Majeed v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 6TH DAY OF NOVEMBER 2012/15TH KARTHIKA 1934 Crl.Rev.Pet.No. 949 of 2003 ( ) ------------------------------CRA.452/2000 of III ADDL. SESSIONS COURT (ADHOC) FAST TRACK COURT NO. 1,THRISSUR SC.107/1999 of COURT OF SESSION, THRISSUR ## REVISION PETITIONER(S): -------------------- MAJEED, S/O. ABOOBACKER, PANIKKAVEETIL HOUSE, KULAYIDAM DESOM, KALLOOR VADAKKUMMURI VILLAGE BY ADVS.SRI.BABU CHERUKARA SRI.NANDAKUMARA VARMA SRI.P.JOSHY JOSE ## RESPONDENT/COMPLAINANT(S): --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ## PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. ## **Crl.R.P. No. 949 of 2003** .................................................. Dated: 6-11-2012 ## ORDER Revision Petitioner was concurrently held guilty of the offences under Secs. 451 and 354 I.P.C. He was sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1,000/- for the offence under Sec. 354 I.P.C. and rigorous imprisonment for one year for the offence under under Sec. 451 I.P.C. This revision is directed against the said conviction and sentence passed against him. 2. P.W.2, the victim, aged about 30 years, is a physically challenged and mentally retarded woman. The incident took place at about 5.30 p.m. on 26-08-1997. At the time of the incident she was alone in her house. The accused used to visit that house to share chewing with the father of P.W.2. On 26-8-1997 at abut 5.30 p.m. he went to Crl.R.P. No. 949 of 2003 -:2:- the house and asked P.W.2 for betel nuts . While she was proceeding to the room inside, the accused entered the room and closed the door . He forcibly pressed her and made her lie on a cot. He lifted her undergarments and lay upon her. The 'gummy fluid' which was spread on her body was removed by using the linen/lunki worn by the accused. Thereafter, P.W.2 went to the house of P.W.1 a neighbour. P.W1 is a school teacher. P.W.2 narrated the incident to P.W.1. P.W.1 in turn informed the other relatives of P.W.2. P.W.2 was at first taken to the local hospital and was thereafter taken to the Medical College Hospital. From there she was examined by P.W.12, a lady doctor. On the next day morning, P.W.1 went to the Police Station and lodged F.I. statement based on which the F.I.R. was registered by the police. P.W.2 was sent by the police to the lady doctor (P.W.12). 3. After investigation the charge-sheet was laid alleging offence under Sec. 511 of 376 and 448 of I.P.C. Crl.R.P. No. 949 of 2003 -:3:- After hearing , the court below framed charge against the accused under Sec. 451 and 511 of 376 I.P.C. 4. P.W.1 to 16 were examined and Exts. P1 to P11 were marked. MOs 1 to 3 were also identified and marked. 5. The learned Assistant Sessions Judge considered the evidence in detail and found the petitioner guilty of the offence under Sections 451 and 354 I.P.C. The learned trial Judge found the evidence adduced by the prosecution insufficient to sustain the charge under Section 511 of 376 I.P.C. and so the accused was acquitted of that offence. After re-appraisal of the evidence, the learned Sessions Judge concurred with the view taken by the trial Court and thus confirmed the conviction and sentence passed against him. 6. The learned counsel for the petitioner vehemently argued that the case was foisted because of some enmity the family members of P.W.2 had towards the accused in connection with the management of the mosque committee Crl.R.P. No. 949 of 2003 -:4:- and that as the accused had not purchased articles from the shop of P.W.2's brother, there was enmity between them. It is further pointed out that the fact that P.W.2 was taken to the doctor on the same day night and was examined by P.W.12 was suppressed in the F.I.S. given by P.W.1 to the police. P.W.1 had only hear-say information. There is no evidence to corroborate the case of the prosecution that the accused had outraged the modesty of P.W.2 after trespassing into the house at the time as alleged by the prosecution, the learned counsel further argued. 7. The aforesaid argument is strongly resisted by the learned Public Prosecutor who points out that there would be no independent evidence to corroborate the incident spoken to by the prosecutrix since as usual it would be done in secrecy without being noticed by anybody. The evidence given by P.W.4, the driver of the autorickshaw and P.W.7 (who saw the accused coming out of the house immediately after the incident) were relied upon as Crl.R.P. No. 949 of 2003 -:5:- circumstances to support of the prosecution case. The further fact that P.W.2 immediately went to the neighbouring house and told P.W.1 with whom P.W. 2 had sentimental attachment is a relevant conduct supporting the case spoken to by P.W.2. The contention that the case was foisted by the brother and other relatives of P.W.2, was rightly turned down by the courts below. 