Kerala High Court
A.O. Thomas vs State on 1 January, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 692 of 2001()
1. A.O. THOMAS
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.N.SUKUMARAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :01/01/2009
O R D E R
V.K.MOHANAN, J. (C.R.)
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CRL.A. No.692 of 2001
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Dated, 1st January, 2009
JUDGMENT
The sole accused in S.C.No.58/99 on the file of the court of Assistant Sessions Judge, Ernakulam is the appellant herein. He challenges the order of his conviction and sentence under sections 306 and 376 of the Indian Penal code imposed by the trial court as per its judgment dated 28.7.2001 in the above case.
2. The prosecution case is that Sandhya, a girl aged 18 years, committed suicide on 29.10.1992 as a result of rape committed on her by the accused and on his instigation for committing suicide. The prosecution case can be summarised as follows:
3. Sandhya, 18 years old girl, who is the victim in this case, committed suicide by consuming a poisonous fruit namely, `Odallam'. She took the poisonous fruit on 28.10.92 and died on the next day. At the relevant time, Sandhya was preparing for S.S.L.C. examination and was attending classes in a tutorial college. She was the third among the four children of her parents. According to the prosecution case, she was suffering from the sickness of vomiting blood till two years of age but the same was cured by CRLA. 692/01 -:2:- treatment. It is the specific case of the prosecution that after about two years from the death of Sandhya, her father discovered a letter of Sandhya, while he was dismantling the makeshift wall of his house made up of palm leaves to replace it with a stone wall. The said letter contained several startling revelations. According to the said letter, Sandhya was raped by the accused two days before her death and it was the said incident at the hands of the accused instigated her to commit suicide.
4. In pursuance of the discovery of the so called suicide note of Sandhya, her father preferred a private complaint in the court of the Judicial First Class Magistrate -I, Alappuzha on 11.8.94 which was forwarded under section 156(3) Cr.P.C. to the Alapuzha South Police Station, but the same was returned to the Judicial Magistrate of the First Class - I, Alapuzha, as per Ext.P22 report stating that the occurrence was taken place within the territorial jurisdiction of Central Police Station, Ernakulam. Therefore, the Judicial First Class Magistrate-I, Alapuzha, again forwarded Ext.P2 complaint to the Central Police Station, Ernakulam where crime No.270/94 was registered as per Ext.P11 F.I.R. by PW13. In the above private complaint, altogether there were five accused including the appellant herein as the first accused and the offences raised in the CRLA. 692/01 -:3:- said private complaint were under sections 376, 323 and 309 read with Sec.109 of IPC. However, after investigation, final report dated 17.11.98, for the offences only under sections 376 and 306 of IPC, was filed by the Circle Inspector of Police, Central Police station, Ernakulam before the Judicial First Class Magistrate-II, Ernakulam wherein C.P.No.20/98 was instituted. By the order dated 23.2.99 in C.P.No.20/98, the learned Magistrate committed the case to the Sessions Court, Ernakulam and subsequently by order dated 16.3.99, the Sessions Court had made over the case to the Addl.Assistant Sessions Court, Ernakulam for trial and disposal, wherein S.C.No.58/99 was instituted.
5. On appearance of the accused, a formal charge under sections 376 and 306 of IPC was framed by the trial court after hearing the prosecution as well as the accused and the same was read over and explained to the accused to which he pleaded not guilty which resulted in the further trial during which PWs 1 to 20 were examined as prosecution witnesses and marked Exts.P1 to P28 as documentary evidence from the side of the prosecution. Except the marking of contradictions as Exts. D1 and D2, no evidence was adduced by the defence either oral or documentary. The accused took the defence of total denial. The incriminating CRLA. 692/01 -:4:- circumstances, which emerged out during prosecution evidence, when put to the accused under section 313 Cr.P.C., he denied the same. According to his further statement, he was conducting a furniture shop at the building owned by one Vishnu Narayanan Namboodiri, for the last 12 years, and the said Vishnu Narayanan Nasmboodiri himself and his elder daughter Suvarna Antharjanam started making attempts to vacate him from his business premises with the help of political leaders and police. According to the accused, he got an order of injunction from the civil court against the eviction and immediately after getting the injunction order, his furniture shop was broken open and the furniture worth Rs.7 lakhs was looted. Therefore he filed a suit for compensation. Thus According to the defence, the present case of rape and abetment to commit suicide was fabricated by the said persons to ensure their success in the cases mentioned above. According to the defence, he was forced to compromise the cases filed against them as he was in financial difficulty.
6. On the basis of the rival pleadings and contentions, the trial court considered three points for its decision, and finally found that the accused was guilty of the offences charged against him and thus he was convicted for the offences under sections 376 and 306 CRLA. 692/01 -:5:- IPC and accordingly, he was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1,50,000/- for the offence under section 376 IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of one and a half years. He was also sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.1,50,000/- for the offence under section 306 of IPC and in default of payment of fine he was sentenced to undergo rigorous imprisonment for a further period of 1 = years. Thus the accused has to undergo imprisonment for a total period of 14 years towards the substantial sentence alone. It is also ordered that if the fine amount is realised in full or in part, the entire amount shall be paid in equal share as compensation contemplated under section 357(1) Cr.P.C. to PWs 1 and 4. It is the above order of conviction and sentence challenged in this appeal.
7. I have heard Sri N.Sukumaran, the learned counsel appearing for the appellant as well as Smt. K.L.Lakshmi Rani, the learned Public Prosecutor.
8. As there is no direct evidence, the prosecution depends upon certain circumstances to prove its case. The oral testimony of certain witnesses and also Ext.P1 suicide note and other documents, CRLA. 692/01 -:6:- are the main evidences adduced to prove the circumstances. In order to understand and appreciate the case, especially, when there is there is no direct evidence, it is only apposite to state the main evidence relied on by the prosecution, which I shall deal with first. PW1, the father of the deceased stated that he was awakened by the deceased at 11 a.m. on 28.10.92 stating that she had taken poison and she had vomited also. Thus PW1 obtained the service of PW2 who was an autorickshaw driver and both of them took Sandhya to Alappuzha Medical college where she was admitted for treatment. As PW-1's wife Remani - PW4, was employed as a maid servant at Pulinkunnam, he went to call her and both of them reached in the hospital by 7 a.m., by that time Sandhya died. Sandhya was unmarried at the time of death and her body was cremated in the residential compound on the same day. PW1 further says that at that time, he had no idea as to why his daughter committed suicide. According to him, he realised the reason for committing suicide by his daughter after about two years when he discovered the suicide note written by her daughter. According to PW1, the suicide note written by Sandhya discovered from the makeshift wall of his house which was pulled down to replace it with a stone wall. According to him, the suicide note was found in a note CRLA. 692/01 -:7:- book tucked in between the palm leaves of the screen and it was addressed to PW.1's son Sunil Sarma @ Sari, the eldest son among the children of PW.1. According to PW1, Sandhya was studying for S.S.L.C. examination, and at that time his son Sari was away from home connected with his work and according to PW1, he could not read or write, and hence the contents of the suicide note got read out by his younger son Shyam. Ext.P1 is the said suicide note. According to PW1, the accused was known to him previously as PW1's wife was a maid servant in the house of the accused in 1990. According to PW1, in Ext.P1, Sandhya had written that she told everything to Aji and hence the said Aji was consulted and he admitted that Sandhya had told him about the incident. Thereafter PW1 met an Advocate who advised him to collect the name and address of the persons who threatened Sandhya and also the names of the other witnesses. Thus a formal complaint was filed by PW1 in the Judicial First Class Magistrate Court, Alappuzha which was initially forwarded to Alappuzha South Police Station and subsequently to Central Police Station, Ernakulam under section 156(3) Cr.P.C. for investigation . Ext.P2 is the complaint dated 12.7.94. Exts.P3 to P3(c) are 4 letters alleged to have been written by Sandhya. The first three letters are CRLA. 692/01 -:8:- addressed to one Dinesan and the fourth one to one Musthafa. The first letter is undated. The other letters are dated 27.8.90, 6.7.91, and 12.9.91. Thus the letters were seized as per Ext.P4 seizure mahazar by the C.I. of Police, Central police station, Ernakulam.
