High Court Kerala High Court

Rajan vs State Of Kerala Represented By on 25 June, 2009

Kerala High Court
Rajan vs State Of Kerala Represented By on 25 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 831 of 2003()


1. RAJAN, S/O. CHAMI (LATE)
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.JOHN NUMPELI (JUNIOR)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :25/06/2009

 O R D E R
                       M.N.KRISHNAN, J.
                       ---------------------------
                      CRL.A.No.831 OF 2003
                       --------------------------
             Dated this the 25th day of June, 2009

                         J U D G M E N T

~~~~~~~~~~~

This is an appeal preferred against he conviction and

sentence passed in S.C. 267/99 of the Addl. Sessions Judge

(Ad hoc-I) Fast Track Court-I, Manjeri. The accused was found

guilty u/s.376 of Indian Penal Code and was sentenced to

undergo rigorous imprisonment for a period of 5 years and to

pay a fine of Rs.5,000/-, which on recovery was directed to be

paid to the victim. It is against that decision the accused has

come up in appeal. From the Memorandum of appeal, the

points that arise for determination are,

1.Whether there are any sufficient materials to hold that the

accused has committed rape on the victim ?

2.Is there anything to interfere with the conviction and

sentence passed by the court ?

2. Point Nos.1 and 2 :- The law was set in motion by

giving a first information statement on 30.12.97 by the

CRL.A.No.831 OF 2003
2

prosecutrix. It is stated in Ext.P4 statement that, she is an

unmarried lady and is working with one Manjiyam Ummer for

the last one month. According to her, everyday she used to go

for work at 6 A.M. in the morning and return at 5.30P.M. in the

evening. While so on 21.12.97 at 6 P.M., while she was

proceeding through the Panchayat road, one Rajan who is

doing business in knife, threatened her and pushed her to the

paddy field and took a knife from the waist and threatened her

and told her unless she permits, she will be killed and

thereafter he had lifted her maxi and petty coat and committed

rape on her. It is also her version that, she had been

threatened by the accused that, if she tells it to somebody she

will be killed. It is her further version that, after he departed she

had gone for her work and that she had not told it to anybody.

On 29.12.97 she had revealed it to her mother and action has

been initiated. Ext.P9 is the document relating to her

examination by the doctor on 30.12.97 at 4.45 P.M. The said

document would show that, she had no external injuries and

CRL.A.No.831 OF 2003
3

her hymen was ruptured already and is specifically written that

it is not recent and further her vagina admits two fingers. The

impression was that, there was no evidence of any force. PW9

is the doctor who had examined her. She only repeats that the

hymen ruptured not recently and admits two fingers and that

there were no external injuries. In the cross examination,

doctor has deposed that no act of violence is noted. Ext.P3

along with the evidence of PW3 would reveal that, there is

nothing to find that the accused was incapable of performing

any sexual intercourse. So it has to be stated from the

materials available in the case that the medical evidence does

not show any recent act of sexual intercourse. Not even a

single suggestion is put to the doctor, with respect to the same

and therefore there is no much medical evidence to support the

case of the prosecution. It is a well settled proposition of law

that there need not be corroboration always to support the

evidence of prosecutrix in a case involving offence u/s.376 of

Indian Penal Code. But as a matter of caution, it is always

CRL.A.No.831 OF 2003
4

absolutely necessary to look into the medical evidence and if

the medical evidence is available and the evidence of the

prosecutrix is trust worthy it can form the basis of a conviction

u/s.376 of Indian Penal Code. As stated by me earlier, the

medical evidence is lacking in this case. Naturally, the lady is

alleged to have been subjected rape on 21.12.1997 and she

had been examined by the doctor only on 30.12.1997 and her

clothes and other materials were produced only thereafter, that

too after washing and the chemical analysis report also shows

that everything is negative. So it has become all the more

burden of the court to scrutinise the evidence available on

behalf of the prosecution to find out the guilt of the accused.

PW5 is the prosecutrix and PW6 is her mother. PW5, the court

felt that, was not able to express properly, and therefore she

was questioned and the court was satisfied that she can give

reasonable and intelligible answer. Thereafter only the

prosecution evidence has started. In the chief examination,

she would depose that she left for work at 5.45 A.M. and when

CRL.A.No.831 OF 2003
5

she reached the road, the accused dragged her into the paddy

field and thereafter committed rape. She would depose that,

she had not gone for work on that day and further would

depose that when she happened to see the accused on

another day, she pointed out him to her mother and then

informed the mother about what had happened. In Ext.P4

statement, the version given by her is that, she had told her

mother about the incident only on 29.12.97 in the night and that

the reason for not divulging is, because she was afraid of the

accused. But there is no whisper in the chief examination and

it is in a deviated form, the version is given in the chief

examination itself. Similarly, in Ext.P4 statement she say that

she had gone for the work after the alleged rape but in the chief

examination she would depose that she had gone back to her

house. In the cross examination, some questions were put and

it has come out in evidence that she had given a go-by to the

act of threat by taking the knife from the waist and threatening

her. According to her in the cross examination she deposed

CRL.A.No.831 OF 2003
6

that, she had some injuries in the tussle and there was mud in

her clothes. She would also depose that her maxi was torn and

her mother did not ask about it to her. She would state before

the Police on 30.12.97 that she is unmarried. But in the cross

examination she would admit that she had been married by one

Ashraf. PW6 is the mother. She would depose that she had

enquired about the person, but was only able to find him on

30.12.97, but gave complaint only on 31.12.97. In the cross

examination she would deny the marriage of PW5 with Ashraf.

She would say that she had seen the clothes of her daughter

totally torn but PW5 has no such case. Incidentally, a

reference to the material objects produced, would show that

there was no tear marks in the cloth or maxi that was produced

before the court. According to her, the prosecutrix had shown

the accused. Her mother would further deposed before the

court that there was an abortion for her daughter and she was

admitted in the Government hospital. When the court asked

her a pointed question, how she came to know that the girl was

CRL.A.No.831 OF 2003
7

pregnant, she would say that there was no evidence for the

same. It is also stated by her that there are papers in the form

of prescription. So it is this evidence which has to be

scrutinised to find the guilt of the accused. If really a person

had been subjected to a cruel act of rape and especially when

she submits that there was rain and her whole cloths were

spoiled on account of the watering and muddy place,

necessarily if she had not gone for the work and had gone back

home immediately, it is nothing but natural that either she

would have told her mother, or atleast, the mother would have

asked her about it. But in this case she would state before

Police in Ext.P4 that she had gone for work. If she had gone

for work in that fashion, it is certain that somebody in that

house would have seen it and their evidence would have been

a good link to prove the case. It is not done in this case. PW5

has deposed before the court that, the accused is a neighbour

of them but they are attempting to explain the delay by stating

that when the accused was seen on 29.12.97, then only they

CRL.A.No.831 OF 2003
8

could locate the person to prefer a complaint. This can not be

also believed. If this girl, PW5, has become pregnant and had

an abortion, it is an important material to establish that she had

been subjected to sexual intercourse by somebody and when

there is an allegation regarding the rape committed by the

accused it would have been a very strong link to the case.

Absolutely no documents is produced, no evidence is tendered

in respect of the fact. It is their case that a girl was treated in a

Govt. hospital. There would be documents. So what is available

before the court is the inconsistent conflicting version which

tends to make the court not to rely upon them. This court is

totally conscious of the fact that, an offence of rape is the

greatest social menace which has developed that much in the

recent past, which requires to be dealt with by iron hands. But

equally one has to be very cautious that innocent persons are

not dragged into these type of offences and convicted. So in

order to convict the accused for an offence u/s.376 of Indian

Penal Code as stated by me earlier, the believable evidence of

CRL.A.No.831 OF 2003
9

PW1, with some lending support of medical evidence is

necessary. It was dawn, ie., almost 6 A.M. in the morning,

where there is no difficulty to identify a person. It takes 9 long

days thereafter to register an F.I.R. It may be stated that

under the Indian society ladies consider their chastity as the

greatest virtue and there may be a thinking process which

would tend to cause delay in lodging an F.I.R. thinking about

the credibility of the family. But there must be circumstances to

indicate the same. Here one would say that the accused is a

neighbour and it takes 9 days to point out it to the mother that,

he is the person who had done the alleged act of rape.

Therefore, the evidences of PW5 and PW6 can not be safely

relied upon to arrive at the guilt of the accused u/s.376 of

Indian Penal Code. I am afraid that, the learned Sessions

Judge had been carried away with the thinking process of the

gravity of the offence without, at the same time realising that

the legal evidence, is lacking in the matter. Therefore the

inevitable conclusion is, to give the benefit of doubt to the

CRL.A.No.831 OF 2003
10

accused and acquit him. The materials are lacking to find the

guilt of the accused.

3. In the result, the criminal appeal is allowed and the

accused is found not guilty u/s.376 of Indian Penal Code.

Therefore he is acquitted and set at liberty forthwith. The bail

bond executed by him shall stand cancelled.

M.N.KRISHNAN, JUDGE

ami.