P. Rajendran v. Nancy Mammon and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **CRL.A.No. 1143 of 2007 (C)** **-------------------------------------[S.C. NO.16/2004 OF THE PRINCIPAL SESSIONS COURT, PALAKKAD DATED 16-06-2007]** **.................** ## **APPELLANT/ACCUSED:** **----------------------------------** **P.RAJENDRAN, S/O. V.PONNUSWAMY, SECTION ENGINEER, P.WAY/WESTERN, SOUTHERN RAILWAY, PALAKKAD JUNCTION, PALAKKAD.** **BY ADVS.SRI.P.K.MOHANAN(PALAKKAD), SRI.VINOD RAVINDRANATH.** ## **RESPONDENTS/COMPLAINANT AND STATE:** **----------------------------------------------------------------** **1. NANCY MAMMON, D/O. MAMMAN, 'SHEEJA NIVAS', P.O. KALLEKULANGARA, RAILWAY COLONY, PALAKKAD TALUK.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SRI.A.X.VARGHESE, SRI.A.V.JOJO, R2 BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1143 of 2007 - - - - - - - - - - - - - - - - - Dated this the 27[th] day of August, 2013. ## JUDGMENT The accused, an employee of the Railway, was prosecuted for the offences punishable under Section 354 of Indian Penal Code and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He was found guilty of the offence under Section 354 of I.P.C. alone and was convicted and sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.15,000/-, in default, to undergo simple imprisonment for a further period of three months. 2. P.W.1, the victim in this case, also was an employee of the Railway, at the relevant time working under the accused. P.W.1 came out successful in the suitability test of Key Woman and she was proposed to be posted as Key Woman in Palappuram in Gang 9. She found it difficult to work at that place and she wanted a transfer to Gang I. She, Crl.Appeal.1143/2007. 2 therefore, decided to make an application for posting in Gang I. That application has to be necessarily forwarded by the accused. The allegation is that on 12.1.2002, in the morning, P.W.1 approached the accused with the necessary application and he asked her to meet him in the quarters in the afternoon. P.W.1 did not go to his quarters. At 2.30 p.m. the victim tried to meet the accused, but he was not available and therefore, she again went to the office at 5.30 p.m. on the same day. The accused was in office. Seeing P.W.1, the accused is alleged to have asked her why she did not come to his quarters. P.W.1 would say that she had told him that she came for an official purpose and it was not necessary for her to visit him in quarters for official purposes. The allegation is that when P.W.1 tried to hand over the application for transfer to Gang I, the accused caught hold of her had. She pulled back her hand and she extricated herself and at that time he squeezed her right thigh. The claim of P.W.1 is that even 3 Crl.Appeal.1143/2007. though she complained to the superior officers, that had not invoked any result and even the complaint filed before the Women's Commission yielded no result. Finally, she laid Ext.P1 private complaint. Cognizance of the offences under Section 354 of I.P.C. and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was taken by the learned Magistrate following the procedures under Sections 200 to 204 Cr.P.C. The case was committed to the Special court as the accused has to be tried by the Special court constituted under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act under Section 209 Cr.P.C. On committal, the Special Court framed charges for the offences punishable under Section 354 of I.P.C. and Section 3 (1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 4 examined and had Exts.P1 and P2 marked. Crl.Appeal.1143/2007. 4 3. One aspect may be mentioned here. It so happened that after committal of the case to the Sessions Court, the counsel engaged by the complainant continued to prosecute on behalf of the complainant. It was after P.W.1 was partly examined that the accused realized the folly committed by the complainant and therefore, he approached this court under Section 482 Cr.P.C. This court after noticing the irregularity, and various other aspects found that there is no prejudice caused to the accused as such but directed that accused be allowed to further cross-examine the witnesses if he so desires. The trial proceeded. 4. 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 filed a statement vindicating his stand, wherein he pointed out that nothing as alleged by P.W.1 has occurred and he has been Crl.Appeal.1143/2007. 5 falsely implicated. He has also pointed out that the complaint was a retaliatory measure to the memos issued to the defacto complainant for dereliction of duty on her part. 5. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined D.Ws. 1 to 4 and had Exts. D1 to D17 marked. 