Kerala High Court
Rajesh vs State Of Kerala on 28 June, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934
CRL.A.No. 2307 of 2006 ( )
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SC.548/2004 of ADDL.SUB COURT, PARAVUR
APPELLANT(S)/ACCUSED::
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RAJESH, S/O.RAJAN,
KADEPARAMBIL VEEDU, POOYAPPILLYKARA
VADAKKEKARA VILLAGE.
BY ADVS.SRI.PRASUN.S
SRI.PAUL MATHEW (PERUMPILLIL)
RESPONDENT/COMPLAINANT::
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STATE OF KERALA
REP. BY CIRCLE INSPECT OF POLICE, VADAKKEKARA.
BY ADV. PUBLIC PROSECUTOR, SMT.LOWSY.A.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
"CR"
P.S.GOPINATHAN, J.
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Crl.A.No.2307 OF 2006
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Dated this the 28th day of June, 2012
J U D G M E N T
~~~~~~~~~~~ The appellant is the accused in Sessions Case No.548/2004, on the file of the Additional Assistant Sessions Judge, North Paravur. He was prosecuted by the Circle Inspector of Police, Vadakkekara Police Station, who was examined as PW18, alleging offences under Sections 366A and 376 IPC. The trial court, after full fledged trial, found the appellant guilty for the above offences. Consequently, he was convicted and sentenced to rigorous imprisonment for three years and seven years respectively. He was also directed to pay rupees one lakh as compensation to the victim, who was examined as PW2. In default to pay the compensation, the appellant was ordered to undergo simple imprisonment for a further period of two years. The substantive sentences were ordered to run consecutively. Assailing the above conviction and sentence, this appeal is preferred.
Crl.A.No.2307/2006 2
2. The prosecution case is that the appellant and PW2 are neighbours and as such well acquainted. PW2, who had no T.V. At her house, used to visit the house of the appellant for watching T.V. Though the appellant was married and having children was attracted to PW2. PW2, who was born on 13.5.1987, was made believe that the appellant would marry her. On 17.8.2002 at 8 p.m., while the wife and children of the appellant were away, PW2 was called to the house of the appellant and she was hidden inside the house. PWs 3 and 4, the father and mother of PW2, noticing that PW2 was missing from the house, made search in and around including an enquiry to the appellant. The appellant wilfully suppressed the fact that PW2 was inside the house and stated to PW3 that she had not reached there. At about 11 p.m., when the street was almost deserted, PW2 was taken to Chittattukara on a bicycle and from there to North Paravur by walking. From North Paravur they fetched a truck and reached Guruvayoor at the early hours of 18.8.2008. The appellant took a room in Remanika Reagency Lodge, wherein PW16 was the receptionist. After bath and changing dress, they went to the temple. The appellant tied a Crl.A.No.2307/2006 3 'Thally' and a ceremony of marriage was performed in front of the temple. Then they returned to the lodge. Had intercourse and stayed there. Next day, they left the lodge and took room in Sree Ramakrishna Lodge, wherein PW17 was the receptionist. On that day, they resided there and had intercourse.
3. On 18.8.2002, having failed to find out PW2, PW3 lodged a complaint before the Station House Officer, Vadakkekara Police Station. PW12, a Head Constable attached to the Police Station, recorded Ext.P1 First Information Statement given by PW3 and registered a case as Crime No.218/2002 for man missing for which, Ext.P9 First Information Report was prepared. On 20.8.2002, the appellant and PW2 returned and PW2 was sent home by the appellant. PW3 informed the arrival of PW2 to PW14, the Sub Inspector, who summoned and recorded the statement of PW2 and on finding that offences under Section 366A and 376 IPC was committed by the appellant, Ext.P11 report was filed before the Magistrate concerned reporting that the case was being investigated for the above said offences. The investigation was later taken over by Crl.A.No.2307/2006 4 PW18. PW18 recorded the statement of the witnesses including PW2. PW2 was referred to Government Hospital, North Paravur, wherein PW7 and 8 were Medical Officers. PW7, after examining PW2 issued Ext.P3 certificate. The appellant was arrested and he was also referred to the same hospital. PW8 examined the appellant. Potency test was also conducted and issued Ext.P4 certificate. The extract of the school admission register and Death and Birth Register maintained by the Municipality were collected. Cloths and other material were seized. After completing the investigation, PW18 submitted the charge sheet before the Judicial Magistrate of the 1st Class, North Paravur, alleging the earlier mentioned offences. During investigation, appellant was released on bail.
4. The learned Magistrate, on finding that the offences alleged are exclusively triable by a court of session and after completing the requisite procedures, by order dated 16.8.2004 committed the case to the court of session, Ernakulam. From there, it was made over to the trial court. Responding to the process issued, the appellant entered appearance before the trial Crl.A.No.2307/2006 5 court. After hearing either side, a charge for the above offences was framed. When read over and explained, the appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 18 were examined. Exts.P1 to P21 and MOs 1 to 9 were marked. After closing the evidence for the prosecution, the appellant was questioned under section 313 (1)
(b) of the Code of Criminal Procedure. He took a defence of total denial and further advanced a contention that PW3 was on bitter terms with him as he appeared as a witness against PW3 in a property dispute and to wreak vengeance the case was falsely foisted. Though the appellant was called upon to enter his defence, no defence evidence was let in. The learned Additional Assistant Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt consequent to which, the appellant was convicted and sentenced as above.
