Y. Rama Naik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 4TH DAY OF FEBRUARY 2013/15TH MAGHA 1934** ## **CRL.A.No. 483 of 2004 (A)** **------------------------AGAINST THE ORDER/JUDGMENT IN SC.13/2003 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD** **APPELLANT(S)/ACCUSED:** **----------------------------------------** **Y.RAMA NAIK, AGED 29 YEARS, S/O.KORAGA NAIK, ELKANA VEEDU, NEERCHAL KASARAGOD.** **BY ADVS.SRI.M.SASINDRAN SRI.M.B.PRAJITH** **RESPONDENT(S)/COMPLAINANT: ----------------------------------------------------** **STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. REMA R.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** **P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 483 OF 2004** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 04[th] day of February, 2013** ## **J U D G M E N T** The appellant was prosecuted along with two other persons for the offences punishable under Sections 376, 313 and 417 read with Section 34 of IPC. Among them, A1 alone was found guilty of the offence punishable under Section 376 of IPC though he was acquitted for the offences under Section 313 and 417 of IPC. A2 and A3 were acquitted of all charges. On finding A1 guilty of the offence punishable under Section 376 of IPC, he was convicted for the said offence and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- in default of payment of which he had to suffer imprisonment for a period of three months. He is also directed that if the fine amount was realized, the same shall be paid to the victim as compensation. Set off as per law was allowed. **Crl.A.No.483/2004** **-2-** 2. Shorn of unnecessary details PW3, the victim took a fancy for the first accused and it is alleged that A1 had promised to marry her. He frequently used to visit the house of PW3 when she was all alone in the house. On one such occasion, luring her with marriage, it is alleged that against her wish, she was subjected to sexual intercourse. Going by the complaint, the allegations are that this ploy was employed by the first accused on several occasions. Finally, PW3 conceived. When that information was passed on to the first accused, he stealthily took her to the clinic of A3 and without her consent and knowledge, caused abortion. On demanding that A1 should marry her, he refused. Therefore, Ext.P2, complaint was laid before JFCM Court, Kasaragod. That was forwarded for investigation under Section 156(3) of Cr.P.C. and Crime No. 158/2001 was registered as per Ext.P5 FIR by PW8. The investigation was taken over by PW9. He prepared Ext.P1 scene mahazar and had the victim sent for medical examination. PW6 examined ## **Crl.A.No.483/2004** **-3-** the victim and furnished Ext. P3, medical certificate. He obtained Ext.P6 and recorded the statement of witnesses. After arrest of the accused, he was subjected to the potency test by PW7. PW9 completed the investigation and laid charge before the Court. 3. The JFCM Court, Kasaragod before whom the final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a court of sessions. The said court committed the case to Sessions Court, Kasaragod under section 209 of the Cr.P.C. 4. The sessions court on receipt of the records and on appearance of the accused said court framed charges for the offences punishable under Sections 376, 313 and 417 read with Section 34 of IPC. 5. To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 9 and had Exts.P1 to P6 marked. After the close of prosecution evidence, the accused were questioned under ## **Crl.A.No.483/2004** **-4-** Section 313 of Cr.P.C. They denied all the incriminating circumstances brought out in evidence put to them and maintained that they were innocent. Finding that the accused could not be acquitted under Section 232 of Cr.P.C. they were asked to enter on their defence. The accused however chose to adduce no evidence. On an appreciation of the evidence in the case, the trial court came to the conclusion that the prosecution had succeeded in establishing the offence of rape only as against the first accused and therefore he was found guilty of the said offence. He was therefore convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. 6. The learned counsel appearing for the appellant pointed out that there is absolute want of evidence to hold the accused guilty of the offence punishable under Section 376 of IPC. The learned counsel drew attention to the inconsistency of the statements in the complaint and ## **Crl.A.No.483/2004** **-5-** evidence of PW3 before court regarding the sexual assault. The learned counsel highlighted that the core of the prosecution case is that when the factum of pregnancy was disclosed to the first accused, he caused the miscarriage with the aid of A3. The evidence of PW6, the doctor who had examined the victim was adverted to by the learned counsel and highlighted that going by the version given by the doctor who examined the victim soon after the alleged abortion, has given evidence there were no signs of abortion found on the victim. If that be so, according to the learned counsel, the whole prosecution story falls to the ground. The learned counsel also pointed out that there is intrinsic evidence to show that the story was invented at the instance of PW5, who had an act to drive against the appellant. 7. The learned counsel then pointed out that the solitary evidence regarding the incident is given by PW3 which is not acceptable for more than one reason. According to her though she had protruding belly it was not ## **Crl.A.No.483/2004** **-6-** noticed by the victim's relative is rather strange, according to the learned counsel. Further the inconsistency in her evidences and complaints were also highlighted. In short the learned counsel pointed out that the court below was not justified in simply accepting the version given by PW3 without any supporting material to hold the accused guilty. 