IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 CRL.A.No. 692 of 2001() ----------------------- SC.58/1999 of III ADDL.ASSISTANT SESSIONS COURT, ERNAKULAM CRIME NO.270/94 OF CENTRAL POL ICE STATION, ERNAKULAM .................... APPELLANT(S): -------------- A.O.THOMAS S/O. MATHEW, SANATHAN WARD, NEAR MUSLIM MOSQUE, ALAPPUZHA DESOM, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.LATHEESH SEBASTIAN SRI.V.K.BALACHANDRAN RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM, THROUGH THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM, BY THE PUBLIC PROSECUTOR SMT. LAKSHMI RANI K.L. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 9.12.2008, THE COURT ON 1.1.2009, DELIVERED THE FOLLOWING: V.K.MOHANAN, J. (C.R.) ---------------------------------------------- CRL.A. No.692 of 2001 ---------------------------------------------- Dated, 1st January, 2009 JUDGMENT The sole accused in S.C.No.58/99 on the file of the court of Assistant Sessions Judge, Ernakulam is the appellant herein. He challenges the order of his conviction and sentence under sections 306 and 376 of the Indian Penal code imposed by the trial court as per its judgment dated 28.7.2001 in the above case. 2. The prosecution case is that Sandhya, a girl aged 18 years, committed suicide on 29.10.1992 as a result of rape committed on her by the accused and on his instigation for committing suicide. The prosecution case can be summarised as follows: 3. Sandhya, 18 years old girl, who is the victim in this case, committed suicide by consuming a poisonous fruit namely, `Odallam'. She took the poisonous fruit on 28.10.92 and died on the next day. At the relevant time, Sandhya was preparing for S.S.L.C. examination and was attending classes in a tutorial college. She was the third among the four children of her parents. According to the prosecution case, she was suffering from the sickness of vomiting blood till two years of age but the same was cured by CRLA. 692/01 -:2:- treatment. It is the specific case of the prosecution that after about two years from the death of Sandhya, her father discovered a letter of Sandhya, while he was dismantling the makeshift wall of his house made up of palm leaves to replace it with a stone wall. The said letter contained several startling revelations. According to the said letter, Sandhya was raped by the accused two days before her death and it was the said incident at the hands of the accused instigated her to commit suicide. 4. In pursuance of the discovery of the so called suicide note of Sandhya, her father preferred a private complaint in the court of the Judicial First Class Magistrate -I, Alappuzha on 11.8.94 which was forwarded under section 156(3) Cr.P.C. to the Alapuzha South Police Station, but the same was returned to the Judicial Magistrate of the First Class - I, Alapuzha, as per Ext.P22 report stating that the occurrence was taken place within the territorial jurisdiction of Central Police Station, Ernakulam. Therefore, the Judicial First Class Magistrate-I, Alapuzha, again forwarded Ext.P2 complaint to the Central Police Station, Ernakulam where crime No.270/94 was registered as per Ext.P11 F.I.R. by PW13. In the above private complaint, altogether there were five accused including the appellant herein as the first accused and the offences raised in the CRLA. 692/01 -:3:- said private complaint were under sections 376, 323 and 309 read with Sec.109 of IPC. However, after investigation, final report dated 17.11.98, for the offences only under sections 376 and 306 of IPC, was filed by the Circle Inspector of Police, Central Police station, Ernakulam before the Judicial First Class Magistrate-II, Ernakulam wherein C.P.No.20/98 was instituted. By the order dated 23.2.99 in C.P.No.20/98, the learned Magistrate committed the case to the Sessions Court, Ernakulam and subsequently by order dated 16.3.99, the Sessions Court had made over the case to the Addl.Assistant Sessions Court, Ernakulam for trial and disposal, wherein S.C.No.58/99 was instituted. 5. On appearance of the accused, a formal charge under sections 376 and 306 of IPC was framed by the trial court after hearing the prosecution as well as the accused and the same was read over and explained to the accused to which he pleaded not guilty which resulted in the further trial during which PWs 1 to 20 were examined as prosecution witnesses and marked Exts.P1 to P28 as documentary evidence from the side of the prosecution. Except the marking of contradictions as Exts. D1 and D2, no evidence was adduced by the defence either oral or documentary. The accused took the defence of total denial. The incriminating CRLA. 692/01 -:4:- circumstances, which emerged out during prosecution evidence, when put to the accused under section 313 Cr.P.C., he denied the same. According to his further statement, he was conducting a furniture shop at the building owned by one Vishnu Narayanan Namboodiri, for the last 12 years, and the said Vishnu Narayanan Nasmboodiri himself and his elder daughter Suvarna Antharjanam started making attempts to vacate him from his business premises with the help of political leaders and police. According to the accused, he got an order of injunction from the civil court against the eviction and immediately after getting the injunction order, his furniture shop was broken open and the furniture worth Rs.7 lakhs was looted. Therefore he filed a suit for compensation. Thus According to the defence, the present case of rape and abetment to commit suicide was fabricated by the said persons to ensure their success in the cases mentioned above. According to the defence, he was forced to compromise the cases filed against them as he was in financial difficulty. 