Kerala High Court
Rajesh vs State Of Kerala on 10 August, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934
CRL.A.No. 1386 of 2005 (A)
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AGAINST THE JUDGMENT IN SC.68/2005 of ADDL.DISTRICT COURT
(ADHOC-1), KOTTAYAM DATED 10-08-2005
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APPELLANT/3RD ACCUSED::
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RAJESH, S/O. SUKUMARAN,
KAVUMKALMOOLAYIL (H), PAKKIL, NATTAKOM
(VETTIKATTIL HOUSE, NEAR ST.MATHEWS L.P.SCHOOL, VALADI
VANDIPERIYAR, IDUKKI DIST.).
BY ADVS.SRI.B.RAMAN PILLAI
SRI.ALEX M. ARAYATH
RESPONDENT/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY. PUBLIC PROSECUTOR SRI.ROY THOMAS
BY ADVS.SRI.GEORGE PHILIP
SRI.R.ANIL
SRI.RAJU RADHAKRISHNAN
SRI.ANIL K.MOHAMMED
SRI.DELVIN JACOB MATHEWS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2013,
ALONG WITH CRA. 1393/2005, THE COURT ON 14.3.2013 DELIVERED THE
FOLLOWING:
VK
P. BHAVADASAN, J.
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Crl.Appeal. Nos. 1386 & 1393
of 2005
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Dated this the 14th day of March, 2013.
JUDGMENT
When the prosecutrix resiles from her first information statement and gives a totally different version of the incident at the time of evidence, how far the court would be justified in placing reliance on the sole testimony of the prosecutrix to find the accused guilty of the offence of rape is the main question that is raised in this appeal.
2. Three accused were prosecuted for the offences under Sections 376, 323 and 506(ii) of Indian Penal Code and they were found guilty. They were therefore convicted and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- each for the offence under Section 376 I.P.C., rigorous imprisonment for a period of one year and to pay fine of Rs.500/- each for the offence under Section 323 I.P.C., and rigorous imprisonment for seven years and to pay fine of Rs.1500/- each for the Crl.Appeal.1386 & 1393/2005.
2offence under Section 506(ii) I.P.C. In default of payment of fine, the accused were directed to undergo rigorous imprisonment for a further period of six months each. It was also directed that if the fine amounts are realised, a sum of Rs.10,000/- shall be paid to P.W.1 as compensation under Section 357(1) I.P.C. The sentences were directed to run concurrently and set off as per law was allowed.
3. The first and second accused have filed Crl.Appeal 1393 of 2005 and the third accused has filed Crl.Appeal 1386 of 2005.
4. P.W.1 is the victim and the prosecutrix in this case. According to her initial version given to the police, on 24.1.2003 at about 6.30 p.m. she had gone to the shop of one Vinochan examined as P.W.6 in this case for buying meat. When she reached the shop, the accused were present there and P.W.6 was not in the shop. P.W.1 is employed in a company manufacturing bulbs. Usually she goes for buying provisions for the house. Accused No.1 was Crl.Appeal.1386 & 1393/2005.
3present and she asked him for meat. He weighed the same and said that the price is Rs.60/-. She took out a 100/- rupee note and gave it to the first accused. Her case is that the first accused caught hold of her hands and pulled her into the varenda of the shop and she fell down suffering injuries to her knee. The second accused is stated to have caught hold of her shawl and pulled it around her neck and when she tried to wriggle out and run away, the third accused, who was there, tried to catch her legs. She kicked him away and ran towards the stationary shop nearby and conveyed the information to the lady who was running the stationary shop and the lady took her to the nearby junction. She hired an autorickshaw and went home. She would say that in the struggle she lost her chain and Rs.150/-. She was frightened and she told the inmates of the house only at 9 p.m. that she was caught hold by the accused. According to P.W.1, the act of the accused having caused her considerable mental agony and humiliation. She along with her mother, Crl.Appeal.1386 & 1393/2005.