8. The learned Public Prosecutor on the other hand pointed out that even going by the evidence of PW6, there is evidence of sexual intercourse and that is sufficient to fasten liability on the appellant. There is no reason to disbelieve the version of PW3 and she had no reason to falsely implicate the appellant. The court below has analysed the evidence in considerable details and had come to the conclusion that the evidence of PW3 is acceptable and there is no reason to file a different view. In short the contention of the learned Public Prosecutor is that no grounds are made out to interfere with the conviction and sentence passed by the courts below. ## **Crl.A.No.483/2004** **-7-** 9. After having heard the learned counsel for the appellant and learned Public Prosecutor and after having materialistically perused the records this court finds it unable to agree with the findings of the court below. The proceedings originated on a private complaint Ext.P2 filed before the JFCM court concerned. In the said complaint PW3, the victim admits that she and the appellant had taken a fancy for each other they used to meet quite often. Further case in Ext.P2 complaint is that promising to marry her and luring her, he had sexual intercourse with her against her consent on several occasions. She conceived and when that factum was disclosed to the appellant he caused an abortion. 10. The complaint was forwarded for investigation under Section 156(3) of the Cr.P.C. and the crime was registered. 11. As regards the incident we have the evidence of only PW3. At the time of evidence, PW3 says that the ## **Crl.A.No.483/2004** **-8-** appellant had promised to marry her and had sexual intercourse with her only on one occasion against her will. She gives a go by to the version in the complaint and there were several occasions on which he lured her and had sexual intercourse with her against her will and consent. This is definitely a significant departure from the complaint. 12. PW3, the victim says that she conveyed through the appellant and then the appellant took her to the hospital and caused miscarriage. It was after the miscarriage, when she returned the home her parents and others were enquired where she had been. Then she conveyed the information to them. Going by the evidence of PW3, at the time when she was 6 months pregnant, she had a protruding belly and if that be so, it is inconceivable and unbelievable that her parents would not have noticed the same. It is extremely difficult to believe that none noticed her pregnancy. According to PW3, she conveyed the news of her relationship with the appellant only after the abortion. ## **Crl.A.No.483/2004** **-9-** 13. One of the most crucial aspect in the prosecution case is abortion. Evidence of PW6 in this regard is of considerable significance. PW6 is the medical officer who had examined the victim as per requisition made by the investigating officer. It may be remembered that the so called abortion was on 16.07.2001. The case of PW3 is that on informing the appellant about her pregnancy he took the initiative to have the abortion and had it done at the hospital of A3 against the will and consent of PW3. But strangely enough at the time of evidence, PW3 says that she had gone to clinic of one Dr. Malathy who gave her tablet for abortion. If that be so she did attempt to have abortion even prior to the alleged abortion caused at the instance of the appellant. 14. Coming back to the evidence of PW6, she examined the victim on 21.07.2001. That is within a short span of the abortion. One cannot omit to notice the evidence of PW6 which reads as follows: “Abortion of 6 months pregnancy will have signs of **-10-** ## **Crl.A.No.483/2004** abortion at least for 30 days. 6 months old abortion is as good as normal delivery. No marks of abortion was noticed on the person of victim.” If the story of abortion falls on the ground then that makes the whole story made open to serious doubts. 15. It is in the above context that the allegation of the appellant that this is a cooked up case at the instance of PW5 will have to be taken note of. Even going by the evidence of PW3, PW5 was on bitter terms with the appellant. In cross examination PW5 has admitted that he is an accused in a case in which he is alleged to have stabbed the brother of the appellant. These facts speak for themselves. Further, in no less terms PW3 admitted that it was at the instance of PW5 that the complaint was filed and so also they had gone to the police station together. Therefore, the role played by PW5 become quite obvious. 16. The learned counsel appearing for the appellant referred to a judgment reported in **Thimmappa Gowda v. State of Karnataka [2011 KHC 4317]** wherein, according ## **Crl.A.No.483/2004** **-11-** to the counsel on similar facts the Apex Court had occasion to hold that in such cases the offence of rape cannot be attracted. On going through the evidence it may be seen that too was the case in which a woman had fallen in love with the accused in the said case and promising to marry her he subjected her to sexual intercourse. Later on he retracted from his promise and he was called up for the offence punishable under section 376 of IPC. 17. The Apex Court had occasion to hold that in such cases it is difficult to hold that the offence of Section 376 is attracted. 18. Even apart from the above principle laid down in the above decision, the story attempted to be proved by the prosecutrix does not inspire confidence. This Court is not unaware of the fact that uncorroborated, acceptable, convincing, cogent evidence of prosecutrix is sufficient to uphold the conviction. In the case on hand, as already noticed, we have only evidence of PW3, the solitary ## **Crl.A.No.483/2004** **-12-** evidence of PW3 is not beyond suspicion. If that be so, the benefit of doubt would certainly go to the accused. 19. For the above reason, this Court is unable to accept the findings of the court below that the first accused who is the appellant herein is guilty of the offence under Section 376 of IPC. In the result, this appeal is allowed. The conviction and sentence against the appellant as for the offence punishable under Section 376 of IPC is set aside and he is held not guilty of the said offence and he is aggrieved of the said charge. The bail bond shall stand cancelled and he is set at liberty. If any amount has been deposited, that shall be refunded to the appellant. **Sd/P.BHAVADASAN, JUDGE** ds **//TRUE COPY//** **P.A. TO JUDGE**