Aruchami and Velathal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 22ND DAY OF JULY 2013/31ST ASHADHA, 1935** **CRL.A.No. 1649 of 2008 ( )** **--------------------------(JUDGMENT IN SC 775/2005 OF ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC)-II, PALAKKAD DATED 26-07-2008)** **APPELLANTS/ACCUSED 1 AND 2:** **--------------------------** **1. ARUCHAMI, S/O.KANTHASWAMI KOUNDER, CHERUNALIPIRIVU, (11/169), MAMANA AGALI VILLAGE, MANNARKKAD TALUK.** **2. VELATHAL, W/O.ARUCHAMI, CHERUNALIPIRIVU, MAMANA, AGALI VILLAGE MANNARKKAD TALUK.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** **RESPONDENT/STATE:** - **-----------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SCL.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1649 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of July, 2013 ## **J U D G M E N T** The accused, a couple, were prosecuted for the offences punishable under Sections 344, 109, 324 and 376 read with Section 34 of the Indian Penal Code. The accused were acquitted for the offence under Section 344 of IPC and A2 was acquitted for the offence punishable under Section 324 of IPC also. The first accused was found guilty of the offence punishable under Section 376 of IPC and he was convicted and sentenced to undergo simple imprisonment for seven years and to pay a fine of ` 10,000/- in default of payment of which he had to suffer simple imprisonment for three more months. He was also convicted and sentenced to undergo simple imprisonment for a period of three months for the offence under Section 324 of IPC. A2 was convicted and sentenced to undergo simple imprisonment for a period of seven years for the offence under Section 109 ## **Crl.A. No.1649/2008** **-2-** read with 376 of IPC and pay a fine of ` 5000/-, in default of payment of which he had to suffer simple imprisonment for one more month. Sentences were directed to run concurrently. Set off as per law was allowed. 2. PW11 is the victim in this case. Her father had died when she was young and her mother re-married and left her. She was at the mercy of the paternal grandparents who as per the allegation were ill-treating her and which became so intolerable that she had to leave the house. While so, she wandered into the house of the accused persons for having a glass of water and when they enquired about her, she told them what had transpired. They then offered her housing in their house and also gave her the impression that she will be looked after and taken care of as if she was their own daughter. The couple, it may be noticed, had no children. As per the allegation, initially, things went well and she had pleasant life in the house. According to the prosecution allegation, on 28.06.2003, in ## **Crl.A. No.1649/2008** **-3-** the night at about 11.00 pm., it is stated that the first accused committed rape on the victim. The next day, when she conveyed the news to A2, she remained passive. The act was repeated on 30.06.2003. It is alleged that it was while A2 was sleeping nearby, that the incident had occurred. Further allegation is that the victim was almost under house arrest and she never could venture to go alone outside the house. On 10.07.2003, it is stated that as the lady had gone for a meeting and the first accused had gone for something else outside, PW11 the victim says that she managed to sneak out and convey the news to PW1. PW1 is said to have contacted the Police, who arrived at the residence of the couple and took the statement of PW1 which is Ext.P6. PW12 had recorded Ext.P6 and on that basis, he registered crime as per Ext.P6(a), FIR. PW13 took over investigation. PW11 was sent for medical examination and she was examined by PW9 who issued Ext.P4, certificate. PW13 prepared scene mahazars, seized the ## **Crl.A. No.1649/2008** **-4-** property during investigation, recorded statement of witnesses, had the material collected during investigation sent for forensic examination, completed investigation and laid charge before the court. 3. The court before which the final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Palakkad under Section 209 of Cr.P.C. The said court made over the case to Additional Sessions Court (Fast track-II), Palakkad for trial and disposal. 4. The latter court on receipt of records and appearance of the accused, framed charges for the offences already made mention of to which the accused pleaded not guilty and claimed to be tried. The prosecution therefore had examined PWs 1 to 13 and had Exts. P1 to P12 marked. MOs 1 to 3 were got identified and marked. 5. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They ## **Crl.A. No.1649/2008** **-5-** denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. In addition to the said stand, they also stated that it was PW1 who is instrumental in falsely implicating them. According to the couple, on three occasions, they had informed the Excise about the illicit arrack being manufactured by the son of PW1 and the Excise party had raided the house. In order to wreak vengeance, PW11 was utilized to foist a false case on them. Finding that the accused could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence. 6. The court below, presumably impressed by the evidence of PW11, PW1, PW9 and Ext.P4, came to the conclusion that the offence under Section 376 has been made out as against the first accused and also Section 324 and as against the second accused, offence under Section 109 read with 376 of IPC was made out and conviction and **-6-** ## **Crl.A. No.1649/2008** sentence as already mentioned followed. 