Shoukath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934** ## **CRL.A.No. 1047 of 2004 (C)** **-------------------------SC.302/2000 OF III ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK-I, THRISSUR.** **...............** **APPELLANT/ACCUSED NO.1.:** **--------------------------------------------** **SHOUKATH, S/O.CHEMBANVEETTIL ALAVI, NAROKKAVU DESOM, VAZHIKKADAVU VILLAGE, NILAMBOOR TALUK, MALAPPURAM DISTRICT.** **BY ADVS.SRI.P.VIJAYA BHANU, SRI.P.M.RAFIQ.** ## **RESPONDENT/COMPLAINANT/STATE.:** **----------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.R. REMA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1047 OF 2004** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 21[st] day of February, 2013** ## **J U D G M E N T** Little did PW2, the victim in this case knew what fate had in store for her, when she as usual set out for a temple visit on 17.09.1996. On her way, she was knocked down by a jeep. She was taken in the same jeep presumably, under pretext that she was being taken to a hospital. In the meanwhile, PW1, the son of PW2 came to know about the mishap that occurred to his mother and he informed others and they went in search of the victim. Even though, they made enquiries in several hospitals, they were not able to locate the victim or the jeep and its passengers. They went to several Police Stations and ultimately landed before the Kunnamkulam Police Station. While they were waiting there, the driver of the car in which they had gone to the Police Station rushed into the Police Station and informed PW1 and others that the jeep which was involved in the accident was ## **Crl.A.No.1407/2004** **-2-** seen going along the way. Then it is claimed that PW1 along with PW5 and others in the car which they had gone over to the Police Station, followed the jeep. Police Officers of Kunnamkulam Police Station in the official jeep also followed the jeep. At a particular point, they were able to intercept the jeep and it was found that PW2 was lying in the rear portion of the jeep with injuries over her body. 2. PW1 laid Ext.P1, First Information Statement. It is seen that initially, the victim was taken to Amala Hospital where PW10 attended to the victim and gave her first aid and since there was no facilities or since they were not authorized to attend the case at that point of time, PW10 directed that in the light of the injuries noticed by him, the victim should be taken to the Medical College Hospital. The accused persons are said to have left with the victim in the vehicle. After locating the victim, she was admitted to West Fort Hospital where PW8 examined her and furnished Ext.P5 certificate. In the meanwhile, PW14, after recording Ext.P1, ## **Crl.A.No.1407/2004** **-3-** First Information Statement, registered crime as per Ext.P10, FIR. On 19.09.1996, PW7, the Gynecologist attached to the West Fort Hospital examined PW2 and furnished Ext.P4, wound certificate. The investigation was taken over by PW15. He prepared Ext.P11, seizure mahazar in respect of the jeep and recorded the statements of a few witnesses. He also claims to have filed a report to add Sections 366 and 376 to the court concerned. After arrest of the first accused, his dress was seized under Ext.P17 mahazar. The dress worn by the victim at the time of incident was seized as per Ext.P2 mahazar. Further investigation was done by PW16. He prepared Ext.P7, scene mahazar. He had the samples collected by the doctor sent for chemical examination and so also the property had seized during investigation and obtained Exts. P2 and P23 reports. He also recorded the statements of other witnesses, completed investigation and laid charge before the court. ## **Crl.A.No.1407/2004** **-4-** 3. The JFCM Court, Kunnamkulam before whom the final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of sessions, the learned Magistrate committed the case to Sessions Court Trissur. The said court made over the case to III Additional Sessions Court (Adhoc) Fast Track-I, Trissur for trial and disposal. The said court on appearance of the accused and on receipt of the records framed charges for the offences punishable under Sections 279, 338, 376 (2)(g) and 366 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. 4. The prosecution had PWs 1 to 16 examined and had Exts. P1 to P24 marked. Mos 1 to 3 were got identified and marked. The defence marked the contradictions under Section 161 statement as D1 to D4. After the close of the prosecution evidence, the accused were questioned under Section 232 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and ## **Crl.A.No.1407/2004** **-5-** maintained that they were innocent. Finding that they could not be acquitted under Section 232 of Cr.P.C, accused were asked to enter on their defence. They chose to adduce no evidence. On an appreciation of the evidence in the case, the trial court came to the conclusion that the prosecution has succeeded in establishing the case only as against the first accused and therefore he was found guilty of the offences punishable under Sections 376 and 366 of IPC. A2 to A4 were acquitted of all charges. The first accused was sentenced to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 25,000/- with a default clause of rigorous imprisonment for two years for the offence punishable under Section 376 IPC and he was also sentenced to undergo rigorous imprisonment for four years for the offence punishable under Section 366 of IPC. The substantive sentences were directed to run concurrently. Set off as per law was allowed. It is also directed that if the fine amount was realized it is to be paid over to PW2 as ## **Crl.A.No.1407/2004** **-6-** compensation. The said conviction and sentence are assailed in this appeal. 