9. PW1 has stated that the deceased Sandhya had come to Ernakulam two or three days prior to her death without his permission. According to him, Sandhya left home as usual to attend the tuition class but she did not come back in the evening and she reached back home only on the next day around noon. When Sandhya was questioned about this issue, she started weeping. PW1 has stated that she explained to him that she had gone to Ernakulam to meet the accused who had promised to arrange necessary papers for her to go abroad seeking employment and she could not return on the same day as she missed the train and she was not having money to catch the bus and thus she had to stay during the night at the business premises of the accused. It is also stated that she had visited the house of one Karthikeyan on the date when she left the house to meet the accused. Karthikeyan is the friend of Sari. During cross examination, PW1 conceded that he could not say whether the date and place in Ext.P1 and the rest of CRLA. 692/01 -:9:- this had been written in different hand writing. He had also stated that Sandhya was suffering from vomiting blood but the same was cured. He denied the suggestion of the defence that Sandhya had once attempted to commit suicide by cutting the vein of her hand. PW1 denied the suggestion that Sandya committed suicide because she was in dejection due to her incurable disease of vomiting blood. PW1 has also denied the suggestion that the case was foisted against the accused because the accused was not acceded to the demand for money. PW1 was recalled by the prosecution to prove the fact that he was present when the Police conducted inquest on the dead body of Sandhya on 29.10.92. He had denied having stated to the Police at the time of inquest that Sandhya once attempted to commit suicide by cutting her veins.
10. PW2 is another star witness cited by by the prosecution who is the neighbour of PW1. According to him, he came to the house of PW1 and he was told that Sadhya was vomiting as she had taken poison and based upon the request of PW1, he took PW1 and Sandhya in an autorikshaw belonging to his friend to the Medical College Hospital, Alleppey. According to him, when he left the hospital, Sandhya was alive and he came to know about her death on the following evening . According to PW2, he had met Sandhya CRLA. 692/01 -:10:- two days prior to the death and at that time he was told that she was going to Ernakulam on the next day to meet the accused who had been admitted in the Medical Trust Hospital, Ernkualm. According to PW2, when he asked about 'sir', she explained that it was the accused who promised her to send to the Middle East. It is also the case of PW2 that Sandhya told him that the accused sustained injury on his head by falling in the toilet. Thus According to PW2 he offered to accompany Sandhya to Ernakulam and on the next day morning PW2 and Sandhya came to Ernakulam and they together went to the Medical Trust Hospital. The accused was there in the hospital as an inpatient and he was being attended by his wife, Pushpachechi. Thereafter both PW2 and Sandhya came back to the South railway station. It is the further case of PW2 that at that time a man aged 40 came to the ticket counter at the railway station and called Sandhya and Sandhya introduced him as Alex to PW2 and thereafter all of them came out of the railway station and an adolescent youth named Suni was found waiting there. Alex went ahead on his scooter and Sandhya, PW2 and Suni followed in an autorickshaw to Thevara side. Sandhya and PW2 were taken by Suni to a house.
11. According to PW2, in that house, there were some more CRLA. 692/01 -:11:- persons including the wife of the accused and another person , who was addressed by others as 'Nair' and Alex called Sandhya inside the room and PW2 could hear them talking but she could not make out the words. It is also the case of PW2 that he heard Sandhya weeping and saying something. PW2 further said that after 10 to 20 minutes, Alex, Nair and Sandhya came out to the Verandha and Alex and Nair told Sandhya in an angry tone that she would not be let free and that she would be made over to the Police. According to PW2, Sandhya wept on without saying anything. Thereafter both of them were allowed to go. It is the further case of PW2 that when he asked Sandhya about the issue, she told him that the accused had to be hospitalised as she had beaten him. It is also the case of PW2 that she added that she did not tell it to him earlier since she did not want her family to know it. PW2 further deposed that he asked her why the accused was beaten, and she answered that she beat him when he tried to destroy her. Thus, According to PW2, Sandhya gave full details of the incident. She told him about the incident happened on the previous day in the early morning at the office of the accused. She was forced to stay in the office of the accused since she missed the train and she was not having sufficient money as bus fare. She had further stated that besides the above shortage of CRLA. 692/01 -:12:- money, there was a road block due to some rally and hence she telephoned to the accused and then the accused asked her to come and accordingly she went to the office of the accused in an autorikshaw. She slept in the night in a room there and according to PW2, from the words of Sandhya he could gather that she was subjected to rape by the accused. PW2 further says that she told him that the accused was beaten with wooden reaper while he was asleep and that she herself took the accused subsequently to hospital in an autorickshaw since there was profused bleeding from his head injuries. PW2 has also stated that when he asked her why he came to see the accused, she had answered that she wanted to know as to what happened to the accused. According to PW2, she had informed the hospital authorities that the accused sustained injury when he slipped and fell in the toilet. Thereafter PW2 send Sandhya to her house. PW2 has also stated that PW1 on discovery of Ext.P1 letter, contacted PW2 and he admitted everything to PW1. PW2 also identified Ext.P1 letter shown to him by PW1. According to PW2, when Sandhya died, it struck him that the accused was responsible for her death. But he did not disclose the same to anybody mainly because he had promised Sandhya that he would not reveal it to anybody and it is his further explanation that if it is CRLA. 692/01 -:13:- disclosed, it will affect the family of Sandhya. According to PW2, the handwriting contained in Ext.P1 is that of Sandhya.
