Vettikuzhiyil Jaison alias Jose vs The State

N. Krishnan Nair, J.—This revision is directed against the judgment dated 17th January, 2000 of the Sessions Judge, Thalasserry, in Crl. A. No. 340/99, The revision petitioner was charged with the offences punishable under Sections 376 and 452 of the Indian Penal Code, After the trial, the Additional Sessions Judge, Thalasserry found the petitioner guilty of the offences and convicted him, He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 50,000/- for the offence u/s 376 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- for the offence u/s 452 of the IPC, In default to pay the fine he was ordered to undergo rigorous imprisonment for a further period of one year and six months each under respective head. The fine, if remitted, is ordered to be paid to P.W. 1 Valsamma, the victim of the alleged rape, as compensation, Aggrieved by the order of conviction and sentence passed by the Assistant Sessions Judge, the petitioner preferred Crl. A. 340/ 99 and the learned Sessions Judge by the impugned judgment confirmed the conviction and sentence. Hence this revision.

The prosecution story runs in the following lines : P.W. 1, Valsamma and the accused Jaison alias Jose were neighbours. On 26-8-1995 at about 5 p.m. while P.W. 1 was alone in her house, the accused sneaked into the kitchen, took her to the bed room and committed rape on her. It is also alleged that on the subsequent two Saturdays the petitioner had forcible intercourse with P.W. 1. P.W. 3, the mother of P.W. 1 had sent P.W. 1 with P.W. 2 to P.W. 5, Dr. Syamala on 9-12-1995 for treatment of scabies on her legs. Dr. Syamala examined P.W. 1 and diagnosed that she was pregnant. When questioned, P.W. 1 is said to have disclosed to P.W. 3 that she was subjected to sexual assault by the accused. Though there was an attempt to compromise the matter, the attempt failed and P.W. 3 sought the advise of an Advocate and lodged a complaint before the Circle Inspector of Police, Iritty. He forwarded the complaint to Karikkottakari Police Station. P.W. 9 the then Sub-Inspector of Police, Karikkottakari registered the crime and investigated the same. P.W. 10, the Circle Inspector of Police completed the investigation and laid the charge before the Court.

The accused denied the charge. In order to prove the guilt of the accused P.Ws. 1 to 10 were examined and Exts. P1 to P9 were marked.

The learned counsel for the appellant strongly contended that both the Courts below should have found that the accused had sex with P.W. 1 with her consent, He further contended that the delay in lodging the FIR casts doubt on the veracity of the prosecution case, According to the learned counsel, the Courts below have not properly scanned or weighed the evidence in this case, On the other hand the learned Public Prosecutor supported the impugned order and urged that there is no ground for interference.

On a consideration of the materials on record I find that both the Courts below have seriously erred in finding that the accused had sexual intercourse with P.W. 1 against her will. According to me, the evidence and the circumstances arising from the evidence in this case would only show that the prosecutrix was a consenting party. No doubt, sexual intercourse with a woman with or without consent is rape when she is under 16 years of age. In this case P.W. 1 has a case that when she had been raped by the accused she was aged only 15 years. The evidence of P.W. 1 in this regard is confirmed and corroborated by the evidence of P.W. 3. Ext. P6, the birth certificate would show that the date of birth of P.W. 1 is 5-1-1979. So on the date of commission of the alleged offence P.W. 1 was above 16 years of age. Thus the prosecution has failed to prove by reliable evidence that the girl was below 16 years of age at the time of the alleged occurrence. Therefore, if the evidence on record indicates that the accused had sexual intercourse with P.W. 1 with her consent, he cannot be found guilty of the offence u/s 376 of the Indian Penal Code.

In this case there is no eye-witness to the occurrence. The prosecution case mainly hinges on the evidence of the prosecutrix. It is settled position that conviction can be based on the sole testimony of the prosecutrix if her evidence is found to be trustworthy and reliable. Corroboration of the evidence of the prosecutrix is not necessary unless there are compelling reasons for seeking corroboration. On going through the evidence of P.W. 1, I find that her evidence is not cogent and convincing and it is not safe to convict the accused solely on her testimony. No doubt, she has asserted in her evidence that on 26-8-1995 while she was alone in the house cooking in the Kitchen, the accused entered into the kitchen, caught hold of her from behind, took her to the bed room and committed rape on her, According to her, though she offered resistance the accused had sex with her against her Will, Her further case is that on two subsequent Saturdays also the accused had forcible sexual intercourse with her.

