Kerala High Court
Sreedharan, C.No 4350 vs State Of Kerala on 28 March, 2025
Crl.Appeal Nos.169 and 890 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.A NO. 169 OF 2019
CRIME NO.1520/2016 OF CHENGAMANAD POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 13.09.2018 IN SC NO.426 OF
2017 OF ADDITIONAL SESSIONS JUDGE, ERNAKULAM.
APPELLANT/ACCUSED NO.1:
KRISHNAN,
AGED 67 YEARS,
S/O NEELAKANDAN,
PUTHENPURACKAL HOUSE,
PONNAMPARAMBU BHAGOM,
MEIKKADU KARA, NEDUMBASSERY VILLAGE,
ERNAKULAM DISTRICT.
BY ADV P.MOHAMED SABAH
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI-682031.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2025, ALONG WITH CRL.A.890/2019, THE COURT ON
28.03.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.A NO. 890 OF 2019
CRIME NO.1520/2016 OF CHENGAMANAD POLICE STATION, ERNAKULAM
AGAINST THE JUDGMENT DATED 13.09.2018 IN SC NO.426 OF
2017 OF ADDITIONAL SESSIONS JUDGE, ERNAKULAM.
APPELLANT/ACCUSED:
SREEDHARAN,
AGED 63 YEARS,
S/O. MANIKYAN,
POLOOR GRAMAM,
VELLAR DISTRICT,
TAMILNADU,
C.NO. 4350,
CENTRAL PRISON,
VIYYUR, THRISSUR, KERALA.
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
BY.ADDL.PUBLIC PROSECUTOR,
ERNAKULAM.
2 DEPUTY SUPERINTENDENT OF POLICE,
ALUVA, CHENGAMAANAD POLICE STATION.
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SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
28.03.2025, ALONG WITH CRL.A.169/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
---------------------------------------------
Crl.Appeal Nos.169 and 890 of 2019
---------------------------------------------
Dated this the 28th day of March 2025
JUDGMENT
In these appeals filed under Section 374(2) Cr.P.C., the
appellants, who are accused no.1 and 2 (A1 and A2) in
S.C.No.426/2017 on the file of the Court of Session, Ernakulam,
challenge the conviction entered and sentence passed against them
for the offence punishable under Section 376 IPC.
2. The prosecution case as stated in the final
report/charge sheet is as follows - The accused persons, two in
number, who belong to the upper caste, with the intention of
getting sexual gratification by having sexual intercourse with the
victim (PW1), belonging to the pulaya community, lured her to
the back of the Kerala Judicial Academy building situated on the
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northern side of the Chengamanadu-Athani Road, Nedumbassery
Village, while on her way back home from School. The accused
persons took her to an old bathroom situated 8 meters to the west
of the main building of the Academy and abused her. The 1 st
accused had sexual intercourse with the victim without her
consent. Thereafter, the 2nd accused took the victim to the
aforesaid room a few days after her Onam examination and had
sexual intercourse with her several times. The abuse took place
during the period from September to December 2016. Hence, as
per the final report, the accused persons are alleged to have
committed the offences punishable under Section 376(2)(n) IPC ;
Section 3(1)(w)(i) and 3(2)(V) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC/ST
Act).
3. Crime No.1520/2016, Chengamanad police
station, that is, Ext.P12 FIR was registered by PW15, the then Sub
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Inspector, based on Ext.P1 FIS of PW1. PW16, Dy.S.P. Aluva,
conducted the investigation and on completion of the
investigation submitted the final report before the Court of
Session, Ernakulam, alleging the commission of the offences
punishable under the aforementioned Sections.
4. On appearance of the accused persons before the
Court of Session, the formalities contemplated under Section 207
Cr.P.C. were complied with. After hearing both sides, the
Sessions Court found no material to make out the offences under
Sections 3(1)(w)(i) and 3(2)(v) of the Act and hence the accused
persons were discharged of the said offences. Finding materials
on record sufficient to make out a case under Section 376 IPC, a
charge under the said Section was framed, read over and
explained to the accused persons to which they pleaded not guilty.
The case was made over to the Additional Sessions Judge-I,
Ernakulam for trial and disposal.