12. PW3 is the son-in-law of the owner of the building where the accused was running his furniture shop. According to this witness, he knew the accused from 1980 onwards connected with the furniture business in the shop which housed in their building. He had also stated that he got information that the accused had been admitted in the hospital and he went there and met the accused in 'C' Ward of the Medical Trust hospital. According to PW3, as per his information, the accused had been beaten by somebody on the previous night. The head of the accused was covered with bandage. As he denied the rest of the prosecution case, he was declared as hostile and cross examined. Thus accordingly, he was confronted with the case diary statement wherein he had stated that he saw a young girl going to the office of the accused on the evening of 24th and that he heard a hue and cry from the office on the next day morning.
13. PW.4 is the mother of the deceased Sandhya and she had deposed in terms of the deposition of PW1. She had stated that some day in the year 1992, PW1 came to the house of Vakkachan and told her that Sandhya had been admitted to Alapuzha Medical College and accompanying PW1, she reached in the hospital and CRLA. 692/01 -:14:- before their arrival, Sandhya had died. PW4 had deposed that Ext.P1 and P3 series letters were in the handwriting of her daughter Sandhya. According to her, she studied up to VIIth standard and she was employed as a baby-sitter in Abudabi for two and a half years and during that period Sandhya used to write letters to her. She had also stated that she knew Dinesan and Mustafa to whom Exts.P3 series letters were addressed. PW4 further deposed that she knew the accused . Formerly she was employed as a maid servant in the neighbourhood of his house and subsequently in the house of the accused himself. She had also stated that it was the accused who arranged employment for her daughter Sheeba in Ernakulam. PW4 further deposed that the deceased Sandhya used to visit Sheeba in the house where she was working and both Sheeba as well as Sandhya addressed the accused as `Sar'. According to her, Sandhya had occasion to meet the accused during her train journey. PW4 further stated that Sandhya had the disease of vomiting blood, but it was completely cured about two years prior to the death of Sandhya. According to her, Sandhya was under the treatment of Dr.Thankam of Medical College Hospital, Alapuzha. During the cross examination, PW4 identified the handwriting of Sandhya which contained in Exts.P1 and P3 series of CRLA. 692/01 -:15:- letters. Ext.P15 was marked through PW4.
14. PW5 who was running a shop about 100 feets away from the business premises of the accused had stated that there was light till 8.30 p.m on 24.10.1992 in the business premises of the accused. He had also stated that on the next day, he came to know from a scooter mechanic that the accused sustained injuries on head and accordingly PW5 and the scooter mechanic went to the Medical Trust hospital and visited the accused who was under treatment as an inpatient there. According to PW5, at the time of their visit, there was a girl aged about 16 - 17 years near the accused. He had stated that the said girl introduced herself as Sandhya.
15. PW6 is one Karthikeyan who is a friend of Sari - son of PW1 and brother of the deceased. PW6 admitted his friendship with Sari. PW6 also deposed in terms of the prosecution case regarding the intimacy of his family with the family of deceased Sandhya and Sari. PW6 categorically deposed that the deceased Sandhya visited his house for the last time on 24.10.92 in the afternoon and she returned about 5.p.m. According to PW6 he came to know about the death of Sandhya only when he received a letter from the family of Sandhya inviting him to attend the last rites in connection with her death.
CRLA. 692/01 -:16:-
16. Prosecution cited and examined PW7 Sub Inspector of Police, Ernakulam Central Police Station, who was working there during the year 1992, to show that there was a traffic block on 24.10.1992. PW8 is Sheeba, sister of Sandhya who was also, at that time, working as a maid servant at Thevara. She had stated that the accused was introduced to her by her brother Sari during the train journey and she had acquaintance with the accused. She had also stated that Sandhya used to visit her at her working house. This witness has also stated that herself and Sandhya used to address the accused as `Sar'. It is also deposed that the accused had promised Sandhya that he would procure a visa for her for going abroad to take up employment. This was told to her by Sandhya herself. PW.8 further sated that about one month prior to the death of Sandhya, she came to the house of Philo where she was working from where herself and Sandhya together went to the office of the accused for taking Sandhya's photos for affixing in the passport application. It is further stated that PW8, Sandhya and the accused went together to a studio near Warriam road for taking photos of Sandhya. PW8 had also stated that when Ext.P1 letter was discovered, she was not in the house but she was at Paravur in the house of her uncle, from where she was called and showed the letter CRLA. 692/01 -:17:- and she read it and afterwards she contacted PW.2, Aji, and he was asked why he did not disclose the matter earlier and she was told by Aji that Sandhya asked him not to divulge the matter to anybody. PW8 also identified the handwriting contained in Ext.P1 letter and Ext.P3 series letters as that of Sandhya and she asserted the same. She had also stated that she knew Aji whose name mentioned in Ext.P1 and Dinesan and Mustafa mentioned in Ext.P3 series letters. She had further stated that Sandhya was in love with Dinesan and she came to know about the same when a letter sent by Dinesan to Sandhya fell into her hands by-chance. PW8 had also stated about Karthikeyan and the cordial relationship between their families. PW8 though admitted that Sandhya had the disease of vomiting blood, further stated that it was cured. Though PW8 was cross examined with respect to the handwriting of Sandhya seen in Exts.P1 and P3 series letters, she had asserted that the handwriting contained therein is that of Sandhya, the deceased.
17. PW9 is a Police Constable attached to the Central Police Station, Ernakulam, who attested Ext.P4 seizure mahazar prepared by the investigating officer for the seizure of Ext.P3 series letters and he was also the attester of Ext.P6 scene mahazar. According to him, he was present on the occasion and the scene of CRLA. 692/01 -:18:- occurrence was shown to the investigating officer by PW3 Madhavan Namboodiri. PW.10 is the son of the sister-in-law of PW3. He deposed that he had acquaintance with the accused. According to him on 24.10.1992, till midnight, there was light in the business premises of the accused. He had stated that he visited the accused in the hospital on 25.10.1992.
18. PW11 is Dr Sajan P. Augustine attached to the Medical Trust Hospital, Ernakulam during the relevant period. According to him at 5.30. a.m. on 25.10.1992, he had examined the accused. He had also stated that the accused was brought to the hospital by one Sandhya. Ext.P7 certificate was proved through him. He had deposed about four injuries sustained by the accused on his head and face. He had further deposed about the injuries and also deposed that the patient was discharged on 4.11.1992. According to him, all the injuries noted could be the result of beating with a wooden reaper. He had also stated that such injuries could not be the result of a single fall on an even surface. He had also stated about the alleged cause of injuries and hence he sent intimation to the South Police Station, Ernakulam.
19. PW.12, Dr Babu, Lecturer in Forensic Medicine, Medical College, Alappuzha who conducted post-mortem on the body of CRLA. 692/01 -:19:- Sandhya on 29.10.1992 and issued Ext.P8 post postmortem certificate. PW.12 had noticed two abrasions measuring 1 x 0.3 cm and 2 x 1 cm respectively, on the shoulder and the right leg of the deceased. According to PW12, those injuries were superficial antimortem injuries and that they did not suggest any assault. Going by Ext.P8 and deposition of PW12, those medical evidence does not suggest any sexual assault like intercourse or suggest observation of any marks or sign of resistance against rape. (emphasis supplied). Ext.P9 is the chemical analysis report. According to PW12, the deceased died of Cerebra Odollam poisoning . Ext.P10 is the final opinion.
