{"id":30809,"date":"2007-02-02T00:00:00","date_gmt":"2007-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/garvasis-jimmy-john-vs-state-of-kerala-on-2-february-2007"},"modified":"2014-02-02T23:06:55","modified_gmt":"2014-02-02T17:36:55","slug":"garvasis-jimmy-john-vs-state-of-kerala-on-2-february-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/garvasis-jimmy-john-vs-state-of-kerala-on-2-february-2007","title":{"rendered":"Garvasis @ Jimmy John vs State Of Kerala on 2 February, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Garvasis @ Jimmy John vs State Of Kerala on 2 February, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1454 of 2006(C)\n\n\n1. GARVASIS @ JIMMY JOHN, S\/O. AUGUSTHY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :ADV.LIJU V STEPHAN(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :02\/02\/2007\n\n O R D E R\n<\/pre>\n
                                     K.Thankappan, J.\n<\/p>\n
                 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                              Crl. A. No.  1454      of 2006<\/p>\n
                 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                       Dated this the 2nd day of February, 2006<\/p>\n
                                          JUDMENT<\/p>\n
       The appellant, accused in S.C. No.439\/2004 on the file of the Court of<\/p>\n
the   Additional   Sessions   Judge   (Adhoc-I),   Ernakulam,     faced     trial     for   the<\/p>\n
offences  punishable  under  sections  376  IPC.    The  prosecution  case  against<\/p>\n
the appellant is that the appellant committed rape  on PW1 on 10-6-1998, 11-<\/p>\n
6-1998 at the residence  of PW11 and on 13-6-1998 near house No.XV\/108<\/p>\n
adjacent to  the K.S.R.T.C. Bus Stand, Perumbavoor and  thereby committed<\/p>\n
the offence punishable under section 376 IPC.   To prove the charge against<\/p>\n
the  appellant,  the  prosecution  examined  PW1 to  PW11 and  Exts.P1  to  P12<\/p>\n
were  marked. Material  object MO1  to MO4 were also marked.     When the<\/p>\n
appellant was questioned under section 313 of Cr.P.C., he   admitted that he<\/p>\n
had sexual intercourse with her,  but added that he never threatened her and<\/p>\n
that   was   with   her   consent.     Relying   on   the   evidence   adduced   by   the<\/p>\n
prosecution   both,   oral   and   documentary, the   trial   court  found  the  appellant<\/p>\n
guilty under section 376 IPC  and he was convicted thereunder and sentenced<\/p>\n
to   undergo   rigorous   imprisonment   for   seven   years   and     to   pay   a   fine   of<\/p>\n
Rs.10,000\/-   and   in   default   to   undergo   simple     imprisonment   for   one   year<\/p>\n
under section 376 IPC. The benefit under   section 428 Cr.P.C. was granted.<\/p>\n
Crl.A.1454\/06                                     2<\/span><\/p>\n
The above conviction and sentence   awarded   against the appellant are<\/p>\n
assailed in this appeal.\n<\/p>\n<\/p>\n
          2. Since the appellant is in jail, the appeal has been filed by him<\/p>\n
through the jail authorities. As the appellant  has not defended his case<\/p>\n
by his own counsel, State Brief was appointed  to defend the case of the<\/p>\n
appellant.\n<\/p>\n<\/p>\n
          3. This Court heard learned counsel for the appellant  as well as<\/p>\n
the learned Public Prosecutor.\n<\/p>\n<\/p>\n
          4.   The learned counsel for the appellant contends that the trial<\/p>\n
court   went   wrong   in   accepting   the   prosecution   case     to   find   the<\/p>\n
appellant   guilty   of   the   charges   levelled   against   him.     The   learned<\/p>\n
counsel  also  contends  that   the   evidences     adduced  by  the  prosecution<\/p>\n
are   contradictory   in   nature.   It   is   further   contended   that   the   trial   court<\/p>\n
ought to have considered the case set up by the appellant while he was<\/p>\n
questioned   under   section   313   Cr.P.C.   that     he   had   sexual   intercourse<\/p>\n
with   PW1   with   her   own   consent.     Lastly,   it   is   contended   that   the<\/p>\n
sentence awarded against the appellant is excessive.<\/p>\n
          5.  The prosecution case  is that PW1, a student of B.A. Degree<\/p>\n
course aged 19 years, left the house in a frustrated manner  and went to<\/p>\n
Sarvodaya   Santhi   Bhavan   on   9-6-1998   and   met   PW3   for   shelter   and<\/p>\n
Crl.A.1454\/06                                   3<\/span><\/p>\n
