Kerala High Court
Leela vs The State Of Kerala on 22 May, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
CRL.A.No. 997 of 2004 (A)
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AGAINST THE JUDGMENT IN SC.64/2001 of ADDL.DISTRICT & SESSIONS COURT
(ADHOC)-II, KOZHIKODE DATED 22-05-2004
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APPELLANT/1ST ACCUSED:
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LEELA, THENGINKUNNUMMAL,
THALAYAD, KANTHALOD AMSOM, DESOM
BALUSSERY, KOHIKODE DISTRICT.
BY ADVS. SRI.K.VINOD KUMAR
K.V.RESHMI
RESPONDENT/RESPONDENT:
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THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.R.REMA
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 26.3.2013 THE COURT ON 26-03-2013 DELIVERED THE FOLLOWING:
VK
P. BHAVADASAN, J.
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Crl.Appeal. No. 997 of 2004
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Dated this the 9th day of April, 2013.
JUDGMENT
The appellant is the first accused in S.C. No.64 of 2001 before the Additional District and Sessions Court, Fast Track (Adhoc II), Kozhikode, who suffered conviction for the offence punishable under Section 366A of Indian Penal Code and was sentenced to undergo rigorous imprisonment for nine years and to pay fine of Rs.25,000/- with default sentence of one year rigorous imprisonment. Set off as per law was allowed.
2. Initially there were three accused persons and third accused attained the rank of the second accused when the original second accused absconded.
3. P.W.5 is the victim in this case. She was aged 15 years at the relevant time and was studying in a school. On 28.1.1998 as usual she went to school. Usually she returns home by 5.30 p.m.. On the date of the incident, i.e., on 28.1.1998, she did not return home at the usual time. Crl.Appeal.997/2004.
2Even as night fell since P.W.5 did not return home, P.W.1 on 29.1.1998 laid Ext.P1 first information statement before the Balussery Police Station. According to the statement given by him, he was given to understand that his sister, P.W.5, was seen going along with the first accused and it is also stated in the first information statement that the girl was found at different locations in the company of the first accused. P.W.17 recorded Ext.P1 first information statement and registered crime as per Ext.P1(a) FIR. P.W.17 arrested the first accused on 31.1.1998 at 2.30 p.m. and he was able to locate the missing P.W.5 on the same day by about 7.45 p.m. P.W.17, after following the necessary procedures, produced the girl before the court on 1.2.1998. The relevant report is Ext.P15. He had the victim sent for medical examination. The victim was examined by P.W.6 and Ext.P4 certificate was issued by him. He also took steps to have the age of the victim determined and obtained Ext.P6 certificate. P.W.17 says that during his Crl.Appeal.997/2004.
3initial investigation, it was revealed that the victim was subjected to rape and therefore he filed Ext.P17 report before the court seeking to have Section 376 of Indian Penal Code incorporated. Investigation was taken over by P.W.19. After verifying the records of investigation conducted by P.W.17, he had the clothes worn by the absconding accused seized as per Ext.P7 seizure mahazar. He prepared Ext.P11 scene mahazar also. He had the jeep in which the victim was taken to a place seized under Ext.P13 seizure mahazar and the dress alleged to have been worn by the victim at the relevant time seized as per Ext.P21. He also had the test identification parade conducted by P.W.21. He recorded the statements of witnesses, completed investigation and laid charge before court.
4. The court, before which final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kozhikode. The said Crl.Appeal.997/2004.
4court made over the case to Additional District and Sessions Court Fast Track (Adhoc II), Kozhikode for trial and disposal. The latter court, on receipt of records, framed charges for the offences punishable under Sections 366A and 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 23 examined and Exts.P1 to P37 marked. M.Os. 1 to 3 were got identified and marked. After the close of the prosecution evidence the accused was questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. On finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on his defence. It seems that the defence examined D.W.1 and had Exts.D1 series and Ext.D2 marked.
