Kerala High Court
Manikandan @ Mani vs State Of Kerala on 17 March, 2025
Criminal Appeal No.2 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
CRL.A NO. 2 OF 2014
AGAINST THE JUDGMENT DATED 28.12.2013 IN SC NO.298
OF 2008 ON THE FILE OF THE SPECIAL COURT FOR SC/ST (POA)
ACT CASES, MANJERI.
APPELLANT/ACCUSED:
MANIKANDAN @ MANI,
S/O.GOPALAN @ BALAN,
ILLIKKAL HOUSE, KIZHATTOOR AMSOM DESOM,
KIZHATTOOR, VADAKKUMTHALA,
MALAPPURAM DISTRICT.
BY ADV R.RANJITH (MANJERI)
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE DEPUTY SUPERINTENDENT OF
POLICE, TIRUR, MALAPPURAM DISTRICT THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.SRI.VIPIN NARAYAN,
SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2025, THE COURT ON 17.03.2025 DELIVERED THE
FOLLOWING:
Criminal Appeal No.2 of 2014
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C.S.SUDHA, J.
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Criminal Appeal No.2 of 2014
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Dated this the 17th day of March 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused, in S.C.No.298 of 2008 on the file of
the Special Court for SC/ST (POA) Act Cases, Manjeri,
challenges the conviction entered and sentence passed against
him for the offence punishable under Section 376 IPC.
2. The prosecution case is that the accused, a Hindu
Thiyya with the intention of raping PW1, knowing fully well that
she is a scheduled caste belonging to the Hindu-Cheruman
community, on the promise of marriage on 25/06/2006 took her
to a lodge by name Ayodhya situated by the side of Vettichira-
Kadampuzha public road, checked into room no.115 of the said
lodge and after 08:00 p.m. forcibly undressed PW1 and raped
her. Hence, the accused as per the final report is alleged to have
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committed the offences punishable under Section 376 IPC and
Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the
SC/ST Act) .
3. Ext.P1 FIS of PW1 the victim was recorded by
PW12, ASI, Perinthalmanna police station, who registered
Ext.P11 FIR. Thereafter, the FIR was transferred to the
Kalpakanchery police station as the crime took place within the
jurisdiction of the said station. PW13, ASI, Kalpakanchery
police station registered Ext.P12 FIR. The initial investigation
into the case was conducted by PW14, DYSP, Tirur. The
investigation was thereafter taken over by PW15, DYSP, Tirur,
who on completion of investigation submitted the final report
before the jurisdictional magistrate alleging the commission of
the offences punishable under the aforementioned Sections by
the accused.
4. On appearance of the accused, the jurisdictional
magistrate after complying with all the necessary formalities
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contemplated under Section 209 Cr.P.C., committed the case to
the Court of Session, Manjeri. The case was taken on file as
S.C.No.298/2008 and thereafter made over to the Special Court
for SC/ST (POA) Act Cases, Manjeri for trial and disposal.
5. On appearance of the accused before the trial
court, a charge under Section 376 IPC, Sections 3(1)(xi) and 3(2)
(v) of the SC/ST Act was framed, read over and explained to the
accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW16
were examined and Exts.P1 to P18 and M.O.I to M.O.IV were
marked in support of the case. After the close of the prosecution
evidence, the accused was questioned under Section 313(1)(b)
Cr.P.C. with regard to the incriminating circumstances appearing
against him in the evidence of the prosecution. The accused
denied all those circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
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oral or documentary evidence was adduced on behalf of the
accused. Ext.D1 is the contradiction brought out in the statement
of PW2, the doctor.
8. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found no evidence to find the accused guilty
of the offence punishable under Sections 3(1)(xi) and 3(2)(v) of
the SC/ST Act and hence acquitted him under Section 235(1)
Cr.P.C. of the said offences. However, he has been found guilty
of the offence punishable under Section 376 IPC and hence he
has been sentenced to rigorous imprisonment for a period of 7
years and to a fine of ₹5,000/- and in default of payment of fine
to undergo simple imprisonment for a period of three months.
Set off under Section 428 Cr.P.C. has been allowed. Aggrieved,
the accused has come up in appeal.
9. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the accused/appellant by the trial court are sustainable or
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not.
