Kerala High Court
Radhakrishna Pillai vs The State Of Kerala (Represented on 23 February, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934
CRL.A.No. 500 of 2005 (F)
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AGAINST THE JUDGMENT IN SC.358/2004 of ADDL. DISTRICT COURT (ADHOC-I),
KOLLAM DATED 23-02-2005
APPELLANT/ACCUSED:
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RADHAKRISHNA PILLAI,
S/O. RAGHAVAN PILLAI, VETTIVILAKIZHAKKATHIL VEEDU
NEAR AMMA MEMORIAL SCHOOL, SASTHAMCOTTAH VILLAGE.
BY ADVS.SRI.C.AJITHKUMAR
SRI.C.ANILKUMAR (KALLESSERIL)
RESPONDENT/COMPLAINANT:
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THE STATE OF KERALA (REPRESENTED
BY THE CIRCLE INSPECTOR OF POLICE IN CRIME
NO.621/03 OF SASTHAMCOTTAH POLICE STATION)
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB.
P.BHAVADASAN, J.
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Crl.A. No. 500 of 2005
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Dated this the 14th day of March, 2013
J U D G M E N T
The accused was prosecuted for the offences punishable under Sections 452 and 511 of 376 of IPC. After trial, he was found guilty of the offences punishable under Sections 451 and 511 of 376 of IPC and convicted for the said offences and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- for the offence punishable under Section 451 and five years rigorous imprisonment and to pay a fine of Rs. 5,000/- for the offence under Section 511 of 376 of IPC.
2. PW1 is the victim in this case and accused is her step father. At the relevant time, he was staying away from his wife, who is the mother of PW1. Along with him two daughter were staying in the same house. The allegation is that PW1 at the relevant time was studying in tutorial college and she is to take tuition for students. On the date Crl.A. No.500/2005 -2- of incident i.e. on 01.12.2003, in the noon, after taking tuition since she had to prepare for the Christmas examination, she did not go to the academy and decided to come home. When she reached home, she found the kitchen door lying open and entered the house through that door. While she was picking up books to study, it is said that the accused caught hold of her and led her to a cot and made her lie there. A saree was stuffed into her mouth to stall any cry from her. There after her breast were fondled and it is alleged that the accused tried to unhook her blouse. The victim was fortunate to kick him away and escaped and she raised a hue and cry. It is also alleged that the accused had lifted her skirt and tried to pull down her undergarments. PW1 laid Ext.P1, First Information Statement which was recorded by PW7 who registered crime as per Ext.P6, FIR. He prepared Ext. P1(a), a body note also. PW1 was examined by PW5 and furnished EXt.P4 certificate. The accused was arrested on the same day, statement of Crl.A. No.500/2005 -3- witnesses were recorded, investigation was completed and final report was laid before Court.
3. The JFCM-I, Sasthamcotta before whom final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of sessions, the case was committed to Sessions Court, Kollam. The said court made over the case to Addl. District and Sessions Court-I (Adhoc), Kollam for trial and disposal. The said court on receipt of records and on appearance of the accused framed charges for the offences punishable under Sections 452 and 511 of 376 of IPC. To the Charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 7 examined and Exts.P1 to P6 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 pointed out that PW2 had illicit relationship with one Crl.A. No.500/2005 -4- Gopinathan PIllai and that was not to the liking of the accused who took objection to the said conduct and that had annoyed PW2 and the accused made to leave the house.
4. Finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On an appreciation of the evidence, the court below found the accused guilty of the offences punishable under Sections 452 and 511 of 376. The conviction and sentence as already mentioned followed. They are assailed in this appeal.
5. The learned counsel appearing for the appellant pointed out that the prosecution case centers around the evidence of PW1 alone and if that evidence is found to be vulnerable, the prosecution has to fail. It is pointed out by the learned counsel that a close reading of the evidence of PW1 would show that she is prone to exaggerations and developments and she has no consistent case. Her version in court cannot be believed much for most of the statements Crl.A. No.500/2005 -5- made by her do not find a place either in Ext.P1 or her subsequent statements to the police. The learned counsel drew attention of the court to the body note noted in the FIR. It was pointed out by the learned counsel that even though the victim was examined on the same day by PW5, the red marks claimed to have been found on the cheeks of PW1 do not find a place in doctor's certificate at all. The evidence of PWs 2 and 3 are of no use to the prosecution case. They have only hearsay knowledge and their evidence also does not corroborate the version given by the PW1.