8. The learned counsel for the petitioner has relied upon the decision of the Supreme Court in **Kuldip Yadav v. State of Bihar - AIR 2011 SC 1736** in support of his submission that P.W.5, the brother of P.W.2 and others were on inimical terms and so the evidence given by them should be treated as testimony of interested witnesses. The facts dealt with therein are inapposite to the facts of this case. 9. The main point that has been urged by the learned counsel is that though according to the prosecution the "gummy fluid" was rubbed and removed by using the Crl.R.P. No. 949 of 2003 -:6:- lunki worn by the accused when that lunki was sent for examination it did not contain any stains of sperms or spermatozoa. True that the prosecution did not say that the lunki (MO3) was washed. It was seized subsequently. It was in the possession of the accused. Therefore, it cannot be said that MO3 was not washed at all. In any event, that will not affect the credibility of the statement given by P.W.2. It is true that MO1 and MO2 the dress worn by P.W.2 also did not contain any such stains. The learned counsel submits that since the case of the prosecution was that P.W.2 was raped or attempted to be raped and when that part of the case was found unacceptable, it is unsafe to hold that the accused outraged the modesty of P.W.2. I find no force in that submission. 10. So far as the offence under Sec. 354 of I.P.C. is concerned, the evidence given by P.W.2 can certainly be accepted as the true statement. There are no acceptable materials to hold that such a statement was made by P.W.2 Crl.R.P. No. 949 of 2003 -:7:- out of malice or with oblique motives. The learned trial Judge had the opportunity to watch the demeanour of the witness and to assess the evidence correctly. The fact that P.W.12, the doctor, did not notice anything to indicate 'recent sexual intercourse' or sexual assault, cannot be a reason to disbelieve P.W.2. Witnesses are the eyes and ears of justice. It is the settled legal proposition that while appreciating the evidence of the witness especially of a victim, minor discrepancies on trivial matters which do not affect the core of the prosecution case should not be annexed with undue importance to reject the evidence as unworthy of acceptance. Such trivial matters which do not corrode the credibility of the victim cannot be dubbed as contradictions so as to brush aside her evidence as unworthy of credence. Unless the oral evidence is totally irreconcilable with the medical evidence, the oral evidence given by the victim has to be given primacy. The occular testimony of the victim has greater evidentiary value vis- Crl.R.P. No. 949 of 2003 -:8:- a-vis, the medical evidence. It is not a case where the medical evidence makes the ocular testimony improbable. 11. The evidence given by P.W.1, the first informant who deposed before court that P.W.2 had told her immediately after the incident as to the incident that took place from inside her (PW2's) house cannot be brushed aside as hearsay evidence. The fact that P.W.2 immediately went to the house of P.W.1 and told her about the same is relevant under Sec. 8 of the Evidence Act. 12 The decision of the Supreme Court in S **atpal Singh v. State of Haryana - (2010)8 SCC 714** has been relied upon in this case. In that case, there was delay in lodging the F.I. Statement. It was found that the delay occurred because of the intervention of the Panchayath as the Panchayath had insisted to compromise the case rather than moving the investigating machinery. It was also found that the Panchayath had adviced the father of the prosecutrix not to get his daughter medically examined as Crl.R.P. No. 949 of 2003 -:9:- it would be a hurdle for him in arranging her marriage. But the complainant did not accept their suggestion and approached the higher authorities. Considering all the aspects, the apex Court found that the delay in lodging F.I.R. in sexual offences has to be considered with a different yard stick. In that case it was found that the delay in lodging the F.I.R. was satisfactorily explained. 