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Abdul Arshad Vs. State of Kerala - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Judge
AppellantAbdul Arshad
RespondentState of Kerala
Excerpt:
.....appointed on state brief assailed the conviction and sentence on several grounds. the learned counsel pointed out that the court below has mechanically acted on the evidence of p.ws.3 and 4 without taking care to see the inherent improbabilities of the case and also the contradictions and inconsistencies from the evidence of p.ws.3 and 4. the learned counsel also pointed out that the reason for the alleged delay of lodging the fis is stated to be mediation talks for marriage of the victim with the accused. in order to prove that fact, p.w.2 was examined. the learned counsel referring to the evidence of p.w.2 pointed out that, according to p.w.2, the mediation talks had taken in the police station. drawing attention to the evidence of p.w.8, it was pointed out that the sub.....
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY,THE30H DAY OF SEPTEMBER20138TH ASWINA, 1935 CRL.A.No. 1167 of 2012 () -------------------------- AGAINST THE JUDGMENT

IN SC7772010 OF ADDL.DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-I), KOZHIKODE -------------------- APPELLANT/PRISONER/ACCUSED : ------------------------------------------------- RANJITH, C.NO.433, CENTRAL PRISION, KANNUR S/O.RARU, KURUNHIPOYIL HOUSE, ELAYETHIL P.O.,KODUVALLY (PS), CHETTIKADAVU, KOZHIKODE. BY ADV. V. SREEVALSAN (STATE BRIEF) RESPONDENT/STATE : ------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON3009-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P. BHAVADASAN, J.

............................................ Crl. Appeal No. 1167 of 2012 ....................................................... Dated this the 30th day of September, 2013 JUDGMENT

1The accused was prosecuted for the offence punishable under Section 376 of Indian Penal Code. He was found guilty of the same. He was convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of `25,000/- (Rupees Twenty five thousand only), in default, to undergo imprisonment for one year. It was also directed that, if the fine amount was realised, the same shall be given to P.W.3 as compensation. 2.The incident, which led to the complaint is alleged to have occurred on 17/5/2010. It is an admitted case that P.W.3, the victim and the accused were having a love affair for more than five years prior to the date of incident. The allegation is that one year prior to the date of lodging the complaint, the accused had come to the house of the victim and forced her to have sexual intercourse. Further complaint is that threatening with the aid of the first incident, the act was committed repeatedly Crl. Appeal No. 1167 of 2012 2 thereafter. It is also claimed that the accused promised to marry the victim. Later the victim came to know that the accused was proposing to marry another lady. It is stated that on 17/5/2010 at about 6 p.m. while it was raining and P.W.3 was alone in her house, the accused came there dragged her into the bed room and ravished her. Before the act was completed, P.W.4 the mother of P.W.3 happened to come to the house and seeing her the accused is alleged to have taken to his heels. Hoping that the accused would marry her, P.W.3 waited for a while. When it became evident that he was in no mood to do so, she laid Ext.P3 complaint before the police. P.W.8, Station House Officer, recorded Ext.P3 and registered crime as per Ext.P3(a). P.W.9 took over investigation. He prepared the scene mahazar and had P.W3 examined by a doctor namely P.W.1, who issued Ext.P1 certificate. He recorded statement of witnesses, completed investigation and laid charge before court. 3.The court, before which the final report was laid took cognizance of the offences. Finding that the offence is Crl. Appeal No. 1167 of 2012 3 exclusively triable by a court of Sessions, the case was committed to Sessions Court, Kozhikode under Section 209 Cr.P.C. The said court made over the case to Additional District and Sessions Court Fast Track (Adhoc-I), Kozhikode for trial and disposal. 4.The latter court, on receipt of records and appearance of the accused before him framed charge for the offence punishable under Section 376 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 9 examined and Exts.P1 to P8 were marked. The defence had Ext.D1, relevant portion of 161 statement of P.W3 marked. After the close of primary evidence, the accused was questioned under Section 313 Cr.P.C. The accused denied the incriminating circumstances put to him and maintained that he is innocent. He stated that he has been falsely implicated. Finding that the accused could not be acquitted under Sections 232 Cr.P.C., he was asked to enter on his defence. No defence evidence was adduced. Crl. Appeal No. 1167 of 2012 4 5.Presumably greatly impressed by the evidence of P.Ws.3 and 4, the court below came to the conclusion that the offence had been made out and accordingly, convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal. 6.Adv.V.Sreevalsan, appointed on State Brief assailed the conviction and sentence on several grounds. The learned counsel pointed out that the court below has mechanically acted on the evidence of P.Ws.3 and 4 without taking care to see the inherent improbabilities of the case and also the contradictions and inconsistencies from the evidence of P.Ws.3 and 4. The learned counsel also pointed out that the reason for the alleged delay of lodging the FIS is stated to be mediation talks for marriage of the victim with the accused. In order to prove that fact, P.W.2 was examined. The learned counsel referring to the evidence of P.W.2 pointed out that, according to P.W.2, the mediation talks had taken in the police station. Drawing attention to the evidence of P.W.8, it was pointed out that the Sub Inspector of Police, who had recorded Crl. Appeal No. 1167 of 2012 5 the First Information Statement furnished by P.W.3, categorically denied of any mediation talks in the police station. There was no talk according to P.W.9, the investigating officer also. The net result, according to the learned counsel, is that there is absolute want of evidence of any efforts from mediation talks and if that be so, the delay remains unexplained. 