IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 583 of 2005()
1. CHANDRANAND @ HARI, S/O. RAJENDRAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.K.GOPALAKRISHNA KURUP
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :20/11/2007
O R D E R
K. Thankappan, J.
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Crl. A. Nos. 583 & 598 of 2005
&
109 of 2006
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JUDGMENT
Accused nine in numbers in S.C.No.207/1998 on the file of the
Court of the Addl. Sessions Judge (Fast Track Court-I),
Thiruvananthapuram were charge-sheeted for the offence punishable
under sections 457, 366, 323, 324, 506(II), 376(2)(g) and 120(B) read
with section 34 IPC. Accused 1, 5 and 7 were reported dead and hence
charges against them were abated and the remaining accused were
tried. The prosecution case against the accused is that accused 1 to 9
entered into a criminal conspiracy to commit rape on PW1 on
kidnapping her from her house and thereafter they in furtherance of
their common intention of committing rape on her on 21-5-1996 at
8.30 P.M. accused 1 to 3 criminally trespassed into the house of PW1
and 2nd accused awakened her, who was sleeping. and closed her
mouth with a handkerchief and accused 1 to 3 forcibly took her out of
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the house and forcibly took her in an autorickshaw bearing registration
No. KL 01 F 4695 and thereafter accused 2 and 3 also entered into the
autorickshaw, being driven by the 9th accused. Thereafter 1st accused
entered into another autorickshaw bearing registration No. KCV 310,
being driven by 8th accused, and the two autorickshaws were driven
towards a place called Kunnukuzhy and thereafter the autorickshaw
driven by the 8th accused was parked on the southern side of the road of
the slaughter house building of the City Corporation,
Thiruvananthapuram situated in Kunnukuzhy Ward, Vanchiyoor
Village. It is also alleged that the autorickshaw driven by the 9th
accused in which 2nd and 3rd accused travelled was taken inside the
slaughter house compound and thereafter PW1 was forcibly taken to
the front room of the western block of slaughter house building and
then 2nd and 3rd accused beat her and fisted her on the different parts of
her body, 3rd accused beat her with a dangerous stick on her buttock
portion and then 3rd accused criminally intimidated her stating that she
would be killed if she would tell about the incident to others and thus
causing her in fear of death and the 1st accused criminally intimidated
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her by flashing a camera without film pretending that her naked
photos were taken and thereafter accused Nos.2 to 7 and 9 committed
rape on her one after another and thereby committed the offences
punishable under the aforesaid sections. To prove the charge against
the accused, PWs.1 to 24 were examined and Exts.P1 to P43 and
MOs. I to VIII were marked. When the accused were questioned under
section 313 Cr.P.C., they denied the incriminating circumstances
brought by the prosecution against them. On the side of the defence,
Exts.D1 to D7 were marked. However, on considering the entire
evidence, the trial court found accused Nos. 2, 3, 4 and 6 are guilty of
offences punishable under sections 448, 366, 506(I) and 376(2)(g) read
with section 34 IPC and they were convicted thereunder and sentenced
to undergo rigorous imprisonment for three months each under section
448 read with section 34 IPC, sentenced to undergo rigorous
imprisonment for two years each and to pay a fine of Rs.5,000/- each
and in default to undergo rigorous imprisonment for three months each
under section 366 read with section 34 IPC, sentenced to undergo
rigorous imprisonment for three months each under section 506(I) read
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with section 34 IPC, sentenced to undergo rigorous imprisonment for
seven years each and to pay a fine of Rs.15,000/- each and in default to
undergo rigorous imprisonment for two years each under section 376
(2)(g) read with section 34 IPC. The trial court ordered that
substantive sentences should run concurrently. The trial court also
found that accused 8 and 9 were not guilty to offences punishable
under sections 457, 366, 323, 324 and 506(II) read with section 34 IPC
and they were acquitted of the said offences. Crl.A.Nos.583/2005 has
been filed by the 1st accused, Crl.A.No.598/2005 has been filed by
accused 2 to 4 and Crl.A.No.109/2006 has been filed by the 2nd accused
through the jail authorities in S.C.No.207/1998 on the file of the Court
of the Addl. Sessions Judge (Fast Track Court-I), Thiruvananthapuram
for setting aside the impugned judgment of the trial court.
2. Heard the learned counsel for the accused/appellants and
heard the learned Public Prosecutor.
3. The judgment under appeals is challenged on the following
grounds. Firstly, it is contended that the trial court has committed
serious error in accepting the evidence of PW1, as her evidence is
Crl.A..583/05 and con. 5
highly improbable and unbelievable in the facts and circumstances of
the case. Secondly it is contended that the trial court ought not have
accepted the occurrence witnesses as they are not supporting the
prosecution case as such and they deviated from their earlier versions.
Thirdly it is contended that there was a delay of three days in filing
Ext.P1 statement before the police and hence the trial court ought to
have rejected the evidence of PW1. Fourthly, it is contended that the
trial court ought not have accepted the medical evidence adduced by
the prosecution, as there is no evidence to prove that there is any
forcible intercourse. Lastly, it is contended that the trial court has
committed serious error in finding that the appellant guilty under
sections 366 and 376(2)(g)read with section 34 IPC, as there is no
evidence to prove that the appellants have a common intention to
commit the offences as alleged by the prosecution.
4. In the light of the contentions raised by the learned counsel
for the appellants, this Court has to analyze the evidence adduced by
the prosecution and to find whether the conclusions arrived at by the
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trial court are justifiable or not?
5. The specific charge against the appellants is that all the
accused conspired together to commit rape on PW1 after kidnapping
her from her house and accused 1 to 3 criminally trespassed into the
house of PW1 and 2nd accused closed her mouth with a handkerchief
and accused 1 to 3 forcibly taken her out of the house and forcibly
taken her in an autorickshaw and the autorickshaw was taken inside the
slaughter house in Kunukuzhy and thereafter PW1 was forcibly taken
to the front room of the western block of slaughter house and then
accused 2 and 3 beat her and fisted her on the various parts of her body,
the 3rd accused beat her with a dangerous stick on her buttock portion
and then the 3rd accused criminally intimidated her stating that she
would be killed, if she would tell about the incident to others causing
her fear of death and then the 1st accused criminally intimidated her by
flashing a camera without film pretending that the naked photos of
PW1 were taken and thereafter accused 2 to 7 and 9 committed rape on
her one after another. The further case of the prosecution is that after
the commission of the offence PW1 was taken to her house in an
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autorickshaw by the accused and they left the place. After the incident
PW1 on 23-5-1906 at 8 p.m. went to the Valiyathura Police Station
and lodged Ext.P1 statement before PW21 the then Sub Inspector of
Police, Valiyathura Police Station. PW21 on the basis of Ext.P1
statement registered a case as Crime No.137/96 against accused 1 to 6
and others for offence punishable under sections 363, 376 and 354 IPC.
PW21 sent PW1 to the hospital for medical examination. PW1 was
examined by PW19 and issued Ext.P27 certificate. PW23 the then S.I.
of Police, Poonthura Police Station took up the investigation of the
case and questioned the witnesses. PW22 the then C.I. of Police,
Poonthura took up the further investigation and PW25 filed charge
before the court. As per the final report Extt.P42 it is alleged that the
appellants and other accused had committed offences punishable under
sections 457, 366, 323, 324, 506(II), 378(2)(g) and 120(B) read with
section 34 IPC. To prove the charge against the appellant the trial court
has mainly relied on the evidence of PWs.1 to 4, 13 to 19, 21 to 24.
Pws.21 to 24 are the official witnesses.
Crl.A..583/05 and con. 8
6.As per Ext.P42 final charge, on 21-5-1996 at 8.30 p.m.
accused 1 to 3 criminally trespassed into the house of PW1 and 2nd
accused closed her mouth with a handkerchief and accused 1 to 3
forcibly taken her in an autorickshaw and thereafter the autorickshaw
was taken inside the slaughter house in Kunukuzhy and thereafter PW1
was forcibly taken to the front room of the western block of slaughter
house and then accused 2 and 3 beat her and fisted her on the various
parts of her body, the 3rd accused beat her with a dangerous stick on her
buttock portion and then the 3rd accused criminally intimidated her
stating that she would be killed if she would tell about the incident to
others causing her fear of death and then the 1st accused criminally
intimidated her by flashing a camera without film pretending that the
naked photos of PW1 were taken and thereafter accused 2 to 7 and 9
committed rape on her one after another.
7. In her evidence PW1 stated that she was residing at Puthuval
House in Chieriyathura in the Valiyathura Ward of Muthathara Village.
On 21-5-1996 in the night while she was sleeping, the 2nd accused
awakened her and requested her to go with him outside the house.
Crl.A..583/05 and con. 9
When she refused, he closed her mouth with a handkerchief and
accused 1 to 3 forcibly took her out of the house and forcibly took her
in an autorickshaw. Thereafter, the autorickshaw was taken along the
Kallumoodu road and then the autorickshaw stopped near a big wall.
She further deposed that in the second autorickshaw the 6th accused
and deceased Ravi were travelling. At that time an aged man opened
the gate. Thereafter she was forcibly taken to the front room of the
western block of slaughter house and they asked to remove the dress.
