Kerala High Court
Lalu vs State Of Kerala on 21 October, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935
CRL.A.No. 354 of 2012 (D)
--------------------------
AGAINST THE ORDER/JUDGMENT IN SC.176/2011 of IV ADDITIONAL SESSIONS COURT,
THODUPUZHA
APPELLANT(S)/ACCUSED:
----------------------------------------
1. LALU,
S/O.JACOB, ALAYKAPARAMBIL HOUSE, ANJILIPPALAM BHAGOM,
THOVARAYAR KARA, KATTAPPANA VILLAGE.
2. DEEPU,
S/O.GOPINATHA, UNAKKAPARAYIL HOUSE, 20 ACRE BHAGOM,
NARIYAMPARA KARA, KATTAPPANA VILLAGE.
BY ADV. SRI.S.DILEEP (KALLAR)
RESPONDENT(S)/COMPLAINANT:
----------------------------------------------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682 031.
BY SRI.ROY THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
CRL.A.No. 354 of 2012 (D)
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-1: COPY OF THE OUT- PATIENT TICKET DATED 21/10/2011 IN
RESPECT OF THE PETITIONER'S WIFE, ISSUED FROM THE
PSYCHIATRIC DEPARTMENT, MEDICAL COLLEGE, KOTTAYAM.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
AS
P.BHAVADASAN, J.
---------------------------------------
Crl. Appeal No.354 OF 2012
---------------------------------------
Dated this the 9th day of April, 2013.
J U D G M E N T
Two persons were prosecuted for the offences punishable under Sections 376(g), 450, 323 read with Section 34 of the Indian Penal Code. They were convicted on all counts and were sentenced to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- each with default clause of one year rigorous imprisonment for the offence under Section 376(g) IPC. They were also sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- each with default clause of six months rigorous imprisonment for the offence under Section 450 IPC. They were further sentenced to undergo rigorous imprisonment for a period of three months for the offence punishable Crl. Appeal No.354/2012 2 under Section 323 IPC. The substantive sentences were directed to run concurrently. Set off as per law was allowed.
2. PW1 is the unfortunate victim in this case. PW4 is her husband and PW3 is her father. At the relevant time, PWs 1 and 4, the couple, were residing in a rented house. PW4, husband of the victim, is an autorickshaw driver by profession. On 25.08.2009, the incident is alleged to have occurred. On the date of the incident, as usual, PW4 left the house for work at about 8 a.m and returned at 4 p.m. They had food together. At about 5 p.m, PW4 again went for work. PW1 claims to have gone to the bathroom after closing the front door of the house and then opened the door of the kitchen and went out to take water. After collecting water, she was about to engage herself in washing of utensils. Hearing a noise, when she turned back, she saw two persons coming through the hall of the house to the Crl. Appeal No.354/2012 3 kitchen. Though she let out a cry calling for help from the neighbourhood, there was no response. The taller among the two slapped her and she was about to fall by the assault. They closed her mouth and caught hold of her hair and picked her up and laid her on a cot in the hall of the house.
3. Further allegation is that the accused removed the clothes of the victim and the shorter one among the two sat on her abdomen and after removing his clothes, ravished her. The said act was followed by the taller one also. They left through the kitchen door. PW1 managed to get up from the cot wearing the same clothes which she had worn before the incident and then she managed to reach the house of PW2 which was about 200 meters away from the house of the victim. She conveyed what had transpired to PW2. With the aid of PW2, PW1 managed to pass on the information to her parents and PW3 and the mother of the Crl. Appeal No.354/2012 4 victim came down and collected PW1 from the house of PW2. Later in the night at about 10 p.m, PW4 reached the house. The sad news was conveyed to him. Unable to decide what is to be done, he left the house and returned late in the night. On the next day, PW1 was taken to the St.Johns Hospital, Kattappana where PW11 attended to her and prepared Ext.P7 wound certificate. As there was no Gynecologist in the said hospital, she was taken to Taluk Headquarters Hospital at Nedumkandom where PW13 examined her and prepared Ext.P9 wound certificate.
