Kerala High Court
Jayan vs State Of Kerala on 13 January, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935
CRL.A.No. 334 of 2003 ( )
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AGAINST THE JUDGMENT IN SC 393/2000 of SESSIONS COURT, ALAPPUZHA
DATED 13-01-2003
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APPELLANT/ACCUSED:
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JAYAN, MURUKALAYAM, WARD NO.III,
ARATTUPUZHA PANCHAYATH.
BY ADVS.SRI.P.PARAMESWARAN NAIR
SRI.P.JALALUDEEN
RESPONDENTS/COMPLAINANTS:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA.
2. DEPUTY SUPERINTENDENT OF POLICE,
KAYAMKULAM.
BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
P. BHAVADASAN, J.
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Crl.Appeal. No. 334 of 2003
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Dated this the 24th day of May, 2013.
JUDGMENT
The accused in this case was prosecuted for the offence punishable under Section 376 of Indian Penal Code and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He was found guilty of the offence under Section 376 of I.P.C. alone and therefore he was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.25,000/-, in default, to undergo rigorous imprisonment for six months. It was also directed that if the fine amount is realised the same shall be paid as compensation to the victim. Set off as per law was allowed.
2. P.W.1 is the victim in this case and P.W.2 is her mother. P.W.1 was 12 years at the relevant time and she was staying with her parents and siblings. Her father goes for work at 6'o clock in the morning. Short while thereafter, her mother also leaves for work. On the date of the Crl.A.334/2004. 2 incident, according to the prosecution, the victim and her brother alone were at home. The accused is the neighbour of the victim. As per the prosecution case, P.W.1, the victim was in the habit of providing water to the house of the accused. On the date of the incident, as usual, she kept a pot of water on the veranda of the house of the accused. At that time, the accused was in the house and was standing in the varanda. Then the accused caught hold of the victim, took her inside the house and ravished her. The accused threatened P.W.1 with dire consequences if she revealed the incident to anybody. According to the prosecution, she was so weak that she could not get up from the cot and she remained on the cot in the house of the accused. By about 11 a.m., the mother of the victim, namely, P.W.2, came in search of the victim and she found the victim in the house of the accused and realised what had transpired. By that time, P.W.3, the sister of P.W.2, had also reached the place. The allegation is that soon thereafter P.W.1 along with P.W.3 Crl.A.334/2004. 3 went to the police station and laid Ext.P1 first information statement.
3. P.W.13, the Sub Inspector of Police, recorded the first information statement furnished by P.W.1 and registered crime as per Ext.P9 FIR. He informed the matter to the superior officers and he had sent the victim to the hospital. The victim was examined by P.W.5, who issued Ext.P2 certificate. On the same day itself the accused was arrested and he was subjected to potency test. In the meanwhile, P.W.15 taken over investigation. He prepared Ext.P5 scene mahazar. He had M.Os. 1 to 3 clothes said to have been worn by the victim recovered as per Ext.P6 mahazar. M.O.4, the dress said to have been worn by the accused at the relevant time was recovered as per Ext.P7 mahazar. He recorded the statements of a few witnesses also. Further investigation was carried on by his successor-in-office P.W.16. He prepared Ext.P11 mahazar seizing the register from the school where the victim was Crl.A.334/2004. 4 undergoing her studies. He obtained Ext.P12 FSL report, completed investigation and laid charge before court.
4. The court, before which the final report was laid, took cognizance of the offence and finding that the case is one exclusively triable by a special court, the said court committed the case to Sessions Court, Alappuzha under Section 209 Cr.P.C..
5. On appearance of the accused before the said court, charge was framed for offences under Sections 376 of I.P.C. and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 16 and had Exts.P1 to P12 marked. M.Os. 1 to 4 were got identified and marked. From the defence side, contradictory portions of the statement given by P.Ws.1 and 2 were marked as Exts. D1 and D2 series. After the close of the prosecution evidence, the accused was questioned under Crl.A.334/2004. 5 Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He stated that on 5.4.1996, he and his parents had taken his wife to the hospital at Mavelikkara. When they left the house, they locked the house and entrusted the key to P.W.2. When they returned, P.W.2 was not at home and the victim said that she would get the key from her mother. She brought the key and handed it over to the father of the accused and they opened the door. They then found two bangles kept in the house missing. There was an altercation between the father of the accused and P.W.2. The accused would then say that in the evening two police men came to the house and took him to the police station. Then only he realised that he has been made an accused. He claims that he has been falsely implicated.
6. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter Crl.A.334/2004. 6 on his defence. He chose to adduce no evidence. On an appreciation of the evidence in the case, it was found that though the offence under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act had not been made out, there was clinching evidence to come to the conclusion that the offence under Section 376 I.P.C. has been made out. Accordingly, the conviction and sentence as already mentioned followed.
7. The said conviction and sentence are assailed in this appeal.
8. The main contentions raised are that the court below has omitted to note the omissions and contradictions in the evidence of P.Ws. 1 to 3 which makes their evidence vulnerable and suspicious and if that be so, the benefit of doubt should be given to the accused. Many of the facts spoken to by P.Ws.1 and 2, according to the appellant, do not find a place in their previous statement to the police and that shows that the case was developed at a later stage. It Crl.A.334/2004. 7 was contended that the conduct of the accused as spoken to by P.Ws.1 and 2 is quite unnatural and cannot of the ordinary course of things. It is difficult to understand, according to the learned counsel, if as a matter of fact the accused had infact committed the objectionable act, he would have remained in the house where the incident occurred but would make every effort to conceal the incident. The fact that the victim was retrieved from the house of the accused as spoken to by P.Ws.1 to 3 shows the hollowness of the prosecution case. It was then urged that the evidence of P.Ws.1 to 3 do not get support from the medical evidence as could be seen from the testimony of P.W.5 and Ext.P2. In Ext.P2 issued by P.W.5, there is no definite opinion that sexual assault has been committed. Accordingly, it is contended that there is no supporting evidence for the testimony given by P.Ws.1 and 2 and in such unsatisfactory state of affairs, the conviction cannot stand.
Crl.A.334/2004. 8
9. Learned Public Prosecutor on the other hand pointed out that the court below has meticulously analysed the evidence and found the evidence of P.Ws. 1 to 3 convincing enough. The court below also found that sufficient support is received from the medical evidence as could be seen from the testimony of P.W.5 taken along with Ext.P2. It was contended that true there are certain omissions and contradictions in the evidence of P.Ws.1 and 2, but they do not affect the core of the prosecution case and their versions regarding some insignificant aspects of the case do not make the evidence of P.Ws.1 and 2 vulnerable and open to doubt. Learned Public Prosecutor pointed out that the FIS came into existence within a very short time of the incident and that is some guarantee regarding the truthfulness of the case put forward by the prosecution. Though the accused had spoken about the loss of two bangles while questioning under Section 313 Cr.P.C., no evidence was adduced by the defence in support of the Crl.A.334/2004. 9 said claim. It is quite inconceivable, according to the learned Public Prosecutor, that a mother would stoop to the level of making her daughter a subject of sexual assault to wreak vengeance. There is no reason to suspect the evidence of P.Ws.1 and 2 and there is no infirmity attached to their evidence. Learned Public Prosecutor also reminded this court that the lower court which had the occasion to watch the demeanor of the witnesses has chosen to accept the evidence of P.W.3 and unless it is shown that the findings are perverse, interference may not be justified.
10. The evidence on record namely, Ext.P10, which is the extract of the school register maintained by the school in which the victim was studying at the relevant time produced through P.W.14 shows that the date of birth of the victim is 18.4.1984. The incident is alleged to have taken place on 6.4.1996. As regards the incident, as is usual, the court has to place considerable reliance on the evidence of prosecutrix or the victim. In the case on hand, the victim is Crl.A.334/2004. 10 examined as P.W.1. She gives a vivid description of what had transpired on the date of the incident. She deposed that she used to supply water to the house of the accused since the wife of the accused had gone for delivery and on the date of the incident also she did the same thing. When she placed water on the veranda of the house of the accused, the accused was standing there. P.W.1 would say that he caught hold of her and she was literally lifted from the varenda and taken to a room. She was threatened with dire consequences if she dared to cry or make a sound. She then speaks about the act committed by the accused on her which need not be repeated in verbatim in this order. P.W.1 would say that she was so exhausted after the incident that she remained on the cot. By about 11-11.30 a.m., according to P.W.1, her mother had come in search of her and she finally happened to see P.W.1 lying on a cot in the house of the accused. Seeing her, her mother let out a cry and asked what had transpired. P.W.1 says that she narrated the Crl.A.334/2004. 11 incident to her mother. Hearing the cries of her mother, P.W.3, the sister of P.W.2 also reached the place. According to P.W.1, they lifted her and brought her outside. After going to the bathroom of the same house, she was given water by P.W.3. After taking water, P.W.1 would say that they had gone to the police station. She then identifies the dress produced in the court as worn by her at the relevant time.
