Swasi vs The Sub Inspector Of Police on 10 October, 2007

Kerala High Court
Swasi vs The Sub Inspector Of Police on 10 October, 2007
       

  

  

 
 
  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.
                 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                             Crl.A. No. 719 of 2003
                  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                  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

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