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Garvasis @ Jimmy John vs State Of Kerala on 2 February, 2007

Kerala High Court
Garvasis @ Jimmy John vs State Of Kerala on 2 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1454 of 2006(C)


1. GARVASIS @ JIMMY JOHN, S/O. AUGUSTHY,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :ADV.LIJU V STEPHAN(STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :02/02/2007

 O R D E R

K.Thankappan, J.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Crl. A. No. 1454 of 2006

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Dated this the 2nd day of February, 2006

JUDMENT

The appellant, accused in S.C. No.439/2004 on the file of the Court of

the Additional Sessions Judge (Adhoc-I), Ernakulam, faced trial for the

offences punishable under sections 376 IPC. The prosecution case against

the appellant is that the appellant committed rape on PW1 on 10-6-1998, 11-

6-1998 at the residence of PW11 and on 13-6-1998 near house No.XV/108

adjacent to the K.S.R.T.C. Bus Stand, Perumbavoor and thereby committed

the offence punishable under section 376 IPC. To prove the charge against

the appellant, the prosecution examined PW1 to PW11 and Exts.P1 to P12

were marked. Material object MO1 to MO4 were also marked. When the

appellant was questioned under section 313 of Cr.P.C., he admitted that he

had sexual intercourse with her, but added that he never threatened her and

that was with her consent. Relying on the evidence adduced by the

prosecution both, oral and documentary, the trial court found the appellant

guilty under section 376 IPC and he was convicted thereunder and sentenced

to undergo rigorous imprisonment for seven years and to pay a fine of

Rs.10,000/- and in default to undergo simple imprisonment for one year

under section 376 IPC. The benefit under section 428 Cr.P.C. was granted.

Crl.A.1454/06 2

The above conviction and sentence awarded against the appellant are

assailed in this appeal.

2. Since the appellant is in jail, the appeal has been filed by him

through the jail authorities. As the appellant has not defended his case

by his own counsel, State Brief was appointed to defend the case of the

appellant.

3. This Court heard learned counsel for the appellant as well as

the learned Public Prosecutor.

4. The learned counsel for the appellant contends that the trial

court went wrong in accepting the prosecution case to find the

appellant guilty of the charges levelled against him. The learned

counsel also contends that the evidences adduced by the prosecution

are contradictory in nature. It is further contended that the trial court

ought to have considered the case set up by the appellant while he was

questioned under section 313 Cr.P.C. that he had sexual intercourse

with PW1 with her own consent. Lastly, it is contended that the

sentence awarded against the appellant is excessive.