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5. On behalf of the prosecution, PW1 to PW17
were examined and Exts.P1 to P16 were marked in support of the
case. After the close of the prosecution evidence, the accused
persons were questioned under Section 313(1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against them
in the evidence of the prosecution. The accused persons denied all
those circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., they were asked to
enter on their defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused
persons.
7. On consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused persons guilty of the
offence punishable under Section 376 IPC and hence sentenced
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them to undergo rigorous imprisonment for a period of ten years
each and to fine of ₹50,000/- each and in default to rigorous
imprisonment for three months each. The entire fine amount has
been directed to be given to the victim as compensation under
Section 357(1)(b) Cr.P.C. Set off under Section 428 Cr.P.C. has
been allowed. Aggrieved, accused no.1 and 2 have come up in
appeal.
8. The only point that arises for consideration in
this appeal is whether the conviction entered and sentence passed
against the appellants/accused no.1 and 2 by the trial court are
sustainable or not.
9. Initially, Adv. Sreekanth K.S. was appointed as
State Brief for the appellant in Crl.Appeal No.890/2019, that is,
for A2. Thereafter, there was no representation by the said
counsel and hence Adv. Bhavana V. was appointed as State Brief.
Heard the learned counsel for the appellant in Crl.Appeal
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No.890/2019 and the learned public prosecutor.
10. It was submitted by the learned counsel for the
appellant/A2 that the sole testimony of PW1, the prosecutrix, is
insufficient to find the accused guilty of the offences alleged
against him beyond reasonable doubt. Though the prosecution
during the trial has a case that PW1 is having low IQ level of 53,
the said case cannot be believed as it has come out in evidence
that PW1 after her plus two course has been pursuing computer
course. It has also come out in evidence that she passed in all her
subjects except one. All this would indicate that PW1 was a
person of reasonable comprehension. The materials on record
would not in any way show that she was unable to understand
things happening around her. Even assuming that there was some
relationship between the appellant/A2 and PW1, the same can
only taken to be consensual. There is no medical evidence to
support the case of rape. Ext.P12 FIR refers to an autorickshaw
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driver as the third accused. However, the said person has not
been arrayed as an accused in the final report. No report has been
submitted for deleting the third accused from the array of the
accused in the FIR. PW16, the investigating officer does not give
any explanation for not including the third accused in the final
report/charge sheet. It is clear from the materials on record that
PW1 did not agree to the medical examination as she had
something to hide. It may be that somebody else was also
involved in the crime. PW6, one of the doctors who examined
PW1 as well as PW8, the class-teacher of PW1 refers to an
autorickshaw driver in their testimony. The FIR also refers to an
autorickshaw driver as the 3rd accused. The investigating officer
admitted that the autorickshaw driver referred to in the FIS and in
the testimony of PW1 is her relative. The said person has some
role in the crime, which was never investigated into or revealed
by the prosecution. This aspect also throws doubt on the
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prosecution case. The place of occurrence has also not been
proved. Hence it is submitted that the appellant/A2 is entitled to
the benefit of doubt and to be acquitted.
10.1. Per contra, it was submitted by the learned
public prosecutor that testimony of PW8, the class teacher of
PW1 would show that she is not normal. Therefore, PW1 a
person with low IQ cannot be stated to have given consent as
consent given by such a person is no consent in the eye of law. It
was also submitted that merely because the third accused has not
been arrayed as an accused in the final report/charge sheet and no
investigation has been conducted by the investigating officer
regarding the role of A3, it cannot be concluded that the
appellants herein, that is, A1 and A2 are also innocent of the
offences alleged against them. There are no infirmities in the
findings of the trial court calling for an interference, argued the
learned public prosecutor.
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11. Ext.P1 FIS is seen given by PW1 on 31/12/2016
at 04:30 p.m. In the FIS she states that she is a plus two student.
