Basheer vs State of Kerala

P. Bhavadasan, J.—The accused was prosecuted for the offences punishable under Sections 420 and 376 of Indian Penal Code and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He was found guilty of the offence punishable u/s 420 and 376 of I.P.C. and was acquitted of the offence punishable u/s 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for three years of the offence u/s 420 I.P.C. and sentenced to undergo rigorous imprisonment for eight years for the offence u/s 376 I.P.C. The accused was also directed to pay Rs. 50,000/- as compensation to the victim. The victim, namely, P.W.4 and the accused were working in the same furniture shop. P.W.4 was a collection agent. The allegation is that for a long time the accused had been holding out that he is in love with the victim and he wants to marry her and also that he could not live without her company. Even though, according to P.W.4, she told the accused that he being a member of the Muslim community and is already married, it may not be possible for him to marry her, the accused is said to have continued with his pranks and it is alleged that on a day when there was nobody else in the shop she was sexually assaulted. She was told that if she revealed the incident to anybody, the accused would not marry her. The complaint Ext. P7 makes mention of the various places both of them had gone thereafter, which, according to the complainant, was on the basis that the accused had held out to her that the marriage would be registered at one place or another. But that did not happen. Ultimately, she was deserted and the complaint was laid. The complaint was forwarded for investigation u/s 156(3) Cr.P.C. P.W.3, the Sub Inspector of Police, who received Ext. P7 complaint, registered crime as per Ext. P8 First Information Report. Investigation was taken over by P.W.8. He prepared Ext. P13 scene Mahazar and recorded the statement of the victim as well as the witnesses. The clothes handed over to him by the victim were seized as per Ext. P14. He had the victim sent for medical examination. After the arrest of the accused, he was subjected to potency test, and after getting the necessary documents and completing the investigation, charge was laid.

JFCM court, Koyilandy, before which charge was laid took cognizance of the offence. Finding that the offences are exclusively triable by a special court, the said court committed the case to Sessions Court, Kozhikode u/s 209 Cr.P.C. The said court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 420 and 376 I.P.C. and u/s 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 9 and had Exts. P1 to P19 marked. M.Os. 1 and 2 were got identified and marked. The defence had marked Exts. D1 to D2(a) which are the inconsistent statements of the respective witnesses with respect to the statements to the police. 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. Finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.

The court below found the evidence of P.W.4 to be acceptable and found the accused guilty for the offences punishable under Sections 420 and 376 of I.P.C. and conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

Learned counsel appearing for the appellant pointed out that the court below has not considered the evidence in the proper perspective and has blindly accepted the evidence of P.W.4. The details of the so-called alleged assault is not seen mentioned in the complaint nor did P.W.4 speak about the same. The complaint, as pointed out by the learned counsel, is very weak and except for saying that on a day she was assaulted no other details are given. Learned counsel pointed out that the victim could not have been labouring under a misconception as she was well aware of the situation. She knew that the accused was married and he belongs to Muslim community and he could not marry her. Therefore, the claim of the victim that she was subjected to sexual intercourse by making her to believe that he would marry her cannot be readily accepted. The court below was not justified in coming to the conclusion that the accused had exploited her on the promise of marriage. The evidence of P.W.4 would clearly show that if at all there was any physical contact, it was with consent and the consent is not vitiated due to any reason. According to the learned counsel, the conviction of the accused cannot stand.

On the other hand, learned Public Prosecutor contended that the plea based on consent is without basis. The evidence of P.W.4 is clear to the effect that she was forced to have sexual intercourse by the accused for the first time while working in the furniture shop. There is nothing to show that she, at any point of time, voluntarily consented to sexual intercourse. At any rate, according to the learned Public Prosecutor, the court below which has appreciated the evidence of P.W.4 has come to the conclusion that she was subjected to forced sexual intercourse. There is no reason to take a different view.

As regards the evidence of the incident, we have the testimony of P.W.4 only. Her evidence shows that she and the accused were working in the same furniture shop. She would say that the accused wishes to marry her and that he had told her that he could not live without her. Even though, P.W.4 would say that, she pointed out that there were hindrances in marrying her, he insisted that he would marry her. The allegation is that on a particular day while she and the accused were all alone in the shop, she was dragged to a room and ravished. Thereafter P.W.4 speaks about the various places they had gone. Of course, she says that it was under the pretext of having the marriage registered. Finally at a place the accused is said to have left her by saying that he had no money and he had to meet some people and would return. But he did not return and a few days thereafter the complaint was laid.

A reading of the evidence of P.W.4 would clearly show that she could not have been labouring under a misconception. She was aware of the fact the accused belongs to Muslim community and he was a married man. Even assuming that the accused had made advances towards her, she knew the consequences and she could have easily resisted the attempt. The incidents spoken to by her cannot be readily accepted in view of want of particulars in the complaint especially the date, time etc. In the light of the fact that P.W.4 had gone to several places with the accused and also the fact that in all those places they have physical contact, it is difficult to accept the version given by P.W.4 that she was under a misconception of fact and the consent was obtained by misrepresentation.

Even believing that at the first instance she was misled, on later occasions she could have objected to go along with him. But the evidence of P.W.4 shows that she had gone voluntarily with the accused to all places and she had taken the necessary dress materials also.

On a reading of the evidence of P.W.4, it does not inspire confidence in the mind of the court to base the conviction solely on the basis of her evidence. It needs to be noticed that the victim was 24 years of age and she could distinguish between what is good and what is bad. The finding of the court below that the evidence of P.W.4 is above board and it does not suffer from any blemish does not appear to be true. The inherent improbabilities in the evidence of P.W.4 were not considered by the trial court. Merely because the prosecutrix comes and says that she was ravished, the court cannot jump into the conclusion that whatever the prosecutrix says is true. It should be inherently probable and acceptable. In the case on hand, the evidence of P.W.4 looks improbable and it is quite an unbelievable story. Under these circumstances, this court is unable to accept the finding of the court below that the offences have been made out.

In the result, this appeal is allowed, the conviction and sentence passed by the court below are set aside and the accused stands acquitted of the offences under Sections 420 and 376 I.P.C. His bail bond shall stand cancelled and he is set at liberty. If he has paid the fine amount, the same shall be refunded to him.