Kerala High Court
Masilamani vs State Of Kerala on 26 March, 2013
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935
CRL.A.No. 551 of 2005 (F)
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[AGAINST THE JUDGMENT IN S.C.NO.38/2002 OF THE ADDITIONAL
SESSIONS COURT (FAST TRACK COURT -II) PALAKKAD]
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APPELLANT/ACCUSED:
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MASILAMANI, S/O. KRISHNAN,
CHAMBAROD, POLPPULLY, CHITTUR,
PALAKKAD DISTRICT.
BY ADVS.SRI.SAJAN VARGHEESE .K,
SRI.LIJU. M.P.
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REP. BY THE
CIRCLE INSPECTOR OF POLICE, CHITTUR,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 15-03-2013, THE COURT ON 26/03/2013 DELIVERED
THE FOLLOWING:
Prv.
P. BHAVADASAN, J.
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Crl.Appeal. No. 551 of 2005
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Dated this the 26th day of March, 2013.
JUDGMENT
The accused was found guilty of the offence punishable under Section 511 of Section 376 of Indian Penal Code and therefore convicted and sentenced to suffer rigorous imprisonment for a period of three years and to pay fine of Rs.2,000/-, and in default, to suffer simple imprisonment for a further period of three years. It was also directed that if the fine amount is realised, the same shall be paid as compensation to P.W.2, the mother of the victim. Set off as per law was allowed.
2. The incident which gave rise to the case occurred on 13.2.1999 at about 7.30 a.m. P.W.1 is the victim. P.W.2 is her mother. P.Ws.1 and 2 reside with three other children of P.W.2 and her husband. The husband of P.W.2 goes to Tamil Nadu for work and returns only after a week. When P.W.2 goes out for work, P.W.1 and the other children are left at home. On the date of the incident, P.W.2 Crl.Appeal.551/2005.
2returned home after work in the afternoon. She found P.W.1 extremely tired and lying down. When she was asked for the reason, she narrated the incident. She told her mother that when she was returning home after answering the call of nature, she was picked up by the accused and taken to a room in his house and ravished. She cried aloud which brought P.W.3 to the scene and on seeing P.W.3, the accused left the place in a hurry. P.W.1 was carried home. Later in the day, P.W.1 was taken to the hospital. On getting information from the hospital, P.W.10, the Head Constable attached to Chittur Police Station went over to the Government Hospital at Palakkad. As P.W.1 was not in a position to give a statement, Ext.P1 first information statement furnished by P.W.2 was recorded by him. He registered crime as per Ext.P1(a) FIR. P.W.11 took over investigation. He prepared Ext.P2 scene mahazar and had M.Os. 1 to 3 seized as per Ext.P3 seizure mahazar. P.W.1, the victim was examined by P.W.7, the doctor who issued Crl.Appeal.551/2005.
3Ext.P4 wound certificate. Subsequent investigation was conducted by P.W.12, the Circle Inspector of Police, who recorded statements of witnesses and arrested the accused. He had the accused sent for potency test and obtained Ext.P5 certificate from the doctor. He had the materials seized during investigation sent for chemical examination and obtained Ext.P10 certificate. He obtained Ext.P8 certificate regarding the age of the victim from the school concerned, completed investigation and laid charge before court.
3. Judicial First Class Magistrate, Chittur, took cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Palakkad under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court, Fast Track No.II, Palakkad for trial and disposal.
Crl.Appeal.551/2005.
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4. The latter court, on receipt of records and on appearance of the accused framed charge for the offence under Section 511 of Section 376 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution had P.Ws.1 to 12 examined and Exts.P1 to P10 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He stated that he has been falsely implicated. The brother of P.W.3 is a worker of the Communist Party and since the accused was not prepared to follow his instructions, he has been implicated in the case. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.
5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the offence has Crl.Appeal.551/2005.
5been made out and accordingly found the accused guilty of the offence under Section 511 of Section 376 I.P.C. The conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.