4. Before going to the hospital at Nedumkandom, PW16, on receiving information, went to St.Johns Hospital, Kattappana and recorded Ext.P1 First Information Statement furnished by PW1. Based on Ext.P1, PW17 Sub Inspector of Police registered crime as per Ext.P13 First Information Report. Investigation was taken over by PW19. PW19 prepared Ext.P4 scene mahazar and seized M.O.5. He also Crl. Appeal No.354/2012 5 seized the clothes said to have been worn by the victim at the relevant time namely, M.O.s 1 to 4 as per Ext.P15 mahazar. He recorded the statement of witnesses and obtained the site plan also. On arrest of the accused, he had them subjected to potency test and also seized their clothes as per Exts.P5 and P6 mahazars. He completed the investigation and laid charge before the court after having obtained the Forensic Science Laboratory Certificate namely, Exts.P23 and P24.
5. The court before which final report was laid took cognizance of the offences. On finding that the offences are exclusively triable by a Court of Sessions, the Judicial First Class Magistrate Court, Kattappana committed the case to Sessions Court, Thodupuzha under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court (Adhoc), Thodupuzha for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, Crl. Appeal No.354/2012 6 framed charges for the offences punishable under Sections 376(g), 450, 323 read with Section 34 of the Indian Penal Code. To the charge, the accused pleaded not guilty and claimed to be tried. Therefore, the prosecution had PWs 1 to 19 examined and Exts.P1 to P24 marked. They had M.O.s 1 to 10 identified and marked.
6. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. The 1st accused stated that he had seen PW1 for the first time in the Police Station and he had nothing to do with the incident and on the date of the incident, they had gone for work in a nearby place where the rented house of PW1 is situated. They came back from Vallakkadavu at 5.30 p.m in an autorickshaw and reached the place called 20 Acres at 5.45 p.m. They kept the implements in the house Crl. Appeal No.354/2012 7 of a person by name Menon. They changed their dresses, collected their wages and returned from the place called 20 Acres. He would say that the 2nd accused went to his house. He then goes on to say that he, Krishnankutty and one Kochu Joy had drinks thereafter. Later he went to his house. As usual, on the next day, he had gone for work and when he was engaged in work in the property of one Kochumon, by about 10.30 a.m, one Soman called him over phone and he was taken to the Police Station. A few minutes thereafter, two or three ladies reached the Police Station. He would say that the accused were asked to sit in front of them and they were paraded before the ladies. Later, the accused were taken into custody by the Police. The 2nd accused adopted the same stand as that of the 1st accused. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They examined DWs 1 to 6 and had Exts.D1 and Crl. Appeal No.354/2012 8 D2 marked.
7. On an appreciation of the evidence in the case, the trial court came to the conclusion that the evidence of PWs 1 to 4 to be convincing enough and that there was no reason to believe that the accused had been falsely implicated by the complainant. Therefore, it was held that the offences have been made out and accordingly, the conviction and sentence followed. The said conviction and sentence are assailed in this appeal.
8. Learned counsel appearing for the 2nd appellant contended that the court below has not appreciated the evidence in the proper perspective and has been carried away by the fact that the prosecutrix has given a version about the incident which needs to be believed even though other items of evidence did not support her case. Learned counsel did not dispute the principle that if, as a matter of fact, the evidence of the prosecutrix is found to be Crl. Appeal No.354/2012 9 convincing, cogent and creditworthy, it is unnecessary to look for corroboration and conviction can be made on the unimpeached evidence of the prosecutrix. However, learned counsel pointed out that if the evidence of the prosecutrix is open to doubt or her evidence becomes suspect, then the court has to necessarily seek corroboration and if there is no corroboration, it would be imprudent on the part of the court to pass a conviction.
9. In the case on hand, learned counsel pointed out that even going by the allegations and the evidence furnished by PW1, she was forced to lie on a cot and one of assailants caught hold of her hand while the other committed the act. When the taller person caught hold of her hand, it is pointed out that sufficient force would have been used to pin her down and if that be true, obviously, there would have been external injuries on that part of the body of the victim. It is also pointed out that the victim has Crl. Appeal No.354/2012 10 a case that when she was struggling to escape, there was an attempt by the accused to smother her. These acts certainly would have caused external injuries and if that be so, according to the learned counsel, it would have been noticed by the doctors who examined the victim. Both the doctors, PWs 11 and 13, make mention of the fact that no external injuries were seen on the body of the victim.
10. Learned counsel appearing for the appellants assailed the seizure of M.O.s 1 to 4. Referring to the evidence of PW1, it was pointed out that, going by her evidence, after the incident she wore the same clothes which she had worn before the incident and had gone to the house of PW2 from where she telephoned her father and when her father arrived, he took her to his house from where she had gone to the hospital. It was pointed out that, on the very next day, a crime was registered and there is nothing to show that she had gone back to the rented Crl. Appeal No.354/2012 11 house.
11. In fact, referring to Ext.P1 First Information Statement, it is pointed out by the learned counsel for the appellants that the prosecutrix would say that she had kept her clothes in her paternal house. Referring to Exts.P4 and P15, it was contended that M.O.s 1 to 4 were seized as per Ext.P15 mahazar from the rented house of PW1 and not from her paternal house. The fact that the clothes alleged to have been worn by the victim were seized from the rented house belies the prosecution case and makes the evidence of PW1 extremely vulnerable. It is further pointed out that the evidence of PW1 is to the effect that there was mud and dirt on the clothes of the assailants and wearing the same clothes, they had committed the acts on the victim. Neither on the dress worn by the victim nor on the sheet of the cot on which the accused is alleged to have committed the act contains any mud particles. This would Crl. Appeal No.354/2012 12 make the version given by the prosecutrix suspicious.
12. Relying on the medical evidence namely, Exts.P7 and P9 certificates issued by PWs 11 and 13, it was pointed out by the learned counsel for the appellants that the said documents would show that there is no evidence of sexual assault as claimed by PW1. When the evidence of the prosecutrix is belied by the medical evidence, it will not be prudent on the part of the court to pass a conviction stating that her evidence is above board.
13. For the above proposition, the learned counsel relied on the decisions in Dilip and another vs. State of M.P. (AIR 2001 Supreme Court 3049) and in Sadashiv Ramrao Hadbe vs. State of Maharashtra and another ((2007) 1 Supreme Court Cases (Cri) 161). It was then pointed out that M.O.5, which is a woolen cloth seized by the investigating officer, alleged to have been used by the accused persons to wipe off the semen and sent for Crl. Appeal No.354/2012 13 chemical examination, the result was negative. This also belies the version given by the prosecutrix.
14. Referring to the evidence of PWs 5 and 10, it was contended by the learned counsel for the appellants that the 2nd appellant had not received the wages as alleged and his wages were entrusted to the shop of PW10 by PW5 from where later on the day, the 2nd accused had collected the same. This improbabilise the presence of the 2nd accused at the place at the relevant time.
15. Based on the entry in Ext.P9 certificate drawn up by PW13, it was pointed out by the learned counsel for the appellants that the tear of hymen of PW1 noticed by the doctor is an old tear and the opinion given by the doctor is that there is evidence of past penetration. The prosecution did not attempt to bring out at the time of evidence from this witness that there was any evidence of recent penetration or attempted penetration. Learned counsel Crl. Appeal No.354/2012 14 pointed out that one should remember that the incident had occurred on the previous day to the date of examination. Thus that item of evidence also goes against the prosecution.
16. Learned counsel for the appellants pointed out that it is not for the accused to give a reason as to why they have been named or identified as assailants even if they had no role to play. The prosecution is not relieved of the burden to prove the offence alleged against the accused. The mere fact that the victim had identified or named two persons as assailants does not reduce the burden of the prosecution. For the said proposition, learned counsel relied on the decision of the Karnataka High Court in Criminal Appeal Nos.2902/2011 and 2913/2011. These vital aspects have been omitted to be noticed by the court below and they have a material bearing on the issue involved in the case. If these items of evidence were properly appreciated, Crl. Appeal No.354/2012 15 then it could be found, according to the appellant, that the evidence of PW1 is extremely vulnerable and it will be hazardous to enter a conviction on the basis of her evidence alone. At any rate, the learned counsel went on to point out that a reasonable doubt is created in the mind of the court and if that be so, the said benefit should certainly go to the accused. Accordingly, it is pointed out that the conviction and sentence cannot stand.
17. Learned Public Prosecutor, on the other hand, pointed out that there is absolutely no merit in any of the contentions raised by the appellants. Soon after the incident, PW1 had gone to the house of PW2 and had conveyed the information to her. It is significant to notice, according to the learned Public Prosecutor, that the two assailants were total strangers to her and she had described them as taller one and shorter one. PW2, on getting information about the incident from PW1, immediately Crl. Appeal No.354/2012 16 telephoned PW3, the father of the victim and when he came to the house of PW2, PW1 narrated the agonising experience she had undergone to him also. PW3 took her with him and tried to pacify her. In the night, PW4 her husband arrived and as he did not find his wife in the rented house, he got in touch with PW3 who asked him to come over to his house. When he went over to the house of PW3, the information was passed over to him also. PW3, on the very next day, had taken the victim to the hospital and PWs 11 and 13 examined her on the very next day and furnished Exts.P7 and P9 certificates. She had given the history as sexual assault by two identifiable persons. There is thus consistent version by PW1 throughout.
18. Learned Public Prosecutor pointed out that there may be some exaggerations, embellishments and developments in the evidence of PW1 while examining in court. But that is bound to occur in the case of this nature. Crl. Appeal No.354/2012 17 It may not be proper for the court to insist for mathematical precision in the evidence of witnesses. PW1 had given a graphic description of what had transpired and her immediate conveyance of information to PW2. There is no reason as to why PW1 should falsely implicate the accused.
19. True, there is some disparity with regard to the medical evidence. When the evidence of PW1 is found to be trustworthy and passes scrutiny, the mere fact that the medical evidence may not support the prosecution case does not mean that the accused will have to be acquitted. Apart from the said fact, learned Public Prosecutor pointed out that the medical evidence cannot be said to be totally against the prosecution though it may not be fully in favour of them.
20. According to the learned Public Prosecutor, there is no justification or reason to disbelieve PW1 with regard to the incident and the agonising movements shared by PWs 2, Crl. Appeal No.354/2012 18 3 and 4. It is also pointed out that the First Information Statement was laid on the very next day itself and that guarantees to a certain extent the veracity of the claim made by PW1.
21. Learned Public Prosecutor pointed out that it is true that mud particles were not seen either on the clothes of the victim or on the sheet of the cot. It may also be true that no external injuries were noticed by the doctor when they examined PW1. But, referring to the evidence of PW13, it was pointed out by the learned Public Prosecutor that it is not necessary that in all cases where resistance is offered, external injuries should occur. It depends on the circumstances of each case. In the case on hand, learned Public Prosecutor pointed out that PW1 was helpless and she had no case that at any point of time any external injuries were inflicted on her.
22. Regarding the seizure of the clothes, learned Public Crl. Appeal No.354/2012 19 Prosecutor pointed out that PW1, in her chief examination, categorically deposed that M.Os 1 to 4 were kept in the rented house from where she handed over the same to the Police when she had taken to the place of occurrence. This statement of PW1 is not seen challenged in the cross examination. There is no justification or reason to disbelieve PW1 and if her evidence is found to be creditworthy and acceptable, certainly a conviction can be passed on that basis.