4father and brother went to the police station and laid Ext.P1 first information statement on 25.1.2003. She was sent for medical examination and P.W.10 examined her on 25.1.2003 and furnished Ext.P6 medical certificate. P.W.13 prepared Ext.P10 scene mahazar and recorded statements of witnesses. While so, it appears that P.W.15 took over investigation on 1.2.2003. he prepared Ext.P2 scene mahazar. He had the dresses worn by P.W.1 seized under Ext.P4 mahazar. He had P.W.1 examined by P.W.9 on 1.2.2003 who issued Ext.P5 certificate and later on on 4.2.2003 P.W.7 who issued Ext.P3 certificate. He filed Exts.P12 and P12(a) reports before court pointing out that the offence under Sections 376, 323 and 506(ii) of I.P.C. were also made out during investigation while the FIR Ext.P1
(a) had shown only offences under Sections 427 and 354 read with Section 34 I.P.C. He recorded the statements of witnesses, completed investigation and laid charge before court.
Crl.Appeal.1386 & 1393/2005.
5
5. JFCM court, Changanacherry, 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, Kottayam. The said court made over the case to Additional Sessions Court (Ad Hoc) I, Kottayam for trial and disposal. The latter court on receipt of records and on appearance of the accused before the said court, framed charges for the offence punishable under Sections 376, 323, 506(ii) and 427 read with Section 34 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 15 and had Exts.P1 to P17 marked. M.Os. 1 to 4 were 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 against them and maintained that they are innocent. The first accused has stated that he has been Crl.Appeal.1386 & 1393/2005.
6falsely implicated due to trade union rivalry. Same is the case with accused No.2 also. Accused No.3 stated that he had nothing to do with the case and that he did not belong to that place at all and he is a resident of Vandiperiyar. He employed in a workshop near Lourde Church at Kottayam. While he was doing his work, according to him, the police came to the workshop and served a notice on him and was asked to come to the police station. When he reached the police station, he was made to sign certain papers. It was alleged that he was neither allowed to read the papers nor did the police read out the contents. He was then taken to the court and remanded to jail. P.W.1 is a total stranger to him. He would say that he has been made a scape goat to save somebody else. Finding that the accused could not be acquitted under Section 232 Cr.P.C. they were asked to enter on their defence. The accused chose to adduce no evidence.
Crl.Appeal.1386 & 1393/2005.
7
5. On an appreciation of the evidence in the case, the trial court formed the opinion that the prosecution has succeeded in establishing the case against the accused and therefore convicted and sentenced them as already mentioned. The said conviction and sentence are assailed in these appeals.
6. Learned counsel appearing for the appellants very vehemently criticized the findings of the courts below and went on to point out that the court below has not applied its mind and had acted in a mechanical manner. Learned counsel pointed out that P.W.1 has disowned Ext.P1 first information statement and has given a totally different version regarding the incident at the time of giving evidence. The prosecution case is that after laying the first information statement on 25.1.2003, on 1.2.2003 P.W.1 had given a complaint to the Superintendent of Police and thereafter as per the direction P.W.15 took over investigation. It is significant, according to the learned Crl.Appeal.1386 & 1393/2005.
8counsel, that the said complaint has not been produced by the prosecution for reasons best known to them. The evidence of P.W.1 is to the effect that soon after the incident, she had conveyed the details to P.Ws.2 and 4. She would say that she refrained from conveying the information to her mother, who is examined as P.W.3. This is highly unnatural and unbelievable. If she could depose what had transpired to two strangers, normally, she would have disclosed the incident to her mother also. The fact that no rape has taken place is evident from the narration of the incident as contained in Ext.P1 and so also the medical evidence adduced in this case. Attention was drawn to Exts.P3, P5 and P6 medical certificates issued by P.Ws. 7, 9 and 10 respectively and it was pointed out that the victim has given three different versions regarding the incident to the three doctors on three different occasions. It would appear, according to the learned counsel, that the investigating officer was over enthusiastic in seeing that Crl.Appeal.1386 & 1393/2005.
9offence of rape is established and he went on getting P.W.1 examined by doctors after doctors till he got a report in his favour. It was pointed out by the learned counsel that the evidence of P.W.1 is to the effect that the accused dealt a blow on her head and she lost her consciousness and when she regained consciousness, she was found lying on a cot. It is significant to notice that there was no corresponding external injury noticed in any of the wound certificates and the three wound certificates namely, Exts.P3, P5 and P6 show different kinds of injuries. There is no reasonable explanation offered by the prosecution for the delay in complaining to the Superintendent of Police till 1.3.2003. In short, learned counsel pointed out that it will be quite unsafe to rely on the testimony of P.W.1 alone to came to the conclusion that the offences have been made out.
