Kerala High Court
Rajesh vs State Of Kerala on 4 February, 2025
Criminal Appeal No.86 of 2014
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2025:KER:8538
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
CRL.A NO. 86 OF 2014
AGAINST THE JUDGMENT DATED 06.05.2013 IN SC NO.101 OF
2011 ON THE FILE OF THE COURT OF SESSION, ERNAKULAM.
APPELLANT/ACCUSED:
RAJESH,
AGED 30 YEARS,
S/O.NATARAJAN, THAZHATHEVEETTIL HOUSE, 3 CENT
COLONY, KAVALANGADUKARA, KUTTAMANGALAM VILLAGE.
BY ADV SRI.P.A.MUJEEB
COMPLAINANT/RESPONDENT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-31.
BY ADV.SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2025, THE COURT ON 04.02.2025 DELIVERED THE FOLLOWING:
Criminal Appeal No.86 of 2014
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2025:KER:8538
C.S.SUDHA, J.
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Criminal Appeal No.86 of 2014
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Dated this the 04th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in S.C.No.101/2011 on the file of the Court of Session, Ernakulam challenges the conviction entered and sentence passed against him for the offence punishable under Section 363 IPC.
2. The prosecution case is that Chinnu, the deceased was the daughter of PW1 and PW3. The accused is the husband of the elder sister of the deceased, born to PW3 in her first marriage. PW1 is the second husband of PW3. While the deceased was a 16 year old school going girl, the accused her brother-in-law, developed an illicit affair with her. On 30/11/2009, he took the deceased to the house of PW4 in Chenduvara, Munnar and had coitus with her. The deceased on the said day had left home on the Criminal Appeal No.86 of 2014 3 2025:KER:8538 pretext that she was going to meet one of her friends. When she did not return by evening, her parents and relatives made enquiries. PW2, a cousin of the deceased received information that the accused and the deceased were at the house of PW4. Hence, PW5 and PW7 along with others went in a vehicle to the house of PW4 and brought back the deceased home along with the accused in the early hours of 01/12/2009. Fearing shame and ill-repute, PW1 the father did not give any complaint to the police. After the incident there were frequent quarrels between the mother and sister of the accused and the parents of the deceased. While so on 13/02/2010, the deceased was hospitalized at Medical College Kolenchery after having sustained severe burn injuries to which she succumbed in the early hours of 15/02/2010. PW1 then gave Ext.P1 FIS regarding the incident to PW15 on the basis of which the crime was registered. Hence, the accused as per the final report was alleged to have committed the offences punishable under Sections 363 and 376 IPC .
3. Crime no.25/2010, Oonnukal polices station, that is, Ext.P1(a) FIR was registered by PW15, the then Sub Inspector of Criminal Appeal No.86 of 2014 4 2025:KER:8538 Oonnukal police station, based on Ext.P1 FIS of PW1. PW17, Circle Inspector, Kothamangalam, the investigating officer conducted the investigation and on completion of the investigation submitted the final report/charge sheet before the Court alleging the commission of the offences punishable under the aforementioned Sections by the accused.
4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Ernakulam. The case was taken on file as S.C.No.101/2011 and thereafter made over to the Additional District and Sessions Judge, Ernakulam for trial and disposal.
5. On behalf of the prosecution, PW1 to PW18 were examined and Exts.P1 to P17 and M.O.1 and M.O.2 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. Criminal Appeal No.86 of 2014 5
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6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted the accused under Section 235(1) Cr.P.C. for the offence punishable under Section 376 IPC. However, he has been found guilty of the offence punishable under Section 363 IPC and hence he has been convicted to rigorous imprisonment for a period of 7 years and to a fine of ₹20,000/- and in default, to rigorous imprisonment for one year. Set off under Section 438 Cr.P.C. has been granted. The fine amount, if realized, has been directed to be paid to PW1 and PW3 in equal proportion as compensation under Section 357(1) Cr.P.C. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or Criminal Appeal No.86 of 2014 6 2025:KER:8538 not.
9. Heard both sides.
10. It was submitted by the learned counsel for the appellant/accused that the evidence on record is unsatisfactory to prove the offence against the accused beyond reasonable doubt. The learned counsel referred to the testimony of the material prosecution witnesses in this case to substantiate his argument that there are inconsistencies in their statements and hence the benefit of doubt ought to be given to the accused. Per contra, it was submitted by the learned Public Prosecutor that the materials on record are more than sufficient to establish the charge against the accused and hence no interference is called for.
11. I shall briefly refer to the evidence relied on by the prosecution in support of the case. As per Ext.P7, the date of birth of the deceased is 14/05/1994. The incident in this case occurred on 30/11/2009. At the time of the alleged incident, the victim girl was 15 years 6 months and 16 days old. Therefore, the prosecution case that she was below 16 years stands established.
