IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 1142 of 2003() ----------------------------------- SC.202/2001 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK NO.I, MANJERI. .................... APPELLANT/ACCUSED: ---------------------------------- MOHAMMED HANEEFA, S/O. KUNHIMUHAMMED, NAIR PADIKKAL VEEDU, IRINGAVOOR AMSOM, KANTHALLOOR DESOM. BY ADV. MR.P.S.SREEDHARAN PILLAI, C.S. SUNIL. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1142 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Fast Track Court-I, Manjeri in S.C.202/01. It was an offence u/s 376 IPC and the court below convicted the accused and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a compensation of Rs.1,00,000/- to the Prosecutrix. In addition he was also liable to make a fine of Rs.1,000/- with a default sentence of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are: (1)Whether the materials are sufficient enough to hold the accused guilty u/s 376 IPC? (2)Is there anything to interfere with the conviction and sentence passed by court below? Crl. Appeal NO. 1142 OF 2003 -:2:- Points: 3. Heard the learned counsel for the appellant as well as the learned Prosecutor. This is yet another case where the moral fabric of the society is shaken and one does not know who is responsible for this. It is the case of the prosecution that the Prosecutrix, a mother of two children whose husband is employed in gulf country, come forward with an allegation that while she was sleeping in the house of Amina, the accused who is the son of the husband's brother committed rape on her as a result of which she became pregnant and gave birth to a child. The defence is of a total denial. 4. According to the Prosecutrix the incident took place somewhere in the last week of February in 2000. She would depose that Amina's husband was also away at gulf country and she used to give company for Amina. On the eventful day while she was feeding her child the accused who was also sleeping in the same house came and ravished her against her consent. When this was reported to Amina she slipped away and the members of the family of her husband also directed Crl. Appeal NO. 1142 OF 2003 -:3:- her to keep quiet and the understanding was not to inform the husband and in the meanwhile to make an attempt to abort so that the matter can be amicably settled out. But it is her version that when she did not have her regular periods after three or four months she had informed the mother-in-law and the mother-in-law along with Amina and the mother of the accused advised her not to reveal it to anybody and thereafter called the mother of the Prosecutrix and requested her to make arrangements to abort the pregnancy. When the mother had taken her for the purpose of abortion and as they have to visit one or two doctors, the mother-in-law along with Amina and others came to the house and abused her and told her that she has been impregnated by somebody else and unnecessarily the blame is put on the innocent grandson. The way in which she had given her evidence would show that all is not well with her evidence. It has to be remembered that she is a mother of two child and her husband is serving in gulf country sweating his life for the welfare of the family. That husband has never been informed about the alleged indecent Crl. Appeal NO. 1142 OF 2003 -:4:- act of the accused. Even the mother-in-law was not told by the Prosecutrix for a period of two to three months. Her evidence in the cross examination would further show that in spite of these incidents having taken place she regularly used to go to the house of Amina and the accused was also a person who was regularly coming to that house. She did not have any fear or any apprehension about the conduct of a person who is alleged to have raped her against her will in the month of February. Normally this would not to be a human course of conduct. So many other questions were put to her regarding the way in which the sexual act taken place but it is important to note that she would depose that she did not have regular period of mensuration and some times it takes two to three months and as she had fear that her husband will divorce her, she did not told this to anybody. This is the evidence available from the side of the prosecutrix. 5. PW2 is her mother. Her evidence is only hearsay and she has absolutely no direct knowledge. She was able to find out that her daughter was pregnant only at a belated Crl. Appeal NO. 1142 OF 2003 -:5:- stage. PWs.3 and 4 are the alleged independent witnesses who have turned hostile to the prosecution and therefore it does not help the prosecution at all. PW5 is the Doctor who had examined the lady and it is reported that the lady was carrying at that time. PW6 is the Doctor who had certified that there was nothing to hold that the accused was incapable of performing any sexual act. PWs.7, 8 and 9 are all official witnesses and DW1 is a neighbour examined to prove that the prosecutrix was not staying in the house of Amina. She is also a relative. It is also deposed by her that the accused had not come there at all. 6. The legal proposition so far as it relates to a rape case is concerned is that even the uncorroborated evidence of the prosecutrix can be made use of to enter into a conviction provided it is absolutely trustworthy. It is also held by the Apex Court that when we are taking into consideration the uncorroborated evidence of a prosecutrix it is always desirable to look into the medical evidence also so that the Courts do not commit any error. So far as the medical evidence in this Crl. Appeal NO. 1142 OF 2003 -:6:- case is concerned the alleged rape is said to have taken place in the month of February,2000. The lady is examined by the doctor in the month of November, 2000. At that time she was carrying and her pregnancy was 36 weeks old. So the medical evidence as such will not prove regarding any forcible act. It is true that the husband was not in the Station and therefore there is no access for the husband to the wife and the lady has become pregnant. It is seen from paragraph 11 of the judgment of the trial court that the accused had approached the Family Court for a declaration that he is not the father of the child delivered by the prosecutrix. In that matter there was a DNA test. In paragraph 11 it is extracted by the learned Judge that “At the time of final hearing, both sides have submitted that the DNA test result is in the negative as far as the accused is concerned.” Therefore there is a positive evidence in this case to show that the accused is not responsible for the pregnancy of the lady. A solitary act of intercourse is alleged and it is the definite case of the prosecutrix that she became impregnated by the said act. Crl. Appeal NO. 1142 OF 2003 -:7:- When the DNA test proves that the accused is not responsible then it is necessarily to be held that the scientific evidence is against the prosecutrix. So the Court below even thereafter considered the matter in full to find out whether there was an intercourse with consent or without consent. I think it will take us nowhere for the reason that the medical evidence has shattered the case of the prosecutrix. So under such circumstances the uncorroborated evidence of the prosecutrix cannot be used against the accused to arrive at a conviction. Therefore necessarily the accused has to be given the benefit and is to be acquitted. In the result the Crl.Appeal is allowed and the conviction and sentence passed against the accused u/s 376 IPC is set aside he is found not guilty of the offence u/s 376 IPC and is acquitted and set at liberty forthwith. M.N. KRISHNAN, JUDGE. ul/-