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Muhammed v/s State of Kerala Rep. by The Public Prosecutor, High Court of Kerala at Ernakulam Through S.H.O. Varapuzha Police Station, Ernakulam


    CRL.A. No. 1055 of 2018

    Decided On, 26 August 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR

    For the Appellant: Lijin Thamban, Advocate. For the Respondent: R1, S. Ambika Devi, Spl. GP., M.K. Pushpalatha, Sr. PP.



Judgment Text

1. The sole accused in S.C.No.505 of 2015 on the files of the Additional Sessions Court, Ernakulam has come up in this appeal challenging his conviction and sentence in the said case.2. The indictment in the case is that the accused, who is a married man having children, abducted the victim lady aged 33 years who is suffering from mental retardation, with the intention of seducing her to illicit intercourse and had sexual intercourse with her on several occasions under threat. The offences alleged are the offences punishable under Sections 366, 376(2)(l), 376(2)(n) and 506(i) of the Indian Penal Code (the IPC).3. On the accused denying the charges levelled against him, the prosecution examined 22 witnesses as PW1 to PW22 on its side and proved through them 24 documents as Exts.P1 to P24. Among the witnesses examined, PW1 is the victim lady, PW2 is the autorickshaw driver who dropped the victim lady on 18.07.2014 at Ernakulam North Railway Station, PW3 is a friend of the accused, PW4 is the Manager of Sanghamam lodge, Kannur, PW6 is the Manager of the PVM Tourist Home, Iritty, PW7 is an ex-employee of Sanghamam lodge, Kannur, PW8 is the room boy of PVM Tourist Home, Iritty, PW9 is the husband of the victim lady, PW10 is a friend of the husband of the victim lady, PW13 is a friend of the accused, PW14 is the person who purchased a gold chain from the accused, PW16 is the father of the victim lady, PW18 is the police official who conducted part of the investigation in the case, PW22 is the doctor who examined the victim lady on 31.07.2014 and PW23 is a member of the District Medical Board, Ernakulam. Among the documents proved, Ext.P25 is the disability certificate issued to the victim lady by the District Medical Board, Ernakulam.4. On an appraisal of the materials on record, the court below found the accused guilty of the offences punishable under Section 366, 376(2)(l), 376(2)(n) and 506(i) of the IPC, convicted him for the said offences and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for two months, for the offence punishable under Section 366 of the IPC. He was also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for four months for the offences punishable under Sections 376(2)(l) and 376(2)(n) of the IPC. The accused was also sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 506(i) of the IPC. The court also ordered the substantive sentences imposed on the accused to run concurrently. As noted, the accused is aggrieved by his conviction and sentence.5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.6. The learned counsel for the appellant took me through the evidence tendered by the witnesses examined by the prosecution in the case. The essence of the submissions made by the learned counsel for the appellant was that the evidence tendered by the prosecution do not make out any of the offences alleged against the accused. According to the learned counsel, the evidence would indicate that the victim lady had travelled on her own volition from Ernakulam to Kannur for meeting the accused and stayed with him for few days. It was argued by the learned counsel that the prosecution was in fact proceeding as if the victim lady was suffering from some degree of mental incapacity and the accused has in fact abducted her by making use of her mental incapacity, for illicit intercourse. Placing reliance on the evidence tendered by the father as also the husband of the victim lady, the learned counsel for the appellant submitted that the prosecution has miserably failed in establishing that the victim lady was suffering from any mental incapacity.7. Per contra, the learned Public Prosecutor submitted that the victim lady is a person who is suffering from moderate mental retardation. It is pointed out by the learned Public Prosecutor that the said fact has been established by Ext.P25 disability certificate. It was argued by the learned Public Prosecutor that it was making use of the said disability of the victim lady that the accused abducted her to his place and had sexual intercourse with her. It was also argued by the learned Public Prosecutor that the evidence let in by the prosecution would show that the accused had in fact represented to the victim lady that he is one Suresh and the fact that the accused is another person was known to the victim lady when she reached the place of the accused. According to the learned Public Prosecutor, the said evidence would establish that the accused secured the presence of the victim lady at his place by deceitful means. According to the learned Public Prosecutor, in the circumstances, the court below has rightly found that the accused was guilty of the offences punishable under Sections 366, 376(2)(l), 376(2)(n) and 506(i) of the IPC.8. In reply to the submissions made by the learned Public Prosecutor, it was argued by the learned counsel for the appellant that even assuming that the accused has misrepresented to the victim lady that he is one Suresh, the same is not sufficient to hold that the physical relationship the accused had with the victim lady was without her consent, in the absence of any evidence indicating that she has either resisted the attempt of the accused to have sexual intercourse with her or attempted to go away from the clutches of the accused or complained to anybody on realising that the accused is another person.9. Having heard the learned counsel for the parties on either side, the point arising for consideration is as to whether the prosecution has established the guilt of the accused under Sections 366, 376(2)(l), 376(2)(n) and 506(i) of the IPC.10. For the purpose of adjudicating the points formulated for decision, it is necessary to refer to the evidence let in by the prosecution in the case. The victim lady as PW1 has deposed that she developed acquaintance with the accused through missed calls; that the accused represented to her that he is one Suresh working as the Manager of a Company; that the accused has once told her that he met her in a Church; that she developed intimacy with the accused after her engagement and that the accused has threatened her with dire consequences, if she does not come to his place. PW1 deposed that she went to Kozhikode accordingly and the accused picked her from the Kozhikode Railway Station and took her to a lodge in Kannur and had sexual intercourse with her under threat. She deposed that at that lodge, she saw the identity card of the accused and it is only then she realised that the accused is not Suresh aged 33 years as disclosed to her and that he is one Muhammed aged 47 years. PW1 deposed that somebody at the lodge at Kannur told her that the accused is married and he has three children. PW1 deposed that the accused thereafter took her to a lodge in Iritty and had sexual intercourse with her there also, under the threat that otherwise, he will do away with her. She deposed that the accused obtained from her the gold chain and ring worn by her and sold it. She deposed that the accused then took her to Bangalore and attempted to sell her. She deposed that later, the accused brought her back to Iritty, where she has been apprehended by the police and brought back to her place. PW1 deposed that she does not exactly remember the various dates.11. PW2 is the autorickshaw driver who dropped the victim lady on 18.07.2014 at Ernakulam North Railway Station from a place near Aster Hospital, Ernakulam. PW3 deposed that he knows the accused; that the accused is a contractor-cum-broker; that he used to meet the accused in his work sites; that