IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 CRL.A.No. 1902 of 2010(C) ------------------------- SC.445/2008 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE .................... APPELLANT(S): -------------- A.I.HUSSAINKUTTY @ ASSAINAR, S/O.ALAVI, C.NO.7960,CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. GOPAKUMAR G. ALUVA[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No.1902 of 2010 -------------------------- Dated this the 16th June, 2011 J U D G M E N T Appellant was charge-sheeted for offence under Sections, 366, 376, 379 read with 34 of Indian Penal Code. He was tried for the said offences by Additional Sessions Court. After trial, he was convicted and sentenced to undergo rigorous imprisonment for a period of 7 (Seven) years and to pay fine of Rs.5,000/- (Rupees five thousand only) for the offence under Section 366 IPC and in default of payment of fine,to undergo rigorous imprisonment for a further period of 6 (Six months)., 2. He was also sentenced to undergo rigorous imprisonment for a period of 7 ( Seven) years and to pay a fine of Rs.5000/- (Rupees five thousand only) for the offence under under Section 376 IPC and default of payment of fine, to undergo rigorous imprisonment for a further period of 6 (Six) months. He was further sentenced to undergo rigorous imprisonment for a period of 3 (three) years and to pay a fine of Rs.3,000/- (Rupees Three Crl.A No.1902 of 2010 2 thousand only) under Section 379 IPC and in default of payment of fine, to undergo rigorous imprisonment for a further period of 6 (Six) months. Substantive sentence shall run concurrently. Set of was allowed under Section 428 of Code of Criminal Procedure. 3. Charge was framed by the learned Additional Sessions Judge against the accused which reads as follows: “That, the accused in furtherance of the common intention to abduct CW2 and 3 went to their house at Paleri at 18.5.1999 at about 7.30 P.M and accused Nos.3 and 4 introduced CW2 to the 1st accused and that the 1st accused informed CW2 that he is a representative of a millionaire who belongs to Bahrain and he made her to believe that the Arab man has decided to give 15 sovereigns of gold ornaments and Rs.50,000/- for the marriage of poor girls and CW2 is selected as one among them. He informed her that the Arab man and his wife are at Kottakkal and he further informed her that he will arrange an employment for her on abroad and he will marry her. Accused Nos.1 and 3 took CW2 and 3 in the jeep bearing No.KLM 8618 driven by 4th accused and accused No.1 took CWs2 and 3 to Calicut. When they reached Calicut they met the 2nd accused and he informed them that the Arab man is at Palakkad and accused Nos.1 and 2 took CWs 2 and 3 to Palakkad and they resided in room No.207 of KPM Lodge situated in building No.II/757 in Palakkad Municipality. While they were sitting in the room and while CW1 was taking bath the 1st accused committed rape on CW2 against her will and consent and while CW2 and 3 were in the bathroom committed theft of gold chain weighing 10 sovereigns which were kept by them under the pillow in the room and the first accused left the place after Crl.A No.1902 of 2010 3 steeling the gold ornaments. All the accused persons acted in furtherance of their common intention to commit offences and the first accused thereby committed offences punishable under Sections 366, 376 and 379 IPC and within the cognizance of this court.” 4. To prove the prosecution case, PWs 1 to 14 were examined. Exts. P1 to P18 and MO1 series and MO2 series were marked. Accused did not adduce any evidence but stated that he is innocent of the allegations made against him while he was standing in a bus stand the Police arrested him and asked him whether he was any dealing in visa. Several other questions were also put to him. Rs.5000/- which was in his possession was taken by the police. Four cases were charge-sheeted and in other cases he was acquitted. He did not have any relationship with PW1. She did not have any other dealing with the accused. 5. Accused was undefended and hence Sri.Gopakumar G. (Aluva) was appointed as Stated Brief. Heard both sides. Perused the records. After analysing the evidence in detail, the trial court found that the accused committed all the offences alleged against him and prosecution proved the charge beyond reasonable doubt. Crl.A No.1902 of 2010 4 6. Learned counsel for the appellant argued that the prosecution has not proved that offence under Section 376 IPC was committed. He pointed out that the expression used is “Manabhangam” which does not mean “rape”. The court committed a mistake in holding that the evidence proved commission of rape in this case. 7. It is also submitted that it is unbelievable that the accused would commit rape when PW1's daughter was present nearby. As per the evidence of PW2, she had come from the bathroom within five minutes. It is also submitted that as per the prosecution case, accused had asked PWs 1 and 2 to remove the gold ornaments from their neck and they readily obeyed and kept it beneath the pillow and both of them went to the bathroom. In the meanwhile, he committed theft of the ornaments is the allegation. 