5. On an appreciation of the evidence in the case, the trial court came to the conclusion that as against the Crl.Appeal.997/2004.
5first accused, offence under Section 366A read with Section 34 I.P.C. was made out. Accordingly, the first accused, who is the appellant herein, was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal.
6. The main contention raised in this appeal is that the evidence of P.Ws.2 and 16 cannot stand scrutiny in the light of the inconsistencies and contradictions in their evidence. The inherent improbability in the case put forward by these witnesses coupled with the contradictions and inconsistencies in their evidence make their evidence suspicious. Even going by the evidence now available on record, there is nothing to show that the first accused had either lured or induced P.W.5 to go along with her. In fact it is pointed out that P.W.5 had approached the first accused and she had gone along with the first accused voluntarily and wilfully and on her own volition. That being the position, the essential ingredients necessary to attract Crl.Appeal.997/2004.
6Section 366A is conspicuously absent in the case and the conviction cannot stand.
7. It is also contended that there is no satisfactory and convincing evidence regarding the age of the victim. The prosecution relies on the evidence of P.W.22 and Ext.P36 to prove the date of birth of the victim. Neither the evidence of P.W.22 nor the entries in Ext.P36 are sufficient to prove the date of birth of the victim since the identity of the person covered by Ext.P36 is not seen established. As far as Ext.P6 is concerned, it is only a certificate of the School where the victim had studied and is issued by P.W.8. The original records have not been produced before court and from the evidence of P.W.8 it is not possible to say as to who gave the date of birth at the time of admission in the school. If the age of the victim is not established or if there is any reasonable doubt regarding the age of the victim, the benefit should go to the accused. It is therefore contended that the conviction and Crl.Appeal.997/2004.
7sentence for the offence under Section 366A I.P.C. cannot stand.
8. Learned Public Prosecutor on the other hand contended that the finding that the offence under Section 366A of I.P.C. has been committed by the first accused is based on the evidence available in the case. The evidence show that P.W.5 had fallen in love with one Santhosh, who used to visit her house. The first accused who was a neighbour of the victim was aware of the love affair between P.W.5 and Santhosh. She then, with ulterior motive, induced P.W.5 to go along with her under the pretext that the first accused could take her to Santhosh with whom she could lead a happy and comfortable life. Lured by the desire to have a life with Santhosh, P.W.5 who was a minor went along with the first accused knowing little about the devil in the mind of the first accused. Learned Public Prosecutor pointed out that the evidence of P.W.5 is convincing and cogent and the evidence of P.W.5 would get Crl.Appeal.997/2004.
8support from the evidence of P.Ws. 2, 3 and 16. It is not correct to say that P.W.5 had gone voluntarily with the first accused. It is also contended by the learned Public Prosecutor that the evidence of P.Ws.8 and 22 taken along with Exts.P6 and P36 are sufficient to prove the age of the victim and these documents would show that the victim was below the age of 18. The evidence is clear to the effect that at a certain point of time the first accused left P.W.5 in the company of the absconding accused who is accused of having ravished P.W.5. According to the learned Public Prosecutor, all the ingredients necessary to attract Section 366A of I.P.C. are available in the case and the finding of the court below in that regard may not be interfered with.
9. P.W.5 is the victim in this case. Her evidence shows that at the relevant time she was studying in the 8th standard. She would say that during that period she had fallen in love with one Santhosh who was working in Saritha Studio. The first accused in this case is a close neighbour of Crl.Appeal.997/2004.
9P.W.5. P.W.5 would say that first accused was aware of her relationship with Santhosh. On 28.1.1998 she would say that she had gone to the house of the first accused from where she was taken to Thalayad and then to Thamarassery and then to Kalpetta. After spending sometime at Kalpetta, they reached Kozhikode where they saw a film. At that place, the first accused gained acquaintance with two young people. They pointed out that it was not proper for the first accused and P.W.5 to remain there and that they would take them to a safe place and believing them P.W.5 and the first accused were taken in an autorickshaw. P.W.5 would say that they were taken to a two storied building and there the first accused had sexual contact with both of them. P.W.5 was waiting in another room. When the two persons made advances towards P.W.5, she objected and that made them retract. On the next day, P.W.5 would say that the first accused took her to Thamarassery where she went to the house of one of her relatives. They left the house and Crl.Appeal.997/2004.
