Kerala High Court
Manikandan @ Mani vs State Of Kerala on 17 March, 2025
Criminal Appeal No.2 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
CRL.A NO. 2 OF 2014
AGAINST THE JUDGMENT DATED 28.12.2013 IN SC NO.298
OF 2008 ON THE FILE OF THE SPECIAL COURT FOR SC/ST (POA)
ACT CASES, MANJERI.
APPELLANT/ACCUSED:
MANIKANDAN @ MANI,
S/O.GOPALAN @ BALAN,
ILLIKKAL HOUSE, KIZHATTOOR AMSOM DESOM,
KIZHATTOOR, VADAKKUMTHALA,
MALAPPURAM DISTRICT.
BY ADV R.RANJITH (MANJERI)
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE, TIRUR, MALAPPURAM DISTRICT THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.SRI.VIPIN NARAYAN,
SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2025, THE COURT ON 17.03.2025 DELIVERED THE
FOLLOWING:
Criminal Appeal No.2 of 2014
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C.S.SUDHA, J.
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Criminal Appeal No.2 of 2014
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Dated this the 17th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused, in S.C.No.298 of 2008 on the file of the Special Court for SC/ST (POA) Act Cases, Manjeri, challenges the conviction entered and sentence passed against him for the offence punishable under Section 376 IPC.
2. The prosecution case is that the accused, a Hindu Thiyya with the intention of raping PW1, knowing fully well that she is a scheduled caste belonging to the Hindu-Cheruman community, on the promise of marriage on 25/06/2006 took her to a lodge by name Ayodhya situated by the side of Vettichira- Kadampuzha public road, checked into room no.115 of the said lodge and after 08:00 p.m. forcibly undressed PW1 and raped her. Hence, the accused as per the final report is alleged to have Criminal Appeal No.2 of 2014 3 2025:KER:20902 committed the offences punishable under Section 376 IPC and Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC/ST Act) .
3. Ext.P1 FIS of PW1 the victim was recorded by PW12, ASI, Perinthalmanna police station, who registered Ext.P11 FIR. Thereafter, the FIR was transferred to the Kalpakanchery police station as the crime took place within the jurisdiction of the said station. PW13, ASI, Kalpakanchery police station registered Ext.P12 FIR. The initial investigation into the case was conducted by PW14, DYSP, Tirur. The investigation was thereafter taken over by PW15, DYSP, Tirur, who on completion of investigation submitted the final report before the jurisdictional magistrate alleging the commission of the offences punishable under the aforementioned Sections by the accused.
4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities Criminal Appeal No.2 of 2014 4 2025:KER:20902 contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Manjeri. The case was taken on file as S.C.No.298/2008 and thereafter made over to the Special Court for SC/ST (POA) Act Cases, Manjeri for trial and disposal.
5. On appearance of the accused before the trial court, a charge under Section 376 IPC, Sections 3(1)(xi) and 3(2)
(v) of the SC/ST Act was framed, read over and explained to the accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW16 were examined and Exts.P1 to P18 and M.O.I to M.O.IV were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No Criminal Appeal No.2 of 2014 5 2025:KER:20902 oral or documentary evidence was adduced on behalf of the accused. Ext.D1 is the contradiction brought out in the statement of PW2, the doctor.
8. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found no evidence to find the accused guilty of the offence punishable under Sections 3(1)(xi) and 3(2)(v) of the SC/ST Act and hence acquitted him under Section 235(1) Cr.P.C. of the said offences. However, he has been found guilty of the offence punishable under Section 376 IPC and hence he has been sentenced to rigorous imprisonment for a period of 7 years and to a fine of ₹5,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.
9. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or Criminal Appeal No.2 of 2014 6 2025:KER:20902 not.
