Ratheesh s/o Chandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 6TH DAY OF SEPTEMBER 2013/15TH BHADRA, 1935** **Crl.Rev.Pet.No. 823 of 2012 ()** **------------------------------AGAINST THE JUDGMENT DATED 16.12.2011 IN CRL.A.161/2008 OF THE COURT OF ADDITIONAL SESSIONS JUDGE (ADHOC-II), KOTTAYAM &** **JUDGMENT DATED 11.03.2005 IN SC NO.164/2006 OF THE ADDITIONAL ASSISTANT SESSIONS JUDGE, KOTTAYAM** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **-----------------------------------------** **RATHEESH S/O. CHANDRAN, MAMOOTTIL VEEDU, MOOLAVATTOM BAGHAM, MUPPAIKATTU KARA, PANACHIKKADU VILLAGE.** **BY ADVS.SRI.ALEX.M.SCARIA SMT.SARITHA THOMAS** ## **RESPONDENT/RESPONDENT/STATE:** **----------------------------** **STATE OF KERALA THROUGH C.I. OF POLICE, KOTTAYAM EAST REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.MADHUBEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BKA/-** **P. BHAVADASAN, J. -------------------------------------------------Crl.R.P. No. 823 of 2012 -------------------------------------------------Dated this the 6[th] day of September, 2013** ## **O R D E R** Aggrieved by the concurrent finding of guilt and conviction and sentence of offences under Section 376 and 417 of IPC by the two courts below, the accused has approached this Court by way of revision. 2. PW1 is the victim in this case. The alleged incident is said to have taken place on 20.10.2002 at about 11 am, which is said to be a Sunday. The victim, namely PW1, resides with her parents and her sister. On the date of the incident, her father and mother had gone for work and her sister had gone to attend stitching classes. The victim claims to have been reading newspaper when the accused forced himself into the house, snatched the newspaper from the hands of the victim and engaged her in conversation. During that time, the accused is alleged to have closed the door and Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** caught hold of the hand of the victim. Thereafter, against her will and overcoming her resistance and obstruction, the accused is alleged to have committed the offence. After the incident, it is claimed by the victim that the accused promised to marry her. Believing the promise, she did not disclose the incident to anybody. The acts were repeated thereafter. The victim conceived. When the parents of the victim came to know about the same, they approached the parents of the accused. They refused to conduct the marriage. Thereafter, the accused is said to have absconded. Later, when the victim asked the accused whether he would marry her, he refused. Then, the victim lodged the FI statement before the Police. 3. Crime was registered and investigation was conducted. The victim was sent for medical examination and after the arrest of the accused, he was sent for potency test. Statements were taken. Investigation was completed and charge was laid before the Judicial First Class Magistrate Court I, Kottayam. Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** 4. The court before which the charge was laid, took cognizance of the offence and finding that the offences are exclusively triable by a Court of Sessions, committed the case to Sessions Court, Kottayam after complying with all legal formalities under Section 209 of the Code of Criminal Procedure. The said court made over the case to the Additional Assistant Sessions Judge, Kottayam for trial and disposal. 5. The latter court on receipt of records and on appearance of the accused, framed charge for the offences punishable under Sections 376 and 417 of IPC. 6. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 11 examined and Exts. P1 to P4 and P1(a) marked. 7. After the close of the prosecution evidence, the accused questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him. The accused pointed out that the Crl.R.P. No. 823 of 2012 ..4.. victim and the accused are relatives and he used to visit her house. The stand taken by the accused is that even if there were any physical relationships between the two, they were with mutual consent and not by force. He also pointed out that the victim had relationship with another person, and therefore, his parents refused to conduct the marriage. 8. Finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was asked to enter on his defence. He had DWs 1 to 3 examined and Exts.D1 to D4 marked. 9. The trial court, on an appreciation of the evidence, found the evidences of DWs 1 to 3 to be not acceptable and entered finding that the prosecution has succeeded in establishing the case against the accused. The accused was convicted for the offences and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of 35,000/- with a default clause of simple₹ imprisonment of one year for the offence punishable under Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** Section 376 of IPC and to undergo rigorous imprisonment for six months for the offence under Section 417 of IPC. It was also directed that if the fine amount was realized, an amount of 30,000/- shall be paid to PW1, the victim, as₹ compensation. The substantive sentences were directed to run concurrently. Set off as per law was allowed. 