20. PW13 was the Sub Inspector of Police, Central Police Station, Ernakulam in the year 1992 who received Ext.P2 complaint forwarded from the Judicial First Class Magistrate's Court- I, Alapuzha on 11.8.1994 upon which he registered Crime No.270/94 at 7.p.m. on 11.8.1994. Ext.P11 is the FIR. He had stated that along with the complaint, a suicide note was also there.
21. PW14 is a neighbour of PW1 who is an attester to the scene mahazar, Ext.P12, prepared by the Additional Sub Inspector of Police, Alapuzha at 3 p.m. on 29.10.1992 after inspecting the house of PW1 and its premises. PW15 - Dr. Govindan attached to CRLA. 692/01 -:20:- the Government General Hospital, Ernakulam, deposed and identified the signature of Dr.Satheesh Babu who issued the potency certificate, Ext.P13 dated 25.8.1995 after examining the accused. PW15 identified the accused by verifying the marks of identification given in Ext.P15. PW16 is the Village Assistant attached to the Village office, Ernakulam who prepared Ext.P14 cite plan of the place of incident in crime No.270/94 of Central Police station. PW17 is the Circle Inspector of Police, Ernakulam Central police station, during the year 1994 who took up investigation of crime No.270/94. He seized Ext.P3 series letters produced by PW1 as per Ext.P4 mahazar. He questioned several witnesses and recorded their statements under section 161 Cr.P.C. The contradictions viz., Exts.P16 and P17 with respect to PW3, Ext.P18 and P19 with respect to PW10 were marked through PW17. He deposed that his investigation revealed that rape took place in the morning on 25.10.1992 and the death in the morning on 29.10.1992.
22. PW18 was the Additional Sub Inspector of Police, Alapuzha South Police Station during the year 1992 through whom Ext.P15 F.I.Statement of PW4 was marked and According to him, he had registered Ext.P20 F.I.R. in Crime No.414/92 under the head "unnatural death". Ext.P21 is the inquest report prepared by PW18. CRLA. 692/01 -:21:- After examination of the body of deceased Sandhya, PW18 had observed and recorded in paragraphs 5 and 7 of Ext.P21 inquest report that the private parts of Sandhya were normal. (emphasis supplied). He visited the residential house of PW1 and prepared the scene mahazar, Ext.P12. He dropped further investigation into the matter as Sandhya committed suicide.
23. PW19 is the Circle Inspector of Police, Central Police Station, Ernakulam, who took up the investigation of the case on 2.8.1995 from PW17. It was PW19 who prepared Ext.P22 report and filed before the Judicial First Class Magistrate Court II, Ernakulam to remove the names of the accused 2 to 5 named in Ext.P2 complaint from the array of the accused. According to him, the accused surrendered before him on 24.8.1995 and they had obtained anticipatory bail from the court of Session, Ernakulam. PW19 sent the accused for potency test and he questioned Dr.Sathees Babu who issued the potency certificate and Dr.T.Babu who conducted the postmortem on the dead body of Sandhya.
24. PW 20 is the Circle Inspector of Police, Ernakulam Central Police Station who conducted further investigation from the stage where PW19 relieved of the same. He visited the place of occurrence on 8.3.1998 and prepared Ext.P6 scene mahazar. The CRLA. 692/01 -:22:- place of occurrence was shown by PW3 whose statement was recorded by PW 20. He filed Ext.P25 report before the committal court to incorporate Section 306 IPC. Through PW20, Exts.P27, 27
(a), 27(b), and 27(c) were marked. Ext.P28 is the scheme as per which the Police were assigned duty connected with the visit of President of India.
25. After the evidence of Prosecution, the accused was questioned under section 313 Cr.P.C. After hearing both sides, the Prosecution as well as the defence, the trial court came into the conclusion that the accused had committed the offences charged against him.
26. The learned counsel Sri N.Sukumaran appearing for the appellant/accused in his fervent plea for acquittal, it is submitted that even if the entire prosecution allegations are accepted as true, no offence either under section 376 or 306 IPC would lie against the accused. The learned counsel pointed out that the whole prosecution case is based upon Ext.P1 letter alleged to have written by the deceased Sandhya and the same is artificial and unbelievable. According to the accused, a suicide note will not be left concealed on the death, but the same will be kept in a prominent view to be seen and read by others. If Ext.P1 was intended to be kept as CRLA. 692/01 -:23:- secret, it cannot be treated as a suicide note. On the basis of Ext.P12 scene mahazar, prepared by PW18, connected with the crime in Ext.P20 FIR, naturally, PW18 must have looked for a suicide note or other relevant documents at that occasion and therefore, the case of the counsel is that if Ext.P1 and P3 series were actually available at that time, the same would have come to the notice of PW18 and would have been detected. As there is no seizure of such documents, at the time of preparing the scene mahazar, according to the learned counsel, Exts.P1 and P3 series are letters only, created and fabricated for the purpose of the case. The learned counsel also pointed out that there was also delay in preparing Ext.P2 complaint dated 12.7.94 though Ext.P1 was alleged to have been recovered on 30.3.94. According to the learned counsel, the conclusion arrived on by the court below regarding the date of Ext.P1 is without any basis and hence, Ext.P1 cannot be relied on. It is also the case of the learned counsel that as per Ext.P15 and 21, and the oral testimony of PW1 and PW4, on previous occasions Sandhya had attempted to commit suicide. But according to the defence, the trial Judge took too much strain to conclude that Ext.P15 is a fabrication of PW18. According to the learned counsel, the contents of Exts.P1 and P3 are not proved CRLA. 692/01 -:24:- properly and hence it cannot be admitted as legal evidence. Pointing out the discrepancies and contradictions in the depositions of PWs 1, 2, 4, 6 and 8, the learned counsel submitted that these witnesses cannot be believed and as such there is no legal evidence to canvas conviction against the appellant. The learned counsel invited my attention to Ext.P21 inquest report prepared by PW18 by which in paras 5 and 7, it is stated that the private parts of Sandhya were normal. In Ext.P8 certificate issued by PW12, the postmortem finding is also to the effect that all external organs are normal and there is no sign of violence or rape. Thus according to the learned counsel, the medical evidence and other documentary evidence are against the theory of sexual violence on Sandhya. It is also the case of the learned counsel that in Ext.P15 F.I.Statement and Ext.P21 inquest report, the concerned witnesses are of the opinion that Sandhya, on previous occasions, tried to commit suicide because of her incurable disease of vomiting blood and therefore it cannot be said that the Sandhya had committed suicide as she was instigated by the appellant/accused or due to any rape committed on her. Therefore, According to the learned counsel, the finding of guilt of the accused under sections 376 and 306 of IPC are incorrect and illegal and without support of any evidence and hence, the conviction and CRLA. 692/01 -:25:- sentence are liable to be set aside.