11.1. PW1 the father of the deceased gave Ext.P1 Criminal Appeal No.86 of 2014 7 2025:KER:8538 statement to the police. He deposed that on 30/11/2009, the victim girl had left home saying that she was going to the house of one of her friends. But by evening as the girl did not return home, they made necessary enquiries. On enquiry they came to know that she was in the house of PW4 along with the accused and therefore some of his relatives went to the house of PW4 and brought back his daughter along with the accused.
11.2. PW2 a relative of the deceased deposed that he had seen the victim girl and the accused being brought back in the early hours of 01/12/2009 by PW5 and others. PW3, the mother of the deceased, also testified in support of the prosecution case. PW2 as well as PW3 deposed that the deceased had told them that she had coitus with the accused at the house of PW4, a relative of the accused. According to the prosecution, the accused had taken the deceased girl to the house of PW4 and raped her. PW4 when examined turned hostile and deposed that he does not know whether the victim girl and the accused had come to his house or whether the relatives of the victim girl had come to his house and taken back the girl and the accused back home. Criminal Appeal No.86 of 2014 8
2025:KER:8538 11.3. PW5 an auto-rickshaw driver deposed that on 30/11/2009 at about noon he had taken the accused to Oonnukal police station in his auto-rickshaw. On his way back he saw the deceased standing by the side of the road near the stadium. On the same day at about 09:00 p.m., PW7 came to his house and informed him that the deceased was missing. He along with PW7 and others went to the house of PW4 and brought back the accused and the victim back to the house of PW1 and PW3.
11.4. PW7 is the stepbrother of the deceased. PW7 also supported the prosecution case. He deposed that on the said day when the deceased went missing, they made enquiries and found that she was in the house of PW4 along with the accused. On receipt of the said information, he along with his two brothers and others went to the house of PW4. When they reached there, it was PW4 who opened the door of the house. When they asked PW4 whether the accused and the victim girl were at home, the latter did not give any answer. When they went inside and checked, they found the victim girl and the accused inside the house. On the very same day, the deceased and the accused were brought back home. Criminal Appeal No.86 of 2014 9
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12. It is true that there is delay in giving Ext.P1 FIS. However, the same has been properly explained by the prosecution witnesses. PW1 stated that he had refrained from giving a complaint to the police fearing humiliation of the deceased. He was apprehensive that a police case regarding the incident may bring ill-repute to the girl. In Ext.P1 FIS itself he has stated that he had refrained from making any police complaint immediately after the incident fearing humiliation and also because of the fact that the accused is none other than the brother-in-law of the deceased. However, after the demise of the deceased, PW1 had nothing to lose as far as the victim girl was concerned and so he gave Ext.P1 complaint immediately on her demise. The testimony of PW5 and PW7 supported by the testimony of PW3, is quite convincing and there are no reasons to disbelieve them. This is especially so because the accused is none other than the brother-in-law of the deceased and son-in-law of PW1 and PW3. Therefore, there seem to be no reason(s) why they should falsely implicate him.
13. It is true that none of the prosecution witnesses had actually seen the accused taking away or enticing the victim. Criminal Appeal No.86 of 2014 10
2025:KER:8538 However, it has been brought on record that at the time of the incident the deceased was residing with her parents, namely, PW1 and PW3 at Kavalangad. PW4 was residing in Chenduvara, Munnar. PW5 saw both the accused as well as the deceased near the place from where the accused is alleged to have enticed the latter. The testimony of PW1 and PW3 would prove that the deceased had left their home saying that she wanted to meet her friend. She had left home without taking any change of clothing. PW5 and PW7 have no case that the deceased had any baggage of clothing with her when she was brought back by them. At the time of the alleged incident the deceased was only a school going student. As rightly held by the trial court it is evident that the deceased had no plans to go to any distant place or/and for an overnight stay. The circumstances in the case would rule out the possibility of the deceased going on her own to the house of PW4 in Munnar. The accused has no explanation as to how the victim girl was found in his company in the house of PW4 in the late hours of 30/11/2009 or the early hours of 01/12/2009. The testimony of PW5 and PW7 that they had gone to the house of Criminal Appeal No.86 of 2014 11 2025:KER:8538 PW4 on 30/11/2009 itself and had found the victim girl in the company of the accused in the house of PW4 has not been discredited in any way and so I find no reasons to disbelieve them. Hence, the deceased and the accused were found in the house of PW4 in Munnar, which is quite far away from the house of the victim girl. Evidence has also come on record that PW4 was living alone at his residence at the relevant time. Therefore, the evidence clearly shows that the accused had taken the victim girl to the house of PW4 in Munnar. The accused has no case that he had taken the deceased to the house of PW4 with the permission of her parents. Though the accused is alleged to have committed the offence of rape also, the trial court acquitted him finding no evidence. In all probability the deceased must have had coitus with the accused and that appears to be the reason why she disclosed the same to PW2 as well as PW3. However, as there is no evidence to prove the offence of rape, the trial court was right in acquitting the accused for the said offence. However, the ingredients of the offence under Section 363 IPC, that is, kidnapping the victim from lawful guardianship is clearly established. Therefore, I find no Criminal Appeal No.86 of 2014 12 2025:KER:8538 infirmity in the findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak