Kerala High Court
Ashiq vs The Circle Inspector Of Police on 11 March, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934
CRL.A.No. 350 of 2004 (B)
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SC.56/2003 of ADDL. DISTRICT COURT, MANJERI
APPELLANT(S)/ACCUSED::
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ASHIQ, S/O. SAVANKUTTY,
KOOTTAIKKARANTA PURAKKAL VEEDU,
CHEERANKADAPPURAM, TANUR.
BY ADV. SRI.K.SHIBILI NAHA
RESPONDENT(S)/COMPLAINANT & STATE::
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1. THE CIRCLE INSPECTOR OF POLICE, TANUR
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 11-03-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
P.BHAVADASAN, J.
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Crl.A. No. 350 OF 2004
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Dated this the 11th day of March, 2013
J U D G M E N T
The accused, a neighbour of the victim was prosecuted for the offence punishable under Section 376 of IPC. He was found guilty. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 15,000/- in default of payment of which, he had to suffer rigorous imprisonment for further one year. Set off as per law was allowed.
2. PW1 is the victim in this case. She stays with CW2. She had been married once. But that did not last long. The incident is said to have taken place on 01.04.2001. On that day, she and CW2 alone were at home. CW2 was saying her prayers when the victim namely PW1 got out of the house for washing her hands for praying. When she got into the bathroom, it is alleged that the accused came there and caught hold of her and she was made to lay on the floor of Crl.A.No.350/2004 -2- the bathroom. When she tried to raise a cry, she was gagged with a towel. Her maxi was torn and thereafter she described what had transpired in the bathroom. After having committed the act, he said to have removed the towel from the mouth of the victim who raised an alarm then. That brought CW2 to the scene. Seeing her, the accused is alleged to have ran away from the place. PW1 conveyed what had transpired to CW2. CW2 is then said to have told PW1 that not to disclose the incident to anybody and she would ask the accused about the same on the next day. Next day, it is claimed that when asked, the accused promised to marry PW1 and therefore they did not lay a complaint. Later on, when the accused was found missing from the place, a complaint was laid on 06.05.2001. PW5 recorded Ext.P1, First Information Statement and registered crime as per Ext.P1(a), FIR. The investigation was conducted by the successor in office who recorded statements of witnesses, prepared scene mahazar, procured Crl.A.No.350/2004 -3- necessary documents, completed investigation and laid charge before the court.
3. The JFCM, Parappanangadi before whom the final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Manjeri. The said court made over the case to Additional Sessions Court (Fast Track-II), Manjeri for trial and disposal. The said court on receipt of records and on appearance of the accused, framed charges of the offence punishable under Section 376 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 7 and had Exts. P1 to P7. MO 1 was got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that the accused could not be acquitted under Crl.A.No.350/2004 -4- Section 232 of Cr.P.C., he was asked to enter on his defence. He adduced no evidence. Finding that the evidence of PW1 to be acceptable and credit worthy, the court below entered a finding that the offence has been made out against the accused and convicted and sentenced him as already mentioned. The said conviction and sentence are assailed in this appeal.
4. The learned counsel appearing for the appellant pointed out that the whole prosecution case hinges on the evidence of PW1 and if it is found that the evidence of PW1 is vulnerable, then the conviction cannot stand. The learned counsel also drew attention of this Court to the fact that going by the sequence of events, after the towel was removed from the mouth of the victim, she had cried aloud bringing CW2 to the spot immediately. Even according to the prosecution case, she had come with a torch and the victim had identified the accused in the light available to them. For the reasons best known to the prosecution, CW2 Crl.A.No.350/2004 -5- was not examined and that must prove fatal to the prosecution so says by the learned counsel for the appellant. In a case where there is independent evidence to corroborate the evidence furnished by CW2, it was incumbent on the part of the prosecution to examine the said witness and a non examination should result in drawing of an adverse interference against the prosecution. For the said proposition, the learned counsel relied on the decision reported in Josemon v. State of Kerala [1991 (2) KLT Short Notes 3].
5. The learned counsel pointed out that even going by the evidence of PW1, the accused is said to have left the place on the very next day itself. That means she knew that the accused will not be prepared to marry her and she hasd realized it on the very next day of the incident itself. If that be so, there was no justification in waiting till 06.05.2001 for laying the First Information Statement. No satisfactory explanation is offered for the undue delay in lodging the FIS Crl.A.No.350/2004 -6- on the said date and under such circumstances, it will be dangerous to rely on the evidence furnished by PW1. In support of the above contention, the reliance was placed on the decision reported in Deelip Singh Alias Dilip Kumar v. State of Bihar [AIR 2005 SC 203] and State of Rajasthan v. Kishanlal [AIR 2002 SCC 2250].
6. The learned counsel pointed out that he had no quarrel with the proportion that if the evidence of the prosecutrix is found to be clinching, cogent and convincing enough a conviction can be based on the same. But in the case on had, it is not so and the non examination of CW2 is deliberate and that should be taken note of while appreciating the evidence of PW1. Unfortunately, according to the learned counsel, the medical evidence in this case is not of much help at all and therefore one has to rely only on the evidence of PW1. According to the learned counsel, in the case on hand, the unexplained delay in lodging Ext.P1 would make the evidence of PW1 vulnerable and if that be Crl.A.No.350/2004 -7- so, the conviction and sentence cannot stand.
7. The learned Public Prosecutor on the other hand pointed out that PW1, the victim had no reason to falsely implicate the accused and there is nothing to show that she had spoken falsehood before the court. Her evidence appears to be natural and convincing enough. There is no reason to suspect her evidence. She has narrated the incident in tune with Ext.P1, the First Information Statement and that is sufficient corroboration of her evidence. The court below has chosen to rely on the evidence of PW1 and there is no reason for this Court to take a different view. In short, the learned Public Prosecutor pointed out that there are no grounds made out to interfere with the conviction and sentence passed by the court below.
8. As usual, the evidence regarding this case is confined to the testimony of PW1, the victim in this case. It is well settled by now that if the evidence of the prosecutrix is found to be convincing, cogent and credit worthy, it can Crl.A.No.350/2004 -8- be accepted to find the accused guilty. Even otherwise, corroboration is only a rule of prudence and not a rule of law. It will be quite improper to look for corroboration in a case of rape for the offence is done in secrecy and not in public or on invitation. However, the evidence of prosecutrix will have to be meticulously analyzed to ensure that it suffers from no serious infirmities and can be safely accepted to find the accused guilty.
9. Bearing the above principles in mind, an attempt shall now be made to analyze the evidence of PW1. PW1 does say that she was ravished by the accused. At the relevant time, she was staying with CW2. She says that the incident occurred at about 8.00 PM. She had gone to the bathroom to wash her hands and face. Then the accused is said to have pounced on her and ravished her. She does say that even though initially she tried to raise the cry, a towel was stuffed into her mouth and she was gagged. After the incident, she says that when the towel was removed, she Crl.A.No.350/2004 -9- raised an alarm which brought CW2 to the scene. She would then say that she conveyed the news to CW2 who advised PW1 to keep quite about the incident and that she will ask the accused about the same the next day. The next day, according to the prosecution case, CW2 asked the accused and he promised to marry PW1. PW1 would then say that when she realized that the accused had no intention to marry her and the accused had left the place, she had laid the complaint.
10. How far the above evidence of PW1 is acceptable is the question that arises in this case. Of course, one has to notice that CW2, strong witness of the prosecution who would have to a certain extent corroborated the version given by PW1 was not examined. This Court went through the records and found that when initially the summon was issued to CW2 and it was returned with endorsement that CW2 is not available. No further attempt was made by the prosecution or by the court to procure the presence of the Crl.A.No.350/2004 -10- witnesses. Being a strong witness of the prosecution case who could have spoken about the material aspects of the case, prosecution ought to have taken steps to procure the presence of the witness.
11. When one critically analyze the evidence of PW1, it can be seen that her evidence is open to doubt. In cross examination of PW1, she says that the accused left the place on the very next day itself. If that be true, she knew that the accused was not going to marry her. One must recall here that the incident had occurred on 01.04.2001 and the first information was lodged only on 06.05.2001. When she knew the next day that the accused had no intention to marry her, there is nothing prevented her from lodging a FIS soon thereafter. Of course, she gives an explanation that there was no male members in the house and that is why the delay occurred. The explanation seems to be unacceptable and especially in view of the decision reported in Deelip Singh Alias Dilip Kumar v. State of Bihar [AIR Crl.A.No.350/2004 -11- 2005 SC 203] and State of Rajasthan v. Kishanlal [AIR 2002 SCC 2250].
12. The above being the position, the contention raised by the learned counsel appearing for the appellant is that even if any incident has taken place, it seems to be with the consent of the prosecutrix and need not detain this Court. PW1 has given categoric evidence that she is tried to escape from the clutches of the accused. It has already been found that in the absence of some other items of evidence to substantiate the evidence of PW1, it will not be safe in this case to place reliance on the evidence of PW1 alone to find the accused guilty. As rightly pointed out by the learned counsel for the appellant that the medical evidence is not of much help in this case. It is well settled that in order to accept the evidence of PW1 as the solitary items of evidence, that evidence should be of a sterling character and should dispel any doubt in the mind of court and has to come to the conclusion that the accused has Crl.A.No.350/2004 -12- committed the offence. If that standard is applied, it is difficult to say that the evidence of PW1 can be accepted as perfect truth.
13. True, the court below found the evidence of PW1 to be cogent and convincing. But the above infirmities noticed have not been adverted to by the court below and the court below has mechanically come to the conclusion that there is no need to doubt the version given by PW1. The consequence of non examination of CW2 or absence of any attempt to procure her presence was also not considered. So also, even going by the evidence of PW1, she did raise a loud cry after the incident and if that be true, it should have attracted the attention of the neighbour who were residing close by as could be seen from Ext. P4, plan and Ext.P5, scene mahazar. There are number of houses close by. In fact, it is seen that CWs 3 to 9 were cited as witnesses and speak about the incident given by the prosecution but they were given up by the prosecution. Crl.A.No.350/2004 -13-
14. For the above reasons, this Court is unable to afford the finding of the court below that the evidence of PW1 is sufficient to warrant a conviction.
The appeal is allowed. The conviction and sentence passed by the court below are set aside and the accused stands acquitted of the offence punishable under Section 376 of IPC. The bail bond shall stand cancelled and he is set at liberty. The fine amount, if any deposited, shall be refunded to him.
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P.BHAVADASAN, JUDGE ds //True copy// P.A. To Judge