23. Even though learned Public Prosecutor admitted that the defence may not be bound to explain as to why they were implicated, when it is pointed by the prosecutrix that it was them who had committed sexual assault on her, they should offer a reasonable explanation. In support of the contention that, if the evidence of the prosecutrix is found to be sufficient, cogent, convincing and of a sterling character, conviction can be passed on the basis of the Crl. Appeal No.354/2012 20 same, even though the medical evidence is absent or against the prosecution, learned Public Prosecutor relies on the decision in State of Madhya Pradesh vs. Dayal Sahu (2005 (4) KLT 426(SC)). Learned Public Prosecutor, pointing out the sequence of evidence, contended that the court below who had occasion to watch the demeanour of the witnesses had chosen to accept the evidence of PWs 1, 2, 3 and 4 and has come to the conclusion that the offence is made out. No grounds are made out to interfere with the conviction and the sentence passed by the court below.
24. The parameters of appreciation of evidence in the case of sexual assault are well settled. It is trite by now that if the evidence of the prosecutrix is found to be cogent, convincing, creditworthy and of a high standard which inspires confidence in the mind of the court, conviction can be based on the same. It is also well settled that in the case of rape, evidence of the victim is much significance. Crl. Appeal No.354/2012 21 The victim cannot be treated as an accomplice to the crime. The victim has the status of an injured witness and therefore, her evidence is to be given high credit unless it is shown that it is extremely vulnerable. However, if the evidence of the prosecutrix is found to be open to doubt, then the court will have to look for corroboration. Corroboration is not a rule of law. It has already been held that when oral evidence is against the medical evidence, oral evidence should also be given importance.
25. Bearing the above principles in mind, an attempt shall now be made to analyse the evidence in the case to find out whether the court below has erred in convicting the accused.
26. As is usual case, the evidence regarding the actual incident remains confined to the testimony of PW1. Necessarily, reference to her evidence becomes absolutely essential. PW1 would say that, on the date of the incident, Crl. Appeal No.354/2012 22 her husband as usual had gone for work at 8 a.m. She, at the relevant time, was having a job in the O.P Wing at the St. Johns Hospital. Going by the evidence of PW1, she had been suffering from fever and had recovered only two days ago and she had returned to her rented house two days after discharge from the hospital. On the date of the incident, i.e. on 25.08.2009, she would say that while she was washing the utensils, she happened to hear a sound from behind and when she turned back, she saw two persons coming to the kitchen where she was standing. PW1 says that hearing the noise, she called for help from the neighbourhood but none came. According to her, though she tried to escape through the kitchen door, the taller among the two slapped her. She identified that person in court.
27. She would then say that, soon thereafter the other person who is shorter among the two caught hold of her hair Crl. Appeal No.354/2012 23 and picked her up. She was then carried to the cot on the hall. She would say that she cried aloud calling for the help of the teacher who is her neighbour. She would then say that the taller one caught her hands and the shorter among the two accused sat on her belly. Her clothes were removed and thereafter she was ravished by the assailants one after another. At the time of evidence, she does say that the accused had repeated the acts twice. She would then say that after the assailants left the place, she managed to get up from the cot and she wore the same clothes which she had worn before the incident and then slowly walked to the house of PW2. She managed to reach the house of PW2 and conveyed the incident to her. With the aid of PW2, PW1 would say that she was about to pass on the information to her father who arrived at the house of PW2 and took her to her parental home. It needs to be noticed that she gives a graphic description of what had transpired in the rented Crl. Appeal No.354/2012 24 house in which she was brutally ravished. She would also say that while struggling to escape, there was attempt by the accused to smother her. She then says about the arrival of her husband namely, PW4 who left the house after hearing about the incident. She would say in the chief examination that her mother asked her to wash her body neatly and she did so. On the next day, at 11'O clock in the morning, her parents took her to the St.Johns Hospital where she was examined by PW11. She would say that she had given the history of the incident to the doctor. Soon after she had reached the St.Johns Hospital and had narrated the history of the incident to the doctor, she says that the Police arrived and she furnished Ext.P1 First Information Statement. She, apart from saying that the Police had taken her to the place of occurrence i.e. the rented house where PWs 1 and 4 were residing at the relevant time, she also says that the clothes which she had Crl. Appeal No.354/2012 25 worn at the time of incident were handed over to the Police from the rented house. She then says about the identification made by her in the Police Station of the two accused persons.
