Kerala High Court
Binish vs The State Of Kerala on 12 June, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 12TH DAY OF JUNE 2024/22ND JYAISHTA, 1946
CRL.A.NO.1069 OF 2016
CRIME NO.234/2015 OF KALAMASSERY POLICE STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED 18.07.2016 IN S.C.NO.439 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST
WOMEN & CHILDREN), ERNAKULAM
APPELLANT:
ATHUL
AGED 23 YEARS
S/O.DIVAKARAN, PARAKKAT HOUSE, THEVAKKAL BHAGAM,
THRIKKAKKARA NORTH, ERNAKULAM.
BY ADV.P.PARAMESWARAN NAIR
BY ADV.SRI.C.R.SYAMKUMAR
BY ADV.SMT.V.A.HARITHA
BY ADV.SMT.MARY RESHMA GEORGE
BY ADV.SMT.P.M.MAZNA MANSOOR
BY ADV.SRI.SOORAJ T.ELENJICKAL
BY ADV.SMT.SANDHYA R.NAIR
RESPONDENTS:
1 STATE OF KERALA
THROUGH CIRCLE INSPECTOR OF POLICE, KALAMASSERY,
ERNAKULAM DISTRICT, REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031.
2 ADDL. XXX ( VICTIM)
XXX (IMPLEADED AS PER ORDER DATED 08.11.2022 IN
CRL.M.A.1/2022 IN CRL.A.1069/16)
BY SRI.ALEX M. THOMBRA, PUBLIC PROSECUTOR
BY ADV.SRI.RAMESH. P
BY ADV.SMT.FATHIMA NARGIS K.A.
BY ADV.SRI.BINIYAMIN K.S.
BY ADV.SMT.SANGEERTHANA M.
BY ADV.SRI.BLEIMY T.JOSE(K/1596/2023)
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 2 ::
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 05.06.2024 ALONG WITH CRL.A.807/2016 AND CONNECTED
CASES, THE COURT ON 12.06.2024 DELIVERED THE
FOLLOWING:
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 3 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 12TH DAY OF JUNE 2024/22ND JYAISHTA, 1946
CRL.A.NO.807 OF 2016
CRIME NO.234/2015 OF KALAMASSERY POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.07.2016 IN SC NO.439 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN
& CHILDREN), ERNAKULAM
APPELLANT/ACCUSED NO.6:
JASMINE
AGED 35 YEARS, KUPPASSERY HOUSE,
KANGARAPPADYKARA, THRIKKAKARA NORTH VILLAGE
BY ADV.SRI.A.S.FARIDIN
RESPONDENT COMPLAINANT/ADDL. RESPONDENT:
1 STATE OF KERALA
REP. BY CIRCLE INSPECTOR OF POLICE, KALAMASSERY,
POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
2 ADDL.RESPONDENT:
XXX
(ADDL.RESPONDENT IS IMPLEADED AS PER ORDER DATED
09.01.2023 IN CRL.M.A.1/2022)
BY SRI.ALEX M. THOMBRA, PUBLIC PROSECUTOR
BY ADV.SRI.RAMESH .P
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.06.2024 ALONG WITH CRL.A.1069/2016 AND CONNECTED
CASES, THE COURT ON 12.06.2024 DELIVERED THE
FOLLOWING:
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 4 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 12TH DAY OF JUNE 2024/22ND JYAISHTA, 1946
CRL.A.NO.820 OF 2016
CRIME NO.234/2015 OF KALAMASSERY POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.07.2016 IN S.C.NO.439 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN
& CHILDREN), ERNAKULAM
APPELLANT/5TH ACCUSED:
BINISH
AGED 32 YEARS
KURUPPASSERY HOUSE, KANGARAPADYKARA,
THRIKKAKARA NORTH VILLAGE.
BY ADV.SRI.A.S.FARIDIN
RESPONDENT/COMPLAINANT:
1 THE STATE OF KERALA
REPRESENTED BY THE C.I OF POLICE,
KALAMASSERY POLICE STATION, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM. PIN - 682 031.
2 ADDL.RESPONDENT:
XXX (VICTIM)
(ADDL.RESPONDENT IS IMPLEADED AS PER ORDER DATED
03.01.2023 IN CRL.M.A.1/2022)
BY SRI.ALEX M. THOMBRA, PUBLIC PROSECUTOR
BY ADV.SRI.RAMESH .P
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 05.06.2024 ALONG WITH CRL.A.1069/2016 AND CONNECTED
CASES, THE COURT ON 12.06.2024 DELIVERED THE
FOLLOWING:
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 5 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 12TH DAY OF JUNE 2024/22ND JYAISHTA, 1946
CRL.A.NO.1072 OF 2016
CRIME NO.234/2015 OF KALAMASSERY POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.07.2016 IN SC NO.439 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN
& CHILDREN), ERNAKULAM
APPELLANTS/ACCUSED NO.2 & 3:
1 ANEESH
AGED 28 YEARS
S/O.NARAYANAN, KOLLARA HOUSE, MUTHIKKATTUMUKAL,
EDATHALA KARA, ALUVA EAST VILLAGE.
2 MANOJ
AGED 21 YEARS
S/O.RAJAN, PARAYIL HOUSE,
MANLIMUKKU BHAGOM, ALUVA.
BY ADV.SRI.JOSEPH M.P.
BY ADV.SRI.JOHN VIPIN
BY ADV.SRI.V.K.KISHOR
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2 ADDL.RESPONDENT:
XXX
(ADDL.RESPONDENT IS IMPLEADED AS PER ORDER DATED
08.11.2022 IN CRL.M.A.1/2022)
BY SRI.ALEX M. THOMBRA, PUBLIC PROSECUTOR
BY ADV.SRI.RAMESH .P
BY ADV.SMT.FATHIMA NARGIS K.A.
BY ADV.SRI.BINIYAMIN K.S.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 6 ::
BY ADV.SMT.SANGEERTHANA M.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.06.2024 ALONG WITH CRL.A.1069/2016 AND CONNECTED
CASES, THE COURT ON 12.06.2024 DELIVERED THE
FOLLOWING:
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 7 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 12TH DAY OF JUNE 2024/22ND JYAISHTA, 1946
CRL.A.NO.1101 OF 2016
CRIME NO.234/2015 OF KALAMASSERY POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 18.07.2016 IN SC NO.439 OF 2015
OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN
& CHILDREN), ERNAKULAM
APPELLANT/ACCUSED NO.4:
NIYAS @ MASTHAN
AGED 28 YEARS, S/O NAINAR, MUNDAKKAL HOUSE,
MUNDAKKAL BHAGAM, KANGARAPPADI, THRIKKAKKARA
NORTH VILLAGE, ERNAKULAM DISTRICT.
BY ADV.SRI.RENJITH B.MARAR (K/000240/2003)
BY ADV.SRI.M.J.SANTHOSH
BY ADV.SRI.ANTONY PAUL(K/1377/2021)
RESPONDENT/COMPLAINANT:
1 THE STATE OF KERALA
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
2 ADDL. RESPONDENT:
XXX
(ADDL. RESPONDENT ISIMPLEADED AS PER ORDER DATED
08/11/2022 IN CRL.MA.NO.3/2022)
BY ADV.SRI.ALEX M. THOMBRA, PUBLIC PROSECUTOR
BY ADV.SRI.RAMESH.P
BY ADV.SMT.FATHIMA NARGIS K.A.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.06.2024 ALONG WITH CRL.A.1069/2016 AND CONNECTED
CASES, THE COURT ON 12.06.2024 DELIVERED THE FOLLOWING:
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 8 ::
"C.R."
JUDGMENT
Dr. A.K. Jayasankaran Nambiar, J.
These Criminal Appeals are filed against the judgment of the
Court of the Sessions Judge, Ernakulam in S.C.No.439 of 2015
arising out of Crime No.234/2015 of Kalamassery Police Station.
The appeals are preferred by A1 to A4 against their conviction and
sentence under Sections 120B(1), 366, 376D, 394, 323 and 342 of
the Indian Penal Code [hereinafter referred to as the 'IPC']; and by
A5 and A6 against their conviction and sentence under Section 212
read with Sections 34, 411 and 414 of IPC.
2. The prosecution case is that A1 to A4 hatched a criminal
conspiracy to commit abduction, rape and robbery. Accordingly, on
14.02.2015 at about 8 a.m., A1 to A4 reached Edapally Toll in an
autorickshaw bearing registration No.KL-40/F-2019 driven by A4,
where PW1 and PW2 were waiting in anticipation of work. A1 to
A4 took PW1 and PW2 in the aforementioned auto, under the
pretext of taking them for cutting grass near a Ladies hostel of
Cochin University. En route to the location, A2 and A3 boarded the
auto near Mithra Super Market, indicating that they were also
workers for cutting grass. PW1 and PW2 were taken to a beaten
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 9 ::
track in the middle of a barren hill near to building No.XIV/223 of
Kalamassery Municipality. At about 8.30 a.m., A1 laid PW1 on the
ground, and while A2 caught her shoulders, A1 had sexual
intercourse with PW1 by force and without consent. Meanwhile A2
forcibly removed her 3 1/2 sovereign gold chain with thali and 1/2
sovereign ring. While PW2 tried to prevent them, A3 and A4
wrongfully confined her and took Rs.150/- from her. Then A2 to A4
had sexual intercourse with PW1 against her will. Thereafter, A4,
with the intention of outraging her modesty, intentionally took her
nude photographs and when it was objected by PW1, A4 beat her
on the face and other parts of her body and took her ¼ sovereign
earrings, samsung mobile and Rs.400/- from her shirt pocket. A1 to
A4 also threatened PW1 and PW2 with dire consequences if they
revealed the incident to anybody and also threatened to publish the
photographs taken on the internet. The prosecution also has a case
that A5 and A6, with the knowledge that A1 to A4 had committed
the above offence, permitted them to reside in their house and
received the gold ornaments with the knowledge that they were
stolen properties and assisted them in concealing and disposing the
same.
3. The case was registered by CW47, S.I of Police,
Kalamassery on the basis of the F.I. Statement of PW1, recorded by
PW27, WCPO. The case was investigated by PW33, C.I of Police,
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 10 ::
Kalamassery. On completion of the investigation, he laid the charge
sheet before the Judicial First Class Magistrate Court, Kalamassery
and taken on file as C.P.No.5/15. After complying with the
provisions of Section 207 of the Cr.P.C., the learned Magistrate
committed the case to the Court of Sessions, Ernakulam under
Section 209 of Cr.P.C and the case was taken on file as
S.C.No.439/2015 and later made over for trial and disposal.
4. Accused Nos.1 to 4 were in custody and were produced in
accordance with the production warrants. A5 and A6 appeared in
court. After hearing the prosecution and the defence, charges were
framed under Sections 120B(1), 376D, 376(2)(n), 394, 366, 342,
323, 506(2) read with Section 34 IPC and Section 67A of the
Information Technology Act, against A1 to A4. A5 and A6 were
charged under Sections 212, 411 and 414 read with Section 34 of
the IPC. The charges were read over and explained to A1 to A6 in
Malayalam, and they pleaded not guilty.
5. The Prosecution examined PW1 to PW33 and marked
Exts.P1 to P45. MOs.1 to 28 were identified. After that the
accused were examined under Section 313(1)(b) of the Cr.P.C. They
denied all the incriminating evidence brought out by the
prosecution. Thereafter, the prosecution and the defence were
heard under Section 232 of Cr.P.C. Finding that there was no scope
for acquittal, the accused were called upon to enter on their
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 11 ::
defence. On the side of the defence, the mother of A1 was examined
as DW1. Copies of the FIR and medical certificate of A1 were
marked as Exts.D1 and D2. While identifying the material objects,
the earrings (grape model) and the jeans of A1 were together
referred to as MO13(a). After MO25, instead of marking the MO's
as MOs.26 to 28, they were marked as MOs.27 to 29 although they
were referred as MOs.26 to 28 before the trial court. Since there
was an error in the 5th head of the charge, it was corrected and
read over and explained to the accused. They pleaded not guilty.
Thereafter, the prosecution and defence were heard again. Once
again the charge was altered as under Sections 120B(1), 366,
376D, 376(2)(n), 394, 342, 323, 506(ii) read with Section 120B of
IPC, under Section 66E of the Information Technology Act, against
A1 to A4 and under Sections 212, 411, 412 read with Section 34 of
IPC against A5 and A6. The altered charges were again read over
and explained to the accused and they pleaded not guilty. Both
prosecution and the defence submitted that they didn't want to
recall any witness for further examination. However, the
prosecution later filed CMP.No.616/16, for recalling PWs.1, 2 and
20. After hearing both sides, it was dismissed on 02.07.2016. The
Prosecution and defence were heard again.
