BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused was prosecuted for the offence punishable under Section 376 of Indian Penal Code and Section 3(1)(xii) of the Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act. He was found guilty only for the offence punishable under Section 376 of I.P.C. He was therefore convicted and sentenced to suffer rigorous imprisonment for eight years and to deposit a sum of Rs.50,000/- as compensation to P.W.1 within six months and default of payment, to undergo rigorous imprisonment for a further period of one year. Set off as per law was allowed.

(2.) P .W.1 is the victim in this case. She stays with her mother and uncle. She goes for odd jobs. The accused was introduced to her by her close friend Janu. The accused is a fish vendor by profession. The acquaintance with P.W.1 and the accused gained strength as time passed by and it is alleged that from June, 2001 onwards she was compelled by the accused to go along with him and was taken to a shed behind the shop of one Hassan where they indulged in physical contact. The allegation is that the accused had promised her to take care of her if anything happened to her. As a result of the physical contact, she conceived. The news was conveyed to the accused. He retracted from his earlier stand. Ultimately, she delivered a child which did not survive. Under these circumstances, Ext.P1 first information statement was laid by P.W.1. P.W.7 recorded Ext.P1 first information statement and registered crime as per Ext.P1(a) first information report. Investigation was taken over by P.W.8. He had P.W.1 examined by a doctor, and obtained the necessary certificate. He prepared Ext.P6 scene mahazar. On the arrest of the accused, he had the potency test conducted and he obtained plan of the scene of occurrence. He recorded the statements of witnesses, completed investigation and laid charge before court. The court before which final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a Special Court, committed the case to Special Court for trial of Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act cases under Section 209 of Cr.P.C. The said court, on appearance of the accused and on receipt of records, framed charges for the offences punishable under Section 376 of I.P.C. and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had P.Ws.1 to 8 examined and had Exts.P1 to P6 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He in his defence stated that he is innocent and he is looking after his family and parents. He has no acquaintance with the prosecutrix. It is stated that prior to the present complaint, P.W.1 had filed a complaint against one Kunhikannan and Pavi on the same allegations and that in the said case, he was shown as a witness. Since he had no idea about the incident in which those two persons were made accused, he refused to give testimony in favour of the prosecutrix. He would say that in the said case one Jayan and Kunhikannan, who were residing in the colony had approached him and asked him to depose in favour of P.W.1. Since the prosecutrix is a total stranger to him, he refused to do so and the accused in the said case were acquitted. Due to that vengeance, he has been falsely implicated. He got married in the year 1994 and that he had never promised that he would marry the prosecutrix nor had any physical contact with her. He also pointed out that no shop was ever run by Hassan as pointed out by the prosecutrix. He also denied that Janu introduced him to the prosecutrix.

(3.) LEARNED counsel appearing for the appellant contended that the conviction and sentence are not based on legal evidence, but based on conjectures and surmises. Most of the answers given by P.W.1 in chief-examination are to the leading questions and obviously those answers cannot be taken into consideration. If those answers are eschewed, there is nothing in the evidence of P.W.1 to show that the ingredients necessary to attract the offence under Section 376 of I.P.C. are present in the case. It is also pointed out that on going through the evidence of P.Ws.1 and 4, it becomes doubtful whether it was the prosecutrix who had laid the FIS. Further, it is pointed out that in cross-examination P.W.1 admits all the suggestions made by the accused and that demolishes her statements in chief-examination and P.W.1 is not a witness who can be trusted to hold the accused guilty of the offence alleged against him. It is also pointed out that the court below has omitted to notice that the evidence in the case discloses that there was no shop run by Hassan as alleged by the prosecutrix. Attention was also drawn to the fact that previous to the present complaint, P.W.1 had preferred a complaint against two other persons with similar allegations and that case ended in acquittal. In short, the contention of the learned counsel for the appellant is that the court below has not considered the evidence on record and was mainly carried away by the fact that P.W.1 is an illiterate woman and due meaning may be given to the answers given by her during her examination. Learned counsel pointed out that even assuming it to be so, the answers given by P.W.1 cannot be judicially accepted and her evidence cannot be bypassed by saying that P.W.1 is an ignorant lady. The evidence of P.W.4 which has been heavily relied on by the court below, according to learned counsel, serves no purpose. Her evidence is only to the effect that she came to know that her daughter was pregnant when the foetus was six months old. Learned counsel pointed out there is nothing to show that the incident as alleged has occurred. Accordingly, the conviction and sentence cannot stand.