5. The learned counsel appearing for the appellant assailed the findings of the court below on several grounds. According to the learned counsel, the identification of the first accused as the person who had violated the body of PW2 is without any acceptable evidence. The two witnesses who speak about the involvement of A1 for the offences are PWs 2 and 4 among whom PW2 is the victim. A reading of the evidence of PW2 as well as the evidence of the doctor who attended to her would clearly show that she was not in a fit state of mind or condition to identify the assailant if at all there was any sexual assault and it is not in dispute according to the learned counsel that the first accused was a total stranger to her. She, as a result of the injuries suffered by her, could not have in a conscious state of mind and therefore could not have identified A1 at any point of time during the journey from the spot of the accident till she ## **Crl.A.No.1407/2004** **-7-** reached the hospital. As far as PW4 is concerned, the learned counsel pointed out that he has no case that the first accused was familiar to him for that he had any previous acquaintance with the first accused and going by his evidence also, it is clear that he had seen the first accused for the first time on the date of incident. Admittedly, according to the learned counsel, no identification parade was conducted. Relying on the decision reported in **Mohanlal Gangaram Gehani v. State of Maharashtra [AIR 1982 SC 839]** it was contended that under such circumstances, the identification made by PWs 2 and 4 in court for the first time after the date of incident cannot be accepted. If that be so, the conviction for the offence under Section 376 cannot stand. It was also contended that there is no evidence to show that there was any sexual assault on PW2. The evidence of PW7 was referred to and so also Ext.P4 and it was contended that, that evidence is insufficient to show that there was indeed a ## **Crl.A.No.1407/2004** **-8-** sexual assault. There were no injuries detected on the private part of the victim and it is also significant to notice that according to the learned counsel, no resistance was offered by the victim. It was finally contended that the owner of a jeep has not been examined and that is also fatal for the prosecution. Further it is contended that the torch which is alleged to have been used by PW4 to flash into the jeep and identified the first accused had also not seen during investigation. In short, there is absolute want of evidence regarding the identification of the first accused and that is sufficient to set aside the conviction and sentence. 6. The learned Public Prosecutor on the other hand contended that though the arguments may look attractive, on a close scrutiny of evidence, it can be seen that there is proper identification. The learned Public Prosecutor pointed out that the identification parade is only a step in aid during investigation to ensure that the investigating agency is proceeding in the right direction and has nothing to do with ## **Crl.A.No.1407/2004** **-9-** the identification in court. It is the identification in court that found substantive evidence and the mere fact that identification parade has not been conducted during investigation by itself is not a ground to doubt the identification made in court. Referring to the evidence of PW2 and the respective doctor's evidence, it was pointed out by the learned Public Prosecutor that it was not as if the victim, after the accident, was completely unconscious and unable to understand what was going on. In fact, the entries in the relevant wound certificates and the records would show that she was conscious though slightly disoriented. This would be clear from the evidence of PW10, the doctor attached to Amala Hospital who had given first aid and so also the entry in Ext.P5, wound certificate which was drawn up when the victim was taken to West Fort Hospital as admitted to by PW8, doctor. 7. PW2 is the victim of sexual assault. Since it is not found that she was unconscious and she being the victim, ## **Crl.A.No.1407/2004** ## **-10-** she would have noticed the features of the assailants and it would not have been difficult for her to identify him later. The need for test identification parade arises only in such cases where the witness concerned had only a fleeting glimpse of accused and had no time to assimilate the physical features of the assailants. That is not the case on hand. It is also pointed out that PW4 is a natural witness and his evidence shows that two persons running away from the jeep which arouse his curiosity, he went near the jeep and flashed his torch into the jeep which fell on the face of the first accused who responded immediately and then without any intention to further remain at the scene, he left the place. Therefore, it is pointed out that even PW4 had a good look at the face of the first accused and therefore in such circumstances, the absence of identification parade is of no consequence. 