5. I have heard Adv. Sri.Prasun appearing for the appellant and Smt.Lowsy, the learned Government Pleader. The judgment impugned as well as the evidence on record were perused.
Crl.A.No.2307/2006 6
6. PW2, the victim, had given evidence in support of the prosecution case. Her evidence would show that she used to go to the house of the appellant, who is a neighbour, for watching T.V. The appellant, who took PW2 into confidence, promised to marry her and that on 17.8.2002 at 8 p.m. she was invited to the house of the appellant and asked to hide inside the house. A little later, her father, who was examined as PW3, having not seen PW2 returned home, went to the house of the appellant in search of PW2. PW3 was sent back by the appellant stating that PW2 had not arrived there. At 11 a.m., the appellant and PW2 went to Chittattukara on a bicycle ridden by the appellant. The bicycle was left there and then they walked upto North Paravur. From there, they proceeded to Guruvayoor on a truck and reached Guruvayoor at the early hours of 18.8.2002. They took a room in Remanika Lodge and after bath they went to the temple. In front of the temple, the appellant tied a Thally, which was identified as MO5, returned to the lodge, had intercourse and stayed there on that day. On the next day, they went for cinema and then lodged in Room No.21 of Sree Ramakrishna Lodge. On that lodge also they had intercourse. On the next day, they returned Crl.A.No.2307/2006 7 in a K.S.R.T.C. bus to North Paravur and from there, she was sent home in an autorickshaw. PW2 would further depose that on 23.5.2002 also the appellant had sexual intercourse with her and that she was studying in standard VIII at St.Alosius High School and that she was aged 15 years with date of birth 13.5.1987. She had also identified the dresses worn by her.
7. PW3 had given evidence regarding the missing of PW2 on 17.8.2002 and lodging of complaint. Ext.P1 was identified. He would also depose about the search conducted by him on 17th, return of PW2 on 20.8.2002 and the intimation of the same to the police. He would further depose that PW2 was aged 15 years with date of birth 13.5.1987. The evidence of PW4 would corroborate with the evidence of PW3.
8. The evidence of PW7 would show that she was working as a Medical Officer at Government Hospital, North Paravur and that she examined PW2 at 3.45 p.m. on 20.8.2002 and that Ext.P3 is the certificate. Ext.P3 would show that the hymen of PW2 was having old tear.
Crl.A.No.2307/2006 8
9. PW8 would depose that he had examined the appellant and issued Ext.P4 certificate and that he noticed nothing to conclude that the appellant was incapable of performing sexual act. Ext.P4 certificate would corroborate with the evidence of PW8.
10. PW11, the Head Mistress of St.Alosius High School, was examined to prove Ext.P8, the extract of the School Admission Register. PW15 is the secretary of the Paravur Municipality. He was examined to prove Ext.P12, the extract of the Birth and Death Register maintained in the Municipality. Though the trial court rejected Ext.P8, the evidence of PW15 and Ext.P12 was relied upon to come to a conclusion that the date of birth of PW2 is 13.5.1987 as deposed by PWs 2 to 4.
11. The evidence of PW1 would show that at 11 p.m. on 17.8.2002 he had seen the appellant riding bicycle with PW2. The evidence of PW16 supported by Ext.P13 would show that the appellant and PW2 were lodged in Remanika Regeancy lodge on 18.8.2002. The evidence of PW17 supported by Ext.P14 would Crl.A.No.2307/2006 9 show that on 19.8.2002 the appellant along with PW2 hired room No.21 of Sree Ramakrishna Lodge and resided there on the day.
12. PW6 is an attestor to Ext.P2 mahazar, whereby the bicycle in which the appellant and PW2 went to Chittattukara was seized. PW9 is an attestor to Ext.P5 seizure mahazar. PW10 is an attestor to Ext.P6 and P7, two other seizure mahazars. PW12 had proved the recording of Ext.P1 and the registering of the case. PW13 is the Village Officer, who prepared Ext.P10 site plan. PW14, the Sub Inspector would prove Ext.P11 report. PW18, the Circle Inspector, would prove the process of investigation, recording the statement of the witnesses and seizure of the documents.
