IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 Crl.Rev.Pet.No. 522 of 2000(B) ----------------------------- SC.98/1997 of ASST. SESSIONS (ADDL.) COURT, PALAKKAD .................... REVN. PETITIONER/DE FACTO COMPLAINANT: --------------------------------------------------- ANI THOMAS, AGED 48, W/O. LATE THOMAS, GOVERNMENT ORANGE & VEGETABLE FARM, KUNNATHUPADY, PULAYAMPARA, NELLIYAMPATHY, PALAKKAD DISTRICT. BY ADV. SMT.AYSHA YOUSEFF SRI.M.A.FAROOQUE MARICKAR RESPONDENTS/COMPLAINANT & ACCUSED: ------------------------------------------------ 1. KALADHARAN, S/O. PONNU, KUNNATHUPADY, PULAYAMPARA, NELLIYAMPATHY, 2. CIRCLE INSPECTOR OF POLICE, NENMARA, 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI. AMJAD ALI, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.02.2008, ALONG WITH CRRC NO. 8 OF 2001, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER, J = = = = = = = = = = = = = = = = Crl.R.P. No. 522 of 2000 and Crl.R.C. No. 8 of 2001 = = = = = = = = = = = = = Dated this the 5th day of February, 2008. O R D E R The revision petition is at the instance of the de facto complainant/prosecutrix in crime No. 5/96 of Padagiri Police Station. 2. Police had registered the above crime on the basis of a complaint filed by the petitioner alleging that respondent No.1/accused had trespassed into her dwelling place and committed rape on her. Respondent No.1 was tried in S.C. No. 98/97 by the Assistant Sessions Judge (Additional), Palakkad. The learned Judge after considering the oral and documentary evidence adduced by the prosecution, found the accused not guilty and accordingly he was acquitted. 3. Petitioner has challenged the above judgment of acquittal in this revision petition. Crl.R.C.8/2001 has been registered as a calendar revision suo motu against the above judgment of acquittal. Therefore these two petitions are being disposed of by this common judgment. Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :2: 4. The case of the prosecutrix before the police as narrated by her in Ext.P1, first information statement, may be briefly noticed. The prosecutrix and the accused were working in the Government Orange and Vegetable Farm at Pulayampara in Nelliyampathy. Both of them were residing in the “pady” (row of buildings constructed for the workers of the estate) attached to the farm. According to the prosecutrix, the accused was her immediate neighbour in the “pady”. She is a widow aged 42 years. Though she had got three children, they were not living with her at that time. On 24.1.1996 at about 12.45 p.m. she had come back from the farm to the “pady” to take her lunch. While she was taking her food in the kitchen, the accused came inside after pushing open the door of the kitchen. She asked the accused why he had come inside. The accused retorted by asking what was wrong in coming inside. At that time she got up from her eat. The accused caught hold of her both hands and embraced her. He took her forcibly to the bed room in the embracing position. At that time she cried aloud calling out for her mother and late husband. According to the prosecutrix, the accused made her to lie down on the bed forcefully. She tried to Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :3: push him away with her right hand while clutching her saree with the left hand. For about 15 minutes, the prosecutrix and the accused were engaged in push and pull. According to the prosecutrix, she dozed off at that time when the accused committed rape on her. She further stated before the police that after the sexual act, she pushed the accused down and came out of the room running. She came to the Pulayampara junction and told PWs2 and 3 about the incident. She further stated to the police that she had gone to the District Hospital in a jeep along with Francis, the brother of her husband, and two others. 5. The police had registered Ext.P8 FIR on the basis of the above statement at 7 a.m. on the next day viz., 25.1.1996. The statement was recorded by the police at 2 a.m. on that day from the District Hospital, Palakkad. Thereafter the police had conducted the investigation and submitted the charge sheet before the court. 6. The prosecution had examined PWs 1 to 13 and Exts. P1 to P12 and MO 1 to MO6 were marked on its side. Though no witnesses was examined on the side of the defence, Exts. D1 to D3 were marked. Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :4: 7. The learned Sessions Judge after an elaborate consideration of the oral and documentary evidence, held that the evidence of PW1, the prosecutrix could not be believed not only because of the inconsistency and infirmity in the versions given by her before the police and the court. It was also noticed by the trial court that the delay in lodging the complaint in the peculiar nature of the case, had not been properly explained. Moreover, the prosecution had not produced the report of the chemical analyst with regard to the vaginal smear and swab test. Further the clothes worn by the victim were forwarded to the chemical analyst after more than a year. There was no explanation for the delay in that regard. It had also come out in evidence that the prosecutrix and her party workers had a very prominent and significant role in the manner in which the complaint was lodged before the police and that they had lengthy deliberations before approaching the police. In short, the learned Judge took the view that the prosecution case was not credit worthy so as to hold the accused guilty of the offences alleged against him. Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :5: 8. Learned counsel appearing for the prosecutrix contends that the evidence of PW1 ought not to have been brushed aside by the trial court as untrustworthy. It may be true that she had consulted her colleagues and friends before going to the hospital. She had to necessarily seek help from her co- workers and party men because she was in a perplexed state of mind at that time. PW1 categorically stated the manner in which the accused committed rape on her. Even though there may be some discrepancy and inconsistency in the versions given by her before the police as well as the court, it was not at all proper for the Court to discard her testimony totally and acquit the accused. 9. As mentioned earlier, the prosecutrix was aged 42 years at the time of the alleged incident. She had grown up children in her marriage. Her husband passed away sometimes back and she was living alone in the “pady” (coolie line). It had come out in evidence that the accused was the immediate neighbour of the prosecutrix. (he was living in the next room) He was residing with his wife and children. Similarly, three other families had also been living in the same “pady”. Apart from the above five families, yet another worker was residing nearby. But Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :6: curiously none of the neighbours had been cited as a witness in the case by the prosecution. 