6. The court below, accepting the evidence of P.Ws.1 to 4 and various other facts and circumstances, came to the conclusion that offence under Section 354 of I.P.C. has been made out. Accordingly, the accused was found guilty of the offence and conviction and sentence as already mentioned followed. 7. The said conviction and sentence are assailed in this appeal. 8. Learned counsel appearing for the appellant contended that the findings of the court below are not Crl.Appeal.1143/2007. 6 sustainable either on facts or in law. Pointing out that the incident had occurred on 12.1.2002 and the present complaint, on the basis of which cognizance has been taken was laid only on 21.6.2003, and according to the learned counsel, the delay has not been explained. Further, learned counsel for the appellant pointed out that there have been departmental proceedings against the complainant as would be seen from Ext.D13. Learned counsel pointed out that departmental proceedings conducted by the Grievance Committee constituted as per the directions issued by the Apex Court found that there is no substance in the complaint of P.W.1 and rejected the complaint. It is also pointed out by the learned counsel for the appellant that the private complaint initially filed before the court on 2.4.2002 was referred for investigation under Section 156(3) of Cr.P.C. and the investigating officer after investigation filed a refer report. Notice of which was given to P.W.1. According to the learned Crl.Appeal.1143/2007. 7 counsel, it was thereafter that on 21.6.2002 the private complaint has been laid. Drawing attention to the various documents, learned counsel for the appellant contended that it can be seen that P.W.1 has no consistent case and she goes on developing her case stage by stage. Though she stated that she has initially complained to the superior officers, neither any document nor any officer was examined to prove the same before the court. Learned counsel also contended that even though the court in this proceedings may not as such bound by the departmental proceedings and also the refer report, this court has to look into the same which would show that the present version given by P.W.1 is highly exaggerated and motivated. According to the learned counsel, the court below was not justified in finding that P.W.1's evidence is without blemish and is supported by the evidence of P.Ws.2 to 4. It was also pointed out by the learned counsel for the appellant that in the departmental proceedings, a Crl.Appeal.1143/2007. 8 different set of witnesses were examined by the victim. At any rate, according to learned counsel, there is no uniform or consistent version regarding the incident and that betrays the prosecution. Accordingly, it is contended that the conviction and sentence cannot stand. 9. Learned counsel for the appellant conceded that if the evidence of the prosecutrix is found to be beyond blemish and is found to be consistent and cogent, then there is no need to look for corroboration. But relying on the decision reported in Pandurang Sitaram Bhagwat v. State of Maharashtra (AIR 2005 SC 643) it was contended that testimony of prosecutrix was not a gospel truth, that mere version given by the prosecutrix has to be simply accepted and a conviction has to follow. The inherent worthiness of the evidence of the prosecutrix has to be ascertained if it is found that it is acceptable, a conviction can follow. If that principle 9 Crl.Appeal.1143/2007. is applied to the present case, it can be seen that the evidence in the case is not beyond doubt. 10. Learned counsel appearing for the defacto complainant on the other hand pointed out that the court below has considered the evidence in considerable detail and found that the delay has been properly explained and that has caused no prejudice to the accused. Learned counsel for the appellant pointed out that the evidence of P.Ws.1 to 4 are sufficient to show that the incident has occurred as alleged. Learned counsel pointed out that normally a woman will be shy to come forward with such a complaint unless compelled to do so. Learned counsel for the defacto complainant also pointed out that the delay in such cases has to be viewed in a pragmatic manner. Learned counsel relied on the decision reported in Vidyadharan v. State of Kerala ((2004) 1 SCC 215). It was pointed out by the learned counsel for the defacto complainant that the court below which had the opportunity to 10 Crl.Appeal.1143/2007. watch the demeanor of the witnesses has chosen to accept the evidence of P.Ws.1 to 4 and there is no reason why this court should interfere. 11. Learned Public Prosecutor on the other hand took a different route of argument. Though the learned Public Prosecutor contended for the position that the findings of the court below are unassailable in any manner and since there is evidence to show that something unpleasant had happened in the room of the accused and, at any rate the offence under Section 509 I.P.C. is attracted. 