{"id":37750,"date":"2009-06-25T00:00:00","date_gmt":"2009-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajan-vs-state-of-kerala-represented-by-on-25-june-2009"},"modified":"2017-01-18T00:15:14","modified_gmt":"2017-01-17T18:45:14","slug":"rajan-vs-state-of-kerala-represented-by-on-25-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajan-vs-state-of-kerala-represented-by-on-25-june-2009","title":{"rendered":"Rajan vs State Of Kerala Represented By on 25 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Rajan vs State Of Kerala Represented By on 25 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 831 of 2003()\n\n\n1. RAJAN, S\/O. CHAMI (LATE)\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.JOHN NUMPELI (JUNIOR)\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :25\/06\/2009\n\n O R D E R\n                       M.N.KRISHNAN, J.\n                       ---------------------------\n                      CRL.A.No.831 OF 2003\n                       --------------------------\n             Dated this the 25th day of June, 2009\n\n                         J U D G M E N T\n<\/pre>\n
                          ~~~~~~~~~~~<\/p>\n
      This is an appeal preferred against he conviction and<\/p>\n
sentence passed in S.C. 267\/99 of the Addl. Sessions Judge<\/p>\n
(Ad hoc-I) Fast Track Court-I, Manjeri. The accused was found<\/p>\n
guilty u\/s.376 of Indian Penal Code and was sentenced to<\/p>\n
undergo rigorous imprisonment for a period of 5 years and to<\/p>\n
pay a fine of Rs.5,000\/-, which on recovery was directed to be<\/p>\n
paid to the victim. It is against that decision the accused has<\/p>\n
come up in appeal. From the Memorandum of appeal, the<\/p>\n
points that arise for determination are,<\/p>\n
     1.Whether there are any sufficient materials to hold that the<\/p>\n
       accused has committed rape on the victim ?\n<\/p>\n
     2.Is there anything to interfere with the conviction and<\/p>\n
       sentence passed by the court ?\n<\/p>\n
      2. Point Nos.1 and 2 :- The law was set in motion by<\/p>\n
giving a first information statement on 30.12.97 by the<\/p>\n
CRL.A.No.831 OF 2003
\n                                   2<\/span><\/p>\n
prosecutrix.     It is stated in Ext.P4 statement that, she is an<\/p>\n
unmarried lady and is working with one Manjiyam Ummer for<\/p>\n
the last one month. According to her, everyday she used to go<\/p>\n
for work at 6 A.M. in the morning and return at 5.30P.M. in the<\/p>\n
evening.     While so on 21.12.97 at 6 P.M., while she was<\/p>\n
proceeding through the Panchayat road, one Rajan who is<\/p>\n
doing business in knife, threatened her and pushed her to the<\/p>\n
paddy field and took a knife from the waist and threatened her<\/p>\n
and told her unless she permits, she will be killed and<\/p>\n
thereafter he had lifted her maxi and petty coat and committed<\/p>\n
rape on her.        It is also her version that, she had been<\/p>\n
threatened by the accused that, if she tells it to somebody she<\/p>\n
will be killed. It is her further version that, after he departed she<\/p>\n
had gone for her work and that she had not told it to anybody.<\/p>\n
On 29.12.97 she had revealed it to her mother and action has<\/p>\n
been initiated.       Ext.P9 is the document relating to her<\/p>\n
examination by the doctor on 30.12.97 at 4.45 P.M. The said<\/p>\n
document would show that, she had no external injuries and<\/p>\n
CRL.A.No.831 OF 2003
\n                                3<\/span><\/p>\n
her hymen was ruptured already and is specifically written that<\/p>\n
it is not recent and further her vagina admits two fingers. The<\/p>\n
impression was that, there was no evidence of any force. PW9<\/p>\n
is the doctor who had examined her. She only repeats that the<\/p>\n
hymen ruptured not recently and admits two fingers and that<\/p>\n
there were no external injuries.     In the cross examination,<\/p>\n
doctor has deposed that no act of violence is noted. Ext.P3<\/p>\n
along with the evidence of PW3 would reveal that, there is<\/p>\n
nothing to find that the accused was incapable of performing<\/p>\n
any sexual intercourse.      So it has to be stated from the<\/p>\n
materials available in the case that the medical evidence does<\/p>\n
not show any recent act of sexual intercourse. Not even a<\/p>\n
single suggestion is put to the doctor, with respect to the same<\/p>\n
and therefore there is no much medical evidence to support the<\/p>\n
case of the prosecution. It is a well settled proposition of law<\/p>\n
