C.K. Mohandas v. State of Kerala and Smt. Shainy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 **CRL.A.No. 158 of 2007** (SC.26/2002 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA) .................... APPELLANT: -------------- C.K.MOHANDAS, CONVICT NO. 3914 CENTRAL JAIL, KANNUR BY ADV. G.G.MANOJ[STATE BRIEF] RESPONDENTS/Addl.Respondent/Defacto complainant: ------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. 2. SMT.SHAINY, D/O.LUIOUS, MAKKOLIL VEEDU, EDAVAKA AMSAM, KALLADI VILLAGE, MANANTHAVADI TALUK. R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No. 158 of 2007 --------------------------------------------Dated this the 18[th] day of September, 2008** ## **J U D G M E N T** The sole accused in Sessions Case No.26 of 2002 challenges the judgment dated 19.9.2006 of the Court of the Additional Sessions Judge (ADHOC)-II, Kalpetta by which the appellant was convicted under Sections 341, 448, 376 and 493 of the Indian Penal Code and sentenced thereon. 2. Initially, Ext.P1 private complaint was filed before the Judicial First Class Magistrate Court-II, Mananthavadi with the allegation that the appellant trespassed into the house of complainant and committed rape on her and by order dated 2.1.2001, the said court committed the case to the Sessions Court wherein it is refiled as S.C.No.26 of 2002 and thereafter made over to the Assistant Sessions Court, Sulthan Bathery on 18.1.2002 for disposal from where the case was transferred to the trial court. During the course of trial, Pws.1 to 4 were examined and documentary evidence such ## **CRL.A. NO.158 OF 2007** ## **:-2-:** as Exts.P1 to P3 were produced and marked on the side of the prosecution. On the side of the defence, one witness was examined as DW-1 and Ext.D1 was marked as documentary evidence. The trial court formulated four issues for its consideration on the basis of the rival contentions and also the materials available on record. Finally, as per the impugned judgment, the trial court found that the accused was guilty of the offences punishable under Sections 376, 341, 448 and 493 of the I.P.C. and he was convicted, accordingly. After hearing the accused on sentence, the accused was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- under Section 376 I.P.C. He was also directed to undergo imprisonment for one month under Section 448 I.P.C. and for six months under Section 493 I.P.C. No separate sentence was awarded under Section 341 I.P.C. It was also ordered that if fine amount was realised, Rs.20,000/- out of it has to be paid to the complainant. The default sentence was fixed as rigorous imprisonment for six months. ## **CRL.A. NO.158 OF 2007** ## **:-3-:** Challenging the above conviction and sentence, the accused, who is undergoing imprisonment, has preferred this appeal from the jail. 3. I have heard learned counsel for the appellant who is appointed as State Brief and also the learned Public Prosecutor. 4. I have carefully considered the contentions advanced by counsel for the appellant and also the learned Public Prosecutor and also perused the evidence and other materials on record. The learned counsel for the appellant submits that he is falsely implicated in the case and the court is not justified in convicting the appellant since there is long delay in filing the complaint itself. It is also submitted by the learned counsel that there is no independent evidence to corroborate the evidence of the interested version given by Pws.1 to 4. The learned counsel pointed out that PW1 is the victim who preferred Ext.P1 complaint. Pws.2 and 4 are respectively the mother and uncle of PW1. So, their testimony cannot be accepted as the same is tainted as **CRL.A. NO.158 OF 2007** ## **:-4-:** interested one. It is also the case of counsel that PW3 who appeared as a mediator is interested in convicting the appellant since PW3 as well as the father of the victim are belonging to one and same political group. According to counsel, except six interested witnesses, there is no independent witness at all to substantiate the case of the complainant. During the course of trial, on behalf of defence, DW1 was cited and examined and Ext.D1 report was marked. On the basis of the above evidence and the materials, it is the case of counsel for the appellant that the version given by PW1 and the other witnesses and the entire case of the complainant are false and the date mentioned in the complaint regarding the date of sexual intercourse and the consequent pregnancy are not tallying with the evidence advanced by the defence. 5. Per contra, the learned Public Prosecutor submits that the accused committed rape on PW1 - the victim, firstly on 28.4.1996 and thereafter, when the matter was settled amicably with the interference of the ## **CRL.A. NO.158 OF 2007** ## **:-5-:** local mediators and through such mediation, the accused had agreed to marry the victim and on the basis of that agreement, the victim was taken to the nearby temple where the accused put a garland on the victim and accordingly, the victim was under the impression that the accused had married her and on such impression, she gave consent for the accused to have sexual intercourse and then again on 1.5.1996, the accused had sexual intercourse with the victim, but subsequently, he had gone back from the verbal agreement arrived on through the mediation and thus, the accused had committed offences