10. Aggrieved by the conviction and sentence of the trial court, the accused took up the matter in appeal as Crl.A.No.161/2008 before the Additional Sessions Court, Kottayam. The said court, after independent evaluation of the evidence, found no reason to interfere with the findings of the trial court and confirmed the conviction and sentence. 11. Assailing the concurrent findings, the learned counsel appearing for the revision petitioner pointed out that the courts below have not critically analysed the evidence in which case, it could have been found that the evidence of PW1 will not stand scrutiny. Due regard has not been given to Exts.D3 and D4 and the evidence of Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** DW2, which, if properly appreciated, will show that PW1 has little regard for truth. It is also pointed out that in the nature of the evidence adduced by the prosecution, it can be seen that even if there were any physical relationships between the two, they were as a result of the promise of marriage given to the victim subsequent to the act. The learned counsel went on to contend that the reasons given for the delay in lodging the FIS, which had been accepted by the courts below, cannot stand scrutiny when the evidence of PW1, PW4 etc., is evaluated and it can be seen to suffer from serious infirmities. There are considerable inconsistencies and contradictions in the evidence of witnesses regarding the time at which the parents came to know about the pregnancy of the victim as spoken to by PW4. The learned counsel also went on to point out that omissions in the evidences of PW1, which was brought out by the defence, were taken as the items of evidence by the courts below and put the accused at the time of 313 questioning and those items of evidence were used to Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** convict the accused. This, according to the learned counsel, is impermissible. The purpose of contradicting the witness with omissions is used to show that the witnesses are not worthy of credit. These vital aspects have been omitted to be noted by the courts below as a result of which a wrong conviction is passed. 12. In support of the contention that subsequent promise of marriage is not sufficient, the learned counsel relied on a decision reported in **Deelip Singh alias Dilip Kumar v. State of Bihar** (AIR 2005 Supreme Court 203), which reads as follows: “In the instant case, not at the first instance but afterwards the accused obtained consent of victim girl to sexual intercourse on the basis of promise to marry which was not acted upon. But at the first instance also, she was not subjected to rape against her will. The predominant reason which weighed with her in agreeing for sexual intimacy with the accused was the hope generated in her about the prospect of marriage with the accused. That she came to the decision to have a sexual affair only after being convinced that the accused would marry her, is quite clear from her evidence which is in tune with her earliest version in the first information report. There is nothing in her evidence to demonstrate that without any scope for deliberation, she succumbed to the psychological pressure exerted or allurements made by the accused in a weak moment. Nor does her evidence indicate that she was incapable of understanding the nature and implications of the act which she consented to. Another statement of significance is that she tried to resist the talk of marriage by telling the accused that marriage was not possible because they belonged to Crl.R.P. No. 823 of 2012 ..8.. different castes. However, she agreed to marry him after she was raped and under the impression that he would marry, she did not complain to anybody. These statements do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the marriage proposal not materializing had also entered her mind. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening. Incidentally, the awareness of the prosecutrix that the marriage may not take place at all in view of the caste barrier was an important factor for holding that her participation in the sexual act was voluntary and deliberate. In the aforesaid circumstances, it cannot be said that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. No doubt the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. But there is no evidence which gives rise to an interference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, accused cannot be convicted. Accordingly, it is contended that the conviction and sentence are clearly unsustainable in law. 13. The learned Public Prosecutor pointed out that this Court is exercising its revisional jurisdiction, which has considerable constraints, and a reappraisal or the re-appreciation of the entire evidence is not warranted. Unless the revision petitioner is able to show any illegality, impropriety or irregularity in the findings of the courts below, this Court will not be justified in interfering under Crl.R.P. No. 823 of 2012 **==> picture [20 x 8] intentionally omitted <==** its revisional jurisdiction. According to the learned Public Prosecutor, the revision petitioner has to establish that the