Georgekutty vs State of Kerala

P. Bhavadasan, J.—The accused faced prosecution for the offence punishable u/s 376 of Indian Penal Code. After trial, he was found guilty of the said offence and therefore, convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000 and in default of payment of which to suffer rigorous imprisonment for a period of seven months. It was also directed that if the amount is realised, an amount of Rs. 4,000 will be paid to the prosecutrix PW1 as compensation. The incident which gave rise to the case occurred on 20.1.2005. PW1 is the victim. She resides with her husband and three children. As usual, on the date of the incident, her husband had gone for work and one of the children went to school and the other two to the Anganwadi. According to the prosecution, after the household work was over, PW1 decided to take a bath and she got into the bathroom of her house. The accused is alleged to have forced himself into the bathroom and in spite of the stiff resistance made by PW1, sexual assault was committed by the accused. PW1 informed the incident to her husband in the evening. On the next day, they went to the Police Station and laid Ex. P1 First Information Statement. PW6 recorded Ex. P1 and registered a crime as per Ex. P1(a) First Information Report. PW8 took over the investigation. The victim was sent for medical examination and she was examined by PW4 doctor who issued Ex. P2 certificate. PW8 went to the scene of occurrence and prepared Ex. P6 scene mahazar and seized M.O. 1 from the place of occurrence. He had the accused arrested and he seized the dresses alleged to have been worn by the accused at the relevant time i.e. M.Os 2 and 3 as per Ex. P7. He filed Ex. P8 report before the court containing the details of the accused. He had the materials sent for chemical examination and obtained Ex. P9 report. He recorded the statement of the witnesses, completed investigation and laid charge before the court.

The Judicial First Class Magistrate Court, Ettumanoor before whom final report was filed took cognizance of the offence. On finding that the offence is one exclusively triable by the Court of Sessions, the learned Magistrate committed the case to Sessions Court, Kottayam u/s 209 Cr. P.C. The said court made over the case to Additional Sessions Court (Ad hoc), Kottayam for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, framed charge for the offence punishable u/s 376 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 8 examined and Exs. P1 to P9 marked. MOs 1 to 3 were got identified and marked. On the side of the defence. Ex. D1 was marked which is a contradictory statement of PW2.

After the close of the prosecution evidence, the accused was questioned u/s 313 Cr. P.C. regarding the incriminating circumstances brought out in evidence against him. He denied the circumstances and maintained that he is innocent. He filed a written explanation in which he has stated that he has been falsely implicated and the true facts have been concealed. According to him, PW1 and himself are neighbours. They have a common pathway. On 20.1.2005, according to him, at about 10.30 a.m., while he and DW1 were passing along the pathway leading to the house of the accused situated on the eastern side of the house of PW1, they happened to see PW2 coming out of the house of the victim. On seeing them, PW2 became nervous. The accused claimed that he cautioned PW2 not to repeat the visits. After that he claims to have gone for his work. The news of PW2 seen coming out of the house of PW1 became public, He says that on 21.1.2005, he conveyed the news to PW3, the husband of PW1, the victim. While he was conveying the information, PW1 was present. She created a scene there and it is claimed by the accused that PW3 beat her up in which she suffered injuries. Short while thereafter, he happened to see PW3 leaving the house. The accused also claimed that while he was on his way for work, he saw PW1 coming along the road and going into the office of the crusher unit being run nearby and while he was waiting at the Clamattom junction, he happened to see PW1 mounting an autorickshaw and leaving the place. On the same day, while he was unloading metal from the lorry, he was arrested and only then he came to know that he had been made as an accused in the case. On finding that the accused could not be acquitted u/s 232 Cr. P.C., he was asked to enter on his defence. He had DWs 1 and 2 examined.

On an appreciation of the evidence in the case, the court below came to the conclusion that the evidence of PW1 taken alongwith the medical evidence and the circumstances brought out in evidence by the prosecution are sufficient to prove the guilt of the accused. Accordingly, he was found guilty and was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal.