8. The learned Public Prosecutor also pointed out that the stand of the first accused at the time of questioning ## **Crl.A.No.1407/2004** ## **-11-** under Section 313 of Cr.P.C. was one of total denial. The evidence of PWs 1, 2, 3, 5 and 6 are sufficient to show that on the date of incident, it was the first accused who had driven the jeep. The non examination of the owner of the jeep according to the learned Public Prosecutor has no relevance in the context. As regards the sexual assault is concerned, sufficient evidence is furnished by virtue of Ext.P22, chemical analysis report in which it is categorically mentioned that semen was detected in the skirt seized from the possession of the victim soon after the incident. It was also pointed out by the learned Public Prosecutor that no suggestion is made either to PW2 or PW4 as to why they should falsely implicate the first accused. According to the learned Public Prosecutor, the court below has analyzed the evidence in considerable detail and has come to the conclusion that the offence has been made out as against the first accused. No grounds are made out to interfere with the said findings. ## **Crl.A.No.1407/2004** **-12-** 9. After having scanned through the evidence, heard the learned counsel for the petitioner and the learned Public Prosecutor, this Court finds no grounds to interfere with the findings of the court below. As rightly pointed out by the learned Public Prosecutor that the evidence of PWs 1, 2, 3, 5 and 6 would clearly show that on the date of incident, it was A1 who was driving the jeep. The details regarding the accident is spoken to by PW3. PW2, the victim has given evidence that as usual on the first of Malayalam month the corresponding english date was 17.09.1996, in the evening as usual quite she was on her way to temple, she was knocked down by a jeep driven by the first accused. Of course, she says that as soon as she was hit by the jeep, she lost her consciousness. Her evidence shows that soon thereafter she regained consciousness also. 10. PW2 would then say that she regained conscious while she was in the jeep and then she realized that some one was laying on her. She, realizing the danger even ## **Crl.A.No.1407/2004** **-13-** though, pleaded that she may not be harmed that went unheeded and the sexual assault was committed by the accused. She identified the first accused in court also. 11. The evidence of PWs 1, 5 and 6 is to the effect that while they were in the Kunnamkulam Police Station, the driver of the car in which PWs 1, 5 and others have gone to Kunnamkulam Police Station rushed into the station and told them that he had seen the jeep which had involved in the accident passing by. The evidence of these witnesses to the effect that they coming to know about from the driver of the car, followed the jeep in the same car and PW6, the Police constable also would say that he and other police officers went in the same direction in the official vehicle. These witnesses say that the vehicle was intercepted at a particular point and they had occasion to see the victim lying in the rear side of the jeep and her clothes were not in a proper position, eventhough the FIS laid by PW1 does not contain any such statement at all. ## **Crl.A.No.1407/2004** **-14-** 12. The fact that A1 was driving the jeep on the relevant date is therefore beyond doubt. There is nothing brought out in the examination of PWs 1, 3, 5 and 6 to show that they had any reason to falsely state that it is was the first accused who was driving the jeep. His involvement is therefore evidenced. 13. What now remains to be considered is the contention regarding the identification. It is true that PWs 2 and 4 have stated that they had seen the first accused for the first time on the date of incident. In the decision reported in **Mohanlal Gangaram Gehani v. State of Maharashtra [AIR 1982 SC 839]** it was held as follows: “20. Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the Police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important **-15-** ## **Crl.A.No.1407/2004** circumstance escaped the attention of the High Court while it laid very great stress in criticizing the evidence of Dr.Heena when her evidence was true and straightforward. 25. The only other evidence against the appellant is that of P. Ws. 3 and 4. So far as P.W. 3 is concerned his evidence also suffers from the same infirmity as that of Shetty. P.W. 3 (Sheikh) admits at page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident. He further admits that the names of the accused were given to him by the police. In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of P.W. 3 was valueless and could not be relied upon as held by this Court in V. C. Shukla v. State (Delhi Administration), (1980) 3 SCR 500: (AIR 1980 SC 1382), where this Court made the following observations (at p.1396 of AIR): “Moreover, the identification of Tripathi by the witness for the first time in the Court without being tested by a prior test identification parade was valueless.” ## **Crl.A.No.1407/2004** ## **-16-** A reading of the said decision shows that the witnesses who were disbelieved had only a fleeting glimpse of the assailants concerned and they were shown by the police in the police station. 14. The case on hand stands on an entirely different footing. PW2, as already noticed, is the victim of sexual assault. There is absolutely no evidence in this case at all to show that after the accident, PW2 was in such a condition that she was unable to understand what was going on around or she was completely unconscious and unable to comprehend things. Even going by the evidence of PW2, she says that she often regained consciousness and on one such occasions when she was in the jeep, when she gain conscious, she realized that she was being sexually assaulted. The medical records produced viz., Ext.P5 and evidence of PW10 do not indicate that PW2 was in such a condition so as to be incapable of understanding what was happening to her. In fact, there was a suggestion to PW10 ## **Crl.A.No.1407/2004** **-17-** that she had administered a sedative to PW2 when the victim was taken to Amala Hospital. PW10 categorically denied the same and said that no such sedative was administered to the victim and the victim was only given pain killer injection and she was asked to be taken to the Medical College Hospital immediately. The entries in Ext.P5 made by PW8 shows that the victim was drowsy at the relevant time but it does not show that she was unconscious or that she was incapable of knowing what was happening around her. One should remember here that she reaches the West Fort Hospital after she had received first aid from the Amala Hospital. It was after taking the victim from the Amala Hospital, before she could be located by PW1 and others, the incident had occurred. 