6. The learned counsel then went on to point out that even assuming all of the prosecution case is true, no offence under Section 511 of 376 is made out and for the said proposition, the learned counsel relied on the decision reported in Hari Mohapatra and another v. State of Orissa and others [1996 Crl. L. J. 2952]. For the proposition that the witnesses are prone to make exaggerations and embellishments at the time of evidence Crl.A. No.500/2005 -6- that evidence should be viewed with caution the learned counsel relied on the decision reported in Bachcha v. State of U.P. [2008 Crl.L. J. 483]. The learned counsel went on to point out that a careful analysis of the evidence would show that the prosecution has not succeeded in establishing the case against the accused.
7. The learned Public Prosecutor on the other hand pointed out that the version given by PW1 stands scrutiny and her evidence shows that the act committed by the accused was with the intention to commit rape on her from which she was fortunate enough to escape. The learned Public Prosecutor pointed out that the accused had no reason to be at the place at the relevant time for he was staying elsewhere and he had not been staying with his wife and children for the long time. The learned Public Prosecutor also pointed out that it is always possible that some embellishments and developments are made by the victim at the time of evidence for more than one reason. Crl.A. No.500/2005 -7- They may be excited while giving evidence in the court or due to the passage of time they may not be able to recollect what had earlier spoken to. The learned Public Prosecutor pointed out that an attempt should be seen if the embellishments and developments are such that it creates the totally different story from the first version given by the victim. If the versions are substantially the same, there is no reason to disbelieve the prosecutrix.
8. In such cases one has to rely on the evidence of Prosecutrix considering the nature of offence alleged to have been committed by the accused. The court below has considered these aspects in considerable detail and no grounds are made out to interfere with the findings of the court below.
9. As rightly noticed by both sides, the evidence regarding the incident remains confined to PW1, the victim. She is the step daughter of the accused. There is not much dispute that the mother of the victim was married to the Crl.A. No.500/2005 -8- accused and in that relationship he had two daughters who were staying along with the victim, PW1. For some reason or the other, the accused was staying away from them.
10. Coming to the evidence of PW1, she would say that on the date of incident even though she had to go to the college, since her Christmas examination was fast approaching and since she had to study a lot, she decided to return home without going college. She further says at the time of evidence that when she came home, she found the front door locked and therefore she reached the rear portion of the house and found the kitchen door open. She entered through the kitchen door and while she was picking up books for studying, she was attacked. Then she says the details about the incident. PW3 claims to have come to the place hearing the cries of PW1. She also says about what PW1 had told her about the incident. PW2, the mother came later and gets information from PWs 1 and 3. Crl.A. No.500/2005 -9-
11. True, there are some embellishments and developments in the evidence of PW1. But the essential factors spoken to by PW1 do find a place in Ext.P1, the First Information Statement. As rightly pointed out by the learned Public Prosecutor, there are bound to be certain inconsistencies, contradictions, embellishments and developments in the evidence of PW1, who is deposing before the court long after the incident has occurred and it is imprudent on the part of the court to except mathematical position in their version. Applying the accepted norms, it could not be said that PW1 at the time of evidence, had knit a new story altogether. The essential factors which find a place in Ext.P1 are spoken to by PW1 at the time of evidence also. True, she had no case at the time of giving Ext.P1 that when she had reached home, the front door was seen locked. So also there are inconsistencies regarding other minor aspects regarding the incident. But they do not have much relevance or significance as far as the actual incident Crl.A. No.500/2005 -10- is concerned regarding which they seems to be no contradictions or inconsistencies between the evidence of PW1 and Ext.P1.
