PRASANNAKUMAR; HARIKUMAR; GIREESH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 CRL.A NO. 186 OF 2014** **SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,** ## **MANANTHAVADY** ## **APPELLANT/ACCUSED NO.1:** **PRASANNAKUMAR AGED 47 YEARS S/O.MADHAVAN NAMBIAR, SREESADHAN (H), PULPALLY AMSOM, PULPALLY, WAYANAD DISTRICT.** **BY ADVS. S.RAJEEV K.K.DHEERENDRAKRISHNAN M.REVIKRISHNAN** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.202/2009 OF PULPALLY POLICE STATION, WAYANAD DISTRICT)** **BY SMT.O.V.BINDU, P.P., SMT.AMBIKA DEVI S, SPL.G.P.,** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH CRL.A.192/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A Nos. 186, 192 & 193 OF 2014** 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 CRL.A NO. 192 OF 2014** **SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,** ## **MANANTHAVADY** **APPELLANT/ACCUSED NO.2:** **HARIKUMAR AGED 50 YEARS S/O.GOPALAN NAIR, PERUMAYIL(H), ROYALPADI, ERIYAPPALLY, PULPALLY.** **BY ADV SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENT/COMPLAINANT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.202/2009 OF PULPALLY POLICE STATION,WAYANAD DISTRICT).** **BY ADVS. SMT.AMBIKA DEVI S, SPL.G.P., SMT.O.V.BINDU, P.P.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH CRL.A.186/2014, 193/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A Nos. 186, 192 & 193 OF 2014** 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944 CRL.A NO. 193 OF 2014** **SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,** ## **MANANTHAVADY** **APPELLANT/ACCUSED NO.3:** **GIREESH AGED 38 YEARS S/O.KRISHNANKUTTY, ERAMBIL (H) PADICHIRA AMSOM, CHETTAPPALAM** **BY ADV SRI.V.VINAY** ## **RESPONDENT/COMPLAINANT/STATE::** **STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 (CRIME NO 202/2009 OF PULPALLY POLICE STATION,WAYANAD DISTRICT)** **BY SMT.AMBIKA DEVI S, SPL.G.P., SMT.O.V.BINDU, P.P.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH CRL.A.192/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A Nos. 186, 192 & 193 OF 2014** ## 4 ## **J U D G M E N T** These appeals have been preferred by the accused Nos.1 to 3 in S.C No.24 of 2013 on the files of the Special Court of the trial of offences under the SC/ST (Prevention of Atrocities) Act cases, Mananthavady (for short, 'the Court below') challenging the judgment of conviction and sentence dated 21.02.2014. 2. The accused (three in numbers) faced trial for the offences punishable under Sections 342, 506(ii), 376(2)(g) r/w 34 of IPC and Sections 3(2)(v) and (xii) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act (for short 'SC/ST (PoA) Act'). 3. The victim is a member of the Scheduled Caste. The accused are not members of the Scheduled Caste. Admittedly, during the alleged time of the incident, the victim was working as a domestic servant at the house of the 1[st] accused. The 1[st] accused along with his wife, children and grandmother (PW7) were residing at the said house. The accused Nos.2 and 3 are the friends of the 1[st] accused. It is not in dispute that they used to visit the house of the 1[st] accused. The prosecution allegation is that on 04.02.2008 at 10.30 a.m., when the wife, children and grandmother of the 1[st] accused were away from the house, the 2[nd] **CRL.A Nos. 186, 192 & 193 OF 2014** **==> picture [7 x 9] intentionally omitted <==** and 3[rd] accused came to the house of the 1[st] accused and all the accused with common intention to commit rape on the victim, brought her to the bedroom of the house, tied her right leg on a cot, muffled her with a towel and thereafter committed rape on her. It is further alleged that the accused threatened her that if she discloses the incident to anybody, she will be killed and her family will be ruined. 