11. P.W.2 is the mother of the victim. She says that as usual she left for work in the morning and returned at about 11 a.m. She had come home to take food. She did not find her daughter at home. She then went to the house of P.W.3 which was nearby and the daughter of P.W.3 told P.W.2 that P.W.1 was not in their house. After searching for a while, she returned to the house of the accused and asked him about her daughter. Seeing the nervousness and panic exhibited by the accused, P.W.2 would say that she entered into the house and found her daughter lying in the cot tired. Crl.A.334/2004. 12 P.W.2 cried aloud and which brought P.W.3 to the house. She then speaks about having taken P.W.1 to the bathroom and giving water to P.W.1.
12. P.W.3 is the sister of P.W.2. She speaks about having come to the house of the accused hearing the wails of P.W.2 and she also says that she found P.W.1 lying on the cot and she and P.W.2 brought the child to the varenda of the house of the accused. She also says that when she reached the house of the accused, the accused was standing in the varenda of the house.
13. The main attack on the evidence of P.Ws.1 to 3 is that statements made by the witnesses are not found in the statement given by them to the police. Much is argued regarding the fact that the facts spoken to by P.W.1 with regard to the taking of P.W.1 into the house, closing her mouth etc, are not seen spoken to and recorded by the police. Much is said about the absence of the statement to the doctor by P.W.1 regarding pain and burning sensation in Crl.A.334/2004. 13 her private part which was spoken to at the time of evidence. It is also pointed out that the statement by P.W.1 that she was threatened with dire consequences if she revealed the incident to anybody is not seen recorded by the police. As regards the evidence of P.W.2, the main attack is that she in her chief-examination had stated that after retrieving her daughter from the house of the accused, she had not gone there again. This, it is pointed out, is not true because going by the evidence of P.W.15 it is seen that the statement of P.W.2 was taken from the house of the accused. It is also pointed out that the claims made by P.W.2 that she had washed the cloths of the victim and also the body of the victim are not seen mentioned to the police and this would show that these aspects spoken to by P.Ws.1 and 2 at the time of evidence is a clear embellishment or development and is contrary to truth.
14. At the first blush, these contradictions and inconsistencies may look formidable. But one has to read Crl.A.334/2004. 14 the evidence of these witnesses as a whole and it is to be noticed that P.W.1 is only 11 years. May be she was frightened by the traumatic experience and was labouring under the agony of the act. If at that point of time the victim omits to narrate the incident in detail to the police, the victim cannot be found fault with. Equally so is the case of P.W.2. No mother can bear the sight of her daughter having been ravished and lying on a cot exhausted. It has come out in evidence that P.W.1 was taken to the police station by P.W.3 and P.W.2 remained at home. If under such circumstances, some facts which may have been relevant were omitted to be stated by P.W.2 to the police or which are not seen recorded in the statement of the police, it could not be given undue importance and significance. However, it must be noticed that those omissions and contradictions do not affect the core of the prosecution case. The contradictions and inconsistencies pointed out mainly relate to the conduct of the victim after the incident or what had Crl.A.334/2004. 15 transpired later. Of course as regards what had transpired during the incident, P.W.2 could not have given any statement to the police, and as far as the victim is concerned, as already noticed, being of a tender age, one cannot expect a photographic description of the incident by the victim.