Learned counsel appearing for the appellant pointed out that the court below ought to have seen that the evidence adduced by the prosecution is not sufficient to warrant a conviction. The evidence of PW1 is open to serious doubt when compared to other items of evidence adduced by the prosecution. She has no consistent version regarding the incident. Her version that the bathroom was left as such after the incident is belied by Ex. P6 scene mahazar which would show that none of the articles mentioned by PW1 at the time of evidence were available at the scene of occurrence. This, according to the learned counsel, is sufficient to show that the bathroom is not the scene of occurrence even assuming that an incident has taken place as alleged. The claim of PW1 that she was ravished by the accused was belied by the medical evidence as well as the chemical analysis report and that has not been properly appreciated by the court below. PW4, the doctor who has issued Ex. P2 certificate, has stated that the injuries found on the body of PW1 could have been sustained in a scuffle or on being beaten by somebody else.

Learned counsel also pointed out that there are two different versions regarding the actual incident. At the time of giving Ex. P1 First Information Statement, it is stated that the accused is said to have caught hold PW1 and she has not stated to the police that she was caught hold by the accused from behind. The evidence of PWI is to the effect that on 21.1.2005, she, PW3, her mother and the sister had gone to the Police Station to lay Ex. P1 First Information Statement. But, referring to the evidence of PW3, it is pointed that, according to him, till 40'' clock on that day, he was in the mother-in-law''s house and he returned only at 9.30 in the night. If that be so, according to the learned counsel, PW3 could not have accompanied PW1 to the Police Station. Learned counsel, referring to the evidence of PW1, further pointed out that she had a case that she had beaten the accused with a bucket and he avoided the same and in that process she sustained an injury on her finger. This is given a go bye at the time of evidence. There is no such injury either spoken to by PW3 or noticed by PW4 doctor.

Learned counsel appearing for the appellant pointed out that the lower court has not seriously considered the defence version at all. The evidence of PW2, according to the learned counsel, would show that if there was no close acquaintance with PWs 1 and 2, it is quite inconceivable that PW1 would have conveyed the incident to him. On the other hand, it is more probable that the version given by the defence that there was illicit relationship between PWs 1 and 2 and the accused detecting the same, he has been falsely implicated.

Referring to the evidence of PW3, he is categoric in his evidence that MO1 was handed over by him to the Police but the evidence of PW8 is to effect that he seized the same from the place of occurrence. Learned counsel also referred to some of the omissions and contradictions in the evidence of PWs 1 and 3 and contended that those omissions are material in nature that make their evidence vulnerable. In the result, according to the learned counsel, it becomes quite unsafe to rely on the evidence of PWs 1 and 3, and when one looks for corroboration of the evidence of PW1, one is not able to rely on any item of evidence and a reasonable doubt is created. According to the learned counsel, the conviction and sentence are clearly unsustainable both on facts and in taw.

Learned Public Prosecutor, on the other hand, supported the findings of the court below. She pointed out that one cannot expect a witness to speak with mathematical precision about what has transpired long back and inconsistencies and contradictions are bound to arise. Unless it is shown that those inconsistencies and contradictions are material in nature making the evidence of the deponent vulnerable and open to serious doubt, there are of no serious consequences. The inconsistencies and contradictions pointed out by the appellant, according to the learned Public Prosecutor, do not affect the core of the prosecution case and the evidence of PW1 is sufficient to show that the incident has occurred as alleged. If any support is needed, that is available from the evidence of PW4 and Ex. P2. It is also pointed out by the learned Public Prosecutor that one cannot omit to note the defence case also. The defence has put up a story which, on the very face of it, is unbelievable. Learned Public Prosecutor further pointed out that by no stretch of imagination, one could believe that the accused would have disclosed the illicit relationship between PWs 1 and 2 to PW3 husband while PW 1 was present at the spot. If at all there was any such relationship, he would have secretly conveyed it to PW3. The evidence of PW4, the doctor who examined PW1 is to the effect that the injuries made mention of in Ex. P2 certificate could have been caused while committing an act of rape. Learned Public Prosecutor submitted that, of course, there are inconsistencies regarding the seizure of the articles and also about the scene mahazar, items found in the place of occurrence etc., but they are not sufficient to make the version of PW1 open to serious doubt. Learned Public Prosecutor pointed out that by the very nature of the offence, one has to place reliance on the evidence of the prosecutrix and unless it is shown that it cannot be accepted for cogent and convincing reasons, there is no reason to reject the same. Learned Public Prosecutor also pointed out that the trial court which had occasion to consider the demeanour of the witnesses has chosen to accept the version given by the prosecutrix and if that is a possible view, this Court will not be justified in interfering with the same while exercising the appellate jurisdiction.