4. According to the victim, even though she preferred a complaint to the police immediately after the incident, the police did not take any action. Thereafter, she preferred Ext.P1 private complaint at the Judicial First Class Magistrate Court-II, Sulthan Bathery. The learned Magistrate forwarded the complaint to the police for investigation and Ext.P9 FIR was registered by PW15, who was the SHO, Pulpally Police Station. After completing the investigation, final report was filed against the accused Nos.1 to 3 for the offences punishable under Sections 342, 506(ii), 376(2)(g) r/w 34 of IPC and Sections 3(2)(v) and (xii) of the SC/ST (PoA) Act. 5. All the accused appeared at the court below and they were released on bail. The court below framed the charge against the accused under the above mentioned sections. The charge was read over and explained to the accused who pleaded not guilty. On the side of the **CRL.A Nos. 186, 192 & 193 OF 2014** **==> picture [7 x 9] intentionally omitted <==** prosecution, PWs 1 to 19 were examined and Exts.P1 to P20 were marked. On the side of the defence, 5 witnesses were examined as DWs 1 to 5 and Exts.D1 to D7 were marked. After trial, the Court below found that the accused committed the offences punishable under Sections 342 and 376(2) r/w 34 of IPC and they were convicted for the said offences. The 1[st] accused was also found guilty of the offence punishable under Section 506(ii) of IPC and he was convicted additionally for the said offence as well. The accused were sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- each, in default to suffer simple imprisonment for one year each for the offence punishable under Sections 376(2) r/w 34 of IPC and to undergo rigorous imprisonment for one year each for the offence punishable under Section 342 of IPC. The 1[st] accused was further sentenced to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 506(ii) of IPC. The accused were acquitted for the remaining offences. Aggrieved by the said conviction and sentence, the 1[st] accused preferred Crl .Appeal No. 186 of 2014, the 2[nd] accused preferred Crl. Appeal No.192 of 2014 and the 3[rd] accused preferred Crl. Appeal No.193 of 2014. Since all the appeals are connected, I am disposing of them together. **CRL.A Nos. 186, 192 & 193 OF 2014** 7 6. I have heard Sri.Vijayabhanu, the learned Senior counsel appearing for the 1[st] accused, Sri.K.K.Dheerendrakrishnan, the learned counsel appearing for the 2[nd] accused, Sri.V.Vinay, the learned counsel appearing for the 3[rd] accused and Smt.O.V.Bindu, the learned Public Prosecutor. 7. The learned counsel for the accused impeached the findings of the Court below on appreciation of evidence and resultant finding as to the guilt. The learned Senior Counsel, Sri.Vijayabhanu, submitted that the conviction is based on the uncorroborated testimony of the victim which suffers from contradictions and omissions. The learned Senior Counsel further submitted that there was unexplained delay of about 1 year and 7 months in preferring Ext.P1 complaint, the benefit of which should go to the accused. The learned counsel for the 2[nd] accused Sri.K.K.Dheerendrakrishnan drew my attention to the various circumstances which made the prosecution story highly improbable. The counsel submitted that the evidence of PW1 cannot be relied on by virtue of the inherent improbability of the case and other items of evidence adduced by the defence. The learned counsel for the 3[rd] accused Sri.V.Vinay, submitted that there is no satisfactory legal evidence against the accused to attract the offence under Sections 342 **CRL.A Nos. 186, 192 & 193 OF 2014** 8 and 376(2)(g) r/w 34 of IPC. Per contra, the learned Public Prosecutor, Smt.O.V.Bindu, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Sections 342, 376(2)(g), 506(ii) r/w 34 of IPC have been established against the accused and the prosecution has succeeded in proving the case beyond reasonable doubt. The learned Public Prosecutor further submitted that PW1, being the prosecutrix in a rape case, her evidence has to be given due weight and there is no reason to disbelieve her. 8. The court below mainly relied on the testimony of the victim/PW1 to prove the incident and to fix the culpability on the accused. It is true that the conviction for the offence u/s.376 of IPC can be based on the sole testimony of the rape victim, provided it is safe, reliable and worthy of acceptance [see _**State of Rajasthan v. Om Prakash**_ [(2002) 5 SCC 745], _**State of H.P. v. Suresh Kumar**_ [(2009) 16 SCC 697], _**Vijay v. State of Madhya Pradesh**_ (2010(8) SCC 191), _**Aslam v. State of U.P.