12. After having heard learned counsel for the appellant and the defacto complainant and the learned Public Prosecutor, one could only wish that he could agree either with the counsel for the defacto complainant or the Public Prosecutor. 13. P.W.1 is the victim in this case. Even as conceded by the defacto complainant, she was working under Crl.Appeal.1143/2007. 11 the accused and the accused was her superior officer. There is also no dispute that she had applied for being posted in Gang I on promotion and that application had to be routed through the accused. Even though the accused, to a good extent, admits that there was an application by the complainant on 12.1.2002, but his stand is that he had duly forwarded the same and thereafter he would say that charge memos had to be issued to the victim for dereliction of duty which infuriated her and she retaliated by filing the complaint. 14. P.W.1 claims that soon after the incident, i.e., on 14th and 15[th] of January, 2002, she had complained about the act of the accused to the superior officers. Except her ipse dixit, there is no material to show that what she claims is true. Even though she complained before the Grievance Redressal Forum, there is no mention of any complaint given to the superior officers. It is true that in Ext.P1 complaint, P.W.1 had mentioned about the earlier complaint filed before 12 Crl.Appeal.1143/2007. the Women's Commission and the complaint made to the superior officers, but conspicuously copies of those complaints were not made available. A vague statement that since no action has been taken pursuant to the complaint before the superior officers, she was compelled to file the present complaint. At any rate, there is nothing to show that soon after the incident she had filed a complaint before the superior officer as claimed by her now. 15. It is no doubt true that P.W.1 gave evidence in terms of her complaint. P.Ws.2 to 4 would say that they had seen P.W.1 coming out crying and when asked for the reason she had complained about the conduct of the accused. It is this evidence which considerably influenced the lower court to come to the finding that the incident has been proved. 16. But a reading of the evidence of P.Ws.2 to 4 do not disclose that P.W.1 had told them that either the accused Crl.Appeal.1143/2007. 13 caught hold of her hand or squeezed her thigh. That version of the incident remains confined to P.W.1. 17. The question is whether in the facts and circumstances of the case, the evidence of P.W.1 in that regard can be believed. It is here that the documents produced by the defence assumes significance and the testimony of D.Ws.1 to 4. The accused through D.W.1 had produced Ext.D12 document which is the finding entered into by the Grievance Committee. Ext.D12 is self explanatory. After elaborately considering the matter, the Committee came to the conclusion that the complaint is totally false and there was nothing to show that what P.W.1 claimed is true. 18. It is significant to notice that in Ext.D12 also the Committee has taken note of the fact that in the complaint there was no mention of the accused having caught hold of her hands. But it was at the time of hearing that she came forward with such a case and the Committee found that it is Crl.Appeal.1143/2007. 14 not established and her claim is not true. 19. Then one has to refer to Ext.D13 and the evidence of D.W.2 who caused to have Ext.D13 filed. A private complaint was laid by P.W.1 before the court which was referred for investigation under Section 156(3) Cr.P.C. After investigation Ext.D13 refer report was filed. The evidence shows that notice was given to P.W.1 regarding the refer report and the refer report was accepted. Though it may not have much relevance and significance, one has to necessarily notice that in the present proceedings, there is no reference to Ext.D13. Though technically speaking, it may not be necessary, the court below atleast should have ascertained what prompted the investigating officer to file a refer report. Whatever that be, the fact remains that the investigating officer found that the complaint was false. What is significant is that in Ext.D13 it is also mentioned that it was as a retaliatory measure to the charge memos issued to the victim Crl.Appeal.1143/2007. 15 that complaint was laid. 20. Here one has to notice the evidence of P.W.1 as regards the above fact. P.W.1 in cross-examination admitted that had not the charge memos been issued, she would not have preferred the present complaint. Of course, it is conceded by the accused that the charge memos were issued after 12.1.2002. It is therefore contended on behalf of the defacto complainant that the charge memos were issued as a retaliatory measure towards her for filing the complaint before the higher authorities. But even though P.W.1 would say that on 14[th] and 15[th] she had complained to the higher authorities, as already noticed, there is absolutely nothing to establish the same. First of the complaints comes after the memos were issued of course with regard to an incident which occurred prior to the issuance of the charge memo. But the question arises as to what actually might have transpired on 12.1.2002. There again, one may refer to Ext.D12. On going through Crl.Appeal.1143/2007. 