She goes to school by bus. From September till December 2016,
on her way back from school she used to reach Athani junction by
about 04:45 p.m. During this period, a lottery vendor (A1) and a
cobbler (A2) used to insist that she join them. The cobbler (A2)
used to sit near his relative's house situated near the primary
school, Thuruthussery, during which time he used to undress and
exhibit his nakedness to her. Coming to know of this conduct of
the cobbler (A2), his relatives drove him away from the said
place. On a day before her Onam exams, the lottery vendor (A1)
took her through the western side of the Hanuman Temple at
Athani to the back side of the Kerala Judicial Academy. He took
her to an old room situated near a bathroom. He made her lie on
the floor of the room, undressed her and lay on top of her. When
she tried to get up, he pressed her down. He compelled her to put
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a contraceptive on him. (....... ഉറ ഉപയ ഗകൻ ന ർബന ച ). She
refused. He then committed penetrative sexual acts on her and
touched her private parts. Thereafter she returned home. After a
few days on her way back home from school, when she got down
at Athani junction, the Cobbler (A2) took her to the same place,
undressed her and committed digital rape. The cobbler also
insisted that she put the contraceptive for him. She refused and so
he himself put on the contraceptive and placed his penis on her
private parts. (..... ക ട ത ഉറ അ ള തട മ ത തമ ഴ ക ന ഭ ഗത ഇട
തക ട ക ൻ ന ർബന ച . ഞ ൻ അ " ത#യ% ല. അയ' ൾ അ ൾ നത
ഇടയ)ഷ+ അ ള തട മ ത തമ ഴ ക ന ഭ ഗ+ എൻതറ മ ത തമ ഴ ക ന
ഭ ഗത വച ....). During this period, both of them repeated the
aforesaid acts several times. In addition, the driver of the
autorickshaw by name 'Vadakkumnathan', whom she can identify
on sight, used to offer her lift while she was waiting for bus at the
bus stop, Athani. When she got into the autorickshaw, she was
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taken to a house situated at the place by name, Thiruvilamkunnu,
which is to the east of Kariyaadu, where he undressed her, lay on
top of her and touched her private parts with his penis. The
autorickshaw driver repeated this act on several other days also.
She told her friends in school about the incident. Her friends
informed her teacher. The teacher informed the Principal, who in
turn summoned her mother and informed her. The Principal
asked her to give a complaint in writing. However, she did not
give a complaint as she was afraid that the matter would become
public. Her mother then scolded the lottery vendor and cobbler.
(.... പ റത അറ തമന ള ഭ + തക ണ" പര എഴ നൽക ല.
ടർന" അമ യ3 ടറ ക രതന + ത#ര ' ക ത ത + #4ത
പറ ക + ത#യ% ......). Thereafter on 30/12/2016, while she was at
her relatives house, the lottery vendor (A1) while passing by
gestured to her to join him. (..... ടർന" 30/12/2016 4 ൽഞ ൻ
ബന വ4ട ൽ മരണ വ)6ത ന യപ വ ക + അവ തടവച യ3 ടറ
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8 ക രൻ അ വഴ
വ ലന യപ വ ക +, വര ന യണ എന" 3തക ണ"
ആ+ഗ6+ ക ണ ക ക + ത#യ% ........). She then told her mother (PW2)
about the same. Her mother sent her along with her relative to the
police station to give the complaint. In the FIS PW1 has also
stated that she can identify all the three accused persons on sight.
11.1. PW1 in the box more or less stands by her
version in Ext.P1 FIS. She deposed that both the accused used to
take her to the room behind the Kerala Judicial Academy, undress
her and commit penetrative sexual assault on her. They had
ejaculated after the act. These acts were repeated several times by
both the accused persons. PW1 further deposed that she did not
subject herself to medical examination as she was
scared/frightened. (.... യ: കറ
< തട അട ത" എതന തക ണ യപ ര ന.
യപട ന ൽ ഞ ൻ പര യ) ധ ക ൻ സമ ച ല ....). In the cross
examination she deposed that after completing plus two, she
started attending a six month computer course. She reiterated her
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case in the FIS that the driver of the autorickshaw by name
'Vadakkumnathan' had taken her to a house and had done the
same acts as done by the accused persons. The accused persons
used to take her on those days when she did not have School, that
is, when she was left early from School. Thereafter she deposed
that she used to get out of her house by saying that she was going
to see her friends (....... ക സ" ഇല ത ദ വസങള 3 ണ" എതന
തക ണ യപ ." അ " സD ൾ യനരതത വ ട ന ദ വസങള ൽ. ക സ"
ഇല ത ദ വസങള ൽ തന ആണ" കര ട" യപ ." ക ട ക ര കതള
ക ണ ൻ യപ ക തനന" പറഞ ണ" വ4ട ൽ ന ന റങ റ"). She also
deposed that she along with the accused persons used to
walk/proceed to the place of occurrence by entering into the
Kerala Judicial Academy campus through the gate, at which time,
there were no security guards at the gate. According to PW1, the
Academy did have compound walls. She further deposed that she
is more cross/angry at A1 as he used to tell her to cut her pubic
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hair. PW1 further deposed that both the accused used to take her
together to the room and do the aforesaid acts one after the other.