27. Per contra, Smt. Lakshmi Rani K.L., the learned Public Prosecutor, submitted that the evidence on record collected and produced by the prosecution would show that the accused had got close acquaintance and relationship with the deceased and by utilising such fiduciary and other overwhelming relationship, the accused had committed rape on the deceased Sandhya. The learned Public Prosecutor further submitted that the sexual assault on the deceased could not be detected in time as the victim committed suicide because of the sexual assault committed by the accused on her. But the contemporaneous document viz., Ext.P1 which was written by the deceased prior to her death is an acceptable evidence and has got legal sanctity under section 32 of the Evidence Act. The learned Public Prosecutor also pointed out that apart from the contents of Ext.P1 letter, there are the substantial evidence brought on record through the evidence of prosecution witnesses, especially, PWs 1, 2, 4 , 6 and 8 which would show the entire facts which led to the commission of the offence under section 376 IPC and also Section 306 IPC. The learned Public Prosecutor pointed out that the medical evidence, both documentary and oral, with respect to the injury sustained by the accused on the date of incident itself assure CRLA. 692/01 -:26:- more guarantee and corroboration for the prosecution case as such. Thus, coupled with the above mentioned evidence of prosecution and the contents of Ext.P1 would show that the accused had sexual intercourse with the deceased Sandhya and that too without her consent and against her will and such incident at the instance of the accused instigated the deceased Sandhya to commit suicide. Thus according to the learned Public Prosecutor, the conviction and sentence imposed by the court below is perfectly legal and valid and no interference is called for.
28. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the learned Public Prosecutor. The specific case of the prosecution is that the accused committed rape on the deceased Sandhya, a girl aged 18 years and in pursuance of such sexual assault at the instance of the accused instigated her to commit suicide on 29.10.92. Regrading the death of Sandhya, and the cause of the death also, there is no dispute. In fact, on the basis of Ext.P15 statement of PW4 - mother of the deceased, crime No.414/92 under the caption of "unnatural death" as per Ext.P20 FIR was registered by PW18 in the Alapuzha South Police station during the year 1992. Ext.P-21 is the inquest report prepared in the above crime. Dr. P.Babu, Lecturer in Forensic CRLA. 692/01 -:27:- Medicine, Alapuzha Medical College was examined as PW12 who issued the postmortem certificate marked as Ext.P8. When PW12 was examined, he had deposed in terms of Ext.P8. According to him, he had noticed the following symptoms of poisoning: (1) Conjunctivae congest; (ii) finger nails blue; (iii) Stomach mucosa congested with sub mucosal hemorrhage and (iv) All internal organs were congested. PW12 noticed two abrasions measuring 1 x0.3 cm. and 2 x 1 cm respectively on the shoulder and the right leg of the deceased. He had opined that they were superficial antimortem injuries and that they did not suggest any assault. Ext.P9 is the chemical analysis report. On the basis of Ext.P9, PW12 had stated that as per the said report, the stomach, intestine liver, kidney, blood and urine of the deceased contained toxic glycosides of cerebra odollam. PW12 had further explained that poisonous fruits of odollam affects heart, and basing on the analyst report he gave his final opinion as to the cause of death. Ext.P10 is the final opinion marked through PW.12. Thus according to the PW12, the deceased died of Cerebra odollam poisoning. Thus the above evidence are sufficient to hold that Sandhya died as a result of consumption of poisonous fruit, namely, Cerebra Odallam.
29. The next question to be considered is what are the facts CRLA. 692/01 -:28:- and circumstances which constituted the reasons for committing suicide by the deceased Sandhya. According to the prosecution, the accused committed rape on her which instigated the deceased to commit suicide. Therefore, first of all, I have to consider whether the prosecution has succeeded in establishing the offence of rape alleged to have been committed by the accused on the deceased Sandhya. Virtually, absolutely there is no direct evidence to prove the above case. The prosecution mainly depends upon Ext.P1 note alleged to have written by the deceased. Of course, the prosecution has tried to establish certain other circumstances through the oral deposition of certain witnesses and certain documentary evidence. Before examining those evidence on record, it will be worthful to recollect the factual position involved in the case as per the prosecution allegation. According to the prosecution, when Sandhya committed suicide, and when she was alleged to have subjected to rape, she was about 18 years old. So, in such situation, it is incumbent upon the prosecution to prove that the accused had committed rape on Sandhya, who was a major at that time, against her will and without her consent. As there is no direct evidence regarding the case of rape, we have to go by such circumstances suggested by the prosecution and also on Ext.P1 which pressed CRLA. 692/01 -:29:- into service by the prosecution to prove its case. According to the prosecution, on that particular day. the deceased came in Ernakulam and went to the shop of accused to meet him for the purpose of preparing applications towards arrangement for the passport. It is the further case of the prosecution that the deceased went to the house of Karthikeyan- PW6, who was residing with his family at Kaloor. That was in the afternoon. Thereafter she returned from the house of PW6 to the railway station for catching the train to Alapuzha. As the train had already left before her arrival in the station, according to her, later, she contacted the accused as she was not having sufficient money for bus fare to go to Alapuzha and accordingly she came to the shop of the accused and resided there during that night. It is already came out in evidence that her sister Sheeba - PW8, was working as a maid servant in a house at Thevara in Ernakulam. From the evidence of PWs 6 and 8, it is crystal clear that there were two houses at Ernakulam where the deceased could have depend for her safety stay on that night, or for arranging bus fare to go to Alapuzha. But said Sandhya had not chosen to select either of those houses for her stay or for getting bus fare. It is also very strange to note that PW1-father, or PW.4 - mother, had no idea about the whereabouts of their daughter and they were not CRLA. 692/01 -:30:- so anxious for Sandhya not reaching in the house after her usual departure in the morning for attending the tuition class. There is also no evidence to show that PW1 had conducted any enquiry about her daughter who left for attending class in the morning. It is also to be noted that Sandhya did not inform either her father or her mother regarding her idea to go to Ernakulam to meet the accused. It is on evidence that she had no money to meet the expenditure connected with the travel to Ernakulam and for making applications for passport etc. but she had also not obtained money from the family. In Ext.P1 letter there is no whisper as to why she did not inform her father at Alapuzha, or her sister at Thevara or Karthikeyan at Kaloor, that she was staying in the office of the accused due to missing of train and paucity of money towards bus fare. Regarding these aspects, which are very vital and serious, absolutely there is no explanation for the prosecution.
