. When examined under Section 313 Cr.P.C also, he does not give any explanation regarding these aspects.
17. What now remains to be considered is the question as to what are the offences that are made out in the light of the evidences adduced and the conclusions reached above. Even though it was very vehemently contended by the learned counsel for the appellant that the offence under Section 366 IPC is not made out as there was no abduction or kidnapping, on a careful scrutiny of the evidence, it can be said to be without basis. Section 366 IPC reads as follows:
"Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she Crl.Appeal No.1286/2003 17 may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].
18. A reading of Section 366 IPC along with Sections 362 and 363 IPC will clearly show that the provision is attracted. It was very vehemently contended on behalf of the appellant that PW1 had gone voluntarily along with the accused and there was no enticing or taking her away as is contemplated by the provisions. The above argument seems to be misconceived. The evidence of PW1 is to the effect that in the morning she had gone to the house of the accused to borrow money to go to the house of the friend of her mother and in the afternoon the Crl.Appeal No.1286/2003 18 accused approached PW1 and promised her that he would take her to her mother. Surely it was an enticement and bait thrown at PW1 and therefore, an offence under Section 366 IPC is certainly made out.
19. Coming to the evidence regarding allegation of rape, there is a solitary evidence of PW1. She in her evidence has stated that on each of the occasions when sexual assault was committed, she offered stiff resistance and on one of the occasions she had attacked the accused also. She also says that sexual assault was committed four times during two days i.e. on 12.01.1998 and 13.01.1998. However, the medical evidence does not seem to support the above case of PW1. PW18 is the doctor who had examined the victim and Ext.P17 is the certificate issued by him. His evidence is to the effect that he was unable to detect any evidence of any injury on the external genitalia and also including internal organs. He was also stated that the vaginal smear which was examined in the hospital laboratory showed negative result. The court below has relied on that portion of evidence of PW18 wherein it is stated that he could not Crl.Appeal No.1286/2003 19 say whether rape was committed three or four days prior to the date of examination or whether marks of external injuries could be seen or not. Then the lower court goes on to hold that the victim was examined only on 17.01.1998 and the alleged sexual assault had taken place on 12.01.1998 and 13.01.1998 and therefore, it was after four days that she was examined by PW18 and the entries in Ext.P17 cannot support the defence or the accused.
20. On a reading of the evidence of PW18, it does not appear to be what he has stated. What he has stated is that he cannot give opinion about the absence of external injuries if rape was committed three or four days prior to the date of examination. The medical evidence, therefore, is of no help to the prosecution case.
21. Surprisingly enough, going by the evidence, PW1 had worn the same clothes on both 12th and 13th of January 1998 and it was not claimed by PW1 or by any of the members of her family that she had washed her clothes. Those clothes were seized so also the bed sheets from the respective lodges. In the Crl.Appeal No.1286/2003 20 absence of medical evidence to show that sexual assault has been committed and so also in the absence of any forensic report regarding the examination of clothes that have been seized, it will be too dangerous to come to a conclusion that offence has been made out, merely depending upon the evidence of PW1. Even though offence under Section 376 IPC is not attracted, going by the evidence, surely an offence under Section 354 IPC is made out. PW1 states that on each of the occasions, she was undressed forcefully and if that be so, the ingredients to attract the offence under Section 354 IPC are available. As regards the offence under Section 506(1) IPC is concerned, the evidence of PW1 is sufficient to show that the said provision is attracted. She would categorically state that she was threatened with dire consequences if she revealed the incident to anybody. That would be evident also from the fact that when PW1 met Janaki on the next day i.e. on 13.01.1998, she did not reveal the incident to her since she was frightened of the consequences as a result of the threat meted out by the accused. Therefore, the court below was perfectly justified in accepting the evidence of PW1 and Crl.Appeal No.1286/2003 21 coming to the conclusion that offences under Sections 366 and 506(1) of IPC are attracted to the facts of the case. But, this Court is unable to find that an offence under Section 376 IPC is made out. On going through the facts, this Court is of the view that an offence under Section 354 IPC is made out.
While confirming the conviction and sentence for the offences under Sections 366 and 506(1) of IPC, the conviction and sentence for the offence under Section 376 IPC is set aside and instead he is found guilty of the offence under Section 354 IPC and he is sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for three months. As ordered by the court below, if the fine amount is realised, the same shall be paid to PW1 as compensation. The substantive sentences shall run concurrently. Set off as per law is allowed.
The Crl. Appeal is disposed of as above.
P.BHAVADASAN JUDGE smp