8. Learned defence counsel also argued that the evidence relating to recovery is unbelievable. Article recovered is gold in weights of two sovereigns. PW1 deposed in cross-examination that she found the gold ornaments in the Police Station on 24.7.1999. Recovery of Crl.A No.1902 of 2010 5 the gold ornaments is allegedly effected on 14.10.1999. It is also pointed out that the claim of PW1 is that 10 sovereigns were stolen but what is recovered is only about gold in worth about two sovereigns. 9. It is also argued that there is inordinate delay in implicating the accused in this case. Alleged complaint made by PW1 is suppressed. This would cast doubt on the veracity of evidence given by PW1, it is submitted. It is also pointed out that in Ext.P3, the medical certificate, the doctor had also recorded that complaint was made on 19.5.1999 regarding the ornaments. That means, she did not state anything about rape to doctor. 10. Learned Public Prosecutor argued that PW1 is a woman aged 55 years . She is having a grown up son and she is a widow. Her embarrassment to disclose the details about staying in a lodge and being subjected to sexual intercourse, rape etc have to be borne in mind while appreciating the evidence of PW1. She would not have been in a position to disclose all those details but the fact remains that the accused had taken gold ornaments from Crl.A No.1902 of 2010 6 her possession. Those ornaments belonged to her sister. Several criminal cases were registered against the accused, since he outraged the modesty oe women by taking them to lodges making false premises and committing theft of gold ornaments as well as physical advance, it is submitted. 11. On hearing both sides and going through the records, I find that the accused was convicted for offence under Section 376 IPC , on the basis of the evidence of PW1 and medical evidence. The evidence of PW1 does not disclose commission of offence of rape. Offence of rape is constituted only if the ingredients under Section 375 are made out. There must be evidence to show that there is sexual intercourse. 12. But even on a plain reading of the evidence of PW1, such fact is not revealed. She only stated that she was subjected to “manabhangam” which means outraging the modesty. “Rape” has defined under Section 375 of IPC calls for more facts than outraging the modesty. Learned Public Prosecutor argued that the word used for rape in some local area in vernacular and that is sufficient to Crl.A No.1902 of 2010 7 conclude that PW1 was raped. With due respect, I am unable to accept this argument. 13. Whatever be the expression used in vernacular, the question before the court is whether PW1 was subjected to sexual intercourse by accused. The evidence in this case will not disclose that there was sexual intercourse and hence it is an irrelevant as to what word was referred to by PW1 in her evidence. Admittedly PW1 is aged 55 years at the time of alleged commission of rape and the incident happened on 18.5.1999 but she was examined by the doctor only after about three months on 2.8.1999. 14. Of course, no evidence relating to rape can be detected by a medical expert if the alleged victim is examined after such a long time, particularly since PW1 was married and she also has children. Though there are columns in Ext.P3, which are meant for recording whether there was recent sexual act, there is nothing in Ext.P3 to disclose recent act. In such circumstances, I find the prosecution has not proved that the accused has subjected PW1 to rape. Crl.A No.1902 of 2010 8 15. In this context, it is also relevant to note that the earlier statement given by PW1 regarding the incident is suppressed by the prosecution. It is spoken to by PW1 in evidence that she gave a complaint on the very same day namely 18.5.1999. This fact is referred to in Ext.P3 the medical certificate also. She also stated that police took her statement. Accused has a case that the complaint was made under other circumstances. 16. According to accused, PW1 had told the police that there was some visa dealing and actually she did not have any complaint against the accused. It is pointed out that she told the doctor that she did not take the offence of rape seriously. She also did not make any complaint to police on rape on the very same day. The crime was registered not on the basis of any complaint made by PW1 but it was registered after the arrest of the accused under the suspicious circumstances. Crime was registered only on 26.7.1999 and there is a long delay. 17. It is also relevant to note that as per the F.I.R, date of occurrence is 18.4.1999, whereas the present allegation Crl.A No.1902 of 2010 9 made by PW1 is that the offence was committed in a lodge on 18.5.1999. Prosecution would claim that the date of occurrence was disclosed by the accused as per the confession statement and as per the statement, offence was committed on 18.4.1999 and not on 18.5.1999. At any rate, there is a long delay in proceeding against the accused for the alleged offences. 18. The earliest complaint which is alleged to have been given by PW1 is not before the court. Prosecution has no explanation why such complaint is suppressed. The prosecution ought to have explained what happened to the first complaint. It is only probable that PW1 would have given the first complaint with respect to the ornaments, since according to her, ornaments belonged to her sister's daughter-in-law. In the absence of production of the first complaint allegedly given by PW1 on the very same day of the incident, the defence put forward by the accused cannot be brushed aside. 