6. Learned counsel appearing for the appellant assailed the finding on several grounds. It was pointed out by the learned counsel that the omissions and contradictions in the evidence of P.W.1 have not been taken note of by the court below and had it been done so, it would have been found that the evidence of P.W.1 is open to serious doubt. It was also contended that in between the house of the victim and the house of the accused, where the incident is alleged to have taken place, there are two houses and if as a matter of fact P.W.1 as claimed by her had raised an alarm, surely the persons residing in the nearby houses would have rushed to the spot. None of the inmates of the house had heard any wail of P.W.1 and that would belie the prosecution case. Attacking the evidence of P.Ws.2 and 3, it was Crl.Appeal.551/2005.
6contended that P.W.2 has only hearsay knowledge about the incident. At the time of examination, she would say that she returned home by about 4 p.m. instead of noon as stated in the FIS. As regards the evidence of P.W.3 is concerned, who is the grandmother of the victim, certain omissions were pointed out which according to the learned counsel, amount to contradictions and that would make her evidence extremely vulnerable. In short, the evidence of P.Ws.1, 2 and 3 cannot stand scrutiny and the findings on the basis of their evidence cannot stand.
7. Learned counsel appearing for the appellant also contended that by no stretch of imagination, going by the evidence in the case, the offence under Section 511 of Section 376 I.P.C. could be attracted to the facts of the case. Even assuming all what the prosecution says is true, the offence that could be attracted is the one under Section 354 I.P.C. and the court below was not justified in holding the accused guilty of the offence under Section 511 of Section Crl.Appeal.551/2005.
7376 I.P.C. overlooking the ingredients necessary to attract the said provision.
8. Learned Public Prosecutor on the other hand controverting the contentions raised by the appellant pointed out that no grounds are made out to interfere with the finding of the court below. It was pointed out by him that P.W.1 was of tender age at the relevant time and she had no reason to falsely implicate the accused. The contention that had P.W.1 raised an alarm, it would have been heard by neighbours and since there is no evidence regarding the same, the prosecution should be disbelieved cannot be accepted. According to the learned Public Prosecutor, a careful reading of the evidence of P.W.1 would show that at the relevant time the inhabitants of the nearby houses had gone for work early in the morning. Learned Public Prosecutor conceded that there are certain omissions in the evidence of P.W.1, but they are not sufficient to make her evidence unacceptable. As far as P.W.2 is concerned, her Crl.Appeal.551/2005.
8evidence is only to the effect that she had taken the child to the hospital after learning about the incident. P.W.3, the grandmother of the child has stated that on hearing the cry of the victim when she reached the place, she found the accused running away from the place. The omissions, which amount to contradictions in the evidence of P.W.3, according to the learned Public Prosecutor, do not affect the crux of the prosecution case and they are only on insignificant aspects. The claim put forward by the accused that he was falsely implicated because a relation of P.W.2 was a member of the Communist Party and since the accused was reluctant to follow his instructions, cannot be accepted at all. There are no details given by the accused to show what were the instructions given by Kasu, the party worker, and there is nothing to show that Kasu was a member of the Communist Party. Learned Public Prosecutor also pointed out that it is too difficult to believe that P.W.2 would agree to make her daughter a victim of such an incident in order to enable Kasu Crl.Appeal.551/2005.
9to wreak vengeance against the accused. A close reading of the evidence of P.W.1, according to the learned Public Prosecutor, there was attempted penetration and that is sufficient to attract Section 511 of Section 376 of I.P.C. Learned Public Prosecutor therefore submits that the appeal is without merits and it is only to be dismissed.
9. Two questions arise for consideration in this appeal. The first one is whether the evidence of P.Ws.1 and 3 can be accepted with regard to the incident and two, what, if any, is the offence committed and whether any interference with the sentence is warranted.
10. The incident is said to have taken place at 7.30 p.m. on 13.2.1999. P.W. 2 has stated that by that time she had already gone for work. The evidence is to the effect that her husband goes for work outside the State and returns only after a week and on the date of the incident her husband was in Tamil Nadu.
