IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 831 of 2003() -------------------------------- SC.267/1999 OF THE ADDITIONAL SESSIONS COURT (ADHOC-I) FAST TRACK COURT-I, MANJERI) .............................................................................. APPELLANT(S): ACCUSED: --------------------------------------- RAJAN, S/O. CHAMI (LATE) MUKRANGATTUPARAMBIL HOUSE, KOTTEKODE VILLAGE, MARUTHA ROAD PANCHAYAT, PALAKKAD DISTRICT. BY ADV. SRI.JOHN NUMPELI (JUNIOR) RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.831 OF 2003 -------------------------- Dated this the 25th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against he conviction and sentence passed in S.C. 267/99 of the Addl. Sessions Judge (Ad hoc-I) Fast Track Court-I, Manjeri. The accused was found guilty u/s.376 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.5,000/-, which on recovery was directed to be paid to the victim. It is against that decision the accused has come up in appeal. From the Memorandum of appeal, the points that arise for determination are, 1.Whether there are any sufficient materials to hold that the accused has committed rape on the victim ? 2.Is there anything to interfere with the conviction and sentence passed by the court ? 2. Point Nos.1 and 2 :- The law was set in motion by giving a first information statement on 30.12.97 by the CRL.A.No.831 OF 2003 2 prosecutrix. It is stated in Ext.P4 statement that, she is an unmarried lady and is working with one Manjiyam Ummer for the last one month. According to her, everyday she used to go for work at 6 A.M. in the morning and return at 5.30P.M. in the evening. While so on 21.12.97 at 6 P.M., while she was proceeding through the Panchayat road, one Rajan who is doing business in knife, threatened her and pushed her to the paddy field and took a knife from the waist and threatened her and told her unless she permits, she will be killed and thereafter he had lifted her maxi and petty coat and committed rape on her. It is also her version that, she had been threatened by the accused that, if she tells it to somebody she will be killed. It is her further version that, after he departed she had gone for her work and that she had not told it to anybody. On 29.12.97 she had revealed it to her mother and action has been initiated. Ext.P9 is the document relating to her examination by the doctor on 30.12.97 at 4.45 P.M. The said document would show that, she had no external injuries and CRL.A.No.831 OF 2003 3 her hymen was ruptured already and is specifically written that it is not recent and further her vagina admits two fingers. The impression was that, there was no evidence of any force. PW9 is the doctor who had examined her. She only repeats that the hymen ruptured not recently and admits two fingers and that there were no external injuries. In the cross examination, doctor has deposed that no act of violence is noted. Ext.P3 along with the evidence of PW3 would reveal that, there is nothing to find that the accused was incapable of performing any sexual intercourse. So it has to be stated from the materials available in the case that the medical evidence does not show any recent act of sexual intercourse. Not even a single suggestion is put to the doctor, with respect to the same and therefore there is no much medical evidence to support the case of the prosecution. It is a well settled proposition of law that there need not be corroboration always to support the evidence of prosecutrix in a case involving offence u/s.376 of Indian Penal Code. But as a matter of caution, it is always CRL.A.No.831 OF 2003 4 absolutely necessary to look into the medical evidence and if the medical evidence is available and the evidence of the prosecutrix is trust worthy it can form the basis of a conviction u/s.376 of Indian Penal Code. As stated by me earlier, the medical evidence is lacking in this case. Naturally, the lady is alleged to have been subjected rape on 21.12.1997 and she had been examined by the doctor only on 30.12.1997 and her clothes and other materials were produced only thereafter, that too after washing and the chemical analysis report also shows that everything is negative. So it has become all the more burden of the court to scrutinise the evidence available on behalf of the prosecution to find out the guilt of the accused. PW5 is the prosecutrix and PW6 is her mother. PW5, the court felt that, was not able to express properly, and therefore she was questioned and the court was satisfied that she can give reasonable and intelligible answer. Thereafter only the prosecution evidence has started. In the chief examination, she would depose that she left for work at 5.45 A.M. and when CRL.A.No.831 OF 2003 5 she reached the road, the accused dragged her into the paddy field and thereafter committed rape. She would depose that, she had not gone for work on that day and further would depose that when she happened to see the accused on another day, she pointed out him to her mother and then informed the mother about what had happened. In Ext.P4 statement, the version given by her is that, she had told her mother about the incident only on 29.12.97 in the night and that the reason for not divulging is, because she was afraid of the accused. But there is no whisper in the chief examination and