When she refused, they beat her and fisted her on the various parts of
her body. She was forcibly laid on the floor and accused Hari
committed rape on her and thereafter 1st accused committed rape on
her. Then the 3rd accused threatened her stating that she would be killed
if she would tell about the incident to others and then deceased Ravi
criminally intimidated her by flashing a camera without film pretending
that the naked photos of PW1 were taken. Further evidence of this
witness is that thereafter they committed rape on her one after another.
She identified accused Nos. 3, 4, 6 and 9. She further stated that
after the incident she was taken to her house in an autorickshaw driven
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by the 1st accused and when they reached near the house, they left the
place. She also stated that on the next day accused 3 and 4 came to her
house and they laughed at her. Further evidence of this witness is that
on 23-5-1996 at 6 P.M. she went to the police station and reported the
matter to PW21. PW21 sent her to the hospital and in the hospital she
was examined by PW19 doctor. PW19 issued Ext.P27 certificate.
PW19 took vaginal smear and swab and sent for chemical analysis.
8. PW2 was examined to prove the ownership of autorickshaw
bearing registration No. KL 01 F 4695 and also to prove that the
autorickshaw was driven by the 9th accused. PWs.3 and 4 were
examined as occurrence witnesses. They were declared hostile to the
prosecution. PW5 was examined to prove that autorickshaw bearing
registration No. KCV 310 belongs to him and also to prove that during
the relevant time 8th accused was driving the autorickshaw. PWs.7 to 12
proved Exts.P13, 14, 15, P36 and P40. PW13 Chief Chemical
Examiner issued Ext.P17 certificate. PWs.14 to 16 were examined to
prove the potency of some of the accused including 2nd accused. PW17
was the Judicial Magistrate of the First Class IV (Mobile Court),
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Thiruvananthapuram who recorded Ext.P4 statement of Maniyan under
section 164 Code of Criminal Procedure. PW18 was the Assistant
Director of Biology Division in FSL Trivandrum. He issued Ext.P26
certificate. PW20 was examined to prove the potency of the 9th
accused. He issued Ext.P28 certificate. The trial court after considering
the evidence of Pws.1,2,19,20 to 24 found that there was common
intention on the part of the accused persons and it was in furtherance of
their common intention they had trespassed into the room of the house
of PW1 and kidnapped her and committed gang rape on her after
criminally intimidating her and hence the prosecution had fully
succeeded in proving the charge against the accused.
9. The trial court while analyzing the evidence of PW1 found
that there were some minor contradictions and embellishments in the
evidence of PW1. It has to be noted that evidence of PW1 would show
that on 21-5-1996 at 8.30 p.m. accused 1 to 3 criminally trespassed
into the house of PW1 and 2nd accused closed her mouth with a
handkerchief and accused 1 to 3 forcibly taken her in an autorickshaw
and thereafter the autorickshaw was taken inside the slaughter house
Crl.A..583/05 and con. 12
and thereafter the accused committed rape on her one after another. In
this context, the evidence of PW23 who prepared Ext.P30 scene
mahazar would show that there are so many houses very close to the
house of PW1. There is a pathway to the public road from the house of
PW1 and the house of PW1 is situated in an open place. PW23 had not
questioned the neighbours at the time of preparing Ext.P30 mahazar.
