Babu Viswanath @ Viswanath, S/o Vijayanan v. The Dy. Superintendent of Police, Ambalavayal, Wayanad; The State of Kerala, represented by Public Prosecutor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 11TH DAY OF JUNE 2013/21ST JYAISHTA 1935** ## **CRL.A.No. 169 of 2007 ( )** **-------------------------(AGAINST THE ORDER/JUDGMENT IN SC.NO. 455/2003 OF SESIONS COURT, WAYANAD, KALPETTA, DATED 10-01-2007) ---------------------------** **APPELLANT/ACCUSED :** **------------------------------------------** **BABU VISWANATH @ VISWANATH,S/O.VIJAYAN, KANDAGATH VEEDU, NELLARACHAL, THOMATTUCHAL AMSOM, AMBALAVAYAL.** **BY ADV. SMT.K.V.RESHMI** ## **RESPONDENT(S)/COMPLAINANT/STATE:** **------------------------------------------------------------------** **1. THE DY. SUPERINTENDENT OF POLICE, AMBALAVAYAL, WAYANAD.** **2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** -----------------------------------------Crl.A. No. 169 of 2007 -----------------------------------------Dated this the 11[th] day of June, 2013 ## **J U D G M E N T** The accused who faced trial for the offences punishable under Section 376 and 506(ii) of IPC and Sections 3(1)(v) and 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act was found guilty of the offences punishable under Sections 376 and 506(ii) of IPC. He was acquitted of the charges for the offences under SC/ST (Prevention of Atrocities) Act. He was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a sum of Rs. 25,000/- as compensation to PW1 for the offence under Section 376 of IPC with a default clause of one year imprisonment. He was also sentenced to undergo rigorous imprisonment for six months for the offence under Section 506(ii) of IPC. The substantive sentences were directed to run concurrently and set off as per law was allowed. **Crl.A. No.169/2007** **-2-** 2. PW1 is the victim in this case. Accused is her neighbour. The two families were on cordial terms. PW1, the victim was in the habit of going to the house of the accused for watching T.V. The allegation is that on the date of incident, which is alleged to be 24.03.2002, she had gone to the house of the accused as usual on a Sunday to see the T.V.. At the relevant time, the accused was alone at home. It is stated that while PW1 was watching the T.V., the accused approached her and he expressed his desire for sexual intercourse to which objection was taken to by the victim. It is stated that then the accused threw a towel around her neck and threatened her that she would be let off only after satisfying his desire and when she protested the towel was tightened and she was dragged into the bed room of the sister of the accused where she was brutally ravished. When she tried to cry after the incident, her mouth was closed. According to the prosecution, PW1, the victim was assured by the accused that whatever might **Crl.A. No.169/2007** **-3-** happen, he will marry her. Even after the said incident, she continued to go and watch T.V. in the house of the accused and even as per the prosecution case, subsequently, there were physical contact between the two on several occasions though the victim would say she believed the words of the accused that he would marry her. When the victim developed abdominal pain, she was taken to a doctor who revealed that she was eight month pregnant. Her mother, PW3 asked her about it, then she conveyed the information that it was the accused who had ravished her and who was responsible for her pregnancy. It is claimed that there was talk of marriage between the two families and the family of the accused insisted that if it is proved through DNA test that the child belonged to the accused, he would marry her. Nothing transpired thereafter and so the complaint was laid on 25.11.2002. PW10, the ASI of Police recorded Ext.P1, First Information Statement furnished by PW1 and registered crime as per Ext.P1(a), FIR. Investigation was taken over by ## **Crl.A. No.169/2007** **-4-** PW11. He had the victim sent for medical examination. PW1 was examined by PW5 who issued Ext.P3 certificate. He prepared Ext.P4, scene mahazar, recorded statement of witnesses. His successor in office, PW2 continued the investigation, completed the same 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 Special Court, the said court committed the case to Sessions Court, Wayanad for trial and disposal. The said court, on receipt of records framed charges for the offence punishable under Sections 376 and 506(ii) of IPC and 3(1)(v) and 3(1)(xi) of SC/ST (Prevention of Atrocities) Act. 4. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 12 and Exts. P1 to P8 marked. After the close of the prosecution evidence, the accused was questioned ## **Crl.A. No.169/2007** **-5-** under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out 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 his defence. He chose to adduce no evidence. 