10. Coming to the testimony of the prosecutrix, who was examined as PW1, she had deposed in her chief examination that the sexual act had lasted about 10 minutes. She had further stated in the chief examination that the accused had dragged her to the bed room and there was some push and pull. Though she had offered resistance all through the accused had committed rape on her. But in cross examination she stated that neither the accused nor she had spoken to each other after the accused came inside the house. She stated that the accused had taken her to the bed room and he made her to lie down on the bed forcibly. Curiously, she deposed before the court that the accused had done the sexual act twice and it was after the second time, she came out of the house. She conceded it was for the first time before the court that she was speaking about the two consecutive sexual acts. Significantly, she admitted that she had not sustained any bruises on her body nor her clothes were damaged or torn in the process. Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :7: 11. Reference has been made to the above testimony given by PW1 only to highlight the fact that she is a middle aged woman with a long married life. She was not a novice as far as sexual intercourse was concerned. The manner in which PW1 had described the alleged incident before the police and the court does not persuade me to accept the prosecution case that PW1 was raped by the accused and that too during the day time in the pady. As mentioned earlier, all the five residential accommodations in the pady were occupied by workers in the farm. All those workers were residing with their family consisting of children. Though PW1 had stated that she had called out for her mother and late husband and resisted the attempt of the accused to commit rape on her, the testimony of PW1, on the whole, does not inspire any confidence. 12. In this context, it is to be mentioned that PW1 was admittedly an active worker of the Communist Party of India. She had candidly admitted so before the court when she was examined. She had also admitted that immediately after the incident, she had gone to her party office after meeting PW2 and 3. Ext.P2 is stated to be a true copy of the complaint preferred Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :8: by her before the superintendent of the Farm, who was examined as PW5. Curiously, in Ext.P2, she had stated that she had been mercilessly beaten by the accused, apart from being raped. She had further stated that she had run away from the attack of the accused and reached the junction where she was rescued by PW2 and 3 and some others. PW4 had admittedly written Ext.P2 complaint as instructed and narrated by PW1. PW4 had stated that when PW1 came to the party office at about 1.30 p.m. on 24.1.1996, he and his father were in the office. He further deposed that PW1 had signed in Ext.P2, after it was read out to her. It may be mentioned here that PW1 admits how she read and write. PW4 further stated that PW1 is an active party worker. PW1 had further admitted before the court that elaborate discussions were held with the party workers and friends before going to the District Hospital at Palakkad which was about 50 km away from the “pady” where she was residing. It had come out from the evidence of PW1 and PW5 and other witnesses that there were other hospitals nearby. Two other police stations namely Nenmara and Kollengode Police stations were also available nearby. But PW1 had chosen to go to the Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :9: District Hospital at Palakkad, late in the evening. Admittedly she had stated to the Police that she had only some body pain. The statement was recorded by the police at 2 a.m. No explanation had been given by the prosecution why PW1 and others did not go to any one of the nearby hospitals, especially when it was the admitted position that PW1 had not sustained any injury either external or internal on her body. As mentioned earlier, the prosecution had not bothered to obtain a report from the chemical analyst regarding the test on the vaginal smear and swab of PW1. PW8 the Doctor, examined PW1 at 9 a.m. on the next day, that is on 25.1.1996. He had found on examination of PW1 that her general condition was good. PW8 had not noticed any external or internal injury on the body of PW1. More significantly, PW8 had categorically stated before the court that he cannot give a definite opinion whether PW1 was raped, particularly in the absence of chemical examination report. 13. It had come out in evidence that PW1 had gone to the Padagiri police station immediately after the alleged incident. According to her, the police had recorded her statement. PW2 had also categorically stated that he had been questioned by Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :10: Padagiri Police after about one hour of the alleged incident. But surprisingly, Padagiri police is seen to have recorded Ext.P5, statement of PW1 only at 2 a.m. on the next day, after which Ext.P8 FIR was registered. The statement which was allegedly recorded by Padagiri Police immediately after the alleged incident (if the versions given by PW1 and 2 are to be believed) has not seen light of the day. It is in the above background that the defence version has to be analysed. According to the accused, the case was foisted against him because of political rivalry. It was not in dispute that the accused was an active member of Communist Party of India earlier. But he had joined CMP later. He admitted that he belonged to CPI earlier. According to him this case was foisted against him after much deliberations among the party workers at the party office. The above version cannot be brushed aside lightly in the light of the evidence that had come on record. PW1 had admitted that she was a active worker of CPI. 14. The trial court had also noticed that there was delay in forwarding the clothes of PW1 to the forensic laboratory. According to the prosecution, the clothes were produced before Crl.R.P. No. 522 of 2000 & Crl.R.C. No. 8 of 2001 :11: the court 5 days after the alleged incident. But they were forwarded to the forensic laboratory only after about 13 months. There is no evidence to show that the above material objects were kept in proper custody, even assuming that the clothes of PW1 (MO5) contained semen. There was nothing to connect the same to the accused. 15. Having carefully perused the entire materials on record particularly considering the deposition of PW1, and Exts. P1 and P2, I do not find any illegality or irregularity in the findings entered by the trial court. In my view the learned Judge had considered the entire evidence on record in a meticulous and careful manner. Therefore I am not satisfied that this is a fit case warranting interference. Therefore the Criminal Revision Petition and the Crl.R.C are dismissed. A.K.BASHEER, JUDGE bkn/-