HaneeFa v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 19TH DAY OF AUGUST 2013/28TH SRAVANA, 1935** ## **CRL.A.No. 1914 of 2009 (D)** **--------------------------------------** **SC 247/2009 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI. CP 8/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI.** **............** **APPELLANT(S)/ACCUSED:** **----------------------------------------** **HANEEFA, AGED 42 YEARS, S/OP.CHERIYA BAVA UNNEECHENTE PURAKKAL HOUSE, AVIL BEACH, PARAPPANANGADI MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA CIRCLE INSPECTOR OF POLICE, TANUR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1914 of 2009 - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of August, 2013. ## JUDGMENT The accused was prosecuted for the offences punishable under Sections 450 and 376 of Indian Penal Code. He was found guilty on both counts and convicted for the said offences. He was sentenced to undergo rigorous imprisonment for three years for the offence under Section 450 of I.P.C. and to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for one year, for the offence under Section 376 of I.P.C.. Substantive sentences were directed to run concurrently and set off as per law was allowed. 2. P.W.2 is the victim in this case. She resides with P.Ws.3 and 4, who are her parents, and her younger brother. Her parents go for work early in the morning and after her brother goes to school, she is all alone at home. The accused is her neighbour. It is alleged that on 28.1.2008 at about 4 Crl.Appeal.1914/2009. 2 p.m., the accused came in search of the father of the victim and when he was told that her father was not at home, the accused is alleged to have trespassed into the house and subjected P.W.2 to forced sexual intercourse. The accused is alleged to have committed the act on two subsequent dates, i.e., on 23.2.2008 and 20.3.2008. The further allegation is that as a consequence of the act committed by the accused, the victim conceived. When she developed abdominal pain, she complained to her mother and she was taken to Navas Hospital. There, the doctor prescribed medicines for increasing blood flow. As her abdominal pain did not subside, she was taken to Government Hospital, Thirurangadi. The doctor there examined her and found that she is 5 - 6 months pregnant. She was thereafter taken to the Medical College Hospital where her pregnancy was confirmed. The allegation is that when her parents enquired about the paternity of the Crl.Appeal.1914/2009. 3 child, she disclosed the incident to her parents and thereafter on 11.6.2008 the first information statement was laid by P.W.2. P.W.9 recorded Ext.P2 FIS and registered crime as per Ext.P10 FIR. Investigation was taken over by P.W.11. He had the victim examined by P.W.10 and obtained Ext.P6 certificate. He prepared the scene mahazar, seized the clothes of the victim, had it sent for chemical examination, and recorded statements of witnesses. On arrest of the accused, he had him subjected to potency test and obtained the certificate from P.W.1. Investigation was completed by P.W.8 and charge was laid before court. 3. The court, before which final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Manjeri. The said court made over the case to Additional Sessions Court (Ad Hoc-III), Manjeri for trial and disposal. The latter court, on receipt of Crl.Appeal.1914/2009. 4 records and on appearance of the accused framed charge for the offences punishable under Sections 450 and 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. 4. The prosecution, therefore, had P.Ws.1 to 11 examined and had Exts.P1 to P13 marked. M.Os. 1 and 2 were got identified and 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 in evidence against him and maintained that he is innocent. He also pointed out that father of P.W.2, namely, P.W.3, is his close friend and that he had borrowed a sum of Rs.25,000/- from him and when he sought return of the money, that was not returned. He also accused P.W.2 of having relationship with several persons. He claims that P.W.3 talked to him about the said relationship and later on it is claimed by the accused that P.W.3, the father Crl.Appeal.1914/2009. 5 of the victim, demanded that he should marry her. He was not amenable to such a course and also P.W.3 threatened him with dire consequences if he did not heed. According to the accused, it is that which gave rise to the lodging of the false complaint. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the evidence of P.W.2 is convincing enough and held the accused guilty of both the offences. Conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal. 6. Learned counsel for the appellant mainly concentrated on the delay in lodging the FIS and pointed out that there is no reasonable explanation offered for the delay and it has caused considerable prejudice to the accused. 6 Crl.Appeal.1914/2009. According to him, It is not a case where delay can be taken note of lightly, as in this case, the accused is left with no way to rebut as a result of the long delay in lodging the FIS regarding the offence. It is also pointed out that the evidence of P.W.2 would indicate that after the first incident in January, soon thereafter she realized that she is pregnant and the two subsequent incidents are therefore highly improbable and it is difficult to believe that P.Ws.3 and 4 did not realize that their daughter was pregnant. It was also contended that the entry in Ext.P6 by P.W.10, the doctor, who had examined the victim, cannot be given undue importance because, according to the learned counsel, it was prepared after the complaint was laid. It is significant to notice, according to the learned counsel, that the victim had been examined in two other hospitals earlier and none of the documents relating to the treatment in those hospitals were produced. That was deliberate and had that been produced, it would falsify the case. Learned counsel 7 Crl.Appeal.1914/2009. appearing for the appellant contended that for reasons best known to the prosecution, they chose to withhold the documents and it would also show that the evidence of P.W.2 is open to serious doubt. According to the learned counsel, the evidence of P.W.2 cannot be said to be of such a character which would enable the court to safely come to the conclusion that the accused is guilty. At any rate, the accused is entitled to benefit of doubt and the conviction and sentence cannot stand. 