also   for   employment.    PW3 informed PW1 that there was no female<\/p>\n
inmates in the institution  and he advised her to go over to Love Home,<\/p>\n
Thodupuzha   wherein   female   inmates   were   there.     PW3   consulted   the<\/p>\n
matter   with the appellant and the appellant  informed him that he was<\/p>\n
acquainted   with   the   Love   Home   and   he   would   take   her   to   the   Love<\/p>\n
Home.   So,   PW3   entrusted   a   letter   addressed   to   the   Director   of   Love<\/p>\n
Home and Rs.100\/- with the appellant and he sent PW1 along with the<\/p>\n
appellant with direction to the appellant to entrust her with the Director<\/p>\n
of   Love   Home   at   Thodupuza.   But,     the   appellant   took   her   to   the<\/p>\n
residence of PW11 at   Ootty and when they stayed there on 10-6-1998<\/p>\n
and 11-6-1998,  he committed  rape  on  her without  her consent  and  on<\/p>\n
12-6-1998 the  above  fact was revealed    by PW1 to    PW11, they were<\/p>\n
sent back.   It is also alleged that when PW1 and the appellant  reached<\/p>\n
Perumbavoor   K.S.R.T.C.   bus   stand   at   night,   the   appellant   committed<\/p>\n
rape   on   her   and   when   PW9,   the   A.S.I.   of   Police,   Perumbavoor   came<\/p>\n
over to the bus  stand  at 2.00 A.M. in connection with his night patrol<\/p>\n
duty, the matter was informed to him by PW1. Hence,  the appellant was<\/p>\n
arrested   and   a   case   was   registered   against   him.     Thereafter,   the<\/p>\n
investigation of the case   had been conducted by PW9 and PW10   and<\/p>\n
finally   a   charge   was   filed   against   the   appellant.     To   prove   the   case<\/p>\n
Crl.A.1454\/06                                     4<\/span><\/p>\n
against the appellant, the court below mainly relied on the evidence of<\/p>\n
PW1 to  PW4 and PW9 and  PW10.    PW1, who  was the victim, stated<\/p>\n
that   she   left   the   house   of   her   uncle,     where   she   was   residing   study<\/p>\n
purpose, and  as she came to know about the functioning of Sarvodaya<\/p>\n
Santhi   Bhavan,   she   met   PW3   for   getting   an   employment.   She   further<\/p>\n
stated  that PW3 informed her that there was no female inmates  in  the<\/p>\n
institution   and   he   advised   her   to   go     to   Love   Home   wherein   female<\/p>\n
inmates are admitted. This witness stated that PW3 sent her along with<\/p>\n
the   appellant   with   a   direction   to   the   appellant   to   entrust   her   with   the<\/p>\n
Director of the Love Home. But the appellant took her to the residence<\/p>\n
of PW11 at Ootty and when they stayed there on 10-6-1998 and 11-6-<\/p>\n
1998,     the  appellant  committed  rape  on  her without  her consent.  She<\/p>\n
further   stated   that   though   she   resisted,   she   was   threatened   by   the<\/p>\n
appellant   by   stating   that   he   was   a   murderer   and     had   undergone<\/p>\n
imprisonment   and   he   had   shown   some   weapon   like   knife.   She   stated<\/p>\n
that in the residence of PW11 the appellant introduced her as his lover.<\/p>\n
When  she  narrated  the entire  story to PW11, they were sent back and<\/p>\n
when   they   reached   Perumbavoor   K.S.R.T.C.   bus   stand   at   night,   the<\/p>\n
appellant   again   committed   rape   on   her.     When   PW9,   the   A.S.I.   of<\/p>\n
Police,   Perumbavoor   came   over   to   the   bus   stand   at   2.00   A.M.   in<\/p>\n
Crl.A.1454\/06                               5<\/span><\/p>\n
connection with his night patrol duty, the matter was informed to him.<\/p>\n
She identified the dresses which she worn on 13-6-1998. She also stated<\/p>\n
that she was examined by PW4 doctor at the request of the police. The<\/p>\n
evidence   of   this   witness   is   supported   by   PW3   who   was   conducting<\/p>\n
Survodaya   Santhi   Bhavan   Charitable   Trust.   He   deposed   that   on   9-6-<\/p>\n
1998 PW1 came to the Santhi Bhavan  and  requested for shelter in the<\/p>\n
institution.  He also deposed that since there was no lady inmates in the<\/p>\n
institution, he decided to send PW1   to Love Home and he   had given<\/p>\n
Ext.P2 letter addressed to the Director of Love Home.  By this time the<\/p>\n
appellant came there and heard the entire matter and he informed that he<\/p>\n
knew the Love Home and agreed to take PW1   to Love Home. So, he<\/p>\n
gave Rs.100\/-, Ext.P2 letter and ext.P3 dip containing the address of the<\/p>\n