6. The trial court found A1 to A4 guilty under Sections
120B(1) IPC and under Sections 366, 376D, 394, 323 and 342 read
with Section 120B of IPC and sentenced them to undergo rigorous
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 12 ::
imprisonment for life, which shall mean imprisonment for the
remainder of their natural life, and to pay a fine of Rs.10,000/- each
under Section 120B(1) of IPC. In default of payment of fine
amount, they were sentenced to undergo rigorous imprisonment for
another two months. They were also sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.10,000/- each
under Section 366 read with Section 120B of IPC. In default of
payment of fine amount, they were to undergo rigorous
imprisonment for another two months. They were also sentenced to
undergo rigorous imprisonment for life, which shall mean
imprisonment for the remainder of their natural life and to pay a
fine of Rs.25,000/- each under Section 376D read with Section
120B of IPC. In default of payment of fine amount, they were to
undergo rigorous imprisonment for another six months. They were
further sentenced to undergo rigorous imprisonment for life and to
pay a fine of Rs.10,000/- each under Section 394 read with Section
120B of IPC. In default of payment of fine amount, they were to
undergo rigorous imprisonment for another two months. They were
also sentenced to undergo rigorous imprisonment for one year
under Section 342 read with Section 120B of IPC and rigorous
imprisonment for one year under Section 323 read with Section
120B of IPC. The substantive sentence of imprisonment was to run
concurrently and set off was also allowed. The said accused were
also found not guilty under Sections 376(2)(n), 506(ii) read with
Section 120B IPC and Sections 66A of the Information Technology
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 13 ::
Act and they were acquitted under Section 235(1) of the Cr.P.C. for
those offences.
7. As regards A5 and A6, they were found guilty under
Section 212 read with Section 34 IPC and sentenced to undergo
rigorous imprisonment for three years and to pay a fine of
Rs.5,000/- each under Section 212 read with Section 34 IPC. In
default of payment of fine amount, they were to undergo rigorous
imprisonment for another one month. Accused No.6 was further
found guilty under Sections 411 and 414 of IPC and sentenced to
undergo rigorous imprisonment for three years and to pay a fine of
Rs.5,000/- under Section 411 of IPC. In default of payment of the
fine amount, she was to undergo rigorous imprisonment for another
one month. She was also sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.5,000/- under
Section 414 of IPC, and in default of payment of the fine amount,
she was to undergo rigorous imprisonment for another one month.
The substantive sentences of imprisonment of A5 and A6 were to
run concurrently and set off was also allowed. The trial court also
found that the fine amount, if realised, will be given to PW1 as
compensation under Section 357(1) of the Cr.P.C. There was a
further direction to return the properties MOs.1 to 5 to PW1 and
MO13 series and cash of Rs.7,000/- to PW19, who was the
bona fide purchaser. Other properties and mobile phones were to
be confiscated. A recommendation was also made to the District
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 14 ::
Legal Services Authority, Ernakulam to award sufficient
compensation to the victim PW1 as per the provisions of the Victim
Compensation Scheme.
8. In the appeals before us, we have heard Sri.P.
Parameswaran Nair, Sri.Renjith B. Marar and Sri.A.S.Faridin, the
learned counsel for the appellants and Sri.Alex M. Thombra, the
learned Public Prosecutor for the respondent State.
9. The submissions of Sri.Parameswaran Nair, the learned
counsel appearing for A1 to A3, briefly stated, are as follows:
● The testimony of PW1 before the court is not consistent with
the statements made before the doctor at first instance, her F.I.
Statement [Ext.P1] and the FIR [Ext.P27]. While there is a
discrepancy with regard to the date of the alleged incident, there is
also ambiguity with regard to the identity of those who allegedly
raped her as also in respect of the number of persons who raped
her.
● The injuries noticed on the body of PW1, as revealed by
Exts.P15 and P15(a) certificates, are not consistent with the
suggestion of gang rape, more so when there were no injuries
noticed on her private parts. Further, the chemical examination
report [Ext.P43] is also not conclusive when it suggests the
detection of spermatozoa on the dress of the victim as also in the
vaginal swabs taken from her without linking it definitely to any
particular accused.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 15 ::
● The testimony of DW1, the mother of A1 would clearly reveal
that the police had an axe to grind against A1 since he had a verbal
altercation with them a few days before the alleged incident of rape
in connection with the case of seizure of his motorcycle for an
offence under the Motor Vehicles Act.
● On the aspect of sentencing, it is contended that the trial
court imposed the maximum sentence of imprisonment for the
remainder of the life of the accused without giving any reason for
the imposition of the maximum punishment. It is contended that
since the legislature prescribes only a minimum mandatory
sentence of 20 years, it was incumbent upon the trial court to
provide reasons to justify a sentence above the prescribed
minimum.
10. The submissions of Sri.Renjith B. Marar, the learned
counsel for A4, over and above what has been urged on behalf of A1
to A3, briefly stated, are as follows:
● There is no evidence to establish that A4 was a member of
the four member gang that allegedly committed the gang rape.
While there is inconsistency in the version of PW1, PW2 and PW4
with regard to the identity of the person who drove the
autorickshaw that picked them up from Edapally Toll, they have
also not identified A4 properly in court. That apart, the testimony
of PW11, who saw PW1 and PW2 alight from the autorickshaw near
the crime scene, also corroborates the theory that he was not there
at the time of the incident. It is contended that the inconsistencies
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 16 ::
established in their respective testimonies render the testimonies of
PW1, PW2 and PW4 unreliable. Reliance is placed on the decisions
in Vayalali Girishan & Others v. State of Kerala - [2016 KHC
204], Rahul v. State of Delhi Ministry of Home Affairs - [2022
KHC 7172], Santosh Prasad @ Santosh Kumar v. State of
Bihar - [(2020) 3 SCC 443] and Nirmal Premkumar v. State
Rep. by Inspector of Police - [2024 SCC Online SC 260].
● There is no evidence to establish that A4 had raped PW1 or
had snatched the earrings of PW1. While there is an inconsistency
in the deposition of PW1 with regard to identifying A4 as the driver
of the autorickshaw, there has been no recovery of any khakhi shirt
from A4, which, according to PW1, was what he was wearing on the
day of the incident. This is relevant because the prosecution case is
that A4 did not change his clothes till the time of his arrest on
16.02.2015. Further, the recovery of the gold ornaments [MOs.2 to
4] from his house was not witnessed by anyone. PW14 had turned
hostile to the prosecution and the other witness cited [PW15]
deposed to not knowing the description of the ornaments seized
from the house.
● The prosecution has not established that the autorickshaw
seized by the police is the same as the one that was involved in the
case.
