Hyderabad High Court allowed appeals of three accused challenging their conviction and sentence for rape, kidnapping, and intimidation under SC/ST (PoA) Act and IPC, acquitting them due to contradictions in victim's testimony and delay in filing complaint.
Conviction and sentence of accused Nos. 1 to 3 set aside; acquitted of charges.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
CRL.A NO. 186 OF 2014
SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,
MANANTHAVADY
APPELLANT/ACCUSED NO.1:
PRASANNAKUMAR AGED 47 YEARS S/O.MADHAVAN NAMBIAR, SREESADHAN (H), PULPALLY AMSOM, PULPALLY, WAYANAD DISTRICT.
BY ADVS. S.RAJEEV K.K.DHEERENDRAKRISHNAN M.REVIKRISHNAN
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.202/2009 OF PULPALLY POLICE STATION, WAYANAD DISTRICT)
BY SMT.O.V.BINDU, P.P., SMT.AMBIKA DEVI S, SPL.G.P.,
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
04.01.2023, ALONG WITH CRL.A.192/2014 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A Nos. 186, 192 & 193 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
CRL.A NO. 192 OF 2014
SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES
UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,
MANANTHAVADY
APPELLANT/ACCUSED NO.2:
HARIKUMAR AGED 50 YEARS S/O.GOPALAN NAIR, PERUMAYIL(H), ROYALPADI, ERIYAPPALLY, PULPALLY.
BY ADV SRI.K.K.DHEERENDRAKRISHNAN
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.202/2009 OF PULPALLY POLICE STATION,WAYANAD DISTRICT).
BY ADVS. SMT.AMBIKA DEVI S, SPL.G.P., SMT.O.V.BINDU, P.P.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH CRL.A.186/2014, 193/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A Nos. 186, 192 & 193 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 4TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944
CRL.A NO. 193 OF 2014
SC.NO.24/2013 OF SPECIAL COURT OF THE TRIAL OF OFFENCES
UNDER THE SC/ST (PREVENTION OF ATROCITIES) ACT CASES,
MANANTHAVADY
APPELLANT/ACCUSED NO.3:
GIREESH
AGED 38 YEARS S/O.KRISHNANKUTTY, ERAMBIL (H) PADICHIRA AMSOM, CHETTAPPALAM
BY ADV SRI.V.VINAY
RESPONDENT/COMPLAINANT/STATE::
STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 (CRIME NO 202/2009 OF PULPALLY POLICE STATION,WAYANAD DISTRICT)
BY SMT.AMBIKA DEVI S, SPL.G.P., SMT.O.V.BINDU, P.P.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, ALONG WITH CRL.A.192/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A Nos. 186, 192 & 193 OF 2014
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J U D G M E N T
These appeals have been preferred by the accused Nos.1 to 3 in S.C No.24 of 2013 on the files of the Special Court of the trial of offences under the SC/ST (Prevention of Atrocities) Act cases, Mananthavady (for short, 'the Court below') challenging the judgment of conviction and sentence dated 21.02.2014.
and grandmother of the 1st accused were away from the house, the 2nd
5
CRL.A Nos. 186, 192 & 193 OF 2014
and 3rd accused came to the house of the 1st accused and all the accused with common intention to commit rape on the victim, b rought her to the b edroom of the house, tied her right leg on a cot, muffled her with a towel and thereafter committed rape on her. It is further alleged that the accused threatened her that if she discloses the incident to anybody, she will be killed and her family will be ruined.
6
CRL.A Nos. 186, 192 & 193 OF 2014
prosecution, PWs 1 to 19 were examined and Exts.P1 to P20 were marked. On the side of the defence, 5 witnesses were examined as DWs 1 to 5 and Exts.D1 to D7 were marked. After trial, the Court below found that the accused committed the offences punishable under Sections 342 and 376(2) r/w 34 of IPC and they were convicted for the said offences. The 1st accused was also found guilty of the offence punishable under Section 506(ii) of IPC and he was convicted additionally for the said offence as well. The accused were sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- each, in default to suffer simple imprisonment for one year each for the offence punishable under Sections 376(2) r/w 34 of IPC and to undergo rigorous imprisonment for one year each for the offence punishable under Section 342 of IPC. The 1st accused was further sentenced to undergo rigorous imprisonment for a period of five years for the offence punishable under Section 506(ii) of IPC. The accused were acquitted for the remaining offences. Aggrieved by the said conviction and sentence, the 1st accused preferred Crl .Appeal No. 186 of 2014, the 2nd accused preferred Crl. Appeal No.192 of 2014 and the 3rd accused preferred Crl. Appeal No.193 of 2014. Since all the appeals are connected, I am disposing of them together.