7. Learned Public Prosecutor on the other hand pointed out that the evidence of P.W.1 stands scrutiny and the court below has chosen to accept the same. The Crl.Appeal.1386 & 1393/2005.
10non-production of the complaint to the Superintendent of Police is of no consequence and the medical evidence clearly show that the sexual assault has been committed by the accused. There may be minor contradictions and inconsistencies in the evidence of witnesses, but they do not affect the prosecution case. Such inconsistencies and contradictions are to be ignored. In support of the said proposition, learned Public Prosecutor relied on the decision reported in Om Prakasah v. State of Haryana (AIR 2011 SC 2682). Learned Public Prosecutor went on to point out that absence of the injuries on the body or private parts of the victim is of little significance, for, it is not necessary that in all cases of rape, there should be visible external injuries. For the said proposition, learned Public Prosecutor relied on the decision reported in Ram Singh v. State of H.P. ((2010) 2 SCC 445).
8. Learned Public Prosecutor pointed out that even though P.Ws.2, 4 and 6 have turned hostile, certain Crl.Appeal.1386 & 1393/2005.
11portions of their evidence supports the prosecution case and the lower court has relied on those portions to gain corroboration for the evidence of P.W.1. According to the learned Public Prosecutor, the court below has analysed the evidence and come to the conclusion that the offences have been made out and there are no grounds to interfere with the same.
9. P.W.1 is the prosecutrix and the victim. She was aged 23 years as on the date of the incident. She stays with her parents and brother and sister. She has studied upto 9th standard. She works in a bulb manufacturing company.
10. The main evidence regarding the incident is furnished by P.W.1. P.W.2 is the person who was running a stationary shop nearby, to whom P.W.1 is alleged to have ran for help when the incident had occurred. P.W.3 is the mother of the victim. P.W.4 is the auto driver who took P.W.1 to her house and P.W.6 is the person who runs the Crl.Appeal.1386 & 1393/2005.
12meat shop.
11. It is well settled that in cases alleging rape, the evidence given by the prosecutrix assumes considerable importance. In fact as regards the incident, that could be the sole evidence, for, rape is never committed in public or on invitation. If it is found that the evidence of prosecutrix is above board and convincing enough, that would be sufficient in law to find against the accused. It is also settled that in order to rely solely on the evidence of prosecutrix, it must be convincing, cogent and of a sterling character. As to who constitutes a sterling witness is considered in the decision reported in Rai Sandeep v. State of NCT of Delhi (AIR 2012 SC 3157) wherein it was held as follows:
" 'Sterling witness' should of of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, Crl.Appeal.1386 & 1393/2005.13
the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It should be akin to the test applied in the case of circumstantial evidence where there should not be Crl.Appeal.1386 & 1393/2005.14
any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as other similar such tests to be applied, it can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials namely, oral documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
12. In the decision reported in Vimal Suresh Kamble v. Chaluverapinake Apal S.P. (AIR 2003 SC 818) it was held as follows:
"....It is no doubt true that in law the conviction of an accused on the basis of the testimony of the prosecutrix alone is permissible, Crl.Appeal.1386 & 1393/2005.15
but that is in a case where the evidence of the prosecutrix inspires confidence and appears to be natural and truthful. The evidence of the prosecutrix in this case is not of such quality, and there is no other evidence on record which may even lend some assurance, short of corroboration that she is making a truthful statement. We, therefore, find no reason to disagree with the finding of the High Court in an appeal against acquittal. The view taken by the High Court is a possible, reasonable view of the evidence on record and, therefore, warrants no interference."
13. In the decision reported in Prithipal Singh v. State of Punjab ((2012) 1 SCC 10) it was held as follows:
"This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 o the Evidence Act. But if there are doubts about the testimony, the court will insist on Crl.Appeal.1386 & 1393/2005.16
corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
Therefore, the principle is well settled that if the evidence of the solitary witness is found to inspire confidence in the mind of the court and does not suffer from any serious infirmities, that could well be accepted and form the basis of conviction.