Reading of Ext.P30 would also show that a distance of 25 to 30 metres
to reach the main road where the autorickshaw was parked. Ext.P30
would further show that there are many houses within the distance of
25 to 30 metres from the house of PW1. If the evidence of PW1 is
taken into consideration, it is not possible to believe that she was
forcibly taken from her house and dragged to a distance of 25 to 30
metres and forcibly taken in an autorickshaw without attention of the
public of the locality. Further it can be seen that PW1 had seen the
accused persons prior to the occurrence when they used to visit the
house of the 1st accused. If she was forcibly taken by accused 1 to 3,
she ought to have make an attempt to get the attention of the public of
the locality. Ext.12 scene mahazar and the evidence of PWs.6 and 23
Crl.A..583/05 and con. 13
would show that there are many houses and shops very close to the
slaughter house. If that be so, PW1 ought to have made an attempt to
get the attention of the public. The evidence of PW3 who was
examined as an occurrence witness is also relevant. PW3 was working
as the watchman of the slaughter house during the relevant time. He
stated that he was on duty at the slaughter house on 21-5-1996 and he
was questioned by the police in connection with the incident and he
was kept in the police station for more than 12 days. Thereafter he was
taken to the Judicial Magistrate and he had given a statement. Though
he admitted his signature in the statement, he sated that he had given
the statement as directed by the police. He was declared hostile to the
prosecution. The evidence of PW1 regarding the alleged abduction
made by the accused is not clearly established by cogent and reliable
evidence. In this context the evidence of PW4 who was examined as
occurrence witness is also relevant. The prosecution case is that after
commission of offence, PW1 was taken to her house in an
autorickshaw in which PW4 was also travelling. Accused 1 to 6 were
also accompanied her. She admitted the fact that PW4 was a neighbor
Crl.A..583/05 and con. 14
of her. But she had not informed him about the incident. It is
interesting to be noted that on the next day accused 3 and 4 came to
her house and laughed at her, which might have provoked her to go to
the police station and file the complaint. In this context it has to be
noted that the trial court found that there were some minor
contradictions and embellishments in her evidence. But the trial court
had considered that it was subjected to lengthy and severe cross-
examination by the defence counsel. The trial court came to the
conclusion that there was no evidence to prove that none of the
appellants had committed offences punishable under section 457, 323,
324, 506(II) or even 354 read with section 34 IPC, as the prosecution
has failed to prove the above charge. In the above circumstances, the
evidence of PW1 was that she was forcibly taken from her house to the
slaughter house and committed rape on her one after another has to be
considered very cautiously.
10. In her evidence PW1 stated that she was brutally attacked
by the accused and each and every parts of her body were pinched by
them. In Ext.P27 it is stated that tenderness present on her upper chest
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and upper inter scapular region. It is further stated that no external
injuries were found on the breast and lips and no injuries were found
on external genitallia. It has come out in evidence that she was accused
in certain cases including a murder case. The character of a victim in
an alleged offence of gang rape may not be a ground to reject her
evidence, otherwise her evidence is acceptable. To get over such
improbabilities of the evidence of PW1, the trial court has relied on a
decision of the Apex Court reported in Jai Shree Yadav V. State of
U.P. (2005(1) KLT 5). The facts and circumstances of the above case
are different in the facts and circumstances of the case in hand. PW1 is
a house wife of 35 years of age. She had given birth to nine children
through her two husbands. She admitted that there were criminal cases
against her and her son. It is relevant to note that when she was
examined, she stated that when she reached near the wall, she lost her
consciousness and that stage continued till she returned to her house.
During cross-examination she stated that she had no tears and she was
not in a position to speak and identify the shop keepers or persons. She
stated that she could not express the miseries that she had suffered.
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PW19 had noted certain tenderness on the upper chest and inter
scapular region. PW1 had a definite case that she had brutally attacked
by accused No.3 at the slaughter house with a dangerous stick. If that
be so, there is possibility of external injuries on the body of PW1. In
this context, the trial court had noted that PW1 was a lady who gave
birth to nine children. Admittedly, PW1 has no case that she had
made any resistance at the time of rape by the accused one after
another. It is the admitted case of PW1 that she was brought back to
her house in an autorickshaw in which PW4 accompanied. But she had
not stated anything to him. Apart from the above, the delay occurred in
filing the complaint before the police would create doubt regarding her
evidence. There is no explanation for the delay in filing the complaint
either from PW1 or from the official witnesses who had investigated
the case. Contradictions and additions in Ext.P1 were marked as
Exts.D1 to D3. PW1 had admitted that she had taken bath 10 to 20
times on the next day and kept quiet till accused 3 and 4 came to her
house.
Crl.A..583/05 and con. 17
11. Evidence of PW13 Chemical Examiner and Ext.P17
chemical analysis certificate issued by him would show that human
blood, human semen and spermeto zoa were detected in the vaginal
smear slides under item Nos.1(A) and 1(B) and semen and spermeto
zoa were detected in the vaginal swab under item Nos.2(I) and 2(II)
and human blood was detected under item Nos.2(I) and 2(II). These
evidence would not show that PW1 was subjected to forcible sexual
intercourse. In this context, the defence had a definite case that the
presence of human semen and spermeto zoa on the vaginal would not
prove any case of forcible intercourse. The evidence of PW19 would
not show that there was any violence or injury on the body of PW1.
