Sajeesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 1ST DAY OF OCTOBER 2013/9TH ASWINA, 1935** ## **CRL.A.No. 1492 of 2009 ( )** **--------------------------SC.NO. 110/2008 OF ADDL.SESSIONS COURT/SPECIAL JUDGE FOR NDPS CASES, THODUPUZHA ---------------------------------** ## **APPELLANT/ACCUSED:** **----------------------------------------** **SAJEESH, S/O.JOSEKUTTY, KALATHIL(H), PIUS NAGAR P.O, MARAYOOR, IDUKKI DISTRICT.** **BY SRI.P.VIJAYA BHANU,SENIOR ADVOCATE ADV.SRI.M.REVIKRISHNAN** ## **RESPONDENTS/RESPONDENT:** **--------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## ***ADDL.R2 IMPLEADED** ***R2: SANDHYA XAVIER,AGED 29 YEARS, CHAKKUMKAL HOUSE, PIOUS NAGAR.P.O., MARAYOOR, IDUKKI.** ***IS IMPLEADED AS ADDITIONAL 2ND RESPONDENT IN CRL.A.NO.1492/09 AS PER ORDER DATED 27/8/13 IN CRL.M.A.NO.6275/13.** **R1 BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN ADDL.R2 BY ADV. SRI.B.RAGUNATHAN** **SRI.R.SRINATH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1492 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 01[st] day of October, 2013 ## **J U D G M E N T** On a private complaint, proceedings were initiated against the accused and he was tried for the offence punishable under Section 376 of the Indian Penal Code. He was found guilty of the same. He was therefore convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of 50,000/- with a default clause of₹ one year. It was also directed that if the fine amount was realized, the same was given to PW1, the victim as compensation. 2. PW1 is the victim in this case, PW2 is her mother and PW3 is their neighbour. It is strange to note that even though a private complaint is alleged to have been filed, it is not seen marked in this case. As per the allegations, PW1, the victim and the accused were neighbours. The claim is that since the accused alone had the telephone facility in the Crl.A. No. 1492 of 2009 **-2-** neighbourhood, the calls that used to come for the victim and the members of her family were through the telephone owned by the accused. On the alleged date, that is on 17.05.2004, it is claimed that at about 3.30 p.m., the accused came to the house of the victim and informed her that there was a phone call for her from her sister from Kallar. The victim believed the accused and went to his house to attend the phone call. When she did not get response through the telephone, the accused represented that the call might have been disconnected. Thereafter, it is claimed that the accused sought her help for kooking rice. While she was engaged in the act of washing the rice, the accused is alleged to have come from behind and caught hold of her. She was dragged to the bedroom, threatened and ravished. On the next day, the victim claims to have revealed the incident to her mother. The information was passed on to the father also. When the father questioned the accused regarding the incident, he was threatened with Crl.A. No. 1492 of 2009 **-3-** dire consequences. The prosecutrix married another person. Soon after the marriage, she developed abdominal pain and on meeting a doctor, it was revealed that she was carrying. When her husband learned about the same, he brought her back to her house and snapped the relationship. On 16.02.2005, she delivered a child. It is stated that complaint was filed before the Vanitha Cell which invoke no response. Ultimately, the private complaint was laid. 3. After following the necessary procedure, the case was committed to the Sessions Court. The Sessions Court, Thodupuzha, made over the case to Additional Sessions Judge/Special Judge for N.D.P.S. Act cases, Thodupuzha for trial and disposal. 4. The latter court, on receipt of records and on appearance of the accused, framed charges for the offence punishable under Section 376 of IPC. The accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 3 examined. Crl.A. No. 1492 of 2009 **-4-** 5. 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. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined DWs 1 to 4 and had Exts. D1 to D3 marked. 6. The trial court on an appreciation of the evidence in the case found the evidence of PW1 to be convincing and cogent enough and based on that evidence, found the accused guilty. Conviction and sentence as already mentioned followed. 7. The learned senior counsel Sri. P. Vijaya Bhanu appearing for the appellant assailed the finding of guilt on several grounds. It was pointed out by the learned senior counsel that the complaint which put the law in the motion has not been marked in the case and no reasons have been given for the same. That has considerably handicapped the Crl.A. No. 1492 of 2009 **-5-** accused and the accused is not in a position to understand what is the initial stand of the victim. The learned senior counsel pointed out that long delay in lodging the complaint has been lightly taken by the court below by observing that the victim was labouring under a threat meted out by the accused. 