Kerala High Court
Sanosh vs State Of Keala on 10 February, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 24TH DAY OF MAY 2017/3R JYAISHTA, 1939
CRL.A.No. 226 of 2012 ()
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AGAINST THE JUDGMENT IN SC 696/2010 of ASSISTANT SESSIONS
COURT,KOCHI DATED 10-02-2012
APPELLANT(S)/APPELLANT/ACCUSED A1:
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SANOSH
S/O.GOKUL DAS, KADANJERI HOUSE,
NEAR SUBRAHMANIA TEMPLE, KONAM, PALLURUTHY.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT(S)/RESPONDENT/STATE:
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STATE OF KEALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,(CRIME NO.669/2009 OF
KOCHI CUSBA POLICE STATION, ERNAKULAM DISTRICT).
BY PUBLIC PROSECUTOR SRI.C.S HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29-3-2017, THE COURT ON 24-5-2017 DELIVERED THE FOLLOWING:
P.UBAID, J.
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Crl.A No.226 of 2012
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Dated this the 24th May, 2017
J U D G M E N T
The appellant herein is the first accused in S.C 696/2010 of the Court of Session, Ernakulam. He and the 2nd accused faced trial before the court below under Sections 451 and 376 I.P.C, on the allegation that they trespassed into the house of the prosecutrix at about 5 p.m on 11.5.2009, with the object of committing rape on her, the 1st accused thus took his turn first, and subjected the lady to sexual intercourse without her consent, the 2nd accused waited outside for his turn, and when the complainant's daughter came there, the two accused ran off and escaped. The crime in this case was registered on 12.5.2009 on the complaint made by the victim alleging house trespass, assault and outrage of modesty. Thus, the F.I.R was originally registered under Sections 341, 451, 323 and 354 read with 34 of the Indian Penal Code. A case of rape or attempted rape was not specifically revealed at the initial stage by the victim of offence. After a few days, the victim gave statement to the Police that an attempt to Crl.A No.226 of 2012 2 commit rape was in fact made by the appellant when the other accused was waiting outside, that it was not merely outrage of modesty, and she did not reveal the truth at the initial stage due to some delicacy, or fear that it would affect the future of her daughter. It appears that out of the humiliation caused by the alleged incident, the victim's husband committed suicide during the investigation. On 8.6.2009, the victim gave statement to the learned Judicial First Class Magistrate-I, Aluva under Section 164 Cr.P.C revealing a case of rape. She also explained in the said statement that at the initial stage she did not reveal a case of rape due to fear that the future of the girl would be affected adversely if the whole truth is revealed. On 19.5.2009, the police submitted a report in court modifying the sections and making it a case of attempted rape, in view of the subsequent statement given by the victim. After 8.6.2009, the Police submitted another report on 12.6.2009 adding Section 376 I.P.C. Thus, initially, the crime was registered as a case of outrage of modesty, later, it was altered to one under Section 376 I.P.C read with 511 I.P.C as an attempted rape, and at the third stage, when the victim Crl.A No.226 of 2012 3 gave statement to the learned Magistrate revealing a case of rape, the Police made it a case of actual rape. After investigation, the Police submitted final report in court under Sections 451 and 376 I.P.C. The person, who allegedly committed the offence of rape is the first accused, and the allegation as against the second accused is that he waited outside for his turn and also facilitated the commission of rape by the 1st accused.
2. Both the accused appeared before the learned Assistant Sessions Judge, Kochi to whom the case was made over for trial from the Court of Session. During the trial process, the 2nd accused was discharged by the trial court under Section 227 Cr.P.C and the case proceeded against the 1st accused. He pleaded not guilty to the charge framed against him under Sections 451 and 376 I.P.C by the trial court, and claimed to be tried.
3. The prosecution examined 11 witnesses including the victim of offence and her daughter, and also proved Exts.P1 to P15 documents including the First Information Statement and the statements of the victim under Section 164 Cr.P.C. The MO1 and MO2 properties were also Crl.A No.226 of 2012 4 identified during trial. MO2 is the damaged watch of the appellant seized from the house of the victim. The prosecution allegation is that this watch was damaged when the victim kicked the appellant. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that this is a false case foisted against him. The accused also examined DW1 on his side in defence.