as alleged in the complaint. It is also the case of the Public Prosecutor that though the first rape was committed on 28.4.1996, the parents of the victim, considering the age of PW1, were prepared to have a settlement with the accused and therefore, they did not inform the matter to the Police. It is also the case of the Public Prosecutor that as the accused had given an impression that he had married the victim in pursuance of the verbal agreement ## **CRL.A. NO.158 OF 2007** ## **:-6-:** arrived through the mediation, no complaint was lodged during that period. But, the victim as well as her relatives came to know the fraud played by the accused only when PW4 produced the letter written and handed over by the accused and then only, PW1 preferred Ext.P1 complaint before the court of law. So, according to the learned Public Prosecutor, there is no delay, considering the facts and circumstances involved in the case and the filing of the complaint was prolonged only for the reason stated above. According to the Public Prosecutor, the trial court, after appreciation of the evidence of the court, correctly found that the accused is guilty of the charges levelled against him and no interference of this Court is warranted in appeal. 6. I have carefully considered the contentions advanced by the counsel for the appellant as well as the Public Prosecutor and also perused the evidence and materials available on record. The specific case of PW1 as disclosed by Ext.P1 complaint and through her deposition is that the victim and the appellant/accused ## **CRL.A. NO.158 OF 2007** ## **:-7-:** are neighbours and residing in the neighbouring houses. On 28.4.1996, when the parents of PW1 have gone to the property that was taken by her father on lease and when her brother and sister had gone to the church at 11'O' clock in the morning, the accused came into the house through the kitchen side and at that time, the victim alone was in the house. It is the further case of PW1 victim that after ascertaining the fact that except the victim, no others are in the house, he caught hold of her and when she tried to cry, the accused covered her mouth with hand and pushed her down and had forceful sexual intercourse with her. It is also the case of the complainant/victim that the accused told her not to disclose the same to anybody. But, according to PW1, by noon her parents came back and on seeing her weeping, her mother enquired about the reason for the same and she revealed the incident to her mother, PW2 who later passed the information to her husband, the father of the victim. Thereafter, at the instance of the father of the victim, a mediation was arranged on 21.5.1996 and PW3 ## **CRL.A. NO.158 OF 2007** ## **:-8-:** is the local mediator. It is also the case of PW1 that in the mediation, the father of the accused agreed to conduct a register marriage between PW1 and the accused. PW1 further deposed that the accused took her and her mother to a temple viz., Thazhuthal Bhagavathy Temple which is near to her house and the accused garlanded her with a chain which appears to be a gold ornament. It is also the case of the victim that the accused told her that there is no need of having a register marriage as the ceremony in front of the temple is sufficient for a marriage. It is also the case of PW1 that on 1.5.1996, the accused again reached in her house when nobody was in her house and he had intercourse with her. The victim is specific that at this time, the accused made her to believe that she became his wife and there is no wrong in such intercourse. It is the further case of the victim that after the second incident, the accused was not seen, but he entrusted a letter with the uncle of PW1 viz., PW4. According to the said letter, the accused was not willing to have life with ## **CRL.A. NO.158 OF 2007** ## **:-9-:** her and he was leaving the place. Though PW1 was cross-examined extensively, nothing was to discredit her evidence. The other witnesses viz., Pws.2,3 and 4 also deposed in terms of the version given by PW1. 7. It is to be remembered that this is not a case based upon the Police report, but on the basis of the complaint filed by a victim who was subjected to forcible sexual intercourse and as such, no court is expected to have elaborate materials and evidence like of a case instituted upon a police report. On going by the evidence adduced by the witnesses from the side of the complainant, it can be seen that the allegation against the accused has been established beyond reasonable doubt. In this juncture, it is relevant to note that Pws.1 to 4 have given consistent version regarding the entire incident and also the subsequent development after the incident. Going by those evidences, it can be seen that the accused as well as his relatives co-operated with the mediation that took place in the presence of PW3 and thus it is brought on evidence that the accused had ## **CRL.A. NO.158 OF 2007** ## **:-10-:** agreed to marry the victim PW1. On the basis of that verbal agreement, it was also proved that the victim was taken to the nearby temple where the accused garlanded the victim and only thereafter he had one more sexual intercourse with the victim and only thereafter, he had withdrawn from the verbal agreement. The evidences adduced through PW1 and other witnesses are not controverted so far by the accused and the same are cogent and satisfactory. Therefore, there is no legal bar in accepting the evidence of Pws. 1 to 4. The minor contradictions brought out by the defence are not sufficient to reject the entire case of the complainant. 