8. The learned senior counsel had no quarrel with the proposition that if as a matter of fact, the evidence of the prosecutrix is found to be cogent, convincing and credit worthy, a conviction can be certainly based on the same. It will be imprudent on the part of court under those circumstances to look for corroboration. But according to learned senior counsel, if as a matter of fact, the evidence of the prosecutrix is found to be inherently improbable or is rendered doubtful by means of other items of evidence, then the court has to necessarily look for corroboration. According to the learned senior counsel, the evidence of PW1 in this case cannot stand scrutiny and it suffers from Crl.A. No. 1492 of 2009 **-6-** several infirmities. The learned senior counsel complained that the evidence adduced by the defence has not been properly considered and has been brushed aside by observing that though the entries made in Ext.D2 and also the deposition of DW2 can be viewed only in the context of the threat effected by the accused and therefore they need more consideration. This, according to the learned senior counsel, is a wrong approach to the evidence adduced by the defence. The learned senior counsel also relied on the entry in Exts. D2 and D3 and pointed out that the prosecution has not been able to offer any explanation for the entries found in those documents which go against the prosecution case. The learned senior counsel therefore contended that conviction and sentence cannot stand. 9. The learned counsel appearing for the complainant in the case contended that the court below which had the opportunity to watch the demeanour of the witness has chosen to accept the evidence of PW1 and unless it is shown Crl.A. No. 1492 of 2009 **-7-** that it suffers from serious infirmities this Court may not be justified in ignoring the evidence of PW1. According to the learned counsel, there is no reason for PW1 to falsely implicate the accused. The reason given for the dispute regarding the property have not been proved also. In support of his contention that the evidence of prosecutrix is sufficient if found to be convincing enough, the learned counsel relied on the decisions reported in **State of Uttar Pradesh** v. **Chhotey Lal** [2011 (2) SCC 550] and **State of Madhya Pradeh** v. **Dayal Sahu** [2005 (8) SCC 122]. As regards the delay, the learned counsel pointed out that it is not of much relevance in a sexual assault case for there may be umpteen reasons why there is delay in lodging the complaint. The delay as such has not been taken as a ground for acquitting the accused. In support of his contention, the learned counsel relied on the decision reported in **Santhosh Moolya and Another** v. **State of Karnataka** [2010 (5) SCC 445]. Accordingly it is contended Crl.A. No. 1492 of 2009 **-8-** that conviction and sentence will have to stand. 10. Unusually, in this case, the complaint which set the law in the motion is not seen marked. Of course, PW1 the victim has stated that she had preferred a complaint before the Vanitha Cell which invoked no response. Copy of that was also not produced. Whatever that be, the question that arise for consideration is whether the evidence of PW1 is so convincing enough to warrant a conviction solely on that basis. 11. There can be no quarrel with the proposition that if as a matter of fact, it is found that the evidence of the prosecutrix is of high standard, conviction can be certainly based on the same. It will be imprudent in the case of sexual assault to insist for corroboration. But at the same time, in all cases, the evidence of prosecutrix cannot be taken as gospel truth. It has to be evaluated in the context in which the evidence is given. If the evidence is found to be inherently improbable or is rendered doubtful by other items Crl.A. No. 1492 of 2009 **-9-** of evidence adduced in this case, then the court may well look for corroboration. 12. Bearing the above principles in mind, an attempt shall now be made to assess and analyze the evidence of PW1. One must always keep in mind that the complaint as such has not been marked. So that it is not possible to ascertain whether there is any development, embellishment, inconsistency or contradiction between the evidence given by PW1 in Court and in the earlier version as made mention of in the complaint. 