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2024 Supreme(Online)(Ker) 86880
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.G. AJITHKUMAR, J
LAKINATH AGED 29 YEARS S/O. DONESWAR – Appellant
Versus
STATE OF KERALA – Respondent
CRL.APPEAL NO. 840 OF 2022 | CRL.APPEAL NO. 1037 OF 2023
For the Appellants: SASTHAMANGALAM S. AJITHKUMAR, SREEJITH S. NAIR, RESHMA M.S, VIPIN RAJ P., SEKHAR G. THAMPI, V.S.THOSHIN, SATHEESH MOHANAN P.A.MEERA, SHIBA M SAMUEL
For the Respondents: SMT SHEEBA THOMAS
The court affirmed the conviction of the appellants for gang rape, emphasizing credible victim testimony and corroborative evidence while justifying leniency in sentencing.
Headnote:(A) Indian Penal Code, 1860 - Sections 450 and 376D - Conviction and sentencing sustained - Accused charged with criminal trespass and gang rape - The trial court imposed sentences directing terms to run concurrently - Appeals against conviction and request for enhanced punishment made to the High Court - Evidence of victim found credible and corroborated by witnesses - Delay in reporting justified considering victim's trauma - Conviction supported by direct and circumstantial evidence despite challenges to identification - Court finds no grounds for interfering with lower court's discretion to moderate the sentence. (Paras 1, 5, 13, 27)
(B) Evidentiary Standard - Burden on prosecution - The evidence of sexual assault requires a high degree of corroboration - Circumstances and testimonies sufficiently meet this requirement, establishing guilt beyond reasonable doubt. (Paras 12, 24)
| Table of Content |
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| 1. court confirms lower court's decision due to sufficient evidence. (Para 1 , 5 , 13) |
| 2. details of crime and victim testimony provide a compelling narrative. (Para 2 , 4 , 12) |
| 3. defense's argument on identification challenged by corroborative evidence. (Para 6 , 16 , 26) |
JUDGMENT
The Fast Track Special Court, Neyyattinkara tried two accused in S.C.No.1006 of 2014 on a charge for the offences punishable under Section s 450 and 376D read with Section 34 of the Indian Penal Code , 1860 ( IPC ). As per the judgment dated 18.06.2022 the trial court convicted and sentenced them to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.3,000/- each for the offence under Section 450 of the and to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs.10,000/- each for the offence under Section 376D of the . Terms of the substantive sentence were directed to run concurrently. The convicts have filed Crl.Appeal No.840 of 2022 challenging their conviction and sentence. The State of Kerala has filed Crl.Appeal No.1037 of 2023 seeking enhanced punishment.
2. PW1, a woman aged 41 years, was working in General Electric Global Research, Bangalore. She came to Poovar in Thiruvananthapuram for attending a leadership off- site programme of her company. She stayed in Poovar Island Resort. She checked in room No.223 in that resort at about 12.45 p.m. on 27.11.2013. She and her colleagues had a party arranged in that resort. She came back to her room after the party at about 11.00 p.m. and she went to bed at about 12.00 night.
3. The case of the prosecution is that at about 2.30 a.m. on 28.11.2013, the appellants criminally trespassed into the said room by breaking open its door from the balcony and they, in furtherance of their common intention, subjected PW1 to rape. Both of them together prevailed over her by catching hold of her hands and head and after gagging her, the 1st appellant sexually assaulted her. She resisted and she could struggle out. The appellants thereupon ran away. She informed PW2, who was staying next door bearing No.222 and also her other colleagues.
4. By about 5.00 p.m. the same day, PW1 lodged Ext.P1 complaint in the Pozhiyoor Police Station. Based on that complaint, PW20, the Sub Inspector in that station registered crime No.661 of 2013. The initial investigation was conducted by PW27, the Circle Inspector of Police. A Special Investigation Team was constituted and the team headed by PW26 has taken over the investigation. On 3.12.2013 the appellants were arrested. After necessary investigation, PW26 had filed the final report, based on which initiated S.C.No.1006 of 2014.
5. At the trial, PWs.1 to 27 were examined, Exts.P1 to P45 were marked and MOs.1 to 18 were identified. After closing evidence of the prosecution, the appellants were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973. They denied all incriminating circumstances appeared against them in evidence. The 1st appellant stated that he did not know anything about the case and the case was a foisted one. The 2nd appellant stated that he was innocent and police took him into custody without informing him anything. No defence evidence was let in. The trial court, after analyzing the evidence, concluded that the prosecution proved beyond a doubt the guilt of the appellants. Taking into account the young age of the appellants and their circumstances, the trial court took a lenient view and, by relaxing the prescribed minimum punishment, sentenced the appellants as mentioned above.
6. The appellants assail the impugned judgment on several grounds and claim that they are entitled to an acquittal. The State of Kerala would contend that there was not enough reason to reduce the minimum sentence prescribed for the offence under Section 376D of the IPC and to that extent the impugned judgment is wrong.
7. Heard the learned Senior Counsel, appeared on instructions, for the appellants and
