IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 CRL.A.No. 1440 of 2003 -------------------------------------- SC.209/2000 of ADDL.SESSIONS COURT (ADHOC-I), KOTTAYAM .................... APPELLANT/ACCUSED: JOSEKUTTY, S/O. PAPPACHI, POLLAMALAKKAL VEEDU, KUMBANTHANAM BHAGOM, PAMPADY. BY ADV. SRI.V.K.SUNIL RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1440 of 2003 --------------------------- JUDGMENT The accused in S.C.No.209/00 on the file of the Sessions Division, Kottayam, who has been convicted for offence under Section 376 IPC and sentenced thereunder to undergo rigorous imprisonment for a term of four years and to pay a fine of Rs.25,000/- and in default to undergo simple imprisonment for a further term of one year is the appellant in this appeal.He challenges in this appeal the correctness of the conviction and sentence so passed against him by the Additional Sessions Judge (Adhoc-I), Kottayam. 2. The appellant stood indicted for offence under Section 376 IPC on the allegation that he committed rape on PW3 Sunitha during October 1998 on the pathway, along which, PW3 had to pass to go over to the neighbouring house of Ayyappan @ Thampi, while she was proceeding from her house to the said neighbouring house of Ayyappan @ Thampi CRA 1440/03 2 for viewing the serial 'Om Namasivaya'. The case, which was registered as Crime No.102/99 of Pampady Police Station, was investigated by PW8, the Circle Inspector of Police, Pampady and he submitted final report before the Judicial First Class Magistrate's Court-I, Kottayam. The learned Magistrate committed the case to the Sessions Division, Kottayam vide committal proceedings 27/99 and the Sessions Judge made over the case to the Additional Sessions Judge (Adhoc-I), Kottayam for trial and disposal. 3. On appearance of the appellant in the court below pursuant to issuance of summons, he engaged his own Lawyer to defend the case on his behalf. Thereafter,the learned Magistrate heard preliminary arguments in the case, framed charge against the appellant for offence under Section 376 IPC, read over and explained it to him and questioned him. Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted by the court below. CRA 1440/03 3 4. Prosecution examined PWs 1 to 8 and got marked Exhibits P1 to P8. On the prosecution closing their evidence,the appellant was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He admitted that he is residing in the neighbourhood of PW3; that the father of PW3 had expired and the mother of PW3 is invalid and is unable to walk; that PW3 is unmarried and a male child was born to her, who is now aged 3½ years; that the said child was delivered by PW3 as a full grown baby; that Ayyappan @ Thampi is also residing near the house of PW3; that himself and Thampi are on inimical terms and that the case is one falsely foisted against him, when PW3, who was attending to the domestic works at the house of Thampi and there were allegations against the said Thampi. However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found CRA 1440/03 4 that the appellant is guilty of the offence punishable under Section 376 IPC, convicted him thereunder and sentenced him as already stated. Hence this appeal. 6. It is vehemently contended before me by the learned counsel for the appellant that there is only the solitary testimony of PW3 to fasten the guilt in the appellant and even if her testimony is believed, there is overwhelming evidence even from her testimony that she was having sexual intercourse with the appellant with her consent; that no offence of rape is attracted in the instant case and that therefore, the conviction of the appellant by the court below for offence under Section 376 IPC deserves to be set aside. He has taken me through the entire evidence in the case to buttress the arguments so advanced by him. 7. PW3 is the victim of the alleged sexual assault. She was aged 17, even on the case of the prosecution as on the date of occurrence. Her father was no more and her mother was an invalid CRA 1440/03 5 and was unable to walk. PW3 was unmarried and was eaking her livelihood by doing domestic works in certain houses. She has delivered a male child on 25.7.1999. There is no case for the appellant and there is not even a suggestion in cross-examination of PW3 that she is leading an immoral life or that she was maintaining any love affair or having affinity with anybody else, so as to say that the child born to her may be of any such person. According to PW3, she used to go to the house of Ayyappan @ Thampi to view T.V. programmes; that at 9 p.m. on a day in October 1998, while she was proceeding to the house of Ayyappan to view the T.V. serial 'Om Namasivaya', along the pathway, the appellant approached her and told her that he likes her and caught hold of her hand. According to PW3, she dissuaded him and removed his hand and attempted to get released from his hold, but, in the meanwhile he caught hold of her forcibly and embraced her, laid her by the side of the pathway and committed rape on her. She stated further that CRA 1440/03 6 after committing rape, in the process of the appellant getting up, he offered to marry her and also threatened her that she would be done away with in case she discloses the occurrence to anyone else. 8. According to PW3, after the said incident, on 4-5 occasions also, the appellant did have sexual intercourse with her, while she was proceeding to view the T.V. in the house of Ayyappan and all that took place at the same place and all that were on the assertions of the appellant that he would marry her. PW3 has stated that being afraid of the appellant, she did not disclose the occurrence to anybody else and she complained of her not having regular periods to her mother and then her mother