28. PW2 is the person to whom the information was conveyed by PW1 and who informed her parents. Her evidence is to the effect that the victim resides nearby and on 25.08.2009 by about 6.30 p.m, the victim had come over to her house and told her about the unfortunate incident. She would then go on to say that she immediately called the parents of the victim to come over to her house and they were told about the details and PW1 was taken to their house.
29. PW3 is the father of the victim. He would say that, on the date of the incident, he received a telephone call from PW2 asking him to go over to her house. They immediately reached the house of PW2. They found their Crl. Appeal No.354/2012 26 daughter crying and when they asked for the reason, she conveyed the unfortunate incident to them. PW3 would say that PW1 had told him that she was not familiar with the assailants but she could identify them. PW3 would also say about the predicament in which he was placed and the confusion he had at that point of time. In the night, when PW4 had reached the rented house and did not find PW1 there, he had contacted the parents of PW1 and then he was asked to come over to their house. PW4 came to the house of PW3 who passed on the information to him.
30. PW4 is the husband of PW1. He says about having gone to the rented house in the night after work and finding his wife was not there, got in touch with PW3 who asked him to come over to his house and when he went to the house he was told about the incident. PW4 would also say that he was so upset and he did not know what to do and he left the house and returned late in the night. Crl. Appeal No.354/2012 27
31. PW5 is the person under whom the accused are said to have been working on the date of the incident. He would say that as on the date of the incident the accused were engaged by him. But he would say that at about 5.30 p.m, they had gone to the place called 20 Acres. He would also say that the 2nd accused did not receive his wages and the wages of the 2nd accused was entrusted to PW10 who was running a tea shop. PW10 would say that the 2nd accused came and collected the wages at about 6.30 p.m.
32. The evidence of PWs 1 to 4 would indicate that, soon after the incident, PW1 had approached PW2 and thereafter PW3. The time lag between the information being passed on to these persons is very short and it is difficult to believe that PW1 could have developed a story in the meanwhile. It needs to be noticed that the information regarding the incident was passed on to PW2 almost immediately after the occurrence of the incident and that Crl. Appeal No.354/2012 28 the evidence of PW2 may fall within the category of res gestae.
33. Coming to the main attack based on the medical evidence, it is true that the would certificates issued namely, Exts.P7 and P9 and the evidence of PWs 11 and 13 show that no external injuries were noticed by the doctor who examined the victim. The evidence of PW13 is to the effect that tear of the hymen which he noticed was old tear and his opinion was that there is evidence of past penetration. This is highlighted by the learned counsel for the appellants to show that the evidence of PW1 is belied by the medical evidence and there is nothing to show in the medical evidence that there has been sexual assault.
34. True, it seems that the prosecution did not specifically ask the doctor namely, PW13 whether there is possibility of recent sexual intercourse. But, the evidence of PW13 and the narration in Ext.P9 that there is evidence of Crl. Appeal No.354/2012 29 past penetration does not rule out the possibility of sexual assault. No attempt was made by either side to explain what the doctor meant by past penetration. It is true that in the decision relied on by the learned counsel for the appellants namely, Dilip and another vs. State of M.P. (AIR 2001 Supreme Court 3049) and in Sadashiv Ramrao Hadbe vs. State of Maharashtra and another ((2007) 1 Supreme Court Cases (Cri) 161), it was held that even though the evidence of the prosecutrix is to be given considerable weight, when it is belied by the medical evidence, the evidence of the victim becomes suspect and benefit of doubt should be given to the accused.
35. There is no statement by PW13 about the rape as such. But there was no attempt from either side to find out that there was any possibility of recent sexual assault. In this regard, one has to necessarily take note of Ext.P24. Ext.P24 is the Forensic Science Laboratory Report regarding Crl. Appeal No.354/2012 30 the examination of materials sent by the investigating officer for chemical examination. As many as 12 articles were sent for examination including the woolen cloth which PW1 claims was used by the accused to wipe off the semen were sent for examination including the woolen cloth which but except for the undergarment of the victim, in none of the other articles semen or spermatozoa was detected.
