ACHUTHAN KUTTAN Vs. STATE

JUDGEMENT

(1.) ACHUTHAN Kuttan, the accused in S. C. No. 23 of 1955 of the Sessions Court of Kottayam, is the appellant here. He was found guilty by the learned Additional Sessions Judge of the offence of rape punishable under s. 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The prosecution case as put forward before the lower court is as follows: On 2. 12. 1952 Pw. 1 Chacko Mariam, a married woman who was then about 25 years of age, went to work in the fields along with her sister-in-law Pw. 4 and sister-in-law's mother, Pw. 5. In the evening at about 5. 30 p. m. they returned after the day's work. On the way Pws. 4 and 5 stopped to collect some fodder grass and Pw. 1 proceeded on. When she reached the westernmost bend of the Ariattuparambu bund by the side of the water channel there, the accused who was lurking nearby confronted her and caught her hand. But she escaped and ran a bit when the accused pursued her and caught her again. Again she tried to escape. But the accused overtook her and after a struggle managed to have sexual intercourse with her forcing her to lie down on the slope of the bund. Hearing Pw. 1's cries, Pw. 2 looked up and saw the occurrence. On being informed by her Pw. 3 tried to come to the help of Pw. 1 but was scared away by the accused. By that time Pws. 4 and 5 also reached the place when the accused after committing rape left the spot. Pw. 1 was taken along by Pws. 4 and 5 in an almost unconscious state to her house and from there to the hospital. On the basis of her statement the accused was charge-sheeted and now stands convicted for the offence of rape. On his behalf it is contended that the evidence relied upon by the Additional Sessions judge is faulty and unreliable and the conviction cannot be sustained, his plea raised in his statement before the lower court being that he was falsely charged on account of the enmity of Pw. 1's husband in connection with the theft case in which he was implicated on account of the information supplied by the accused.

(2.) THE material witnesses in this case are Pws. 1, the complainant, and Pws. 2 to 5. Pw. 1 deposes to the full occurrence and how she was pursued and forced to have sexual intercourse with the accused while she was returning from the fields. She says that it was hearing her cries that Pw. 2 came there. She refers to Pw. 3 coming there and the accused scaring him away by threatening him with a knife. According to her, after the rape was committed she lost her consciousness and regained it only in the hospital. Pw. 2 deposes to going to the spot hearing the cry of Pw. 1 while she was going that way and witnessing a man and a woman struggling together. When she went near, Pw. 1 again cried for help. She then went and informed Pw. 3. Pw. 3 corroborates her and deposes to going to the spot when informed by Pw. 2 and witnessing the actual occurrence and about his leaving the spot unable to render any help on account of the threats of the accused. THEn he says that he again went to the spot with others by which time Pws. 4 and 5 also reached the spot and refers to Pw. 1 being taken by Pws. 4 and 5. Pws. 4 and 5 depose to their going with Pw. 1 to work in the fields and when returning in the evening to Pw. 1 proceeding in advance and then finding her lying in an unconscious state without clothes and their taking her home and later on to the hospital. Ext. A is the statement given by Pw. 1 to the Sub-Inspector of Police on 3. 12. 1952 while she was in the hospital. THEre is no material discrepancy between what is stated there and that deposed to by Pw. 1 from the box. On behalf of the accused emphasis is placed on Ext. E, the wound certificate issued by Pw. 7, as going to show that there was no rape. In Ext. E certain abrasions are referred to and then it is stated that there were no signs of any recent and violent intercourse. It is urged that if there was struggle and the use of so much violence by the accused there would have been signs of more serious wounds and the evidence of sexual intercourse. THE occurrence is alleged to have taken place at 5. 30 p. m. on 2. 12. 1952 while the examination was at 1. 30 a. m. on 3. 12. 1952. THE doctor when examined says that nothing is recorded in the certificate to the effect that signs of semen were not found on examination and that his remembrance is that there were no such signs. He does not say what is the kind of examination conducted by him on the basis of which the statement that no signs of recent and violent intercourse were seen, was made. Details of the examination conducted are not seen in the certificate. In Taylor's Principles and Practice of Medical Jurisprudence (Volume II, 10th Edition), at page 91 it is observed as follows: "proof of commission is not required by the law, and, therefore, evidence of the presence of spermatozoa is not indispensable. Nevertheless it is necessary to examine any spots and stains on the clothing of the prosecutrix or of the accused for the present of semen. THE vagina of the victim and her public hair should always be examined also. THE presence of spermatozoa in the vagina is conclusive proof of connection, but not of rape; their absence is no proof that connection has not taken place, for they may have been removed by washing or by discharges". So on the basis of the said certificate and the kind of evidence given by that doctor there is no ground to rule out forcible intercourse, when Pw. 1 was a married woman then. Another point emphasised on behalf of the accused is the omission to send the clothes worn by Pw. 1 for chemical examination. Here the evidence is to the effect that her clothes had fallen and were lying apart and she was in a naked condition when found. So those clothes would not have revealed anything. This is a case where we have not only the evidence of the complainant herself but of two other independent eye witnesses like Pws. 2 and 3 and the strong circumstantial evidence furnished by Pws. 4 and 5. As pointed out by the learned Additional Sessions judge it has been laid down in Rameshwar Kalyan Singh v. State of Rajasthan (A. I. R. 1952 Supreme Court 54) that where in cases like this the evidence of the complainant is considered by the court as by itself sufficient to prove the prosecution case nothing stands in the way of finding the accused guilty even in the absence of any other evidence. At page 57 there it is observed as follows: "in my opinion, the true rule is that in every case of this type, the rule about the advisability of corroboration should be present to the mind of the Judge. In a jury case he must tell the jury of it and in a non jury case he must show that it is present to his mind by indicating that in his judgment. But he could also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or when there is no jury, he himself is satisfied that it is safe to do so. THE rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find a place in the charge, before a conviction without corroboration can be sustained". It is also clearly stated there that a woman who has been raped is not an accomplice. In the present case, as pointed before, there is reliable corroborative evidence. THE argument that all these witnesses are perjuring to support Pw. 1's husband in getting the accused implicated in a false case can never be believed. THEre is absolutely nothing to support such a suggestion. THE fact that Pw. 1 was found in an unconscious state and had to be taken to the hospital and treated there is enough to show that force was used in making her submit to the intercourse. THE evidence of Pws. 2 and 3 also support it. THE identity of the accused also is clearly made out in view of the evidence of Pw. 1 supported by that of Pws. 2 and 3. So the prosecution has clearly proved the guilt of the accused and the finding of the learned additional Sessions Judge to the said effect cannot be questioned. So the conviction under S. 376 Indian Penal Code was proper.