IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 719 of 2003()
1. SWASI, S/O. KANNAN,
... Petitioner
Vs
1. THE SUB INSPECTOR OF POLICE, VADAKARA.
... Respondent
2. STATE OF KERALA, REP. BY
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.THANKAPPAN
Dated :10/10/2007
O R D E R
K. Thankappan, J.
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Crl.A. No. 719 of 2003
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Dated this the 10th day of October, 2007
JUDGMENT
Appellant was the sole accused in S.C.No.464/2000 on the file of the
Court of the Addl. District and Sessions Judge, Fast Track (Adhoc-II),
Kozhikode. He was charge-sheeted for the offences punishable under sections
354, 374, 493, 506(1) IPC on the allegation that in between the period from
1996 to 1998 he raped PW6 against her will and consent in different places
promising to marry her and thereafter withdrew from the said promise and
thereby committed the above offences. On the side of the prosecution PWs.1 to
12 were examined and Exts.P1 to P10 were produced. After closing the
prosecution evidence the appellant was questioned under section 313 Cr.P.C.
He denied the allegation. On the side of the defence, Ext.D1 series letter and
greeting cards was marked. After considering the entire evidence the trial court
found that the appellant guilty of the offences punishable under sections 354
and 376 IPC and he was convicted thereunder and sentenced to undergo
rigorous imprisonment for one year for the offence punishable under section
Cr.A. 719/2003 2
354 IPC and sentenced to undergo rigorous imprisonment for seven years
and to pay a fine of Rs.25,000/- and in default to undergo simple
imprisonment for one year for the offence punishable under section 376
IPC. The trial court ordered that if the amount of fine was realized, an
amount of Rs.10,000/- should be given to PW6. The trial court also ordered
that the substantive sentence should run concurrently. The above judgment
of the trial court is assailed in this appeal.
2. Heard.
3. The first contention of the learned counsel for the appellant is that
the trial court has mis-read the evidence of PW6 to find the appellant
committed the offences. The next contention of the learned counsel is that
the evidence of PW6 is not corroborated by any other evidence and hence it
is not reliable. It is further contended that the investigation conducted by
PWs.10 and 12 are not sufficient to prove the case against the appellant.
4. The very inception of the case against the appellant is on the basis
of Ext.P9 complaint filed by PW6 in which it is alleged that the appellant
raped PW6 against her will and over powering her with his muscle power in
a lodge at Mookambika in October, 1996 and few months thereafter in room
No.105 of Vrindavan Tourist Home at Thamarassery and on 29-4-1997 in a
room at Devaswom Sathram at Thirunelli promising to marry her. PW11
Cr.A. 719/2003 3
was the Asst. Surgeon examined PW6. He stated that on 3-8-1999 at 11.15
a.m. he examined PW6 who was brought by W.P.C. Pushpa and the
complaint was “Sasi 1996 1998
“. He also
stated that “no abnormality in local examination and external
genatamisa normal”. He further stated that “the above mentioned
person has undergone sexual intercourse”. He proved Ext.P13
certificate. The evidence of PWs.1 to 5 would show that both the
appellant and PW6 were taken rooms in the lodges and “sathram”.
PW6 victim deposed that she used to travel in the auto rickshaw of
the appellant. She also stated that the appellant promised to marry
her and took her to Mookambika Temple. The appellant took a
room in a lodge at Mookambika and on the night he raped ignoring
her resistance. She further stated that in January 1997 the
appellant again demanded her to accompany him to Mookambika
for offering a prayer and believing the words of the appellant she
proceeded to Maookambika and resided in the same lodge. But
Cr.A. 719/2003 4
against the promise the appellant again raped her and on the next
day he took her to Dharmasthala. There also she resided with the
appellant in a rented room and on the next day they returned to
their native place. She also stated that in March, 1997 she went
with the appellant to Odakkali Temple and the appellant took a
room there and at night the appellant raped her ignoring her
resistance. According to her, when she accompanied the accused in
April 1997 to Thirunelli, the appellant took a room in Devaswom
Rest House and there also the appellant raped her repeatedly.
Thereafter, when she felt pain in her lower abdomen, the appellant
took her to the Medical College Hospital and he stated to the
doctor that PW6 was divorced her first husband and he was the
husband of her. PW7 is a co-worker of PW6. She deposed that on
a day in the year 1998 at about 10 a.m. when she and Kalyani
reached in the house of PW6, they saw the appellant engaged in
sexual intercourse with PW6. As the appellant saw them near the
window, himself and PW6 stood up and having arranged their
dhothi and maxi, they opened the door. Then the appellant stated
Cr.A. 719/2003 5
that he would marry PW6 and in the meantime they should not
disclose what they saw in the house of PW6 to others. Taking into
consideration the evidence, the trial came to the conclusion that the
appellant had repeatedly raped PW6 in different places against her
will and promising to marry her and thereafter withdrew from the
said promise and hence the appellant had committed the offences.
5. The evidence of PW6 would show that the appellant had
repeatedly raped PW6 in different places. Exts.D1 and D2 letters
would show that she had knowledge about the marriage of the
appellant with Nalini and in that wedlock they had two children.
Evidence of PW6 would also show that PW6 was well aware of
the family affairs of the appellant. In her examinations she stated
that ”
“. PW6 being a
woman of 50 years and having much experience in the life she
ought not have accompanied the appellant at Mookambika, a far
Cr.A. 719/2003 6
of place from her residence. Apart from that in all the occasions of
alleged rapes, for more than three years in different places, PW6
had never complained the matter to any body or even to the police.
PW6 has given evidence before the court that on these occasions
she resisted the action of the appellant. The investigation
conducted by Pws.10 and 12 would not reveal that the appellant
had given a promise to marry PW6. It has come out in evidence
that in the house of PW6 while the appellant was engaged in sexual
intercourse with PW6, PW7 and Kalyani came to the house and
they saw the appellant engaged in sexual intercourse with PW6. If
that be so, the case of the appellant that the appellant repeatedly
raped PW6 against her will promising to marry her is not
acceptable.
6. In the above circumstances, the finding of the trial court
that the appellant had repeatedly raped PW6 in different places
against her will and promising to marry her is perverse and is
liable to be set aside. Hence, the judgment under appeal is set aside and
Cr.A. 719/2003 7
the appellant is acquitted. The bail bond executed by the appellant shall
stand cancelled.
The appeal is allowed as above.
K. Thankappan,
Judge.
Cr.A. 719/2003 8
K.Thankappan, J.
Crl.A.No. 719 of 2003
Judgement
10-10-2007