7. The learned counsel appearing for the appellant contended that the court below has not appreciated the evidence in proper perspective and that has resulted in a wrong conviction being passed. It was pointed out that by no stretch of imagination, PW11 could be stated to be a witness of truth and her testimony is open to serious doubt. It was contended that normally, it is true that the evidence of prosecutrix in such cases is entitled to considerable weight as she is equated to an injured witness. But relying on the decision reported in **Rajoo & Ors.** v. **State of M.P.** [AIR 2009 SC 858] it was contended that it was not as if the law that whatever is stated by the prosecutrix should be taken as gospel truth. The inherent improbabilities in her version, her version contradicted by other items of evidence should put the court on guard and then in such cases, the court should look for corroborative items of evidence before entering a conviction. If that principle is applied to the facts **Crl.A. No.1649/2008** **-7-** of the case, it can be found that the evidence of PW11 is open to serious doubt and that her evidence does not receive corroboration from any other quarter. All most all the statements of PW11 stand contradicted by the evidence of other witnesses and it will be extremely hazardous to venture a finding on the basis of her solitary evidence regarding the incident. Even though PW1 denies the trade of illicit liquor by his son, PW6, the son of PW1 almost admits that there were occasions and there were raids by the Police. It is pointed out by the learned counsel for the appellant that the character of PW11 is such that she does not stick on to any place and is wandering and she is not of a good character. Her version that she was not visited by PW4, her grandfather is belied by the version by PW4 and she, as already noticed according to the learned counsel, does not stick on to her case even as disclosed in Ext.P6, First Information Statement. In cases where the prosecutrix deviates a lot from the First Information Statement and ## **Crl.A. No.1649/2008** **-8-** there is no other corroborative items of evidence, the conviction may not be justified for which the learned counsel relied on the decision reported in **State of Andhra Pradesh** v. **Lankapalli Venkateswarlu** [AIR 2000 SC 3555]. 8. At any rate, according to the learned counsel, the role played by A2 is open to serious doubt and the court below was not justified in mechanically accepting the evidence without scrutinizing the same and arriving at a conclusion that the role attributed to A2 has actually been established. In short, conviction and sentence cannot stand. 9. The learned Public Prosecutor on the other hand pointed out that there is no justifiable reason as to why PW11 should be disbelieved. The learned Public Prosecutor stated that there are inconsistencies and contradictions in the evidence of PW11 and there is also a slight deviations at the time of evidence on what is stated in Ext.P6, First Information Statement. But those are natural and normal ## **Crl.A. No.1649/2008** **-9-** variations and deviations, considering the age of the victim and also the passage of the time. As regards the core issues, there is a consistent version even though there may be reversal of the incident at the time of giving evidence. The learned Public Prosecutor pointed out that on reading the evidence of PW11 as a whole, one can see a ring of truth in her evidence and there is no reason as to why she should falsely implicate the couple especially when she got a safe shelter in their house. The learned Public Prosecutor pointed out that it is almost clear from the evidence of PW4, the paternal grandfather that she had been almost abandoned by them and she had no where else to go. It is under those circumstances, she happened to take shelter in the house of the accused persons and normally under such conditions, it is inconceivable that PW11 would come out with a false story to implicate the couple. An attempt on the side of the defence according to the learned Public Prosecutor was to show that PW11 was only a tool in the hands of PW1 and ## **Crl.A. No.1649/2008** **-10-** they were trying to wreak vengeance against the acts of the accused persons in having caused raid in the house of PW1 regarding the illicit trade of arrack conducted by PW6. Except for vague suggestion, there is nothing to show that the above claim is true. It is pointed out by the learned Public Prosecutor that PW11, a hapless and helpless victim who was given shelter would not normally venture to speak falsehood against A1 and A2. May be there are some exaggerations and embellishments. But the fact remains that she has been ravished and the evidence in that effect is furnished by PW9 and Ext.P4. The learned Public Prosecutor did concede that the entries in Ext.P4 may not be quite satisfactory. But that is compensated according to the learned Public Prosecutor, by the evidence furnished by PW9 who speaks as to why she is of the opinion that there was penetration. There is no challenge regarding those aspects spoken to by PW9 and the claim made by the defence that there is no corroboration for the evidence of PW11 cannot be ## **Crl.A. No.1649/2008** **-11-** accepted. At any rate, according to the learned Public Prosecutor, the court below has appreciated the evidence and found the evidence of PW11 is convincing enough and corroborated by the medical evidence, there is no reason for this Court to take a different view especially, when it is not shown that the findings are perverse or contrary to the evidence on record. 