10. Heard both sides.
11. Before going into the arguments advanced on
behalf of the appellant/accused, I briefly refer to the evidence
relied on by the prosecution in support of the case. Ext.P1 FIS of
PW1 the victim is seen recorded on 26/06/2006 at 06:00 p.m. In
Ext.P1 it is stated that PW1 along with her father and other
members of her family went for the pooram (festival) at
Angadippuram, where she met the accused and became close to
him. Thereafter, the accused visited her home thrice. The
accused proposed to her. On 23/06/2006 the accused contacted
her on the phone of PW11 her neighbour, and asked her to
accompany him to Nilambur. So on 25/06/2006 at 09:30 a.m.
she reached the bus stand at Nilambur. By 10:00 a.m. the
accused also came there and told her that they can go to
Kadampuzha and get married. Believing his words, she
accompanied him. They reached Kadampuzha by 04:00 p.m. and
checked into a room in a lodge. They sat talking for sometime.
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By about 08:00 p.m. the accused came to the room with food.
After they had food the accused undressed and raped her twice.
The next day by 06:00 a.m. they left the place by bus to
Puthanangadi where her paternal uncle's residence is situated.
During the return journey, when she asked the accused about the
solemnization of marriage, he refused to marry her. She reached
the house of her uncle by 09:00 a.m. When her aunt asked her
from where she was coming, she disclosed everything to her
aunt. Her uncle then informed her father, who reached there by
afternoon. She disclosed the incident to her father also. Her
father went to Keezhattur, the place where the accused is
residing and made enquiries, but was unable to meet the accused.
She now understands that the accused a thiyya, is married and
has two children. Hence, her father brought her to the police
station to give a complaint.
11.1. PW1 in the box more or less stands by her case
in Ext.P1 FIS. She deposed that when the accused expressed his
desire to marry her, PW6 her father, said that he would revert
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after he made enquiries about his family. The accused spoke to
her over phone about 4-5 times. A month thereafter, the accused
called her and asked her to join him at Nilambur where their
marriage could be registered. On 25th June she went with the
accused to Kadampuzha. They checked into a room in a lodge
where the accused raped her. They engaged in coitus twice. The
next day morning by 05:00 a.m., they left for the house of her
paternal uncle at Puthanangadi. The accused dropped her at her
uncle's house and left. By 08:30 a.m. she reached her uncle's
house. She disclosed the incident to her family. PW1 deposed
that she accompanied the accused as he made her believe that he
would marry her at Kadampuzha. In the cross-examination PW1
agreed to a suggestion that there was never any occasion for the
accused to come to her residence. She further deposed that it was
her idea to go to Kadampuzha (..........ഞ ൻ പറഞ പപക രമ ണ
ക ട മ ഴ പപ യത .......). PW1 further deposed that nothing had
happened against her will. (.........എൻ ഇഷത ന വ ര ദമ യ
പപവ
... ത നടത യ ട ല .......). It was her father who had narrated
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the incident to the police. She signed the statement given. What
was recorded by the police was not read over to her then. She
read the statement for the purpose of deposing before the Court.
(....Police പന ട എൻ" ൻ#സ%ഭവമ ണ ൻയനഅചൻ പറഞ ര ന
. അത നട യ ൽ ഞ ൻ ഒപ ട ര ന . Police എഴ ത എട തക ര.ങൾ
അപപ ൾ വ യ ച പകട ര ന ല . സ ക പറപയണ ആവശ.ത ന
വ... യ ച ര ന ....... ). PW1 admitted that she had not stated to the
police that the accused had told her that their marriage could be
registered at Kadampuzha. According to her, the accused told
her that the marriage could be registered at Nilambur, which fact
she stated to the police also. PW1 also deposed that on the said
day at Perinthalmanna itself, the accused had asked her to return
home. (.......ക ട മ ഴ ൻവച രജ സർ വ വ ഹ% ൻ9യ ൻമന
പറഞത police ൽ പറഞ ട ല. ന ലമ<ർ ൻവച രജ സർ വ വ ഹ%
ൻ9യ ൻമന ണ പപത പറഞത. ആ ക ര.% police ൽ പറഞ ര ന
................. അന ൻപര "ൽമണൻവച വ>ട പല# ത ര ച
പപ ക ൻ പപത പറഞ ര ന. )
11.2. PW6, the father of PW1 deposed that on the
date of the incident when he returned home by 06:00 p.m., PW1
was not at home. PW1 telephoned PW11 and informed that she
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was at her uncle's residence at Puthanangadi. His son went in
search of PW1. The next day morning he went to the house of
the accused at Keezhattur, but the accused was not there. The
accused proposed to his daughter. He went to Puthanangadi and
found his daughter there. His daughter went with the accused to
Kadampuzha as the latter had promised to marry her. He
understands that the accused had raped his daughter in a lodge at
Kadampuzha. When the accused offered to marry his daughter,
he had asked the accused to come home with his family. The
accused had told him that he was also a member of their
community. The enquiries thereafter conducted revealed that the
accused is a thiyya and that he is a married man having two
children. PW6 further deposed that he had never asked the
accused to marry his daughter.