● It is contended that Exts.P15 and P15(a) certificates were
prepared at a later point in time since the alleged incident as
recorded in the said reports showing to be a rape by four unknown
persons whereas in Ext.P1 F.I. Statement recorded later that day,
PW1 did not have a case that she had been raped by four persons.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 17 ::
There is also discrepancy in the recording of injuries in Exts.P15
and P15(a) certificates.
● The Test Identification Parade [TI Parade] was not properly
conducted, and further, PW1 and PW2 had not properly identified
A4 at the TI Parade. There was also no proper identification of A4
by PW1 or PW2 in court. Reliance is placed on the decision
reported in Wakil Singh and Others v. State of Bihar - [1981
(Supp) SCC 28].
● Reliance was placed on the decision reported in Mehraj
Singh v. State of U.P. - [(1994) 5 SCC 188] to suggest that the
FIR was not reliable since there was an overwriting of the date of
the FIR, in the sense that the date 15.02.2015 that was generated
by the computer had been struck off and the date 14.02.2015
overwritten therein. It is submitted that the chemical examination
report cannot be relied upon against A4 since the collection, sealing
and handling of material was done in a shoddy manner and there
was a huge delay in forwarding the material to the chemical
laboratory. While the dress and the vaginal swabs of PW1 were
collected on 14.02.2015 and handed over to the Investigating
Officer on 19.02.2015 and the blood samples of A1 to A4 were
collected on 25.02.2015, they were all sent to the Judicial First
Class Magistrate Court only on 28.02.2015 and from there to the
chemical laboratory only on 08.05.2015. It is also pointed out that
the findings in the report are inconclusive. While spermatozoa was
detected in his own underwear, merely because A4's blood group
was "O" and that blood group matched with the spermatozoa found
on PW1's dress, it cannot be inferred that A4 was either present or
involved in the alleged incident.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 18 ::
● There was no evidence whatsoever to convict A4 under
Section 120B.
● On the aspect of sentence, it is contended that the trial court
did not give any reason to justify the imposition of the maximum
punishment in circumstances where the legislature had prescribed
a minimum sentence of only 20 years.
11. Per contra, the submissions of Sri.Alex M. Thombra, the
learned Public Prosecutor were more in justification of the findings
of the trial court. He contended that the discrepancies pointed out
by the learned counsel for the appellants were only trivial in nature
and not so material as to demolish the prosecution case. He adds
that the minor discrepancies were also explained by the witnesses
concerned during cross examination and re-examination.
Discussion and Finding:
12. We have considered the submissions made by counsel on
either side and also perused the evidence adduced in the instant
case as also the impugned judgment of the trial court.
13. A Rape is not merely a physical assault. It is often
destructive of the whole personality of the victim. It is therefore
that courts usually examine the broader probabilities of the case
and do not get swayed by minor contradictions or insignificant
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 19 ::
discrepancies in the statement of the prosecutrix, which are not of
fatal nature, to throw out an otherwise reliable prosecution case. If
the evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. The court must remain alive to the fact that in
a case of rape, no self respecting woman would come forward in a
court just to make a humiliating statement against her honour such
as is involved in the commission of a rape on her [State of Punjab
v. Gurmit Singh and Others - [(1996) 2 SCC 384]].
14. In the instant case, the allegation is not of a rape
simpliciter but of gang rape of the prosecutrix by four of the
accused persons. Through an amendment effected to the IPC in
2018, the legislature has made the penal provisions relating to rape
more stringent and also introduced new provisions to deal
separately with gang rape and its punishment. Section 376D of the
IPC reads as under:
"376D. Gang rape
Where a woman is raped by one or more persons constituting a
group or acting in furtherance of a common intention, each of those
persons shall be deemed to have committed the offence of rape and shall
be punished with rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person's natural life, and with
fine:
PROVIDED that such fine shall be just and reasonable to meet
the medical expenses and rehabilitation of the victim;
PROVIDED FURTHER that any fine imposed under this section
shall be paid to the victim."
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 20 ::
15. It is against the backdrop of the above definition that we
have to appreciate the evidence in this case which consists
primarily of the evidence of the prosecutrix [PW1] and the evidence
of an eye witness to the incident [PW2]. In particular, we have to
bear in mind the law relating to appreciation of evidence in such
cases which states that in order to hold an accused guilty for
commission of rape, the solitary evidence of a prosecutrix is
sufficient, provided the same inspires confidence and appears to be
trustworthy, unblemished and is of sterling quality [Krishan
Kumar Malik v. State of Haryana - [(2011) 7 SCC 130] and
Ganesan v. State represented by its Inspector of Police -
[(2020) 10 SCC 573]]. Since the presumption under Section 114A
of the Evidence Act is extremely restricted in its applicability, when
the allegation against an accused is of rape, the evidence of a
prosecutrix must be examined in the same manner as that of an
injured witness whose presence at the spot is probable. At the
same time, it can never be presumed that her statement should,
without exception, be taken as gospel truth. Further, her statement
can be adjudged on the principle that ordinarily no injured witness
would tell a lie or implicate a person falsely [Raju and Others v.
State of Madhya Pradesh - [(2008) 15 SCC 133]]. While
considering the evidence of a victim subjected to a sexual offence,
the court does not necessarily demand an almost accurate account
of the incident. Instead, the emphasis is on allowing the victim to
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 21 ::
provide her version based on her recollection of events, to the
extent reasonably possible for her to recollect. If the court deems
such evidence credible and free from doubt, there is hardly any
insistence on corroboration of that version [Nirmal Premkumar v.
State Rep. by Inspector of Police - [2024 SCC Online SC
260]]. In fact, if a court were to seek corroboration of her
statement, as a rule, before relying upon the same, it would
tantamount to adding insult to injury [Ranjit Hazarika v. State of
Assam - [(1998) 8 SCC 635]].
16. The evidence of the prosecutrix [PW1] and the eye
witness [PW2] assume great importance in this case. PW1 deposed
that at about 8 am on 16.02.2015 A1 and A4 came in an
autorickshaw to the Edapally Toll Junction, where she, along with
PW2, were standing in anticipation of being engaged for work.
When told that there was some grass cutting work to be done near
a ladies hostel, they accompanied A1 and A4 in the autorickshaw.