**_ (2014 AIR SCW 1242)]. However, it is equally settled that to base a conviction on the basis of solitary testimony of the victim, the credibility of the witnesses should be free from blemish or suspicion and the quality of her evidence should impress the court as natural, wholly truthful and convincing enough for **CRL.A Nos. 186, 192 & 193 OF 2014** 9 the court to unhesitatingly record a conviction. One of the cardinal principles of our system of administration of criminal justice that a person arraigned as the accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged is applicable to rape case as well. Another golden thread which runs through the web of the administration of justice in criminal cases that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of doubt is also applicable to the rape case. The Apex Court in _**Abbas Ahmad Choudhary v. State of Assam**_ [(2010) 12 SCC 115] has held that in the matter of rape, statement of prosecutrix must be given primary consideration, but at the same time, broad principle that prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully. This court in _**Ratheesh v. State of Kerala**_ (2013(3) KHC 897) observed that “merely because, the victim says that she has been ravished, though it may not be disbelieved at the first instance, when evidence is adduced in the case, it has to be scrutinized in the light of the evidence available in the case. If the evidence of the prosecutrix is **CRL.A Nos. 186, 192 & 193 OF 2014** ## 10 found to be convincing and cogent, it can be acted upon. But when it is shown that she cannot be relied on by virtue of inherent improbability of the case or by other items of evidence adduced by the defence or by the prosecution, the court has to necessarily look for corroboration”. Now, let me reappreciate the evidence of PW1 to find out whether her evidence is free from blemish or suspicion and impress the court as natural or truthful. 9. It has come out in the evidence of PW1 that immediately after the incident, she preferred a complaint to the police. But no effort has been taken by the prosecution to produce and prove the said complaint. Ext.P1 complaint was filed after a period of 1 year and 7 months from the date of the incident. In Ext.P1, the victim alleged that at the bedroom of the house of the 1[st] accused, the 1[st] and 2[nd] accused committed rape on her after tying one of her legs to the cot and the 3[rd] accused facilitated the 1[st] and 2[nd] accused in the commission of offence. However, in the final report, the case projected by the prosecution is that the 1[st] and 3[rd] accused committed rape on the victim and the 2[nd] accused facilitated the commission of offence. When the charge was framed by the Court, the allegation was that it was the 1[st] and 2[nd] accused who committed the rape and that the 3[rd] accused only **CRL.A Nos. 186, 192 & 193 OF 2014** 11 facilitated the commission of offence. When PW1 was in the box, her version was that it was the 1[st] and 3[rd] accused who committed rape on her and the 2[nd] accused only facilitated the 1[st] and 3[rd] accused in committing the rape. Her said evidence in the box goes against the pleadings in Ext.P1. These contradictions were brought in the cross examination of PW2. She has even denied the averment in Ext.P1 that the 1[st] and 2[nd] accused committed rape on her. That apart, at the dock, she wrongly identified 2[nd] and 3[rd] accused. She had identified the 2[nd] accused as the 3[rd] accused and the 3[rd] accused as the 2[nd] accused. Thus, the case projected by the victim in Ext.P1 which was filed after a long period from the date of the incident and the evidence given by her regarding the overt act of each accused is mutually contradictory. There is no proper dock identification also. 10. PW1 in evidence admitted that she disclosed the incident to one of her neighbours and relative Smt.Remabhai after two weeks of the incident. She also admitted that, after the incident, she went to a tribal lady and sought treatment. But none of them were cited as witness. DW4 is the person who in fact brought the victim to the house of the 1[st] accused. As per the prosecution case, immediately after the