10. Heard both sides.
11. Before going into the arguments advanced on behalf of the appellant/accused, I briefly refer to the evidence relied on by the prosecution in support of the case. Ext.P1 FIS of PW1 the victim is seen recorded on 26/06/2006 at 06:00 p.m. In Ext.P1 it is stated that PW1 along with her father and other members of her family went for the pooram (festival) at Angadippuram, where she met the accused and became close to him. Thereafter, the accused visited her home thrice. The accused proposed to her. On 23/06/2006 the accused contacted her on the phone of PW11 her neighbour, and asked her to accompany him to Nilambur. So on 25/06/2006 at 09:30 a.m. she reached the bus stand at Nilambur. By 10:00 a.m. the accused also came there and told her that they can go to Kadampuzha and get married. Believing his words, she accompanied him. They reached Kadampuzha by 04:00 p.m. and checked into a room in a lodge. They sat talking for sometime. Criminal Appeal No.2 of 2014 7
2025:KER:20902 By about 08:00 p.m. the accused came to the room with food. After they had food the accused undressed and raped her twice. The next day by 06:00 a.m. they left the place by bus to Puthanangadi where her paternal uncle's residence is situated. During the return journey, when she asked the accused about the solemnization of marriage, he refused to marry her. She reached the house of her uncle by 09:00 a.m. When her aunt asked her from where she was coming, she disclosed everything to her aunt. Her uncle then informed her father, who reached there by afternoon. She disclosed the incident to her father also. Her father went to Keezhattur, the place where the accused is residing and made enquiries, but was unable to meet the accused. She now understands that the accused a thiyya, is married and has two children. Hence, her father brought her to the police station to give a complaint.
11.1. PW1 in the box more or less stands by her case in Ext.P1 FIS. She deposed that when the accused expressed his desire to marry her, PW6 her father, said that he would revert Criminal Appeal No.2 of 2014 8 2025:KER:20902 after he made enquiries about his family. The accused spoke to her over phone about 4-5 times. A month thereafter, the accused called her and asked her to join him at Nilambur where their marriage could be registered. On 25th June she went with the accused to Kadampuzha. They checked into a room in a lodge where the accused raped her. They engaged in coitus twice. The next day morning by 05:00 a.m., they left for the house of her paternal uncle at Puthanangadi. The accused dropped her at her uncle's house and left. By 08:30 a.m. she reached her uncle's house. She disclosed the incident to her family. PW1 deposed that she accompanied the accused as he made her believe that he would marry her at Kadampuzha. In the cross-examination PW1 agreed to a suggestion that there was never any occasion for the accused to come to her residence. She further deposed that it was her idea to go to Kadampuzha (..........ഞ ൻ പറഞ പപക രമ ണ ക ട മ ഴ പപ യത .......). PW1 further deposed that nothing had happened against her will. (.........എൻ ഇഷത ന വ ര ദമ യ പപവ ... ത നടത യ ട ല .......). It was her father who had narrated Criminal Appeal No.2 of 2014 9 2025:KER:20902 the incident to the police. She signed the statement given. What was recorded by the police was not read over to her then. She read the statement for the purpose of deposing before the Court. (....Police പന ട എൻ" ൻ#സ%ഭവമ ണ ൻയനഅചൻ പറഞ ര ന . അത നട യ ൽ ഞ ൻ ഒപ ട ര ന . Police എഴ ത എട തക ര.ങൾ അപപ ൾ വ യ ച പകട ര ന ല . സ ക പറപയണ ആവശ.ത ന വ... യ ച ര ന ....... ). PW1 admitted that she had not stated to the police that the accused had told her that their marriage could be registered at Kadampuzha. According to her, the accused told her that the marriage could be registered at Nilambur, which fact she stated to the police also. PW1 also deposed that on the said day at Perinthalmanna itself, the accused had asked her to return home. (.......ക ട മ ഴ ൻവച രജ സർ വ വ ഹ% ൻ9യ ൻമന പറഞത police ൽ പറഞ ട ല. ന ലമ<ർ ൻവച രജ സർ വ വ ഹ% ൻ9യ ൻമന ണ പപത പറഞത. ആ ക ര.% police ൽ പറഞ ര ന ................. അന ൻപര "ൽമണൻവച വ>ട പല# ത ര ച പപ ക ൻ പപത പറഞ ര ന. ) 11.2. PW6, the father of PW1 deposed that on the date of the incident when he returned home by 06:00 p.m., PW1 was not at home. PW1 telephoned PW11 and informed that she Criminal Appeal No.2 of 2014 10 2025:KER:20902 was at her uncle's residence at Puthanangadi. His son went in search of PW1. The next day morning he went to the house of the accused at Keezhattur, but the accused was not there. The accused proposed to his daughter. He went to Puthanangadi and found his daughter there. His daughter went with the accused to Kadampuzha as the latter had promised to marry her. He understands that the accused had raped his daughter in a lodge at Kadampuzha. When the accused offered to marry his daughter, he had asked the accused to come home with his family. The accused had told him that he was also a member of their community. The enquiries thereafter conducted revealed that the accused is a thiyya and that he is a married man having two children. PW6 further deposed that he had never asked the accused to marry his daughter.
