Sasidharan @ Sasi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934** ## **CRL.A.No. 56 of 2013 (C)** **-----------------------SC.132/2004 of D.C.& SESSIONS COURT,MANJERI** **APPELLANT(S)/ACCUSED :** **SASIDHARAN @ SASI, S/O.KUMARAN, NALUKANDATHIL HOUSE, CHEERNI COLONY KANHIPPURA, THOZHUVANNOOR AMSOM, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.VENUGOPAL (1086/92)** **RESPONDENT(S)/COMPLAINANT :** **------------------------ ----------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 56 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of March, 2013. ## **JUDGMENT** The accused in this case was prosecuted for the offence punishable under Section 376 I.P.C. and Section 3 (1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He was found guilty on both counts. He was therefore convicted and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 376 I.P.C. He was also convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one month for the offence under Section 3(1)(xi) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Set off as per law was allowed. 2. P.W.2 is the daughter of P.W.1. P.W.2 stays along with her father, P.W.1, and his second wife. 2 Crl.Appeal. 56/2013. Occasionally P.W.1 and his second wife used to go to Kozhikode, the native place of his second wife. At that time P.W.2 used to sleep in the house of the accused where his mother and his sisters were also residing. On 14.11.1996, it is stated, that father along with the step mother of P.W.2 went to the native place of the step mother. P.W.2 as usual went over to the house of the victim to sleep there along with the inmates of that house. On 19.11.1996, when P.W.1 returned home he could not find his daughter. When asked to the sister of the accused, he was told that on 15.11.1996 P.W.2 had gone to her uncle's house. He enquired about his daughter and found that she had not reached there and therefore he laid Ext.P1 complaint before the police. It was recorded by P.W.8, who registered crime as per Ext.P1(a) FIR as man missing case. Later on P.W.1 came to know that she was in the house of her uncle and he went there and fetched her back. When P.W.2 was taken to the police station, she told the police officer that she had been sexually assaulted Crl.Appeal. 56/2013. 3 by the accused and therefore a report was filed by the investigating officer incorporating Section 376 I.P.C. and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, which is produced as Ext.P7. Investigation was done by the Circle Inspector of Police. He prepared Ext.P10 scene mahazar and seized M.Os. 1 and 2 belonged to P.W.2 as per Ext.P11 seizure mahazar. He seized M.O.3 as per Ext.P12 seizure mahazar. He had P.W.2 examined by P.W.3 doctor who issued Ext.P2 certificate. He also gathered information from P.W.5, the doctor attached to the hospital where P.W.2 had undergone abortion and obtained Ext.P4 certificate. P.W.9, the Deputy Superintendent of Police verified the records and laid charge before court. 3. JFCM, Tirur, before which the charge has been laid, took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Manjeri Crl.Appeal. 56/2013. 4 under Section 209 Cr.P.C. The said court made over the case to Special Court (Court of Sessions), Manjeri. The latter court, on appearance of the accused and receipt of records framed charges for the offences punishable under Section 376 I.P.C. and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, he pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 10 and had Exts.P1 to P12 marked and M.Os. 1 to 3 were identified and marked. The defence during the examination of P.W.2 had marked Ext.D1. 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 against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. Crl.Appeal. 56/2013. 5 4. On an appreciation of the evidence in the case, the court below found that the offences have been made out and accordingly the conviction and sentence already mentioned followed. The said conviction and sentence are assailed in this appeal. 5. Learned counsel appearing for the appellant pointed out that the court below has not adverted to the evidence in the proper perspective and has been carried away by the evidence of P.W.2 which does not stand scrutiny in the light of of the other evidence available in the case. Specific reference was made to Ext.P4 document issued by P.W.5. The doctor in his report had stated that the foetus was 12 – 14 weeks age at the relevant time, that is, on 19.11.1996, when the medical termination of pregnancy was undergone by the victim. Going by the evidence of P.W.2, the solitary act of the violation of the body was in the month of November, 1996. If that be so, the accused could 6 Crl.Appeal. 56/2013. not have been responsible for the pregnancy going by the age of the foetus as could be seen from Ext.P5. The version of P.W.2 regarding the incident is also unbelievable. She was sleeping along with the sisters of the accused in a common room and that her claim that she was dragged to his room by the accused is quite improbable. The claim of P.W.2 that her mouth was closed at the relevant time does not find a place in her statement to the police. That significant omission has not been noticed by the court below. Finally, it is contended that since the provisions under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was incorporated, the investigation could have been done only by the Deputy Superintendent of Police and the investigation conducted by the Circle Inspector of Police is illegal and invalid. Accordingly, it is contended that the conviction and sentence cannot stand. 