5. The court below mainly relying upon the evidence of PW1 which it found to be credit worthy and acceptable held the accused guilty of the two offences made mention of, conviction and sentence followed. The said conviction and sentence are assailed in this appeal. 6. The learned counsel appearing for the appellant assailed the findings of the court below on several grounds. It was pointed out that the court below was not justified in mechanically accepting the evidence of PW1 which is open to serious doubt when viewed in the light of other items of evidence and also in the light of Ext.P1, First Information Statement furnished by PW1 herself. A reading of the ## **Crl.A. No.169/2007** **-6-** evidence of PW1 according to the learned counsel would indicate that there was absolutely no resistance offered when the accused sought for sexual intercourse with her and her evidence would show that the reason for filing the complaint was that she had become pregnant and the accused dodged marrying her. Drawing attention to the evidence of PW1 it was pointed out that a careful reading of the evidence will show that in all probability she was aware that on the relevant day and at the relevant time, the accused would be alone at home and it would appear that their meeting was pre-arranged. The learned counsel also pointed out that there is nothing in the evidence of PW1 to show that at the time when the first act was committed, there was any stiff resistance or objection from her side. Of course, it is stated by PW1 that it was against her consent. But that by itself is insufficient. There is no evidence to show that any resistance as such was offered by PW1. The learned counsel went on to point out that even assuming the **-7-** ## **Crl.A. No.169/2007** claim of PW1 is true, it would appear that the act was done with the consent of the victim. The learned counsel also pointed out that the promise of marriage which is now taken aid of by the prosecution was one made after the incident was over and such a promise cannot be equated to a misconception of fact as laid down in the decision reported in **Babu v. State of Kerala** (2013 (2) KHC 526). The learned counsel then went on to point out that even going by the evidence of PWs 1 to 3, mediators are intervened in this matter and there was a talk of compromise. Strangely enough, according to the learned counsel, none of the mediators is examined and that would show that the claim of the prosecutrix may not be true. Even going by the evidence of PW2, the father of the victim, the stand of the family of the accused was that on conducting the DNA test, if it is proved that the child was that of the accused, the accused would marry her. All that PW2 says is that in the meeting, abruptly, father of the accused left the place. **Crl.A. No.169/2007** **-8-** There is nothing to show that there was any refusal on the part of the family of the accused to conduct the DNA test or there was nothing which prevented the victim from resorting to that method. Finally, emphasis was laid on the statement made by PW1 that had she not become pregnant, she would not have filed the complaint at all. This according to the learned counsel, is sufficient to show that all the acts of physical contact were with the full consent of the victim. These aspects have been omitted to be noticed by the court below and the court below was carried away by the misplaced sympathy to the fact that PW1 is an unwed mother which in the facts and circumstances of the case, is not justified. Accordingly, it is contended that the conviction and sentence cannot stand. 7. The learned Public Prosecutor on the other hand very vehemently contended that the court below which had the occasion to watch the demeanor of the witnesses, has chosen to accept the evidence of PWs 1 to 3, namely the ## **Crl.A. No.169/2007** **-9-** victim and her parents and had come to the conclusion that the incident which took place in March, 2002 was against the consent and will of the victim and that amounted to rape. May be that, subsequently, there was consensual sex between the victim and the accused. But, according to the learned Public Prosecutor, the evidence would indicate that, that was on the basis of the promise made by the accused that he would marry her and in all probability, the victim must have believed those words of the accused. She never could dream that he would betray her. Therefore, it is contended that the subsequent physical contacts between the victim and the accused cannot be projected back and to hold that the first incident was with the consent of the victim. The evidence of PWs 1 to 3 would show that the incident took place while PW1 had gone to watch T.V. in the house of the accused. PW1's evidence thus shows that she did not give consent for the act and she was taken to the room and ravished. There is no reason to disbelieve PW1 in **Crl.A. No.169/2007** **-10-** this regard and she says that it was without her consent that she was sexually assaulted. It is contended that normally, a woman would not take upon herself such a humiliating act and that there was relationship between the accused and the victim is evident from the materials on record. According to the learned Public Prosecutor, the view taken by the court below based on the evidence of PWs 1 to 3, is a possible one and if that be so, the mere fact that a different view might be possible on the basis of evidence and not a ground to interfere with the appellate jurisdiction. The learned Public Prosecutor therefore contended that the conviction and sentence have to stand. 