8. The learned counsel for the appellant on the strength of the decision of the Apex court in **State of Karnataka** v. **Mapilla .P.P. Soopi** [(2003) 8 SCC 202] submits that the delay occurred in the present case is not explained and therefore, the conviction and sentence passed against the accused/appellant is not sustainable. It is true that in the above decision, the Apex Court had held that undue delay in lodging the complaint without ## **CRL.A. NO.158 OF 2007** ## **:-11-:** acceptable evidence has also contributed to the doubt in the prosecution case. The facts and circumstances involved in the present case is entirely different from the case cited supra which is a case where the investigation was undertaken by the Police and the Police filed a final report. It is for the prosecution to explain the delay in filing the F.I.statement and registration of the crime in filing a final report. In the present case, there is no investigation by the Police, but the court took cognizance on the basis of the sworn statement and other supporting depositions of the other witnesses. I have already referred to the circumstances under which the delay occurred in filing the private complaint. Therefore, it can be seen that even though there is a delay, the same is properly explained by the victim. The date of occurrence as alleged was on 28.4.1996 and 1.5.1996 and the complaint was filed on 22.10.1996. The five months delay in filing the complaint has already been explained by PW1 as there was a settlement through mediation and pursuant to the said settlement, ## **CRL.A. NO.158 OF 2007** ## **:-12-:** the accused had took her to the nearby temple and garlanded with a chain and thus, she was given an impression that the accused had married her. But, according to PW1, she came to know about the fraud played by the accused only when PW4 produced a letter which is said to have been written by the accused wherein it is stated that he was not prepared to go with the victim and he was leaving the locality. So the said explanation, according to me, is sufficient and therefore, it cannot be said that there is delay in filing Ext.P1 complaint. Learned Public Prosecutor invited my attention to para 25 of the decision of the Apex Court in **Vishnu** v. **State of Maharashtra** [(2006) 1 SCC 283] and submitted that the legal position is now well settled and the conviction can be sustained on the whole testimony of the prosecutrix if it inspires confidence. The learned Public Prosecutor took me through the paragraph 25 which runs as follows:- “25. The statement of the prosecutrix, in our view, is quite natural, inspires confidence and merits ## **CRL.A. NO.158 OF 2007** ## **:-13-:** acceptance. In the traditional nonpermissive bounds of society of India, no girl or woman of self-respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. Not only would she be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracised and cast out from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it is revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, if fact, she was not admitted in the hospital. On the pretext of going to Nanawati Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened to finish her if she shouted and then forcibly ravished her sexually. In our view, a clear case of rape, as defined under Section 375 clause thirdly IPC has been established against the accused. It is now a well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence.” On examination of the facts and circumstances involved in the present case, in the light of the above decision, I ## **CRL.A. NO.158 OF 2007** ## **:-14-:** am of the view that the evidence adduced by PW1 alone is sufficient to hold that the accused was guilty of the offence charged against him. In the present case, apart from the deposition of PW1, the other witnesses also deposed in terms of the allegation put forward by PW1 and those evidences of the witnesses merely because they are related to PW1 need not be rejected as such. In the deposition of PW3 who is not a relative of PW1 or PW2 or PW4, it has been categorically stated that he had interfered in the matter as a mediator and tried to settle the matter for which the accused and his relatives were ready at that time. The above evidence stands unchallenged and therefore, there is no legal bar in accepting the above evidence of PW3 which render assurance and the correctness of evidence of PW1. 9. In the light of the above facts and circumstances and the settled position of law, I find no reason to interfere with the finding arrived on by the court below and the conviction. Though the counsel for the appellant argued for reducing the sentence, it can be ## **CRL.A. NO.158 OF 2007** ## **:-15-:** seen that only a minimum imprisonment is awarded and the fine is a must. Hence, no interference is warranted with respect to the fine also. Thus the appeal is devoid of merits and it is accordingly dismissed. **V.K.Mohanan, Judge** MBS/ ## **CRL.A. NO.158 OF 2007** ## **:-16-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO. 158 OF 2007 ------------------------------------------- **J U D G M E N T** DATED:18-9-2008 ## **CRL.A. NO.158 OF 2007** **:-17-:**