CRL.A Nos. 186, 192 & 193 OF 2014
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8
CRL.A Nos. 186, 192 & 193 OF 2014
and 376(2)(g) r/w 34 of IPC. Per contra, the learned Public Prosecutor, Smt.O.V.Bindu, supported the findings and verdict handed down by the court below and argued that necessary ingredients of Sections 342, 376(2)(g), 506(ii) r/w 34 of IPC have been established against the accused and the prosecution has succeeded in proving the case beyond reasonable doubt. The learned Public Prosecutor further submitted that PW1, being the prosecutrix in a rape case, her evidence has to be given due weight and there is no reason to disbelieve her.
9
CRL.A Nos. 186, 192 & 193 OF 2014
the court to unhesitatingly record a conviction. One of the cardinal principles of our system of administration of criminal justice that a person arraigned as the accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged is applicable to rape case as well. Another golden thread which runs through the web of the administration of justice in criminal cases that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of doubt is also applicable to the rape case. The Apex Court in Abbas Ahmad Choudhary v. State of Assam [(2010) 12 SCC 115] has held that in the matter of rape, statement of prosecutrix must be given primary consideration, but at the same time, broad principle that prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully. This court in Ratheesh v. State of Kerala (2013(3) KHC 897) observed that “merely because, the victim says that she has been ravished, though it may not be disbelieved at the first instance, when evidence is adduced in the case, it has to be scrutinized in the light of the evidence available in the case. If the evidence of the prosecutrix is
10
CRL.A Nos. 186, 192 & 193 OF 2014
found to be convincing and cogent, it can be acted upon. But when it is shown that she cannot be relied on by virtue of inherent improbability of the case or by other items of evidence adduced by the defence or by the prosecution, the court has to necessarily look for corroboration”. Now, let me reappreciate the evidence of PW1 to find out whether her evidence is free from blemish or suspicion and impress the court as natural or truthful.
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CRL.A Nos. 186, 192 & 193 OF 2014
facilitated the commission of offence. When PW1 was in the box, her version was that it was the 1st and 3rd accused who committed rape on her and the 2nd accused only facilitated the 1st and 3rd accused in committing the rape. Her said evidence in the box goes against the pleadings in Ext.P1. These contradictions were brought in the cross examination of PW2. She has even denied the averment in Ext.P1 that the 1st and 2nd accused committed rape on her. That apart, at the dock, she wrongly identified 2nd and 3rd accused. She had identified the 2nd accused as the 3rd accused and the 3rd accused as the 2nd accused. Thus, the case projected by the victim in Ext.P1 which was filed after a long period from the date of the incident and the evidence given by her regarding the overt act of each accused is mutually contradictory. There is no proper dock identification also.