That en route A2 and A3 also got into the autorickshaw, and all six
of them alighted at a pathway by the side of a road. When they
asked where the other workers were, they were told that the other
workers would arrive shortly and that, in the meanwhile they
should go and change their clothes for work. While doing so, A1 to
A4 pushed her [PW1] down, and A1 dragged her for a short
distance, assaulted her, and then committed rape on her. At that
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 22 ::
time, PW2 was restrained by A3 and A4, who threatened her with
dire consequences if she mentioned anything about the incident to
the police or anybody else. PW1 also deposed that while A1
assaulted her, A2 removed her gold chain and thali as also a gold
bangle. That after A1 had raped her, A2 and then A3 and A4 also
committed rape on her. Thereafter A1 again got on top of her and
troubled her. A3 then came and lifted her skirt, and A2 took photos
of her and threatened to post them on the internet. Around the
same time, A4 tried to forcibly remove her earrings, and out of fear,
she removed the earrings herself and gave it to him. A1 to A4 also
took her mobile phone and Rs.450/-, and all four accused left the
place.
17. PW2 deposed that she used to stand at the Edapally Toll
Junction in anticipation of work, and on 16.02.2015, at around 8 -
8.30 a.m., two persons came there in an autorickshaw, and one of
them asked for two persons to accompany him for grass cutting
work. That she and PW1 accompanied the said persons in the
autorickshaw. When the autorickshaw reached near the
supermarket at Pookkatupadi, two more persons got in to the
autorickshaw. After travelling for some time, the autorickshaw
stopped in front of a house, and they walked therefrom through a
narrow pathway. They reached the top of a hill and then asked A1
to A4 where the college was, near which they had to cut grass, and
why they had been brought elsewhere. They were told that the
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 23 ::
college was yet to come up and that the machine for cutting grass
will be brought soon. She, along with PW1, then went to change
their dress. At that point, two among the four accused laid PW1
down and held her down by the shoulder. Thereafter, three of the
accused restrained PW1, and one among them lifted her saree. She
further deposed that A1 to A4 had committed rape on PW1, and she
identified A1, A2 and A3 specifically from the box and A4, by
identifying him as one of the four persons other than A1, A2 and A3
who had raped PW1. She also deposed that A1 to A4 snatched the
gold chain, earrings, and ring of PW1 as also her mobile phone, and
that the accused also threatened them with dire consequences if
they disclosed the incident to anybody.
18. It is probably on account of the realisation that the
testimony of the prosecutrix and the eye witness would be accorded
great evidentiary value before this Court that the attempts by the
learned counsel for the appellants have, understandably, been to try
and discredit the said witnesses by pointing to inconsistencies in
their statements at various stages of the investigation of the case.
In particular, it is contended that both PW1 and PW2 had deposed
that the incident took place on 16.02.2015 whereas the prosecution
case was that it took place on 14.02.2015. We do not, however, find
this to be of any significance because there are other pieces of
evidence in the form of medical certificates [Exts.P15 and P15(a)],
F.I Statement [Ext.P1], the FIR [Ext.P27] and Ext.P2 statement of
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 24 ::
PW1 to the Magistrate under Section 164 of the Cr.P.C. that clearly
point to the incident having taken place on 14.02.2015 and not
16.02.2015. The appellants would then contend that there is no
consistency in the version of the prosecutrix as regards the incident
itself and of the role played by the various accused in the crime. It
is pointed out that while in Ext.P15(a) certificate prepared by the
doctor at 1.10 p.m. on 14.02.2015, it is recorded that the
prosecutrix was assaulted by four persons, in Ext.P15 certificate
that was prepared almost contemporaneously, the number of
assailants is not seen mentioned. Further, while in Ext.P1 F.I.
Statement, it is recorded that the prosecutrix was sexually outraged
by four persons, in the details provided thereafter, there is a
mention of actual rape by only one of the accused persons. In the
court, however, the prosecutrix clearly stated that she was raped by
all four accused. It is further pointed out that the injuries recorded
in the medical certificates are also not consistent with the
suggestion of gang rape.
19. We find ourselves unable to accept the above contentions
of the appellants to disbelieve the evidence of the prosecutrix. Her
consistent stand in all the statements aforementioned has been that
she was sexually assaulted by a group of four persons. While she
may have emphasised only on the actual physical rape by one of the
accused, she has never contradicted her statement that she was
sexually assaulted by all four of them. Her deposition in court is
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 25 ::
also corroborated by the testimony of the eye witness PW2, whose
deposition that she saw all four of the accused raping the
prosecutrix was not challenged in cross examination. The
unimpeached testimony of PW2, who is an eye-witness to the
incident satisfies the requirements of the testimony of a sterling
witness as explained by the Supreme Court in Rai Sandeep v.
State (NCT of Delhi) - [(2012) 8 SCC 21] as follows:
"In our considered opinion, the "sterling witness" should be of a very high
quality and calibre whose version should, therefore, be unassailable. The court
considering the version of such witness should be in a position to accept it for its
face value without any hesitation. To test the quality of such a witness, the status
of the witness would be immaterial and what would be relevant is the truthfulness
of the statement made by such a witness. What would be more relevant would be
the consistency of the statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and ultimately before the
court. It should be natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross-examination of any
length and howsoever strenuous it may be and under no circumstance should give
room for any doubt as to the factum of the occurrence, the persons involved, as
well as the sequence of it. Such a version should have co-relation with each and
every one of other supporting material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the version of every other
witness. It can even be stated that it should be akin to the test applied in the case
of circumstantial evidence where there should not be any missing link in the chain
of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other
such similar tests to be applied, can it be held that such a witness can be called a
"sterling witness" whose version can be accepted by the court without any
corroboration and based on which the guilty can be punished. To be more precise,
the version of the said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral, documentary and material
objects should match the said version in material particulars in order to enable the
court trying the offence to rely on the core version to seive the other supporting
materials for holding the offender guilty of the charge alleged."
20. Further, while the medical certificates clearly indicate
the opinion of the doctor that the injuries are suggestive of the
sexual assault as alleged namely, that they were caused by four
persons, we are also not impressed with the argument that the
injuries were not suggestive of gang rape. It is trite that victims of
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 26 ::
sexual assaults do not react in any standard way, and one cannot
expect a uniformity in the manner in which such victims of sexual
assault react in situations where there is a threat of bodily injury.
