IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 CRL.A.No. 478 of 2003() --------------------------------- SC.63/2000 of ADDL. DISTRICT & SESSIONS (ADHOC) FAST TRACK COURT-I, MANJERI. .................... APPELLANT/ACCUSED --------------------------------- P.T. MUHAMMED, S/O. KUNHIMOIDEEN, PANATHODUVIL HOUSE, TRIPRANGODE AMSOM AND DESOM. BY ADV. MR.M.S.UNNIKRISHNAN RESPONDENTS/CLAIMANT -------------------------------------- STATE OF KERALA, REP.BY CIRCLE INSPECTOR OF POLICE, TIRUR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 478 OF 2003 = = = = = = = = = = = = = = = Dated this the 16th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge(Adhoc), Fast Tract Court-I, Manjeri in S.C.63/00. The accused was charge sheeted by the police for the offences punishable u/Ss.366A and 376 IPC and the Court convicted the accused u/s 363 and 511 of 376 IPC. He was sentenced to undergo imprisonment for seven years under both the sections and to pay a fine of Rs.1,000/- u/s 363 and Rs.2,500/- u/s 511 of 376 IPC. Set off was also allowed. The Court though held him guilty u/s 511 of 376, punished him u/s 376 IPC. It is against that decision the accused has come up in appeal. 2. It is the case of the prosecution that on 10.2.97 at about 4 p.m. the accused with the intention of committing rape on the minor girl enticed her under the pretext that he will marry her and that she was taken in an auto rickshaw Crl.A. 478 OF 2003 -2- bearing Reg.No. KL-10C 1908 and thereafter in a goods auto rickshaw and took her to a vacant land and thereafter he had forcible sexual intercourse with her and thereby has committed offences u/Ss.366A and 376 IPC. Prosecution had examined PWs.1 to 17 and Exts.P1 to P15 and MO1 were marked. 3. The points that arise for determination in this appeal are: (1) Whether the prosecution has succeeded in proving that the accused has committed the offences alleged u/Ss.363 and 511 of 376 IPC? (2) Whether the conviction and sentence passed by the Court below calls for any interference? Points: 4. At the out set I may like to point out that the parties settled the matter before the trial commenced and it has resulted in total confusion as it was a non-compoundable offence. The evidence can be briefly referred to as follows. 5. PW1 is the father's brother of the girl who is Crl.A. 478 OF 2003 -3- suspected to have been kidnapped and raped. He had given Ext.P1 statement. When examined as PW1 he had turned totally hostile to the prosecution and he even pleads that he does not know the accused. 6. PW2 is the alleged victim. According to her to start with she had gone to the house of her aunt in connection with the Perunnal celebrations. She would depose that the accused had not taken in her in an auto rickshaw. But subsequently would say that while she was returning from her aunt's house the accused caught hold of her hand and put her in an auto rickshaw driven by a third person and thereafter they got into another goods auto rickshaw and she is not able to say anything further and would state that she was dropped back in the house by the accused. She was declared as hostile and was confronted with 161 statement which was marked as Ext.P3 and would say that what she has stated so before the police. But curiously no question thereafter was put to her to what had happened. She had spoken about the dresses being handed over. She would say she was brought back. PW3 is Crl.A. 478 OF 2003 -4- the mother. The mother would say that she was told by the victim that she had been harassed by the accused. She would further say that she had not told her that the accused had raped her. In the cross-examination she would say all her information are only hearsay information. 7. PW4 is the brother who is said to have accompanied the victim along with other sisters and he would depose that he saw the accused behind them and he was talking to the victim and they were asked to go away and he would further depose that the accused had told them that he will drop back the victim in the house. In the cross-examination he would submit that he thought the girls will be coming behind them. 8. PW5 is the auto rickshaw driver. He had not supported the prosecution. PW6 who was examined to prove that the auto rickshaw has been taken into custody had also turned hostile to the prosecution. 9. PW8 is the doctor who had certified that the accused is not incapable of performing any sexual act. PW9 is the Doctor who had examined the girl. She stated that no Crl.A. 478 OF 2003 -5- external injury was noted and she was on her second day of periods. She would further submit that she is unable to form any opinion that the girl was subjected to sexual intercourse. PW10 is the person who had produced the dresses. So these are all materials really available to substantiate the case against the accused. 