6. On the basis of the rival pleadings and contentions, the trial court considered three points for its decision, and finally found that the accused was guilty of the offences charged against him and thus he was convicted for the offences under sections 376 and 306 CRLA. 692/01 -:5:- IPC and accordingly, he was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1,50,000/- for the offence under section 376 IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of one and a half years. He was also sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.1,50,000/- for the offence under section 306 of IPC and in default of payment of fine he was sentenced to undergo rigorous imprisonment for a further period of 1 ½ years. Thus the accused has to undergo imprisonment for a total period of 14 years towards the substantial sentence alone. It is also ordered that if the fine amount is realised in full or in part, the entire amount shall be paid in equal share as compensation contemplated under section 357(1) Cr.P.C. to PWs 1 and 4. It is the above order of conviction and sentence challenged in this appeal. 7. I have heard Sri N.Sukumaran, the learned counsel appearing for the appellant as well as Smt. K.L.Lakshmi Rani, the learned Public Prosecutor. 8. As there is no direct evidence, the prosecution depends upon certain circumstances to prove its case. The oral testimony of certain witnesses and also Ext.P1 suicide note and other documents, CRLA. 692/01 -:6:- are the main evidences adduced to prove the circumstances. In order to understand and appreciate the case, especially, when there is there is no direct evidence, it is only apposite to state the main evidence relied on by the prosecution, which I shall deal with first. PW1, the father of the deceased stated that he was awakened by the deceased at 11 a.m. on 28.10.92 stating that she had taken poison and she had vomited also. Thus PW1 obtained the service of PW2 who was an autorickshaw driver and both of them took Sandhya to Alappuzha Medical college where she was admitted for treatment. As PW-1's wife Remani - PW4, was employed as a maid servant at Pulinkunnam, he went to call her and both of them reached in the hospital by 7 a.m., by that time Sandhya died. Sandhya was unmarried at the time of death and her body was cremated in the residential compound on the same day. PW1 further says that at that time, he had no idea as to why his daughter committed suicide. According to him, he realised the reason for committing suicide by his daughter after about two years when he discovered the suicide note written by her daughter. According to PW1, the suicide note written by Sandhya discovered from the makeshift wall of his house which was pulled down to replace it with a stone wall. According to him, the suicide note was found in a note CRLA. 692/01 -:7:- book tucked in between the palm leaves of the screen and it was addressed to PW.1's son Sunil Sarma @ Sari, the eldest son among the children of PW.1. According to PW1, Sandhya was studying for S.S.L.C. examination, and at that time his son Sari was away from home connected with his work and according to PW1, he could not read or write, and hence the contents of the suicide note got read out by his younger son Shyam. Ext.P1 is the said suicide note. According to PW1, the accused was known to him previously as PW1's wife was a maid servant in the house of the accused in 1990. According to PW1, in Ext.P1, Sandhya had written that she told everything to Aji and hence the said Aji was consulted and he admitted that Sandhya had told him about the incident. Thereafter PW1 met an Advocate who advised him to collect the name and address of the persons who threatened Sandhya and also the names of the other witnesses. Thus a formal complaint was filed by PW1 in the Judicial First Class Magistrate Court, Alappuzha which was initially forwarded to Alappuzha South Police Station and subsequently to Central Police Station, Ernakulam under section 156(3) Cr.P.C. for investigation . Ext.P2 is the complaint dated 12.7.94. Exts.P3 to P3(c) are 4 letters alleged to have been written by Sandhya. The first three letters are CRLA. 692/01 -:8:- addressed to one Dinesan and the fourth one to one Musthafa. The first letter is undated. The other letters are dated 27.8.90, 6.7.91, and 12.9.91. Thus the letters were seized as per Ext.P4 seizure mahazar by the C.I. of Police, Central police station, Ernakulam. 9. PW1 has stated that the deceased Sandhya had come to Ernakulam two or three days prior to her death without his permission. According to him, Sandhya left home as usual to attend the tuition class but she did not come back in the evening and she reached back home only on the next day around noon. When Sandhya was questioned about this issue, she started weeping. PW1 has stated that she explained to him that she had gone to Ernakulam to meet the accused who had promised to arrange necessary papers for her to go abroad seeking employment and she could not return on the same day as she missed the train and she was not having money to catch the bus and thus she had to stay during the night at the business premises of the accused. It is also stated that she had visited the house of one Karthikeyan on the date when she left the house to meet the accused. Karthikeyan is the friend of Sari. During cross examination, PW1 conceded that he could not say whether the date and place in Ext.P1 and the rest of CRLA. 692/01 -:9:- this had been written in different hand writing. He had also stated that Sandhya was suffering from vomiting blood but the same was cured. He denied the suggestion of the defence that Sandhya had once attempted to commit suicide by cutting the vein of her hand. PW1 denied the suggestion that Sandya committed suicide because she was in dejection due to her incurable disease of vomiting blood. PW1 has also denied the suggestion that the case was foisted against the accused because the accused was not acceded to the demand for money. PW1 was recalled by the prosecution to prove the fact that he was present when the Police conducted inquest on the dead body of Sandhya on 29.10.92. He had denied having stated to the Police at the time of inquest that Sandhya once attempted to commit suicide by cutting her veins. 