10reached Kozhikode. P.W.5 would then say that when she asked the first accused about Santhosh, she was told that Santhosh was waiting at Vadakara and therefore she was taken to Vadakara. They reached Vadakara by about 5.30 p.m.. At Vadakara also, P.W.5 claims to have gone to the house of one of her relatives. The next day they left that place also. P.W.5 would say that the first accused told her that if any one asked about the relationship between her and P.W.5, P.W.5 should say that she is the daughter of the sister of the mother of P.W.5. In both the places where P.W.5 stayed, she said so to the persons in those houses. From Vadakara P.W.5 and the first accused left to Koyilandy. P.W.5 would say that she happened to see a person wearing a particular type of shirt and mundu with black boarder mounting the bus. He was seen talking in gestures to the first accused. When P.W.5 enquired about him, the first accused told her that he is a very close acquaintant of the first accused. From Koyilandy, P.W.5 Crl.Appeal.997/2004.
11and the first accused mounted the bus to Kozhikode. Then also P.W.5 enquired to first accused about the whereabouts of Santhosh and the first accused replied that he will be at Kozhikode. At that place, they were joined by the person they met in the bus at Vadakara and the name of that person was given by the first accused as Shaji. He took the tickets for Kozhikode. When they reached Kozhikode the said Shaji gave Rs.100/- to the first accused and asked her to buy tickets for a film. While they were watching the movie, the said Shaji is alleged to have made advances towards P.W.5. After the film was over, the first accused asked P.W.5 to go along with the said Shaji and told P.W.5 that Shaji will take her to Santhosh who is at Vadakara and the first accused is said to have left the place. Thereafter, P.W.5 would say that she did not meet the first accused at all. P.W.5 went along with Shaji and then she speaks about the sexual assault committed by Shaji and also the Crl.Appeal.997/2004.
12autorickshaw driver who had taken them to a semi constructed building.
10. P.W.2 resides at Vadakara. To be more precise, at Meppayil in Vadakara. He would say that a day in 1998 in the evening P.W.5 had come to her house with a lady. They resided in her house for that day and left the house on the next day morning. P.W.2 would say that the name of the lady who had come with P.W.5 was given as Leela. P.W.16 is related to P.W.5. She too would say that on a day in 1998 P.W.5 had come along with a lady and resided in her house. P.W.16 would say that on the next day morning she also went out of the house along with P.W.5. P.W.16 mounted a bus to go to Kozhikode and P.W.5 and the first accused mounted in a bus to go to Quilandy. In court, P.W.16 identified the first accused as the lady who accompanied P.W.5.
11. Even though it is contended on behalf of the appellant that P.W.5 had gone along with the first accused Crl.Appeal.997/2004.
13on her own volition, there is no such suggestion to P.W.5 at the time of evidence. It is not suggested to her that she had gone to the house of Leela voluntarily and asked Leela to take her to Santhosh. On the other hand, on going through the evidence of P.W.5, it can be seen that P.W.5 was induced to come out of her house and go along with the first accused since she represented to P.W.5 that she would be taken to Santhosh with whom she could have a comfortable life. It is true that P.Ws.2 and 16 are related to P.W.5. It is in their houses that they had resided for two days. But it is significant to notice that the first accused had cautioned P.W.5 that if the identity of the first accused was enquired, P.W.5 should represent that she is the daughter of the sister of her mother. The evidence of P.W.16 is to the effect that the lady who had come to her house in 1998 along with P.W.5 is none other than the first accused. It is also significant to notice that the evidence of P.W.5 shows that she repeatedly asked the first accused Crl.Appeal.997/2004.
