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.
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CRL.A.No.831 OF 2003
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Dated this the 25th day of June, 2009
J U D G M E N T
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.