IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 Crl.Rev.Pet.No. 2222 of 2007() ------------------------------ CRA.464/2001 of ADDL.SESSIONS JUDGE, ADHOC II, THALASSERY. SC.17/1996 of ASSISTANT SESSIONS COURT, THALASSERY .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- PUTHIYAPARAMBATH SHAMSUDHEEN @ SHAMSU, S/O.AZEEZ, AGED 29 YEARS, THIRUVANGADU AMSOM, JUBILEE ROAD, PILAKOOL, THALASSERY. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: COMPLAINANT -------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2ND ADDL.RESPONDENT: SHAKEELA, D/O. MOIDEEN, VYDARYE HOUSE, THIRUVANAGDU PART, POOVALAPPUTHERU, THALASSERY KANNUR DISTRICT. R1 PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. SRI.S.R.SREEJITH FOR ADDL. R2 (ADDL.R2 IS IMPLEADED VIDE ORDER IN Crl.M.A. 7361/10 DATED.13.8.2010) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2222 of 2010 ---------------------------------------- Dated the 13th August, 2010 ORDER The accused in a prosecution for the offences under sections 376 and 506(i) IPC is the revision petitioner as he is aggrieved by the order of conviction and sentence imposed against him by the courts below. 2. The case of the prosecution is that on 1.4.95, at 7 a.m, when PW1 Shakeela aged about 14 years was going to the New Bus stand through the railway line, the accused followed her and caught hold of her and forcibly took her to the railway puramboke land on the side of the railway line and committed rape on her. It is also the further allegation that the accused threatened her that she will be done away with if she divulge the incident to anybody. According to the prosecution, on 2.4.95, PW1 the victim along with her parents went to the Thalassery police station and gave a statement on the basis of which crime No.180/95 of Thalassery police station was registered for the offences punishable under sections 376 and 506(i) of IPC. 3. On completing the investigation, the police filed the CRL.R.P.No.2222/10 :-2-: report in the court of the Judicial First Class Magistrate Court, Thalassery and C.P.No. 17/95 was instituted and the learned Magistrate committed the case to the Sessions Court and thus the above Sessions Case was instituted and made over the same to the court of Prl.Asst. Sessions Judge, Thalassery Division for disposal. On appearance of the accused, a formal charge was framed for the above offences after hearing the accused as well as the prosecution and when the said charge read over and explained to the accused, he denied the same and pleaded not guilty which resulted in the further trial of the case during which PWs 1 to 15 were examined from the side of the prosecution and produced Exts.P1 to P14 documents. M.Os 1 to M.O-4(b) series of material objects were identified and marked. No evidence, either oral or documentary, produced from the side of the defence. When the accused was questioned under section 313, he denied all the incriminating circumstances which brought out during the prosecution evidence and he had taken a defence of total denial and stated that he was falsely implicated in the above case as he refused to marry CRL.R.P.No.2222/10 :-3-: PW1. The trial court , on the basis of the available materials and records found that the prosecution has established the guilt of the accused and accordingly he is convicted for the offences under sections 376 and 506(i) of IPC and sentenced him to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.1,00,000/-,(Rs. one lakh only) and in default of paying the fine, to undergo simple imprisonment for a period of 2 years for the offence under section 376 IPC and also sentenced to undergo rigorous imprisonment for one year for the offence under section 506(i) IPC. It was also ordered that the sentence will run concurrently. Set off was allowed. It is specifically ordered that on realisation of the fine amount, the same shall be paid to PW1 being the victim, as compensation. 4. Challenging the above conviction and sentence, at the instance of the accused, an appeal was preferred which was dismissed by judgment dated 30.10.2006 in Crl.A.No.464/2001 of the court of Addl. Sessions Judge, Adhoc-II, Thalassery, confirming the conviction and the sentence imposed against the revision petitioner by the CRL.R.P.No.2222/10 :-4-: trial court. It is the above order of conviction and sentence challenged in this Revision Petition. 5. During the pendency of the above Crl.R.P, Crl.M.A.No.7361/2010 is filed to implead the de facto complainant. It appears that advocate Mr. Sreejith S.R. filed Vakalth for addl.2nd respondent and as he has no objection, the impleading Petition is allowed and the Registry is directed to make appropriate amendment in the cause title. Both the counsel for the Revision petitioner as well as the addl.2nd respondent submitted that during the pendency of the Revision petitioner, the matter has been settled out of court between the accused and the de facto complainant as the de facto complaint is now leading a marital life and she does not want to prosecute the matter further. However, the offences alleged for which the revision petitioner stands convicted and sentenced are not compoundable offences. 6. Now let us consider the contention of the Revision petitioner and the findings of the courts below. Both the trial court as well as the lower appellate court positively found that the prosecution has succeeded in establishing the case CRL.R.P.No.2222/10 :-5-: against the accused and thus held that the accused is guilty of the offence for which he faced the charge. 7. The learned counsel for revision petitioner submitted that the revision petitioner is implicated in the crime due to personal animosity as the revision petitioner declined the request of PW1 for marriage. It is also the contention of the learned counsel that the prosecution case as such cannot be believed because the evidence produced by the prosecution is not reliable and free of doubt. The learned counsel pointed out that the evidence of PW1 cannot be acted upon to convict the revision petitioner since the same is not beyond doubt and her evidence consists of contradictions. It is also the contention of the learned counsel that immediately after the alleged incident, the crime was registered at the instance of PW1 and for the above sole reason the allegation under section 506(i) too will go. It is also the contention of the learned counsel that the sentence imposed against the revision petitioner is unreasonable and disproportionate to the offences alleged against him. 8. On the other hand, the learned Public Prosecutor CRL.R.P.No.2222/10 :-6-: submitted that since two courts have concurrently found the guilt of the accused , no interference is called for. 9. I have carefully considered the contentions advanced by the learned counsel for the revision petitioner as well as the learned Public Prosecutor and also perused the materials and evidence on record. It is relevant to note that at the time of the incident, i.e. on 1.4.95, the victim was only at the age of 14 years. According to PW1, on the date of the incident, the accused forcibly taken her by dragging to the place of incident and laid her on the ground and committed the offence. The above version of PW1 is not acceptable. If PW1 was forcibly dragged to the place of incident, naturally, there will be , at least some minor injuries on her body, but the prosecution has no explanation for the same. There is also no consistent case for the prosecution regarding the alleged place of occurrence. According to PW1, the place of occurrence was on the left side of the railway track, but for creating a false story at the instance PW1, the police shifted the place of occurrence from the left side to right side of the railway track. It is clear from the evidence of PW7 that CRL.R.P.No.2222/10 :-7-: he had guarded the place of occurrence as deputed by PW15, the investigating officer on 3.5.95 at about 12.30 a.m. PW1 pointed out the place of occurrence to the Circle Inspector of Police only on 3.4.95 at 9.30 a.m. So regrading the place of occurrence, the prosecution evidence is not believable. It is also relevant to note that when PW8, the doctor, was examined she had stated that, if the victim was dragged through the area, there would have been injuries on the body of the victim. It is also relevant to note that according to the prosecution, though the incident was on 1.4.95, PW1 informed about the incident to PW2 only on 2.4.95, no explanation is forthcoming from the side of the prosecution as to why one day delay occurred in lodging Ext.P1 and registering the crime. It is also brought out on record that there is no evidence of injury on the private parts of the alleged victim. As the victim was only at the age of 14 years on the date of the incident, even if the sexual intercourse was taken place with the consent of PW1, the accused cannot escape from the liability , but it is a fact to be inferred that still then, PW1 came up with false story that CRL.R.P.No.2222/10 :-8-: she was subjected to rape by the accused which version of PW1 appears to be false in the light of the facts referred above. Thus according to me, the prosecution has miserably failed to establish the case against the revision petitioner beyond reasonable doubt and consequently, the petitioner is entitled to get the benefit of doubt. Both the trial court as well as the lower appellate court miserably failed to consider the above issue and therefore, I am of the view that the judgments of the courts below are liable to be set aside. In the result, this Crl.R.P. is allowed setting aside the judgment dated 30.10.2006 in Crl.A.No.464/2001 of the Court of Addl.Sessions Judge,Adhoc-II, Thalasery and judgment dated 4.8.2001 in S.C.No.17/96 of the court of Prl.Asst. Sessions Judge, Thalassery Division and acquitting the revision petitioner/accused of all the charges levelled against him. The bail bond if any executed by him shall stand cancelled and he is set at liberty. It is made clear that the amount if any deposited by the revision petitioner for complying with the order passed by this court on 13.6.2007 in Crl.M.A. No.6255/2007 and the said amount if detained in CRL.R.P.No.2222/10 :-9-: the trial court, the same shall be released to the revision petitioner on an application in this regard. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE. kvm/-