Physical manifestations of violent struggles are not a necessary
pre-condition for entering a finding of gang rape. We are therefore
of the view that in the light of the testimony of the prosecutrix, as
corroborated by the testimony of the eye witness PW2 as also the
medical certificates [Ext.P15 and P15(a)] and the statement of the
prosecutrix in Ext.P1 F.I. Statement, there is no reason to disbelieve
the version of the prosecutrix that she had been a victim of gang
rape by A1 to A4. The said version of the prosecutrix is also
corroborated by Ext.P2 statement that she gave before the
Magistrate under Section 164 of the Cr.P.C. We also take note of
the definition of 'gang rape' as contained in Section 376D of the
IPC, referred to above, which clearly indicates that even if a woman
is raped by only one among a group of persons acting in
furtherance of a common intention, each of those persons shall be
deemed to have committed the offence of rape and punished in
accordance with the said provision. Thus, the alleged discrepancy
in the testimony of the prosecutrix with regard to the number of
persons who had actually committed physical rape on her may not
be very significant when viewed against the backdrop of the
statutory provisions with which the accused are charged. It may
not also be out of context at this juncture to notice that Ext.P43
chemical examination report indicates the possibility of a sexual
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 27 ::
assault having taken place and the detection of spermatozoa in the
vaginal swab of the prosecutrix which in turn contained blood of
groups 'A' and 'O', that matched with the blood groups of A1 and
A3, who have 'A' group blood as well as A2 and A4, who have 'O'
group blood. We therefore see no reason to upset the finding of the
trial court with regard to the commission of gang rape on the
prosecutrix by A1 to A4.
21. The learned counsel for A4 has a definite case that the
prosecution has not established that A4 was, in fact, one of the four
persons who committed the offence of gang rape on the
prosecutrix. He points to the inadequate identification of A4 by the
prosecutrix and PW2, both at the time of TI Parade as also later in
court, to substantiate his contention that the presence of A4 at the
crime scene was never established. He would further rely on the
deposition of PW11 to point out that while she had deposed to
seeing the prosecutrix and PW2 alighting from an autorickshaw
near her house, she had also seen the driver of the autorickshaw go
away from there after the prosecutrix and PW2 got out of the
autorickshaw. It is the submission of the learned counsel for A4
that the identification of A4 has always been as the autorickshaw
driver, and inasmuch as PW11 has stated that the autorickshaw had
left the scene, it has to be inferred that A4, who was identified as
an autorickshaw driver, was not present at the scene of crime at the
time of the incident.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 28 ::
22. We find ourselves unable to accept the said submission
of the learned counsel for A4. While it may be a fact that during
the TI Parade that was conducted on 04.03.2015, PW2 had
identified A4 on the first occasion but not on the second occasion,
the prosecutrix had identified A4 on both occassions. Similarly,
while the learned counsel would point to certain irregularities in
the conduct of the TI Parade itself, by alleging that the non-suspects
chosen to stand along with the suspects were not similar in profile
to the suspects, on a perusal of the testimony of PW16 Magistrate
through whom Ext.P10 TI report was marked, we are convinced
that all procedural safeguards had been adopted for ensuring
fairness in the TI Parade. It is also significant that while the
prosecutrix identified each of the accused, including A4, in court,
PW2 identified A4 by exclusion, having independently identified A1
to A3 and then pointed to all four of the accused [A1 to A4] while
identifying them as the four persons who had committed the gang
rape. Both the prosecutrix and PW2 had identified A4 as the
person who was wearing a khakhi shirt on the date of the incident.
Most importantly, however, we find that the gold ornaments,
[MOs.2 to 4] except a gold chain [MO1] that had been taken from
the person of the prosecutrix during the time of the incident, were
subsequently recovered from the house of A4 pursuant to the
disclosure statement given by A4 to the Investigating agencies as is
evident from Ext.P9 recovery mahazar. The said evidence clearly
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 29 ::
points to the presence of A4 also at the scene of the crime on the
date of the incident.
23. As regards A5 and A6, we find that the finding of the
trial court on their complicity in relation to the offences under
Section 212 of the IPC, takes note of the testimonies of PW6 Leena,
who was an employee in the jewellery shop owned by PW19 Baby,
PW7 Antony who was witness to Ext.P5 seizure mahazar relating to
MO1 from PW19's jewellery shop, PW9 Kuriakose, the owner of the
premises that was rented out to A5 and A6, who confirmed that he
had let out the premises to the said accused and marked Ext.P7
lease agreement, PW10 Sivan, who was a witness to Ext.P8 seizure
mahazar through which Ext.P7 lease agreement was seized, PW18
Joseph Paul, through whom Ext.P11 seizure mahazar whereby the
licence of the jewellery was seized. Of the above, the seizure of
MO1 gold chain based on the disclosure statement of A6 is
sufficient evidence against A6 to show her complicity in the offence
under Section 411 of IPC [receiving stolen property]. The
testimony of PW6 Leena, who identified A6 as the person who came
to the jewellary shop owned by PW19 Baby to sell MO1 chain is
sufficient to show her complicity in the offence under Section 414
IPC [assisting in disposing stolen property]. The above evidence
also suffices to sustain her conviction for the offence under Section
212 for harbouring A1 to A4. We find, however, that the conviction
of A5 for the offence under Section 212 of IPC is not supported by
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 30 ::
the evidence on record. The trial court has convicted him based
solely on the depositions of PW9 Kuriakose, the landlord of the
premises that was let out to A5 and A6 and PW32 Paul C.
Kuriakose, who turned hostile to the case of the prosecution. There
is nothing in the depositions of the aforesaid witnesses that would
unambiguously point to the existence of knowledge in A5 of A1 to
A4 being offenders as envisaged under Section 212 of the IPC. It is
also significant that there is no evidence brought on record to show
that A5 and A6 were husband and wife so as to impute the
knowledge of the wife to the husband. We are therefore of the view
that the conviction and sentence imposed on A5 under Section 212
read with Section 34 of the IPC cannot be legally sustained.
24. We must now deal with the arguments of the learned
counsel for the appellants/A1 to A4 that there was no evidence
whatsoever to sustain the conviction under Section 120B(1) IPC on
them. We note from a reading of Section 120A IPC, which defines
'criminal conspiracy', that it envisages an agreement between two
or more persons to do or cause to be done an illegal act or an act
which is not illegal by illegal means. The proviso to the said
Section makes it clear that it is only an agreement to commit an
offence that would attract the definition of 'criminal conspiracy'
unless some act besides an agreement simplicitor is done by one or
more parties to such agreement in pursuance thereof. An
explanation to the Section also makes it clear that it is immaterial
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 31 ::
whether the illegal act is the ultimate object of such agreement or
is merely incidental to that object. Section 120B IPC, which deals
with punishment of criminal conspiracy, makes it clear that a party
to a criminal conspiracy to commit the offence punishable with
death, imprisonment for life, or rigorous imprisonment for a term of
two years or upwards, shall, where no express provision is made in
the Code for the punishment of such a conspiracy, be punished in
the same manner as if he had abetted such an offence.
