IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 CRL.A.No. 84 of 2000 SC.181/1994 of ADDL.SESSIONS COURT, THALASSERY .................... APPELLANTS/ACCUSED 1 TO 4: 1. THAIKKANDY FAROOQE, S/O MUHAMMED KUNHI SHANTIMAIDAN, NEERCHAL KANNUR CITY 2. ARAYALPURATHU ASHRAF, S/O HAMEED SHANTIMAIDAN, NEERCHAL KANNUR CITY. 3. MANIKKOTH KALATHIL UMMER, S/O ERHAB THAYYILEVALAPPU, AADI KADALAYI EDAKKAD AMSOM 4. KUNNONTAVIDA MUHAMMADALI, S/O ABDURAHIMAN THAYYIL KADAPPURAM KANNUR CITY BY ADV. SRI.K.V.SOHAN RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2008, ALONG WITH CR.A.NO.96 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.Nos.84 & 96 OF 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January 2008 JUDGMENT These two appeals are at the instance of the accused, five in number, who have been convicted and sentenced by the trial court. While appellants in Crl.A.84/00 (accused Nos.1 to 4) have been found guilty under Section 376 (2) (g) IPC and convicted and sentenced thereunder to undergo rigorous imprisonment for 10 years each and also to pay a fine of Rs.50,000/- each and in default to undergo imprisonment for a further period of two years, the appellant in Crl.A.96/00 (accused No.5) was found guilty under Section 109 read with Section 376 (2) (g) IPC as well as under Section 506(1) IPC. He has been convicted and sentenced under Section 109 read with Section 376 (2) (g) IPC to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs.50,000/- and in default to suffer imprisonment for two years. He has been further sentenced to undergo rigorous imprisonment for two years for the offence under Section 506(1) IPC. The sentences against the appellants are directed to run concurrently. The trial court further directed that on realisation of the fine Crl.A.Nos.84 & 96 OF 2000 :: 2 :: amount from the accused, it shall be paid to PW1, the defacto complainant as compensation under Section 357(3) of the Code of Criminal Procedure. 2. The prosecution case as initially registered by the Police may be briefly noticed. On October 6, 1993 at about 4 p.m., accused Nos.1 to 4 had committed rape on PW1 inside St. Angelo's Fort at Kannur when she had gone there for sight seeing along with her husband who is none other than accused No.5 in the case. 3. Accused No.5 had married PW1 sometime in April 1992. He was employed in a hotel at Bangalore. They hailed from Kasaragod district. According to PW1, she and her husband had reached Kannur in the morning on October 6, 1993 on their way to Bangalore and had taken a room in Rainbow lodge. After checking in in the lodge, her husband had gone out informing her that he had to meet a friend of his who owed him Rs.600/-. He further told her that if he could not meet his friend and collect the money, one of her gold ornaments might have to be sold. Crl.A.Nos.84 & 96 OF 2000 :: 3 :: According to PW1, her husband had come back after sometime and they had lunch together from a hotel. Her husband suggested that they could visit St.Angelo's Fort in the meanwhile before boarding the bus to Bangalore which was scheduled to leave at 8 p.m. It was thus that PW1 had accompanied her husband (accused No.5) to Angelo's Fort. 4. In the First Information Statement (Ext.P1), PW1 stated that she and her husband had gone inside the Fort and were watching the sea and other sights. (She was seeing the sea for the first time in her life). At that time, some youngsters came towards them. One of them forcibly restrained her husband while others forced her to lie down on the floor. She was raped in front of her husband after lifting her under skirt. According to PW1, accused No.2 committed rape on her first. Thereafter, A1, A3 and A4 raped her. She could identify the accused by name also, since they were addressing each other by name. She further stated that while she was being raped by one of the accused, others were holding her husband in restraint. The accused had Crl.A.Nos.84 & 96 OF 2000 :: 4 :: been threatening her husband that he would be killed, if he raised any alarm. Therefore, her husband did not raise any protest because of fear of death. PW1 further stated in Ext.P1 FIR that she came back to the lodge along with her husband. She had a bath and changed her dress. 5. A perusal of Ext.P1 shows that Kannur City Police had registered the above crime (Crime No.151/93) at 9 p.m. on October 6, 1993. It had come out in evidence that PW1 was examined by PW3 the Assistant Surgeon attached to the District Head Quarters Hospital, Kannur at about 10.15 p.m. on a requisition sent by the police in this regard. Ext.P2 certificate was prepared by PW3 after examining PW1. It is also on record that PW15, the Circle Inspector of Police who took up the investigation on the next day viz. October 7, 1993 had arrested accused Nos.1 to 4 who were named by PW1 in Ext.P11, First Information Report on the same day itself. After completing the investigation, the charge against accused Nos.1 to 4 was laid before the court on August 31, 1994. Crl.A.Nos.84 & 96 OF 2000 :: 5 :: 6. But it appears that in May 1995 PW1 had filed a complaint before the Judicial Magistrate of First Class, Kannur alleging that her husband (accused No.5) was also involved in the crime and he had in fact abetted the offence of rape apart from intimidating and threatening her. The learned Magistrate had granted permission to the Police to conduct further investigation under Section 173(8) of the Code. PW17 had conducted further investigation thereafter (from October 1994 onwards) and arraigned accused No.5 also in the case for offences under Sections 109 read with Section 376 (2) (g) and 506 (1) IPC. The case was later committed to the court of Session for trial. 