7. Learned Public Prosecutor on the other hand contended that the court below has noticed the evidence in considerable detail and found on the basis of the evidence of P.Ws.2, 3 and 4 that the case set up by the prosecution has been established. There is no reason to doubt the version given by P.W.2 even though there may be certain infirmities in her evidence. It was pointed out that there is no oblique motive attributed to P.W.2 as to why she should falsely Crl.Appeal.1914/2009. 8 implicate the accused and except the statement while questioning under Section 313 Cr.P.C., there is no reason to believe the story put up by the accused. Learned Public Prosecutor pointed out that even though the evidence of P.W.2 shows that after the incident in January, soon thereafter she realized that she was carrying, may be out of humiliation and may be due to fear, she did not reveal the incident and that cannot be taken as a ground to doubt her version. Learned Public Prosecutor contended that the court below which has the occasion to watch the demeanor of the witnesses has chosen to accept the evidence of P.W.2 and there is no reason as to why this court should take a different view. In short, the contention is that there is no merit in the appeal. 8. As is usual, here again the evidence of the incident stands confined to the testimony of P.W.2. Before going through the evidence of P.W.2, one aspect may be noticed. P.Ws.3 and 4, the parents say that they came to know Crl.Appeal.1914/2009. 9 about the incident from P.W.2 only when P.W.2 was taken to the hospital at Thirurangadi where the doctor after examination revealed that she was carrying. The doctor at the Government Hospital, Thirurangadi advised the victim to be taken to Medical College Hospital and so taken as could be clear from the evidence of P.W. 10. In short, before the examination of P.W.2 by P.W.10 and drawing up of Ext.P6, the victim had been taken to two other hospitals, one a Government Hospital and the other Medical College Hospital. For reasons best known to the prosecution, they did not feel it appropriate enough to produce those documents. 9. Bearing this in mind, the evidence of P.W.2 shall be considered. She, as already stated, is the victim. She would say that her father is a fisherman by profession and he leaves by 9 a.m. and returns at 5 p.m. Her mother does household work and she leaves by 7 a.m. and returns by 5 p.m. and her younger brother goes to school by about 9.30 10 Crl.Appeal.1914/2009. a.m. She has an elder sister who is married and is staying in her matrimonial house. On 28.1.2008, it is alleged that while she was sleeping in the afternoon and there was no one at home, she felt someone touching her. When she woke up, she realized that it was the accused. She asked him to leave the house, but he did not do so. According to her, he forcibly laid her on the floor and committed the acts. Since her mouth was closed, she could not let out cries. She would say that soon after the act was done by the accused, her consciousness was lost and she regained her consciousness by about 4 p.m. She would say that she did not reveal the incident to anybody because the accused had threatened her that if she did so, she and her father would be done away with. She then speaks about the two subsequent incidents, one on 23.2.2008 at 11 a.m. and another on 26.3.2008 at 12 p.m. The incident on 23.2.2008 is narrated as the accused having come in search of Crl.Appeal.1914/2009. 11 her father and when she told that her father was not at home, he ravished her. 10. She would say in her evidence that she was afraid of revealing the incident to her parents as a result of the threat meted out by the accused. She then speaks about having developed abdominal pain and meeting the doctor at Navas Hospital and subsequently taken to the Government Hospital at Thiroorangadi and Medical College Hospital. P.Ws.3 and 4 are the parents of P.W.2. Their knowledge about the incident is confined to what is conveyed to them by P.W.2. It must be remembered that information was passed on to P.Ws.3 and 4 long after the incident. 11. It is by now well settled that if the evidence of the prosecutrix is found to be convincing and cogent enough, that would be sufficient for the court to enter a finding of guilt against the accused. It will be imprudent on the part of the court in such cases to look for corroboration for the simple Crl.Appeal.1914/2009. 12 reason that offence of rape is committed in secrecy and not on invitation or in public. The inherent nature of the crime improbabilises the possibility of any other occurrence witness. 12. However, if the evidence of the prosecutrix is inherently improbable or is belied by other items of evidence adduced by the prosecution, then the court may look for corroboration even though corroboration is only a rule of prudence and not a rule of law. One should remember that in a case where the complaint is laid long after the incident, the accused is at a disadvantage in the sense that he is left without much of a defence. In order to ascertain whether the act complained of is with or without consent, the conduct of the accused and prosecutrix before or after or during the incident has to be considered. 13. The court below has chosen to place implicit faith on the evidence of P.W.2. The question is whether the said approach of the court is proper or not. Crl.Appeal.1914/2009. 