25. In these appeals, we are to see whether the ingredients
of the offence under Section 120A have been made out by the
Prosecution. The existence of an agreement to pursue an illegal
object, being the essence of the offence of conspiracy, and the
formation of an agreement between two or more persons being a
mental state that is difficult to establish through direct evidence,
we have necessarily to examine the circumstantial evidence
obtaining in these cases, duly analysed in the manner prescribed
under Section 10 of the Evidence Act to infer the existence of such
an agreement. A perusal of Section 10 of the Evidence Act shows
that the provision mandates that (i) there has to be prima facie
evidence affording a reasonable ground for the court to believe that
two or more persons are members of a conspiracy; (ii) if the said
condition is fulfilled, anything said, done or written by any one of
them in reference to their common intention will be evidence
against the other; (iii) anything said, done or written by him should
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 32 ::
have been said, done or written by him after the intention was
formed by any one of them; (iv) it would also be relevant for the
said purpose against another who entered the conspiracy whether
it was said, done or written before he entered the conspiracy or
after he left it, and (v) it can only be used only against a
co-conspirator and not in his favour. When we examine the proved
circumstances obtaining in these cases, we find that there is
absolutely no evidence that would afford a reasonable ground for
this Court to believe that any of the accused were members of a
conspiracy to commit gang rape. The attempt of the prosecutor,
with a view to sustain the finding of the trial court, has been to
suggest that an inference can be drawn of the existence of such a
conspiracy from the fact that there was sufficient evidence to prove
beyond reasonable doubt that A1 to A4 had committed gang rape.
We are afraid, we cannot subscribe to the said contention. The
mandate of Section 10 of the Evidence Act is to insist on the
existence of prima facie evidence affording reasonable grounds for
the court to believe that two or more persons are members of
conspiracy. For there to be a reasonable ground for the court to
believe that two or more persons are members of the conspiracy,
there must be the independent existence of circumstances that
would lead to such an inference. In other words, the evidence
pointing to the existence of a conspiracy must exist independently
in point of time before the commission of the act that was conspired
to be done. We do not find any such circumstance having been
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 33 ::
established in the instant appeals. The finding of the trial court
that through the establishment of the gang rape by the four
accused, the conspiracy to commit the said rape can also be
inferred is one that cannot be legally sustained. We therefore find
A1 to A4 not guilty under Section 120B(1) of the IPC and they are
accordingly acquitted under Section 235(1) of the Cr.P.C. for the
said offence.
26. Having found the accused A1 to A4 not guilty of the
offence under Section 120B(1) of the IPC, we have now to see
whether their acquittal for the offence under Section 120B(1)
would affect their conviction under Sections 366, 394, 323 and 342
of the IPC respectively, which the trial court had entered by reading
the said provisions along with Section 120B of the IPC. In view of
our finding that sets aside the conviction of A1 to A4 under Section
120B(1) of the IPC, their conviction under Sections 366, 394, 323
and 342 of the IPC can be sustained only if their complicity under
each of these provisions is independently established. Proceeding
on this basis, we find that notwithstanding the acquittal of A1 to A4
for the offence under Section 120B(1) IPC, they can be
independently convicted under the other provisions aforementioned
based on the evidence available on record. We find from the
testimonies of PW1 and PW2 that the complicity of A1 to A4 for the
offences punishable under Sections 323, 342 and 366 of the IPC are
clearly established. While the infliction of harm for the purposes of
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 34 ::
Section 323 and the wrongful confinement for the purposes of
Section 342 of the IPC together with the requisite mens rea for the
said offences are clearly established from the unimpeached
testimonies of PW1 and PW2 and corroborated by the injuries
reported in the medical certificates pertaining to the victim, their
complicity in the offence under Section 366 [kidnapping and
abduction] is also established from the testimonies of PW1 and
PW2. This is notwithstanding that the evidence shows that it was
A1 and A2 who initially came in the autorickshaw that picked up
PW1 and PW2 from Edapally Toll Junction and that A3 and A4 had
got into the autorickshaw only later but en route to the place where
the gang rape and robbery were eventually committed on the
victim. As regards the conviction under Section 394 IPC, we find
that only A2 and A4 can be convicted for the offence under Section
394 IPC based on the testimony of PW1 and PW2 as corroborated
by the fact of seizure of gold ornaments based on the disclosure by
A4. There is nothing in the testimonies of PW1 and PW2 or any
recovery effected based on any statement of theirs that can be used
to find A1 and A3 guilty of the offence under Section 394 IPC.
27. In the result, we find as follows:
(i) A1 to A4 are found guilty under Section 366, 376D,
323 and 342 of the IPC. They are found not guilty of
the offence under Section 120B IPC and are acquitted
under Section 235(1) of the Cr.P.C. for the said offence.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 35 ::
(ii) A2 and A4 are also found guilty under Section 394 of
the IPC. A1 and A3 are found not guilty of the offence
under Section 394 IPC and are acquitted under Section
235(1) of the Cr.P.C. for the said offence.
(iii) A5 is found not guilty under Section 212 read with
Section 34 IPC and is accordingly acquitted under
Section 235(1) of the Cr.P.C. for the said offence.
(iv) A6 is found guilty under Sections 212, 411 and 414 of
the IPC.
Sentencing:
28. The accused having been found guilty under the various
provisions as aforesaid, we now proceed to consider the sentence
that must be imposed on them. At the outset, we deem it fit to
remind ourselves of the principles to be borne in mind when it
comes to sentencing the accused in a case such as the one at hand.
They have been recently reiterated by the Hon'ble Supreme Court
in Patan Jamal Vali v. State of Andhra Pradesh - [(2021) 16
SCC 225] as including the following:
(i) The nature and gravity of the crime.
(ii) The circumstances surrounding the commission of the
sexual assault.
(iii) The position of the person on whom the sexual assault
is committed.
(iv) The whole role of the accused in relation to the
person violated.
(v) The possibility of rehabilitation of the offender.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 36 ::
Over and in addition to the above, the age of the accused, the
economic and social background to which they belong, their
antecedents, the existence of any mitigating circumstances, the
possibility of reformation and the chances of their re-integration
into society, are also to be borne in mind while arriving at the
sentence to be imposed on each of the accused [Manoj Pratap
Singh v. State of Rajasthan - [(2022) 9 SCC 353]; Madan v.
State of U.P. - [2023 KHC 6986 (SC)].