5. The prosecution case is that PW1, a student of B.A. Degree

course aged 19 years, left the house in a frustrated manner and went to

Sarvodaya Santhi Bhavan on 9-6-1998 and met PW3 for shelter and

Crl.A.1454/06 3

also for employment. PW3 informed PW1 that there was no female

inmates in the institution and he advised her to go over to Love Home,

Thodupuzha wherein female inmates were there. PW3 consulted the

matter with the appellant and the appellant informed him that he was

acquainted with the Love Home and he would take her to the Love

Home. So, PW3 entrusted a letter addressed to the Director of Love

Home and Rs.100/- with the appellant and he sent PW1 along with the

appellant with direction to the appellant to entrust her with the Director

of Love Home at Thodupuza. But, the appellant took her to the

residence of PW11 at Ootty and when they stayed there on 10-6-1998

and 11-6-1998, he committed rape on her without her consent and on

12-6-1998 the above fact was revealed by PW1 to PW11, they were

sent back. It is also alleged that when PW1 and the appellant reached

Perumbavoor K.S.R.T.C. bus stand at night, the appellant committed

rape on her and when PW9, the A.S.I. of Police, Perumbavoor came

over to the bus stand at 2.00 A.M. in connection with his night patrol

duty, the matter was informed to him by PW1. Hence, the appellant was

arrested and a case was registered against him. Thereafter, the

investigation of the case had been conducted by PW9 and PW10 and

finally a charge was filed against the appellant. To prove the case

Crl.A.1454/06 4

against the appellant, the court below mainly relied on the evidence of

PW1 to PW4 and PW9 and PW10. PW1, who was the victim, stated

that she left the house of her uncle, where she was residing study

purpose, and as she came to know about the functioning of Sarvodaya

Santhi Bhavan, she met PW3 for getting an employment. She further

stated that PW3 informed her that there was no female inmates in the

institution and he advised her to go to Love Home wherein female

inmates are admitted. This witness stated that PW3 sent her along with

the appellant with a direction to the appellant to entrust her with the

Director of the Love Home. But the appellant took her to the residence

of PW11 at Ootty and when they stayed there on 10-6-1998 and 11-6-

1998, the appellant committed rape on her without her consent. She

further stated that though she resisted, she was threatened by the

appellant by stating that he was a murderer and had undergone

imprisonment and he had shown some weapon like knife. She stated

that in the residence of PW11 the appellant introduced her as his lover.

When she narrated the entire story to PW11, they were sent back and

when they reached Perumbavoor K.S.R.T.C. bus stand at night, the

appellant again committed rape on her. When PW9, the A.S.I. of

Police, Perumbavoor came over to the bus stand at 2.00 A.M. in

Crl.A.1454/06 5

connection with his night patrol duty, the matter was informed to him.

She identified the dresses which she worn on 13-6-1998. She also stated

that she was examined by PW4 doctor at the request of the police. The

evidence of this witness is supported by PW3 who was conducting

Survodaya Santhi Bhavan Charitable Trust. He deposed that on 9-6-

1998 PW1 came to the Santhi Bhavan and requested for shelter in the

institution. He also deposed that since there was no lady inmates in the

institution, he decided to send PW1 to Love Home and he had given

Ext.P2 letter addressed to the Director of Love Home. By this time the

appellant came there and heard the entire matter and he informed that he

knew the Love Home and agreed to take PW1 to Love Home. So, he

gave Rs.100/-, Ext.P2 letter and ext.P3 dip containing the address of the

Love Home and sent PW1 along with the appellant. He stated that he

contacted the Love Home and understood that they did not reach there

and he received the information from the newspapers and he went over

to the police station, Perumbavoor and found the appellant and PW1 at

the Police Station. The court also considered the evidence of PW4 who

examined PW1 and issued Ext.P4 medical certificate. She stated that

PW1 was subjected to sexual intercourse. But she stated that there was

no external injuries. The statement recorded by PW4 would also show

Crl.A.1454/06 6

that PW1 was raped on previous day. PW9 and PW10 are police

officials who conducted the investigation of the case. PW9 A.S.I. who

recorded Ext.P1 statement from PW1 conducted the investigation of the

case and filed final charge against the appellant. PW9 stated that he

recorded Ext.P1 statement of PW1 and she was sent for medical

examination. PW10 was the Head Constable. He stated that he went to

Neelgiri at Edakkatti Village and he prepared Ext.P11 mahazar. PW11

stated that he was a friend of the appellant and he had acquaintance with

him at Muringoor in connection with a religious function. He stated

that both the appellant and PW1 came to his house on 10-6-1998 and

the appellant introduced PW1 as his wife and he allow them to live in

his house. He also stated that he was the Councillor of Vikutty

Panchayat and while the panchayat was going on, PW1 informed him

that the appellant cheated her, she was not his wife and the appellant

brought her stating that he was taking her to some orphanage and raped

her. PW2, father of PW1, had stated before the court that PW1 was

residing his house and she was studying at the college during the

relevant time and she was missed on 9-6-1998. He further stated that no

complaint was filed before the police about the missing of PW1. The

trial court after considering the evidence came to the conclusion that ”

Crl.A.1454/06 7

thus the deposition of PW1 taken along with the evidence of PW4,

Ext.P4 and the report of the chemical analysis, Ext.P12 coupled

with the defence of the accused unerringly lead to the irresistible

conclusion that the accused had sexual intercourse with PW1″.