incident, the victim was taken to her home by DW4. DW4 was not **CRL.A Nos. 186, 192 & 193 OF 2014** 12 examined by the prosecution. On the other hand, he was examined as a defence witness. The prosecution admits that the victim was taken to her house on the alleged date of the incident by DW4. But the prosecution or PW1 has no case that she disclosed the incident to DW4. There is no explanation offered by PW1 for not disclosing the fact of rape to DW4. PW1 has also admitted that immediately on the next day of the alleged incident of rape, she went to Pulpalli Police Station along with DW4. But, no complaint was made on that occasion as well. Ext.D3 is an important document. It is the copy of a complaint dated 29/02/2008 submitted by the victim to Women's Commission alleging that she was not paid wages. In the said complaint, she has also stated that the 1[st] accused tried to misbehave with her. However, no allegation of rape was advanced by the victim in the said complaint. PW1 has admitted in cross examination that one Dy.S.P has recorded her statement during the course of the enquiry of the said complaint. Ext.D4 is the said report. She admitted that she has read and understood Ext.D4 statement given by her and it is correct. In the said statement, she was only aggrieved by the non-payment of wages. She has stated in the said statement that even the allegation regarding misbehaviour levelled by her in Ext.D3 against the 1[st] accused was not **CRL.A Nos. 186, 192 & 193 OF 2014** 13 correct. It is true that Ext.D3 complaint was preferred aggrieved by the non-payment of wages by the 1[st] accused. But in the said complaint, she had also chosen to allege that the 1[st] accused had misbehaved with her. Then definitely, the allegation of rape also could have been disclosed by her in Ext.D3. The explanation offered by PW1 that she was afraid that she will be done away and hence she did not mention the allegation of rape in Ext.D3 does not appear to be acceptable inasmuch as she had ventured herself to disclose that the 1[st] accused had misbehaved with her. The failure to mention the allegation of rape in Ext.D3 complaint casts serious doubt on the prosecution case. The undue delay of more than one and a half years in filing Ext.P1 complaint has to be viewed in this backdrop. As stated already, the victim admitted that she gave a complaint to the police immediately after the incident. It has also come out in evidence that after the incident, she disclosed the incident to one of her close relatives. She has also not chosen to allege the so called rape in Ext.D3. Still, she filed a private complaint much after Ext.D3. The explanation offered is not at all satisfactory. 11. The court below, without taking into consideration any of these aspects, relying on the interested testimony of PW1 alone, fixed the culpability on the accused. The evidence on record would show that **CRL.A Nos. 186, 192 & 193 OF 2014** 14 the credibility of PW1 is not free from blemish or suspicion. Her evidence does not impress the Court as natural or truthful. In the absence of other corroborative piece of evidence and also taking into account the circumstances mentioned above in favour of the appellants, they are entitled to the benefit of doubt. From the available evidence on record, I find that there are no convincing evidence to find that the accused have committed the offence beyond reasonable doubt. Therefore, the conviction and sentence passed by the court below cannot be sustained. In the light of the above findings, the conviction and sentence of the appellants/accused Nos.1 to 3 vide the impugned judgment are set aside and they are acquitted from the charges levelled against them. All the appeals are, accordingly, allowed. Sd/- ## **DR.KAUSER EDAPPAGATH, JUDGE** AS **CRL.A Nos. 186, 192 & 193 OF 2014** 15 ## **APPENDIX OF CRL.A.NO.186/2014** ## **PETITIONER'S ANNEXURES:** ## **ANNEXURE I** **THE APPELLANT IS PRODUCING THE COMPLAINT RECEIVED TO THE DIRECTOR GENERAL OF POLICE AND THE PROCEEDINGS THERE UPON BY DGP DATED 27.12.2017 (OBTAINED UNDER THE RIGHT TO INFORMATION ACT)** ## **ANNEXURE II** **TRUE COPY OF THE PROCEEDINGS AND THE STATEMENTS AND REPORT AND ORDER**