8. As is the usual case, here too, as regards the incident, we have solitary evidence of PW1. The evidence discloses that or in other words, the prosecution case itself is that there was subsequent physical contact between the accused and the victim. The prosecution would say that it was on the basis of the belief of the victim of the promise ## **Crl.A. No.169/2007** **-11-** made by the accused that he would marry her which stood betrayed at the later point of time. It is not much in dispute that the victim had conceived and delivered a child. The evidence of PWs 1 to 3 namely the victim and her parents is to the effect that when it was disclosed that PW1 was pregnant, the matter was talked over between the families and the family of the accused stated that if on conducting the DNA test, it is proved that the child is that of the accused, the accused would marry her. This was not subsequently followed up by the family of the accused, so is the prosecution case. 9. If, as a matter of fact, this Court is unable to come to the conclusion that the first incident took place in March 2002 is with the consent of the victim or in other words there was tacit consent by the victim, then the mere fact that there was a subsequent promise of marriage they had sexual intercourse on several occasions which as a result, PW1 conceived may not amount to a misconception of fact ## **Crl.A. No.169/2007** **-12-** so as to bring it within the ambit of Section 90 of the Indian Evidence Act. In the decision relied on by the learned counsel for the appellant in **Babu v. State of Kerala** (2013 (2) KHC 526), this aspect has been elaborately conceded. It has been held that mere promise of marriage cannot amount to a misconception of fact. But if on the other hand, at the very inception itself, the accused knew that the promise that was being made was a false one and that he had no intention to marry the victim and still he had induced the victim to have sexual intercourse with him making her believe that he would marry her and then he retracted from the said promise that would amount to a misconception of fact and that act would amount to rape. 10. When the evidence of PW1 is looked into, it is found that there is considerable departure from what is stated in Ext.P1, the first Information Statement. The act of throwing the towel around the neck, tightening the same later and dragging her into the bed room of the sister are **-13-** ## **Crl.A. No.169/2007** given a go-bye at the time of evidence. There is no whisper about these aspects at the time of evidence given by PW1 in court. It would appear that the resistance which was sought to be indicated in Ext.P1, FIS is given a go-bye at the time of evidence. At the time of evidence, PW1 confined herself by stating that she was taken forcibly by the accused and it was done without her consent. There is no whisper in the chief examination of her having offered any stiff resistance to the act committed by the accused. PW1's evidence shows that usually on Sundays, when she goes for seeing T.V., her sister accompanies her. There is nothing in the evidence of PW1 to show that on the day on which the incident took place which is admittedly a Sunday and as admitted by the prosecution itself, PW1 had gone to see the T.V. where was the sister of PW1 and why she had not accompany her? It could also be discerned from the PW1 that normally quite a few children of the locality gather at the house of the accused on Sundays at the relevant time to watch T.V. ## **Crl.A. No.169/2007** **-14-** However, PW1 says that on the date of which the incident took place, she was alone at the home of the accused. 11. Above claim of PW1 is difficult to swallow. It is here that the contention of the defence that the meeting of the accused and the victim on the alleged date at the relevant time was pre-arranged, needs consideration. Of course, PW3, mother of the victim had denied knowledge about the other children of the locality going to see T.V. in the house of the accused. But the evidence of PW1 is clear in this respect. No explanation is offered as to why no other children had gathered at the place on the relevant day. As already noticed, the resistance offered made mention of in Ext.P1 is given a total go-bye at the time of evidence by PW1. It is also significant to notice that when she cried after the incident, she was pacified by saying that the accused would marry her. What is important is that the offer of marriage is after the incident is over. PW1 would say that she believed the accused and thereafter she voluntarily ## **Crl.A. No.169/2007** **-15-** went to his house on several occasions and had physical contact. 