11.2. PW2, the mother of PW1, deposed that during
the time of the incident, her daughter was studying for plus two in
a school at Chengamanad. She used to take her daughter to
Athani junction from where her daughter used to go to the School
by bus (............ ര വ ത3 മകതള ഞ ൻ അത ണ ൽ തക ണ വ ട +.
ബസ" ക റ വ ട +.). In the evening her husband used to bring PW1
back home from Athani junction. One day, PW1 did not return
even after 06:30 p.m. and so her husband telephoned her and
made enquiries at which time she was at her work place. After
some time, her daughter reached the bus stop at Athani, pursuant
to which her husband brought their daughter back home. When
she enquired the matter with her daughter, the latter told her that
the accused persons had taken her along with them. Hearing this,
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she along with her husband, daughter and two other persons, went
to Athani junction where the second accused cobbler was
available. She tried to beat him. The first accused was not
present there. According to PW2, on a day when her daughter
was having study leave and when she was let off early from
school, the accused persons took her in an autorickshaw from
Athani to a house at Kariyaadu and after undressing her, did
everything (.... ണത തക ഊര ച" ത#യ% ...). To prevent others
from seeing, the accused persons had taken her daughter in an
autorickshaw after pulling down the sheets on the side. (ആള കൾ
കണ ര ക ൻ ഓയട റ ക ട ർ' " ഇട ണ" തക ണ യപ ." ). Her
daughter disclosed these incidents to PW9, her close relative.
PW2 also deposed that her daughter has low IQ (മകൾക" ക റച"
ബ ദ ക റവ" ഉണ".). The accused persons had also taken her
daughter near the Hanuman temple at Athani and abused her.
The first accused had also taken her daughter to his house. PW2
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further deposed that her sister passed away in December 2016.
When she and her daughter were at the house of her sister in
connection with the cremation, the accused persons called her
daughter by gesturing to her. (.... അവ തട തവച തപ കൾ മകതള കക
ക ട വ ള ച . ....). Her daughter then informed PW9 about the
abuse. PW9 asked her daughter whether she had disclosed the
abuse to her parents to which her daughter had replied that she
had not done so as she was afraid that her parents would punish
her. Pursuant to the disclosure, she sent her daughter along with
PW9 to give a complaint to the police. The police had prepared
Ext.P2 scene mahazar relating to the scene of occurrence near the
Hanuman temple, Athani, in which she is an attestor. Her
daughter refused to undergo medical examination as she was
scared/frightened. Her daughter was admitted in the Medical
college, Kalamassery, for three days. PW2 deposed that PW1 is
her adopted daughter. PW2 also deposed that her daughter has
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the habit of pinching others, which habit still continues. PW2
further deposed that her daughter is on medication for low IQ
(മകൾ ഇയ' ൾ ബ ദ ക ള മര ന" കഴ ക ന ണ"). She also clarified
that her daughter has been on medication for the past one month.
PW2 in the cross examination deposed that her daughter had
disclosed the abuse to PW9 and not to her. She also deposed that
except in one subject her daughter has passed in all other subjects.
To her knowledge, the accused persons had taken her daughter
with them two to three times.
11.3. PW3, the father of PW1 deposed that on a day
the previous year (2016) his daughter reached Athani junction
quite late. In the morning his wife drops their daughter at Athani
junction. Some days in the evening, he goes to pick up his
daughter. PW3 deposed that his daughter disclosed the abuse to
PW9 as she was afraid of him. PW3 has also a case that his
daughter has low IQ. He also deposed that his daughter is
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studying in a normal school (....സ ധ രണ ക ട കൾ പഠ ക ന
സD ള 3 ണ" മകൾ പഠ ച "..) In the cross examination, PW3 deposed
that he has only hearsay knowledge about the incident and that he
does not know the auto driver.