7.The learned counsel also pointed out the inherent improbabilities in the case put forwarded by P.W.3, the victim in this case. According to the learned counsel, she had no consistent case. Even as admitted by P.W.3, there was a longstanding love affair between her and the accused. She would date back the first incident to a near prior to the date of lodging the FIS with reference to the first sexual assault. She would also say that it was repeated thereafter. Going by Ext.P3, according to the learned counsel, it could be seen that the victim had come to know that the accused was proposing to marry another lady. It is curious to know, according to the learned counsel that even thereafter the accused simply walks Crl. Appeal No. 1167 of 2012 6 into the house of the victim and ravishes her. As regards the incident, which gave rise to the complaint, the learned counsel pointed out the contradictions inconsistencies and development made by both P.Ws.3 and 4 and pointed out that their evidence is not reliable. It is not a case where, according to the learned counsel implicit faith could be placed on the evidence of P.W.3 to warrant a conviction. If the evidence of P.W.3 is open to doubt, then according to the learned counsel there is no other corroborative items of evidence to support the same. These vital aspects, according to the learned counsel have been omitted to be noted by the lower court, which has simply narrated the evidence of P.Ws.3 and 4 and jumped to the conclusion that the offence had been made out. According to the learned counsel the conviction and sentence cannot stand. 8.The learned Public Prosecutor on the other hand contended that the court below, which had the opportunity to watch the demeanour of the witnesses has chosen to accept the evidence of the victim namely P.W.3 and unless it is shown that it suffers Crl. Appeal No. 1167 of 2012 7 from serious infirmities, there is no reason to reject the same. It is inconceivable according to the learned Public Prosecutor that a lady would take upon herself such a humiliating act which brings her no credit but cast a stigma to her life. The evidence of P.W.3, according to the learned Public Prosecutor gets support from the evidence of P.W.4 also. The learned Public Prosecutor pointed out that reasonable explanation has been offered for the delay and it was contended that in such cases delay has not seriously taken note of considering the nature of the act involved. There is no reason to disbelieve P.Ws.3 and 4 and if their evidence is accepted the offence stands proof. In short the contention is, there are no grounds to made out to interfere with the conviction and sentence passed by the court below. 9.How one would wish, one could agree with the learned Public Prosecutor? As is usual, here to, the court is left with the solitary evidence of the P.W.3, the prosecutrix, to ascertain whether the acts alleged are proved. It is trite that, if the evidence of the prosecutrix is found to be convincing, cogent Crl. Appeal No. 1167 of 2012 8 and credit worthy, there is no justification in ignoring the same for want of corroboration. The nature of offence is such that it is virtually impossible to get other direct evidence and attempt of the court should be to analyse the evidence of the prosecutrix to see whether it suffers from any serious legal infirmities. If it passes scrutiny, then the court can safely base a conviction on the same. If on the other hand it is found that it suffers from the inherent improbabilities or is belied by other items of evidence on record, then the Court may well look for corroboration. 10.In the case on hand, as already noticed, the victim is P.W.3. The case of P.W.3 is that she and the accused have been in love for the last five years and the first of the incidents took prior an year to date of lodging of FIS. That incident is explained as one by compulsion. There is no mention at all that she had offered resistance or it was against her consent and will when the first act was committed. Of course, at the risk of repetition, one may say that she has certainly stated that she was compelled to have the physical relationship. She would Crl. Appeal No. 1167 of 2012 9 also say that the accused promised to marry her and she believed the same. Well, thereafter, she would say that on several occasion they had physical relationship. Ultimately, she learned that the accused was proposing to marry another lady. Going by Ext.P1, it would appear that thereafter on 17/5/2010, the accused just walks into the house and ravishes the lady. 11.It is the above obnoxious act on the part of the accused, which tempted the victim to lay the complaint. One must notice that, even though, the act complained or took place on 17/5/2010, the FIS was lodged only on 13/7/2010. While the learned Public Prosecutor would contend that reasonable explanation has been offered for the delay, the learned counsel for the appellant would contend otherwise. 