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2003 DIGILAW 684 (KER)

Aliyar v. State of Kerala

2003-11-03

J.M.JAMES, K.A.ABDUL GAFOOR

body2003
JUDGMENT 1. The appellant/accused stands convicted and sentenced for the offences punishable under S.3(1)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in short 'the Act', and for the offence punishable under S.376 I.P.C. On the first count, he has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/-. On the second count he has been sentenced to undergo imprisonment for life, and to pay a fine of Rs. 25,000/-. On the third count, he has been sentenced to undergo imprisonment for seven years, and to pay a fine of Rs.25,000/-, and in default of payment of fine, to undergo imprisonment for two years. The sentences had been directed to run concurrently. 2. The incident alleged was as follows. The accused was a lorry cleaner, engaged usually to drive the . lorry as well, in which sand has been taken from certain construction sites. In the construction site, where the lorry has been engaged, PW. 1, prosecutrix, was also engaged for loading sand. On the particular work site, behind Thaze Chovva electricity office, the prosecutrix and the accused were employed for the work of removal of sand for about three months. On 16.2.1997, when the incident had happened, the accused was on leave. The prosecutrix was changing her work dress at the close of the work on that date. Male workers have already left the work place. Female workers had also washed their hands, changed their dresses and went away. PW.1, the prosecutrix. while changing her dress in a room under construction, the accused came there and forcibly took her to another room, where he had committed rape on her. After the incident, the accused left. PW.1, also thereafter left the place. On her way, she felt bleeding. She verified it in the house of PW.6. She confirmed the bleeding and immediately came out of that house and got an autorickshaw, and asked to be hospitalised in the nearest hospital. She has been hospitalised in the A.K.G. Memorial Hospital, and has been examined by PW.7, the Doctor, who found rupture on her hymen and it was sutured. On the next day, PW.7, made Ext.P5 intimation to the police. She has been hospitalised in the A.K.G. Memorial Hospital, and has been examined by PW.7, the Doctor, who found rupture on her hymen and it was sutured. On the next day, PW.7, made Ext.P5 intimation to the police. Thereafter, as medico legal facilities were available only in the Government Hospital, she was removed to Government Hospital, Kannur, where she gave Ext.P1 F.I. Statement on 17.2.1997 to PW.11, the Assistant Sub Inspector. PW.12 conducted the investigation. The investigation revealed that PW.1 belongs to Scheduled Caste, and rape had been committed on her by the accused, belonging to another community, and was with the intention to offend the modesty of PW.1, and to exploit her caste status as a member of the Scheduled Caste. Therefore, the charges were laid against the appellant/accused under S.3(1)(xi) and 3(2)(v) of the Act, and under S.376 I.P.C. 3. All together 12 witnesses were examined on the prosecution side, and 14 documents were marked, apart from identifying M.Os. 1 to 6, the blood stained dresses of the prosecutrix. No defence evidence was led. Copy of lawyer notice said to be sent on behalf of the prosecutrix was marked as C1 . 4. The inter course is not disputed. Therefore, the main point to be considered is whether there was consent on the part of the PW.1, prosecutrix, and whether the accused had taken undue advantage on her exploiting her caste status under S.3(2)(v) of the Act. That the prosecutrix belongs to Scheduled Caste community is also not disputed by the appellant. We will examine the issue focused before us in the light of the aforesaid perspective. 5. It is contented that there was consent from PW. 1 . For this purpose, several letters, though not marked, have been produced before the court below which indicate earlier communications between the parties. Several further letters also had been attempted to be produced before this Court as additional documents, in which also earlier communications are referred to. It is submitted that these were written by the prosecutrix to the appellant. Therefore, this time also there was consent, it is p resumed. 6. It is further contented that the accused was on leave on the date of the incident, namely, 15.2.1997. The accused had been there just on the close of the working hours, and therefore, this was because of a preplan between them. Therefore, this time also there was consent, it is p resumed. 6. It is further contented that the accused was on leave on the date of the incident, namely, 15.2.1997. The accused had been there just on the close of the working hours, and therefore, this was because of a preplan between them. So, it can be presumed that there was consent from PW .1. Apart from rupture on hymen, there was no other bodily injury. Had there been no consent, there would have been resistance and there would have been injuries on the private parts of the prosecutrix. Moreover, the incident happened in a building under construction. Therefore, forceful inter course will result in injuries on the other parts of the body. 7. It is further contented that after admitting PW.1 to the A.K.G.Memorial Hospital on 16.2.1997, as is seen from Ext.P6 case sheet, she did not divulge to PW.7, the Doctor, who attended her, that she had been subjected to rape. She had only complained of vaginal bleeding alone. She did not divulge to the Doctor any forceful inter course . This also reveals her consent, it is contented. 8. Referring to the evidence of PW.1. the counsel for the appellant had brought to our notice that she did not cry aloud during the incident. There was a house just about 10 metres away from the place of incident. Had she cried aloud - if there was no consent, the inhabitants of that house would have come to save her. This also indicates that there was consent. 