10. As usual, regarding the sexual assault, we have the solitary evidence of PW11. The parameters of appreciation of the evidence of a prosecutrix are well settled. A prosecutrix is not treated as an accomplice but is in the position of an injured witness and her evidence is entitled to considerable weight. Considering the humiliation, stigma etc that attached to the victim, it is very difficult normally to believe that a lady would come forward with a false accusation of rape. Unless there are inherent improbabilities in the evidence of the prosecutrix or her evidence stands contradicted by other items of evidence **-12-** ## **Crl.A. No.1649/2008** adduced by the prosecution and which make her evidence extremely vulnerable, it may not be possible for the court to reject the evidence of the prosecutrix solely on the ground that there is no corroboration for her evidence. Even otherwise corroboration is only a rule of prudence and not a rule of law. If the evidence of PW11, the victim inspires confidence in the mind of court, the court need not look for corroboration. One should remember that rape is not committed on invitation or in public and it is seldom one gets other direct evidence regarding the crime. The secrecy under which the offence is committed makes it difficult to secure other items of evidence except possible the medical evidence. However, as rightly pointed out by the learned counsel appearing for the appellant, the evidence of prosecutrix is not to be taken as gospel truth. It has to be weighed and analyzed for in most of the cases of rape, conviction or acquittal is based on the creditworthiness of the evidence of prosecutrix alone. The court has necessarily ## **Crl.A. No.1649/2008** **-13-** to be cautious and careful in analyzing the evidence of the victim. 11. Bearing the above principle in mind, an attempt shall now be made to see whether the evidence of PW11 inspires confidence in the mind of court. She, unfortunately at an young age, lost her father and her mother did not loose time for re-marrying and forsake the little child. She grew up with her grandparents where her life was far from pleasant and was in fact, extremely bitter. That, ultimately, going by the evidence of PW11, made her to run away from the house. She had no particular idea of going any where but she walked into the house of the couple who are before this Court as accused. Unfortunately or fortunately for PW11, the couple had no children. They according to PW11, enquired about her and finding that she had no one to help her, offered her shelter and care. No wonder, PW11 readily accepted the offer. Even going by the evidence of PW11, it can be seen that all went well for initial few days. But on **-14-** ## **Crl.A. No.1649/2008** 28.06.2003, what was quite unexpected happened to PW11. On that day, she, at the time of giving First Information Statement, would say that in the night, she was ravished. She, at the time of giving First Information Statement namely Ext.P6, also says that she was ravished on 30.06.2003. At the time of evidence, it is true that she would say that at the first instance, all that was done was to only remove her clothes and there was no sexual assault. That being confined to the second occasion. It is also true that in Ext.P6, she would say that on the first day when she informed the second accused, she did not react and on the second day, she abetted the commission of the offence. At the time of evidence, PW11 says that even though the first incident in which there was no sexual assault as such was conveyed to the second accused and though she remained passive, on the second day, when the incident occurred and she went to complain, she found A2 highly intoxicated and not in possession of her faculties. ## **Crl.A. No.1649/2008** **-15-** 12. Of course, PW11 then goes on to say that she was almost under house arrest and she was never allowed to go out of the house. In fact, she goes to the extent of saying that whenever the accused leave the house, she used to be locked up in a room. PW11 finally says that on a day, that is on 10.07.2003, she managed to sneak out of the house in the absence of the accused and managed to get in touch with PW1. 