29. Keeping the above principles in mind, we deemed it
apposite to collect additional information by way of reports from
the officers concerned of the prisons wherein A1 to A4 are
currently lodged. The reports thus received contain details
regarding the general behaviour of the accused while in prison and
the avocation they engaged in during their incarceration. Accused
Nos.1 to 4, we note have been in prison since 15.05.2017 and they
have all completed around 9 years 3 months and 15 days in prison
as on 30.05.2024 including set off. The behaviour of A1 to A3 has
been termed as satisfactory in the reports forwarded. A minor
infraction of having been found in possession of a beedi has been
noted in the case of A4. The age of A1 to A4 are stated as A1 - 22
years, A2 - 28 years, A3 - 21 years and A4 - 28 years. The accused
do not have any criminal antecedents.
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 37 ::
30. Guided by the dictum in Patan Jamal Vali (supra),
where the court elucidated on the need to take adequate note of the
intersectional identity of the victim and the additional
vulnerabilities that he/she would have been subjected to due to the
overlapping identities that he/she may possess, we note that the
victim PW1 is a woman, aged 38 years answering to the description
of a Tamil migrant labourer who was displaced from her place of
birth by social and economic circumstances. She had migrated from
her native place Dharmapuram in Tirupur District in the State of
Tamil Nadu to Kerala looking for an avocation to eke out a living.
She is also a mother of two children. She possesses all the
vulnerabilities that an individual of such a migrant labourer group
usually suffers from including linguistic handicap and socio-cultural
alienation which the accused preyed upon, on the fateful day when
she had been out looking for work so as to sustain herself and her
family. It is clearly discernible from the evidence that the accused
had targeted the most vulnerable in the locality viz., migrant
women labourers, and had lured PW1 and PW2 under the pretext of
offering them a job, exploiting the situation whereby the very
nature of their avocation required them to travel to isolated
unknown places along with, and on the instruction of, strangers.
The intersectional analysis as discussed in Patan Jamal Vali
(supra) requires us to take note of the distinct experience of a
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 38 ::
subset of women who exist at the intersection of varied identities.
PW1, the victim in this case, squarely falls within that subset and
she finds herself placed at an intersection of varied identities as a
woman from another State, with limited linguistic capabilities to
understand and interact with the people in this State and as a
laborer belonging to one of the socially, culturally and financially
weaker sections of society. The underlying structures of inequality
that made PW1 vulnerable and which the accused effectively
exploited to her utter detriment, cannot thus be lost sight of while
deciding the sentence to be imposed on the accused.
31. In these appeals, we have already found A1 to A4 guilty
of the charges under Sections 366, 376D, 323 and 342 of the IPC.
While doing so, we also set aside the conviction of A1 to A4 under
Section 120B(1) of the IPC, the conviction of A1 and A3 under
Section 394 of IPC and the conviction of A5 under Section 212 read
with Section 34 IPC. We have, however, affirmed the conviction of
A2 and A4 under Section 394 of IPC and that of A6 under Sections
212, 411 and 414 of the IPC.
32. Considering the nature and gravity of the offences for
which they now stand convicted, we are of the view that A1 to A4
do not deserve any leniency in the matter of the sentence to be
imposed for the offence under Section 376D IPC. At any rate, the
minimum punishment that has to be mandatorily imposed while
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 39 ::
confirming a conviction under Section 376D is 20 years
imprisonment. However, the age of the accused, their behaviour
during the 9 years of incarceration that they have already
undergone, the possibility of their rehabilitation and assimilation
back into the society can be taken into account while determining
the punishment to be accorded to them, short of the maximum
punishment that the trial court deemed fit to impose on them.
Taking note of the contention of the learned counsel for A1 to A4,
based on the judgment of the Supreme Court in Sunitha Devi v.
State of Bihar - [2024 KHC 6309] that there has been no proper
application of mind by the trial court while imposing the maximum
sentence on A1 to A4 for each offence and that no details are
forthcoming from the judgment as to how the maximum punishment
was awarded for the various offences for which they were
convicted, we are of the view that balancing the interests of the
victim and the accused in these appeals based on the principles
enumerated above, the ends of justice would be met by imposing
the following sentences on the accused:
1. Accused Nos.1 to 4 are each sentenced to undergo rigorous
imprisonment for a period of 30 years, and to pay a fine of
Rs.25,000/- [Rupees Twenty five thousand only] each for the
offence under Section 376D of the IPC. In default of
payment of the fine amount, they shall undergo rigorous
imprisonment for an additional period of six months. They
are also each sentenced to undergo rigorous imprisonment
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 40 ::
for 10 years, and to pay a fine of Rs.10,000/- [Rupees Ten
thousand only] each for the offence under Section 366 of the
IPC. In default of payment of the fine amount, they shall
undergo two months rigorous imprisonment. Each of them is
also sentenced to undergo rigorous imprisonment for one
year for the offences under Sections 323 and 342 of the IPC.
Accused Nos.2 and 4 are each sentenced to undergo
rigorous imprisonment for ten years, and to pay a fine of
Rs.10,000/- [Rupees Ten thousand only] each for the offence
under Section 394 of the IPC. In default of payment of the
fine amount, they shall undergo two months rigorous
imprisonment.
2. Accused No.6 is sentenced to undergo rigorous
imprisonment for 3 years, and to pay a fine of Rs.5,000/-
[Rupees Five thousand only] for the offence under Section
212 of the IPC. In default of payment of fine, she shall
undergo rigorous imprisonment for another one month. She
is also sentenced to undergo rigorous imprisonment for 3
years and to pay a fine of Rs.5,000/- [Rupees Five thousand
only] each for the offences under Sections 411 and 414 of
the IPC. In default of payment of fine, she shall undergo
rigorous imprisonment rigorous imprisonment for another
one month for each of the said offences.
3. All sentences shall run concurrently. The accused shall also
be entitled to set off as envisaged under Section 428 Cr.P.C.
4. Fine amount of Rs.1,75,000/-, if realised, shall be paid to
PW1 as compensation under Section 357(10)(b) of the Cr.PC.
5. We note that the District Legal Services Authority,
Ernakulam has already awarded a compensation of
Crl.A.No.1069, 807, 820,
1072 & 1101/2016 :: 41 ::
Rs.6,00,000/- to the victim PW1 as per the provisions of the
Victim Compensation Scheme, pursuant to the directions of
the trial court. Under the circumstances, we do not see the
need to direct further amounts to be paid to PW1 by way of
compensation.
The Criminal Appeals are disposed as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
prp/