30. I have already mentioned about the inquest report and also postmortem report and the oral deposition of PW12 (doctor) who issued Ext.P8 postmortem certificate. According to PW12, the internal organs were in tact and the only injuries noted by PW12 is that two abrasions measuring 1 x 0.3 cm and 2 x 1 cm respectively, on the shoulder and the right leg of the deceased. According to CRLA. 692/01 -:31:- PW12, those were superficial antimortem injuries and that they did not suggest any assault. He had categorically deposed that "but the injuries were caused within 24 hours, before the death". Therefore, at no stretch of imagination, it can be held that those injuries were sustained at the time of alleged rape on as a result of resistance against the rape. Absolutely, there is no sign of sexual violence on the body of the deceased and there is nothing to show any mark of resistance made by the deceased against the alleged sexual assault (emphasis supplied). In this juncture, it to be noted that the above observation and conclusions will become relevant only when the prosecution establishes the other essential ingredients of Section 375 of IPC. Even going by Ext.P1 note of the deceased, what she had written is that the accused had destroyed her. As the translation of Ext.P1 is part and parcel of the impugned judgment, I am not proposed to reproduce the entire translation at this juncture. Certain portion of the translation made by the court below can be extracted here for this limited purpose. Thus it can be seen that she had written: "I have fallen in a trap. I have no way to escape". The underlined portion of the translation of Ext.P1 letter contained in the impugned judgment is extracted hereunder. CRLA. 692/01 -:32:-
"In the early morning - it may have been around 4 a.m.- Sar came into the room I slept in. I could not escape from the grip of that evil man, no matter however hard I tried. He let me off only when he had satisfied all his wants. He did not even permit me to let out a cry. I have no more possessions. Having been lost everything I am only a worm" .
From the above, nobody can come into a conclusion that the accused had committed forceful sexual intercourse upon the deceased Sandhya. The medical evidence is absolutely silent and nothing suggests to attract Section 376 of IPC or any resistance from the part of the victim. No details are given as to how the accused committed rape on her. In this juncture, it is relevant to note that if the victim was alive, either the prosecution or the defence can bring more details according to their requirements. As pointed out earlier, the prosecution very much relies upon Ext.P1 to prove its case against the accused. Ext.P1 letter did not offer any explanation or answer to the points mooted and discussed above. Still then, we have to assess as to how far the same will be helpful for the prosecution to prove its case. Regarding the factual aspects involved in the case will be discussed in CRLA. 692/01 -:33:- the light of the above Ext.P1 letter, later.
31. Regarding the admissibility of Ext.P1 letter and its legality are not established by the prosecution. The trial court, on a wrong understanding of the dictum laid down by the Honourable Supreme Court in Kans Raj v. State of Punjab {(2000) 5 SCC 207}, simply admitted and relied on Ext.P1. The facts involved in the case cited supra, are entirely different from the present one. There, the offences involved were under Sections 304B and 498A of IPC and other relevant provision considered is section 113-B of the Evidence Act. It is also relevant to note that there the deceased was married to the accused on 9.7.1985 and, on 23.10.1988, when her brother PW5 had visited her matrimonial home to deliver some customary presents to her, he found her dead body lying in the entrance room and the respondents were making preparations for her cremation. It was upon the information furnished by the brother of the deceased in that case, the case was registered by the police for the offence under section 306 IPC. Father of the deceased filed a complaint under Sections 302 and 304B CRLA. 692/01 -:34:- IPC. It is in the above factual circumstances and after considering the materials and evidence on record, the Apex Court laid down the principles regarding the admissibility of statement made by the deceased to her relatives before her death, under section 32(1) of the Evidence Act. In the present case, the deceased committed suicide in her own house and there is no matrimonial relationship between the accused and the deceased and the parties are quite strangers. In the above decision, the Apex Court has held that all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. It is also held that to make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making CRLA. 692/01 -:35:- such statement. In the present case, the defence took objection in admitting Ext.P1 as a substantial evidence under section 32(1) of the Evidence Act. There is delay in the recovery of the letter in spite of the fact that the police had failed to detect such letter when they prepared the scene mahazar. It is also the case of the defence that the hand writing in Ext. P1 is not proved scientifically to show that the same is written by the deceased herself and not any other person. Even going by Ext.P1, one can see that the entire hand writing is not of the same person, but different persons. Therefore, according to me, the decision cited supra and relied on by the trial court is not applicable in the present case.
32. Now let us examine whether the ingredients of section 376 are attracted through the contents of Ext.P1 letter. Going by Ext.P1 letter, it is not clear as on which date Sandhya was subjected to sexual assault. In Ext.P1, the date is shown as 20.9.1992. But the prosecution case is that she was subjected to rape in the early morning of 25.10.92. There is no material and evidence to explain the contradiction regarding the date CRLA. 692/01 -:36:- of rape. But the trial court, as seen from paragraph 77 of the judgment took too much strain to see that the rape was on 25.10.92 and the date given in Ext.P1 was based upon the innocent mistake. The court below undertook the job, which is otherwise on the shoulder of the prosecution, to prove the exact date of the alleged incident. Thus, on a reading of Ext.P1, one can come into the conclusion that the prosecution has miserably failed to establish the actual date of the alleged rape. Ext.P1 letter itself does not speak about the incident of rape in such a manner to constitute the essential ingredients of Section 376, whether there was any resistance from the part of the deceased Sandhya against the alleged sexual assault, especially, when there is no sign of resistance noted either in the inquest report or in the post mortem certificate. The explanation given in the letter regarding her stay in the office of the accused cannot be swallowed without a pinch of salt, especially, when she had two houses in Ernakulam for her safety stay. Hence the deceased being a major it is for the prosecution to establish that the alleged rape - if the rape is CRLA. 692/01 -:37:- proved - was without her consent. Therefore, according to me, Ext.P1 letter is not helpful for the prosecution to prove the guilt against the accused. When a court of law deals with an offence under section 376 IPC , it has to be satisfied that, with the essential ingredients of Section 375 IPC, the offences are established and proved beyond reasonable doubt. Absolutely there is no evidence or materials to satisfy the above legal requirements to attract Section
375.
33. In this juncture, it is relevant to note that Smt. Lakshmi Rani, the learned Public Prosecutor submitted that the deceased Sandhya who was studying only in S.S.L.C., was not able to describe the incident in so much words and language, that too, in terms of the words contained in the statute, especially when she had decided to commit suicide. Of course, I would not have any hesitation to accept such arguments, provided, if there is any other corroborating or supplemental evidence. As stated earlier, there is no eye witness to the incident and the victim herself was not available to give evidence . But Ext.P1 does not contain any details regarding the alleged sexual assault. The medical evidence also did not reveal any such sexual intercourse or assault. There is no positive CRLA. 692/01 -:38:- medical evidence with respect to the sexual organs of the deceased Sandhya showing that she was subjected to sexual assault or intercourse. There is also no evidence to prove the penetration so as to attract Section 375 IPC. There is no other external injuries as signs of sexual assault or injuries or marks of resistance from the part of the deceased. In the above circumstances, I am of the firm opinion that the prosecution has miserably failed to prove that the accused had committed sexual intercourse on the deceased Sandhya, the victim, against her will and without her consent and therefore, Sections 375 and 376 of IPC are not attracted.
34. The next question to be considered is whether the offence under section 306 IPC is attracted against the accused. The whole prosecution case is that the accused committed rape on Sandhya consequent to which she committed suicide and therefore, the accused is guilty under section 306 IPC. As I have already held that prosecution has miserably failed to establish the offence of rape and consequently, the conviction under section 306 also will go. When main plank in the circumstantial evidence give way, no conviction can be sustained under section 306 IPC as held by the Honourable Supreme Court in the decision in State of Haryana v. Jagbir Singh (1977 SCC(Cri.) 638).
CRLA. 692/01 -:39:-
35. In the present case, it is relevant to note that the defence has got a case that the deceased Sandhya was having a disease of vomiting blood and she was undergoing treatment for the same and therefore, according to the defence, Sandhya might have committed suicide because of the above disease. In this case, from the evidence of PWs 1, 4, and 8, it can be seen that Sandhya was having the disease of vomiting blood and she was under the treatment for the same. It is true that the above witnesses deposed before the court that the said disease was cured after giving proper treatment. The above version and explanation are to be scrutinized more cautiously because such evidence was given by the father, mother and sister of the deceased. The above version has become more doubtful when PW4 denied the lodging of Ext.P15 F.I.Statement on the basis of the FIR registered in the Alapuzha South police station. PW4 in Ext.P15 F.I.Statement had stated about the disease of deceased Sandhya. According to PW4, when she put signature in Ext.P15, the same was blank and she was not aware of the contents of Ext.P15. Thus it can be seen that in Ext.P15 F.I.Statement recorded by PW18, PW4 the mother of deceased Sandhya had stated that Sandhya had some CRLA. 692/01 -:40:- serious illness and that she had the tendency to commit suicide and also told about the earlier unsuccessful attempt made by Sandhya to commit suicide. Ext.P21 is the inquest report prepared by PW18 and the witnesses questioned thereunder including the father of the deceased (PW1) were of opinion that Sandhya had serious illness and she had previously attempted to commit suicide. Thus the prosecution evidence itself is as suggested or justified by the defence version regarding the cause for committing suicide by deceased Sandhya. Of course, it is for the defence to substantiate the above suggestion, but no positive evidence is adduced. For the defence, it would be sufficient to make out a probable case for which they can rely upon the materials produced or relied on by the prosecution and while examining such defence case, those evidence need not be weighed in golden span and to find out whether the defence has succeeded in making out a probable case and the court is not expected to use the same yardstick as in the case of prosecution to prove its case beyond reasonable doubt. (emphasis supplied).
CRLA. 692/01 -:41:-
36. In the decision in Vikramjit Singh v. State of Punjab(2007) 1 SCC (Cri) 732), the Apex Court has held that, where two views are probable, the one that was contended by the accused should be accepted. In the above case, the Apex Court has found that the trial court as well as the High Court, after weighing the probability of both, erred in convicting the appellant opining that the appellant having not been able to prove his case, the prosecution case should be accepted. So also, in the present case, the view suggested by the accused for committing suicide by the deceased Sandhya is more probable based upon materials adduced by the prosecution and the case suggested by the defence upon such materials.
37. Even according to the prosecution, to prove the guilt of the accused, there is no direct evidence and hence, the prosecution relies upon certain circumstances to establish its case. In the decision in Sharad Birdhichand Sarda v. State of Maharashtra (1984 SCC (Cri) 487), the Apex Court has laid down the "Panchaseel" regarding the case resting on CRLA. 692/01 -:42:- circumstantial evidence. According to the above decision, the prosecution has to prove the following conditions:
" 1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely `may be' fully established,
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
3) the circumstances should be of a conclusive nature and tendency,
4) they should exclude every possible hypothesis except the one to be proved, and
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused".
CRLA. 692/01 -:43:- In the present case, the prosecution has miserably failed to establish the complete chain of the circumstances with acceptable evidence and pointing out only the guilt of the accused and ruling out any hypothesis which is in consonance with the innocence of the accused. From the discussion regarding the evidence and materials on record, I have already found that the prosecution has miserably failed to establish the essential ingredients of Section 376 and 306 of IPC. The deceased Sandhya being a major, it was incumbent upon the prosecution to plead and prove that she was subjected to rape without her consent and against her will. The prosecution has no cogent explanation as to how the deceased Sandhya happened to be reached in the office of the accused on the alleged night. There is no substantial evidence to show that the deceased Sandhya was subjected to rape. There is no medical evidence also to show that she was subjected to sexual intercourse. There is also no evidence to show that Sandhya was forcefully subjected to sexual intercourse. There is also dearth of evidence to show that deceased Sandhya CRLA. 692/01 -:44:- had resisted the attempt to commit rape on her. It is relevant to note that the evidence of PW2, as I have already indicated, is not believable and acceptable. On exclusion of such unbelievable evidence of PW2, absolutely there is no evidence to show that the deceased was in the company of accused on the alleged day. The prosecution has miserably failed to adduce evidence so as to rule out the possibility and presence of any other person, in the office of the accused on the alleged day. This fact assumes importance, because the version of deceased Sandhya given in Ext.P1 note that she inflicted injuries on the accused is quite unbelievable. Sandhya appears to be an intelligent girl, who would not have prepared to visit accused in the hospital in person and she would have got done it through any other person or through a telephone call to the hospital. So it cannot be said that the circumstances are unerringly pointing towards the guilt of the accused alone and ruled out the possibility of any other person. Thus the prosecution has miserably failed to show that only the accused CRLA. 692/01 -:45:- was involved in the crime and ruled out the possibility of involvement of any other person in the alleged incident.
38. In this juncture it is also relevant to note that Ext.P1 letter is not sufficient to attract the ingredients of Section 376 IPC. There is no medical evidence to show that the deceased Sandhya was subjected to sexual assault. Even if sexual assault was there, the prosecution has not proved that the same was without her consent and against her will, especially, when Ext.P1 does not offer any convincing explanation for her arrival in the office of the accused and absence of mark of resistance noted in the body of the accused. So it cannot be ruled out that Sandhya had committed suicide as an after thought pursuant to her sexual interaction either with the accused or with any other person. If actually it was the deceased Sandhya who inflicted injury on the accused and not any other person, there is no satisfactory and convincing explanation for her to take the accused to the hospital. The prosecution allegations and the evidence adduced by it are not sufficient to clear the above doubt.
CRLA. 692/01 -:46:-
39. As per the judgment dated 1.12.2008 in Crl.A.No.320 of 2007 viz., Beldev Singh v. State of Haryana which reported in 2008 (8) Supreme 544, the Apex Court has held :
"There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952".