the accused had once made a few calls from his phone; that a lady called him back from the number to which the accused had called and asked whether he is one Suresh; that the accused later told him that he made a call to a lady from his phone pretending that he is one Suresh and that after a few days, he received a call from the very same number informing him that the lady who talked to him is missing. PW4 deposed that the accused came to Kannur Sanghamam lodge on 18.07.2014 along with a lady and stayed there. PW6 deposed that he knows the accused and the accused came to PVM Tourist Home on 21.07.2014 along with a lady and stayed there. PW7 deposed that he has seen the accused with a lady in Sanghamam lodge. PW8 deposed that he has seen the accused on 21.07.2014 along with a lady at PVM tourist Home. PW9 is the husband of the victim lady. He deposed that the victim lady was found missing on 18.07.2014 and he complained to the police. PW9 deposed that when the victim lady left the house, she had a gold chain and a gold ring with her. PW10 is a friend of the husband of the victim lady. He deposed that the victim lady is suffering from moderate mental retardation. PW10 also deposed that the victim lady was found missing on 18.07.2014. PW13 deposed that he helped the accused in selling a gold chain to PW14. PW14 deposed that he purchased a gold chain from the accused for Rs.82,000/-. PW16 deposed that the victim lady was found missing on 18.07.2014. He also deposed that the victim lady is a person suffering from moderate mental retardation. PW16 also deposed that the police traced the victim lady and brought her back. PW18 is the police official who went to Iritty on receiving information that the victim lady was found at Iritty, and brought her back to Varappuzha Police Station along with the accused. PW22 is the doctor who examined the victim lady on 31.07.2014. PW22 stated that the victim lady was brought before her with the allegation that she went along with one Muhammed and stayed at different places and had to undergo sexual intercourse with him under threat. PW22 also deposed that the victim lady told her that at Bangalore, the person who took her threatened her that he will sell her and she then made noise and told him that she would complain to the police and thereafter, he has brought her down to Kannur. PW22 deposed that on examination of the victim lady, she found evidence of vaginal penetration.12. In the course of the hearing of this matter, it was found that the disability certificate issued by the District Medical Board, Ernakulam to the victim lady was not formally proved. As such, invoking the power under Section 391 of the Code of Criminal Procedure, in terms of the interim order passed on 26.02.2020, this Court directed the Sessions Court to permit the prosecution to lead additional evidence to establish its case that the victim lady is a person suffering from mental retardation. It was thereafter that the disability certificate issued to the victim lady was proved by the prosecution in the proceedings and marked as Ext.P25. In Ext.P25, it is certified that the victim lady is a person suffering from moderate mental retardation. Ext.P25 is a certificate issued as early as on 06.04.2009. The father of the victim lady who was examined in the proceedings has affirmed that the victim lady is suffering from moderate mental retardation. The friend of the husband of the victim lady who was examined in the proceedings also affirmed that the victim lady is suffering from moderate mental retardation. From Ext.P25 disability certificate and the evidence tendered by the father of the victim lady as also the friend of the husband of the victim lady, the prosecution has established that the victim lady is a person suffering from moderate mental retardation.13. As noted, going by the arguments advanced by the learned counsel for the appellant, the appellant does not dispute the fact that the victim lady came to Kozhikode Railway Station on 18.07.2014 and he took her from there and stayed with her at various places. Even otherwise, the prosecution has established the said facts. It has come out from the evidence of PW1 that the accused represented to the victim lady that he is one Suresh aged 33 years, working as the Manager of a Company and the fact that the accused is one Muhammed aged 47 years and that he is married, came to be realised by the victim lady only when she saw his identity card at Sanghamam Lodge, Kannur and also when somebody told her at Kannur about the marital status of the accused. The accused does not dispute his identity or marital status. Even assuming that the victim lady had gone on her own volition to Kozhikode to meet the accused, insofar as it is established that the victim lady was proceeding to meet another person altogether on account of the misrepresentation made by the accused, according to me, the prosecution has established beyond doubt that the accused has secured the presence of the victim lady at his place by deceitful means. If that be so, I am inclined to hold that the prosecution has established the case of abduction set out by them. As noted, the fact that the accused had sexual intercourse with the victim lady has been established by the prosecution through the evidence of the victim lady. Insofar as it is established that since the accused and the victim lady were not married, the intention of the accused to seduce the victim lady for illicit intercourse has been established by his subsequent conduct in having sexual intercourse with her. In other words, the prosecution has established the guilt of the accused under Section 366 of the IPC as well.14. The next question is as to whether the prosecution has established the guilt of the accused under Sections 376(2)(l) and 376(2)(n) of the IPC. Section 376(2) of the IPC as amended in terms of Act 13 of 2013 without the explanation thereto, reads thus:"376. (1) xxxxxxxxxxxxx (2) Whoever,--(a) being a police officer, commits rape--(i) within the limits of the police station to which such police officer is appointed; or(ii) in the premises of any station house; or(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or(g) commits rape during communal or sectarian violence; or(h) commits rape on a woman knowing her to be pregnant; or(i) commits rape on a woman when she is under sixteen years of age; or(j) commits rape, on a woman incapable of giving consent; or(k) being in a position of control or dominance over a woman, commits rape on such woman; or(l) commits rape on a woman suffering from mental or physical disability; or(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."Section 376(2)(l) of the IPC is attracted when a person commits rape on a woman suffering from mental or physical disability. Section 376(2)(n) is attracted when a person commits rape repeatedly on the same woman. In order to consider the question as to whether the prosecution has established the aforesaid two offences, it is necessary to consider whether the accused has committed rape on the victim lady. As noted, the contention advanced by the learned counsel for the appellant at the time of hearing was that the proved facts would only disclose a case of consensual sex. Section 114A of the Indian Evidence Act reads thus:"114A. Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."In terms of Section 114A of the Indian evidence Act, in a prosecution for rape under clauses (l) and (n) of sub-section (2) of Section 376 of the IPC where sexual intercourse is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. In the case on hand, the victim lady has categorically stated that it was under threat that she permitted the accused to have sexual intercourse with her. In other words, insofar as the physical relationship the accused had with the victim lady has been proved by the prosecution, it was for the accused to establish at least on the principle of preponderance of probability that the victim lady had consented to have sexual

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intercourse with her. The accused has not given any evidence to prove that the sexual intercourse he had with the victim lady was consensual. True, it is not necessary that he should give positive evidence to rebut the presumption under Section 114A of the Indian Evidence Act and it is sufficient, if the accused is able to prove the said fact from the materials brought out in cross- examination from the witnesses examined by the prosecution and from other materials. In this regard, it is relevant to point out that the victim lady was categoric in her evidence that she had to agree for sexual intercourse with the accused out of threat to her life. From the materials on record, I am unable to find that the accused has rebutted the presumption under Section 114A of the Indian Evidence Act. In other words, I do not find any infirmity in the finding rendered by the court below that the prosecution has established the guilt of the accused under Sections 376(2)(l) and 376(2)(n) of the IPC.15. There is no substance in the argument advanced by the learned counsel for the appellant that in the absence of any evidence indicating that the victim lady has either resisted the attempt of the accused to have sexual intercourse with her or attempted to go away from the clutches of the accused or complained to anybody on realising that the accused is another person, it has to be presumed that the sexual relationship between the parties was consensual, for inability to do the aforesaid acts in a case of this nature can only be on account of mere helplessness. I take this view also on account of the fact that the victim lady is a person suffering from moderate mental retardation.16. As regards the offence under Section 506(i) of the IPC, according to me, the evidence tendered by the victim lady is sufficient to justify the conviction of the accused under the said section.For the aforesaid reasons, I do not find any merit in the appeal and the same is, accordingly, dismissed.
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