14. It is equally well settled that minor contradictions and inconsistencies in the evidence of Crl.Appeal.1386 & 1393/2005.
17witnesses need not be given undue importance and significance. The capacity of reception, retention and reproduction varies from person to person. In most of the cases, the witnesses will be deposing long after the incident. Under such circumstances, it is imprudent on the part of the court to insist for mathematical precision in their evidence. Normally inconsistencies and contradictions are bound to arise. But what is to be seen is that if those contradictions and inconsistencies affect the core of the prosecution case and create a doubt in the mind of the court.
15. In the decision reported in Om Prakash's case (supra) it was held as follows:
"The learned counsel appearing for the appellant has hardly been able to bring to our notice any material contradictions in the statements of the prosecution witnesses. Every small discrepancy or minor contradiction which may erupt in the statements of a witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be Crl.Appeal.1386 & 1393/2005.18
treated as fatal to the case of the prosecution. The court must examine the statement in its entirety, correct perspective and in light of the attendant circumstances brought on record by the prosecution."
16. Bearing the above principles in mind, an attempt shall now be made to appreciate the evidence in this case to find out whether the court below has arrived at the right conclusion.
17. As has already been observed, the main item of evidence consists of the testimony of P.W.1, the victim. She in her evidence states that on the date of the incident she had gone to buy meat at about 6.30 p.m. on 24.1.2003. At the time of evidence, she comes forward with a case that she had gone to the meat shop of Andru which is very close to her house. But meat was not available in that shop. This statement made by her at the time of evidence is conspicuously absent in Ext.P1 first information statement. She would then go on to say that she went to the shop of Crl.Appeal.1386 & 1393/2005.
19P.W.6 to buy meat. When she reached the place, P.W.6 was not there. Instead the first accused was there. He asked for a chicken. He weighed the chicken and said that the price was Rs.60/-. She says that she had Rs.150/- with her and when she handed over the money, accused No.1 told her that she needs to give him change. She therefore went to the nearby shop which is run by P.W.2 and got the change. She went to the booth and telephoned. After talking to P.W.2 for a while, she returned to the shop of P.W.6 and handed over Rs.60/- to accused No.1. She would then say that he pulled her hand and drew her inside the shop. Accused No.2 tightened the shawl around her neck and accused No.3 caught her legs and took her inside the shop and then to the lean to to the shop. Inside the lean to, she would say that she was threatened with a knife. While she was dragged, she had fallen down and had sustained injuries on her knee. She would further say that the first accused inflicted a blow on her head and she became numb. He then Crl.Appeal.1386 & 1393/2005.
20removed the bottom of her churidar, removed her undergarments and made her to lie on a cot. Her both hands were tied behind using the shawl. She would then say that she was ravished by the first accused, followed by accused Nos. 2 and 3. She would say that she lost her chain as well as Rs.150/-. A short while thereafter she regained consciousness and somehow the knot untied itself and she found nobody. Then she took her churidar top and shawl and ran outside. She could not find the churidar bottom at that time and she had her undergarments in her hand. When she came out she saw the accused standing outside the shop. She ran towards P.W.2 who was about to close her shop. She fell on her legs and cried and disclosed her what had taken place at the shop and pleaded that she may take her to her house. However, P.W.2 brought her to the junction and hired an autorickshaw for her and P.W.1 reached home. P.W.1 would say that she did not say anything to her mother. In fact, she goes on to say that she Crl.Appeal.1386 & 1393/2005.
21told her only about the mischief committed by Nazir using the shawl. On the next day, she along with her parents went to Chingavanam Police Station and laid Ext.P1 FIS. She would say that in the said complaint she had only mentioned that her legs were caught hold of and that she was beaten by the accused. When they returned, her mother continued to ask her about what had transpired on the previous day and then she revealed everything to her. P.W.1 would say that again they went to the police station and stated whatever had transpired in the shop. Circle Inspector of Police had taken down her statement and she was sent for medical examination. To a pointed question in chief examination why she did not reveal the entire incident on the first occasion, she would say that it was due to the threat meted out by the accused persons and that she was highly disturbed. In cross examination she would say that she had given the statement to the Circle Inspector after 5-6 days after the filing of the first information statement. She Crl.Appeal.1386 & 1393/2005.