Crl.Appeal.551/2005.
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11. P.W.1 is the victim. She was studying in the fourth standard at the relevant time. Her evidence shows that on the date of the incident, in the morning, she had gone out to answer the call of nature and while she was returning, she was carried to his house by the accused and thereafter removing her dress, the accused tried to commit rape on her. Due to pain when P.W.1 cried aloud, P.W.1 says that, P.W.3 came to the place and seeing P.W.3 the accused ran away. She would say that her father returned home after three days of the incident. P.Ws.2, 3 and her uncle took her to the hospital on the same day. The omission pointed out in her evidence is that at the time of giving evidence in court she had stated that she had tried to wriggle out when the accused caught hold of her and it does not find a place in the statement to the police. Another omission pointed out is that in her statement to the police, it is not seen stated that she had immediately conveyed the Crl.Appeal.551/2005.
11incident to P.Ws. 2 and 3. There are certain other omissions pointed out, which may have some bearing on the issue.
12. As far as the evidence of P.W.2 is concerned, the only contradiction pointed out is that at the time of Ext.P1 first information statement, she had stated that she had reached home in the afternoon, while at the time of evidence she deposed that she reached the house only by 4 p.m. The evidence of P.w.2 shows that when she reached home, she found her daughter P.W.1 weak and lying down and when she enquired, the child began to cry and later narrated the incident. She would also say that initially the victim was taken to the hospital at Chittur, where there as no doctor at the relevant time and they were directed to go to the Government Hospital at Palakkad and they went there.
13. The other crucial evidence is that of P.W.3. She is the grandmother of P.W.1. One may recollect here Crl.Appeal.551/2005.
12that the evidence of P.W.1 is to the effect that when the accused was trying to rape her, she cried aloud which brought P.W.3 to the scene. P.W.3 says that the child had gone out and when it was found that she had not returned within a reasonable time, P.W.3 came out of the house in search of her. She then heard the cry of P.W.1. Noticing that it was coming from the house of the accused, she rushed to that place and seeing her, the accused ran away from the place. P.W.3 would also say that she tried to get the help of some of the people in the locality, but they refused considering the nature of the incident involved. The contradictions pointed out in her evidence are that she had not told the police that she had gone in search of P.W.1 and then heard the cry.
14. The medical evidence in this case is not of much help. P.W.7 is the doctor who had examined the victim. She issued Ext.P4 certificate. The doctor says that she could notice no external injuries anywhere in the body Crl.Appeal.551/2005.
13nor there were any injuries in her private parts. Ext.P4 also confirms this.
15. The omissions and contradictions pointed out in the evidence of P.Ws.1 to 3 as rightly urged by the learned Public Prosecutor are not of material in nature and are also not very significant while assessing the evidence regarding the incident as such. One must remember that as regards the incident we have the solitary evidence of P.W.1. P.W.1's evidence has already been referred to. While discussing her evidence, it was mentioned that certain omissions pointed out will be reserved for consideration later. P.W.1 at the time of evidence had gone to the extent of saying that the accused had thrust his organ into her private part. This claim of P.W.1 is not seen in her statement to the police under Section 161 Cr.P.C. This is indeed a significant omission and the evidence of P.W.1 to the effect that there was such an act cannot be accepted as it could be treated only as an embellishment and also due to Crl.Appeal.551/2005.
14the absence of any medical evidence in that regard. It is seen that initially the case of P.W.1 was only that after undressing her the accused had caressed her private parts. The court below seems to have been impressed by the statement of P.W.1 that there was an attempt by the accused to thrust his organ into the private part of the victim and that would attract offence under Section 511 of Section 376 of I.P.C. Attack on the evidence of P.W.2 regarding the time at which she returned home does not have any hearing on the issue involved in this case so also the omissions and contradictions pointed out in the evidence of P.W.3.
16. It is here that one will have to consider the defence put up. The case of the accused is that he was falsely implicated because Kasu, a close relative of P.W.3 is inimically disposed of towards him. Apart from the vague assertion, there was no evidence produced to prove the said fact. As rightly pointed out by the learned Public Prosecutor, Crl.Appeal.551/2005.