7. The prosecution examined PWs 1 to 19 and Exts.P1 to P23 and M.O.1 to 13 were marked on its side. Though no witness was examined on the side of defence, Exts.D1 and D2 series were marked. Ext.X1 series were also marked in the case. As mentioned earlier, the learned Sessions Judge found the accused guilty of the charge levelled against them and they were accordingly convicted and sentenced. Crl.A.Nos.84 & 96 OF 2000 :: 6 :: 8. It is contended by learned counsel appearing for the appellants/accused that the prosecution had totally failed in proving the charge against the accused. Not only that the testimony of PW1, the prosecutrix, was wholly inconsistent and totally against the version given by her in Ext.P1 First Information Statement, the prosecution case in its entirety was bristled with contradictions and incongruities. It is also contended by the learned counsel that the investigating agency had conducted the investigation in a most inept and unsatisfactory manner and the real culprits had been allowed to escape while they had been roped in without any basis. 9. At the outset, it has to be mentioned that the prosecution case had taken a bizarre turn and twist sometime after the police had filed the charge sheet against accused Nos.1 to 4 after “completing” the investigation. As mentioned earlier, PW1, the prosecutrix had reportedly filed an application before the Judicial Magistrate of First Class, Kannur as C.M.P.1195/95 apparently praying for further investigation in the case alleging that her Crl.A.Nos.84 & 96 OF 2000 :: 7 :: husband (accused No.5) was also involved in the crime. Accordingly, pursuant to the direction issued by the court, PW16 had conducted further investigation. 10. PW1 had appeared before the committal court and her statement was recorded under Section 164 of the Code of Criminal Procedure. The said statement is on record as Ext.X1. In the said statement the prosecutrix had stated that she and her husband reached Kannur in the morning from Kasargod on their way to Bangalore. They took a room in a lodge. Her husband went out informing her that he had to meet a friend who owed him Rs.600/-. He came by around noon. He suggested that they would visit St.Angelo's Fort after lunch since the Bus to Bangalore was only at 8 p.m. She had set out from the lodge along with her husband in the afternoon. They had proceeded to St.Angelo's Fort after taking lunch from a hotel in town. When they were about to get into an autorikshaw, her husband, who had been seen talking earlier to a stranger, had asked that man also to accompany them in the auto. After reaching the Fort they Crl.A.Nos.84 & 96 OF 2000 :: 8 :: went inside a small room in the fort. Her husband forced her to lie down on the floor and raped her in the presence of the stranger who had been accompanying them. Though she pleaded to her husband to desist from doing so, he did not yield to her request. Thereafter, the stranger also raped her. Shortly thereafter another young man came inside. He pushed her towards the wall and raped her in a standing position after holding her neck. Another elderly person who came inside immediately thereafter, also raped her in a standing position. The prosecutrix further stated that immediately after this, she came out from the small room along with her husband. While walking out, her husband threatened her that if she revealed this incident to anyone else, she would be killed and thrown into the sea. As soon as they got out, four people came towards them from under a bridge nearby. One of them asked where her husband was. She pointed out her husband to them. She was further asked whether the ornaments on her neck were genuine gold. The prosecutrix replied in the negative. One of the four Crl.A.Nos.84 & 96 OF 2000 :: 9 :: pulled her towards the pump house nearby. He made her to lie down on her back and after lifting her saree and removing her underwear she was raped. The other three people came one after another. They also raped her. The last person had raped her in a standing mode. 11. When she came out of the pump house, an autorikhaw came there. When she tried to get into the auto, two of the assailants prevented her. But she still managed to get in along with her husband. At that time those two persons also got into the auto. PW2's evidence corroborated the above version. PW2 stated that he saw PW1 boarding an auto near the Fort. He also stated that he had seen accused No.2 and 3 also boarding the same auto. 12. PW1 stated that they came back to the lodge which was situated near the bus stand. She went to her room. The two persons who had accompanied them refused to leave the lodge. Her husband therefore requested the manager of the lodge to inform the police. Shortly thereafter the police came to the lodge Crl.A.Nos.84 & 96 OF 2000 :: 10 :: and questioned her. Her husband told her that the matter should be settled after collecting Rs.1,00,000/-. But she refused to agree with the proposal. 