S. Shibu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934 CRL.A.No. 253 of 2012 (B) -----------------------[AGAINST THE JUDGMENT DTD.28.9.2011 IN SC.1624/2009 of the SESSIONS COURT,KOLLAM] APPELLANT(S): ------------ S.SHIBU C.NO.4981, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.K.M.SANAL (STATE BRIEF) RESPONDENT(S): -------------- STATE OF KERALA BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 253 of 2012** **----------------------------------------** Dated this the 4[th] day of September, 2012 ## **J U D G M E N T** The sole accused in S.C.No.1624 of 2009 in the court of Sessions Judge, Kollam is the appellant as he is aggrieved by the judgment dated 28.9.2011 of the above court by which he is convicted and sentenced for the offences punishable under Sections 450,366 and 376 of I.P.C. 2. The case of the prosecution is that PW1, the victim was a student of 9[th] Standard in the Maroor Government High School, who fell in love with the accused and one day in June,2007, the accused came to her house in his autorickshaw at noon while she was alone and making her to believe that they can live as husband and wife, the accused had sexual intercourse with her, who was a minor at that point of time. It is the further case of the prosecution that thereafter, on 11.7.2007, while she was on her way to school and when she reached in front of the house of Karthika, the accused came with an Crl.A.No.253 of 2012 :-2-: autorickshaw and took her therein stating that they are going to the house of his uncle at Achencovil and thereafter, went to the house of the accused at Vamanapuram, where the grandmother, brother and his sister-in-law were residing and he introduced her to them as his wife and resided there indulging in sex on the promise to marry her. Later on, she came to know that the accused has another wife. Subsequently, her mother and sister came there and she returned home along with them. Thus, on the basis of the information furnished by PW1, crime No.436 of 2007 was registered in the Pathanapuram Police Station for the offences punishable under Sections 366A, 450 and 376 of I.P.C. On completing the investigation, a report was filed for the offences punishable under Sections 450,366 and 376 of I.P.C. and on receiving such report, C.P.No.162 of 2009 was instituted in the Judicial First Class Magistrate Court-III, Punalur. Subsequently, by order dated 31.10.2009, the learned Magistrate committed the case to the Sessions Court wherein S.C.No.1624 of 2009 was instituted. 3. The accused was in custody and he was unable to engage a Crl.A.No.253 of 2012 :-3-: counsel of his own choice and therefore, legal aid was given by the District Legal Services Authority by engaging one Sri.G.P.Anil Kumar. Thus, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offences punishable under Sections 449,376 and 366 of I.P.C. and later on, the charge was altered to a charge for the offences punishable under Sections 450,366 and 376 of I.P.C. and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, prosecution adduced its evidence by examining Pws.1 to 16 and producing Exts.P1 to P13. Besides that, Mos.1 to 7 were also identified and marked as materials objects and Ext.X1 is also marked. After considering the entire evidence and materials, the trial court has held that the prosecution has established with convincing evidence that the accused has committed the offences punishable under Sections 450,366 and 376 of I.P.C. and accordingly, the accused is convicted for the said offences punishable under Section 235(2) of Cr.P.C. On such conviction, the accused is Crl.A.No.253 of 2012 :-4-: sentenced to undergo rigorous imprisonment for a period of seven years for the offence under Section 450 of I.P.C. and for a period of ten years for the offence under Section 366 of I.P.C. and for a period of ten years for offence under Section 376 of I.P.C. The sentence is ordered to run concurrently. Set off is allowed under Section 428 of Cr.P.C. It is the above finding, order of conviction and sentence are challenged in this appeal. 4. As in the trial court, the appellant is not in a position to file an appeal by engaging a counsel of his choice, he preferred the appeal from the jail. Hence, this Court directed the Registry to appoint a counsel from the panel of State Brief to prosecute the appeal on behalf of the appellant. Thus, the Registry has appointed an Advocate Sri.K.M.Sanal from the panel of State Brief to prosecute the matter on behalf of the appellant. Thus, I have heard State Brief Sri.K.M.Sanal, learned counsel for the appellant and Smt.T.Y.Laliza, learned Public Prosecutor for the State. 5. The entire prosecution case mainly depends upon PW1, Crl.A.No.253 of 2012 :-5-: who is the victim in the present case. When PW1 was examined, she had deposed that she knows the accused, who was an autorickshaw driver at Pathanapuram and according to her, on 23.6.2007, while she was alone at her home, the accused came and told her that he loves her and likes to marry her. According to PW1, on hearing the same, she advised the accused to tell the matter to her mother, but he replied that he will speak with her mother on a later day and thereafter, he took her by force to the corner of the room and committed rape on her. It is the further case of the prosecution that when she attempted to cry out, the accused muffled and intimidated her with a warning that if she had not been subjected to his desire, he will do the same against her sister as well. It is the further case of PW1 that as directed by the accused, she had gone with the accused on 11.7.2007 and she was taken in an autorickshaw driven by the accused to the house of an old man (his old uncle) and an elderly lady at Achankovil and thereafter, the accused took her to his house at Vamanapuram where the old lady, the brother of the accused and his sister-in-law (PW9) were residing. Crl.A.No.253 of 2012 :-6-: According to PW1, she was introduced to them as the girl brought by the accused. It is the further case of the victim that at that house, they lived as husband and wife for about 2 to 3 months. According to PW1, when the accused went to a place called Padom to pluck pepper for few days, and during his absence, PW1 was told by the sister in law of the accused viz, PW9 that the accused is a person of having bad character and he had wife and children. According to PW1, when the accused was not there in the house, she went out and informed her whereabouts to her mother and accordingly, her mother took her back. During the examination of PW1, she had deposed that after returning from the house of the accused, she launched Ext.P1 F.I.statement in the Pathanapuram Police Station. She had also identified Ext.P1 F.I.statement and Ext.P1(a) body note. Ext.P14 Birth Certificate of PW1 is marked with consent. Besides the above, she had also identified certain material objects which were marked through her. Thus, MO1 top, MO2 middy, MO3 churidar, MO4 pant, MO5 nighty, MO6 kaily and MO7 shirt worn by the accused are identified by her. Crl.A.No.253 of 2012 :-7-: 6. PW2 is a neighbour of the accused and though he was declared as hostile, as he had spoken against the prosecution, to certain extent, he had also supported the prosecution case. PW3 is the owner of an autorickshaw bearing Registration NO.KL/2/S/6553 through whom Ext.X1 agreement for sale was marked. It is the above autorickshaw, according to the prosecution, used by the accused to take the victim from her house. 7. PW4, Dr.Anjana was the then Assistant Surgeon of Taluk Headquarters Hospital, Punalur, who issued Ext.P2 wound certificate after examination of PW1, the victim. PW5 Rajamma was the then Headmistress of the Government High School, Maroor where PW1 was studying at the relevant point of time and Ext.P3 extract of the admission register of the school with respect to PW1 was proved through PW5, which would show that the date of birth of the victim was and she was at the age of 14 years while she was studying there. 8. PW6 is an attestor to Ext.P4 scene mahazar with respect to Crl.A.No.253 of 2012 :-8-: the house of the accused. He is also an attestor to Ext.P5 mahazar for seizure of MO5 nighty worn by the victim, recovered during the preparation of Ext.P4 scene mahazar. PW7 is the then Village Officer of Pattazhy Village through whom the prosecution has prepared Ext.P6 site plan with respect to the house of the victim. Similarly, PW8 is the Village Officer of the Nellanadu Village, who prepared Ext.P7 site plan with respect to the house of the accused. 9. PW9 is the lady, who is the sister-in-law of the accused and allegedly, residing in house of the accused at the relevant time. PW9 has also identified MO5 as her nighty given by her to victim and worn by her. When she was examined, she had deposed that the accused and the victim resided together in the house of the accused. 10. PW10 is the then woman Constable attached to Pathanapuram Police Station, who accompanied PW1 to the Taluk Headquarters Hospital at Punalur. PW11 is a constable attached to the above Police Station, who took samples from the Taluk Head Quarters Hospital at Punalur to Forensic Lab at Thiruvananthapuram. Crl.A.No.253 of 2012 :-9-: PW12 is the Assistant Sub Inspector of Police, Pathanapuram through whom Ext.P8 mahazar, for seizure of the cloth worn by the victim., i.e., MO1,MO2,MO3 and MO4 and Ext.P9 mahazar for seizure of MO6 and MO5 worn by the accused and Ext.P10 mahazar for the seizure of autorickshaw owned by PW3 are marked. 