Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 627 (KER)

LINISH v. STATE OF KERALA

2018-08-01

SUNIL THOMAS

body2018
JUDGMENT : SUNIL THOMAS, J. 1. These writ petitions arise from Crime No.880/2012 of Chathannoor police station for offences punishable under sections 363,323,376 read with section 34 IPC. 2. On 30/7/2012, at 4.p.m., a 26 year old married woman laid an FIS. It was alleged that, one Firose had developed a close acquaintance with the defacto complainant. On 11/5/2012, Firose requested her to reach Kottiyam junction for passing on a confidential information regarding her husband. While she was waiting for him, Firose came in a car and the person, who was sitting in the rear seat, asked her to enter the car. Thereafter, the vehicle was driven along Thiruvananthapuram route. It was stated that, she was assaulted inside the car. She fell unconscious. When she regained consciousness, it was found that accused had removed her dress and sexually abused her. She was threatened that her nude photographs had been taken. Subsequently, on 4/6/2012, threatening her that her nude photographs would be published, she was again taken in a car by Firose and his friend and raped her one after another in the running car. Due to unbearable trauma that followed, she disclosed the incidents to her husband. Accordingly, arraying Firose as the first accused and his friend as the second accused, crime was registered by the police. 3. Investigation was taken over by the CI of Kottiyam police station. On 22/2/2013, a report was submitted referring one Linish as the second accused. The second accused was arrested on 13/5/2013. He was remanded and released on bail after several days custody. After completion of the investigation, final report was laid against the petitioner herein on 4/7/2014. Since the first accused was not traceable, the second accused alone faced the trial in SC No. 181/2015 of the Additional Sessions Court Kollam. On the side of the prosecution, PW1 to PW8 were examined. The victim, who was examined as PW1, has asserted that though the first accused had raped her, she could not identify the second accused as the person who ravished her along with Firose. As far as that accused was concerned, her stand was that, he was not person who had committed rape. The husband of the defacto complainant was examined as PW2. He also tendered evidence that the second accused was not known to him. As far as that accused was concerned, her stand was that, he was not person who had committed rape. The husband of the defacto complainant was examined as PW2. He also tendered evidence that the second accused was not known to him. Consequently, by the judgment of the Additional Sessions Court, the second accused was acquitted on 28/1/2015. 4. The second accused has filed W.P.(C) No. 416/2017 arraying the State and the Investigating Officer as the respondents. His grievance is that, he did not know the first accused. He was not acquainted with the victim and that he was not involved in any of the offences alleged against him. He alleged that, he was wrongly incriminated in the above case. It was alleged that, the investigating officer had threatened him to array as the accused. The investigating officer demanded huge bribe which was not given. Hence, he was arrayed as the accused. Since he was not involved in the crime, the defacto complainant could not identify him. After full fledged trial, he was found to be innocent and acquitted, it was contended. 5. After the acquittal, the second accused met the defacto complainant, who asserted that the writ petitioner had not committed rape on her. She affirmed an affidavit dated 10/8/2016 asserting that the writ petitioner had nothing to do with the crime. It was claimed that, the false implication in the case had affected his life, his reputation and his marriage got aborted. Hence, he laid Ext.P8 complaint requesting for an effective investigation. The second respondent-State Police Chief was accordingly requested to conduct an enquiry. Contending that, no effective action was taken thereon, the writ petition was filed seeking directions. He sought a direction to the second respondent to conduct a fresh enquiry to establish his case of wrong implication. 6. W.P.(C) No.4225/2017 is also filed by the second accused arraying the State, the State Police Chief, State Police Complaint Authority and the investigating officer as the respondents. He alleged the same grounds which he had set up in W.P.(C) No. 416/2017. It was contended that, he was wrongly implicated and after his implication, he was not shown to the defacto complainant. No TI Parade was conducted to establish his innocence. Section 164 Cr.P.C., 1973 statement of the victim was also not recorded. He alleged the same grounds which he had set up in W.P.