Babu vs State of Kerala

P. Bhavadasan, J.—The accused was prosecuted for the offence punishable u/s 376 of Indian Penal Code and Section 3(1)(xii) of the Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act. He was found guilty only for the offence punishable u/s 376 of I.P.C. He was therefore convicted and sentenced to suffer rigorous imprisonment for eight years and to deposit a sum of Rs. 50,000/- as compensation to P.W. 1 within six months and default of payment, to undergo rigorous imprisonment for a further period of one year. Set off as per law was allowed. P.W. 1 is the victim in this case. She stays with her mother and uncle. She goes for odd jobs. The accused was introduced to her by her close friend Janu. The accused is a fish vendor by profession. The acquaintance with P.W. 1 and the accused gained strength as time passed by and it is alleged that from June, 2001 onwards she was compelled by the accused to go along with him and was taken to a shed behind the shop of one Hassan where they indulged in physical contact. The allegation is that the accused had promised her to take care of her if anything happened to her. As a result of the physical contact, she conceived. The news was conveyed to the accused. He retracted from his earlier stand. Ultimately, she delivered a child which did not survive. Under these circumstances, Ext. P1 first information statement was laid by P.W. 1. P.W. 7 recorded Ext. P1 first information statement and registered crime as per Ext. P1(a) first information report. Investigation was taken over by P.W. 8. He had P.W. 1 examined by a doctor, and obtained the necessary certificate. He prepared Ext. P6 scene mahazar. On the arrest of the accused, he had the potency test conducted and he obtained plan of the scene of occurrence. He recorded the statements of witnesses, completed investigation and laid charge before court. The court before which final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a Special Court, committed the case to Special Court for trial of Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act cases u/s 209 of Cr. P.C. The said court, on appearance of the accused and on receipt of records, framed charges for the offences punishable u/s 376 of I.P.C. and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws. 1 to 8 examined and had Exts. P1 to P6 marked. After the close of the prosecution evidence, the accused was questioned u/s 313 Cr. P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He in his defence stated that he is innocent and he is looking after his family and parents. He has no acquaintance with the prosecutrix. It is stated that prior to the present complaint, P.W. 1 had filed a complaint against one Kunhikannan and Pavi on the same allegations and that in the said case, he was shown as a witness. Since he had no idea about the incident in which those two persons were made accused, he refused to give testimony in favour of the prosecutrix. He would say that in the said case one Jayan and Kunhikannan, who were residing in the colony had approached him and asked him to depose in favour of P.W. 1. Since the prosecutrix is a total stranger to him, he refused to do so and the accused in the said case were acquitted. Due to that vengeance, he has been falsely implicated. He got married in the year 1994 and that he had never promised that he would marry the prosecutrix nor had any physical contact with her. He also pointed out that no shop was ever run by Hassan as pointed out by the prosecutrix. He also denied that Janu introduced him to the prosecutrix.

Finding that the accused could not be acquitted u/s 232 Cr. P.C., he was asked to enter on his defence. He examined D.W. 1 and had Ext. D1 marked. On an evaluation of the evidence in the case, the court below found the evidence of P.Ws. 1 and 4 to be creditworthy and found that the offence u/s 376 of I.P.C. has been made out. Accordingly, the accused was found guilty of the said offence and conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

Learned counsel appearing for the appellant contended that the conviction and sentence are not based on legal evidence, but based on conjectures and surmises. Most of the answers given by P.W. 1 in chief-examination are to the leading questions and obviously those answers cannot be taken into consideration. If those answers are eschewed, there is nothing in the evidence of P.W. 1 to show that the ingredients necessary to attract the offence u/s 376 of I.P.C. are present in the case. It is also pointed out that on going through the evidence of P.Ws. 1 and 4, it becomes doubtful whether it was the prosecutrix who had laid the FIS. Further, it is pointed out that in cross-examination P.W. 1 admits all the suggestions made by the accused and that demolishes her statements in chief-examination and P.W. 1 is not a witness who can be trusted to hold the accused guilty of the offence alleged against him. It is also pointed out that the court below has omitted to notice that the evidence in the case discloses that there was no shop run by Hassan as alleged by the prosecutrix. Attention was also drawn to the fact that previous to the present complaint, P.W. 1 had preferred a complaint against two other persons with similar allegations and that case ended in acquittal. In short, the contention of the learned counsel for the appellant is that the court below has not considered the evidence on record and was mainly carried away by the fact that P.W. 1 is an illiterate woman and due meaning may be given to the answers given by her during her examination. Learned counsel pointed out that even assuming it to be so, the answers given by P.W. 1 cannot be judicially accepted and her evidence cannot be bypassed by saying that P.W. 1 is an ignorant lady. The evidence of P.W. 4 which has been heavily relied on by the court below, according to learned counsel, serves no purpose. Her evidence is only to the effect that she came to know that her daughter was pregnant when the foetus was six months old. Learned counsel pointed out there is nothing to show that the incident as alleged has occurred. Accordingly, the conviction and sentence cannot stand.