11. PW13 is the Doctor attached to the Government Taluk Headquarters Hospital,Punalur through whom Ext.P11 potency certificate issued by Dr.Nazir, who examined the accused as the said Dr.Nazir was not available, was proved. The preliminary investigation was undertaken by PW14, the then S.I.of Police, Pathanapuram Police Station. When PW14 was examined, Ext.P1(a) F.I.statement, Ext.P1(b) F.I.R., Ext.P12 report furnishing correct name and address of the accused and Ext.P13 scene mahazar with respect to the house of the victim are identified and marked through him. PW15 is the then C.I. of Police, Punalur who undertook the investigation after verifying the investigation conducted by PW14. PW16 is another C.I. of Police who verified the investigation undertaken by Crl.A.No.253 of 2012 :-10-: PW15. PW17 is the father of the victim who has spoken in terms of the endorsement contained in Ext.P14 birth certificate. These are the evidence and materials referred to and relied on by the learned Judge of the trial court in support of his finding and convicting the appellant. 12. Sri.K.M.Sanal, learned counsel for the appellant vehemently submitted that the entire prosecution case is false and the same was registered at the instance of the mother of the victim as the appellant has demanded back `16,000/- borrowed by her from the accused. It is also the submission of the learned counsel that the findings of the court below are absolutely incorrect and liable to be interfered with, due to the inherent vitaL defect of the prosecution case. In support of his argument, learned counsel has pointed out that there is unexplained delay in registering the F.I.R. According to the learned counsel, though the alleged incident has taken place on 23.6.2007, Ext.P1(a) F.I. statement was given only on 20.10.2007 and consequently, Ext.P1(b) F.I.R. was registered after four months from the date of the alleged incident for which there is no convincing Crl.A.No.253 of 2012 :-11-: explanation. Another important contention advanced by the learned counsel for the appellant is that the prosecution has miserably failed to prove the exact age of the victim and the discrepancies occurred between the depositions of the loyal witnesses of the prosecution and the documents show that the claim of the prosecution with respect to the age of the victim is unbelievable and unsustainable. Therefore, according to the learned counsel, in the light of the decisions reported in **State of H.P.** v. **Dharam Dass** [1992 Crl.L.J.1758], **Lalta Prasad** v. **State of M.P.** [(1979)4 SCC 193] and **Kanchan Dass** v. **State** [1991 Crl.L.J.2036], the findings of the court below with respect to the age of the victim are absolutely incorrect and unsustainable. It is also the case of the counsel that PW4, the Doctor, who claimed to have examined PW1 has not conducted anthropological test to determine the age of the victim. Therefore, according to the learned counsel, in the absence of any acceptable evidence, especially when Ext.P14 birth certificate rendered as unbelievable, it cannot be said that the prosecution has succeeded in establishing the allegation Crl.A.No.253 of 2012 :-12-: against the accused that he had committed rape on PW1, a minor. 13. The learned counsel has pointed out that going by the evidence of PW3, it can be seen that the autorickshaw, which was taken from him, was returned within one hour, but PW1's deposition shows that after taking the autorickshaw, which belongs to PW3, the accused and the victim reached in the house of the accused at about 10.30 p.m. and thus, according to the counsel, the above two evidence of Pws.3 and 1 contradict each other and therefore, the prosecution evidence cannot be believed. Another important contention advanced by the learned counsel is that there is no whisper in Ext.P1(a) F.I.statement of PW1 regarding the alleged abduction. It is also the submission of the counsel that even according to PW1, she volunteered to go with the accused and she herself returned to her home with her mother and therefore, there is no element of missing or forceful abduction and therefore, according to the counsel, in the light of the decisions reported in **Baldeo** v. **State of U.P.** [1993 Crl.L.J.1915], 2010(4) KHC 294, **Kuldeep.K.Mahato** v. **State of** Crl.A.No.253 of 2012 :-13-: **Bihar** [AIR 1998 SC 2694], **Suresh Babu** v. **State of Kerala** [2001 (1) KLT 80] and **Jinish Lal Sah** v. **State of Bihar** [(2003)1 SCC 605], the prosecution has failed to establish the essential ingredients of Section 363 or 366 of I.P.C and especially when she was in love with the accused and she was inclined to marry him. 14. It is the next contention of the learned counsel for the appellant that the available evidence or materials are not sufficient to hold that the accused has committed rape on the victim. In support of the above contention, it is pointed out that even the learned Judge has recorded in the deposition of PW1 that the victim was reluctant to answer the question as to whether there was penetration. The counsel assures that the medical evidence are also not sufficient to hold that there was sexual intercourse. Thus, according to the learned counsel, the findings of the court below and the conviction recorded against the appellant are factually and legally unsustainable and the same are liable to be set aside. 15. On the other hand, Smt.T.Y.Laliza, the learned Public Crl.A.No.253 of 2012 :-14-: Prosecutor submitted that Exts.P3 and P14 documents and evidence of Pws.1 and 17 would show that at the relevant point of time, the victim was a minor and therefore, even if it is admitted that the rape with the victim was with her consent, an offence under Section 376 of I.P.C. is attracted against the accused. According to the learned Public Prosecutor, the very allegation of the prosecution against the accused is that the victim was enticed away by the accused with an offer to marry her and thereafter, she was subjected to sexual intercourse and when the victim came to know about the fact that the accused has another wife and children, she left the company of the accused. Thus, according to the learned Public Prosecutor, the delay was occurred under the above circumstances, which cannot be treated as a discredit to the prosecution case. It is also the submission of the learned Public Prosecutor that the evidence of PW1 proves positively that the accused trespassed into the house of the victim and committed rape on her which fact is further proved through the deposition of PW4 and supported by Ext.P2 wound certificate. It is also the submission of Crl.A.No.253 of 2012 :-15-: the learned Public Prosecutor that the evidence of PW9, the sister in law of the accused and the contemporary documents like Ext.P4 and P5 are also sufficient to prove the case of the prosecution against the accused. Hence, according to the Public Prosecutor, no interference is warranted. 16. I have carefully considered the arguments advanced by the counsel for the appellants as well as the learned Public Prosecutor. I have also gone through the evidence and materials available on record and the authorities cited and perused the impugned judgment. 17. In the light of the rival arguments advanced by counsel for the appellant as well as the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offences punishable under Sections 450,366 and 376 of I.P.C. 18. At the outset, it is to be noted that admittedly, the parties are not strangers, even according to PW1/the victim, the accused used Crl.A.No.253 of 2012 **==> picture [27 x 9] intentionally omitted <==** to come to her house. It is also a fact that she volunteered to go along with the accused. The case of the accused is that the mother of the victim has borrowed a sum of `16,000/-, which was not repaid and the present case was registered since he had demanded back the amount. Of course, no evidence is adduced in this regard. Suffice to say, the appellant could not engage a counsel of his own choice during the trial of the case and even in the appellate stage. According to me, the entire prosecution case has to be examined in the above backdrops of the case. The learned Public Prosecutor has not countered the argument advanced by counsel for the appellant that the offence under Section 366 of I.P.C. is not attracted against the accused, especially in ' the light of the decision reported in Kuldeep.K.Mahato s case [AIR 1998 SC 2694]. In the above decision, the Apex Court has held in paragraph 9 as follows:- “ _9. As far as conviction under Section 366 is concerned, we find that the evidence of prosecutrix in the (sic) behalf is not conclusive. Her evidence does not_ Crl.A.No.253 of 2012 :-17-: _indicate that the appellant had kidnapped prosecutrix with the intention to marry with her against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding conviction under Section 366 are not proved and, therefore, the conviction of the appellant under Section 366 cannot be sustained.”_ It is admitted by PW1 that she was in love with the accused and she had eloped with him. Therefore, in the light of the above decision, I have no hesitation to hold that the prosecution has failed to establish the essential ingredients of Section 366 of I.P.C. against the appellant and therefore, the appellant is entitled to get an acquittal of the charge for the offence under Section 366 of I.P.C. 19. Now let me consider the question as to whether the prosecution has succeeded in establishing the guilt of the accused under Section 450 of I.P.C. in committing house trespass with the intention to commit the offence punishable for imprisonment for life. In the present case, the specific allegation of the prosecution is that Crl.A.No.253 of 2012 :-18-: the accused committed rape on the victim, who is a minor, on 23.6.2007 after trespassing into the house of the victim. Therefore, according to me, it is inevitable to find out whether the prosecution has succeeded in establishing the offence under Section 376 against the accused that he had committed the rape on the victim on 23.6.2007 at the house of the victim after trespassing into her house and as the evidence and materials are interlinked, both the above questions can be considered together. 20. Having regard to the facts and circumstances involved in the case particularly, the nature of prosecution allegation and evidence involved in this case, the primary question to be considered is whether the prosecution has succeeded in proving its allegation that the victim was a minor at the time of the alleged rape on 23.6.2007. It is true, when PW1 was examined, she had deposed before the court that at the relevant point of time, he was studying in the IXth standard in the Government High School, Maroor and she was at the age of 14 years. In this juncture, it is also relevant to note that PW1 has also Crl.A.No.253 of 2012 :-19-: admitted that she was in love with the victim. In view of Section 375 of I.P.C., in order to attract the offence of rape, the prosecution has to establish that the intercourse was against the will of the victim and without her consent, if the victim is a major, besides other facts. Otherwise, the offence under Section 376 is attracted, if the prosecution has succeeded in proving that the victim was a minor, at the relevant point of time, even if the sexual intercourse was with her consent and will. In the present case, as in any other case, the prosecution is duty bound to prove beyond reasonable doubt that PW1/the victim was a minor at the relevant point of time and also to prove that the victim was subjected to sexual intercourse. Now let me examine whether the prosecution in the present case has succeeded in establishing the above two facts beyond reasonable doubt. 21. To prove the age of the victim, the prosecution mainly depends upon the deposition of PW1/the victim as well as PW17, the father of the victim. Suffice to say, the mother of the victim was not examined in this case. Besides the above oral evidence, the Crl.A.No.253 of 2012 :-20-: prosecution has also relied upon the documents viz., Ext.P3 extract of the admission register of the Govt. High School, Maroor and Ext.P14, the birth certificate issued from Adoor Municipaliry. PW5 is the then Headmistress of the school mentioned above. What she had stated is that school-ല� admission register-ല� custodian ഞ�ന�ണ�. ശര�യ�യ�� സത�മ�യ�� എഴ�ത� സ�ക�ക�ന Register ആണ�........................................................ അത� പ�ക�ര� Arya.M.-ല� D.O.B. 4.12.1992 ആണ�. During the cross examination, it is found that the address of the student and her father as per Ext.P3 is Thadathil Melethil, Kurumpakara.P.O. PW5 does not say, how the admission register is maintained and on what basis, the endorsement made in the admission register. She has also not stated as to whether any birth certificate was produced at the time of the admission of the student. She has also not deposed as to whether the person, accompanying the student, has furnished any details with respect to the age and date of birth of the student. It is true, Ext.P3 pertains to the admission register of the Government High School, Maroor. But, no fact is brought out when PW5 was examined to show Crl.A.No.253 of 2012 **==> picture [27 x 9] intentionally omitted <==** as to how the admission register is maintained and how the endorsements therein are made. The absence of any deposition from the part of PW5 in this regard is vital and relevant when Ext.P14 birth certificate of the victim is examined. Ext.P14 birth certificate is also marked with consent. The prosecution has not examined any authorities of the Adoor Municipality and therefore, the defence has been denied the opportunity to make any cross-examination with respect to the correctness of Ext.P14 birth certificate. On a perusal of Ext.P14 birth certificate, it can be seen that the date of birth is shown as 4.12.1992, whereas the birth was registered in the Municipality on 10.10.1992 i.e., nearly two months in advance of the date of birth. No explanation is forthcoming from the part of the prosecution as to how the birth was registered on 10.10.1992 with respect to a baby who born on 4.12.1992. It is true that the date of birth shown in Ext.P3 and Ext.P14 is one and the same. But, the defect which I pointed out earlier with respect to Exts.P3 and P14 is not explained so as to accept Exts.P3 and P14 as legal and acceptable document. Thus, according Crl.A.No.253 of 2012 :-22-: to me, there is no acceptable and legal evidence to show that the victim was a minor at the time of the alleged rape on her on 23.6.2007. Having regard to the facts and circumstances involved in the case, it is an unshifted burden of the prosecution to prove positively the exact date of birth of the victim so as to establish that the victim was a minor at the time of the alleged offence, especially when the victim herself admitted that she was in love with the accused at the relevant point of time. 22. In this juncture, it is also relevant to note that as I indicated earlier, the next question to be considered is whether the prosecution has succeeded in proving that the accused has committed rape on the victim either on 23.6.2007 or on any date during which PW1 resided along with the accused. In this case, it is relevant to note that though the first rape alleged was on 23.6.2007, according to PW1 and the prosecution, PW1 had resided along with the accused till she was taken back by her own mother and till that time, she was subjected to sexual intercourse. But, Ext.P2 wound certificate does Crl.A.No.253 of 2012 :-23-: not suggest anything to show that the victim was subjected to recent sexual intercourse or near or about that date. The history noted in Ext.P2 wound certificate is “3 മ�സമ�യ�ട� വ#ട�ല ന�ന�� സ%ന� ഇഷപ�ക�ര� Shibu എനയ�ള*�ല+�പ� ഇറങ�ളപ�യ�. Shibu-വ�ല� വ#ട�ല ത�മസ�ചത���� ഒര�മ�ച� കഴ�ഞത���� ലവച�” It is also recorded that the vagina admits one finger loose. The opinion of the Doctor recorded in Ext.P2 is that there is evidence of previous sexual intercourse, but no evidence of resistance. But the doctor has not opined about recent sexual intercourse. The Doctor, who issued Ext.P2 and was examined as PW4, has stated that the hymen torn old and cananculae hymenalis present, which means, the hymen has already been torn. PW4 has also repeated the opinion as stated in Ext.P2. Neither in Ext.P2 nor in the evidence of PW4, she has stated that the victim was subjected to intercourse recently. Now, let me examine the deposition of PW1 with respect to the allegation against the accused that he had sexual intercourse with the victim/PW1. In this juncture, it is relevant to note that when PW1 launched Ext.P1(a) Crl.A.No.253 of 2012 :-24-: F.I.statement, the exact date of the first rape was not mentioned and the time is also not mentioned. It is also relevant to note that in Ext.P1(a) F.I.statement, she has not stated anything about the overt act of the accused towards the commission of rape on her. But, when she was examined, in the chief itself, she had volunteered to say the date of the first sexual intercourse and also the overt act of the accused. But, it is pertinent to note that when she was deposing about the overt act of the accused, the Public Prosecutor in the trial court put a specific question to her. The following extract from the deposition of PW1 is quoted herein below for convenience:- “എന�ട� അയ�ള എലന ബ�മ�യ� ��+�ച� മ�റ�യ�ല+ ഒര� side-ല ക�+ത�. എന�ട� എലന ലകട���+�ച�. ഞ�ന ഇട�ര�ന ��വ�+ ഊര�. എന�ട� പ�ത�യ�ല+ മ�പത� ഒഴ�ക �ന സ�ധന� എ+ �ത� ഞ�ന മ�പത� ഒഴ�യ�ക�ന�+ത� വച�. അത�അകളത�ട� കയറ�ളയ� (Q) കയറ�.(A) It is noticed the witness is reluctant to answer.” Thus, it can be seen that to the question mentioned above, the victim was reluctant to answer the same. Therefore, the learned Judge of the trial court was constrained to record that it is noticed that the witness Crl.A.No.253 of 2012 :-25-: is reluctant to answer. So regarding the fact with respect to the penetration, there is no acceptable evidence from the part of PW1. The absence of the deposition with regard to the penetration is relevant in the present case since neither in Ext.P2 nor in the deposition of PW4/the Doctor concerned, there is any positive evidence to show that the accused has committed rape on the victim. It is also relevant to note that there is no whisper in the evidence of PW1 as to how the accused committed rape on her after her elopement with the accused. She does not say any overt act of the accused to commit rape as she had stated during the chief examination with respect to the alleged incident on 23.6.2007. So regarding the offence of rape, according to me, the available evidence including the evidence of PW1 and the medical evidence are insufficient. So, according to me, the prosecution has miserably failed to prove positively that the accused has committed rape on PW1 either on 23.6.2007 or any date while PW1 was along with the accused after their elopement from the house of PW1. Crl.A.No.253 of 2012 :-26-: 23. In this juncture, it is pertinent to note that the allegation of the prosecution is that the accused, after having committing the offence of house trespass, committed rape on PW1 in her house and therefore, Section 450 of I.P.C. is attracted. It is an admitted fact as I indicated earlier, the accused is not a stranger to the victim or the inmates of the house of the victim. It is also admitted by PW1 that she was in love with the accused. No complaint regarding the house trespass and commission of offence of rape is reported to the Police by any of the prosecution witnesses, including the mother of PW1, before the registration of Ext.P1(b) F.I.R. In Ext.P1(a) F.I.statement, the exact date or time of the alleged trespass is not mentioned. It is only when PW1 was examined in the court, she had stated that the accused trespassed into the house on 23.6.2007. The above version of PW1, according to me, cannot be believed since if the said fact is correct, she could have stated the time and date of trespass in Ext.P1 (a) F.I.statement itself. In this juncture, it is also relevant to note that even according to PW1, the mother of PW1 contacted her in person Crl.A.No.253 of 2012 :-27-: one week back before she left the house of the accused. At that time also, the mother of the victim had not opted to make any complaint before the Police. On further examination of the evidence of PW1 regarding the alleged trespass on 23.6.2007, it can be seen that according to PW1, her sister was not in the house as she had gone out for playing. No explanation is forthcoming why PW1 was available in the house at the alleged time. There is no whisper about the mother of PW1 at the relevant point of time of the alleged trespass and the offence of rape. In the absence of any explanation or assertion in the deposition of PW1 about her mother, naturally it can be expected that her mother, being a lady and head of the family, was there in the house. There is no evidence to come to a conclusion that the mother was absent in the house. If that be so, she was expected to question the presence of the accused at the relevant time, if the said fact is correct. PW1 has no case that the accused had come without the notice of any person or neighbours. No neighbouring or adjacent residents or persons were examined to prove the presence of the Crl.A.No.253 of 2012 :-28-: accused on the alleged date of trespass. Even otherwise, it is relevant to note that the accused is not a stranger to PW1 or her mother or her sister since according to the prosecution, he used to visit the house. If that be so, his presence, even if, it is considered as true, cannot be treated as criminal intention, especially when the prosecution has miserably failed to prove the alleged rape of PW1 on 23.6.2007. So, the prosecution allegation that the accused has committed house trespass is not proved with sufficient materials and evidence. Thus, according to me, the finding of the court below that the accused has committed the offence under Section 450 is not legally and factually sustainable. 23. In the light of the foregone discussion and the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove the allegation against the accused beyond reasonable doubt and therefore, the appellant/accused is entitled to get the benefit of doubt and consequently, an order of acquittal. Therefore, the conviction recorded by the trial court against the Crl.A.No.253 of 2012 :-29-: appellant for the offence punishable under Sections 366,376 and 450 of I.P.C. is liable to be set aside and I do so. In the result, this appeal is allowed setting aside the judgment dated 28.9.2011 in S.C.No.1624 of 2009 of the court of the Sessions Judge, Kollam and the appellant is acquitted of all the charges levelled against him and he is set at liberty. As the appellant is acquitted of all the charges levelled against him, he is entitled to get released from the jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Thiruvananthapuram for appropriate action. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.253 of 2012 :-30-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.253 of 2012 :-31-: ## **JUDGMENT** Dated:11.11.2011