4. On an appreciation of the evidence, the trial court found the first accused guilty under Sections 451 and 376 I.P.C. On conviction, he was sentenced to undergo rigorous imprisonment for one year, and to pay a fine of 1000/- under Section 451 I.P.C, and to undergo rigorous imprisonment for eight years and to pay a fine of 10,000/- under Section 376 I.P.C, by judgment dated 10.2.2012. Aggrieved by the judgment of conviction, the 1st accused has come up in appeal.
5. When this appeal came up for hearing, the learned counsel for the appellant submitted that the prosecution case is not believable at all, in view of the inconsistent and suspicious stand taken by the victim at Crl.A No.226 of 2012 5 different stages, and that the victim's conduct will show that this is a false case. It was submitted that the case was brought at the initial stage as a case of outrage of modesty, but the victim embellished things and made wild allegations at different stages to make it a case of rape. On the other hand, the learned Public Prosecutor submitted that the victim did not reveal a case of rape at the initial stage only because of some delicacy and also for fear of consequence that it would adversely affect the future of the daughter, who was at that time aged 15 or 16 years.
6. It appears that the Police could not detect and find out the truth, and that is why the Police simply acted upon the statements given by the victim at different stages.
7. Of the 11 witnesses examined in the trial court, PW1 is the victim of offence and PW2 is her daughter, who happened to witness the alleged incident. PW3 is the Doctor, who examined the victim at the hospital on the date of incident itself and issued the Ext.P3 wound certificate. This certificate does not reveal an incident of rape or attempted rape. The wound certificate shows that the victim had some simple injuries when seen by the Doctor. Crl.A No.226 of 2012 6 PW4 is the Doctor who examined the accused to test his potency, and issued the Ext.P4 certificate. PW8 is the Doctor who further examined the victim at the hospital at Mattanchery on 21.5.2009. The incident happened on 11.5.2009. The medical evidence is that no external injury on the private parts could be seen by the Doctor on examination, and the Doctor also could not detect any sign of recent sexual assault. Of course, that must be the evidence, because the lady was examined by the Doctor only on 21.5.2009. PW7 is the victim's brother who attested the Ext.P5 scene mahazar. This witness also identified the MO2 watch of the accused seized from the scene of incident. PW9 is the Assistant Sub Inspector of Police, Palluruthy, who recorded the First Information Statement of the victim and PW10 is the Additional Sub Inspector, who registered the Ext.P7 F.I.R. PW11 is the Circle Inspector of Police, Palluruthy who investigated the case and submitted final report in court.
8. The Ext.P1 F.I Statement was given by the victim at 1.30 p.m on 12.5.2009 at the Government Hospital, Karuvelippady. She was brought at the hospital at about 7 Crl.A No.226 of 2012 7 p.m on 11.5.2009 on an allegation of outrageous assault by two persons. The F.I Statement alleges that two persons including the appellant came there and trespassed into her house and also made outrages attempt on her. The complaint does not allege any overt act against the other man. What is alleged in the Ext.P1 F.I Statement is a case of assault on the lady amounting to outrage of modesty. On a close reading of the statement, I find that some elements of attempted rape are also there in the said statement. The statement shows that just when the appellant caught the victim on her neck in an attempt to outrage her, the victim's daughter came there and when the daughter made hue and cry on seeing the accused, the two accused ran off and escaped. The allegation in the F.I. Statement is that the two accused came there and asked the victim to telephone to one Issy. The victim declined the request and closed the gate. Then they followed her and asked for a glass of water. That was also declined by her, and she entered the house and closed the door from inside. Just then the appellant herein went around and entered the house through the kitchen door and made assault on her with the object of Crl.A No.226 of 2012 8 outraging her modesty and also overpowered her by force. She was severely beaten in the said attempt, and when she cried aloud, he gagged her mouth and threatened that if anybody came there he would say that he came there on her call. He tore her night garment and caught with force on her neck for overpowering her for what he intended. But just then her daughter, who had gone to the nearby church came there. Seeing the assault on her, the daughter cried aloud, and then the two accused ran off and escaped. The statement also shows that during the assault, the appellant had told her that the other accused would enter the house after his turn. This means that the real object of the appellant when he made outrageous assault on the lady was to subject her to rape, and everything he did was as part of the said attempt. That is why I said that the Ext.P1 statement in fact, on a close reading, reveals something essential for the offence of attempted rape.
