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Kerala High Court

Sasidharan vs State Of Kerala on 10 April, 2013

Author: P.Bhavadasan

Bench: P.Bhavadasan

       

  

  

 
 
                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT:

                    THE HONOURABLE MR.JUSTICE P.BHAVADASAN

         WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935

                                      CRL.A.No. 1903 of 2004 ( )
                                        ---------------------------
   SC.253/2000 of ADDITIONAL SESSION (FAST TRACK COURT - I), MANJERI

   APPELLANT(S)/ACCUSED :
   ------------------------------------

    SASIDHARAN, S/O. KUMARAN, PARAKKAL HOUSE,
    AMARAMBALAM AMSOM, KAVALAMUKKATTA.

    BY ADV. SRI.K.ANAND

   RESPONDENT(S)/STATE :
   -----------------------------------

    STATE OF KERALA, REPRESENTED BY THE
    CIRCLE INSPECTOR OF POLICE, NILAMBUR, THROUGH THE
    PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
    KOCHI 31.

    R1 BY PUBLIC PROSECUTOR SMT. R. REMA

    THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
    ON 10-04-2013, THE COURT ON THE SAME DAY DELIVERED
    THE FOLLOWING:

BP



                     P. BHAVADASAN, J.
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               Crl.Appeal. No. 1903 of 2004
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            Dated this the 10th day of April, 2013.

                             JUDGMENT

The accused was prosecuted for the offence punishable under Section 511 of Section 376 and Section 377 of Indian Penal Code. He was found guilty for the offence punishable under Section 511 of Section 376 of I.P.C.. Accordingly, he was convicted and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- with a default sentence of simple imprisonment for three years. If the fine amount is realised it was directed to be paid as compensation to the prosecutrix. Set off as per law was allowed.

2. P.W.5 is the victim in this case. She had lost her mother. After her mother's death, she was staying with her uncle's house, namely, P.W.6. The allegation is that the accused, who is her father, took  Crl.Appeal.1903/2004.

her to his house. During her stay in the house of the accused, the allegation is that there were attempts of sexual assault on her. She was then made to stay in hostel. The allegation is that after being put in the hostel, on two occasions she was taken from the hostel and taken to Guruvayoor and to Chandakunnu, where they stayed in lodges. During their stay in those lodges, attempts were made by the accused to sexually assault the victim. Ultimately, P.W.5 is said to have mentioned the incident to her friends who used to make fun of her regarding the same. Ultimately, it caught the attention of the Warden of the hostel who had summoned P.W.6 and he was informed about the incident. Thereafter, P.Ws. 5 and 6 went to the police station and laid Ext.P5 first information statement. P.W.9 recorded the statement and crime was registered as per Ext.P7 FIR. Investigation was taken over by P.W.10. He had the  Crl.Appeal.1903/2004.

victim sent for medical examination and obtained Ext.P1 certificate. He prepared Exts.P8, P10 and P13 scene mahazars in respect of the three places where the alleged assaults were said to have been made by the accused. He seized the dresses of the victim as per Ext.P6 seizure mahazar. He had the statements of the witnesses recorded. His successor-in-office P.W.11 obtained Ext.P16 FSL report and Ext.P17 certificate regarding the age of the victim. After completing the investigation, charge was laid before court.

3. The court before which charge was laid took cognizance of the offences. Finding that the offences are exclusively triable by a court of Sessions, committed the case to Sessions Court, Manjeri under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court Fast Track No.I (Adhoc), Manjeri for trial and disposal.

Crl.Appeal.1903/2004.

4. On receipt of records and on appearance of the accused before the said court, charge was framed for the offences punishable under Sections 511 of Section 376 and 377 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 12 and had Exts.P1 to P17 marked. M.O.1 series were identified and 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. 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. The court below, relying on the evidence of P.Ws.5, 6, 7 and 8 found that the offences have been  Crl.Appeal.1903/2004.

made out and accordingly found the accused guilty of the offence under Section 511 of Section 376 I.P.C. He was therefore convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal.

6. Learned counsel appearing for the appellant pointed out that the court below has omitted to note the inherent improbabilities in the evidence furnished by P.W.5 and a careful reading of the evidence of P.W.5 would reveal that she was made to lodge a complaint at the behest of her uncle P.W.6, who has a grudge against the accused. According to the learned counsel, there is no evidence to show that the victim had ever stayed in the house of the accused or in the hostel as alleged by the prosecution. The alleged stay at Guruvayur was not proved so also the stay at a lodge in Chandakunnu. It is also pointed out that the  Crl.Appeal.1903/2004.

medical evidence belies the version given by P.W.5. There is no injury noticed by the doctor P.W.1, either fresh or old, on any part of the body of P.W.5 which shows that the claims made by P.W.5 cannot be true. It is also pointed out that even assuming all what the prosecution says is true, there is no evidence to show that offence under Section 511 of Section 376 I.P.C. is made out and the ingredients to attract the said offence are not available in the case on hand. At any rate, according to the learned counsel, the sentence imposed is too harsh and it is not warranted by the facts of the case.