told her that in the normal course itself it would become regular, but however, later, her mother felt some suspicion and asked her and then also she did not disclose the occurrence as she was afraid of the appellant. Thereupon, her mother sent her to a hospital at CRA 1440/03 7 Chenappally along with their neighbour Leelamani and there the Doctor who examined her declared that she is seven months pregnant and thereafter she delivered a male child on 25.7.1999. However, on coming to know of the pregnancy she has given Exhibit P3 F.I. Statement before the police and it is on the basis thereof that Crime No.102/99 was registered on 7.5.1999 at the Pampady Police Station. In cross-examination, she has deposed that the occurrence of her being subjected to rape by the appellant had taken place between 9.30 p.m and 10.30 p.m. on all days when the occurrence took place and that was the time when she used to go over to the house of Ayyappan to view the T.V. serial. In cross-examination she has further stated that while she was proceeding to the house of Ayyappan by 9.30 p.m. and when she reached the lane in front of her house, the appellant called her by her name and asked her to stop saying that he had to say something to her and it was then that he caught hold of her hand telling her that he loves CRA 1440/03 8 her. According to her, only in May 1998, she came to know that she is pregnant by seven months and that she had not disclosed to anyone till her pregnancy was ascertained at the hospital that she was subjected to sexual intercourse, as stated by her. The suggestion made in cross-examination to PW3 is as to whether she was not giving complaint to the police on the instructions of Thampi when people came to know of her pregnancy. There is absolutely no circumstance brought about to discredit the testimony of PW3 that she was subjected to sexual intercourse by the appellant. But, all the same, as rightly contended by the counsel for the appellant, it appears that she has not raised a little finger against the sexual assault made against her and has not disclosed of the occurrence to anybody till it came to light when she was pregnant by seven months and people also came to know of that as obviously PW4 was accompanying her to hospital. On the Doctor declaring that she was pregnant by seven months PW4 CRA 1440/03 9 questioned her and thereupon PW3 disclosed that appellant was the person who was responsible for her pregnancy. PW4 also has stated in cross- examination that it is only when the Doctor declared that PW3 is pregnant by seven months that she came to know that PW3 is pregnant. This means that the pregnancy of PW3 however, was not so visible to others and PW3 also was not aware that she was pregnant till the Doctor on examining her declared that she is pregnant. It is true that other than the testimony of PW3, there is no other circumstance corroborating the occurrence except that PW6, the wife of Ayyappan has deposed that PW3 used to go over to their house to view T.V. Serial 'Om Namasivaya', which starts at 9.15 p.m. and that is not assailed also in cross examination. It is further contended before me by the learned counsel for the appellant that the Doctor, who examined PW3 and declared that she is pregnant by seven months is not even questioned by the investigating agency and he is not cited also as a witness and that had CRA 1440/03 10 the said Doctor been cited as a witness it would have come to light as to what PW3 disclosed to the said Doctor as regards her pregnancy and that probably could have been an information other than what she stated when she gave F.I. Statement to the police. If at all the accused believed so, there was no impediment in his examining the said Doctor as a defence witness. In fact, in cross-examination the defence did not even want to know as to who was the Doctor, who subjected PW3 to examination. All the same, despite the fact that PW3 is aged only seventeen years and she was eking her livelihood by doing domestic work in other houses and her father is no more and her mother is disabled, there is no reason at all to think that she would not have disclosed the occurrence to anyone if at all she was not a consenting party to the sexual intercourse to which she was subjected by the appellant. 9. It is worthy to note that the occurrence even according to the version of PW3 was repeated CRA 1440/03 11 on 4-5 occasions as well after the first occurrence and all that, was during the time when the T.V. Serial 'Om Namasivaya' was being telecasted. This means that the appellant chose that particular time to subject PW3 to sexual intercourse and PW3 did not want to avoid such occurrence taking place. 10. Considering the entire aspects of the case, though it cannot be believed that the appellant was subjecting PW3 to sexual intercourse persuading her to believe that he will marry her, the evidence of PW3 shows that repeatedly, he was having sexual intercourse with her and that could not have been except with the consent of PW3. 11. In the above view, I hold that the approach taken by the court below that PW3 was being subjected to rape on the offer of her being married by the appellant is not correct and that PW3 was also a consenting party to the sexual intercourse though the occurrence has taken place on the volition of the appellant. Hence, conviction of the appellant for offence under Section 376 IPC CRA 1440/03 12 deserves to be set aside and the appellant acquitted of the offence thereunder. In the result, allowing this appeal and in reversal of the conviction and sentence entered into by the court below against the appellant, I acquit the appellant of the offence under Section 376 IPC. His bail bond is cancelled. 18th March, 2008 (K.P.Balachandran, Judge) tkv