11.4. PW4, Consultant Gynecologist, District
Hospital, Ernakulam, deposed that on 31/12/2016 at 06:30 p.m.,
the victim aged 17 years was brought before her for medical
examination on the allegation of rape. The history was narratted
thus - "സD ൾ വ ട" വര യM ൾ അത ണ ബസ" യN ' ൽ ന ന + ത#ര '"
കത 8 ക രന +
+ യ3 ടറ വ ലന വ ള ച" തക ണ" യപ ഹന മ ൻ
യക വ 3 നട ത" ബ ത" റ മ ൽ തക ണ" യപ യട '" ഊര ച" breast 3 +
കയ 3 + പ റത+ അമർത പ ട ച . പ3 വണ ഇങ തന ത#യ% ട ണ" പസ"
വൺ പസ" ട ക സ ൽ പഠ ക യM ൾ." PW4 further deposed that as
the victim was not co-operative, medical examination could not
be conducted even after counselling the victim for an hour. PW4
also deposed that she had a feeling that the victim was not having
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the required IQ to comprehend things properly and so she advised
counseling. Ext.P4 is the certificate issued by her. In the cross
examination, PW4 deposed that the history was narrated to her by
the victim and those accompanying her. The victim was
accompanied by her mother and another lady.
11.5. PW6, Lecturer, Government Medical College
Hospital, Kalamassery deposed that on 04/01/2017 at 01:30, the
victim was brought before her for medical examination with a
history of rape. The history stated by the victim was thus- " ഒര
യ3 ടറ ക രന + ത#ര ' ക ത + ഹന മ ൻ യക വ 3 ന പന3ള
ബ ത"റ മ ൽ വ ള ച" തക ണ"യപ . അവ തട ഒര റ മ ണ". ത:സ" മ റ ച .
തബN ൽ പ ട ച മ ത + ഒഴ ക ന ഭ ഗത" ക റ ." PW6 further
deposed that the victim was not willing for examination even after
counselling. She had doubts that the victim was having border
line IQ and hence advised psychiatric evaluation, for which the
victim was admitted in the hospital. However, on the next day
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also the victim was not willing for examination. According to
PW6, the victim was "slow in speech and was smiling in between
inappropriately". In her view, the victim has low IQ level
though she was normal in all other respects. Ext.P7 is the
certificate issued by PW6. In the cross examination PW6 deposed
that the history of the case was narrated by the victim and her
relative (PW9). PW6 further deposed that she had noted in
Ext.P7 that an autorikshaw driver was asking for the mobile
number of the victim during the time of the examination.
11.6. PW7, Assistant Professor, Psychiatry,
Government Medical College, Ernakulam deposed that he had
examined the victim in this case as per the request of the Dy.S.P.,
Aluva. The victim had dysmorphic facial features. Initially, the
victim was not willing for evaluation. Thereafter, she started co-
operating. Clinically her intelligence level was found to be
subnormal. Her IQ level was found to be 53 as per the report of
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the Clinical Psychologist. No other psychopathology was
detected, which means that apart from the low IQ level, she had
no other psychiatric disorders. According to PW7, the normal IQ
for a person ranges from 90-110. In his opinion, the victim had
mild mental retardation. He further deposed that in cases of mild
retardation, it is possible for the victim to remain passive when
sexual advances are made. Their judgment would be impaired.
Such a person, if physically normal, would have sexual
urge/desire. As the judgment of people having mild retardation
would be impaired, it is possible for them to fall prey to sexual
harassment. The victim was found to be of a shy nature. PW7
further deposed that people with mild mental retardation can resist
sexual harassment. However, the victim in the case on hand is a
shy person, and so it was probable that she was not in a position
to resist the sexual advances. PW7 also deposed this cannot be
generalised as things vary from person to person according to the
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situation. Ext.P8 is the certificate issued by him.
11.7. PW8, the class teacher of the victim, deposed
that the victim in her conversations was not consistent; that she
would pinch the other students; that she would pinch even the
teachers; that in case she came late in the morning to school, she
would hide in the bathroom; that sometimes during menstruation,
the victim used to rub her menstrual blood on other students.
(..ക ട സ+ഭ ഷണത 3 + മറ + consistent അല ര ന.
