A. Aneesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934** **CRL.A.No. 458 of 2005 (A) -------------------------** **AGAINST THE JUDGMENT IN SC.132/2002 of ADDL.SESSN.COURT (ADHOC-II) KASARAGODE DATED 21-02-2005** **AGAINST THE JUDGMENT IN CP.44/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,HOSDRUG DATED 25.5.2002.** **------------** **APPELLANT/ACCUSED::** **-------------------** **A.ANEESH, AGED 20 TEARS, S/O. M.K. NARAYANAN, ANTHITHIRIYANTA VEEDU CHERUPPANCHAL, KAKKADAVU, CHEEMENI VILLAGE.** **BY ADV. SRI.M.V.AMARESAN** **RESPONDENT/COMPLAINANT::** **------------------------** **STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **VK** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 458 of 2005 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of February, 2013. ## **JUDGMENT** The accused was prosecuted for the offences punishable under Sections 417 and 376 of Indian Penal Code. He was found guilty of the offence punishable under Section 376 I.P.C. and was convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.10,000/-, in default of payment of which, to suffer rigorous imprisonment for a further period of one year. If the fine amount was realised, it was directed to be paid as compensation to P.W.4. 2. P.W.4 is the victim in this case. She stays with her parents. Her grandmother was ill and she needed care. On the date of the incident, it is claimed that, P.W.4 had gone to the house of her grandmother to attend to her. On 2.8.2000, the allegation is that, in the morning, by about 6 a.m., the accused came to the house of the grandmother of P.W.4 and asked for a glass of water. While the victim had 2 Crl.Appeal.458/2005. gone inside to take water, it is alleged that the accused followed her and caught hold of her and made her to lie on the ground and violated her body. He then promised that he would marry her and that he would marry none else and that he cannot live without her and also that if she revealed the incident to anybody, he would commit suicide. Because of the promise of marriage and the threat of suicide, she did not reveal the incident to anybody. When the victim had realised that she had conceived, it is claimed that, she approached the accused and insisted for marriage. He then said that she should not reveal the incident to anybody and if she did so, he would not marry her. According to the prosecution allegation, on 3.3.2001 P.W.4, ailing from jaundice, had gone to P.W.2, the doctor. Then, the doctor told P.W.4 and her mother, who had accompanied her, that P.W.4 was seven months' pregnant. It is alleged that thereafter the accused kept himself away from the place and so the complaint was laid. Crl.Appeal.458/2005. 3 3. The complaint, Ext.P5, laid by the victim was recorded by P.W.12 and he registered crime as per Ext.P5 (a) FIR. Initially, the investigation was conducted by P.W.15 from 12.4.2001. He prepared Ext.P10 scene mahazar and recorded the statements of a few witnesses. Investigation was then taken over by P.W.14. He recorded the statements of other witnesses and had the victim sent for medical examination. P.W.1 examined the victim and furnished Ext.P1 report. P.W.14 obtained the necessary records regarding the age of the victim, completed investigation and laid charge before court. 4. JFCM Court-I, Hosdurg, before whom the final report was laid, took cognizance of the offence. On finding that the offences are exclusively triable by a court of Sessions, the learned Magistrate committed the case to Sessions Court, Kasaragod under Section 209 Cr.P.C. The said court made over the case to Assistant Sessions Court, Kasaragod. Later the case has been transferred to Crl.Appeal.458/2005. 4 Additional Sessions Court (Ad Hoc) II, Kasaragod. The said court, on receipt of records and appearance of the accused, framed charges for the offences under Sections 417 and 376 I.P.C., to which the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 15 and had Exts.P1 to P11 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined D.W.1 and had Exts.D1 and D2 marked. On an appreciation of the evidence in the case, the trial court came to the conclusion that the offence under 376 I.P.C. had been made out and accordingly convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal. Crl.Appeal.458/2005. 5 5. Learned counsel appearing for the appellant assailed the said finding of the trial court on several grounds. Learned counsel pointed out that the victim was aged 18 years and the court below has not appreciated the evidence of P.W.4, the victim, in the proper perspective, but, has erroneously believed the version given by P.W.4. A reading of her evidence would show that if at all there was any sexual contact between the accused and the victim, it was with the consent of the victim and by no stretch of imagination the act could amount to rape. Learned counsel pointed out that the claim of P.W.4 that on 3.3.2001 she had gone to meet a doctor as she was suffering from jaundice is belied by the evidence of P.W.1, the doctor, as well as the evidence of P.W.5, her mother. In fact P.W.1 has given evidence that when P.W.4 had approached him, there was no complaint of jaundice at all. Referring to the evidence of P.W.1, the doctor, who had examined the victim, and the examination report Ext.P1, Crl.Appeal.458/2005. 