11.3. PW7, the brother of PW1 and son of PW6,
supports the version of his father. According to PW7, his father
had spoken to the accused about the marriage to PW1 at the
poora parambu itself. The accused had then visited them. Three
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to four days thereafter, his sister went along with the accused.
11.4. PW9, Manager, Ayodhya lodge, deposed that
the accused and a girl had checked into a room in the lodge
claiming to be newly-weds. Ext.P8 is the register maintained at
the lodge and page 114 of the register contains the relevant entry,
which has been marked as Ext.P8(a).
11.5. PW11 a neighbour of PW1, deposed that
during 2006, she was the only person who had a telephone
connection in the locality. The siblings of PW1 used to call her
on the said phone. One day a person identifying himself as the
son of PW1's paternal uncle, called PW1 about five to six times.
11.6. PW2, Assistant Surgeon, Taluk Hospital,
Perinthalmanna, deposed that on 26/06/2006 she had examined
PW1, who was brought to the hospital with a history of alleged
rape on 25/06/2006 by Manikandan (the accused) at
Kadampuzha lodge. On examination no external injuries were
noted. On local examination hymen was found torn and it easily
admitted two fingers. Vaginal swab, nail clipping and loose hair
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were preserved for chemical examination. There was evidence
of past vaginal penetration. There was no evidence of resistance.
She reserved her final opinion pending chemical examination.
The medical certificate issued by PW2 has been marked as
Ext.P2. During cross examination PW2 deposed that there was
no evidence of recent sexual intercourse. Clinically there was
no evidence of sexual intercourse to have taken place within 24
hours. According to PW2, there are four types of chemical
examination to find out rape, that is, acid phosphate test;
beriberis test ; flourcon test and microscopic examination. She
further deposed that if the aforesaid tests are negative, then the
allegation of rape is likely to be wrong. She deposed that she
had not seen the chemical examination report. In the cross
examination PW2 denied having stated to the police that she had
seen the chemical examination report and that as per the report,
the aforesaid four tests were found negative. The contradiction
has been marked as Ext.D1.
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12. Now, the question is whether the aforesaid
evidence is sufficient to prove the offence of rape alleged
against the accused. The trial court held that the consent of PW1
for the coitus was obtained on the promise of marriage and hence
the offence of rape is made out. The fact that PW1 accompanied
the accused to the lodge, checked into one of the rooms in the
lodge and had coitus with the accused is established by her
testimony, which I find no reasons to disbelieve. It was
submitted by the learned counsel appearing for the
accused/appellant that the prosecution has no case that PW1
agreed to the coitus on the promise of marriage. There is no
such case in the FIS. On the other hand, the FIS only says that
PW1 accompanied the accused on the promise of marriage. It is
true that in Ext.P1 FIS, PW1 does not specifically say that she
had agreed to the coitus on the promise of marriage by the
accused. But she has stated that she accompanied the accused to
Kadampuzha as the accused had promised to marry her.
However, there are other aspects which raise doubts in the mind
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of this Court regarding the question as to whether PW1
consented to the coitus on the promise of marriage or whether it
was under any misconception of facts. PW9, Manager of the
lodge, who is a loyal prosecution witness, deposed that the
accused and the lady accompanying him had checked into the
hotel claiming to be newly weds (പപത യ % ഒര ൻപണ %
കല. ണ% കഴ ഞ വനവര ണ എന പറഞ മറ
എട ത ര ന .) This testimony of PW9 is not challenged or
disputed by the prosecution. PW1 admits that they had checked
into a lodge. It appears that PW1 along with the accused had
taken a room in the lodge claiming to be newly weds. This has
to be read along with the testimony of PW1 who deposed that
nothing had happened against her will; that it was her idea to go
to Nilambur and that at Perinthalmanna itself, the accused had
asked her to return home. In these circumstances, it may not be
safe to convict the accused of the offence under Section 376 IPC
based on the sole testimony of PW1. Hence, I find that the
accused is entitled to the benefit of doubt.
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In the result, the appeal is allowed and the conviction
and sentence imposed against the appellant/accused by the trial
court for the offence punishable under Section 376 IPC is set
aside. The accused is acquitted under Section 235(1) Cr.P.C.
He is set at liberty and his bail bond shall stand cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ak