9. Now let me see what is the evidence given by the victim and her daughter. Though an instance of rape was not revealed in the F.I. Statement, the victim gave a further statement after two or three days that the outrageous act Crl.A No.226 of 2012 9 done by the accused was in fact an attempt for rape, and she did not reveal the truth at the initial stage for fear that it would adversely affect the future of her daughter. She revealed the true facts as instructed by her husband. When she thus revealed a case of attempted rape, the Police incorporated Section 376 read with 511 I.P.C and deleted Section 354 I.P.C. Ext.P8 report was accordingly filed in court. The victim again changed her versions and alleged a case of actual rape when she was examined by the learned Magistrate under Section 164 Cr.P.C. In the said statement, she stated that she was in fact subjected to sexual intercourse by the appellant by force at her house, and her daughter reached there seeing this incident of rape. She had closed the front door from inside, but the appellant gained entry through the kitchen door, and the daughter happened to see the incident through a crack on the front door. When the daughter made hue and cry, the two accused ran off and escaped. The question is to what extent this statement can be believed. When the lady thus revealed a case of actual rape on 8.6.2009, the Police filed a report in court on 12.6.2009 that this is not merely a case Crl.A No.226 of 2012 10 of attempted rape, but a case of actual rape. Section 376 I.P.C was thus incorporated, and the provision regarding attempted rape was deleted. It was accordingly, after investigation, the Police submitted final report under Section 376 I.P.C.
10. On an examination and analysis of the evidence given by the victim in this case as PW1, I find something suspicious as regards the allegation of actual rape. The first portion of the deposition of PW1 will show that her daughter came there and happened to see the incident when she was caught with force on the neck by the accused with the object of subjecting her to sexual intercourse. This means that the daughter had not in fact witnessed an incident of rape. If the first portion of the evidence given by the victim is acceptable and believable, what is revealed is only an instance of attempted rape, and PW2 came there and happened to witness the incident when attempt was being made by the accused to ravish the victim inside the house. This evidence will definitely show that before the appellant could actually ravish her and subject her to sexual intercourse, the daughter came there, and then the Crl.A No.226 of 2012 11 appellant ran off and escaped. The second part of the deposition took a deviation when the lady spoke about the rape committed on her by the accused. The explanation given by the lady in cross-examination for the change in versions on two occasions is not convincing and acceptable. After two days, she explained that the incident was an attempted rape, and she explained that she did not reveal the truth due to some delicacy or humiliation, and also for fear that it would affect the future of the daughter. Her evidence shows that the whole truth was revealed by her after two or three days in her further statement. But to make or develop a case of rape, she waited till 8.6.2009, when examined by the Magistrate under Section 164 Cr.P.C. The report of the Investigating Officer shows that he thought of having the statements of the victim recorded under Section 164 Cr.P.C when the victim went on changing her versions during investigation. Probably he felt something suspicious when the lady went on changing her versions without maintaining consistency as regards the actual incident. Her explanation is that, she did not reveal the true things to the Police due to humiliation and also for fear that Crl.A No.226 of 2012 12 revelation of the true incident would affect the future of the daughter. But the evidence of the victim in cross- examination will convince the court that she had revealed the whole truth on 14.5.2009, when she explained a case of attempted rape to the Police. This means that the whole truth was revealed by her on 14.5.2009, and nothing more remained to be revealed thereafter. If so, the case of actual rape developed by her after three weeks will have to be viewed with genuine suspicion. Of course, the explanation made on 14.5.2009 regarding an attempted rape can be believed and accepted by the court because the F.I Statement itself reveals the essentials of of such an offence. The appellant had told her that the other accused was waiting outside for his turn. This means that the real object of the accused was to rape the lady, and everything he did inside the house was part of the said attempt. That is why, I said that an actual case of attempted rape is revealed by the Ext.P1 F.I statement. Thus, what I find is that the case of actual rape told by the victim is not acceptable when everything regarding such versions is suspicious, but a case of attempted rape is well proved by the evidence of the Crl.A No.226 of 2012 13 victim.
11. Now let me see what is the evidence of the victim's daughter. All the material witnesses identified the MO2 damaged watch of the accused seized from scene of incident. The evidence of PW1 is that during the outrageouss attempt made by the accused to ravish her, she had kicked him off, as a result of which, his body hit on the wall and his watch was damaged. The damaged watch fell at the room and it was later seized by the Police. It was abandoned by him when he ran off and escaped on seeing the daughter.