6 learned counsel pointed out that in column 12 of the report it is stated that the first complaint was laid on 6.3.2001 and that P.W.1 has given evidence before court that the said entry was made as per the instructions given by the victim herself. There was no enquiry regarding this complaint at all. Again, it is pointed out that the evidence of P.Ws.4 and 5 are to the effect that when it was revealed that P.W.4, the victim, was pregnant, there was mediation talks and several mediators had intervened. It is significant to notice, according to the learned counsel, that as soon as paternity was attributed to the accused, he denied the same and in the light of the said fact, P.W.4 ought to have gone in for a DNA test. That was not done. It so happened that the maintenance petition instituted by P.W.4 for her child from the accused was dismissed and that is evident from Ext.D2 document produced by the defence. Learned counsel for the appellant emphasized that there is considerable delay in lodging the FIS and that is not convincingly explained. Crl.Appeal.458/2005. 7 Learned counsel referred to the various inconsistencies and contradictions in the evidence of P.W.4 and contended that these crucial contradictions, inconsistencies and omissions have not been considered by the court below and the court below has arrived at an erroneous conclusion. If the evidence of P.W.7 is considered in the proper perspective, learned counsel pointed out that, it could be seen that the claim of P.W.4 that she was attending to her grandmother on the alleged date may not be true as P.W.7 would say that two months prior to the death of her grandmother, she had been in the hospital. According to the learned counsel, by no stretch of imagination it could be seen that the offence under Section 376 I.P.C. is made out and the conviction and sentence are clearly unsustainable. 6. Learned Public Prosecutor made valiant efforts to support the finding of the court below. Emphasis was laid on the fact that the court should give due consideration to the relationship between the parties and it was under Crl.Appeal.458/2005. 8 those circumstances believing the accused and his promise that he would marry her, if she had allowed herself to sexual intercourse, it could not be said that it was with full informed consent, but it was under a misconception. Learned Public Prosecutor also pointed out that the accused after learning that P.W.4 was pregnant had left the place going by the evidence of P.W.4. That points to his culpability. At any rate, according to the learned counsel, the court below has chosen to accept the evidence of P.W.4 after analysing the same and there is no reason why this court should take a different view. In short, the contention is that there are no grounds made out to interfere with the finding of the court below. 7. Inspite of best efforts made after perusing the records, this court finds it extremely difficult to agree with the contentions raised by the learned Public Prosecutor. 8. P.W.4 is the victim and P.W.5 is her mother. The evidence of P.W.4 is to the effect that she had gone to Crl.Appeal.458/2005. 9 the house of her grandmother to attend to her who was bed ridden. There is not much dispute that the victim and the accused are closely related. P.W.4 would say that on the date of the incident, the accused came home asking for a glass of water and while she had gone to the kitchen to take water, she was followed by the accused and raped. She would say that after the incident, he promised to marry her and threatened that if she revealed the incident, he would commit suicide. In chief examination itself, she would say that on several occasions thereafter they had sex when the accused continued his promise that he would marry her. She asserts in chief examination that on 3.3.2001 she had gone to meet a doctor as she was suffering from jaundice. It is significant to notice that she says that at that time her mother and the accused had gone along with her. She says that P.W.2 examined her and told P.W.5, her mother, that P.W.4 was pregnant. She then talks about the mediation talks that took place and also says that she believed that the Crl.Appeal.458/2005. 