11.3. PW7, the brother of PW1 and son of PW6, supports the version of his father. According to PW7, his father had spoken to the accused about the marriage to PW1 at the poora parambu itself. The accused had then visited them. Three Criminal Appeal No.2 of 2014 11 2025:KER:20902 to four days thereafter, his sister went along with the accused.
11.4. PW9, Manager, Ayodhya lodge, deposed that the accused and a girl had checked into a room in the lodge claiming to be newly-weds. Ext.P8 is the register maintained at the lodge and page 114 of the register contains the relevant entry, which has been marked as Ext.P8(a).
11.5. PW11 a neighbour of PW1, deposed that during 2006, she was the only person who had a telephone connection in the locality. The siblings of PW1 used to call her on the said phone. One day a person identifying himself as the son of PW1's paternal uncle, called PW1 about five to six times.
11.6. PW2, Assistant Surgeon, Taluk Hospital, Perinthalmanna, deposed that on 26/06/2006 she had examined PW1, who was brought to the hospital with a history of alleged rape on 25/06/2006 by Manikandan (the accused) at Kadampuzha lodge. On examination no external injuries were noted. On local examination hymen was found torn and it easily admitted two fingers. Vaginal swab, nail clipping and loose hair Criminal Appeal No.2 of 2014 12 2025:KER:20902 were preserved for chemical examination. There was evidence of past vaginal penetration. There was no evidence of resistance. She reserved her final opinion pending chemical examination. The medical certificate issued by PW2 has been marked as Ext.P2. During cross examination PW2 deposed that there was no evidence of recent sexual intercourse. Clinically there was no evidence of sexual intercourse to have taken place within 24 hours. According to PW2, there are four types of chemical examination to find out rape, that is, acid phosphate test; beriberis test ; flourcon test and microscopic examination. She further deposed that if the aforesaid tests are negative, then the allegation of rape is likely to be wrong. She deposed that she had not seen the chemical examination report. In the cross examination PW2 denied having stated to the police that she had seen the chemical examination report and that as per the report, the aforesaid four tests were found negative. The contradiction has been marked as Ext.D1.
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12. Now, the question is whether the aforesaid evidence is sufficient to prove the offence of rape alleged against the accused. The trial court held that the consent of PW1 for the coitus was obtained on the promise of marriage and hence the offence of rape is made out. The fact that PW1 accompanied the accused to the lodge, checked into one of the rooms in the lodge and had coitus with the accused is established by her testimony, which I find no reasons to disbelieve. It was submitted by the learned counsel appearing for the accused/appellant that the prosecution has no case that PW1 agreed to the coitus on the promise of marriage. There is no such case in the FIS. On the other hand, the FIS only says that PW1 accompanied the accused on the promise of marriage. It is true that in Ext.P1 FIS, PW1 does not specifically say that she had agreed to the coitus on the promise of marriage by the accused. But she has stated that she accompanied the accused to Kadampuzha as the accused had promised to marry her. However, there are other aspects which raise doubts in the mind Criminal Appeal No.2 of 2014 14 2025:KER:20902 of this Court regarding the question as to whether PW1 consented to the coitus on the promise of marriage or whether it was under any misconception of facts. PW9, Manager of the lodge, who is a loyal prosecution witness, deposed that the accused and the lady accompanying him had checked into the hotel claiming to be newly weds (പപത യ % ഒര ൻപണ % കല. ണ% കഴ ഞ വനവര ണ എന പറഞ മറ എട ത ര ന .) This testimony of PW9 is not challenged or disputed by the prosecution. PW1 admits that they had checked into a lodge. It appears that PW1 along with the accused had taken a room in the lodge claiming to be newly weds. This has to be read along with the testimony of PW1 who deposed that nothing had happened against her will; that it was her idea to go to Nilambur and that at Perinthalmanna itself, the accused had asked her to return home. In these circumstances, it may not be safe to convict the accused of the offence under Section 376 IPC based on the sole testimony of PW1. Hence, I find that the accused is entitled to the benefit of doubt. Criminal Appeal No.2 of 2014 15
2025:KER:20902 In the result, the appeal is allowed and the conviction and sentence imposed against the appellant/accused by the trial court for the offence punishable under Section 376 IPC is set aside. The accused is acquitted under Section 235(1) Cr.P.C. He is set at liberty and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak