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.
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Crl. A. No. 1454 of 2006
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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.
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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
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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
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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
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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
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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 ”
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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
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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
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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
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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.
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K. Thankappan,J.
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Crl.A. No. 1454/2006
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Judgment
2-2-2007