12. Of course, coming to the evidence of PWs 2 and 3, apart from the fact that they have not seen the incident, there are certain significant omissions brought out by the defence which would show that there are not saying the truth. But even according to PW3, she had come hearing the cry of PW1 and then PW1 had told her what had transpired. The fact that a cry was let out by PW1 is spoken to by PW1 also and she also says that the neighbours had come to the spot. Regarding the other aspects spoken to by PW3, one may not be able to accept that portion. Whatever that be, the evidence is clear to the effect that the accused was in the house and had tried to molest the victim.
13. The court below has come to the conclusion that there was an attempt to commit rape. Probably the court below was guided by the evidence furnished by PW1 to the Crl.A. No.500/2005 -11- effect that the accused had lifted her skirt and tried to pull down her undergarments. That the court below might have noticed that the act intended was to commit rape from which the victim was fortunate enough to escape.
14. Even assuming that the accused had fondled the breast of the victim and also had lifted her skirt and tried to pull down her undergarments, the question would still arise what is the offence made out. In this regard, the decision relied on by the learned counsel for the appellant may be of some relevance. In Hari Mohapatra and another v. State of Orissa and others [1996 Crl. L. J. 2952], it is observed as follows:
"6. xxxxxxxxxxxxxx As observed in the decision reported in AIR 1961 SC 1698 : (1961 (2) Cri. L.J. 822) (Abhayanand Mishra v. State of Bihar) there is a thin line between the stage or proportion and an attempt to commit an offence. A person commits the offence of "attempt to commit a particular offence" when he intends to commit that particular offence and having made preparations Crl.A. No.500/2005 -12- and with intention to commit the offence does an act towards its commission which need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing that offence. As explained in the decision reported in AIR 1980 SC 1111 : (1980 Cri. L. J. 793) (State of Maharashtra v. Mohd. Yakub), though such overt act need not be the penultimate act towards the commission of the offence, such act must manifest a clear intention to commit the offence aimed being reasonably proximate to the consummation of the offence. As observed by Chinnappa Reddy, J.. in his concurring view in the very same decision, (Para 31):
"....... In order to constitute 'as attempt' first there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. ....."
xxxxxxxxxxxxxxxxxx"
15. All that the prosecution has succeeded in proving this case even accepting the entire evidence to be true is that the accused had fondled her breast, lifted the skirt and tried to pull down her under garments. There is nothing to Crl.A. No.500/2005 -13- show that he had gone any further when the action was aborted by the cry let out by PW1 inviting the attention of the neighbours. Going by the principles laid down in the decision referred above, that is too insufficient to attract the offence of attempt to commit rape. However, that does not absolved the accused of criminal liability. At any rate, the act would fall within the ambit of Section 354 of IPC.
16. Coming to the offence under Section 451 of IPC, which has been found by the court below that it is extremely doubtful that the ingredients to attract that provision is available on the facts of the case. One must remember that the daughters of the accused were living in that house along with the mother who is none other than the wife of the accused. However, it could not be said that the accused had come to the house either expecting the presence of PW1 or that he had come there with the intention of committing an offence. But it could be said that he had entered the house with an intention of causing annoyance Crl.A. No.500/2005 -14- probably to PW2 who did not liking to his presence in the house. In view of that angle, the offence that could be attracted is only Section 447 IPC.
17. Thus, while concurring with court below that the accused had entered the house and had tried to molest the victim, this Court is unable to accept the findings of the court below that the offence Under Section 511 of 376 and 452 are made out and the accused is liable to be convicted for the said offences. This Court feels that on an appreciation of the evidence, the offences that could be made out that should be only under Sections 354 and 447 of IPC.
In the result, the conviction and sentence of the accused for the offences punishable under Sections 451 and 511 of 376 are set aside and instead he found guilty of the offences punishable under Sections 354 and 447 of IPC and he is convicted to suffer rigorous imprisonment for two years for the offence under Section 354 of IPC and six months Crl.A. No.500/2005 -15- simple imprisonment for the offence punishable under Section 447 of IPC. The substantive sentences shall run concurrently. Set off as per law will be allowed. If the accused has already undergone the period of sentence, he shall be released forthwith.
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P.BHAVADASAN, JUDGE ds //True copy// P.A. To Judge