The principles regarding appreciation of evidence in the case of rape are well settled. Rape is not done in open. It is always done in secrecy. Therefore, lot depends on the evidence given by the prosecutrix and the weight that should be given to her evidence. Unless it is open to serious doubt, it will not be proper for this Court to reject the same. It is not the quantity of evidence but the quality that matters.

PW1 is the victim in this case. She speaks about the incident. Of course, at the time of evidence, she gives a go bye to the attack on the accused by the bucket and says that she was caught hold by the accused from behind. She also does say that the bathroom where the incident happened was left in the same state after the incident till the investigation officer visited the scene of occurrence. She would also say that various articles which were present in the bathroom were left as such till the investigation officer visited the place. However, Ex. P6 scene mahazar prepared by the investigating officer does not show the presence of the articles made mention of by PW1. This is highlighted as one of the evidence to suspect the evidence of PW1.

The fact that the investigation officer has not noticed the bucket, mug, ice bag etc. in the bathroom may not be of much help to the defence. True, the scene mahazar prepared does not show the presence of any such articles there. The mere fact that those articles do not find a place in the scene mahazar does not mean that the incident has not taken place when there are items of evidence to show that the version given by PW1 seems to be true. Even from Ex. P6, it is seen that the bathroom has no door. It is also seen that, going by the evidence of PW8, M.O. 1 was seized from the place of occurrence but according to PW3, the same was handed over by him to the investigating officer. These inconsistencies and contradictions have no bearing on the issue in the case. PW1 says that after the incident she tried to contact her mother to inform the matter but she could get only her elder sister''s son and she refrained from conveying the news to him. On her way back, she happened to come across PW2 who found her in a sad mood and when he asked for the reason, PW1 conveyed the news to him.

The above conduct of PW1 is attacked on the ground that even going by the evidence of PWs 1 and 2, they have no close acquaintance and it is improbable that PW1 would have narrated the incident to PW2. It is contended that it is more consistent with the defence version. The crusher unit in which PW2 is employed is situated very near to the house of PW1 and PW1 is always in the house. The evidence show that PW3 leaves the house in the morning and returns only in the night. Therefore, PW1 was familiar to PW2. There is nothing unusual about it. It is quite natural that when one looks in a disturbed or pensive mood, the other who knows that person may ask for the reason. That is all that has happened in this case also. Even though there is some inconsistency regarding whether PW1 was crying or not at the relevant time, the fact remains that she was in a disturbed state of mind and she was returning after trying to contact her mother. Therefore, the conveying of the information to PW2 does not create any doubt regarding the version given by PW1.

The conduct of PW3 is highlighted to show that the prosecution version may not be acceptable. According to the learned counsel for the appellant, he, after coming to know about the incident, did not on the next day morning go to the Police Station and going by the evidence, he had not gone to the Police Station at all. True. It appears to be so. The evidence of PW1 is to the effect that She, PW3, her mother and another person had gone to the Police Station. But, whether PW3 had gone to the Police Station or not is not of any significance in this case at all because it has no bearing on the question as to whether PW1 was sexually assaulted. If, as a matter of fact, PW1 thought that police need not be informed immediately, she could not be found fault with. At a later point of time, when the mother and others came home and after their discussion, they thought that it is fit and proper to report it to the Police, there is nothing unusual in it. One has to remember that it is not a creditable act as far as a victim is concerned. It cannot be said that by any stretch of imagination there is any delay in laying the First Information Statement. The incident occurred on 20.1.2005 and the First Information Statement was laid on the next day evening. The court below has rightly found that reasonable explanation has been offered for the delay. There is no reason to take a different view.

As regards the evidence of sexual assault as represented by the learned Public Prosecutor, the prosecution gets supports from the evidence of PW4. The case put forward by the defence that the injuries found on the body of PW1 could have been sustained because of the assault committed by PW3 looks highly improbable. As rightly pointed out by the learned Public Prosecutor, it is rather inconceivable that if, as a matter of fact, the accused had occasion to watch the illicit relationship between PWs 1 and 2, he would have declared it to PW3 in the presence of PW1. Here, one cannot omit to notice the evidence of PW4 the doctor who examined the victim. The doctor has noticed the following injuries on PW1:

Nail marks outer aspect of left forearm.