9. From the circumstances, it is further contented by the appellant that on the next day, that is on 17.2.1997. there appeared a report regarding the incident in a newspaper that it was a rape on a member of Scheduled Caste. It was only because of that, PW.7 made Ext.P5 intimation to the police about the rape. It is also pointed to us, from the evidence of PW.7, that had there been no paper report, he might not have sent a report as if it was a medico legal case. Therefore, this is a case where consent was expressed, and only because she had become frightened due to disgrace that may come upon her because of the newspaper report, that she had styled the same as a rape. 10. In this regard. Therefore, this is a case where consent was expressed, and only because she had become frightened due to disgrace that may come upon her because of the newspaper report, that she had styled the same as a rape. 10. In this regard. several decisions have been cited by the counsel for the appellant. Relying on the decision reported in Pratap Misra and others v. State of Orissa (AlR 1977 SC 1307), it is submitted that absence of injury will necessarily indicate a consent from the prosecutrix. True, the said decision indicated so. It was a case of gang rape on a pregnant women. When there is a gang rape on a pregnant woman, without the consent of the prosecutrix, there would have been chances of other bodily injuries. Therefore, that decision does not have any bearing to the facts of this case. 11. It is further contented relying on the decision reported in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat ( AIR 1983 SC 753 ), that corroboration shall be insisted upon when a women having attained majority is found in compromising position. and there is likelihood of her having levelled such an accusation on account of the instinct of self - preservation. In this case, Ext.P1 F.I. statement is the result of such self - preservation, that too, on the next day, after the newspaper report appeared about the incident. 12. Relying on the decision reported in State of Karnataka v. Shabuddin (1995 Crl.LJ 3237), it is contented that the conduct of the prosecutrix in keeping quiet at the first instance shall also reveal a consent. Therefore, from the facts of the present case, it can be inferred that there was consent from the prosecutrix. 13. The dictum of the Supreme Court in Pratap Misra's case cited supra, is not applicable to the facts of this case, because, this is not a gang rape. If it is a gang rape, surely, she should have sustained other bodily injuries, than the rupture on hymen, as had happened in the above mentioned case. This is a case of solitary rape. Going by the evidence of PW.1. it certain that the accused had threatened of her consequences. In such circumstances, she might have been made quiet, because of threat exerted. In such circumstances; it is only probable to have no further injury than rupture on hymen. 14. This is a case of solitary rape. Going by the evidence of PW.1. it certain that the accused had threatened of her consequences. In such circumstances, she might have been made quiet, because of threat exerted. In such circumstances; it is only probable to have no further injury than rupture on hymen. 14. The decision in Bharwada Bhoginbhai Hirjibhai's case cited supra, has no application to the facts of this case. The Supreme Court in that case, comparing the situation in foreign countries, and that prevailing in lndia, held as follows: "11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light, there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown, or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex - offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would there be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a genera; rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having level led such an accusation on account of the instinct of self - preservation. Or when the 'probabilities-factor' is found to be out of tone." Therefore, the evidence of the victim is much more important in a case of sex offence. In this case, the evidence of PW. 1 is trustworthy, and it is almost in consonance with her statement to the police. A minor variation in her deposition as compared to Fxt.P1 F.I. Statement or some minor contradictions in the cross examination cannot make it untrustworthy. To say that, she has been lieing, would be to add insult to the injury that she had sustained. 15. Moreover , there was no delay also in lodging Ext.P1 F.I. statement. She had been admitted to the nearest hospital where the autorickshaw driver had taken her. There is a case that she had been taken by the accused and his friend to the hospital. It is immaterial. The doctor found bleeding from her private parts and attended her and given sufficient treatment. Merely because the Doctor did not give immediate intimation to the police about the probable rape, it cannot be taken that PW.1, had given a different shape to the incident. 16. The decision reported in The State of Karnataka v. Shabuddin's case cited supra, does not have any application to the facts of this case. In that case, the prosecutrix had made a complaint after about six days of the incident. Therefore, the facts of the case are entirely different. 17. On the other hand, the learned Public Prosecutor is well armed with the decision reported in State of Rajasthan v. N.K. (2000 SCC (crl) 898), wherein, it had been held in Para.15 that, "the delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court, it cannot be counted against the prosecution". 18. In this regard, we have to refer to the evidence of the investigating Officer, PW. 12. No question had been put to PW. 12 with regard to the delay in lodging the F.I.R. On the other hand, the facts revealed are that PW.1 had been admitted in a private hospital. 18. In this regard, we have to refer to the evidence of the investigating Officer, PW. 12. No question had been put to PW. 12 with regard to the delay in lodging the F.I.R. On the other hand, the facts revealed are that PW.1 had been admitted in a private hospital. and on the next day, the Doctor had given Ext.P5 intimation to the police and had transferred her to the Government Hospital, Kannur, where medico legal facilities were availab1e. Therefore, there was no delay at all. The Public Prosecutor was also justified in relying on Para.18 of the above cited case, which is with respect to the absence of any injury. But we need not much harp upon it, because that was a case where the incident had been reported after about 2 to 3 days. But the Supreme Court has referred to the decision in Karnel Singh v. State of M.P. (1995 SCC (CRl) 977), and held as follows: "In Karnel Singh, the prosecutrix was made to I ie down on a pi Ie of sand. This Court held that absence of marks of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse. It will all depend on the facts and circumstances of each case." Therefore, there is no possibility of inferring any consent in this case. 19. Even if we accept the entire letters produced before the court below as well as before this Court, we cannot infer consent. Merely because as stated in the said letter, there had been earlier intercourses between the two, that will not give a licence to the accused to have any forceful intercourse on PW.1 later. Moreover, if there had been several intercourses as mentioned in the said letter, there arise no question in immediate rupture of hymen at this time, which happened on 16.2.1997. Therefore, the veracity and truthfulness of the contents of the tetter had to be much doubted, especially, in the light of Ext.C1. Ext.C1 is supposed to be a notice sent on behalf of the prosecutrix to the police directing the police not to proceed with the case further. She disowned any instructions given to the Advocate who had issued Ext.C1. Therefore, the veracity and truthfulness of the contents of the tetter had to be much doubted, especially, in the light of Ext.C1. Ext.C1 is supposed to be a notice sent on behalf of the prosecutrix to the police directing the police not to proceed with the case further. She disowned any instructions given to the Advocate who had issued Ext.C1. But more fun of the matter is that the counsel who had sent Ext.CI is none other than the counsel who defended the accused in the court below. 20. In the aforesaid circumstances, there arises no situation to escape the conviction under S.376 I.P.C. Consequently, the sentence awarded by the court below on that count also has to be upheld. 21. Now we will come to conviction under S.3(2)(v) of the Act. To convict one under the said section, a person not belonging to Scheduled Caste/Scheduled Tribe would have committed an offence on a person belonging to Scheduled caste or Scheduled Tribe, or her property, and the offence should be one which shall carry a sentence of imprisonment for a term of 10 years or more. Then alone, one can be awarded sentence to undergo life imprisonment under S.3(2)(v) of the Act. 22. In this regard, it is submitted by the counsel for the appellant that even if the offence punishable under S.376 of I.P.C. is found against the accused/appellant, there arise no circumstance of he being exploiting the caste status of the prosecutrix. Even though, she had stated so in Ext.P1 F.I.Statement, she did not speak so while in the box as PW.1. The appellant has relied in this regard, the decision of this Court reported in Ramachandran v. State of Kerala ( 1996 (1) KLT 296 ), in which, this Court held as follows: "No evidence is adduced by the prosecution to show that the accused committed rape on PW. 1 on the ground that she is a member of a Scheduled Tribe. It is not enough if the victim if a member of a Scheduled Caste or a Scheduled Tribe. The offence must have been committed because the victim is a member of a Scheduled Caste or a Scheduled Tribe. The cause for. the offence must contain an element of racial prejudice" 23. It is not enough if the victim if a member of a Scheduled Caste or a Scheduled Tribe. The offence must have been committed because the victim is a member of a Scheduled Caste or a Scheduled Tribe. The cause for. the offence must contain an element of racial prejudice" 23. It is true that the offence punishable under S.376 I.P.C. had been committed by the accused on PW.1, and that PW.1 belongs to a Scheduled Caste. But PW.1 has no case that such offence had beer, committed on her because of any caste prejudice. Therefore, the conviction and sentence under S.3(2)(v) of the Act is not at all sustainable. Accordingly, we set aside the conviction and sentence of life imprisonment and infliction of fine of Rs.25,000/- on that count. 24. Now, we will come to the conviction and sentence under S.3(1)(xi) of the Act. The provision reads as follows: "3(1)(xi) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe, assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine." It is not disputed that PW.1 belongs to a Scheduled Caste. We have already found that accused had committed the offence punishable under S.376 of I.P.C. It amounts to outraging the modesty of PW.1. That itself is sufficient to come within the frame of S.3(1)(xi) of the Act to attract the punishment. The court below Had sentenced him under that Section only for one year. The sentence can even extent to five years. In such circumstances, as we have confirmed the sentence under S.376 I.P.C. and so long as PW. 1 belongs to a Scheduled Caste, the appellant cannot escape the conviction and sentence under S.3(1)(xi) of the Act. Accordingly, the conclusions are as follows: (1) The conviction and sentence under S.376 I.P.C. by the court below is confirmed. (2)The conviction under S.3(2)(v) of the Act is set aside. (3)The conviction and sentence under S.3(1)(xi) of the Act is confirmed. (4)The sentences confirmed shall run concurrently. The appeal is thus, allowed in part.