12. PW2 is the daughter of the victim who witnessed the incident. Her evidence is that when she looked through the crack on the front door, she saw the mother being caught hold of by the accused on the neck and she also saw the appellant committing rape on the mother. The night garment of the mother was seen raised and the accused was in a half naked condition. When she cried aloud, the accused escaped through the rear door. In fact, it is really doubtful whether the appellant had in fact committed rape on the victim as the daughter would say. A careful Crl.A No.226 of 2012 14 examination of the evidence of the daughter would show that when she reached there what she saw was in fact the accused holding her mother's neck and making an attempt to ravish the mother. When questioned by the Police, for the first time, the statement of PW2 was that when she looked through the crack on the door on hearing the mother's cry, she saw the accused holding the mother with force on the neck and making an attempt to ravish her. When interrogated further by the police during investigation, she changed her versions and developed a case of rape. When cross-examined by the defence, the girl admitted that she had not given such a statement to the Police, that her mother had been raped by the accused. She admitted that her first statement was only about the attempt made by the accused to ravish the mother, and not about the actual instance of rape. She did not explain why she did not reveal the things or the truth when first questioned by the Police. Curiously enough, the learned Public Prosecutor also did not elicit such things, or any explanation, why or in what circumstance the girl happened to change her versions and introduced a case of rape at a later stage. On a careful Crl.A No.226 of 2012 15 analysis of the first information statement and the statements given by the victim and her mother, just after two days from the date of incident, what I find is that this is in fact a case of attempted rape. If it is really a case of rape, it requires explanation why the true things were not revealed by the victim or her daughter at the right stage. This is something suspicious. The victim stated that she revealed the whole truth after two days at the instance of her husband or as instructed by her husband. If so, it is really doubtful why she waited till the death of the husband to speak about a case of rape. There is reason to believe that when she dishonestly developed such a case of rape later, the daughter was also instructed accordingly to gave such a statement about rape. During cross-examination, the girl fairly conceded that many important aspects stated by her in evidence, were not in fact stated to the Police, when questioned by the Police during investigation. She has no explanation why she suppressed all these facts or why she thought it convenient to reveal things only after a few days. The girl is consistent that when she saw the appellant inside the house he was in a half naked condition Crl.A No.226 of 2012 16 and the night garment of the mother was seen raised upwards. It was in such a condition she saw the mother being caught by the accused. This is nothing but an attempt to commit rape. Such an attempt is in fact revealed by the F.I Statement very much. I find on a thorough examination of the entire evidence that an attempt to commit rape on the victim was in fact done by the appellant at her house and this must be what the daughter also witnessed actually. I find that the prosecution has proved a case of house trespass and rape attempt.
13. There is nothing to show that there was any flaw or irregularity or illegality in the investigation conducted by PW11. The evidence of the doctor, who examined the victim on the date of incident at the hospital, shows that the victim had an abrasion over the lower lip and she had also complaints of pain. Regarding the cause of the injuries, her statement before the Doctor, recorded in the Ext.P3 wound certificate is outrageous assault. The victim has stated that the appellant had bitten on her lips in his attempt to ravish her.
Crl.A No.226 of 2012 17
14. The sentence imposed by the court below is rigorous imprisonment for one year under Section 451 I.P.C and rigorous imprisonment for eight years under Section 376 I.P.C. When the conviction is being altered to one under Section 376 read with 511 I.P.C, the sentence must be modified accordingly. I feel that rigorous imprisonment for three years will be the adequate sentence under Section 376 I.P.C read with Section 511 I.P.C in this case, on a consideration of all the relevant aspects including the circumstance of the offence, the age of the accused, and also the age of the victim and the humiliation caused to the family due to which the victim lost her husband.
In the result, this appeal is allowed in part. The appellant is found guilty of having committed an offence punishable under Section 376 I.P.C read with 511 I.P.C and the conviction entered by the court below is accordingly altered and modified. He is not found guilty of the offence under Section 376 I.P.C. Accordingly, the jail sentence imposed by the court below will stand modified and reduced to rigorous imprisonment for three years under Section 376 read with 511 I.P.C. The conviction and sentence under Crl.A No.226 of 2012 18 Section 376 I.P.C will stand set aside. The conviction and also the sentence under Section 451 I.P.C is confirmed. So also the fine sentence of 10,000/- imposed by the court below with default sentence thereon is maintained, subject to the modification that it shall be under Section 376 read with 511 I.P.C.
SD/-
P.UBAID JUDGE ma /True copy/ P.S to Judge