Kerala High Court
Sibichan Joseph @ Sibi vs State Of Kerala on 21 March, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934
Crl.Rev.Pet.No. 409 of 2013 ()
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CRA.695/2004 OF ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM
SC.47/1994 OF ADDL.ASSISTANT SESSIONS COURT, KOTTAYAM
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PETITIONER/APPELLANT/4TH ACCUSED :
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SIBICHAN JOSEPH @ SIBI, AGED 44 YEARS,
S/O.OUSEPH, CHOORAPADI HOUSE, KURUMPANADOM KARA,
MADAPPALLY VILLAGE.
BY ADV. SRI.V.N.SUNIL KUMAR
RESPONDENT/RESPONDENT & COMPLAINANT :
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-31.
BY PUBLIC PROSECUTOR SMT. R. REMA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 21-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Mn
P.BHAVADASAN, J.
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Crl.R.P. No. 409 of 2013
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Dated this the 21st day of March, 2013
O R D E R
This revision is by the fourth accused in S.C.No.47/1994 where four persons were prosecuted for the offences punishable under Sections 366, 376 and 392 read with 34 of IPC.
2. The allegation against the petitioner and the co- accused is that they had persuaded four ladies to go over to Madras under the pretext of procuring employment in the textile mill from their native place, Changanacherry. They were initially accommodated in the house of A1 and A2. The allegation is that instead of procuring employment for them, they were forced into prostitution and they were raped by the accused persons. It so happened that one of the victims happened to write Ext.P2 letter to her mother, PW1. On getting the letter, complaint was laid before the police and a crime was registered as per Ext.P1(a) FIR. Investigation was Crl.R.P. No.409/2013 -2- conducted and charge was laid.
3. Among the accused, accused Nos. 1 and 2 were absconding and accused Nos. 3 and 4 faced trial. On committal of the case, it was transferred to Assistant Sessions Court, Kottayam for trial and disposal. The said court on getting records framed charges for the offence punishable under Sections 366, 376 and 392 read with 34 of IPC. The third and fourth accused pleaded not guilty and claimed to be tried. The prosecution examined PWs 1 to 16 and had Exts. P1 to P18 marked. MOs 1 to 8 were got identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent and have been falsely implicated. On being asked to adduce the evidence, finding that they could not be acquitted under Section 232 Cr.P.C. they chose to adduce no evidence. On an appreciation of the evidence in Crl.R.P. No.409/2013 -3- the case, the trial court came to the conclusion that the offences under Sections 366 and 376 have been established as against the petitioner herein and the co-accused and they were therefore convicted and sentenced to suffer rigorous imprisonment for a period seven years and to pay fine of Rs. 25,000/- each with a default clause of one year simple imprisonment for the offence punishable under Section 376 of IPC and rigorous imprisonment for 3 years and to pay a fine of Rs. 20,000/- with a default clause of simple imprisonment for six months for the offence punishable under Section 366 of IPC. It is directed that the substantive sentence shall run concurrently.
4. The disappointed fourth accused took up the matter in appeal as Crl.A. No.695 if 2004 before the Sessions Court, Kottayam. The said court after independently considering the evidence found no grounds to interfere with the conviction and sentence passed by the trial court and confirmed the same.
Crl.R.P. No.409/2013 -4-
5. The learned counsel appearing for the revision petitioner pointed out that the finding of guilt for the offence punishable under Section 376 of IPC as against the fourth accused is without any supporting material or any evidence what so ever in that regard. The allegation against the fourth accused is that he had committed rape on PW4. The evidence of PW4 is insufficient to show that the offence of rape has been committed by the revision petitioner. It was also pointed out that a close scrutiny of the evidence of the victims reveals that in fact A4 was also one among the job seekers and he had no role to play in the incident.
6. The learned Public Prosecutor on the other hand opposed the above contention and pointed out that a reading of the evidence of PWs 1 to 5 reveal the active role played by the A4 and also that the evidence of PW5 is sufficient to show that A4 had committed rape on PW4. As per the evidence, the accused seems to have accompanied the women from Changanacherry to Madras and in fact the Crl.R.P. No.409/2013 -5- evidence would reveal that they were under the guard of A4, the petitioner herein and he is to take them from place to place for prostitution. The learned Public Prosecutor pointed out that both the courts below has considered the evidence in considerable detail and have come to the conclusion that the offences are made out. Sitting in revisional jurisdiction this Court will not be justified in interfering with the findings unless it is shown that the findings of the court below are perverse or contrary to the evidence.
7. It appears that PWs 2 to 5 along with three other boys were taken to Madras under the pretext that they would be provided with employment in a textile mill. However, the evidence of PWs 2 to 5 show that they were not only not provided with job in the textile job but they were forced into prostitution. The evidence shows that PW2 had written a letter to her mother, PW1 who on receipt of the same filed Ext.P1 complaint. Based on the said complaint, a crime was registered.
Crl.R.P. No.409/2013 -6-
8. The contention that A4 had nothing to do with the incident cannot be countenanced in the light of evidence available in the case to show that he was one of the main persons who was instrumental in driving PWs to the prostitution. His role is spoken to by PWs 2 to 5.
9. In the light of the evidence furnished by PWs 2 to 5, the claim made by the petitioner that he was one of the job seekers and he was not involved in the commission of offences alleged, cannot be countenanced.
10. In fact, PW3 would say that one of the victim was 17 years of age at the relevant time when she was taken to Madras.
11. True, the act of commission of rape as against the petitioner is confined to the evidence of PW4. PW5 says that the she had occasion to see A4 committing rape on PW4. But in the evidence of PW4 in this regard is found wanting. All that she had stated is that "A4 .fK L\N^O_ f:Oqa". Then a leading question is put by the learned Public prosecutor as Crl.R.P. No.409/2013 -7- follows:
"Question: V^x`x_5N^O_eI`A_M_:nagU^ Answer: )Unm "
12. It is not possible to understand that how a leading question was permitted and that necessarily that will have to be excluded from consideration. If the answer to leading question in cross examination of PW4 is eschewed from consideration as regards the aspect of rape by A4, there is no other evidence except that of evidence of PW5 who says she had seen PW4 being raped by A4. That cannot be readily accepted. It would be rather inconceivable that accused would have ravished PW4 in the presence of PW5. To that extent, the evidence is found wanting as far as A4 is concerned.
13. But however his role in having taken the girl to Madras and also having forced them into prostitution is well established by the evidence of PWs 2 to 5. One among them is aged only 17 years at the relevant time. The role played Crl.R.P. No.409/2013 -8- by A4 is spoken to by PWs 2 to 5. PW1 the mother of PW2 has also stated that while she went to the railway station to see of her daughter, she had seen A4 and had told him that she is entrusting her daughter to him and he has to take care of her and the money for purchasing ticket was handed over to him. This evidence when considered along with the evidence of PWs 2 to 5 would belie the versions given by the revision petitioner that he was only a job seeker.
14. Both the court below have considered the evidence in considerable detail and have come to the conclusion that A4 had major role to play in the incident. The claim of A4 that there is want of evidence to show that the girls were taken to different places from time to time is baseless. Evidence adduced by Pws 2 to 5 clearly show his involvement. It will be quiet imprudent to insist that PWs 2 to 5 should specify the exact places where they were taken by accused and also the time of commission of offences. Crl.R.P. No.409/2013 -9-
15. As already noticed both the courts have analysed the evidence and have come to the conclusion that the offences are made out. But as already noticed, the evidence is found wanting as far as A4 is concerned, regarding the offence under Section 376 of IPC. However since one of the victim was below the age of 18 and A4 had taken her also to Madras and subjected her for prostitution, offence under Section 366A is squarely attracted.
16. In the light of the above facts and circumstances and the evidence adduced in the case, while setting aside the conviction of the accused for the offence punishable under Section 376 IPC, conviction under Section 366 is confirmed and he is also found guilty of the offence punishable under Section 366A of IPC. Coming the sentence, court below has awarded seven years and three years of rigorous imprisonment and to pay a fine of Rs. 25,000/- and 20,000/-under Section 376 and 366 respectively. Considering the age of the petitioner at the Crl.R.P. No.409/2013 -10- relevant time and the passage of the time, it is felt that sentence imposed is slightly on the high side.
Considering the totality of the facts and circumstances, A4 shall stand convicted for the offence punishable under Sections 376 and 366A and he is sentenced to undergo rigorous imprisonment for 4 years under each offences and to pay fine of Rs. 25,000/- on each count, in default of payment of which, he is to suffer simple imprisonment for a further period of three months for each offences. Substantive sentences shall run concurrently and set off as per law was allowed Subject to the above modifications, this revision petition is dismissed.
Sd/-
P.BHAVADASAN, JUDGE ds //True copy// P.A. To Judge