14where Santhosh was and on each occasion, the first accused represented that Santhosh would be at Vadakara or at Kozhikode. Ultimately, it is significant to notice that the first accused left P.W.5 in the company of Shaji assuring P.W.5 that the said Shaji would take her to Santhosh.
12. A reading of the evidence of P.W.5 would show that it was at the instance of the first accused that she had left her house without the knowledge of her parents with the hope of joining Santhosh. Therefore, the contention that there was no inducement or that P.W.5 was not lured to go along with the first accused cannot be countenanced. Learned Public Prosecutor is fully justified in his submission that it was the inducement which was extended by the first accused which prompted P.W.5 to leave her house.
13. Coming to the dispute regarding the age, the contention raised in this appeal is without any substance whatsoever. P.W.8 is the Headmistress of the School where Crl.Appeal.997/2004.
15P.W.5 was studying at the relevant time. She confirms that Ext.P6 certificate is issued by her. She would depose that Ext.P6 was issued on the basis of the entries in the register maintained in the regular course of business of the School. In cross examination, she stated that in all probability P.W.5 had come from another school. She also conceded that she had no occasion to see the birth certificate of P.W.5. It is significant to notice that there is no suggestion to P.W.8 that Ext.P6 does not relate to P.W.5. Even if Ext.P6 and the evidence of P.W.8 are found to be insufficient to prove the age of the victim, the prosecution has examined P.W.22 and had marked Ext.P36. P.W.22 is an officer of Balussery Grama Panchayat and he had stated before court that Ext.P36 was issued from his office showing the date of birth of P.W.5 as 11.2.1983. He deposes that the birth of the child was registered with the local authority and the name of the father of the child is Chekkootty and the name of the mother is Madhavi. He would also depose that Ext.P36 has Crl.Appeal.997/2004.
16been issued on the basis of the register maintained by the Registrar of Births and Deaths in the Panchayat.
14. Of course, a contention is raised that in Ext.P36 the name of the child is shown as Bindu. But the prosecution has adduced convincing evidence to show that the said Bindu is none other P.W.5 and whose real name is Jubilee. There is no dispute that the name of the parents shown in Ext.P6 are that of P.W.5. If that be so, it is claimed that as on the date of the commission of the offence the victim had not completed the age of 16.
15. The finding of the court below that P.W.5 had gone along with the first accused on the inducement practiced by the first accused and lured by the thought of having a comfortable life with Santhosh as represented by the first accused does not call for interference since the finding is based on the evidence adduced in the case. Again, the conduct of the first accused in leaving P.W.5 in the company of Shaji, who later seduced P.W.5 and Crl.Appeal.997/2004.
17subjected her to illicit intercourse also satisfies the conditions stipulated in Section 366A of I.P.C. Therefore, the court below was perfectly justified in coming to the conclusion that the acts of the first accused fall within the ambit of Section 366A I.P.C. and she was rightly convicted for the said offence.
16. What now remains to be considered is the sentence. It is pointed out that the sentence awarded is too harsh and is not warranted by the facts of the case.
17. The act of the first accused cannot be justified in any manner. Her claim that P.W.5 had voluntarily gone along with her may not be correct. She did induce or lure P.W.5 to go along with her under the pretext that P.W.5 would be taken to Santhosh with whom P.W.5 had an affair. However, there is some merit in the contention that the sentence awarded is disproportionate to the offence committed. Considering the various aspects, it is felt that rigorous imprisonment for a period of seven Crl.Appeal.997/2004.
18years and fine of Rs.20,000/- would meet the interests of justice.
In the result, while confirming the conviction of the appellant-first accused for the offence under Section 366A of I.P.C., the sentence awarded by the court below is set aside and the first accused is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.20,000/-, in default of payment of which, to undergo rigorous imprisonment for a further period of one year. If the fine amount is realised, the same shall be given as compensation to P.W.5.
P. BHAVADASAN, JUDGE sb.