16 Ext.D12, it is seen that it is virtually impossible that an incident of the nature mentioned by P.W.1 could take place inside the office especially when the accused is surrounded by other employees sitting near him. The Committee concerned has also taken note of the fact that a close associate of the victim, namely, Rajamma has stated that she was present there and she did not notice nor did P.W.1 tell her that any such incident had occurred. 21. May be that some unpleasant incident had taken place on 12.1.2002 near the desk of the accused. But it is difficult to come to the conclusion from the available evidence that either the accused caught hold of the hand of P.W.1 or that he had squeezed her right thigh. Probably as initially complained by the victim, she was asked to go out of the office and also he might have threatened her and when charge memos were issued to the victim, that might have prompted her to come forward with the complaint. 17 Crl.Appeal.1143/2007. 22. The lower court came to the finding that the charge memos were issued as a retaliatory measure to the complaint filed. First of all there is no evidence at all to show that the complaints were filed before the charge memos were issued. In the light of the statement made by P.W.1 which had been referred to above, the motive for filing a complaint becomes very clear. 23. It is true that normally a woman would be extremely reluctant to come up with such an allegation. But as rightly pointed out by the learned counsel for the appellant, the version given by the prosecutrix in all cases cannot be taken as gospel truth. If there are inherent improbabilities in the version of the prosecutrix or it is belied by other items of evidence, the court cannot simply accept the version given by P.W.1 and has to necessarily look for corroboration. Though P.Ws.2 to 4 say that they saw P.W.1 coming out crying, they did not say about the incident as such. As already stated, it is Crl.Appeal.1143/2007. 18 difficult to accept the case put forward by P.W.1. 24. In the decision relied on by the learned counsel for the defacto complainant, it has been held that delay in such cases need not be taken seriously and has to be viewed in a pragmatic manner. It was also observed that allegation of false implication cannot be easily accepted, for, it brings no credit to the victim, but only brings her humiliation. 25. There can be no quarrel with the above proposition. But the question is whether they apply to the facts of the present case. In the case on hand, various items of evidence show that there has been consistent effort on the part of the victim to improve her case to suit the circumstances. It has to be noticed that the complaint in the present form comes up after the report of the Committee which found that there was no substance in the complaint and also after the refer report by the investigating officer pointing out that no such incident has taken place and that the Crl.Appeal.1143/2007. 19 complaint before the court was as a retaliatory measure to the charge memos issued by the accused. Under these circumstances, the possibility of cooking up an incident to wreak vengeance against the accused cannot be ruled out. At any rate, the accused is entitled to benefit of doubt. 26. Considering the argument raised by the learned Public Prosecutor regarding applicability of Section 509 of I.P.C., it is difficult to accept the same. There is nothing to show that the accused had behaved indecently to the victim. The evidence of P.Ws. 2 to 4 show that P.W.1 is very timid. The evidence also shows that the accused had told the victim that it will be difficult for her to get a posting in Gang I as one Gopalakrishnan, senior to her, had applied for the same and in the light of the fact that his application is pending, it is unlikely that she would get a posting. That might have disappointed the victim and there might have occurred some exchange of words and that might have prompted the Crl.Appeal.1143/2007. 20 ## complainant to prefer the complaint. 27. This court is unable to accept the finding of the court below that the prosecution has succeeded in establishing the case against the accused. In the result, this appeal is allowed, the conviction and sentence passed by the court below are set aside and the accused stands acquitted of the said offence. 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.