Apart from that no D.N.A. test has been conducted from blood stains
and seminal stains to identify the accused. The trial court has
committed serious error in finding that there was no possibility of any
external injuries on the private parts of PW1 including vagina. The trial
court has justified the above finding by holding that PW1 was a lady
who gave birth to nine children. Only on the ground that PW1 was
involved in some criminal cases, it may not be a ground to reject her
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evidence. However, her evidence had to be subjected to strict scrutiny
before its acceptance. In this context, a decision of the Apex Court
reported in Sudhamani Sekhar Sahoo V. State of Orissa (AIR 2003 SC
2136) is relied on by the learned counsel for the appellants. In the
above decision in paragraph 17 the Apex Court held as follows:-
“17. It is well settled that in rape cases the conviction can
be solely based on the evidence of the victim provided
such evidence inspires confidence in the mind to the
court. The victim is not treated as accomplice, but could
only be characterized as injured witness. It is also
reasonable to assume that no woman would falsely
implicate a person in sexual offence as the honour and
prestige of that woman also would be at stake. However,
the evidence of the prosecution shall be cogent and
convincing and there is any supporting material likely to
be available , then the rule of prudence requires that
evidence of the victim maybe supported by such
corroborative material.”
In the above decision the Apex Court also held as follows:-
“… The sexual violence is a dehumanising act and it is an
unlawful encroachment into the right to privacy and
sanctity of woman. The Courts also should be strict and
vigilant to protect the society from such evils. It is in the
interest of the society that serious crimes like rape should
be effectively investigated. It is equally important that
there must be fairness to all sides. In a criminal case, the
Court has to consider the trangulation of interests. It
involves taking into account the position of the accused,
the victim and his or her family and the public.”
Crl.A..583/05 and con. 19
The the learned counsel for the appellants also relies another decision
of the Apex Court reported in Vimal Suresh Kamble V.
Chaluverapinake Apad S.P. And another (AIR 2003 SC 818). In the
above decision the Apex Court held that a conviction could not be
safely based upon the evidence of the prosecutrix alone. It is also held
that it is no doubt true that in law the conviction of an accused on the
basis of the testimony of the prosecutrix alone is permissible, but that
is in a case where the evidence of the prosecutrix inspires confidence
and appears to be natural and truthful. In this context the evidence of
PW23 investigating officer also has to be considered. PW23 had stated
that he had seized MO1 series clothes worn by PW1 at the time of
alleged offence. PW23 had not noted any semen or spermeto zoa in
MO1 series. Even if MO1 series contained any semen or spermeto zoa,
that by itself will not prove that PW1 was subjected to forcible
intercourse. The learned counsel for the appellants further relies on a
decision of the Apex Court reported in Pratap Misra and others V. State
of Orissa (AIR 1977 SC 1307) wherein the Apex Court considered a
similar fact situation of a gang rape. In the above decision the Apex
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Court held that absence of any injuries either on the accused or the
prosecutrix clearly showed that she did not put up any resistance to the
alleged rape committed by the accused. Coupled with the above, the
delay caused in reported the matter to the police also create doubt
regarding the evidence of PW1. In State of Karnataka V. Mappilla the
learned Public Prosecutor Soopi ((2003) 8 scc 202) the Apex Court
held that undue delay in lodging the complaint without acceptable
evidence had also contributed to the doubt in the prosecution case.
12. One more aspect to be considered in this case is that though
prosecution examined Pws.3 and 4 to support the evidence of PW1,
these witnesses were turned hostile to the prosecution. The prosecution
also relied on Ext.P3 statement of PW3 recorded by PW17 under
section 164 Cr.P.C., but PW3 had not admitted that he had given any
such statement to the police. In his evidence he stated that he was
compelled and forced to give the statement due to the threatening on
the part of the police and according to him he was kept in the police
custody for about 12 days. In this context, PW4 is an independent
witness who was examined to prove the occurrence, but he has not
Crl.A..583/05 and con. 21
supported the evidence of PW1. The investigation conducted by PW23
is also not trustworthy as this witness had not taken any steps to collect
true and correct version of the witnesses. PW23 had stated that he took
up the investigation of the case and recover MO1 series . The evidence
of PW23 or the alleged owners of the autorickshaws would not prove
that PW1 was taken to the place of the incident either by force or
against her wish.
13. In the circumstances, this Court is of the view that the
prosecution has failed to prove the charges against the appellants
beyond reasonable doubt. Hence, the appellants are certainly entitled to
the benefit of doubt. Therefore, the conviction and sentence awarded
against the appellants are hereby set aside and the appellants are
acquitted of all the charges framed against them. The appellant in
Crl.A.No.109/2006 shall be released forthwith unless required in any
other case. The bail bonds furnished by the appellants except the
appellant in Crl.A.No.109/2006 are cancelled.
The appeals are allowed as above.
20th November,2007 K. Thankappan,
Judge.
Crl.A..583/05 and con. 22
mn
Crl.A..583/05 and con. 23
K.Thankappan, J.
Crl.A.Nos.583,598/05
&
109/2006
Judgement
20-11-2007