12.The delay is sought to be explained by pointing out that there were mediation talks between the accused and the victim and there was a proposal that the accused marries the victim. For the above purpose P.W.2 was examined. The evidence shows that P.W.2 was related to P.W.3. He claims to have been a Crl. Appeal No. 1167 of 2012 10 participant in the mediation talks. But his evidence shows that mediation talks in fact took place at the police station in the presence of police officers. One may at once turn to the evidence of P.Ws.8 and 9 in this regard, who were the police officers involved in this case. P.W.8 is the A.S.I, who recorded the First Information Statement furnished by P.W.3. He would say that, to his knowledge, there had never been any mediation talks in the police station and surprisingly enough there is no suggestion by the prosecution to P.W9 to that effect. If that be so, the story of mediation talks falls to the ground. That means the long delay in filing the FIS remains unexplained. 13.It is true that in case of the sexual assault, delay is not always due to seriousness but that does not mean it can be overlooked. It depends upon the facts and circumstances of each case. True, considering the nature of the act alleged to have been committed by the accused slight delay is not taken very seriously. But when there is long unexplained delay, one has to doubt the version given by the prosecutrix. Crl. Appeal No. 1167 of 2012 11 14.Apart from the above fact, as rightly pointed out by the learned counsel for the appellant, P.Ws.3 and 4 are prone to embellishment and developments. P.W.3 while giving Ext.P3 as First Information Statement, says that while she was sitting in her house, the accused came there and dragged her into the room and ravished her. At the time of evidence, she shifts the stand and says that she was in the dining hall from where she was dragged and taken to the bedroom. The defence has marked Ext.D1, a portion of the 161 statement given by the victim, which contained yet another version, there she would say that she was sitting on the cot and watching the TV. Even assuming that this inconsistency regarding the initial steps of the assault could be overlooked there is the vital aspects which is spoken to by P.Ws.3 and 4 as as regards the actual incident. Going by Ext.P3, while the act was being committed, the accused happened to see P.W.4 coming alone and that led him to run away from the place. At the time of evidence P.W.3 has a totally different version, she would say that her mother arrived and knocked at the door and the accused opened the door. She found her daughter naked on the cot. She would say Crl. Appeal No. 1167 of 2012 12 that she beat her when the accused intervened and said that they had physical relationship because he had promised that he would marry her. This is the version developed at the time of evidence. It is obvious that it is a clear after thought. Even assuming that the said version is true, the incident had occurred after the accused had made it clear that he didn't intend to marry the victim but he was intending to marry another lady. It is significant to notice that going by the evidence of P.W.4, the girl, who was proposed to the accused, was also a relative of P.W.4. 15.One should remember that as time passes by the accused is rendered helpless for it is virtually impossible for him to disprove the allegation. The case on hand, the physical relationship has been going on for over a year and even after it became known to P.W.3, the accused was not intending to marry her, the relationship continued. It is difficult under these circumstances to believe that the accused had made the victim believe that he would marry her and thereby obtained her consent when he fully knew he had no intention to fulfill the Crl. Appeal No. 1167 of 2012 13 promise or in other words it is difficult to say that the consent if at all any is vitiated by misconception of facts. 16.A reading of the evidence of P.W.3 creates considerable doubt regarding the version given by her regarding the sexual assault. That they had physical relationship is quite evident. But certain instances are picked up by P.W.3 to give it the character of a rape to suit her convenience. When the evidence is read as a whole, it becomes quite clear and evident that there was little or no resistance from her part to physical relationship between the two, may be there was a promise of marriage. But one should remember that at the relevant time the victim was aged only 21 years and she must be fully aware of the consequences of the act undertaken by her. 17.Under the above circumstances, it is difficult to accept the findings of the court below that there has been forced sexual assaults on P.W.3 or that her consent was obtained under misconception of facts. At any rate the evidence of P.W3 is not of such a sterling character, which would enable the court to Crl. Appeal No. 1167 of 2012 14 place implicit faith on her evidence and to come to the conclusion that there has been forced sexual assault. Under the above circumstances, this Court is unable to uphold the conviction and sentence passed by the court below for the offence under Section 376 of Indian Penal Code. Therefore, this appeal is allowed and the conviction and sentence passed by the court below for the offence under Section 376 IPC are set aside. The appellant is acquitted of the charge levelled against him. His bail bond shall stand cancelled and he is set at liberty. If he has paid the fine amount, the same shall be refunded to him. He shall be released forthwith unless wanted in any other case. sd/- (P. BHAVADASAN, JUDGE) AMV/1/10/ /TRUE COPY/ P.A.TO JUDGE


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