13. PW1 would say that on 10.07.2003, while she was sitting outside the house along with PW3, she happened to see that PW11 calling them. She sent PW3 to enquire what it was about and PW1 would say that PW3 returned and said that PW11 was calling PW1. These aspects spoken to by PW1 gets corroboration at the hands of the PW3 also. It is then that PW1 is stated to have gone near PW11 who conveyed the story of harassment at the hands of the accused persons. She at the time of evidence disowned that PW11 had told that she was sexually exploited. But confined ## **Crl.A. No.1649/2008** **-16-** her statement to say that she was sexually harassed. But the fact remains that PW11 got in touch with PW1 and it is confirmed by PW1. 14. It is here one has to notice that even though the learned counsel appearing for the appellant pointed out several inconsistencies and contradictions in the evidence of PW1 when compared with Ext.P6, unfortunately these contradictions and inconsistencies are not brought to the notice of PW11 and therefore they remain as such. It is well settled by now that Ext.P6 is a statement under Section 154 can be used to corroborate or contradict the author of the document. There was no attempt from the side of the accused persons to contradict PW11 with the statements contained in Ext.P6, which is an earlier statement given by her. It is in view of this fact that so called contradictions and inconsistencies in the evidence of PW11 will have to be considered. ## **Crl.A. No.1649/2008** **-17-** 15. Apart from the fact that the incident spoken to by PW11 is not pleasant one, one has also to remember that she was giving evidence after a long time and it will be therefore imprudent on the part of court to expect mathematical precision in the evidence of PW11. Inconsistencies, contradictions, embellishments, developments, exaggerations are bound to occur. But the court is to see whether they affect the core of the prosecution case or whether there was any deliberate attempt on the part of the victim to inflate the incident so as to give a false indication of what had transpired. Normal embellishments and developments which, one should remember, arise out of the moral indignation of the victim cannot be taken as a ground to disbelieve the victim. 16. As rightly pointed out by the learned Public prosecutor to presume that PW1 falsely implicated the couple is difficult to believe. The evidence shows that PW11 had to leave her paternal grandparents' house due to ill- ## **Crl.A. No.1649/2008** **-18-** treatment and she had no where to go. It was under those circumstances that the couple had offered her shelter. She had no choice but to accept the same. If that be so, it does not stand the reason to believe that she would immediately turn around and falsely accuse the very persons who gave her shelter and food as having committed the sexual assault on her and abetted the same. 17. The suggestion to PW1 , PW11 and PW6 to the effect that PW11 was a tool in the hands of PW1 is not established. Of course, there is inconsistency regarding the police raid as is seen from the evidence of PWs 1 and 6. But it is too difficult to believe that PW11 was implanted by PW1 so as to wreak vengeance. If that be so, the tenure of the evidence given by PW1 would have been entirely different and would not have been in the manner as she has now stated. 18. The evidence of PW9, the doctor who issued Ext.P4 cannot be ignored. May be Ext.P4 is not in statutory ## **Crl.A. No.1649/2008** **-19-** form but PW9 has categorically stated based on her findings mentioned in Ext.P4 that there was clear evidence of partial vaginal penetration. Inexperience admitted by PW9 is stated to be cause for an incomplete certificate. However, her competency was not challenged. She has stated that the vagina was found patulous and that indicates partial penetration. 19. The contention that PW11's evidence stands in isolation is not correct. The medical evidence supports her claim. 20. Normally, when there is significant deviations from the First Information Statement, the court is bound to be cautious. But as already noticed, the accused had to bring those contradictions and inconsistencies to the notice of the witness and her explanation sought for. That has not been done in the instant case. The witness had no opportunity as to why she had given a statement earlier which may look inconsistent to the one given in the court. Without putting **-20-** ## **Crl.A. No.1649/2008** those so called contradictions and inconsistencies to the witness, it cannot be contended that they should be given importance and that PW11 should be disbelieved. Viewed from that light, the decision reported in **State of Andhra Pradesh** v. **Lankapalli Venkateswarlu** [AIR 2000 SC 3555] is of no help to the appellant. 21. The learned counsel for the appellant was not successful in pointing out any inherent improbabilities which made the evidence of PW11 open to serious doubt. As already noticed, it is difficult to believe that she would venture to falsely implicate the very person who had given her food and shelter. There is no conceivable reason for the same. As already noticed, the suggestions put forward by the defence that she was implanted by PW1 and her family, cannot accepted. As already stated, normally, a girl would not come out with such a story which brings her no credit but only puts her future in jeopardy, especially, when she is a hapless and helpless girl like PW11. Of course, she does ## **Crl.A. No.1649/2008** **-21-** not appear to stick to one place as is spoken to by PW4. But the evidence of PW4 can be taken only with a pinch of salt. He is the grandfather of the victim. Even though he claims to have met PW11 after she left, that does not appear to be quite correct. Whatever that be, the evidence of PW11 read as a whole does contain a ring of truth which show the involvement of the first accused. 