It is also held in the very same decision that onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. In the above decision, the victim of the alleged rape was found dead and the accused therein was charge sheeted for the offences punishable under sections 302, 376/511 of IPC. But finally, the accused was found guilty for the offences under sections 302 and 354 of IPC. Setting aside the conviction and sentence, the Apex Court has held that circumstances on which the trial court and the High Court had relied to hold the accused guilty by no stretch of imagination can be CRLA. 692/01 -:47:- determinative of the fact that accused was responsible for the commission of rape. In the appeal, it was argued before the Apex Court that the trial court and the High Court though found that; (1) rape was not proved; (2) extra judicial confession was not proved; (3) last seen evidence as projected by prosecution through the evidence of PW.9 was not sufficient to hold the appellant guilty, the trial court found the presence of injuries on the accused to be sufficient to hold the appellant guilty. In the present case also, as pointed out earlier, there is no substantial evidence or supplementary medical evidence to prove the sexual intercourse or sexual assault and also there is no evidence to prove that sexual intercourse was done forcefully against the will and without consent of the victim. There is also no evidence to establish that the accused alone had committed the offence of rape and it is not conclusively proved that no other person is responsible for the alleged sexual assault, if any. There is no substantial evidence to show that the deceased was found in the company of the accused on the alleged date of rape etc. After considering several decisions of CRLA. 692/01 -:48:- the Supreme Court, including the decision in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622), in the decision cited supra, in Baldev Singh's case, the Apex Court has held that, where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offences home beyond any reasonable doubt. On an application of the above dictum in the facts and circumstances involved in the case on hand, no doubt, I am of the view that the prosecution has miserably failed to establish its case beyond reasonable doubt.
40. It is true that while going through the alleged facts and circumstances, a strong suspicion arises as to whether the accused is guilty of this heinous offence in all probabilities. But this suspicion however strong and grave is not substitute for the proof. (emphasis supplied). It is the CRLA. 692/01 -:49:- inherent and conventional duty of the prosecution to prove its case beyond reasonable doubt by adducing legal and sufficient evidence instead of creating strong suspicion against the accused and therefore, when the prosecution fails in establishing the case beyond reasonable doubt, the accused is entitled to get the benefit of doubt and an acquittal.
41. In this juncture it is also relevant to note that, initially, prosecution has got a case that Sandhya visited the accused along with PW2 when the accused was in the hospital and at that time, the other accused who were initially impleaded in the case lead her to their house and threatened her that if she discloses about the alleged rape to anybody, she would be implicated in police case for attacking the accused and thus, according to the prosecution, the deceased Sandhya was threatened and put under fear and as a consequence thereof she committed suicide. Therefore, originally, besides Section 376, Sections 323 and 309 read with Section 109 of IPC were also there in the police case. But subsequently, as per Ext.P22 report, those sections of offences were deleted and original CRLA. 692/01 -:50:- accused Nos.2 to 5 were removed from the array of accused. From the above, it can be seen that, at the time of laying the charge, the prosecution had built up a case that the deceased committed suicide because of the threat and the abetment on the part of the accused for which there is no evidence. When the prosecution themselves voluntarily withdrew such allegations and removed accused Nos. 2 to 5 from the array of accused, what else required to see the uncertainty of the prosecution allegations and its infirmities?
42. The defence has attacked the prosecution case on several grounds besides what mentioned and discussed above. According to the accused, there was unexplained delay in filing of Ext.P2 complaint and the subsequent crime. There is two years gap from the date of death of the deceased Sandhya and filing Ext.P12 complaint. There is also 4 months delay in filing Ext.P2 complaint even after the alleged detection of Ext.P1 letter. They have also challenged the version given by PW1 regarding the detection of Ext.P1 suicide note alleged to have been written by Sandhya. According to the defence, the CRLA. 692/01 -:51:- police claimed to have prepared Ext.P12 scene mahazar connected with the death of the deceased Sandhya and the said scene mahazar is concerned and connected with the residential house of deceased Sandhya and PWs 1, 4 and 8. But no such letter was detected or seized at the time of preparing the scene mahazar. The defence has also challenged the authorship of the contents of Ext.P1 letter and its proof etc. In the absence of expert evidence, I am of the view that, on a perusal of Ext.P1 it cannot be said that Ext.P1 is written by Sandhya and the same contained the handwriting of one person alone. The defence has also got a case that PW2 is an artificial witness and he was cited and examined only to mislead and make believe the court that what contained in Ext.P1 is correct. According to the defence, for the above purpose PW1 made substantial improvements from his earlier version that one Manoharan had brought the autorickshaw to take Sandhya on the date on which she consumed `Odallam' and while examined, PW1 had stated that it was not the said Manoharan, but PW2 who brought the CRLA. 692/01 -:52:- autorichshaw and took Sandhya and PW1 to the hospital. For the above reason, the deposition of PW2 is not believable and acceptable. Even after the death of Sandhya, he had not disclosed the version to anybody. The defence also challenged Ext.P3 series of letters on the ground that if the same were sent to the person addressed therein, how it could be detected from the house of PW1 and the deceased. Thus, the defence attacked the prosecution case on various grounds. I am not proposed to go into the merits or demerits of those arguments of the defence in the light of the earlier finding that the prosecution had miserably failed to establish and prove the essential ingredients of Section 376 and 306 IPC.
43. In the light of the above discussion and on the basis of the materials and evidence mentioned above, as I have concluded earlier, the offence under section 306 IPC will not lie against the accused as the prosecution has failed to establish the allegation against the accused under section 376 of IPC and also for the reason that the defence version regarding the reason for committing suicide appears to be more probable CRLA. 692/01 -:53:- since the initial prosecution allegation and materials are capable to endorse those defence version. Thus the prosecution has miserably failed to establish the allegations under section 306 IPC supported by cogent and convincing evidence.
44. The trial court without going into the legal question as to whether the prosecution has succeeded in establishing the offence under sections 376 IPC, simply on the basis of Ext.P1 note and on the basis of certain irrelevant aspects as seen in paragraphs 73 to 80, concluded that the accused had committed rape on the deceased Sandhya. On a reading of the above paragraphs of the trial court judgment, it can be seen that the trial court had miserably failed to discuss the prosecution case on its legal merit and analyzing and appreciating the prosecution evidence in its true perspectiveness. When a court of law undertakes a trial to find out whether the charge against an accused has proved, especially, a serious offence like the present one, the court shall not derail and be misled by the moral issues which is impermissible by law instead of CRLA. 692/01 -:54:- legal evidence and legal conviction. (emphasis supplied). From the approach of the court below as revealed by the impugned judgment, I am of the view that the trial court was carried away with the moral conviction instead of legal conviction.
45. In the result, especially, in the light of the above particular facts and circumstances involved in the case, and in view of the forgone discussion, I am of the view that the prosecution has miserably failed to establish its case against the accused beyond reasonable doubt with sufficient evidence and hence, the accused is entitled to get the benefit of doubt.
Accordingly, the appeal is allowed setting aside the impugned judgment and the accused is acquitted of all the charges levelled against him. The bail bond if any executed by him stands cancelled and he is set at liberty.
.
V.K.MOHANAN, JUDGE kvm/-
CRLA. 692/01 -:55:-
V.K.MOHANAN, J.
CRL. No.692/2001
Judgment Dated: 01.01.2009