10 accused would marry her. She says that Ext.P5 is the first information statement given by her. 9. The evidence of P.W.5 is only to the effect that when P.W.4 was taken to a doctor due to illness, it was revealed that she was carrying and then P.W.4 told her that the person responsible for the same was none other than the accused. She too would speak about the mediation attempts and also says that her daughter told her that after committing the act the accused had promised to marry her. 10. According to the learned Public Prosecutor there are no reasons to disbelieve P.Ws.4 and 5. Their version is natural and consistent. 11. Had the above evidence been so, there is no difficulty. But it is not so. In cross-examination P.W.4 admits that she and the accused were in love for a long time. They had decided to marry. Their family knew about it. In cross-examination she has a slightly different version regarding the actual incident. Even though in Crl.Appeal.458/2005. 11 chief-examination she would say that her grandmother was deaf, in cross-examination, she would say that her grandmother suffered from no such infirmity. Had she made any cry or noise, it would have been heard by her grandmother. The following statements in cross-examination is of considerable relevance. “ഞങള തമ�ല സ���ഹത�ല�യത� ക��ണ�� വ�വ�ഹ� �ഴ�ക�ക�ന� പറഞ�ര�നത�ക��ണ���ണ� ഞ�ന ഇഷ�കട� ��ണ�ക�ത�ര�നത�.” Going by the above statement, it is difficult to come to the conclusion that P.W.4 was under a misconception and that she was forced to have sex with the accused. 12. The story of P.W.4 regarding jaundice is belied by the evidence of P.W.5, her own mother, and that of P.W.2. Both of them say that she had not suffered from the said decease. Crl.Appeal.458/2005. 12 13. It is seen that Ext.P5 is laid on 12.4.2001. One may recollect that the incident had occurred on 2.8.2000. The reason given for the delay is that the accused had promised to marry her and she believed the same and also that he had threatened to commit suicide. The further reason given is that there was mediation talks etc. It is significant to notice here that going by Ext.P1 and also the evidence of P.W.4, she had infact, prior to laying Ext.P1, filed a written complaint before the police. If that be so, that would be the first information statement. P.W.14, the Investigating Officer surprisingly says that he made no efforts to enquire about the same. True, P.W.5 denies the said fact. But the assertion made by P.W.4 cannot be given a go by. Moreover, none of the so-called mediators have been examined to prove the fact that the accused had admitted that he was responsible for the pregnancy of P.W.4 and that he had agreed to marry her. In fact, the evidence is to the effect that on the first occasion itself the Crl.Appeal.458/2005. 13 accused had denied the paternity of the child. It is in the above circumstances the reluctance on the part of P.W.4 to undergo DNA test and Ext.D2 assumes importance. It is seen from the evidence that in the maintenance proceedings, P.W.4 had opted for DNA test and an order was passed by the court concerned. But she did not take steps and ultimately the maintenance proceedings came to be dismissed as could be seen from Ext.D2. True, DNA test is not a sine quo non for determining the offence under Section 376 I.P.C. Whether it is negative or positive, it has not much significance in a case of rape. But in the facts and circumstances of this case, it has some relevance as already noticed. 14. Learned counsel appearing for the appellant relied on the decisions reported in **K.P. Thimmappa Gowda v. State of Karnataka** (AIR 2011 SC 2564) and **Jintu Das v. State of Assam** (2003 Cri.L.J. 1411) and contended that when a girl aged 18 years had sexual Crl.Appeal.458/2005. 14 contact with the accused even believing the promise made by the accused that he would marry her and then betrays her, the act would not amount to rape at all. In the decision reported in **K.P. Thimmappa Gowda's case** (supra), it was held that in the facts and circumstances of the case, the benefit of doubt should be given to the accused. 15. On going through the evidence of P.Ws. 4 and 5 and on a consideration of other items of evidence, it could not be said that the evidence of P.W.4 can be termed as without blemish. It is open to considerable doubt. It is felt that it is quite unsafe to enter a conviction on the basis of the solitary evidence of P.W.4 when she, in her cross examination, contradicts the statement in chief and her other versions are belied by the other items of evidence. 16. The court below has chosen to accept the evidence of P.W.4 and has come to the conclusion as already mentioned. The said finding cannot be supported on any count. 15 Crl.Appeal.458/2005. In the result, this appeal is allowed and the conviction and sentence passed by the court below are set aside and the accused is acquitted of the offence under Section 376 I.P.C. also. The bail bond executed by the appellant shall stand cancelled and he is set at liberty. If the fine amount has already been paid, it shall be refunded to the appellant. P. BHAVADASAN, JUDGE sb.