5. Learned Public Prosecutor pointed out that the evidence of P.W.2 stands scrutiny and there is no reason to 7 Crl.Appeal. 56/2013. disbelieve her. If her evidence is acceptable, the conviction and sentence has to stand. 6. P.W.2 is the victim. P.W.1 is her father. The evidence of P.W.1 is not of much significance except that he had laid Ext.P1 first information statement. The crucial evidence in this case is the evidence of P.Ws.2 and 5 and Ext.P4. In the light of the fact that the court below has chosen to place implicit faith on the evidence of P.W.2, it needs to be referred to. 7. P.W.2 in her evidence states that when her father and step-mother go to the native place of her step mother, she stays in the house of the accused. It is also stated by her that the sisters and mother of the accused also stay there. She also says that sisters of the accused are her good friends. In chief examination, she says that while she used to sleep along with the sisters of the accused, the accused had come and called her and took her to his room, and under the promise of marriage had ravished her. In Crl.Appeal. 56/2013. 8 chief examination her definite case is that the first incident occurred in November, 1996 and later she says that the incident had occurred only once. She then goes on to say that when she conceived and the matter conveyed to the accused, the accused told her that he would marry her after the marriage of his sisters. She then speaks about the abortion undergone by her. In cross-examination, she stated that she had not given a statement to the police that she was ravished 4-5 times by the accused. It is also significant to notice that her statement under Section 161 Cr.P.C. does not contain the statement she was dragged into the room by the accused and her mouth was gagged by the accused. This is the evidence of P.W.2. 8. P.W.5 is the doctor who had conducted MTP and issued Ext.P4 certificate. P.W.4 certificate shows that as on the date of MTP,on 19.11.1996, the uterine size was 12 – 14 weeks. If that be so, the act of intercourse must have been prior to, atleast in August. In fact, it must have Crl.Appeal. 56/2013. 9 been in July, which is a case which the prosecution did not have at all. 9. Even going by the evidence of P.W.2, her case is that the incident took place in early November, 1996 and she has no case that even prior to that or subsequent to that, she had ever been subjected to sexual intercourse by the accused. 10. The lower court holds the accused guilty on the ground that he had given her a false promise of marriage and used her for satisfaction of his lust. P.W.2 does say that she was promised by the accused that he would marry her. But there is nothing to show that he had ever declined to marry her, but he had stated that he would marry her after the marriage of his sisters since his sisters' marriage would be difficult if she was found carrying and asked her to undergo abortion and and the abortion was conducted. 10 Crl.Appeal. 56/2013. 11. It is true that if the evidence of P.W.2 is convincing, cogent and reliable, then conviction can be based on the same. One need not look for corroboration at all. But in the case on hand, when viewed in the light of Ext.P4 and also her own evidence, it is difficult to believe that she was ravished by the accused. One cannot omit to note that she was aged 27 years at the relevant time. It is also significant to notice that the incident alleged looks highly improbable as at the relevant time she was sleeping along with the sisters of the accused and also going by her evidence the house involved is a hut with a single room. 12. It must be noticed that there was no complaint as such by P.W.2 except her statement to the police when she was produced before them by her father as a crime has been registered under the caption man missing. 13. It is difficult to accept the finding of the court below that the evidence of P.W.2 stands scrutiny and that is sufficient to show the accused guilty and when noticed in Crl.Appeal. 56/2013. 11 the light of the other evidence in the case it is seen that it is not totally reliable and it does not inspire confidence in the mind of the court to hold against the accused. 14. Finally, there is considerable force in the submission that the investigation is tainted in the light of the decision reported in **State of M.P. v. Chunnilal** (2009 KHC 493) wherein it has been held that when an offence under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act is alleged and incorporated, investigation can be done only by a Dy.S.P. and investigation by any officer of lesser rank is invalid. The court below has omitted to notice this legal aspect also. 15. For the above reasons, this court is unable to sustain the finding the court below that the offences have been made out. Therefore, this appeal is allowed. The findings of the court below are set aside and it is held that the prosecution has failed to establish the case against the 12 Crl.Appeal. 56/2013. accused, and he is acquitted of the offences punishable under Section 376 of I.P.C. and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. If the appellant is in custody, he shall be released forthwith. P. BHAVADASAN, JUDGE sb.