അട ത ര ക ന ക ട കതള ത#റ ര4 ൽ ഉപതദവ ക റ ണ". ര വ ത3
യനര+ കവക വന ൽ ബ ത" റ മ ൽ ഒള ച ര ക +. ട4ചർമ തര +
ത#റ ഉപതദവ ക റ ണ." പചക ണ" സ ധ രണ ത#യ ക. Mensus
മറ മ ള സമ ത" അ " മറ ക ട കള തട യദഹത" യ ക ന + # 3യ' ൾ
... റ ണ" .....).
ത#യ PW8 also deposed that one day an auto driver
came to the school and informed the Principal that the victim was
seen with a lottery vendor and a cobbler under suspicious
circumstances. The Principal then informed the parents of the
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victim and cautioned them to be careful in the future. The victim
could comprehend to a certain extent what was being taught to
her. PW1 passed in all the subjects except one. (..... xxxx
പഠ ' ക ന ക ര6ങൾ ത#റ ര4 ൽ മനസ 3 ക +. ക ട ക തറ
വ ഷ ങള ൽ ജ ച. പസ" ട വ ൽ ഒര വ ഷ ത ൽ മ ത യമ
പര ജ ത'ട ള....) After the incident of the auto driver coming to
the school, PW1 told her friends that she was abused by a lottery
vendor and a cobbler. PW8 also deposed that the victim has mild
mental retardation. PW8 in the cross examination deposed that
PW1 had not told him anything directly. He further deposed that
PW1 can comprehend things but is slow in responding.
11.8. PW9, a close relative of PW1 deposed that on
30/12/2016 the latter disclosed the abuse by a lottery vendor and a
cobbler to her. PW9 was told that the said persons had taken
PW1 to a bathroom behind the Hanuman temple and after
undressing her had sexually abused her. PW9 also deposed that
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the victim has mild mental retardation. (.... കട അൽ'+
മനബ ദ ണ" ....). On 30/12/2016 PW1 told her that the lottery
vendor had called her. (......യ3 ടറ ക രൻ xxxx തന കകക ട വ ള ച
എന ണ"അവൾ പറഞ ".....). In the cross examination, PW9 denied
having stated to the police that the driver of autorickshaw by
name 'Vadakkumnadhan' had also sexually abused PW1. The
contradiction has been marked as Ext.D1 and proved through the
investigating officer.
11.9. PW13, WPC, Chengamanad police station
deposed that on 31/12/2016 as instructed by the Sub Inspector,
she had recorded Ext.P1 FIS of PW1. As directed by the Sub
Inspector, she had taken PW1 to the Government Hospital, Aluva
for medical examination. However, PW1 refused to co-operate
with the examination. PW13 further deposed that from the speech
and behaviour of PW1, she felt that the latter had mild mental
retardation. (....ക ട തട സ+സ രത 3 + തപര മ റത 3 + അവർക"
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മ നസ ക വളർച ക റവ തണന" എന ക" യ ന . .....) . PW13 in the
cross examination deposed that when the FIS was recorded, PW9
whom PW1 addresses as 'ammamma' (grandmother) was also
present along with PW2.
11.10. PW14, ASI, Angamaly police station deposed
that as directed by the Sub Inspector, she had taken PW1 to the
Gynecologist at Government Hospital, Aluva for medical
examination. However, PW1 refused to submit herself for medical
examination.
11.11. PW16, Dy.S.P., Aluva deposed that on
01/01/2017, he had taken over the investigation in the case.
According to him, the place of occurrence is inside the campus of
the Kerala Judicial Academy. When he went to prepare the scene
mahazar, the room in which the incident took place was found
closed. It was in the presence of the staff of the Academy, the
room was opened and inspection conducted. The room at the time
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of inspection was found to be an electrical room. On enquiry, it
was revealed that the room had been converted into the present
condition in the near future. PW16 admitted that as per the FIR,
the third accused is the driver of an autorikshaw by name
'Vadakkumnadhan'. PW16 also deposed that the driver of the said
autorickshaw is a relative of PW1.
12. Now the question is whether the aforesaid
evidence is sufficient to find the accused persons guilty of the
offence of rape punishable under Section 376 IPC. In the FIR,
there are three accused persons. The third accused is stated to be
the driver of the autorickshaw by name 'Vadakkumnathan'. PW1
in the box reiterates that the autodriver had also abused her.