findings are either perverse or contrary to the evidence on record. Both the courts below, according to the learned Public Prosecutor, have analysed the evidence in considerable detail and independently also, and have come to the identical conclusion that the evidence of PW1 can be accepted. That being essentially the question of fact, interference is not called for. The learned Public Prosecutor went on to point out that, may be a different view is possible, but, that is not a ground to exercise the revisional jurisdiction in favour of the accused. As regards various contentions taken by the learned counsel for the revision petitioner, the learned Public Prosecutor pointed out that they are without merits. Regarding the delay in lodging the FIS, it is pointed out that it is properly explained and, at any rate, two courts below have, on appreciation of the evidence, found that the explanation for delay is acceptable and there is no reason as to why Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** this Court should take a different view. As regards Exts.D3 and D4 documents and the evidence of DW2, it is pointed out by the learned Public Prosecutor that if the defence wanted to rely on those documents and evidence of DW2, the matters which were brought out through the evidence of DW2, should have been put to PW1 and her explanation should have been sought for and in the absence of any such exercise undertaken by the accused, the evidence of DW2 and Exts.D3 and D4 cannot be of any relevance. The learned Public Prosecutor also pointed out that there may be slight inconsistencies regarding the actual date on which the parents came to know about the incident. But, that is insignificant considering the totality of circumstances and also in the light of the fact that the issue involved is one of rape. According to the learned Public Prosecutor, no grounds are made out to interfere with the conviction and sentence. 14. The learned Public Prosecutor is fully justified in his submissions. This Court is exercising its revisional Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** jurisdiction, where the scope and power of interference is considerably limited. Unless it is shown that the findings are irregular, improper or illegal, it may not be appropriate for this Court to interfere with the concurrent findings entered into by the two courts below. It must be noticed that both the courts below have independently analyzed and assessed the evidence and found that the evidence of PW1 to PW4 is acceptable. Unless there are convincing reasons, this Court may not be justified to take a different view. 15. PW1 is the victim. Prosecution case has already been stated. The main attack against the evidence, PW1, is that though at the time of evidence she says that when she had conceived and the accused had refused to marry her, she first conveyed the incident to Joy, which according to the learned counsel is the material aspect, is absent in Ext.P1. Emphasis is laid on the fact that it was the said Joy, PW4, who conveyed the information to the parents of the victim. Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** 16. Of course, it could not be said that the above aspect is insignificant. But, how far it can affect the evidence of PW1 is the question. PW1 has given a narration of what had happened on the date of the incident. True, the PW1 has categorically denied any sort of relationship or association with the accused, which may not be in tune with the evidence of others. However, regarding the incident, the evidence of PW1 alone is available. PW1 has stated that the incident had taken place on 20.10.2002 at 11 am, which, except for the two omissions already made mention of, is same as the version in Ext.P1. In fact, going by the statement given at the time of questioning under Section 313, indirectly the relationship is admitted. But, while PW1 would characterize the first instance as forced assault, the accused would say that even if there were any physical relationships, they were with the consent of the victim. 17. The next question is whether the evidence of PW1 in that regard can be accepted. PW1 has a case that Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** she had conceived as a result of the relationship she had with the accused. It is significant to notice that she says that except for the first occasion, on the next three occasions when she had sex with the accused, it was with her consent. But, however, she would qualify the same by saying that she was made to believe that the accused would marry her. When she conceived and informed the matter to the accused, he refused to marry her. At the time of evidence, PW1 would say that she was then afraid of saying directly to her parents, and so, she conveyed the information to Joy, PW4. Joy, in turn, conveyed the information to her parents, PWs 2 and 3. As already noticed, this conveying of information to Joy is conspicuously absent in Ext.P1. But, it can have little significance. The fact remains that according to PW1, she had conceived as a result of a relationship with the accused and her parents had come to know about the same. There is some inconsistency or contradiction regarding the actual time at which the parents of the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** victim came to know about the pregnancy of PW1. As per Ext.P1 and going by the evidence of PW1, as soon as she became pregnant, she had informed the matter to the accused, who had refused to marry her, and she in turn conveyed the information to her parents. But, when we look into the evidence given by PWs 2 and 3, it would appear that they came to know about the pregnancy when she was three months pregnant. 