22would also say that she along with her parents and brother had gone to the house of the Superintendent of Police, Kottayam and they gave a written complaint to the Superintendent of Police. Two days thereafter she had given statement to the Circle Inspector. She says that she had signed the statement given to the Circle Inspector. However, she admitted that in that complaint also she had not mentioned about the blow on her head and losing consciousness thereafter. Her attention was drawn to certain significant omissions in her statement which was given before court at the time of evidence. What is significant is her deposition with reference to Ext. P1. She disowns the statement in Ext. P1 that when she handed over Rs.100/- to the first accused, he caught hold of her hand. If any such statement is found in Ext.P1, she would say that it is a wrong statement. However, she answered that Ext.P1 was read over to her and she had signed on the same finding it to be correct. She would also admit that when she Crl.Appeal.1386 & 1393/2005.
23furnished Ext.P1 first information statement, her parents and brother were present and Ext.P1 was read out and all of them heard the same. What is significant is the following statement in cross examination " (Q) (There is no truth in the first statement) (A)" (No) There are several omissions and contradictions in her statement to the police with reference to her testimony during examination. She in cross examination would admit that she had gone home without wearing the bottom of the churidar and with under garments in her hand.
18. P.W.3 is the mother of P.W.1. She would say that on 24.1.2003 even though P.W.1 had gone to buy meat, she did not buy the same and returned home. She was seen disturbed and she asked for the reason. She then told her mother that the first and second accused had caught hold of her and that she had somehow managed to escape. The Crl.Appeal.1386 & 1393/2005.
24next day, she again asked her and then P.W.1 told her that they had gagged her and tied her hands behind and they had assaulted all over her body. She then says about having gone to the police station and having laid the complaint. On return, P.W.1 was seen crying and on further enquiry P.W.1 told her that the first accused had beaten her on her head and ravished her. The second accused gaged her and tied her hands behind. P.W.1 had told her that all the three of them carried her to a cot, and the first accused, by showing a knife, threatened her with dire consequences if she chose to disclose the incident to anybody and thereafter she was ravished. Since the knot binding her hands got untied, she was able to escape. In cross examination P.W.3 would say that as per her knowledge whatever stated in Ext.P1 is true. She also says that after a few days they had gone to the Superintendent of Police and laid a complaint. To a pointed question as to who told her to go to the Superintendent of Police, she would say that when her daughter, P.W.1, told Crl.Appeal.1386 & 1393/2005.
25her the entire incident, she felt it necessary to inform the Superintendent of Police. She says that a written statement was given. She did not remember where it was written. She then deposed that she had handed over the complaint to the Superintendent of Police. But she was unable to remember contents of the complaint. She would say that she did not notice when P.W.1 returned home she was not having the bottom of the churidar and having undergarments in her hand. Later when she came to know about the incident, P.W.3 had asked P.W.1 what had happened to the garments.
19. P.W.2 is a lady who is alleged to be running a fancy store by name Shanthi store, to whom P.W.1 claimed to have rushed after the incident for help. She, at the time of evidence, chose to betray the prosecution. However, she would admit when leading question was put by the Public Prosecutor that P.W.1 had come to her shop, she was seen very nervous, she looked ill and she requested that she be Crl.Appeal.1386 & 1393/2005.
26taken home by her. She had embraced her. Since it was time for her to close the shop, P.W.3 told P.W.1 to hire an autorickshaw and go home.
20. P.W.4 is the autorickshaw driver in whose autorickshaw P.W.1 had gone home on the eventful day. He would say that P.W.1 is familiar to him and she had travelled in his autorickshaw. But he was unable to remember the exact date. However, he is able to say it was after 6.15 p.m. on that day. He would say that he had taken P.W.1 to her house,which was a short distance from the junction. He too did not support the prosecution case. The learned Public Prosecutor put questions in the nature of cross examination to him. To a significant question put by the Public Prosecutor, his answer was as follows:
" ?(Q)
(A)"
He has also stated that he had on earlier occasions seen the second accused standing near the shop of P.W.6. Crl.Appeal.1386 & 1393/2005.