12. The evidence of PW2 and PW3 are to the effect that on complaint of abdominal pain when PW1 was taken to the hospital, doctor revealed that she was 8 months pregnant. Then alone they realized that their daughter had conceived. It is difficult to believe the testimony of PWs 2 and 3. It is difficult to accept that they could not detect the pregnancy of PW1 earlier. At least the mother would have noticed in the normal course and she offers no explanation as to why she omitted to notice the same. Whatever that be, it is difficult to believe that only on going to the doctor, they could understand that their daughter was pregnant. 13. On coming to know about the pregnancy of PW1, the uniform evidence of PWs 1 to 3 is that the matter was talked over to the family of the accused who promised that if on conducting the DNA test, the child is found to be that of the accused, the accused would marry the victim. These ## **Crl.A. No.169/2007** **-16-** witnesses speak about the intervention of the mediators in the matter also. Strangely enough, none of the mediators is examined by the prosecution to suit the case. Assuming for the arguments sake, there was a mediation talk and there was an indication from the side of the family of the accused that on conducting of DNA test, if it is proved that the accused was the father, he would marry the victim, there is nothing to show that as to why DNA test could not be conducted. Of course, this Court is not forgetting the fact that PW2 is stated in his evidence that at the meeting when they expressed their willingness to undergo DNA test, the father of the accused walked away from the meeting. There is nothing to show that there was any follow up action on the part of the victim or members of her family to persuade or to pursue the undertaking given by the family of the accused. 14. Though it is usually said that the evidence of witnesses has to be read as a whole and sentence should not be picked out of context and given undue importance, ## **Crl.A. No.169/2007** **-17-** one cannot omit to note the statement of PW1, the victim to the effect that had she not conceived, she would not have any complaint. 15. The deviation from the First Information Statement and the inherent improbability and also the failure on the part of the prosecution to examine so called mediators cast doubt about the version given by the prosecution. It is true that it is well settled that if the evidence of prosecutrix is found to be convincing, cogent and credit worthy, it can be accepted and the court then need not look for corroboration. But in those cases, the evidence so adduced by the prosecutrix must be of a high standard and must be capable of inspiring confidence in the mind of court. If on the other hand, viewed in the light of other materials or inherent probabilities, the evidence of the prosecutrix found wanting. Then the court has to necessarily look for corroboration. One has to remember that it is more so in a case where complaint of rape is made after several months of the **-18-** ## **Crl.A. No.169/2007** incident normally in such cases the accused would be left defenseless. 16. Applying the above test, when we closely scrutinize the evidence of PW1, it is difficult to say that it passes the above test. This court is unable to concur with the findings of the court below that the evidence of PWs 1 to 3 is sufficient to show that the incident which is alleged to have taken place on 24.03.2002 was without the consent of the victim and it was a forced sexual intercourse. 17. It would appear that if there is a doubt regarding the nature of the act committed on 24.03.2002 that is, with reference to the consent then even assuming that subsequently there was a promise of marriage, it does not include the case of the prosecution at all. A subsequent promise of marriage and thereafter subsequent physical contact cannot amount to misconception of fact as per the decision already referred. If there is no evidence in this case at all to show that the victim was lured to have sex with the ## **Crl.A. No.169/2007** **-19-** accused on being promised of a marriage by the accused and she having been lured into the act by the accused and the accused later betrayed her. In the result, this appeal is allowed. Conviction and sentence passed by the court below are set aside. It is held that the prosecution has not succeeded in establishing the case against the accused beyond reasonable doubt. The accused is not guilty of the offences under Section 376 and 506(ii) of IPC. His bail bond shall stand cancelled and he is set at liberty. Sd/- **P.BHAVADASAN JUDGE** ds // True Copy // P.A. To Judge