13. The decision in **State of H.P., v. Prem Singh** - **(2009) 1 SCC 420** has also been relied upon in connection with this case. There it was held : _" So far as the delay in lodging the F.I.R. is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before the coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR"._ In a rape case the prosecutrix remains worried about her future. She remains in a traumatic state of mind. The family of the victim would generally be so reluctant to go to the police station because of the Society's attitude Crl.R.P. No. 949 of 2003 -:10:- towards such a woman . It was held by the apex Court in **Karnel Singh v. State of M.P. - (1995) 5 SCC 518** that it casts doubt and shame upon her rather than comfort and sympathize with her. The family remains concerned about its honour and reputation of the prosecutrix. The decision in **State of Panjab v. Gurmit Singh - AIR 1996 SC 1393** is also on the same point. It is true that the F.I.R. is to be filed more promptly and if there is any delay the prosecution must furnish a satisfactory explanation of the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. But, so far as the case on hand is concerned, immediately on the next day of the incident, the F.I. Statement was lodged by P.W.1 to whom P.W.2 had narrated the incident. There is no unreasonable delay in lodging the first information statement. The fact that in the F.I. Statement it was not stated that P.W.2 was taken to a Crl.R.P. No. 949 of 2003 -:11:- lady doctor attached to the Medical College Hospital and she was examined by that doctor is no reason to hold that there was any embellishment or exaggeration in the statement containing in the F.I.R. There is nothing to show that a coloured version or an exaggerated account of the incident was introduced in the first information statement so as to cast a serious doubt on the veracity of the same. 14. Though the I.Q. of P.W.2 was only 50 as against 80-90 of a normal grown up woman, the trial Judge could find that she was giving rational and intelligent answers. There was no difficulty for the court to accept her testimony as true. It is in evidence that P.W.4, an autorickshaw driver had seen the accused going to the house of P.W.2 at about 5.30 p.m. P.W.7 has stated that he had seen the accused coming out of the house at about that time. The time mentioned is only approximate. Therefore, that also is a corroborating circumstance to hold the prosecution case as true. The two courts below analysed the evidence Crl.R.P. No. 949 of 2003 -:12:- in the right perspective and came to the right conclusion that the petitioner trespassed into the residential house of P.W.2 with intent to rape or outrage her modesty. As such he was rightly convicted of offence under Sec. 451 I.P.C. Though the charge was framed under Sec. 511 of 376 , the court below found that though the evidence is to the effect that P.W.2 was forcibly laid and lifted her undergarments and he lay upon her, there was no convincing evidence to show that he attempted to rape P.W.2. Therefore, he was rightly found guilty of the offence under Sec. 354 I.P.C. only . 15. The learned counsel for the petitioner submits that leniency may be shown in the matter of sentence. The petitioner was sentenced to undergo rigorous imprisonment for two years for the offence under Sec. 354 I.P.C. The learned Public Prosecutor submits that only because of an element of doubt crept in the mind of the trial court that the accused was not convicted of the offence under Sec.511 Crl.R.P. No. 949 of 2003 -:13:- of 376 I.P.C. but only under Sec. 354 of I.P.C. P.W.2 was slightly mentally retarded and was a physically challenged woman. The accused exploited the opportunity; he pressed her and made her forcibly lie and thereafter he lifted her undergarments and lay upon her. Only because there was no acceptable evidence to show that accused had took out his organ to penetrate, he was found not guilty of the offence under Sec. 511 of 376 I.P.C. Therefore, considering the totality of the circumstances it cannot be said that the courts below were unjustified in sentencing the petitioner to rigorous imprisonment for two years. The fact that the incident took place in the year 1997, is no reason to give any special treatment or 'bonus' to the accused, to show leniency, for, otherwise it would be giving a wrong message to such potential offenders to get the disposal of the case delayed for years together only to plead for a lesser sentence on the ground of delay occurred in the disposal of the appeal or revision. Crl.R.P. No. 949 of 2003 -:14:- Sentence must commensurate with the gravity of the crime. Considering all the aspects, the substantive sentence awarded for the offence under Section 354 I.P.C. is reduced to Rigorous imprisonment for 15 months. The sentence awarded for the offence under Sec. 451 I.P.C. is confirmed. The substantive sentence will run concurrently. The court below will take steps to execute the sentence without delay. This Criminal Revision is disposed of as above. Dated this the 6th day of November, 2012. N.K. Balakrishnan, Judge. ani. Crl.R.P. No. 949 of 2003 -:15:- N.K. Balakrishnan, J. ......................................... **Crl.R.P. No. 949 of 2003** ....................................... Dated: 6-11-2012 ORDER