(C) No. 416/2017. It was contended that, he was wrongly implicated and after his implication, he was not shown to the defacto complainant. No TI Parade was conducted to establish his innocence. Section 164 Cr.P.C., 1973 statement of the victim was also not recorded. Hence, he submitted Ext.P10 representation to the Chief Minister to conduct enquiry into the allegation of wrong prosecution. No action was taken thereon. He complained to the State Police Complaint Authority by Ext.P12 application. By Ext.P14 order, the State Police Complaint Authority dismissed his application. Ext.P16 is the representation dated 31/1/2017 submitted by him to the Chief Minister. In the writ petition, he prayed to quash Ext.P14 order of the State Police Complaint Authority and to conduct investigation pursuant to Ext.P16. 7. W.P.(C) No.8117/2017 is filed by the defacto complainant arraying the State and investigating officer as the respondents. She admitted that, she was the defacto complainant in the above crime. She asserted that, she did not know the second accused. The second accused was not shown to her in the course of investigation. She was only informed that one Linish was the second accused. At the time of evidence, she saw the second accused for the first time. After evidence was over, she met the second accused and promised him to tell the truth and also to help him in unearthing the truth. She has executed an affidavit dated 10/8/2016 in support of his case. It was contended that, the police purposefully did not investigate against the first accused and he was permitted to roam around. He has not yet been arrested. It was contended that, hence, crime is liable to be properly investigated. He prayed that, a Special Investigating Team may be constituted for proper investigating of the crime. 8. A detailed statement was filed by the District Police Chief, Kollam in W.P.(C) Nos.8117/2017 and 415/2017. It was asserted that investigation into the crime was conducted properly. It was stated that, while investigation was going on, the husband of the defacto complainant by letter dated 4/2/2013 and 18/4/2013 alleged that, one Firose and Linish had raped his wife. Thereupon, the second accused was identified and was arrested on 13/5/2013. He was shown to the defacto complainant and his identity was confirmed. It was stated that, while investigation was going on, the husband of the defacto complainant by letter dated 4/2/2013 and 18/4/2013 alleged that, one Firose and Linish had raped his wife. Thereupon, the second accused was identified and was arrested on 13/5/2013. He was shown to the defacto complainant and his identity was confirmed. It was stated that, in the year 2012, recording of the statement of the victim of rape under section 164 Cr.P.C., 1973was not mandatory. However, non recording of section 164 statement of the victim in this case was identified to be a omission on the part of the then investigating officer and disciplinary action was initiated against him. The District Police Chief specifically denied the allegation that the bribe was claimed for not arraying him as accused. The second accused was acquitted only because of the shifting of version by the defacto complainant. Regarding the procedural errors of the investigating officer, an enquiry was conducted by the Assistant Commissioner of Police, who has submitted a report. It was stated that, in the course of investigation, the first accused was arrested and was remanded on 25/9/2017. 9. Heard both sides and examined the records. 10. It was vehemently contended by the learned senior counsel for the second accused that, he was wrongly implicated. It considerably affected his reputation and credibility. It thereby violated his right to live and he is liable to be compensated. 11. Learned senior counsel for the petitioners placed reliance on the decisions reported in Air India Statutory Corporation etc. v. United Labour Union and Others( AIR 1997 SC 645 ), Nilabati Behera(SMT) Alias Lalita Behera v. State of Orissa and Ors( 1993(2) SCC 746 ), Rabinthra Nath Ghoshal v. University of Calcutta & Others(2002(7) SCC 478), State of West Bengal and Ors v. Committee fort protection of Democratic Rights, West Bengal and Ors.( AIR 2010 SC 1476 ) and State of Gujarat v. Govindhubai Jakhubai and another(AIR 1999 Gujarat 316) to contend that in case of infringement of the indefeasible right guaranteed under Article 21 of the Constitution, remedy is available in public law and the aggrieved person is liable to be compensated adequately. Learned senior counsel, relying also on the decisions, reported in Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh ( AIR 1953 SC 394 ), Sajjan Singh v. State of Punjab( AIR 1964 SC 464 ) and T.Barai v. Henry Ah Hoe and another ( AIR 1983 SC 150 ) contended that, the second accused is liable to be compensated. 