15it is too difficult to believe that P.W.2 would let her daughter to be used as a victim of such an incident so as to enable Kasu to have his grudge realized. Even though the evidence of P.W.1 regarding the attempted rape may not as such be acceptable, her evidence that she was carried home by the accused and she was undressed and he pressed his organs against her body need not be disbelieved. As already noticed, there is nothing to show that there was any effort on the part of the accused to thrust his private parts into that of P.W.1. Therefore, it follows that there has been sexual assault on P.W.1.
17. The second question that arises for consideration is what is the offence actually committed by the accused. While discussing the first point, it has been found that the claim of P.W.1 that there was thrusting of the private part of the accused into that of P.W.1 cannot be believed for more than one reason which need not be repeated here again. In fact the evidence would only show Crl.Appeal.551/2005.
16that she was undressed and the accused also undressed himself and lay near her and he rubbed his organ against her body. It is also to be noticed that there is no case for the prosecution that there was any ejaculation or that the clothes seized during investigation and sent for chemical examination contained semen or spermatozoa.
18. The mere fact that the accused had undressed the victim and also undressed himself and also lay on her body and pressed his organ on her body itself is not sufficient to attract the offence under Section 511 of Section 376 I.P.C,
19. Thus, while accepting the finding of the court below, there has been sexual assault, the finding of the court below that offence under Section 511 of Section 376 I.P.C. is attracted cannot be accepted. As rightly pointed out by the learned counsel for the appellant, the offence can only fall under Section 354 of I.P.C. It is so found accordingly.
Crl.Appeal.551/2005.
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20. Next question is regarding the sentence to be imposed. As per Section 354 I.P.C., the punishment provided by the Section is a term of imprisonment which may extend to two years or fine or with both.
21. Learned counsel appearing for the appellant pointed out that the incident had taken place in 1999 and 14 years have elapsed and situations and circumstances have changed and both the accused as well as the victim are settled in life. They are leading a peaceful and calm life. To upset the said situation and to kick up dust again will be doing injustice to the appellant and according to the learned counsel for the appellant, imposition of fine would be sufficient.
22. Learned Public Prosecutor very vehemently opposed the above contention. According to him, the offence is a grave and serious one and it was contended that the child was aged only 9 years at the relevant time. Referring to a decision of the Apex Court, it was pointed out Crl.Appeal.551/2005.
18by the learned Public Prosecutor that such offences shall not be viewed lightly and need to be dealt with strongly. It was therefore pointed out that the maximum sentence under Section 354 I.P.C. should be awarded to the accused.
23. One has to notice that the incident is of the year 1999. This appeal has been pending before this court for the last 8 years. Surely, the victim as well as the accused would have been married. They would be leading a family life. Most of the people might have forgotten the incident altogether and the victim may not be interested in having the matter kicked up again. But at the same time, showing leniency to the accused is also not warranted. As rightly pointed out by the learned Public Prosecutor, the offence is indeed of a serious and grave nature and needs to be curbed and dealt with firmly. But the court while imposing sentence has to strike a balance between the various factors and circumstances and it is said that the sentence shall not either excessive or too light. Crl.Appeal.551/2005.
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24. Considering the various facts and circumstances of the case, it is felt that the sentence of simple imprisonment for a period of six months and fine of Rs.15,000/- would meet the ends of justice.
In the result, this appeal is partly allowed, the conviction and sentence passed by the court below for the offence punishable under Section 511 of Section 376 I.P.C. is set aside and the accused is found guilty of the offence punishable under Section 354 of I.P.C. and he is sentenced to suffer simple imprisonment for a period of six months and to pay a fine of Rs.15,000/- as fine, in default of payment of which, he has to suffer simple imprisonment for a period of two months. If the fine amount is realised, a sum of Rs.12,500/- shall be paid to P.W.1 as compensation.
P. BHAVADASAN, JUDGE sb.