10. PW2 is another star witness cited by by the prosecution who is the neighbour of PW1. According to him, he came to the house of PW1 and he was told that Sadhya was vomiting as she had taken poison and based upon the request of PW1, he took PW1 and Sandhya in an autorikshaw belonging to his friend to the Medical College Hospital, Alleppey. According to him, when he left the hospital, Sandhya was alive and he came to know about her death on the following evening . According to PW2, he had met Sandhya CRLA. 692/01 -:10:- two days prior to the death and at that time he was told that she was going to Ernakulam on the next day to meet the accused who had been admitted in the Medical Trust Hospital, Ernkualm. According to PW2, when he asked about 'sir', she explained that it was the accused who promised her to send to the Middle East. It is also the case of PW2 that Sandhya told him that the accused sustained injury on his head by falling in the toilet. Thus According to PW2 he offered to accompany Sandhya to Ernakulam and on the next day morning PW2 and Sandhya came to Ernakulam and they together went to the Medical Trust Hospital. The accused was there in the hospital as an inpatient and he was being attended by his wife, Pushpachechi. Thereafter both PW2 and Sandhya came back to the South railway station. It is the further case of PW2 that at that time a man aged 40 came to the ticket counter at the railway station and called Sandhya and Sandhya introduced him as Alex to PW2 and thereafter all of them came out of the railway station and an adolescent youth named Suni was found waiting there. Alex went ahead on his scooter and Sandhya, PW2 and Suni followed in an autorickshaw to Thevara side. Sandhya and PW2 were taken by Suni to a house. 11. According to PW2, in that house, there were some more CRLA. 692/01 -:11:- persons including the wife of the accused and another person , who was addressed by others as 'Nair' and Alex called Sandhya inside the room and PW2 could hear them talking but she could not make out the words. It is also the case of PW2 that he heard Sandhya weeping and saying something. PW2 further said that after 10 to 20 minutes, Alex, Nair and Sandhya came out to the Verandha and Alex and Nair told Sandhya in an angry tone that she would not be let free and that she would be made over to the Police. According to PW2, Sandhya wept on without saying anything. Thereafter both of them were allowed to go. It is the further case of PW2 that when he asked Sandhya about the issue, she told him that the accused had to be hospitalised as she had beaten him. It is also the case of PW2 that she added that she did not tell it to him earlier since she did not want her family to know it. PW2 further deposed that he asked her why the accused was beaten, and she answered that she beat him when he tried to destroy her. Thus, According to PW2, Sandhya gave full details of the incident. She told him about the incident happened on the previous day in the early morning at the office of the accused. She was forced to stay in the office of the accused since she missed the train and she was not having sufficient money as bus fare. She had further stated that besides the above shortage of CRLA. 692/01 -:12:- money, there was a road block due to some rally and hence she telephoned to the accused and then the accused asked her to come and accordingly she went to the office of the accused in an autorikshaw. She slept in the night in a room there and according to PW2, from the words of Sandhya he could gather that she was subjected to rape by the accused. PW2 further says that she told him that the accused was beaten with wooden reaper while he was asleep and that she herself took the accused subsequently to hospital in an autorickshaw since there was profused bleeding from his head injuries. PW2 has also stated that when he asked her why he came to see the accused, she had answered that she wanted to know as to what happened to the accused. According to PW2, she had informed the hospital authorities that the accused sustained injury when he slipped and fell in the toilet. Thereafter PW2 send Sandhya to her house. PW2 has also stated that PW1 on discovery of Ext.P1 letter, contacted PW2 and he admitted everything to PW1. PW2 also identified Ext.P1 letter shown to him by PW1. According to PW2, when Sandhya died, it struck him that the accused was responsible for her death. But he did not disclose the same to anybody mainly because he had promised Sandhya that he would not reveal it to anybody and it is his further explanation that if it is CRLA. 692/01 -:13:- disclosed, it will affect the family of Sandhya. According to PW2, the handwriting contained in Ext.P1 is that of Sandhya. 