Learned Public Prosecutor on the other hand pointed out that the court below has analysed the evidence in considerable detail and has considered all the aspects of the case. It has considered the plight in which P.W. 1 was placed and the fact that P.Ws. 1 and 4 are coming from the lower strata of the society and ignorant and illiterate persons and that aspect will have to be borne in mind while appreciating their evidence. A reading of the testimony of P.Ws. 1 and 4, according to the learned Public Prosecutor, would show that it is extremely doubtful whether they are aware of the consequences of the answers given by them. The answers are seen given mechanically and it does not appear to have been given after understanding the question. Under such circumstances, the court below was perfectly justified in coming to the conclusion that the evidence of P.Ws. 1 and 4 are sufficient to convict the accused and since that is a possible view, interference may not be warranted.

One could weigh, one could agree with the learned Public Prosecutor. But the evidence is otherwise. Ext. P1 is the first information statement. There is considerable controversy regarding that document itself. Going by the evidence of P.W. 4, it would appear that P.W. 1 had affixed her thumb impression in the statement given by her to the police and it was read over to her. However, a perusal of Ext. P1 shows that it contains the signature of the prosecutrix. It can be seen from the original deposition of P.W. 1 that she signed her deposition and therefore merely because P.W. 4 has stated that thumb impression was affixed, it may not be a ground to discard Ext. P1. However, the evidence of P.W. 1 casts serious doubt regarding the genuineness of Ext. P1. Many of the statements made by her during examination, which she asserts she had told to the police and which were read out to her did not find a place in Ext. P1.

Going by Ext. P1 all what is stated by the victim is that the accused had forced her to go over to a particular place and he had physical contact with her and he had promised that he would take care of her in case anything happens to her.

Learned counsel for the appellant is to a great extent justified in contending that Ext. P1 does not contain the ingredients necessary to attract the offence u/s 376 of I.P.C.

Coming to the evidence of P.W. 1, less said the better. Crucial answers were obtained by asking leading questions in chief-examination and how far they are acceptable is a serious question.

Even accepting all what she has stated in chief-examination to leading questions establishes the prosecution case, her statements stand completely exposed by her answers in cross-examination where she admits her statement that the physical contact, if any, was with her consent and there was no promise to marry her and she was never entertained the idea that the accused would marry her. All that is stated in Ext. P1 was that she was given to understand that if anything happens to her, that will be taken care of by the accused. Whether that is sufficient to attract the offence is a different question.

The evidence of P.W. 1 shows that she had conceived and had delivered a child and the child is no more. The records relating to the medical examination of P.W. 1 at the time of pregnancy and at the time of delivery are not seen produced.

In cross-examination P.W. 1 in no less terms pointed out that after having physical contact with the accused for the first time, she used to voluntarily go to the place suggested by the accused and had physical contacts with him. There is nothing in her evidence to show that she had ever offered any resistance at any point of time when she was subjected to physical contact by the accused. Her answers in cross-examination would show that at no point of time the accused had promised anything to her let alone marry her and that she says that most of the answers given by her in cross examination are being spoken to her for the first time in court.

The evidence of P.W. 4 does not help the prosecution. Her evidence only shows that her daughter had conceived. She had no knowledge about the relationship between the accused and P.W. 1 except what is told to her by P.W. 1. It is difficult to understand how the court below came to the conclusion that the evidence of P.W. 4 corroborates the evidence of P.W. 1. It is seen that as regards the incident nothing is spoken to by P.W. 4.

It is true that if the evidence of prosecutrix is cogent and convincing enough, that is sufficient to convict the accused. But that has to be convincing and above board. Apart from the fact that most of the answers are elicited in chief-examination to leading questions, she almost concedes the defence case in cross-examination and it could not be said that her evidence inspires confidence in the mind of the court. Here, one has to remember that she had filed a similar complaint against two other persons raising the very same allegations and they were ultimately acquitted.

The lower court seems to be of the view that the mere fact that an earlier complaint has been filed by the prosecutrix and had failed in her attempt does not mean that the present complaint is false. That may be so. But considering the nature of the evidence of P.W. 1, the prosecutrix, it cannot be readily accepted as in the case of the victim of rape, who is in the position of an injured witness.

Whatever that be, the claim of P.W. 1 that she was raped stands discredited by her answers in cross-examination and considering the evidence as a whole, it is extremely difficult to come to the conclusion that the ingredients of the offence are made out.

There may be moral justification in coming to the conclusion that the accused might have committed the offence. But there has to be legal evidence for holding the accused guilty. That is found wanting in this case. This court is unable to find that the evidence of P.Ws. 1 and 4 are convincing and cogent so as to find the accused guilty of the offence.

In the result, this appeal is allowed, the conviction and sentence passed by the court below are set aside and it is held that the prosecution has failed to establish the case against the accused. He stands acquitted of the charge levelled against him. His bail bond shall stand cancelled and he is set at liberty. If the appellant has already deposited the fine amount, the same shall be refunded to him.