According to P.W. 1, the accused had sexual intercourse with her on three occasions. But she had not made any complaint to her mother or anybody else till she was found to be pregnant by the Doctor. It she was not a consenting party she would have definitely divulged the incident at least to her mother, Had she been an unwilling party to the affair, she would have at least told her mother that she was afraid to remain alone in her house on Saturdays even if she was threatened against disclosing the sexual assault to her mother. As contended, by the learned counsel for the accused, P.W. 1 would have at least chosen to keep the doors of the kitchen closed while she was alone to prevent the access to the accused into the kitchen.

According to me, the version of P.W. 1 that she offered resistance when the accused attempted to have sexual intercourse with her could also be accepted only with a pinch of salt. Had she not been a consenting party she could have raised alarm to draw the attention of the neighbours and could have very well escaped from the house. In this connection it is relevant to note the decision of the Supreme Court in State of Rajasthan v. Shanker, (2000) 9 SCC 161 . In that case the story given by the prosecutrix was that when she was returning from the canal after taking her bath, the accused caught hold of her and after taking her inside the shed committed forcible sexual intercourse with her. The Supreme Court was not inclined to believe the story. In that case the evidence indicated that at the time when the accused committed rape, the prosecutrix was completely naked and was not raising any cries. Taking into consideration the above circumstances, the Supreme Court held that the prosecutrix was a consenting party. In this connection it is also advantageous to refer to the decision of the Supreme. Court in Kuldeep K. Mahato Vs. State of Bihar, . In that case the prosecutrix had sufficient opportunity not only to run away from the house where the rape was committed but also she could have taken the help of the neighbours. The Supreme Court held that her entire conduct shows that she was a consenting party to the sexual intercourse. 9. According to me, the lower Courts should not have placed implicit reliance on the evidence of the prosecutrix in the absence of any medical evidence regarding sexual violance by the assailant and resistance by the victim of rape. Both P.W. 5 Dr. Syamala and P.W. 6 Dr. Rema have stated in their evidence that at the time of their examination the prosecutrix had no case that the accused had sexual intercourse with her against her will and without her consent. P.W. 6, Dr. Rema, says : "she had not complained of rape to me. She had stated that she had sexual intercourse with Jaison two or three times". The fact that there were no marks of injury on her private parts, goes to show that she did not resist and it was a case of tactic consent. In Tukaram and Another Vs. The State of Maharashtra, the Supreme Court held that the absence of mark of injury of the victim goes a long way to indicate that the alleged intercourse was a peaceful affair and that the story of a stiff resistance having been put up by the girl is all false. In Lalta Prasad Vs. State of M.P., the Supreme Court held that if there is no proof that the girl was subjected to sexual intercourse without her consent the conviction and sentence of the accused is unjust and improper.

According to me, the delay in lodging the FIR in this case also casts doubt on the veracity of the prosecution case. No doubt, the delay in lodging FIR is not always fatal to the prosecution in rape cases. But it depends upon the facts and circumstance of each case. In this case the occurrence took place on 26-8-1995. But the FIR was lodged only on 17-12-1995. It is in evidence that P.W. 1 went to P.W. 5 Dr. Syamala on 9-12-1995 for treatment of scabies on her legs and the Doctor diagnosed that she was pregnant. When questioned P.W. 1 is said to have disclosed to P.W. 3 that she was subjected to sexual assault by the accused. But instead of lodging a Complaint before the police. P.W. 3 rushed to the mother of the accused for a compromise. Thereafter she sought the advice of an advocate and lodged the complaint before the police. The explanation offered by the prosecution for the delay in lodging the FIR is not cogent and convincing.

On a consideration of the entire evidence and the circumstances arising from the evidence in this case I find that the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt by leading, convincing "and unimpeccable evidence that the accused committed rape on the prosecutrix. According to me, the evidence on record would only show that the accused had sex with P.W. 1 with her consent. Neither the trial Court nor the appellate Court was justified in convicting the accused. The evidence on record would not help the prosecution to prove that the accused has committed house trespass for the purpose of causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or putting any person in fear of hurt, or of assault, or of wrongful restraint. It follows that the accused cannot also be held liable for the offence u/s 452 of the IPC.

In the result, the conviction and sentence passed against the accused are set aside and he is acquitted of all the charges levelled against him. This revision is thus allowed.