that there need not be corroboration always to support the<\/p>\n
evidence of prosecutrix in a case involving offence u\/s.376 of<\/p>\n
Indian Penal Code. But as a matter of caution, it is always<\/p>\n
CRL.A.No.831 OF 2003
\n                                 4<\/span><\/p>\n
absolutely necessary to look into the medical evidence and if<\/p>\n
the medical evidence is available and the evidence of the<\/p>\n
prosecutrix is trust worthy it can form the basis of a conviction<\/p>\n
u\/s.376 of Indian Penal Code. As stated by me earlier, the<\/p>\n
medical evidence is lacking in this case. Naturally, the lady is<\/p>\n
alleged to have been subjected rape on 21.12.1997 and she<\/p>\n
had been examined by the doctor only on 30.12.1997 and her<\/p>\n
clothes and other materials were produced only thereafter, that<\/p>\n
too after washing and the chemical analysis report also shows<\/p>\n
that everything is negative. So it has become all the more<\/p>\n
burden of the court to scrutinise the evidence available on<\/p>\n
behalf of the prosecution to find out the guilt of the accused.<\/p>\n
PW5 is the prosecutrix and PW6 is her mother. PW5, the court<\/p>\n
felt that, was not able to express properly, and therefore she<\/p>\n
was questioned and the court was satisfied that she can give<\/p>\n
reasonable and intelligible answer.        Thereafter only the<\/p>\n
prosecution evidence has started.      In the chief examination,<\/p>\n
she would depose that she left for work at 5.45 A.M. and when<\/p>\n
CRL.A.No.831 OF 2003
\n                                 5<\/span><\/p>\n
she reached the road, the accused dragged her into the paddy<\/p>\n
field and thereafter committed rape. She would depose that,<\/p>\n
she had not gone for work on that day and further would<\/p>\n
depose that when she happened to see the accused on<\/p>\n
another day, she pointed out him to her mother and then<\/p>\n
informed the mother about what had happened.          In Ext.P4<\/p>\n
statement, the version given by her is that, she had told her<\/p>\n
mother about the incident only on 29.12.97 in the night and that<\/p>\n
the reason for not divulging is, because she was afraid of the<\/p>\n
accused. But there is no whisper in the chief examination and<\/p>\n
it is in a deviated form, the version is given in the chief<\/p>\n
examination itself. Similarly, in Ext.P4 statement she say that<\/p>\n
she had gone for the work after the alleged rape but in the chief<\/p>\n
examination she would depose that she had gone back to her<\/p>\n
house. In the cross examination, some questions were put and<\/p>\n
it has come out in evidence that she had given a go-by to the<\/p>\n
act of threat by taking the knife from the waist and threatening<\/p>\n
her. According to her in the cross examination she deposed<\/p>\n
CRL.A.No.831 OF 2003
\n                               6<\/span><\/p>\n
that, she had some injuries in the tussle and there was mud in<\/p>\n
her clothes. She would also depose that her maxi was torn and<\/p>\n
her mother did not ask about it to her. She would state before<\/p>\n
the Police on 30.12.97 that she is unmarried. But in the cross<\/p>\n
examination she would admit that she had been married by one<\/p>\n
Ashraf. PW6 is the mother. She would depose that she had<\/p>\n
enquired about the person, but was only able to find him on<\/p>\n
30.12.97, but gave complaint only on 31.12.97. In the cross<\/p>\n
examination she would deny the marriage of PW5 with Ashraf.<\/p>\n
She would say that she had seen the clothes of her daughter<\/p>\n
totally torn but PW5 has no such case.           Incidentally, a<\/p>\n
reference to the material objects produced, would show that<\/p>\n
there was no tear marks in the cloth or maxi that was produced<\/p>\n
before the court. According to her, the prosecutrix had shown<\/p>\n
the accused. Her mother would further deposed before the<\/p>\n
court that there was an abortion for her daughter and she was<\/p>\n
admitted in the Government hospital. When the court asked<\/p>\n
her a pointed question, how she came to know that the girl was<\/p>\n
CRL.A.No.831 OF 2003
\n                                 7<\/span><\/p>\n
pregnant, she would say that there was no evidence for the<\/p>\n
same. It is also stated by her that there are papers in the form<\/p>\n
of prescription.    So it is this evidence which has to be<\/p>\n
scrutinised to find the guilt of the accused. If really a person<\/p>\n
had been subjected to a cruel act of rape and especially when<\/p>\n
she submits that there was rain and her whole cloths were<\/p>\n