10. Now I will try to consider the case of rape. I am at a loss to understand how the Court below entered into a case of rape even when the prosecutrix does not support that case. In order to succeed, the prosecution should have established its case that the girl was taken in a auto rickshaw, taken to a vacant land from where the alleged act is said to have been taken place. Even a question is not put in the chief examination except for stating that something is stated by her in 161 statement. 161 statement cannot be a substitute for proof for the reason that it can be utilized for contradiction or corroboration. The evidence does not lend support to the prosecution case regarding any sexual act or an attempt to commit any sexual act. Even PW2, the prosecutrix, does not Crl.A. 478 OF 2003 -6- say that there was any rape or attempt to commit rape. I am afraid whether a Court of law can arrive at a decision of an attempt to commit rape basing upon a 161 statement. So I set aside the finding with respect to the conviction u/s 511 of 376 IPC. 11. Now comes the question of 366A. Fortunately the Sessions Judge held that S.366A will not lie as the basic ingredients are lacking. But she has convicted the accused u/s 363. Kidnapping is defined u/s 361 IPC. Whoever takes or entices any minor under 18 years of age in case of a female out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 12. Now the two words used u/s 361 are “takes or entices”. That has been the subject matter of judicial pronouncements and the Hon'be Apex Court in the decision reported in T.D. Vadgama v. State of Gujarat 1973 SC 2313 had considered this question. The Hon'be Apex Court Crl.A. 478 OF 2003 -7- held that, “The two words ”takes” and “entices”, as used in Section 361 IPC are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in S.361, IPC. But if the guilty party has laid a foundation by inducement, allurement or threat etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian' custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him.” 13. In the decision reported in State of Kerala v. Rajayyan 1996 Crl.L.J. 145, this Court held that in order to attract S.361 of the IPC taking or enticement of any minor girl Crl.A. 478 OF 2003 -8- under 18 years of age without the consent of guardian has to be established. 14. Now what are the materials available is the evidence of PW2, the victim and PW4 the brother. PW2 would say in the chief-examination that the accused had caught hold of her hand and put her in an auto rickshaw but I do not find any such case for her before the police when she was questioned. She has got a different case that while they were coming back from the aunt's house she was called by the accused and she was enticed and stated that he will marry her and on account of that promise she had accompanied him. So the case of a forcible taking her was not there before the police. It is to be understood that she is a girl who had totally given a go by to her case when she entered the box and stated at one point of time that she was not taken in an auto rickshaw at all. But later she changed her version and subsequently she may state some other things before police. At the time of examination she was capable of understanding the consequences of what she says. So totally different story Crl.A. 478 OF 2003 -9- projected at different stages are the materials available before the Court and her version is not supported by PW4 for the reason what he had stated before the Court is that the accused has promised her to bring her back to the house. The prosecution story is she was taken in an auto rickshaw and after some time she was taken in a goods auto rickshaw driven by the accused to a vacant land where the person has promised her to marry and thereafter had the sexual act with her and they went to a hotel and from where she was brought back to the house by the Investigating Officer. But none of the witnesses supported this case. So we are only having the evidence of the victim regarding forcibly taking her in an auto rickshaw. She does not speak anything about any promise and the evidence given is against what she had stated before the police. Under such circumstances whether the Court can believe that evidence is a matter which requires consideration. The whole set of witnesses had turned hostile to the prosecution including the victim and in such a situation it has to be stated that the uncorroborated evidence of PW2 would Crl.A. 478 OF 2003 -10- be dangerous if accepted and it may result in injustice. It has to be stated that something was transpired after the incident and before trial and that had resulted in the confusion which had ultimately led to the hostility of all the witnesses and in a such situation this Court can only give the benefit of doubt to the accused by acquitting him. 15. In the result the appeal is allowed and conviction and sentence passed by the learned Sessions Judge u/Ss. 363 and 511 of 376 is set aside and the accused is found not guilty of the offences u/Ss.511 of 376 or 376 and he is set at liberty. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 478 OF 2003 -11- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 478 OF 2003 = = = = = = = = = = = J U D G M E N T 16th July, 2009