Nail marks on the upper aspect of left scapula.

Bite marks on the lips.

Nail marks on thigh 10 cm, above the knee joint.

According to PW4 doctor, the above injuries could be sustained in a case of rape. Therefore, it cannot be said that there is no supporting evidence to the version given by PW1. Merely because the doctor had stated that the injury could be sustained in a case of body coming into contact with hard object that does not rule out the possibility that the injury having been sustained because of the sexual assault committed by the accused.

What the court has to see is whether there is a ring of truth in the evidence. As already noticed, contradictions and consistencies are bound to occur. Though it is suggested to PW1 that she had a motive to falsely implicate the accused, it is not proved. Here, one has to refer to the evidence of DW1 examined by the defence. He says that on 20.1.2005, he had gone to get money for the shirt given to the accused. After waiting for some time, he happened to meet the accused and while returning back alongwith the accused, they happened to see PW2 coming out of the house of PW1. Then he speaks about what the accused has stated while giving Section 313 statement. It has already been noticed that the version given by the accused regarding the incident that he claims to have seen is highly improbable in the nature of the disclosure made to PW3. Therefore, the evidence of DW1 does not help the defence.

The fact that Exs. P3 and P9 namely, chemical analysis report and forensic report are against the prosecution case does not mean that the version given by PW1 is open to doubt. There is no suggestion to PW1 that as a result of the offensive act committed by the accused, semen was present on the clothes worn either by her or by the accused. Of course, PW1 does say that there was semen on her body. But, at the same time, she says that she had taken bath after the incident. The mere fact that the clothes were sent for chemical examination do not show the presence of semen is not a ground to doubt the prosecution version.

The court below has analysed the evidence of PWs 1 and 2 and has come to the conclusion that there is no reason to disbelieve PW1. This Court also finds no reason to disbelieve her especially when the defence version is highly improper and unnatural.

There is nothing to show that PW 1 had any ill motive to falsely implicate the accused or that her evidence is open to serious doubt. May be, she has slightly exaggerated her versions. But, as already stated, they do not affect the acceptability of her evidence at all.

Learned counsel appearing for the appellant relied on the unreported decision in Criminal Appeal No. 570/2007 wherein the Apex Court had occasion to consider a case where the trial court had acquitted the accused of a charge for the offence punishable u/s 376 IPC. Having failed in the appeal filed before the High Court, the State challenged the findings before the Apex Court. Paragraph 4 of the judgment of the Apex Court reads as follows:

The trial court, on appreciation of evidence, came to the conclusion that Kirti was more than 18 years of age and she had left the house voluntarily. The only witness to support the allegation of rape is the victim herself. Kirti (PW3) had stated in her evidence that the accused committed rape at 12.00 noon but, in her statement recorded during the course of investigation, her allegation was that she was raped by the accused at 6.30 a.m. To establish that the rape was committed without her consent she has deposed that while she was subjected to rape she shouted, but nobody came to her rescue. However, Ramchandra Salvi (PW11), the owner of the house in which the alleged rape took place has not supported the victim. Dr. Smt. Sushila (PW12), who examined the victim had also not supported the allegation of rape. Further, the report of the Forensic Science Laboratory also does not support the allegation of rape. Taking into account the aforesaid infirmities in the case of the prosecution, the trial court held that the prosecution has not been able to prove its case beyond reasonable doubt and accordingly, gave the accused the benefit of doubt and acquitted him of all the charges.

One has to remember that the Apex Court was dealing with a case of acquittal. Parameters for considering an appeal from acquittal and conviction are entirely different. In various decisions, the Apex Court had occasion to consider the question as to whether the evidence of the prosecutrix is sufficient or not. It has been laid down that unless it is shown to be extremely vulnerable and opened to serious doubt, it will not be proper to reject the evidence of the prosecutrix. Of course, there are some similarities in the facts with respect to the decision referred to by the learned counsel for the appellant and the present case. But on facts the principles laid down in the above decision can be of no help to the accused.

This Court is unable to find any infirmity in the finding of the court below that the evidence makes out the offence as against the accused. The appeal is without merits and is liable to be dismissed. I do so confirming the conviction and sentence passed by the Court below.

The Criminal Appeal is dismissed.