6. The submission of the learned senior counsel is that during

the stay at Neelgiri there were many chances for PW1 to reveal all these

facts to the public and to escape from the clutches of the appellant and

hence the conclusion arrived at by the trial court that the appellant

committed rape PW1 without her consent is not sustainable.

7. The fact that PW1 went to the institution of PW3 on 9-6-

1998 for shelter and since no female inmates would be allowed in the

institution, PW3 advised her to go to Love Home wherein female

members were also permissible and she was entrusted with the appellant

to get her admitted at Love Home. She was accompanying the appellant

with firm belief that the appellant will get her admitted in some

orphanage or some institution. But, the appellant took PW1 to the

residence of PW11 at Neelagiri and at the residence of PW11. The

evidence of PW4 would show that PW1 was subjected to intercourse.

After taken into consideration the incriminating circumstances and the

dictum laid down by the Apex Court in a decision reported in State of

Crl.A.1454/06 8

U.P. V. Lakshmi (AIR 1988 scene of occurrence 1007) and legal

maxim the trial court came to the conclusion that “in the absence of

injury it cannot be concluded that the incident had not taken place

or that sexual intercourse was committed with the consent of the

prosecutrix”. The state of mind of PW1 has also to be considered.

PW1 left the house in a frustrated stage and she was at the verge of

committing suicide. She was accompanying the appellant with firm

belief that the appellant will help her. The evidence of PW1 would

show that she along with the appellant reached in the residence of

PW11 early in the morning on 10-6-1998. When she was asked as to

why she has not raised any cry, she deposed that though she raised the

cry, the others may not be able to identify it because of language

problem or because they were not aware of the presence of PW1 and the

appellant at the house. In cross-examination she stated that she was in a

strange place far away from the residence and that too in Tamil Nadu

and she could not escape by running away since she did not know any

place in the residence of PW11, which was situated almost on the top

of a hill. In the above circumstances, it can be concluded that PW1

was in a frustrated, dejected and helpless and on account of such state

of mind cannot be conceded as consent. Consent is defined in in The

Crl.A.1454/06 9

Law Lexicon with Legal Maxims, written by P. Ramanatha Aiyar,

Reprint Edition 1992 the word `consent’ is defined as “an act of reason

accompanied with deliberation, the mind weighing, as in a balance,

the good and evil on each side”. In Black’s Law Dictionary Seventh

Edition it is defined as “agreement, approval or permission as to some

act or purpose, esp. given voluntarily by a competent person”. Moreover

in Oxford Advanced Leaner’s Dictionary it is defined as “permission

to do, especially given by in authority” The reliance placed by the

learned counsel in a decision reported in Deelip Singh alias Dilip

Kumar V. State of Bihar ((2005)1 SCC 88) is not applicable in the facts

and circumstances of the case. Hence, this Court is of the view that the

findings entered by the trial court are based on evidence and it requires

no interference by this Court. The conviction entered against the

appellant under section 376 IPC is confirmed, accordingly.

8. With regard to the sentence awarded against the appellant,

considering the fact that PW1 was aged 19 years and Second year B.A.

Degree student and that she voluntarily accompanied the appellant to

Ootty instead of Love Home, Thodupuzha as directed by PW3 and also

the fact that she did not object to having been introduced as the wife of

Crl.A.1454/06 10

the appellant, this Court is of the view that rigorous imprisonment for

five years will meet the ends of justice. Hence, the appellant is

sentenced to undergo rigorous imprisonment for five years under

section 376 IPC.

9.The sentence awarded against the appellant is modified as

above and the appeal is dismissed.

K. Thankappan,

Judge.

Crl.A.1454/06    11





                         K. Thankappan,J.

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                       Crl.A. No. 1454/2006

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                               Judgment

                                2-2-2007


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