PW16, the investigating officer does not even offer an explanation
for not charge sheeting the third accused. It is true that defects in
investigation will not always go to the benefit of the accused or be
a reason to disbelieve or throw out the entire prosecution case.
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Therefore, the question is whether the materials on record are
sufficient to prove beyond reasonable doubt the offence of rape
charged against A1 and A2.
13. It is true as pointed out by the learned public
prosecutor that from the behaviour and conduct of PW1, as is
evident from the testimony of PW8 her teacher, PW1 appears to
be not normal. PW6, one of the doctors, who examined PW1
deposed that the victim was smiling inappropriately when the
former was brought for medical examination. All the prosecution
witnesses have deposed that PW1 has mild mental retardation.
PW7, one another doctor who examined PW1 deposed that the
latter has low IQ, that is, 53. According to him the normal IQ is
from 90 to 110. PW1 was taken before several doctors for
medical examination. Despite several attempts being made by
taking PW1 to various doctors, she refused to subject herself to
medical examination.
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14. In the charge sheet/final report, the prosecution
has never a case that PW1 has any mental retardation issues. I
have already referred to the prosecution case as stated in the final
report/charge sheet. It only says that PW1 was induced to go
along with the accused persons and that they had committed rape
on the victim. The court charge also does not say that PW1 has
any mental retardation issues. PW1 admittedly is above 18 years
and therefore an adult. In such circumstances, the question that
naturally arises is whether the sexual intercourse was with the
consent of PW1. The learned public prosecutor submitted that
even if consent had been given by PW1, the same cannot be stated
to be consent in the eye of law as PW1 has low IQ. As stated
earlier, there is no such case in the final report/charge sheet or
even in the court charge. Further, if PW1 does have low IQ
issues as stated by all the prosecution witnesses, then the question
is, would it be safe to rely on her testimony alone which raises
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doubts in the mind of the court ? On going through the testimony
of PW1, she has also stated that she had gone out of her house to
meet the accused persons on the pretext of meeting her friends.
Materials have also come on record that the Principal of the
school had informed PW2 after an autorickshaw driver had
reported to the former that PW1 was seen in suspicious
circumstances with the accused persons. However, no complaint
was made pursuant to the same. PW1 in the FIS as well as in the
box reiterated her case that the driver of the autorickshaw by
name 'Vadakkumnathan' had taken her on several days to a house
and abused her. But the said person has not been made an
accused in this case. This autorickshaw driver seems to have an
important role in this case because he appears to be the person
who went and informed the Principal about the role of A1 and
A2. He also seems to have been present when PW1 was taken
before PW6 for medical examination. According to PW6, the
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said autorickshaw driver was enquiring about the phone number
of the PW1. PW9 had stated to the police that the autorickshaw
driver had also sexually abused PW1. However, PW9 denied the
said statement given to the police and hence the contradiction was
marked as Ext.D1 and the same was proved through the
investigating officer.
15. Further, if PW1 is to be believed, the accused
persons had only sexually abused her at a room situated behind
the Kerala Judicial Academy. But PW2 has a case that the
accused persons had taken PW1 to a house at Kariyaadu and
abused her. PW2 has also a case that A1 took PW1 to her
house and abused her. But PW1 has no such case. According to
PW1, it was the auto driver who had taken her several times to a
house at Kariyaadu and abused her. Going by the prosecution
case, the accused persons abused her at a room situated on the
rear side of Kerala Judicial Academy. However, when the
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investigating officer prepared the scene mahazar, the room was
found locked and the same was opened and inspected in the
presence of the staff of the Academy. The room seems to be
under the lock and key of the Academy. The investigating officer
has a case that on inspection he found the room to be used as an
'electric room' which according to him was converted in the near
future. However, he admits that there is no material to establish
the same. So doubts arise about the place of occurrence also. In
these circumstances, I find that it may not be safe to convict the
accused persons based on the sole testimony of PW1. That
being the position, I find that they are entitled to the benefit of
doubt.
In the result, the appeals are allowed and the conviction
and sentence imposed against the appellants/A1 and A2 by the
trial court for the offence punishable under Sections 376 IPC is
set aside. The accused persons are acquitted under Section 235(1)
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Cr.P.C. They are set at liberty and their bail bond shall stand
cancelled.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