13. I have narrated the statement given by the prosecutrix under Section 164 in Ext.X1 in detail only to get a clear picture of the twist and turn that developed later in the prosecution case. The case of PW1 in Ext.X1 was undoubtedly at variance from her version given in Ext.P1 in which she had not referred to the former part of the incident at all. In other words, in Ext.P1, the prosecutrix had not spoken anything about the alleged rape by her husband and three others inside the fort. What she had stated in Ext.P1 was that the four accused in this case had raped her one after the other and that during this time, her husband was restrained also. She had further stated that after the incident she had gone back to the lodge along with her husband and had a bath and changed her clothes. Ext.P1 statement was recorded at 9 p.m. Ext.P1 reveals that the prosecutrix had reported at the police station and given the statement. Crl.A.Nos.84 & 96 OF 2000 :: 11 :: 14. When the prosecutrix was examined in the case as PW1, she had, in addition to the version given by her in Ext.P1, further narrated the earlier part of the incident also as spoken by her in Ext.X1. She stated that after her husband (accused No.5) raped her first, three others did so, in succession. She came out of the small room along with her husband and they crossed a small bridge outside the Fort. Then the four accused in this case came towards them. In her deposition, PW1 stated that she was pulled by one of the four assailants towards the small passage leading to the pump house. While in Ext.X1 statement, PW1 had stated that she was raped by the four people inside the pump house, in the deposition before the court her version was that she was raped by the four assailants, one after the other, in the small passage outside the pump house. She further stated that the first assailant who pulled her to the small passage, had removed his 'mundu' and spread it on the floor and laid her on that. Thereafter, he caught hold of her hand and closed her mouth and raped. After the first assailant left, the other three people came Crl.A.Nos.84 & 96 OF 2000 :: 12 :: and committed rape on her. According to PW1, the fourth person had raped her in a standing position pushing her towards the wall. She stated that she “climbed down the steps” and found an autorikshaw outside. When she attempted to board the auto, two of the assailants prevented her from doing so. She stated that she requested the auto driver to take her to the bus stand somehow. She managed to sneak into the auto evading the assailants. But at that time, two of them also got into the auto along with her husband. 15. Learned Public Prosecutor while stoutly defending the order of conviction passed by the learned Sessions Judge, contends that the prosecutrix had stuck to her version in Ext.P1 against the five accused involved in this case, though she had also spoken about the earlier part of the incident. He points out that the prosecutrix had identified the four assailants accurately. It is further contended by the learned Public Prosecutor that the mental condition of the prosecutrix immediately after the incident was such that she might have been totally scared of her husband Crl.A.Nos.84 & 96 OF 2000 :: 13 :: and it was therefore that she had refused to incriminate him in the case initially. It was probably for that reason she had not divulged anything to the police about the former part of the incident involving her own husband and three others. 16. It is the contention of the learned Public Prosecutor that the fact that the prosecutrix was examined by PW3, the doctor, immediately after the alleged incident will substantially prove the prosecution case. He submits that the prosecutrix stated before the doctor as recorded by him in Ext.P2, that Ashraf (accused No.2) and three others had raped her. He points out that the doctor had examined the prosecutrix at about 10.15 p.m. shortly after Ext.P1 First Information Statement was recorded by the police. As regards the slight shift in the scene of occurrence, it is contended by the learned Public Prosecutor that the prosecutrix who hails from Kasargod, a backward district, was visiting the Fort for the first time. Understandably she did not have a proper idea of the geography of the place. It is further contended by the learned Public Prosecutor that in her confused mental condition Crl.A.Nos.84 & 96 OF 2000 :: 14 :: she might have committed a mistake in describing the scene of occurrence to the police accurately. In short, the learned Public Prosecutor contends that the appellants were rightly found guilty by the trial court for the heinous crime committed by them in broad day light. 17. As has been noticed already, the police had laid charge sheet against accused 1 to 4 on August 31, 1994. The prosecutrix while she was being examined in court as PW1, had stated that she had gone back to her matrimonial home along with her husband on October 8, 1993, two days after the incident. Her husband had gone to Bangalore to join duty after 10-15 days. According to PW1, she had gone back to her parental home thereafter. Though her husband had come to her house after three months to take her with him, she had refused to accompany him. The prosecutrix asserted that after 2-3 months of the incident she had informed her relatives that her husband was also a culprit in the crime. PW1 admitted that a lady lawyer who was associated with a Women's organisation had come to her Crl.A.Nos.84 & 96 OF 2000 :: 15 :: residence after 3 - 4 months of the incident and discussed the matter with her and her relatives. A complaint was given to the Deputy Superintendent of Police after such discussion. She further stated that on January 5, 1994, she had given a complaint to the Superintendent of Police, Kannur alleging that her husband was also involved in the crime. 