19. In this context, it is to be noted that though the prosecution attempted to prove that a room in the lodge Crl.A No.1902 of 2010 10 was taken by the accused, PW3, who is the receptionist of the hotel stated that he cannot confirm whether it was accused himself who had taken the room on 18.5.1999. He also stated that the room was taken in the name of Salim. 20. Learned defence counsel also submitted that though the gold ornaments worth 10 sovereigns were allegedly stolen by the accused, gold ornaments weighing 17.75 gms alone were produced before the court which is less than 2 sovereigns. As pointed out by learned defence counsel PW1 deposed that she had seen the stolen gold ornaments when she had gone to the Police Station on 24.7.1999. But,what is recovered on 14.10.1999 is gold weighing 2 sovereigns. This discrepancy is also not explained. PW1 is owned by the prosecution and there is no reason to reject the portions of her evidence which is against the prosecution. 21. Learned Public Prosecutor argued that the evidence adduced in this case would reveal that several gold ornaments were recovered at the instance of the accused and it was from among the ornaments that she Crl.A No.1902 of 2010 11 identified the gold ornaments in this case. Therefore, there could be a mistake, it is submitted. 22. According to me, if it is a mistake, it could have been clarified in re-examination. That was not done by the prosecution. In such circumstances, the categoric statement given by PW1 that she saw the gold ornaments at the Police Station on 24.7.1999(even before alleged theft) cannot be rejected. Anyway, a reasonable doubt is cast on the evidence relating to recovery of the gold ornaments. Non- examination of PW1's sister or daughter-in-law is also relevant as argued by learned defence counsel. There is no explanation why the owner of the gold ornaments were not examined. 23. Taking all these into consideration, I find that no reliance can be placed on the evidence of PW1 to hold that gold ornaments were stolen from her. According to the evidence of PW1 and 2, accused had asked PW1 and 2 to remove the gold ornaments, while they were in the room in the lodge and both of them readily removed the same and kept them beneath the pillow and thereafter both of them Crl.A No.1902 of 2010 12 went to the bathroom, while the accused committed the theft of the gold ornaments and left the room. 24. According to the evidence of PW1, she made enquiries with the people in the lodge about accused. She also brought to the notice of the employees in the lodge about what the accused had committed. But no independent evidence is forthcoming from the employees of the lodge to corroborate the version of PW1. PW2 also did not corroborate her evidence on these aspects. If theft had taken place in the circumstances stated by PW1 and it was noticed by her immediately, in all probabilities she would have taken minimum steps to trace out the accused. In the absence of it, the story put forward by PW1 regarding theft is doubtful. 25. Now coming to the allegation regarding 366, IPC, learned defence counsel argued that the evidence adduced in this case will not prove the ingredients of Section 366 IPC. A reading of Section 366 shows that it is not merely an abduction which constitutes the offence under Section 366. Such abduction must be with intend that the woman will be Crl.A No.1902 of 2010 13 compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing to be likely that she will be forced or seduced to illicit intercourse. The evidence and circumstances revealed from records in this case will rule out the possibility of existence of such evidence, it is submitted by defence counsel. 26. It was pointed out by him that even as per the prosecution case, accused had approached PW1 and her daughter and not only PW1 but her daughter was also taken along with her. It is unlikely that a person with such intention as required under Sec. 366 IPC would commit such acts, it is submitted. I cannot reject the arguments advanced. On an overall appreciation of evidence in this case, a doubt is cast whether the incident happened as alleged by the prosecution. 27. May be something happened, may be some ornaments were lost but it cannot be said for sure that the loss was under the circumstances, as alleged by the Crl.A No.1902 of 2010 14 prosecution. In the light of the suppressions and non- examination of material witnesses, it cannot be said the prosecution proved beyond reasonable doubt that the accused committed the offences alleged against him. Hence conviction and sentence passed against the appellant are unsustainable. In the result, the following order is passed : (i) The conviction and sentence passed against the appellant under Sections 366, 376 and 379 of Indian Penal Code are set aside. (ii) The appellant is found not guilty and he is acquitted of offences under Sections 366, 376 and 379 of Indian Penal Code. (iii) The appellant is set at liberty forthwith. (iv) The appellant shall be released from the jail forthwith unless his detention is required in any other case. (iv) The Registry shall issue release memo to the jail concerned forthwith. This appeal is allowed. Sd/- K.HEMA, JUDGE ma /True copy/ P.A to Judge