12. It seems that regarding the present writ petition, there was some delay in initiating the proceedings. The final report was laid on 4/7/2014. PW1 was examined on 28/11/2015. Though she claimed that, second accused was seen at the time of trial for the first time, there seems to be a report of the investigating officer that immediately after the arrest of the second accused, he was shown to the defacto complainant and identified. Though he was acquitted in the year 2015, an affidavit of the defacto complainant in support of the second accused is seen executed only in August 2016. The writ petition was filed much thereafter in February 2017. The second accused has no explanation as to why in the course of the trial or by any time immediately thereafter, he did not approach this court contending that he has been falsely implicated. Of course, the petitioner herein had a definite case that, he was not the person who committed rape of the defacto complainant. However, he did not pursue his relief immediately after he was acquitted. 13. Regarding the clarification obtained from the victim regarding the identity of the 2nd accused, there are divergent versions. According to the second accused, after acquittal he approached the victim and got a confirmation that he was falsely implicated. On the other hand, the victim in her writ petition has stated that after that, she met the second accused and informed him that he was falsely implicated and offered to file an affidavit. Further, in the cross examination of the victim, she had deposed that the case was settled. Evidently, both the defacto complainant and the second accused have set up identical contentions now. 14. The entire case depends on the identity of the second accused. It is seen that, the second accused was acquitted mainly on the evidence of the victim/defacto complainant that, he was not the person who had committed rape of her. She was declared as hostile and confronted with her previous statement. 14. The entire case depends on the identity of the second accused. It is seen that, the second accused was acquitted mainly on the evidence of the victim/defacto complainant that, he was not the person who had committed rape of her. She was declared as hostile and confronted with her previous statement. In fact, the prosecution has a specific case that, the second accused was shown to the defacto complainant after the arrest and confirmed. It was stated that, the second accused was identified by the police on the basis of a specific representation submitted by the husband of the defacto complainant referring to Linish as the second accused. Complaints were submitted by him on 4/2/2013 and on 18/4/2013. The husband had asserted in the representation to the DGP that the said Linish along with the first accused had committed rape of his wife. On receipt of the above representations, DGP directed that further action to be taken. Thereafter, 2nd accused was identified and report was given to the police. 15. The second accused has no explanation as to why he should be falsely implicated in a serious case of this nature. He has a case that he was approached with a demand for bribe for not implicating in this case. Though initially he agreed and paid some amount, later demands increased and he refused to pay more money. He alleged that, he was wrongly implicated thereafter. However, there is absolutely no material to establish it. 16. It is seen from the records that, the vehicle of the second accused was allegedly involved in the crime. He had no valid explanation as to why the police had seized his vehicle, which was stated to be the vehicle involved in the crime. It was returned to the second accused on executing sufficient bond. 17. At no point of time, the petitioners challenged the trial or the proceeding, on a specific ground that, he was absolutely innocent of the crime and was falsely implicated. He also did not move the court or higher police officers complaining about false implication. It seems that, he waited till the completion of the full fledged trial and now seems to be taking advantage of the fact that the victim turned hostile and did not support the prosecution case. He also did not move the court or higher police officers complaining about false implication. It seems that, he waited till the completion of the full fledged trial and now seems to be taking advantage of the fact that the victim turned hostile and did not support the prosecution case. It is also pertinent to note that, even according to the defacto complainant, her husband was seriously prosecuting the matter. At this juncture, it is hard to believe that from the date of submission of the complaints dated 4/2/2013 and 18/4/2013 by the husband of the defacto complainant till the victim had deposed before the court below, no attempt was made by the defacto complainant and her husband to verify the identity of the person who was arrayed as the second respondent. 18. Having considered the entire facts, I find that the relief sought by the petitioners herein cannot be granted. There is absolutely no merit in the above writ petitions. The writ petitions are liable to be dismissed. Accordingly, the writ petitions are dismissed.