12. PW3 is the son-in-law of the owner of the building where the accused was running his furniture shop. According to this witness, he knew the accused from 1980 onwards connected with the furniture business in the shop which housed in their building. He had also stated that he got information that the accused had been admitted in the hospital and he went there and met the accused in 'C' Ward of the Medical Trust hospital. According to PW3, as per his information, the accused had been beaten by somebody on the previous night. The head of the accused was covered with bandage. As he denied the rest of the prosecution case, he was declared as hostile and cross examined. Thus accordingly, he was confronted with the case diary statement wherein he had stated that he saw a young girl going to the office of the accused on the evening of 24th and that he heard a hue and cry from the office on the next day morning. 13. PW.4 is the mother of the deceased Sandhya and she had deposed in terms of the deposition of PW1. She had stated that some day in the year 1992, PW1 came to the house of Vakkachan and told her that Sandhya had been admitted to Alapuzha Medical College and accompanying PW1, she reached in the hospital and CRLA. 692/01 -:14:- before their arrival, Sandhya had died. PW4 had deposed that Ext.P1 and P3 series letters were in the handwriting of her daughter Sandhya. According to her, she studied up to VIIth standard and she was employed as a baby-sitter in Abudabi for two and a half years and during that period Sandhya used to write letters to her. She had also stated that she knew Dinesan and Mustafa to whom Exts.P3 series letters were addressed. PW4 further deposed that she knew the accused . Formerly she was employed as a maid servant in the neighbourhood of his house and subsequently in the house of the accused himself. She had also stated that it was the accused who arranged employment for her daughter Sheeba in Ernakulam. PW4 further deposed that the deceased Sandhya used to visit Sheeba in the house where she was working and both Sheeba as well as Sandhya addressed the accused as `Sar'. According to her, Sandhya had occasion to meet the accused during her train journey. PW4 further stated that Sandhya had the disease of vomiting blood, but it was completely cured about two years prior to the death of Sandhya. According to her, Sandhya was under the treatment of Dr.Thankam of Medical College Hospital, Alapuzha. During the cross examination, PW4 identified the handwriting of Sandhya which contained in Exts.P1 and P3 series of CRLA. 692/01 -:15:- letters. Ext.P15 was marked through PW4. 14. PW5 who was running a shop about 100 feets away from the business premises of the accused had stated that there was light till 8.30 p.m on 24.10.1992 in the business premises of the accused. He had also stated that on the next day, he came to know from a scooter mechanic that the accused sustained injuries on head and accordingly PW5 and the scooter mechanic went to the Medical Trust hospital and visited the accused who was under treatment as an inpatient there. According to PW5, at the time of their visit, there was a girl aged about 16 - 17 years near the accused. He had stated that the said girl introduced herself as Sandhya. 15. PW6 is one Karthikeyan who is a friend of Sari - son of PW1 and brother of the deceased. PW6 admitted his friendship with Sari. PW6 also deposed in terms of the prosecution case regarding the intimacy of his family with the family of deceased Sandhya and Sari. PW6 categorically deposed that the deceased Sandhya visited his house for the last time on 24.10.92 in the afternoon and she returned about 5.p.m. According to PW6 he came to know about the death of Sandhya only when he received a letter from the family of Sandhya inviting him to attend the last rites in connection with her death. CRLA. 692/01 -:16:- 16. Prosecution cited and examined PW7 Sub Inspector of Police, Ernakulam Central Police Station, who was working there during the year 1992, to show that there was a traffic block on 24.10.1992. PW8 is Sheeba, sister of Sandhya who was also, at that time, working as a maid servant at Thevara. She had stated that the accused was introduced to her by her brother Sari during the train journey and she had acquaintance with the accused. She had also stated that Sandhya used to visit her at her working house. This witness has also stated that herself and Sandhya used to address the accused as `Sar'. It is also deposed that the accused had promised Sandhya that he would procure a visa for her for going abroad to take up employment. This was told to her by Sandhya herself. PW.8 further sated that about one month prior to the death of Sandhya, she came to the house of Philo where she was working from where herself and Sandhya together went to the office of the accused for taking Sandhya's photos for affixing in the passport application. It is further stated that PW8, Sandhya and the accused went together to a studio near Warriam road for taking photos of Sandhya. PW8 had also stated that when Ext.P1 letter was discovered, she was not in the house but she was at Paravur in the house of her uncle, from where she was called and showed the letter CRLA. 692/01 -:17:- and she read it and afterwards she contacted PW.2, Aji, and he was asked why he did not disclose the matter earlier and she was told by Aji that Sandhya asked him not to divulge the matter to anybody. PW8 also identified the handwriting contained in Ext.P1 letter and Ext.P3 series letters as that of Sandhya and she asserted the same. She had also stated that she knew Aji whose name mentioned in Ext.P1 and Dinesan and Mustafa mentioned in Ext.P3 series letters. She had further stated that Sandhya was in love with Dinesan and she