27
21. P.W.6 is the owner of the meat shop from where P.W.1 claims to have purchased meat on the eventful day. He too betrayed the prosecution. He would say that he was in the shop till 8.30 p.m. on the day and he was not aware of the incident. But he was told by some people that at 12'o clock in the night that a few persons had snatched a gold chain from a lady who had come to buy meat. He would also say that his employee is one Baby and the accused are not his employees nor they had anything to do with the shop. He would also say that the first accused used to come to his shop to buy meat so also the mother of second accused. His evidence shows that there is a shed and lean to to his shop.
22. Now we come to the medical evidence. That is furnished by P.Ws. 7, who issued Ext.P3 certificate on 4.2.2003, P.W.9, who issued Ext.P5 dated 1.2.2003 and P.W.10 who issued Ext.P6 certificate on 25.1.2003. It may be recollected here that FIS was laid on 25.1.2003 and the Crl.Appeal.1386 & 1393/2005.
28examination of P.W.10 of the victim was immediately thereafter. P.W.10 would say that at the relevant time, he was working as Police Surgeon at District Hospital, Kottayam. He says about having examined the witness and issued Ext.P6 certificate. In cross examination he in no less terms conceded that the cause for the injuries were written by him as mentioned by the patient. It is only appropriate at this point of time to refer to Ext.P6 also. In Ext.P6, the history of the alleged cause of injury is given as assault by a gang of three people at 6.30 p.m. on 24.1.2003. The injuries noticed are "(1) Abraded contusion 2 x 1 cms. On the left side of front of chest just below the clavicle. (2) Abrasion 2 x 1 cms. Front of right knee." P.Ws.1 and 3 have a case that they had given a complaint to the Superintendent of Police, Kottayam on 1.2.2003 and thereafter investigation was taken over by P.W.15. P.Ws.1 Crl.Appeal.1386 & 1393/2005.
29and 3 had stated that their statements were recorded by him. P.W.9, the doctor attached to the District Hospital, Kottayam, who is a Gynecologist, had occasion to examine the victim on 1.2.2003. The alleged cause given to him is " 3 ."
He deposes to have given Ext.P5 and it is stated by him that there is physical violation against the victim. In cross examination he also admitted that the history of the incident was given by him as stated by the patient. Ext.P5 is the certificate issued by him. It shows the following injuries:
"Abrasion Lateral side of Rt. Knee joint (1 x 1 cm) Contusion neck 4 x 2 cms.
Contusion left breast 3 x 2 cms.
Contusion Rt breast 2 x 2 cms."
It is seen from the report that vaginal swab and vaginal smear were taken for chemical examination and his opinion Crl.Appeal.1386 & 1393/2005.
30is reserved pending laboratory and microscopic report. As per Ext.P5 certificate, hymen was seen torn and seen old in 4'o clock position. Vagina admitted of two fingers and the vaginal muiosa was found congested. There is no evidence to show that the chemical analysis report was received by him and that he had given his final opinion.
23. It is seen that the victim was examined on 4.2.2003 by P.W.7 who issued Ext.P3 certificate. In Ext.P3 certificate, the history is given as "on 24.1.2003 at 6.30 p.m. she went to buy meat, At that shop, a man called Nazeer along with two other men forcefully took her inside the shop. They tied shawl around neck and tied both her hands and raped her. They hit her overhead and threatened that they would kill her."
He has noticed the following injuries:
"No external injury noted over face, breasts, back, lower abd./thighs.
Oedeara and tenderness over neck + Healing abrasion + (R) knee."
Crl.Appeal.1386 & 1393/2005.
31He had also taken vaginal swab and vaginal smear and sent for forensic examination. On ENT consultation tenderness over thyroid cartilage was seen. Hymen was seen torn and old healed tear and vagina admits of two fingers. In cross examination by accused Nos.1 and 2, he said that the fourchette congested tenderness + is an indication of recent sexual intercourse. But in chief examination he has stated that the tear on hymen usually heals within five or 6 days. It is to be noticed that in Ext.P3 certificate issued by him, he has noticed that the tear to the hymen was old and it is healing. He says that old cured means it was suffered 5-7 days prior to examination.
24. P.W.15 is the investigating officer. He would say that he had taken over investigation on 1.2.2003 and speaks about the investigation conducted by him.
