Allowed

Muhammed Shafi v. the State of Kerala

Kerala HC6 Jan 2016CRL.A/842/2009

Case brief

AI extract

What is this about?

This criminal appeal challenged a conviction under Section 376 IPC. The High Court found the victim's testimony doubtful due to an unexplained delay in the FIR, contradictions in her statements, and inconsistencies regarding her conduct after the alleged incidents. The court accepted the defence of consent and acquitted the appellant.

What did the court decide?

Appellant acquitted under Section 386(b)(i) Cr.P.C.; conviction and sentence set aside; appeal allowed.

Muhammed Shafi Vs the State of Kerala — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.UBAID

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WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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CRL.A.No. 842 of 2009 (A)

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SC 77/2009 of ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI ==============

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APPELLANT/ACCUSED:

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MUHAMMED SHAFI, S/O. MAMMU THAYYILKANDI HOUSE, PATTARPARAMBA MALAPPURAM DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENT/STATE:

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THE STATE OF KERALA THE SUB INSPECTOR OF POLICE, THIROORANGADI POLICE STATION- THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P. UBAID, J.

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Crl.Appeal No.842 of 2009 ---------------------------------------

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Dated this the 6^th day of January, 2016

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JUDGMENT

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The appellant herein challenges the conviction and sentence against him under Section 376 IPC. The victim of offence, a lady aged 20 years at the time of incident, used to do some domestic works in the house of the accused in the absence of his wife. On 1.1.2008, the victim made a complaint alleging that she was raped by the accused on 07.12.2007. The police registered a crime on the said complaint, and after investigation, submitted final report in court. The appellant faced trial before the learned III Additional Sessions Judge, Manjeri, in S.C.77/2009. He pleaded not guilty to the charge framed against him under Section 376 IPC. The prosecution examined 11 witnesses including the victim of offence, and proved Exts.P1 to P9 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence of consent. No oral evidence was adduced in defence by the accused. However, Exts.D1 and D2 contradictions in the

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Crl.Appeal No.842 of 2009

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statements of PW2 and PW9 were marked. On an appreciation of the evidence, the learned trial Judge found the accused guilty under Section 376 IPC. On conviction he was sentenced to undergo rigorous imprisonment for four years, and to pay a fine of Rs.50,000/-, by judgment dated 4.5.2009. Aggrieved by the

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said judgment of conviction, the accused has come up in appeal.

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The points mainly urged by the appellant in defence are,

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i. Inordinate and unexplained delay in FIR, and

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ii. Consent for sexual intercourse as part of an illicit affair between the accused and the victim.

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PW9 is the victim of offence. To prove the alleged

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incident of rape, there is no other evidence than that of the complainant (victim). The medical evidence adduced by the prosecution will not, in any manner, help the prosecution, because the complaint came much after the alleged incident of rape. So, the question is whether the evidence given by the victim is acceptable and believable without corroboration, or whether the said evidence inspires confidence in the mind of the court.

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Crl.Appeal No.842 of 2009

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In evidence, the victim developed a case of rape on two occasions. Her evidence is that she was raped by the accused for the second time on 07.12.2007 at his residence when she was engaged in household works in the absence of his wife. The first incident of rape happened about one month ago. This means that she might have been raped by the accused in the first or second week of November, 2007. There is no such allegation of rape in November, 2007, in the Ext.P7 complaint. The victim has no explanation for such a very material omission in the complaint. Her evidence is that she was overpowered by the accused, while she was doing some household works in the kitchen. She was dragged to the dining hall where she was subjected to sexual intercourse with force and against her consent. If the allegation as regards the first incident is true, it requires explanation why the victim again went to the house of the accused for household works, and how she happened to be raped again on 07.12.2007. Here assumes the importance of the defence of consent raised by the accused.

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The second incident happened on 07.12.2007, but the

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Crl.Appeal No.842 of 2009

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Ext.P7 complaint came only on 01.01.2008. The complaint does not contain any reason for the long delay. Of course, it is well settled that delay in such cases can well be explained by the prosecution, but the explanation offered by the prosecution must be satisfactory and convincing. As regards the first incident, the explanation given by the complainant is that she did not make complaint only because the accused had made a threat that he would obstruct her sister's marriage. She stated in evidence that the sister's marriage was conducted on 24.11.2007. If so, there is no explanation why she did not immediately make a complaint, after the sister's marriage. If the first incident was in fact an incident of rape, she has no explanation why she again went to the house of the accused for household works, and how she happened to be again raped on 07.12.2007. As regards the delay after 07.12.2007, the case of the complainant is that there ensued a mediation at the instance of persons including the Panchayath President, and she did not make complaint only because the accused had agreed to marry her. She even stated that an agreement was executed. It is not known what happened

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Crl.Appeal No.842 of 2009

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to that agreement, or why it was not produced before the police. It is really strange that the lady waited for weeks with the hope that she would be married by the accused, who has wife and four children. Her explanation, that she waited on the belief that such a person would marry her in terms of the mediation settlement made at the instance of the local Panchayath President and others, is quite unbelievable. This also indicates that the alleged intercourse was in fact consensual.

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The evidence of PW9 is that her dress was torn off in the first incident in November, 2007, and it was the very same dress she had worn on 07.12.2007. It is not explained why she continued to use the torn off dress till 07.12.2007. It is also not known what happened to the said dress. Such a dress material is not seen produced in court. I find that the delay in FIR in this case stands not properly and convincingly explained. This delay of weeks gives an indication that the alleged intercourse was consensual.

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Ext.D2 is the contradiction in the statements given by the victim under Section 161 Cr.P.C. This contradiction stands

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Crl.Appeal No.842 of 2009

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proved in evidence. The victim has no explanation why or in what circumstance, she made such a statement that she had been in love with the accused, and that she had intercourse with him on many occasions. Here assumes the importance of the defence projected by the accused, that the alleged intercourse was fully consensual. Even otherwise I find, on a perusal of the entire evidence, that the victim had been in love with the accused for sometime, and the alleged intercourse happened only as part of the illicit affair. Had the first instance been an instance of rape, the victim would never have gone to the house of the accused again for household works. She continued her works there, she says that she was again raped on 07.12.2007, and strangely enough she waited for weeks with the hope that the accused would marry her. She stated that an agreement was executed in terms of the mediation at the instance of respectable persons. Such persons were not examined by the prosecution during trial. It is not known what happened to the said agreement. It is really unbelievable that the lady believed that the accused, having wife and four children, would marry her.

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Crl.Appeal No.842 of 2009

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What is probable is that she had illicit and unholy connections with the accused for some time, she subjected herself to him with full consent, she later compelled him to marry her, and when he retracted, she made a complaint alleging rape. I find that the whole prosecution case is really doubtful, and I find that the defence case of consent is acceptable. In such a situation, the conviction made by the trial court against the accused is liable to be set aside, and the appellant is entitled to be acquitted.

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In the result, the appeal is allowed. The appellant is found not guilty of the offence under Section 376 IPC, and he is acquitted the said offence in appeal under Section 386(b)(i) Cr.P.C. Accordingly, the conviction and the sentence against him under Section 376 IPC in S.C.No.77/2009 of the court below will stand set aside. The appellant will stand released from prosecution, and the bail bond, if any, executed by him will stand discharged.

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Sd/P. UBAID, JUDGE

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P.A. to Judge

Muhammed Shafi v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Muhammed Shafi v. the State of Kerala

Case brief

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What did the court decide?

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