7. Learned Public Prosecutor pointed out that it may be true that the medical evidence does not support the prosecution case. But as far as the allegations are concerned, there are convincing evidence regarding the same. The court below chose to  Crl.Appeal.1903/2004.

accept the evidence of P.Ws. 5, 6, 7 and 8 and came to the conclusion that the offences have been made out. There is no reason to disbelieve P.W.5 and her evidence gets support from the evidence of P.Ws.6, 7 and 8. At any rate, P.W.8, the inmate of the hostel in which P.W.5 was residing, had deposed before court that P.W.5 had conveyed to some of her friends the incident in which her father was involved and they used to make fun of her. The court below chose to accept the evidence of the above witnesses and found the accused guilty of the offences and there is no reason to take a different view.

8. It is true that it is P.W.5, the daughter who has come forward with an allegation against her father of attempting to rape her. She accuses him of attempt to commit rape from 1995 onwards for a period of two years and she laid the complaint on 1997, to be more precise, on 6.9.1997. Her allegation is that while she  Crl.Appeal.1903/2004.

was in the house of the accused who is none other than her father, the first attempt was made and the second and third attempts were made in lodges at Guruvayur and Chandakunnu. The evidence regarding the actual incident is spoken to by P.W.5. She speaks about penetration. She says about the resistance offered by her and her dislike for her father. She says that when vacation arrived, she refused to go along with her father since she was afraid of the repetition of the act by her father and she went with her uncle. She deposed that while in the hostel she narrated the incident to some of her friends and they used to make fun of her. She also gave written complaints to the Warden and to the Cook concerned also. She went to the police station along with her uncle and there she was made to write complaint again and sign the same.  Crl.Appeal.1903/2004.

9. P.W.6 is the uncle of P.W.5. He would say that his sister is the mother of P.W.5 and there was no legal marriage between the mother of P.W.5 and the accused. However, they used to live as husband and wife. He also says that the accused did not reside in the house, but used to come there occasionally. After the death of the mother of P.W.5, according to him, he had taken P.W.5 to his house. He says that he came to know about the incident only when he was summoned to the hostel. According to him, he and P.W.5 went to the police station and laid the complaint.

10. P.W.7 is the cook of the hostel where P.W.5 was residing at the relevant time. She too speaks about the talk among the friends of P.W.5 and she also claimed that a complaint was given in writing.

11. P.W.8 is the inmate of the hostel as well as the room mate of the victim. She says that the victim,  Crl.Appeal.1903/2004.

P.W.5, had narrated the horrendous incident to her and she used to quite often made fun of P.W.5 with reference to the incident.

12. The evidence of P.W.1, the doctor, is to the effect that on examination of P.W.5, he could not notice any injury either external or internal to show that there has been any assault as claimed by P.W.5. Ext.P1 certificate issued by P.W.1 also confirms the same.

13. Even though P.Ws.5 and 7 have stated that written complaints were filed to the Warden etc, those complaints were not produced before court. P.W.9 has deposed that except Ext.P5 first information statement, there was no written complaint. It, to a certain extent, belies the version given by P.W.5 that in the police station she was made to write a complaint and sign the same.

Crl.Appeal.1903/2004.

14. However, there is no reason to disbelieve the evidence of P.W.5 when she deposed that there was attempt on the part of the accused to sexually assault her. Even after severe cross-examination, nothing could be brought out to show that she had a reason to falsely implicate the accused. There is no reason to disbelieve her version. At any rate, there has been sexual assault on her.

15. The court below has chosen to accept the evidence of P.Ws. 5, 6, 7 and 8 to come to the conclusion that some sexual infringement has occurred. Though the medical evidence shows that no injuries as such have been suffered by P.W.5, her evidence cannot be ignored. There has been some sort of sexual affront on P.W.5.

16. The court below was therefore perfectly justified in accepting the evidence of P.Ws.5, 6, 7 and 8  Crl.Appeal.1903/2004.

and there was evidence as far as the sexual infringement of the body of P.W.5.

17. What now remains to be considered is the offence committed by the accused. The court below was of the opinion that based on the evidence of P.W.5, it is felt that there has been attempt of rape and offence under Section 511 of Section 376 is attracted. Inspite of the best efforts made by this court, this court finds no evidence regarding the said offence. There were no injuries noticed by P.W.1 either present or past to indicate that there was attempted penetration. The statement of P.W.5 that she was suffering from pain even at the time of examination by P.W.1 can be taken only with a pinch of salt. Of course, she does say that there was attempted penetration. But there is no evidence regarding the said fact. Considering the facts and circumstances of the case, and the evidence  Crl.Appeal.1903/2004.

available on record, it is felt that the prosecution has not been able to make out offence under Section 511 of Section 376 of I.P.C. and the offence attracted to the facts of the case is one under Section 354 of I.P.C.

18. It is surprising to note that even though offence under Section 377 IPC is alleged against the accused, no finding has been rendered regarding the same and nothing has been stated about the same. As there is no appeal by the State, that aspect need not be considered herein.

In the result, while setting aside the conviction and sentence passed by the court below for the offence under Section 511 of Section 376 of I.P.C., the accused is found guilty for the offence under Section 354 of I.P.C. and he is sentenced to undergo rigorous imprisonment for 18 months and to pay fine of Rs.35,000/-, in default, to suffer simple imprisonment  Crl.Appeal.1903/2004.

for a period of three months. If the fine amount is realized, a sum of Rs.30,000/- shall be paid to P.W.5 as compensation.

P. BHAVADASAN, JUDGE sb.