it is in a deviated form, the version is given in the chief examination itself. Similarly, in Ext.P4 statement she say that she had gone for the work after the alleged rape but in the chief examination she would depose that she had gone back to her house. In the cross examination, some questions were put and it has come out in evidence that she had given a go-by to the act of threat by taking the knife from the waist and threatening her. According to her in the cross examination she deposed CRL.A.No.831 OF 2003 6 that, she had some injuries in the tussle and there was mud in her clothes. She would also depose that her maxi was torn and her mother did not ask about it to her. She would state before the Police on 30.12.97 that she is unmarried. But in the cross examination she would admit that she had been married by one Ashraf. PW6 is the mother. She would depose that she had enquired about the person, but was only able to find him on 30.12.97, but gave complaint only on 31.12.97. In the cross examination she would deny the marriage of PW5 with Ashraf. She would say that she had seen the clothes of her daughter totally torn but PW5 has no such case. Incidentally, a reference to the material objects produced, would show that there was no tear marks in the cloth or maxi that was produced before the court. According to her, the prosecutrix had shown the accused. Her mother would further deposed before the court that there was an abortion for her daughter and she was admitted in the Government hospital. When the court asked her a pointed question, how she came to know that the girl was CRL.A.No.831 OF 2003 7 pregnant, she would say that there was no evidence for the same. It is also stated by her that there are papers in the form of prescription. So it is this evidence which has to be scrutinised to find the guilt of the accused. If really a person had been subjected to a cruel act of rape and especially when she submits that there was rain and her whole cloths were spoiled on account of the watering and muddy place, necessarily if she had not gone for the work and had gone back home immediately, it is nothing but natural that either she would have told her mother, or atleast, the mother would have asked her about it. But in this case she would state before Police in Ext.P4 that she had gone for work. If she had gone for work in that fashion, it is certain that somebody in that house would have seen it and their evidence would have been a good link to prove the case. It is not done in this case. PW5 has deposed before the court that, the accused is a neighbour of them but they are attempting to explain the delay by stating that when the accused was seen on 29.12.97, then only they CRL.A.No.831 OF 2003 8 could locate the person to prefer a complaint. This can not be also believed. If this girl, PW5, has become pregnant and had an abortion, it is an important material to establish that she had been subjected to sexual intercourse by somebody and when there is an allegation regarding the rape committed by the accused it would have been a very strong link to the case. Absolutely no documents is produced, no evidence is tendered in respect of the fact. It is their case that a girl was treated in a Govt. hospital. There would be documents. So what is available before the court is the inconsistent conflicting version which tends to make the court not to rely upon them. This court is totally conscious of the fact that, an offence of rape is the greatest social menace which has developed that much in the recent past, which requires to be dealt with by iron hands. But equally one has to be very cautious that innocent persons are not dragged into these type of offences and convicted. So in order to convict the accused for an offence u/s.376 of Indian Penal Code as stated by me earlier, the believable evidence of CRL.A.No.831 OF 2003 9 PW1, with some lending support of medical evidence is necessary. It was dawn, ie., almost 6 A.M. in the morning, where there is no difficulty to identify a person. It takes 9 long days thereafter to register an F.I.R. It may be stated that under the Indian society ladies consider their chastity as the greatest virtue and there may be a thinking process which would tend to cause delay in lodging an F.I.R. thinking about the credibility of the family. But there must be circumstances to indicate the same. Here one would say that the accused is a neighbour and it takes 9 days to point out it to the mother that, he is the person who had done the alleged act of rape. Therefore, the evidences of PW5 and PW6 can not be safely relied upon to arrive at the guilt of the accused u/s.376 of Indian Penal Code. I am afraid that, the learned Sessions Judge had been carried away with the thinking process of the gravity of the offence without, at the same time realising that the legal evidence, is lacking in the matter. Therefore the inevitable conclusion is, to give the benefit of doubt to the CRL.A.No.831 OF 2003 10 accused and acquit him. The materials are lacking to find the guilt of the accused. 3. In the result, the criminal appeal is allowed and the accused is found not guilty u/s.376 of Indian Penal Code. Therefore he is acquitted and set at liberty forthwith. The bail bond executed by him shall stand cancelled. M.N.KRISHNAN, JUDGE ami.