18. The above inconsistency, if at all any, cannot be given much importance. The crux of the issue is whether the first sexual act stated to have occurred on 20.10.2002 was with the consent or without the consent of the victim. Of course, as already noticed, the complaint was laid long after the incident. But, PW1 has got a consistent case that it is the accused, who is responsible for her pregnancy. 19. Even though a suggestion is made to PW1 that the victim had relationship with another person, she stoutly denied the same. 20. The defence tried to discredit PW1 based on the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** evidence of DW1 and Ext.D2 document. The case of the victim is that after the last of the four physical contacts with the accused as a result of which she conceived, she did not have sex with the accused. Surprisingly enough, Ext.D2 report proved through the evidence of DW1, for presence of semen and spermatozoa in the specimen taken on 09.07.2003 is long after the pregnancy and it showed positive result. 21. Unfortunately, for the accused these aspects were not put to PW1 and no explanation was sought for. The evidence adduced by the defence through DW2 and DW3 are of no purpose as those items of evidence were not brought to the notice of PW1 and she was not confronted with those documents. For these reasons, contentions based on Ext.D2 and the evidence of DW1 cannot be accepted even though the courts below had not considered these aspects from such an angle. 22. As far as the delay is concerned, both the courts below have accepted the explanation offered by the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** prosecution. The evidence of PWs 1 to 4 shows that there was a proposal for marriage carried to the house of the accused, which was refused. But, here also, there is some inconsistency regarding the actual date when the refusal was conveyed to the parents of the victim as well as to the victim. If one goes by the evidence of PW1, it can be seen that as soon as she became pregnant, she has conveyed the information to the accused, who refused to marry the victim. If one goes by the evidence of PWs 2 and 3 accepting what they say is true, they came to know about the pregnancy when PW1 was three months pregnant. They say that immediately they had gone to the house of the accused and the parents of the accused refused to conduct the marriage. It is long thereafter that the complaint was laid. But, PW1 comes forward with an explanation that soon thereafter, the accused made himself scarce and therefore, they did not take action. When the accused came back, PW1 again approached him and made a demand for marriage, which he refused, and then, in that Crl.R.P. No. 823 of 2012 ..17.. state of mind, she laid the complaint. 23. In the light of the fact that there is almost an admission with regard to the physical relationships between the victim and the accused, the delay as such does not assume much importance. As regards the statement made by PWs 1, 2 and 3 about the proposal of marriage and going to the house of the accused, their evidence in that regard remains unchallenged. So also, the statement made by PW1 that the accused had made himself scarce for sometime remains unchallenged. In the light of these aspects, one finds no reason to disbelieve PWs 1 to 3 that they had made all efforts to have the issues settled by proposing the marriage of the victim with the accused. Whatever that be, the courts below, especially the trial court, had found that proper reasons have been given for the delay. Since the findings cannot be said to be perverse, no interference is called for with the findings of the courts below. 24. What now remains to be considered is the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** decision relied on by the learned counsel for the revision petitioner. The principle laid down in the above decision is already referred to. What is significant in the decision is that the apex court had occasion to note on facts that the first act of sexual intercourse was not against the will of the victim, and so, the subsequent events were assessed and analyzed and found to be with her consent. In the case on hand, PW1 has a definite case that the first act committed on 20.10.2002 was against her will and without her consent. Of course, it is true that the subsequent physical contacts admitted by PW1 were with mutual consent, but, however, as already noticed, she says that the accused had given a promise of marriage and she laboured under that belief. Therefore, though there were subsequent contacts with the consent of the victim, the principle laid down in the above decision cannot apply to the facts and circumstances of the present case. 25. A contention was raised that the day on which the first assault took place being a Sunday, it is Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** inconceivable that the parents of the victim would have gone for job and her sister, to attend stitching classes. If the defence had such a case, suggestions ought to have been made to PWs 1 to 3. There is no whisper in that regard to them and it is not a matter to be taken judicial notice of, and therefore, that contention has to fail. 26. Thus, on a consideration of the materials on record, it cannot said that the courts below had erred in any manner in coming to the conclusion that the offences have been made out, especially, when the courts below have independently considered the evidence in considerable detail and have come to identical conclusions. Probably, some of the aspects might not have been considered by the courts below, but, those aspects now considered by this Court do not seem to be much significance and make much impact on the findings of the courts below. They would have had a telling effect had they been put to PW1 to show that she was not a witness of truth. But, there was no attempt from the side of the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** accused to do so and therefore, it could not be said that based on the evidence now available, PW1 cannot be believed. 27. As is the usual case, in the case of rape, one has to considerably depend upon the evidence of the prosecutrix. Normally, the evidence of prosecutrix is given considerable weight and is equated to that of the evidence of an injured witness. Unless it is shown that by inherent improbability or by virtue of other items of evidence adduced by the prosecutrix, the version given by the prosecutrix is open to considerable doubt, it may not be appropriate for this court to look for corroboration in a case of rape. The infirmities in the evidence of PW1 pointed out have already been discussed. They are insufficient by themselves to indicate that PW1 was speaking falsehood before court. The courts below have found that her evidence is convincing, cogent and credit worthy. Sitting in revision, especially, when such a finding is possible, it will not be legal and proper to interfere with Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** the findings of the courts below. 28. Therefore, the finding of the courts below that the incident, which took place on 20.10.2002 amounted to the act of rape, does not call for any interference. The conviction has only to stand. 29. What now remains to be considered is the question of sentence. The learned counsel for the revision petitioner before this Court handed over the copy of the relevant page of the SSLC book of the accused, which shows that the date of birth of the accused is 06.12.1984. It is contended on behalf of the accused that, if that be so, as on 20.10.2002, he is below the age of 21. Then, according to the learned counsel, provisions of the Probation of Offenders Act have to be applied. 30. It is difficult to accept this belated submission. An attempt should have been made to convince the lower appellate courts. The trial court has considered the application of the Probation of Offenders Act, but, it concluded that in the nature of the act committed by the Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** accused and manner in which the act was committed etc., it will not be appropriate to apply the provisions of the Probation of Offenders Act. 31. The learned counsel for the revision petitioner then submitted that considering the totality of circumstances and the relationship between the parties, the term of imprisonment of seven years awarded is highly excessive and it is not one of those cases, where such a harsh sentence is justified. The courts below had not adverted to this aspect and mechanically had sentenced the accused. 32. There is some force in the above contentions. Even though the act of the accused cannot be justified either on facts or on law, the sentence awarded seems to be slightly on the harsh side. It is felt that for the offence under Section 376 of IPC, rigorous imprisonment for a period of two years would suffice. In the result, while confirming the conviction and sentence of the accused for the offence punishable under Crl.R.P. No. 823 of 2012 **==> picture [26 x 8] intentionally omitted <==** Section 417 of IPC and confirming the conviction for the offence punishable under Section 376 of IPC, the sentence awarded by the court below is set aside and instead the accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of 35,000/-₹ (Rupees thirty five thousand only) in default of payment of which, he shall suffer simple imprisonment for a further period of six months for the offence under Section 376 of IPC. If the fine amount is realised, it will be paid to PW1, the victim, as compensation. Set off as per law is allowed and the substantive sentence will run concurrently. This revision is disposed of as above. Sd/- **P. BHAVADASAN, JUDGE** bka/- //True copy// PA to Judge