Love Home and sent PW1 along with the appellant.   He stated that he<\/p>\n
contacted the Love Home and understood that they did not reach there<\/p>\n
and he received the information from the newspapers and he went over<\/p>\n
to the police station, Perumbavoor  and found the appellant and PW1 at<\/p>\n
the Police Station. The court also considered the evidence of PW4 who<\/p>\n
examined  PW1 and  issued    Ext.P4  medical  certificate.  She  stated  that<\/p>\n
PW1 was subjected to sexual intercourse. But she stated  that there was<\/p>\n
no external injuries.  The statement recorded by PW4 would also show<\/p>\n
Crl.A.1454\/06                                   6<\/span><\/p>\n
that   PW1   was   raped   on   previous   day.   PW9   and   PW10   are   police<\/p>\n
officials who conducted the investigation of the case. PW9 A.S.I.  who<\/p>\n
recorded Ext.P1 statement from PW1 conducted the investigation of the<\/p>\n
case   and  filed  final  charge  against  the  appellant. PW9 stated  that   he<\/p>\n
recorded   Ext.P1   statement   of   PW1   and   she   was   sent   for   medical<\/p>\n
examination. PW10 was the Head Constable. He stated that he went to<\/p>\n
Neelgiri at Edakkatti Village and he prepared Ext.P11 mahazar. PW11<\/p>\n
stated that he was a friend of the appellant and he had acquaintance with<\/p>\n
him  at   Muringoor   in   connection   with   a   religious   function.     He   stated<\/p>\n
that both  the appellant  and PW1 came to his  house on  10-6-1998  and<\/p>\n
the appellant introduced PW1 as his wife and he allow them to live in<\/p>\n
his   house.   He   also   stated   that   he   was   the   Councillor   of   Vikutty<\/p>\n
Panchayat  and  while  the panchayat was going  on,  PW1 informed  him<\/p>\n
that the appellant cheated   her, she was not his  wife and the appellant<\/p>\n
brought her stating that he was taking her to some orphanage and raped<\/p>\n
her.     PW2,   father   of   PW1,   had   stated   before   the   court   that   PW1   was<\/p>\n
residing   his   house   and   she   was   studying   at   the   college   during   the<\/p>\n
relevant time and she was missed on 9-6-1998.  He further stated that no<\/p>\n
complaint was filed before the police about  the missing of PW1.   The<\/p>\n
trial court after considering the evidence came to the conclusion that ”<\/p>\n
Crl.A.1454\/06                                   7<\/span><\/p>\n
thus the deposition of PW1 taken along with the evidence of PW4,<\/p>\n
Ext.P4     and   the   report   of   the   chemical   analysis,   Ext.P12   coupled<\/p>\n
with   the   defence   of   the   accused   unerringly   lead   to   the   irresistible<\/p>\n
conclusion that the accused had sexual intercourse with PW1″.<\/p>\n
         6.  The submission of the learned senior counsel is that   during<\/p>\n
the stay at Neelgiri there were many chances for PW1 to reveal all these<\/p>\n
facts to the public and to escape from the clutches of the appellant and<\/p>\n
hence   the   conclusion   arrived   at   by   the   trial   court   that   the   appellant<\/p>\n
committed rape PW1 without her consent is not sustainable.<\/p>\n
         7.   The  fact that  PW1 went to  the institution  of PW3 on    9-6-<\/p>\n
1998 for shelter and since no female inmates would be allowed in the<\/p>\n
institution,   PW3   advised   her   to   go   to   Love   Home   wherein   female<\/p>\n
members were also permissible and she was entrusted with the appellant<\/p>\n
to get her admitted at Love Home. She was accompanying the appellant<\/p>\n
with   firm   belief   that   the   appellant   will   get   her   admitted   in   some<\/p>\n
orphanage   or   some   institution.   But,   the   appellant   took   PW1   to   the<\/p>\n
residence   of   PW11   at   Neelagiri   and   at   the   residence   of   PW11.   The<\/p>\n
evidence  of PW4 would  show  that  PW1 was  subjected  to  intercourse.<\/p>\n
After taken  into consideration the  incriminating circumstances and  the<\/p>\n
dictum laid down by the Apex Court in a decision reported in  State of<\/p>\n
Crl.A.1454\/06                                     8<\/span><\/p>\n
U.P. V. Lakshmi (AIR<\/a> 1988                scene   of   occurrence   1007)     and   legal<\/p>\n
maxim the   trial   court   came  to   the   conclusion   that   “in   the   absence   of<\/p>\n
injury it cannot be concluded that the incident had not taken place<\/p>\n
or   that   sexual   intercourse   was   committed   with   the   consent   of   the<\/p>\n