22. Coming to the role played by the second accused, there may be some difficulty in accepting the prosecution case. She, one has to remember, is the wife of the first accused. Her role is spoken with considerable inconsistency by PW11. In one place when she would say that on the first day when the incident had occurred when she had told A2 she remains passive. On the second day, she encouraged A1 to commit the act. In another place, she would say that on the first day when there was no sexual assault, she had only informed the second accused about the attempted act of the first accused and on the second day she was not ## **Crl.A. No.1649/2008** **-22-** present at all. In yet another place, she would say that when the actual sexual assault was committed on her, she went to complain to A2 who was found in drunken and intoxicated state. There is thus, total inconsistency regarding the part played by A2. It is difficult to accept the prosecution case that she had abetted the act committed by the first accused. She might have remained passive but that is far from different and saying that she had instigated or aided the first accused in committing the act. At the risk of repetition, one has to remember that she is a dutiful wife of the first accused. Even assuming that she did not actively oppose or did not, after coming to know about the incident make it an issue cannot be taken as a ground to impute to her offence of abetment. To fasten liability on the ground of abetment, there has to be more strict evidence. 23. Thus, while it could be said that alleged acts of the first accused of having ravished the victim that is PW11 are clearly established with the aid of medical evidence, it ## **Crl.A. No.1649/2008** **-23-** cannot be said that the allegation of abetment as far as the second accused is concerned, is proved beyond reasonable doubt. 24. It is spoken to by PW11 that she was beaten with a belt by the first accused and that she would say that there were visible marks on her body. Of course, since she was examined quite a few days after the so called beating by PW9, it might not be possible to find any signs of such violation. It is significant to notice that except for the solitary instance of physical assault, there is no other instance spoken to by PW11 regarding any physical assault committed by the first accused except those sexual assault by him. There is no convincing evidence to come to a conclusion that the offence under Section 324 is made out as against the first accused. 25. Thus, while confirming the findings of the court below that the first accused has committed forced sexual assault on PW11, the victim, this Court is unable to accept **-24-** ## **Crl.A. No.1649/2008** the findings that the offence under Section 324 of IPC has been committed by the first accused. So also this Court finds it extremely difficult to come to the conclusion that the second accused had abated in the commission of the offence of rape. 26. While confirming the conviction of the first accused for the offence punishable under Section 376 of IPC, his conviction and sentence for the offence under Section 324 is set aside, the conviction and sentence of the second accused for the offence under Section 376 read with Section 109 of IPC is also set aside and she is held not guilty of the offence alleged against her. If she is in custody, she shall be released forthwith otherwise, her bail bond shall stand cancelled. She is set at liberty. If she has paid any fine amount, the same shall be refunded to her. 27. Coming to the question of sentence for the offence under Section 376 as far as the first accused is concerned, passage of time and the age of the first accused have to be **-25-** ## **Crl.A. No.1649/2008** necessarily taken into consideration. The incident is said to have taken place in 2003 when A1 was aged 55 years. Ten years have been elapsed and he must have crossed 65 years. Even though it may not be possible to justify the act committed by the first accused, it is felt that some leniency can be shown with regard to the sentence even though the court below has awarded only a minimum sentence for the offence. However, the Section itself provides that in exceptional circumstances, a lesser sentence could be awarded. Taking the totality of the circumstances in the case, it is felt that sentence of four years rigorous imprisonment will meet the ends of justice. In the result, while confirming the conviction of the first accused for the offence under Section 376 of IPC, sentence awarded by him by the court below is set aside and instead he is sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of ` 25,000/-, in default of payment of which he is to suffer rigorous imprisonment for a ## **Crl.A. No.1649/2008** **-26-** period of six months. If the fine amount is paid, the same shall be paid to PW11 as compensation. Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. To Judge