15. However, no infirmity or lacuna could be pointed out in the evidence of P.W.3. P.W.3, as already noticed, reached the place after hearing the cries of P.W.2. She would say that her entry into the house was initially objected to by the accused and when she gained entry, she found P.W.1 lying on the cot in the house of the accused. She too would say that the victim was carried from the cot and brought to the varenda. Even though a motive is suggested to P.Ws.1 and 2 as to why they should falsely implicate the accused, no such suggestion is made to P.W.3. The suggestion to P.Ws.1 and 2 is that on the previous day, i.e., on 5.4.1996, the accused, his wife and his parents had Crl.A.334/2004. 16 left to Government Hospital and at the time of leaving the house they had locked the house and entrusted the key to P.W.2 and when the accused and his father returned home and opened the house after getting the key from PW.2, they found two bangles missing and there was a talk about the same between the father of the accused and P.W.2. These suggestions put to P.Ws.1 and 2 were stoutly denied by them. Even though the accused takes the same stand at the time of his examination under Section 313 Cr.P.C., there is no evidence to show that what is suggested to P.Ws.1 and 2 is probable. Mere vague suggestions thrown at witnesses cannot be taken aid of by the accused without any supporting material.
16. Coming to the conduct of the accused, it may look unnatural that the accused remained at the place of incident after committing such a heinous crime. But one must remember that he was standing in his own house. It is also to be noticed that P.W.2 has stated that when she left in Crl.A.334/2004. 17 the morning she had seen the accused in the house. The evidence of P.W.2 shows that in the first instance when she made enquiries about her daughter, the accused remained unmoved. On the second occasion when she came crying and then asked the accused about her daughter, P.W.2 had occasion to notice the nervousness of the accused. One cannot predict as to how one may behave in a particular circumstance. The fact that the accused was standing in the varenda of the house when the child was lying inside having ravished cannot be said to be an impossibility or improbability. May be that the accused believed that P.Ws.2 and 3 may not go inside the house suspecting the accused. Whatever that be, the conduct of the accused in remaining at home may not be a ground to suspect the version of P.Ws.1 and 2. Equally without basis is the contention that the prosecution case does not get any support from the medical evidence. Of course, it is true that P.W.5, the doctor who had examined P.W.1, and who had issued Ext.P2 had Crl.A.334/2004. 18 not categorically stated that there is evidence of rape. But the entry in Ext.P2 cannot be brushed aside, i.e. "Hymen torn fresh. Admits one finger". The evidence of P.W.5 also shows that it is not possible to rule out a sexual assault. It could not therefore be said that the medical evidence is against the prosecution case. At any rate, it does not rule out the possibility of a forcible sexual assault.
17. The accused had not been successful in showing that P.Ws.1 and 2 had any oblique motive or reason to falsely implicate the accused. Here one has to notice that Ext.P1 first information statement came into existence almost within hours of the incident. It is too difficult to believe that within such a short span of time a concocted story could have been made so as to fasten liability on the accused. The fact that FIS came into existence almost immediately after the incident strengthens the prosecution case.
Crl.A.334/2004. 19
18. The court below has considered the evidence in considerable detail and has come to the conclusion that the evidence on record is sufficient to show that the accused had sexually abused the victim. That finding is based on an appreciation of the evidence in the case. As rightly pointed out by the learned Public Prosecutor, the court below which had the good fortune to watch the demeanor of the witnesses has chosen to believe P.Ws. 1 to 3 and the medical evidence adduced by the prosecution. Apart from the fact that no infirmities could be pointed out to the evidence of P.Ws.1 to 3, even assuming that a different view is possible, as long as the finding of the court below is also a possible one, interference by the appellate court may not be justified.
The result is that the conviction has to stand. What now remains to be considered is the question of sentence. It has to be noticed that the accused is a close neighbour of the victim and who was trusted by Crl.A.334/2004. 20 the victim. He had taken undue advantage of his position and had committed the heinous crime on a girl of tender age, namely, 12 years at the relevant time. The court below has awarded only minimum sentence for the offence. If at all the court below has erred in the matter of sentence, it has erred on the side of leniency. No grounds are made out to interfere with the sentence.
In the result, this appeal is without merits and it is only to be dismissed. I do so.
P. BHAVADASAN, JUDGE sb.