25. Going by the medical evidence, there are three different versions at three different times. The injuries seen in the three certificates,namely, Exts.P6, P5 and P3 are Crl.Appeal.1386 & 1393/2005.
32also different. It is in the last certificate, namely, Ext.P3 prepared by P.W.7 that the victim has given the history as sexual assault. The significance of Ext.P5 is that it was after the complaint given to the Superintendent of Police voicing the grievance about the sexual assault and after P.W.15 had taken over investigation, the victim was examined by P.W.9. Even at that point of time, the victim had no case that she had been raped. No explanation is offered by P.W.1 for this incongruity in her statement given to three doctors on three different occasions.
26. As already noticed, the evidence given by P.W.2 will show that P.W.1 had gone to the meat shop or atleast had rushed for aid and she was seen nervous and in a disturbed state. The evidence of P.W.4 would indicate that he had taken the victim to her house even though the house was only at a walkable distance from the place of occurrence. P.W.6 though says that he was in the shop throughout till 8.30 p.m. admits of having heard about Crl.Appeal.1386 & 1393/2005.
33accused Nos.1 and 2 involved in some incident near his shop. It is therefore evident that some incident has occurred in the shop of P.W.6 involving the three accused persons and the victim.
27. The question is whether the evidence is sufficient to come to the conclusion that P.W.1 has been raped by the three accused persons. When one recollects the prosecution case, the definite stand taken by the prosecution is that soon after the incident P.W.1 had rushed to P.W.2 and narrated the entire incident to her. It must be noticed here that at that time, going by the evidence of P.W.1, she did not have the bottom of the churidar and her undergarments were in her hand covered with the shawl. Of course, P.W.2 denies this. But what is significant is that the stand of the prosecution is that P.W.1 revealed the entire incident to P.W.2. The suggestion to P.W.4 the auto driver, after permission was given by court to put questions in the nature of cross examination, was that the victim had told Crl.Appeal.1386 & 1393/2005.
34him about the entire incident though he denies the same. Therefore, prosecution has a consistent case that to both P.W.2 and P.W.4 the victim had disclosed the misfortune that had fallen on her.
28. But when she reached home, she did not reveal the incident to her mother. That seems to be quite unusual and unnatural. A person who would venture to reveal the episode to P.W.2 and P.W.4 would have had enough courage to confide to P.W.3, her own mother and disclose the entire incident to her. It is here that the importance of P.W.1 stating in cross examination that whatever is stated in Ext.P1 is not true assumes importance, while P.W.3 would say otherwise. It is admitted even by P.W.1 that on 25.1.2003 she had gone along with her parents to furnish Ext.P1 complaint. Of course, she would say that she was frightened of revealing the entire incident to the police at that point of time. However, the evidence of both P.Ws.1 and 3 would indicate that after they returned Crl.Appeal.1386 & 1393/2005.
35from the police station, on 25.1.2003, the mother i.e., P.W.3 found P.W.1 crying and she then made searching enquires to P.W.1, it is then P.W.1 is alleged to have disclosed the entire incident to her. That is, on 25.1.2003 the incident was disclosed to P.W.3. But they waited till 1.2.2003 to go to the Superintendent of Police to give a written complaint. There is no explanation as to why they have waited till 1.2.2003 for filing the written complaint to the Superintendent of Police. For reasons best known to the prosecution, they have not produced the so-called complaint filed before the Superintendent of Police which led to P.W.15 taking over the investigation. Therefore, the contents of the complaint are not before court. May be it could be said that it may amount to a statement under Section 161 Cr.P.C.. But whatever that be, the contents of the complaint are not disclosed.
29. Learned counsel appearing for the appellants very vehemently contended that the case of P.W.1 is that Crl.Appeal.1386 & 1393/2005.
36she was dragged through the room into the lean to and then to the shed behind the shop. Referring to the scene plan, it is contended that there is no lean to and the shed is separated from the shop and there is no direct access from the meat shop to the shed. Ext.P9 is the scene plan. But Ext.P10 scene mahazar prepared by P.W.13 does shop that there is a lean to and shed attached to the meat shop room which provides for access both to the lien to and to the shed. So, the above contention may not be of much avail to the accused.