spoiled on account of the watering and muddy place,<\/p>\n
necessarily if she had not gone for the work and had gone back<\/p>\n
home immediately, it is nothing but natural that either she<\/p>\n
would have told her mother, or atleast, the mother would have<\/p>\n
asked her about it. But in this case she would state before<\/p>\n
Police in Ext.P4 that she had gone for work. If she had gone<\/p>\n
for work in that fashion, it is certain that somebody in that<\/p>\n
house would have seen it and their evidence would have been<\/p>\n
a good link to prove the case. It is not done in this case. PW5<\/p>\n
has deposed before the court that, the accused is a neighbour<\/p>\n
of them but they are attempting to explain the delay by stating<\/p>\n
that when the accused was seen on 29.12.97, then only they<\/p>\n
CRL.A.No.831 OF 2003
\n                                  8<\/span><\/p>\n
could locate the person to prefer a complaint. This can not be<\/p>\n
also believed. If this girl, PW5, has become pregnant and had<\/p>\n
an abortion, it is an important material to establish that she had<\/p>\n
been subjected to sexual intercourse by somebody and when<\/p>\n
there is an allegation regarding the rape committed by the<\/p>\n
accused it would have been a very strong link to the case.<\/p>\n
Absolutely no documents is produced, no evidence is tendered<\/p>\n
in respect of the fact. It is their case that a girl was treated in a<\/p>\n
Govt. hospital. There would be documents. So what is available<\/p>\n
before the court is the inconsistent conflicting version which<\/p>\n
tends to make the court not to rely upon them. This court is<\/p>\n
totally conscious of the fact that, an offence of rape is the<\/p>\n
greatest social menace which has developed that much in the<\/p>\n
recent past, which requires to be dealt with by iron hands. But<\/p>\n
equally one has to be very cautious that innocent persons are<\/p>\n
not dragged into these type of offences and convicted. So in<\/p>\n
order to convict the accused for an offence u\/s.376 of Indian<\/p>\n
Penal Code as stated by me earlier, the believable evidence of<\/p>\n
CRL.A.No.831 OF 2003
\n                                 9<\/span><\/p>\n
PW1, with some lending support of medical evidence is<\/p>\n
necessary.      It was dawn, ie., almost 6 A.M. in the morning,<\/p>\n
where there is no difficulty to identify a person. It takes 9 long<\/p>\n
days thereafter to register an F.I.R.      It may be stated that<\/p>\n
under the Indian society ladies consider their chastity as the<\/p>\n
greatest virtue and there may be a thinking process which<\/p>\n
would tend to cause delay in lodging an F.I.R. thinking about<\/p>\n
the credibility of the family. But there must be circumstances to<\/p>\n
indicate the same. Here one would say that the accused is a<\/p>\n
neighbour and it takes 9 days to point out it to the mother that,<\/p>\n
he is the person who had done the alleged act of rape.<\/p>\n
Therefore, the evidences of PW5 and PW6 can not be safely<\/p>\n
relied upon to arrive at the guilt of the accused u\/s.376 of<\/p>\n
Indian Penal Code.       I am afraid that, the learned Sessions<\/p>\n
Judge had been carried away with the thinking process of the<\/p>\n
gravity of the offence without, at the same time realising that<\/p>\n
the legal evidence, is lacking in the matter.       Therefore the<\/p>\n
inevitable conclusion is, to give the benefit of doubt to the<\/p>\n
CRL.A.No.831 OF 2003
\n                               10<\/span><\/p>\n
accused and acquit him. The materials are lacking to find the<\/p>\n
guilt of the accused.\n<\/p>\n
      3. In the result, the criminal appeal is allowed and the<\/p>\n
accused is found not guilty u\/s.376 of Indian Penal Code.<\/p>\n
Therefore he is acquitted and set at liberty forthwith. The bail<\/p>\n
bond executed by him shall stand cancelled.<\/p>\n
                                      M.N.KRISHNAN, JUDGE<\/p>\n
ami.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Rajan vs State Of Kerala Represented By on 25 June, 2009 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. […]<\/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-37750","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRajan vs State Of Kerala Represented By on 25 June, 2009 - 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\/rajan-vs-state-of-kerala-represented-by-on-25-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajan vs State Of Kerala Represented By on 25 June, 2009 - 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