18. In this context, it may also be noticed that the prosecutrix had stated that she was questioned by the Superintendent of Police in the presence of the accused. At that time, she had identified the accused. Curiously, the police had conducted a T.I. parade nearly four years after the incident. I will refer to some other curious aspects of the process of investigation a little later. 19. It is strenuously contended by learned Public Prosecutor that Ext.P1 statement of the prosecutrix before the Police immediately after the incident has to be believed and accepted. He further contends that the evidence of PW1 which was in conformity with the above statement is also liable to be accepted. Crl.A.Nos.84 & 96 OF 2000 :: 16 :: It is true that Ext.P1 statement was recorded by the Police at 9 p.m. on the alleged day of the incident. According to the prosecutrix, she was raped by the assailants at about 4 p.m. and thereafter. Even at the risk of repetition, it may be stated once again that the specific case of the prosecutrix in Ext.P1 was that the accused had raped her inside the Fort. She had stated that one of the assailants had caught hold of her husband forcibly without allowing him to move while others had forcefully pushed down her to the ground and laid her on the floor. Accused No.2 had raped her first. She had further stated that while one assailant after the other raped her, one of them by turn had been restraining her husband from moving. 20. PW1 had a specific case that police had come to the lodge immediately after she reached there. She had asserted that the Dy.S.P. had come to the lodge. But the investigating agency stuck to the stand that PW1 had gone to the police station and lodged Ext.P1 statement. Curiously, PW1 had a further case that she had told the police that there were eight assailants. She Crl.A.Nos.84 & 96 OF 2000 :: 17 :: further asserted that she had told the doctor that there were eight assailants. 21. It is on record that the prosecutrix was questioned by the police under Section 161 of the Code of Criminal Procedure on the next day of the incident viz. October 7, 1993. One of the contradictions (Ext.D1) which was marked in the course of her cross examination was to the effect that she had stated before the police that she and her husband could not enter the Fort since the gate was closed. Another version given by her to the police was that six persons had come towards them while they were walking back from the closed entry gate [Ext.D1(a)]. The other contradiction was with regard to the scene of occurrence as revealed in Ext.P1. While she was examined before the court, the prosecutrix had stated that she was raped by four accused in the passage leading to the pump house outside the Fort. But in Ext.D1(c) she had stated that she was raped in side the fort. Yet another contradiction marked in Ext.P1 statement was with regard to her version given to the police that while the assailants Crl.A.Nos.84 & 96 OF 2000 :: 18 :: one after the other were raping her, the others were restraining her husband by force telling him that he would be put to death. [Ext.D1(d)] 22. Ext.P1 reveals that the prosecutrix had named the four assailants (A1 to A4) to the police shortly after the incident. She had stated before the Doctor (PW3) that one Ashraf (A2) and three others had raped her. Thus, it is contended by the learned Public Prosecutor that the prosecution case cannot be disbelieved, notwithstanding the inconsistencies and contradictions in the case. But in my view, a close scrutiny of the entire prosecution case with specific reference to the glaring omissions and contradictions, is warranted. 23. In this context, I am constrained to make some comments on the manner in which the investigating agency had carried out investigation in this case. When questioned under Section 161 on the next day of the incident, if the prosecutrix mentioned about the involvement of six or more assailants, why was it that the investigating agency did not choose to make any Crl.A.Nos.84 & 96 OF 2000 :: 19 :: attempt to trace out the drivers of the two autorikshaws, in which the prosecutrix, her husband and one of the assailants had gone to the Fort and later come back from the Fort after the incident? There is not even a whisper in the evidence of the investigating officer with regard to the steps, if any, taken by him to trace out the other assailants as alleged by the prosecutrix. Still further, there is no explanation why the investigating agency had failed to either register another crime against the other assailants who had allegedly raped the prosecutrix inside the Fort at the first instance. It is not also seen why no additional report was filed by the police against the other assailants after questioning the prosecutrix on the next day of the incident. As mentioned earlier, in the said statement the prosecutrix had said that she had been raped by more than four persons. Stranger still, the police had conducted a T.I.Parade more than four years after the alleged incident and that too in the course of Sec.173(8) investigation pursuant to a petition filed by the prosecutrix in May 1995. It may be noticed that by this time the police had already charge Crl.A.Nos.84 & 96 OF 2000 :: 20 :: sheeted the four accused in this case. Why was it then the police had chosen to conduct a T.I.parade? There is no answer to this query. Obviously, the investigating agency had conducted a totally shabby and inept investigation. I refrain from making any further observation at this stage. 24. The trauma and the