30. If one goes by the evidence of P.W.1, she escaped from the place half naked. Even as per the evidence of P.W.1 bottom of the churidar could not be located and she was carrying her undergarments in her hand. She has also a case that she had lost her gold chain and a sum of Rs.150/- at the place. There was no attempt on the part of P.W.15 either to recover the gold chain or the bottom of the churidar. One is surprised to note that even Crl.Appeal.1386 & 1393/2005.
37after P.W.1 reached home in the same state, P.W.3, her mother, did not suspect any foul play. It has already been noticed that it is difficult to believe the version given by P.W.1 that she was reluctant to disclose the whole incident to her mother at that point of time even though she shad no reluctance to disclose the whole episode to P.W.2 and P.W.4 going by the prosecution case. At any rate, on 25.1.2003 the entire episode was known to the members of the family of P.W.1 and as already noticed, the complaint to the Superintendent of Police was made only on 1.2.2003. It is significant to notice that there is no complaint by P.W.1 or P.W.3 that P.W.13, the person who had recorded Ext.P1 statement had either dissuaded P.W.1 from disclosing the entire facts or had omitted to take down what she had stated.
31. It is in this context one has to notice the difference in the injuries noticed in the three wound certificates and the history given by P.W.1 to each of the Crl.Appeal.1386 & 1393/2005.
38doctors. As rightly pointed out by the learned counsel for the appellants, the story has been developed stage by stage and there is some force in the submission that the entire case has to be viewed with suspicion.
32. When one carefully reads the evidence of P.W.1, it is seen that as soon as she was dragged into the shed she struggled and the accused gave a blow on her head which made her unconscious and by the time she regained consciousness, the entire incident was over. But in her evidence, she meticulously describes the entire incident and what had done by each accused. It is difficult to reconsile this inconsistent version.
33. Ext.P14 is the FSL report. The dress worn by the victim was sent for forensic examination. The result shows that no seminal stains were detected from the dress belonging to the victim. But item No.3 which is the undergarment worn by the petitioner shows traces of blood. Here one has to refer to the evidence of P.W.9, who Crl.Appeal.1386 & 1393/2005.
39examined the victim on 1.2.2003. As per his evidence, menstrual cycle of P.W.1 started on 27.1.2003. Moreover, Ext.P14 shows that for insufficiency of quantity, the origin could not be detected. But there is nothing to show that traces of blood found on the undergarments is of human origin.
34. In the above unsatisfactory state of affairs, it becomes difficult to fully accept the evidence given by P.W.1 and come to the conclusion that she has been subjected to rape. But the evidence is sufficient to show that there was an attempt to commit rape and the injuries found in the wound certificates sufficiently indicate the said fact. It could not be said that the evidence of P.W.1 is such of a sterling character so as to inspire confidence in the mind of the court to come to the conclusion that she had been raped. But as already noticed, going by the evidence of P.Ws.1, 2, 4 and 6, it is quite evident that some unpleasant incident had occurred in the meat shop or in the shed behind it on the Crl.Appeal.1386 & 1393/2005.
40date of the incident. There is ample evidence to show that the victim had suffered injuries at the hands of the accused persons even though the injuries shown in the three wound certificates are different.
In the result, while this court finds it difficult to accept the finding of the court below that offence under Section 376 has been made out, it is felt that on the basis of the evidence available, there is clear evidence to show that there was an attempted rape on P.W.1 and that the accused are guilty of the offence punishable under Section 511 of Section 376 I.P.C. apart from the offence under Sections 323 and 506(ii) I.P.C.
Thus, while confirming the conviction and sentence of the accused for the offences under Sections 323 and 506(ii) I.P.C., the finding of the court below that the accused are guilty of the offence punishable under Section 376 I.P.C, is set aside and instead they are found guilty of the offence punishable under Section 511 of Section 376 Crl.Appeal.1386 & 1393/2005.
41I.P.C. and each of them is sentenced to suffer rigorous imprisonment for a period of 5 years and to pay a fine of Rs.25,000/- each, in default of payment of which to suffer rigorous imprisonment for a further period of one year. If the fine amount is realised, a sum of Rs.50,000/- shall be paid to P.W.1 as compensation. The substantive sentences are directed to run concurrently. Set off as per law is allowed.
These appeals are disposed of as above.
P. BHAVADASAN, JUDGE sb.