12
CRL.A Nos. 186, 192 & 193 OF 2014
examined by the prosecution. On the other hand, he was examined as a defence witness. The prosecution admits that the victim was taken to her house on the alleged date of the incident by DW4. But the prosecution or PW1 has no case that she disclosed the incident to DW4. There is no explanation offered by PW1 for not disclosing the fact of rape to DW4. PW1 has also admitted that immediately on the next day of the alleged incident of rape, she went to Pulpalli Police Station along with DW4. But, no complaint was made on that occasion as well. Ext.D3 is an important document. It is the copy of a complaint dated 29/02/2008 submitted by the victim to Women's Commission alleging that she was not paid wages. In the said complaint, she has also stated that the 1st accused tried to misbehave with her. However, no allegation of rape was advanced by the victim in the said complaint. PW1 has admitted in cross examination that one Dy.S.P has recorded her statement during the course of the enquiry of the said complaint. Ext.D4 is the said report. She admitted that she has read and understood Ext.D4 statement given by her and it is correct. In the said statement, she was only aggrieved by the non-payment of wages. She has stated in the said statement that even the allegation regarding misbehaviour levelled by her in Ext.D3 against the 1st accused was not
13
CRL.A Nos. 186, 192 & 193 OF 2014
correct. It is true that Ext.D3 complaint was preferred aggrieved by the non-payment of wages by the 1st accused. But in the said complaint, she had also chosen to allege that the 1st accused had misbehaved with her. Then definitely, the allegation of rape also could have been disclosed by her in Ext.D3. The explanation offered by PW1 that she was afraid that she will be done away and hence she did not mention the allegation of rape in Ext.D3 does not appear to be acceptable inasmuch as she had ventured herself to disclose that the 1st accused had misbehaved with her. The failure to mention the allegation of rape in Ext.D3 complaint casts serious doubt on the prosecution case. The undue delay of more than one and a half years in filing Ext.P1 complaint has to be viewed in this backdrop. As stated already, the victim admitted that she gave a complaint to the police immediately after the incident. It has also come out in evidence that after the incident, she disclosed the incident to one of her close relatives. She has also not chosen to allege the so called rape in Ext.D3. Still, she filed a private complaint much after Ext.D3. The explanation offered is not at all satisfactory.
CRL.A Nos. 186, 192 & 193 OF 2014
14
the credibility of PW1 is not free from blemish or suspicion. Her evidence does not impress the Court as natural or truthful. In the absence of other corroborative piece of evidence and also taking into account the circumstances mentioned above in favour of the appellants, they are entitled to the benefit of doubt. From the available evidence on record, I find that there are no convincing evidence to find that the accused have committed the offence beyond reasonable doubt. Therefore, the conviction and sentence passed by the court below cannot be sustained.
In the light of the above findings, the conviction and sentence of the appellants/accused Nos.1 to 3 vide the impugned judgment are set aside and they are acquitted from the charges levelled against them. All the appeals are, accordingly, allowed.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
CRL.A Nos. 186, 192 & 193 OF 2014
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APPENDIX OF CRL.A.NO.186/2014
PETITIONER'S ANNEXURES:
ANNEXURE I THE APPELLANT IS PRODUCING THE COMPLAINT RECEIVED TO THE DIRECTOR GENERAL OF POLICE AND THE PROCEEDINGS THERE UPON BY DGP DATED 27.12.2017 (OBTAINED UNDER THE RIGHT TO INFORMATION ACT)
ANNEXURE II TRUE COPY OF THE PROCEEDINGS AND THE STATEMENTS AND REPORT AND ORDER
3 issues framed by the court
Whether the conviction for rape and kidnapping under the Scheduled Castes/ Tribes (Prevention of Atrocities) Act and IPC is sustainable in the absence of corroborative evidence given the contradiction
Whether the prosecution has proved the accused guilty beyond reasonable doubt considering the inconsistencies in the victim's statement and identification.
Whether the appellants are entitled to the benefit of doubt due to the inherent improbability of the prosecution case and lack of reliable evidence.
Colour shows how this judgement treated each authority
State of Rajasthan v. Om PrakashReferred¶75
State of Rajasthan v. Om Prakash [(2002) 5 SCC 745] · Who else cites this
State of H.P. v. Suresh KumarReferred¶75
State of H.P. v. Suresh Kumar [(2009) 16 SCC 697] · Who else cites this
Vijay v. State of Madhya PradeshReferred¶75
Vijay v. State of Madhya Pradesh (2010(8) SCC 191) · Who else cites this
Aslam v. State of U.P.Referred¶75
Aslam v. State of U.P. (2014 AIR SCW 1242) · Who else cites this
Abbas Ahmad Choudhary v. State of AssamReferred¶78
Abbas Ahmad Choudhary v. State of Assam [(2010) 12 SCC 115] · Who else cites this
Ratheesh v. State of KeralaReferred¶78
Ratheesh v. State of Kerala (2013(3) KHC 897)
2 provisions across 2 enactments
PRASANNAKUMAR
HARIKUMAR
GIREESH
STATE OF KERALA
KAUSER EDAPPAGATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
