A.R. Ramachandran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935 CRL.A.No. 1414 of 2007 (Y) ------------------------------AGAINST THE JUDGMENT IN SC 203/2004 of SESIONS COURT, WAYANAD, KALPETTA ---------- APPELLANT/ACCUSED:: -------------------------- A.R. RAMACHANDRAN, SON OF RAVUNNI, AYANIKAL HOUSE, KUPPADITHARA, KURUMANI PADINJARATHARA. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P. BHAVADASAN, J. -----------------------------------------------Crl. Appeal No.1414 of 2007 -----------------------------------------------Dated this the 6[th] day of June, 2013 ## **JUDGMENT** The accused faced trial for offence punishable under Section 376 IPC. He was found guilty. He was therefore, convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of ` 10,000/- and in default to undergo rigorous imprisonment for one year. It was also directed that if the fine amount is paid or realised, the entire fine amount shall be paid to PW1 as compensation. Set off as per law was allowed. 2. PW1 is the victim in this case. She resides with her parents. The accused, Ramachandran is a mason by profession and the victim PW1 goes as his helper. The allegation is that about 10 months prior to the date of laying of F.I. Statement i.e. Ext.P1, while going for construction work along with the accused, the accused is alleged to have taken her to a plantain garden of one Padmanabhan Nair Crl. Appeal No.1414 of 2007 -2- and raped her against her will. She conceived and it is alleged that the accused had promised to marry her if she did not reveal the incident to anybody. When she missed her periods she informed the matter to the accused who advised her that they will go and see Doctor. Later she developed abdominal pain and she was taken to the hospital. The Doctor disclosed that she was pregnant. She was taken to a Government Hospital at Mananthavady and she delivered a child. PW1, the victim in this case laid Ext.P1 First Information Report thereafter. It was recorded by PW7 who registered crime as per Ext.P1(a) FIR. PW1 was examined by one Doctor Sukumaran who was not available for examination at the time of trial and Ext.P8 certificate issued by the said Doctor was proved through PW10. PW11 took over investigation. He prepared scene mahazar; recorded statement of investigation and laid charge. The court before whom Final Report was laid took cognizance of the offence and found that the offence is exclusively triable by a court of sessions. The said court committed the case to sessions Crl. Appeal No.1414 of 2007 -3- court, Wayanad for trial and disposal. The said court framed charge for offence punishable under Section 376 IPC and under Section 3(2)(v) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. To the charge the accused pleaded not guilty and claimed to be tried. The prosecution had PWs.1 to 12 examined and Exts.P1 to P8 marked. After the close of the prosecution of evidence, the accused was questioned under Section 313 Cr.P.C. He denied all incriminating circumstances appearing in evidence 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 defence. He did not adduce any evidence. 3. The trial court found the evidence of PW1 to be convincing and cogent enough and entered a finding that offence punishable under Section 376 IPC was made out. However, the accused was acquitted for offence punishable under Section 3(2)(v) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. Conviction and sentence as Crl. Appeal No.1414 of 2007 -4- already mentioned followed. 4. The learned counsel appearing for the appellant pointed out that a mere reading of the evidence of PW1 taken along with Ext.P1 will leave one in no doubt that if at all there was a physical contact it was with the consent and co-operation of the victim itself. The long delay in lodging the FIR and the fact that even after the first incidence it is alleged to be against the will of the victim, she had gone along with him for work without any demur. It shows that the allegation that the first incidence was against her will is not true. Drawing attention to the evidence of PW2 it is contended that the sole reason for delaying the complaint is that the accused was not maintaining the child and by a reading of evidence of PWs.1 and 2 it could be seen that there was no act of rape. It is true that PW1 may be an illiterate rustic lady. There is no medical evidence available in this case which shows that there was forcible sexual intercourse from the part of the accused on the victim. The finding of the court below is based on the evidence of PW1. Crl. Appeal No.1414 of 2007 -5- On a reading of her evidence, as a whole, according to the learned counsel, it is difficult to say that it stands scrutiny. If that be so, the court has to look for corroboration and there is none in the case on hand. Accordingly, it is contended that it is extremely hazardous to come to a conclusion solely based on the evidence of PW1 that the accused was guilty. 5. The learned Public Prosecutor, on the other hand, contended that the social background in which PW1 was living has to be considered while considering her evidence. She belongs to the lowest strata of the society and is an illiterate rustic lady unaware of the consequence of certain acts. It is true, according to the learned Public Prosecutor, that even after the alleged act of sexual intercourse she had been going for work along with the accused. That according to the learned counsel will show that her helplessness and the circumstances under which she was placed. The fact that she subsequently had gone along with the accused cannot be taken as a ground to come to the conclusion that the first act was done with her consent. PW1 has categorically stated Crl. Appeal No.1414 of 2007 -6- that it was against her will and that the act was done forcibly. The lower court which had the occasion to see the demeanour of the witnesses has come to the conclusion that there is no reason to disbelieve PW1. The learned Public Prosecutor contended that there are no grounds to interfere with the findings of the court below. 