13. On a critical scrutiny of the evidence of PWs 1 to 4, 16 and 17, I find that there is convincing evidence to conclude that on 17.8.2008 at 8 p.m. PW2 was called to the house by the appellant and she was hidden inside the house and at 11.p.m. the appellant took PW2 to Chittattukara on a bicycle and from there, they went to North Paravur by walking. From North Paravur, Crl.A.No.2307/2006 10 they fetched a truck and reached Guruvayoor and they took a room in Remanika Regeancy. They had a bath and went to the Guruvayoor temple. The appellant tied 'Thally' on PW2 and a ceremony of marriage was performed. As the appellant had a living spouse, the marriage would be void. Thereafter, they returned to the lodge and had intercourse. On the next day, they went to Sree Ramakrishna lodge . There also they stayed for one day and had intercourse.
14. The evidence of PWs 2 to 4 coupled with the evidence of PWs 15 and Ext.P12 would convincingly establish that as on 17.8.2002 PW2 was a minor aged 15 years. The appellant has no case that PW2 was not a minor and there is no reason to disbelieve the date of birth of PW2 deposed by PWs 2 to 4 and PW15. Their evidence is corroborated by Ext.P12. The above evidence adduced by the prosecution would convincingly establish that PW2, who was a minor, was enticed by the appellant and was taken to Guruvayoor from the custody of her parents and had intercourse, of course with consent. Since PW2 was only 15 years, her consent is insignificant. The learned Crl.A.No.2307/2006 11 counsel for the appellant would argue that no offence under Section 366A IPC is established even believing the prosecution case as such. For a correct appraisal of the case a reference to Section 366A IPC, which reads as follows, would be relevant.
"366A. Procuration of minor girl:- Whoever by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
To constitute offence under Section 366A, a minor girl should be induced to go away from any place with intent or knowing that she will be forced or seduced to illicit intercourse with another person and not with the person taking her or seducing her.
15. Carefully going through the evidence, which I discussed earlier and Section 366A IPC, I find that PW2 was not induced by the appellant and taken away from the custody of her parents or either forced or seduced to have illicit intercourse with another person. On the other hand, the consistent Crl.A.No.2307/2006 12 evidence on record is that PW2 was enticed on promise of marriage and she was taken to Guruvayoor; and the appellant, after performing the marriage ceremony had intercourse with PW2. There is no case that PW2 was forced or seduced to have any illicit intercourse with another person. Therefore, I find merit in the argument advanced by the learned counsel for the appellant that no offence under Section 366A IPC is made out. But going by the evidence on record, I find that the appellant had kidnapped PW2, aged 15 years from the lawful guardianship of PWs 3 and 4. Therefore, an offence under Section 363 IPC is made out. Though the evidence on record would show that the appellant had intercourse with PW2 with her consent, PW2 being under 15 years of age it would amount to offence of rape under Section 375 IPC and is punishable under Section 376 IPC. For the reasons discussed earlier, I find that the prosecution had succeeded to establish offences under Section 363 and 376 IPC and no offence under Section 366A is established.
16. The learned counsel for the appellant then advanced an argument that since no charge was framed for offence under Crl.A.No.2307/2006 13 Section 363 IPC, no conviction under Section 363 IPC would lie. It is true that no charge for offence under Section 363 IPC was framed against the appellant. Going by the final report submitted by PW18 and the court charge, I find that the materials stated therein would clearly show that there is allegation of kidnapping and rape and that Section 366A IPC was infact misquoted instead of 363 IPC. Though there is no charge framed for offence under Section 366A IPC, I find that the conviction for offence under Section 363 IPC can be sustained as offence under Section 363 IPC is evident from the allegations and appellant defended the case with the said allegations amounting to offence under Section 363 IPC. Therefore, no prejudice was caused to the appellant. Adding to that the appellant had not raised such issue at the time of framing of charge or at any time thereafter. The error on hand is one coming under section 215 Cr.P.C. So long as there is no case of failure of justice, such error is not material.
17. Having due regard to the facts and circumstances stated earlier, I find that while confirming the conviction for Crl.A.No.2307/2006 14 offence under Section 376 IPC, the conviction and sentence for offence under Section 366A IPC is to be set aside. Instead of conviction for offence under Section 366A IPC, the appellant is liable to be convicted and sentenced for offence under Section 363 IPC. Having due regard to the facts and circumstances, I find that a sentence of rigorous imprisonment for two years for offence under Section 363 IPC would meet with the ends of justice. As regards the sentence for offence under Section 376 IPC, I find that the sentence awarded by the trial court and the compensation ordered are moderate, just and appropriate; and are liable to be sustained except the default sentence of simple imprisonment for two years. I find that a default sentence of simple imprisonment for one year would meet the ends of justice. So also, concurrent suffering of sentence would meet the ends of justice.
18. In the result, the appeal is allowed in part. While setting aside the conviction and sentence for offence under Section 366A IPC, the conviction and sentence for offence under Section 376 IPC are confirmed and instead of conviction under Crl.A.No.2307/2006 15 Section 366A IPC, the appellant is convicted for offence under Section 363 IPC and sentenced to rigorous imprisonment for two years. The order to pay compensation is sustained; but the default sentence is reduced to simple imprisonment for one year. The trial court shall see the execution of sentence and report compliance.
(P.S.GOPINATHAN, JUDGE) ps/29/6