36. Two contentions are raised with regard to the presence of semen in item No.5, which is the undergarment of PW1. One is that even assuming that there is semen and spermatozoa found on the undergarment of the victim, it need not necessarily be that of the accused and second one is that the seizure of item No.5 is not properly proved.
37. Both the contentions have no merit. The evidence shows that PW1 has stated that she did not have sexual intercourse with her husband after she returned from the hospital where she was treated for seven days and Crl. Appeal No.354/2012 31 therefore, the presence of semen in the undergarment cannot be easily taken as one possible because of the intercourse between PWs 1 and 4.
38. As regards the seizure of the undergarment is concerned, it has already been noticed that the statement given by PW1 at the time of evidence that she had handed over the undergarment from the rented house is not seen challenged in the cross examination. Therefore, in that regard, her evidence in the chief examination regarding the handing over of the undergarment remains unimpeached. When viewed in the light of other items of evidence, there is certainly corroboration for the evidence of PW1. It is true that the defence had adduced evidence to show that the accused persons were not at the relevant place at the relevant time. But the court below, for several reasons, does not accept that evidence.
39. It is significant to notice that almost all the Crl. Appeal No.354/2012 32 witnesses examined were co-workers of accused and it is only natural that they would speak in favour of the accused. It is also true that the defence had produced Exts.D1 and D2, two documents which would show that there was mass agitation for a proper enquiry and investigation into the case but that can have little impact on the evidence adduced in the case.
40. PW1 has stated that M.O.5 woolen cloth seized from the scene of occurrence was used by the accused to wipe their organ. It is also true that the chemical analysis report did not reveal any semen or spermatozoa on the woolen cloth. Merely because the chemical analysis report shows absence of semen or spermatozoa on M.O.5, that cannot be taken as a ground to test the veracity of the evidence of PW1. It could thus be seen that even though the evidence of PW1 do not get absolute corroboration from the medical evidence, there is no reason to suspect the Crl. Appeal No.354/2012 33 evidence of PW1. At any rate, there is nothing to show as to why she should concoct a story to implicate the accused.
41. There has been some embellishments and developments at the time of evidence when compared to the statement in Ext.P1. But those are minor and insignificant and do not affect the evidence furnished by PW1 in court. Essentially, the embellishments relate to the number of times she was assaulted by each of the accused. But that is not relevant in the case. The question is whether there was sexual assault or not. Whether there was sexual assault more than once or not is immaterial.
42. The evidence of PWs 5 and 10 regarding the wages paid does not help the defence at all. It is possible that he would have collected the wages and then could be present at the place of incident. At any rate, the evidence of PWs 5 and 10 is insufficient to suspect the version given by PW1. Thus it can be seen that the absence of external injuries or Crl. Appeal No.354/2012 34 absence of mentioning about recent penetration by PW13 and the contention based on the recovery of the materials do not help the appellants at all for the reasons already stated.
43. The court below, which had opportunity to watch the demeanor of the witnesses thought it fit and proper to rely on the evidence of PWs 1 to 3 and the history of the incident given to the doctor immediately after the incident and also the fact that First Information Statement was filed not with much delay, has chosen to accept the evidence of PW1.
44. One cannot omit to note that the narration of the incident by PW1 gets ample support from the evidence of PWs 2, 3, 11 and 13 and are consistent with the version given by PW1 both in court and in the First Information Statement. Under these circumstances, it is difficult to come to the conclusion that the evidence of PW1 is open to Crl. Appeal No.354/2012 35 doubt or is vulnerable. The court below was perfectly justified in accepting the evidence furnished by the prosecution and in coming to the conclusion that the offences have been made out.
In the result, no infirmities could be established regarding the findings of the court below that the offences have been made out nor can be said that the findings are perverse. The findings are based on appreciation of evidence. Even assuming that a different view is possible, this Court will not be justified in interfering with the findings of the court below when it is found that the findings of the court below are possible and probable. Therefore, the appeal is without merit and it is liable to be dismissed. I do so confirming the conviction and sentence.
P.BHAVADASAN JUDGE smp