prosecutrix”.   The state of mind of   PW1 has   also   to be considered.<\/p>\n
PW1   left   the   house   in   a   frustrated   stage   and   she   was   at   the   verge   of<\/p>\n
committing   suicide.     She   was   accompanying   the   appellant   with   firm<\/p>\n
belief   that   the   appellant   will   help   her.   The   evidence   of   PW1   would<\/p>\n
show   that   she   along   with   the   appellant       reached   in   the   residence   of<\/p>\n
PW11   early in the morning on 10-6-1998.   When she was asked as to<\/p>\n
why she has not raised any cry, she deposed that though she raised the<\/p>\n
cry,   the   others   may   not   be   able   to   identify   it   because   of   language<\/p>\n
problem or because they were not aware of the presence of PW1 and the<\/p>\n
appellant at the house. In cross-examination she stated that she was in  a<\/p>\n
strange place far away from the residence and that too in Tamil Nadu<\/p>\n
and she could not escape by running away since she did not know any<\/p>\n
place in  the residence of PW11, which  was situated almost on the top<\/p>\n
of a hill.         In the above circumstances, it can be concluded that PW1<\/p>\n
was  in a frustrated, dejected and  helpless  and on account of such state<\/p>\n
of  mind  cannot  be  conceded  as  consent.  Consent  is  defined  in  in  The<\/p>\n
Crl.A.1454\/06                                  9<\/span><\/p>\n
Law   Lexicon   with   Legal   Maxims,   written   by   P.   Ramanatha   Aiyar,<\/p>\n
Reprint Edition 1992 the word `consent’ is defined as “an act of reason<\/p>\n
accompanied with deliberation, the mind weighing, as in a balance,<\/p>\n
the  good  and  evil  on  each  side”. In  Black’s  Law  Dictionary  Seventh<\/p>\n
Edition it is defined  as “agreement, approval or permission as to some<\/p>\n
act or purpose, esp. given voluntarily by a competent person”. Moreover<\/p>\n
in   Oxford Advanced Leaner’s Dictionary it   is defined as “permission<\/p>\n
to   do,   especially   given   by   in   authority”  The   reliance   placed   by   the<\/p>\n
learned   counsel   in   a   decision   reported   in    Deelip   Singh     alias   Dilip<\/p>\n
Kumar V. State of Bihar ((2005)1 SCC 88)  is not applicable in the facts<\/p>\n
and circumstances of the case.  Hence, this Court is of the view that the<\/p>\n
findings entered by the trial court are based on evidence and it requires<\/p>\n
no   interference   by   this   Court.   The   conviction   entered   against   the<\/p>\n
appellant under section 376 IPC is confirmed, accordingly.<\/p>\n
         8.   With   regard   to   the   sentence   awarded   against   the   appellant,<\/p>\n
considering the fact that PW1 was aged 19 years and  Second year B.A.<\/p>\n
Degree student and that she   voluntarily accompanied the appellant  to<\/p>\n
Ootty instead of Love Home, Thodupuzha as directed by  PW3 and also<\/p>\n
the fact that she did not object to having been introduced as the wife of<\/p>\n
Crl.A.1454\/06                                10<\/span><\/p>\n
the appellant,   this Court is  of the view that rigorous imprisonment for<\/p>\n
five   years   will   meet   the   ends   of   justice.   Hence,   the   appellant   is<\/p>\n
sentenced   to   undergo   rigorous   imprisonment   for   five   years   under<\/p>\n
section 376 IPC.\n<\/p>\n<\/p>\n
         9.The   sentence   awarded   against   the   appellant     is   modified   as<\/p>\n
above and the appeal is dismissed.\n<\/p>\n<\/p>\n
                                                            K. Thankappan,<\/p>\n
                                                            Judge.\n<\/p>\n<\/p>\n
Crl.A.1454\/06    11\n\n\n\n\n\n                         K. Thankappan,J.\n\n                        - - - - - - - - - - - - - - - -\n\n                       Crl.A. No. 1454\/2006\n\n                        - - - - - - - - - - - - - - - -\n\n\n\n\n\n                               Judgment\n\n                                2-2-2007\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-30809","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nGarvasis @ Jimmy John vs State Of Kerala on 2 February, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/garvasis-jimmy-john-vs-state-of-kerala-on-2-february-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Garvasis @ Jimmy John vs State Of Kerala on 2 February, 2007 - 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