6. The parametres of appreciation of evidence in a case of sexual assault are well settled. It is trite that the victim is not an accomplice and she is in the position of a injured witness. Therefore, the evidence of such a witness is entitled to considerable weight. Unless it is shown that there are reasons to doubt the version of PW1, rejection of evidence of prosecutrix on the ground that there was no corroboration, will be an imprudent act. Even otherwise corroboration is not a rule but it is only a rule of prudence. However, it has to be remembered that the offence is of a peculiar nature and that it is done in secrecy. So it will be unwise on the part of the court to insist for corroborative evidence in the form of direct evidence. It is well settled that even the medical Crl. Appeal No.1414 of 2007 -7- evidence do not support the prosecution case. The evidence of prosecutrix if found to be convincing enough, that would be sufficient. 7. Keeping the above principles in mind an attempt shall be made to examine whether the evidence of PW1 stands scrutiny. 8. It has to be remembered that the FIS has been laid long after the incident. To be more precise, the incident occurred ten months prior to the date of laying the First Information Statement. This certainly made it difficult for the accused to establish that, that it was not a forcible sexual assault or a forcible sexual intercourse, but it was with consent. Had the complaint been laid soon after the incident one could have looked for at least the medical evidence. In the case on hand, the victim had conceived and delivered a baby. 9. PW1's evidence will show that she used to go as a helper along with the accused who is a mason by profession. According to her, on some day nine months prior to the date Crl. Appeal No.1414 of 2007 -8- of first information statement while they were going for a work she was dragged by one Ramachandran to a plantain garden near the house of one Padmanabhan Nair and raped. Going by Ext.P1 First Information Statement, it is seen that subsequently they had frequent physical contacts. There is no mention in Ext.P1 that subsequent physical contact was as a result of blackmailing or as a result of intimidation or threat meted out by the accused. True at the time of evidence she developed such a history. But that can be taken only with a pinch of salt. She stated that there was only one act committed by the accused, but at a later stage she deviated from her version and pleaded that on subsequent occasions also there has been physical contact. According to PW1, she did not reveal the incident to anybody because the accused had promised to marry her. In chief examination nowhere PW1 says that she had offered any resistance. In fact it would appear that she was under the bona fide belief that she and the child will be taken care of by the accused. Crl. Appeal No.1414 of 2007 -9- 10. The evidence of PW1 shows that she had revealed this fact for the first time to her mother about one month prior to the date of the laying of complaint. She had informed her father also. It is also difficult to believe how the parents missed to notice the pregnancy of PW1. Here one has to notice that PW1 was aged 18 years at the relevant time. 11. There is nothing to show that in the evidence of PW1 or in Ext.P1 that the non-disclosure of the incident was due to the threat brought out by the accused or she was put under mortal fear on disclosing the incident. 12. In this context it will be useful to refer to the decision of the Apex Court relied on by the learned counsel for the appellant reported in Vijayan v. State of Kerala (2008(14) SCC 763) wherein in para 5 it is held as follows:- “The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subject to rape by the appellant-accused. No complaint or grievance was made either to the police or the Crl. Appeal No.1414 of 2007 -10- parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.” 13. A cursory look at the evidence of PW2 would show that the reason for lodging the complaint was that the Crl. Appeal No.1414 of 2007 -11- accused has not been maintaining the child. One must at once remember that the complaint has been laid long after the incident. It will be difficult for the accused to shape his defence or to establish that it was with consent. Medical evidence is of no help in such cases. 14. On an analysis of the evidence it is difficult to come to a conclusion that the evidence of PW1 is of such high standard that it inspires absolute confidence in the minds of the court. True one has to pity the state of affairs in which PW1 is placed. It is difficult to concur with the reasons given by the court below to accept the evidence of PW1. It could not be said that the evidence of PW1 is so credit worthy that the court need not look for any corroboration. Her evidence does not come in the category of wholly reliable witness. Under these circumstances, it will be hazardous to venture on a finding solely on the basis of the evidence of PW1. 15. In the result, the appeal is allowed. Impugned conviction and sentence are set aside. The accused is found not guilty of offence punishable under section 376 IPC Crl. Appeal No.1414 of 2007 -12- also. He is acquitted of the said offence. If he has already paid fine amount, the above amount shall be refunded to him. His bail bond is cancelled and he is set at liberty. Sd/P. BHAVADASAN JUDGE kns/- //TRUE COPY// P.A. TO JUDGE