15. PW2, the victim has given evidence about the sexual assault. As already stated, there is no suggestion to PW2 as to why she should falsely implicate the accused for sexual assault. By doing so, she stands gain nothing but in ## **Crl.A.No.1407/2004** ## **-18-** fact stands lose a lot. No woman would take up on herself such a humiliation which also casts a permanent stigma to her. 16. As far as PW4 is concerned, he has given evidence for the reason for his presence at the place and for the reason as to why he had peeped into the jeep. He says that as he was coming along, he happened to see two persons running away from the jeep and that aroused his curiosity. He went near the jeep and lit the torch and found that two persons, a man and a woman were seen in a compromising position. He thought they were involved in an immoral activity and so he left the place. He deposed that the first accused responded when the flash of the torch fell on his face. That shows that PW4 had an occasion to have a good look at the face of the first accused. Having found A1 and the lady who he thought were in a compromising position, if he could retain the features of A1 there after, there is nothing unusual or unnatural about it. It was not a fleeting ## **Crl.A.No.1407/2004** **-19-** glimpse which he had but had a good look at the face of the first accused. In the light of these facts, the contention based on identification cannot stand scrutiny. 17. As regards the evidence of sexual assault, true, the entries in Ext.P4, wound certificate prepared by PW7, the doctor who is a gynecologist who had examined PW2, no external injuries are noticed. The victim was aged at 42 years and she had given birth to four children. PW7 does not rule out sexual assault. However, evidence in this regard is available from Ext.P22, the FSL report which shows that semen was detected in the skirt which was worn by the victim at the relevant time. It is also significant to notice that human blood stains were noticed on the clothes worn by the first accused at the relevant time which were also seized by the Investigating Officer. 18. That would also indicate his presence at the place. The contention based on the non seizure of the torch and non examination of the owner of the jeep do not carry much ## **Crl.A.No.1407/2004** ## **-20-** weight. They have nothing to do with the actual incident. There is no suggestion to PW4 as already noticed that he had any reason to falsely implicate the accused or that he had no reason to be at the place at the relevant time. One may notice that the stand of A1 at the time of being questioned under Section 313 of Cr.P.C. was one of total denial. 19. The contention that no resistance was offered by PW2 only noticed to be rejected. The state in which PW2 was placed at the relevant time was in a precarious condition having suffered several serious injuries as a result of the accident. She could not physically resist the move made by the first accused. She does say that she pleaded that she may not be harmed but it went unheeded. 20. It is well settled by now that if the evidence of prosecutrix is cogent, convincing and credit worthy, there is no need to look for corroboration. She is in the position of an injured witness and her evidence is to be given ## **Crl.A.No.1407/2004** **-21-** considerable weight. In the case on hand, apart from the evidence furnished by PW2, there is evidence of PW4 also. Therefore, there is ample corroboration for the evidence of PW2 with regard to the sexual assault from the evidence of PW4. 21. It was the above items of evidence which had persuaded the court below to come to the conclusion that the accused had committed the offences punishable under Sections 376 and 366 of IPC. It is indeed distressing to note that the victim of accident was subjected to such a brutal, inhuman and barbarous act by the first accused. The act committed by the first accused was inhuman. 22. The court below was therefore, justified in come into the conclusion that the offences have been made out. The conviction was rightly entered into for the offences punishable under Sections 376 and 366. Coming to the sentence, if at all the court below had erred, it has erred only because of leniency. Considering the nature of offence **-22-** ## **Crl.A.No.1407/2004** attributed to the appellant, the occasion in which the offence was committed, the manner in which the offence was committed, he certainly deserves a more severe sentence than what is awarded by the court below. But since there is no appeal by the state for enhancement of sentence, the matter is left there. In the result, this appeal is without merits and is liable to be dismissed. I do so confirming the conviction and sentence passed by the court below. **Sd/P.BHAVADASAN, JUDGE** ds **//TRUE COPY//** **P.A. TO JUDGE**