13. PW1 says that on the date of incident, the accused came to her house and told her that there was a call for her. She was informed that the call was from her sister at Kallar. She went to the house of the accused to attend the call. She found the receiver kept down. When she attended to the call, she got no response. According to PW1, the accused told her that probably, the call had been disconnected and she could wait for some time as there is a likelyhood of the ## Crl.A. No. 1492 of 2009 **-10-** person calling again. Even after waiting for sometime, when there was no call, she was about to leave to her house. At that time, according to PW1, the accused asked her if she could help him in cooking rice. She readily agreed little suspecting the motive of the accused and she went to the kitchen. While she was washing the rice, she says that she was caught hold of from behind and she was dragged to the nearby bedroom. She then gives a vivid description of what transpired thereafter. She would say that after the incident, the accused threatened her with dire consequences. She would then say that information was conveyed to her father also. When, her father asked the accused about the incident, he was threatened. Strangely enough, she says that when the father of the victim asked the accused, he promised to marry the victim after five or six years. She got married another person. At the time of evidence, she would say that she had conveyed the incident to her husband on the very next day of marriage itself. Then she speaks about Crl.A. No. 1492 of 2009 **-11-** the complaint she developed and the consequences going to the hospital and she being informed by the doctor that she was carrying. She would assert in the evidence that she had conceived as a result of the act committed by the accused. Coming to know about her pregnancy, her husband left her in her house and the relationship was snapped. She delivered a child on 16.02.2005. She would say that she had filed a complaint before the Police but due to the influence exerted by the accused, nothing came out of the same and therefore she was driven to the necessity of filing the complaint. 14. In cross examination, she would admit that the marital relationship between her and her husband has not so far been snapped. Surprisingly enough, in her cross examination, she also says that after the incident, she had worked at Bangalore, Alwaye and Delhi also. In cross examination, it was brought out that she had delivered at Sahayagiri Hospital at Marayur. She admitted in cross Crl.A. No. 1492 of 2009 **-12-** examination that she had not given the name of the accused as the father of the child. Of course, she would add she was under the threat at that time also. Further, she would also admit that the birth has been registered with the local authority. She also conceded that the name of the father of the child is shown as Santhosh. Her father's name was Xavier. 15. PW2 is the mother of the victim. Of course, her knowledge about the incident is only what is told to her by PW1. She too would say that the accused had promised to marry PW1 after sometime. She goes to the extent of saying that even after the child was born, the accused had promised to marry PW1. 16. PW3 is a neighbour of PWs 1 and 2. Her evidence is only to the effect that on a day in May, 2004, she happened to see PW1 coming out of the house of the accused crying. The above is the evidence adduced by the prosecution. From the defence side, the accused examined Crl.A. No. 1492 of 2009 **-13-** DW1, the doctor who had attended to the delivery of the victim. Her evidence is to the effect that the hospital records were maintained with regard to the treatment given to the victim and Ext.D2 is the said document. In cross examination, she stated that two years after the delivery, PW1 had gone over to the hospital and demanded that the name of the father of the child is changed from Santhosh to Sajeesh. She denied the suggestion put to her that the initial entry shown as Sajeesh was a mistake committed by the hospital authorities and it was in fact the name of Sajeesh that has been given by PW1. 17. It is true that in the devision reported in **Santhosh Moolya and Another** v. **State of Karnataka** [2010 (5) SCC 445] the question of delay was considered. In the said case, there was a delay of 42 days in lodging the First Information Statement. In the said decision in Paragraph 15, it is observed as follows: Crl.A. No. 1492 of 2009 **-14-** “Though there was a delay of 42 days in lodging the complaint to the police, PWs 1 and 2, in their evidence, explained that all their family members including themselves are uneducated, there are no male members in their family for their assistance and they settled in the present village top eke out their livelihood. Admittedly, on the date of the incident, they were working in quarry owned by PW4 and while returning from their workplace by force A-1 and A-2 committed rape of PWs 1 and 2. The mother of PWs 1 and 2 was examined as PW 14. She also corroborated the assertion of PWs 1 and 2 about their illiteracy and fear due to th ethreat call of A-1 and A-2. In those circumstances, the evidence of PWs 1 and 2 and their complaint, Ext.P-1 cannot be rejected as unacceptable. In a case of rape, particularly, the victims are illiterate, uneducated, their statements have to be accepted in toto without further corroboration.” 18. Normally a reasonable delay is not taken note of in cases of sexual assault cases. The offence being of such a ## Crl.A. No. 1492 of 2009 **-15-** nature which brings only humiliation and stigma to the victim, it is only understandable that the victim or the members of her family will be extremely reluctant to make the issue public. However, a long delay of three years cannot be so easily brushed aside. Except for a vague statement by PW1, that she was under constant threat, there is no material to show the reason for the delay. Here, one cannot omit to note that the evidence of PW1 is to the effect that on the very next day of marriage, she had confided in her husband about the incident. PW1 is definite that she had filed a complaint before the Vanitha Cell. Apart from, as already noticed, that the complaint itself has not produced and marked. The copy of the complaint produced before the Vanitha Cell is also not seen produced. In the decisions reported in **State of Uttar Pradesh** v. **Chhotey Lal** [2011 (2) SCC 550] and **State of Madhya Pradeh** v. **Dayal Sahu** [2005 (8) SCC 122] the Apex Court had occasion to observe the method of evaluation of the ## Crl.A. No. 1492 of 2009 **-16-** evidence of the prosecutrix and the value to be given to the evidence of the victim of rape. The principles governing appreciation of the evidence of the prosecutrix has already been referred to. 19. It is significant to notice that PW1 in cross examination admitted that the birth of her child has been registered with the local authority. 20. It is difficult to believe the version given by PW1 that the accused, when asked by her father, replied that he would marry her after five or six years. It is also difficult to believe that she was not aware that she had conceived at the time of her marriage to another person. Added to this, is the entry in Ext.D2 which shows the name of father of the child as Santhosh Varghese. An attempt was made to show that the said Santhosh is the brother of PW1, the victim. That explanation cannot stand for the simple reason that the name of the father of PW1 is Xavier. If Santhosh was her brother, the name should have been Santhosh Xavier. There Crl.A. No. 1492 of 2009 **-17-** is suggestion from the defence side that she had relationship with Santhosh Varghese, which she denied. 21. One has to remember that by the passage of time, the accused becomes helpless to meet the charges framed. Under such circumstances, a stricter degree of proof is insisted by the court from the prosecution side. As already noticed, it is difficult to understand as to why at least the complaint was not marked in this case. Of course, it may not have been possible for the accused to show that the victim had an oblique motive to falsely implicate him. But it is not the burden of the accused to show that why he was implicated nor does it relieve the prosecution of its burden to prove it beyond reasonable doubt as against the accused. 22. It would have been only proper under the circumstances as disclosed by the evidence in this case that the prosecution should have ventured for a DNA Test. This Court is not forgetful of the fact that the result of the DNA test is not conclusive of the question of rape. However, that ## Crl.A. No. 1492 of 2009 **-18-** at least would have determined the paternity of the child. One must recollect here that the accused is alleged to have committed solitary instance of forced sexual assault, as a result of which PW1 claims that she conceived. 23. It is more so, in view of the fact that the complaint is laid almost three years after the date of incident. 24. For the above reasons, this Court is unable to accept the finding of the court below that the evidence of PW1 is sufficient to warrant a conviction. The passage of time, no satisfactory and cogent explanation for the delay, the non marking of the complaint which set the law in the motion and the entries in Ext.D2, the production of Ext.D3 which shows the name of the father of the child as Santhosh Varghese make the evidence of PW1 extremely vulnerable. It is not the case where the evidence could be of such a sterling character which could inspire confidence in the mind of court and based on which conviction could be stated to be entered into. Crl.A. No. 1492 of 2009 **-19-** In the result, this appeal is allowed. Conviction and sentence passed by the court below are set aside. It is held that the prosecution has not succeeded in establishing the case against the accused beyond reasonable doubt. The accused is not guilty of the offence under Section 376 of IPC. 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. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge