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2007 DIGILAW 93 (KER)

Garvasis Jimmy John v. State of Kerala

2007-02-02

K.THANKAPPAN

body2007
JUDGMENT K. Thankappan, J. 1. The appellant, accused in S.C. No. 439/2004 on the file of the Court of the Additional Sessions Judge (Adhoc-I), Ernakulam, faced trial for the offences punishable under S.376 IPC. The prosecution case against the appellant is that the appellant committed rape on PW 1 on 10-6-1998, 11-6-1998 at the residence of PW 11 and on 13-6-1998 near house No. XV/108 adjacent to the K.S.R.T.C. Bus Stand, Perumbavoor and thereby committed the offence punishable under S.376 IPC. To prove the charge against the appellant, the prosecution examined PW 1 to PW 11 and Exts. P1 to P12 were marked. Material object MO 1 to MO 4 were also marked. When the appellant was questioned under S.313 of Cr.P.C., he admitted that he had sexual intercourse with her, but added that he never threatened her and that was with her consent. Relying on the evidence adduced by the prosecution both, oral and documentary, the trial court found the appellant guilty under S.376 IPC and he was convicted thereunder and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default to undergo simple imprisonment for one year under S.376 IPC. The benefit under S.428 Cr.P.C. was granted. The above conviction and sentence awarded against the appellant are assailed in this appeal. 2. Since the appellant is in jail, the appeal has been filed by him through the jail authorities. As the appellant has not defended his case by his own counsel, State Brief was appointed to defend the case of the appellant. 3. This Court heard learned counsel for the appellant as well as the learned Public Prosecutor. 4. The learned counsel for the appellant contends that the trial court went wrong in accepting the prosecution case to find the appellant guilty of the charges levelled against him. The learned counsel also contends that the evidences adduced by the prosecution are contradictory in nature. It is further contended that the trial court ought to have considered the case set up by the appellant while he was questioned under S.313 Cr.P.C. that he had sexual intercourse with PW 1 with her own consent. Lastly, it is contended that the sentence awarded against the appellant is excessive. 5. It is further contended that the trial court ought to have considered the case set up by the appellant while he was questioned under S.313 Cr.P.C. that he had sexual intercourse with PW 1 with her own consent. Lastly, it is contended that the sentence awarded against the appellant is excessive. 5. The prosecution case is that PW 1, a student of B.A. Degree course aged 19 years, left the house in a frustrated manner and went to Sarvodaya Santhi Bhavan on 9-6-1998 and met PW 3 for shelter and also for employment. PW 3 informed PW 1 that there was no female inmates in the institution and he advised her to go over to Love Home, Thodupuzha wherein female inmates were there. PW 3 consulted the matter with the appellant and the appellant informed him that he was acquainted with the Love Home and he would take her to the Love Home. So, PW 3 entrusted a letter addressed to the Director of Love Home and Rs.100/- with the appellant and he sent PW 1 along with the appellant with direction to the appellant to entrust her with the Director of Love Home at Thodupuza. But, the appellant took her to the residence of PW 11 at Ootty and when they stayed there on 10-6-1998 and 11-6-1998, he committed rape on her without her consent and on 12-6-1998 the above fact was revealed by PW 1 to PW 11, they were sent back. It is also alleged that when PW 1 and the appellant reached Perumbavoor K.S.R.T.C. bus stand at night, the appellant committed rape on her and when PW 9, the A.S.I. of Police, Perumbavoor came over to the bus stand at 2.00 A.M. in connection with his night patrol duty, the matter was informed to him by PW 1. Hence, the appellant was arrested and a case was registered against him. Thereafter, the investigation of the case had been conducted by PW 9 and PW 10 and finally a charge was filed against the appellant. To prove the case against the appellant, the court below mainly relied on the evidence of PW 1 to PW 4 and PW 9 and PW 10. Thereafter, the investigation of the case had been conducted by PW 9 and PW 10 and finally a charge was filed against the appellant. To prove the case against the appellant, the court below mainly relied on the evidence of PW 1 to PW 4 and PW 9 and PW 10. PW 1, who was the victim, stated that she left the house of her uncle, where she was residing study purpose, and as she came to know about the functioning of Sarvodaya Santhi Bhavan, she met PW 3 for getting an employment. She further stated that PW 3 informed her that there was no female inmates in the institution and he advised her to go to Love Home wherein female inmates are admitted. This witness stated that PW 3 sent her along with the appellant with a direction to the appellant to entrust her with the Director of the Love Home. But the appellant took her to the residence of PW 11 at Ootty and when they stayed there on 10-6-1998 and 11-6-1998, the appellant committed rape on her without her consent. She further stated that though she resisted, she was threatened by the appellant by stating that he was a murderer and had undergone imprisonment and he had shown some weapon like knife. She stated that in the residence of PW 11 the appellant introduced her as his lover. When she narrated the entire story to PW 11, they were sent back and when they reached Perumbavoor K.S.R.T.C. bus stand at night, the appellant again committed rape on her. When PW 9, the A.S.I. of Police, Perumbavoor came over to the bus stand at 2.00 A.M. in connection with his night patrol duty, the matter was informed to him. She identified the dresses which she worn on 13-6-1998. She also stated that she was examined by PW 4 doctor at the request of the police. The evidence of this witness is supported by PW 3 who was conducting Survodaya Santhi Bhavan Charitable Trust. He deposed that on 9-6-1998 PW 1 came to the Santhi Bhavan and requested for shelter in the institution. He also deposed that since there was no lady inmates in the institution, he decided to send PW 1 to Love Home and he had given Ext.P2 letter addressed to the Director of Love Home. He deposed that on 9-6-1998 PW 1 came to the Santhi Bhavan and requested for shelter in the institution. He also deposed that since there was no lady inmates in the institution, he decided to send PW 1 to Love Home and he had given Ext.P2 letter addressed to the Director of Love Home. By this time the appellant came there and heard the entire matter and he informed that he knew the Love Home and agreed to take PW 1 to Love Home. So, he gave Rs.100/-, Ext.P2 letter and Ext. P3 dip containing the address of the Love Home and sent PW 1 along with the appellant. He stated that he contacted the Love Home and understood that they did not reach there and he received the information from the newspapers and he went over to the police station, Perumbavoor and found the appellant and PW 1 at the Police Station. The court also considered the evidence of PW 4 who examined PW 1 and issued Ext. P4 medical certificate. She stated that PW 1 was subjected to sexual intercourse. But she stated that there was no external injuries. The statement recorded by PW 4 would also show that PW 1 was raped on previous day. PW 9 and PW 10 are police officials who conducted the investigation of the case. PW 9 A.S.I. who recorded Ext. P1 statement from PW 1 conducted the investigation of the case and filed final charge against the appellant. PW 9 stated that he recorded Ext. P1 statement of PW 1 and she was sent for medical examination. PW 10 was the Head Constable. He stated that he went to Neelgiri at Edakkatti Village and he prepared Ext. P11 mahazar. PW 11 stated that he was a friend of the appellant and he had acquaintance with him at Muringoor in connection with a religious function. He stated that both the appellant and PW 1 came to his house on 10-6-1998 and the appellant introduced PW 1 as his wife and he allow them to live in his house. He also stated that he was the Councilor of Vikutty Panchayat and while the panchayat was going on, PW 1 informed him that the appellant cheated her, she was not his wife and the appellant brought her stating that he was taking her to some orphanage and raped her. He also stated that he was the Councilor of Vikutty Panchayat and while the panchayat was going on, PW 1 informed him that the appellant cheated her, she was not his wife and the appellant brought her stating that he was taking her to some orphanage and raped her. PW 2, father of PW 1, had stated before the court that PW 1 was residing his house and she was studying at the college during the relevant time and she was missed on 9-6-1998. He further stated that no complaint was filed before the police about the missing of PW 1. The trial court after considering the evidence came to the conclusion that " thus the deposition of PW 1 taken along with the evidence of PW 4, Ext. P4 and the report of the chemical analysis, Ext. P12 coupled with the defence of the accused unerringly lead to the irresistible conclusion that the accused had sexual intercourse with PW 1". 6. The submission of the learned senior counsel is that during the stay at Neelgiri there were many chances for PW 1 to reveal all these facts to the public and to escape from the clutches of the appellant and hence the conclusion arrived at by the trial court that the appellant committed rape PW 1 without her consent is not sustainable. 7. The fact that PW 1 went to the institution of PW 3 on 9-6-1998 for shelter and since no female inmates would be allowed in the institution, PW 3 advised her to go to Love Home wherein female members were also permissible and she was entrusted with the appellant to get her admitted at Love Home. She was accompanying the appellant with firm belief that the appellant will get her admitted in some orphanage or some institution. But, the appellant took PW 1 to the residence of PW 11 at Neelagiri and at the residence of PW 11. The evidence of PW 4 would show that PW 1 was subjected to intercourse. She was accompanying the appellant with firm belief that the appellant will get her admitted in some orphanage or some institution. But, the appellant took PW 1 to the residence of PW 11 at Neelagiri and at the residence of PW 11. The evidence of PW 4 would show that PW 1 was subjected to intercourse. After taken into consideration the incriminating circumstances and the dictum laid down by the Apex Court in a decision reported in State of U.P. v. Lakshmi (AIR 1988 scene of occurrence 1007) and legal maxim the trial court came to the conclusion that "in the absence of injury it cannot be concluded that the incident had not taken place or that sexual intercourse was committed with the consent of the prosecutrix". The state of mind of PW 1 has also to be considered. PW 1 left the house in a frustrated stage and she was at the verge of committing suicide. She was accompanying the appellant with firm belief that the appellant will help her. The evidence of PW 1 would show that she along with the appellant reached in the residence of PW 11 early in the morning on 10-6-1998. When she was asked as to why she has not raised any cry, she deposed that though she raised the cry, the others may not be able to identify it because of language problem or because they were not aware of the presence of PW 1 and the appellant at the house. In cross examination she stated that she was in a strange place far away from the residence and that too in Tamil Nadu and she could not escape by running away since she did not know any place in the residence of PW 11, which was situated almost on the top of a hill. In the above circumstances, it can be concluded that PW 1 was in a frustrated, dejected and helpless and on account of such state of mind cannot be conceded as consent. Consent is defined in The Law Lexicon with Legal Maxims, written by P. Ramanatha Aiyar, Reprint Edition 1992 the word 'consent' is defined as "an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side". In Black's Law Dictionary Seventh Edition it is defined as "agreement, approval or permission as to some act or purpose, esp. In Black's Law Dictionary Seventh Edition it is defined as "agreement, approval or permission as to some act or purpose, esp. given voluntarily by a competent person". Moreover in Oxford Advanced Learner's Dictionary it is defined as "permission to do, especially given by in authority" The reliance placed by the learned counsel in a decision reported in Dileep Singh alias Dilip Kumar v. State of Bihar, 2005 (1) SCC 88 : 2005 KHC 189 is not applicable in the facts and circumstances of the case. Hence, this Court is of the view that the findings entered by the trial court are based on evidence and it requires no interference by this Court. The conviction entered against the appellant under S.376 IPC is confirmed, accordingly. 8. With regard to the sentence awarded against the appellant, considering the fact that PW 1 was aged 19 years and Second year B.A. Degree student and that she voluntarily accompanied the appellant to Ootty instead of Love Home, Thodupuzha as directed by PW 3 and also the fact that she did not object to having been introduced as the wife of the appellant, this Court is of the view that rigorous imprisonment for five years will meet the ends of justice. Hence, the appellant is sentenced to undergo rigorous imprisonment for five years under S.376 IPC. 9. The sentence awarded against the appellant is modified as above and the appeal is dismissed.