13 14. A reading of the evidence of P.W.2 would show that she missed her menstrual period in February and therefore in February she knew that she was pregnant. According to her, there are two subsequent acts, one in February and the other in March and whether these two incidents complained of had taken place at a time when she was carrying. She has no case that she had ever told the accused that as a result of the act committed by him she has conceived. It is also difficult to believe that on all the occasions the doors of the house would be thrown open for anyone to come inside the house. It is significant to notice that even going by her own evidence and the evidence of P.W.11, the Investigating Officer and also the scene mahazar there are close neighbours and if one has to look at the evidence of P.W.2, on the second occasion the accused had asked whether her father was at home from outside the house, Crl.Appeal.1914/2009. 14 then she replied in the negative and then he entered into the house and dragged her into a room. At that point of time, there was nothing which prevented her from seeking help and if she had let out a cry, someone would have heard assuming that the first incident has occurred as alleged. 15. She would say that on the first occasion, soon after the act was committed, she lost consciousness and she also says that when she regained consciousness at 4 p.m., the accused had already left. She then says that she was threatened with dire consequences. She had no case that the accused has subsequently met her and threatened her and therefore if she lost consciousness soon after the incident, the questioning of threatening does not arise for consideration. 16. As already noticed, P.W.2 came to know that she was carrying in February itself. It is difficult to believe that until P.W.2 was examined by the doctor at Government Hospital, Thirurangadi in the month of June, P.Ws.3 and 4 did 15 Crl.Appeal.1914/2009. not know that their daughter was pregnant. Even assuming it to be true, when the victim was examined at the Government Hospital at Thirurangadi, surely the parents would have come to know that their daughter had been carrying. In fact the evidence of P.W.2 would show that the doctor asked about her husband and then she replied that she was not married. It was thereafter that she was referred to the Medical College Hospital. Certainly by the time the victim and the parents reached the Medical College Hospital, they knew that P.W.2 was pregnant and in all probability P.Ws.3 and 4 must have extracted as who was responsible for the same. However, the records from Medical College Hospital have not been produced before the court. 17. It is also surprising to note that no medical records relating to the delivery of the victim are also seen produced. Crl.Appeal.1914/2009. 16 18. In the light of the above facts, the evidence of P.W.2 will have to be examined. Her conduct in allowing her to be subjected to sexual assault on the second and third occasions again does not appear to be quite convincing enough. It is also difficult to believe that she would have conceived as a result of the act committed by the accused in January itself. Ext.P6 certificate issued by P.W.10 would show that at the time of examination, the foetus was 20-22 months old. If that be so, it is also difficult to accept the version of P.Ws.3 and 4 and that they had not realized that their daughter was pregnant till she was examined by the doctor in the Government Hospital, Thirurangadi. It becomes rather difficult to believe that the victim was initially taken to Navas Hospital, the doctor there would not have noticed her pregnancy especially when she complained of abdominal pain. Whatever that be, these lacunas or deficiencies in the evidence Crl.Appeal.1914/2009. 17 makes it extremely dangerous to place implicit faith on the evidence of P.W.2. 19. It is here that as rightly pointed out by the learned counsel for the appellant, delay assumes importance. Learned counsel relied on the decision reported in Vijayan v. State of Kerala (2008 KHC 5310) where the question of delay was considered and it was held that in certain cases delay is fatal. Looking at the facts of the present case, the last of the incident is said to have taken place in March and the complaint came into existence in June. Apart from the above fact, the discrepancies in the evidence of prosecution as already pointed out has cast considerable doubt regarding the version given by P.W.2. Further, if the accused threatened the victim with dire consequences which kept her mum, offence under Section 506(ii) of I.P.C. would have been attracted and significantly, that was absent in the case on hand. Crl.Appeal.1914/2009. 18 20. For the above reasons, the evidence of P.W.2 is not of such a sterling character which inspires confidence in the mind of the court enabling the court to enter a finding of guilt solely based on her evidence. A reasonable doubt is created in the mind of the court regarding the offence alleged to have been committed by the accused. The suggestion made by the defence that if at all there was any physical contact, it was a consensual act cannot be easily brushed aside in view of the facts and circumstances of the case. 21. For the above reasons, this court is unable to hold the finding of the court below that the prosecution has succeeded in establishing the case against the accused based on the evidence of P.W.2 alone. In the result, this appeal is allowed and the conviction and sentence of the accused for the offences under Sections 450 and 376 of I.P.C. are set aside and it is held that the prosecution has not succeeded in establishing the case Crl.Appeal.1914/2009. 19 against the accused beyond reasonable doubt. The accused stands acquitted of the said offences. His bail bond shall stand cancelled and he is set at liberty. If he has paid the fine amount, the same shall be refunded to him. P. BHAVADASAN, JUDGE sb.