Kerala High Court
Muhammed Sageer vs State Of Kerala on 6 November, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935
CRL.A.No. 855 of 2006 ( )
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SC.NO. 39/2005 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM
CP.NO. 7/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, N. PARAVUR
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APPELLANT/ACCUSED:
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MUHAMMED SAGEER, AGED 34 YEARS,
S/O.VIRASA, MUDIPPARAMBU VEEDU, VATTEKKATTU KARA,
KONATHUKUNNU BHAGOM, VELLANGALLUR VILLAGE,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY SRI.C.C.THOMAS,SENIOR ADVOCATE
ADV.SRI.NIREESH MATHEW
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY CIRCLE
INSPECTOR OF POLICE, NORTH PARAVUR POLICE STATION,
ERNAKULAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
-Crl.Appeal.-No.-855-of -2006-
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P. BHAVADASAN,- J.-
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Dated this the 6th day of November, 2013.
JUDGMENT
The accused was prosecuted for the offences punishable under Section 376 of Indian Penal Code. But, after trial, he was found guilty of the offence under Section 511 of Section 376 of I.P.C. He was, therefore, convicted and sentenced to undergo rigorous imprisonment for a period of five years for the offence under Section 511 of Section 376 of I.P.C. Set off as per law was allowed.
2. The incident in this case is alleged to have taken place on 11.3.2002 in a Madrassa where the victim had gone to study Quran and the accused was the teacher. The allegation is that on the date of the incident, in the evening, after the class the child was taken to the terrace and she was sexually abused. She reached home and informed her mother Crl.Appeal. 855/2006.
2and the information was conveyed to her father. Her father namely, P.W.2, laid Ext.P1 first information statement before the police. Complaint was recorded by P.W.12, the Assistant Sub Inspector of Police and he registered crime as per Ext.P9 FIR. Investigation was taken over by P.W.13. He had Ext.P4 scene mahazar prepared. He had sent the victim for medical examination and P.W.9 examined the victim on 12.3.2002 and issued Ext.P6 certificate. P.W.13, the Investigating Officer seized M.Os. 1 to 3 the dress said to have been worn by the victim at the relevant time and Ext.P2 mahazar prepared for that purpose. After the arrest of the accused, the clothes alleged to have been worn by the accused at the time of incident were seized as per Ext.P3 mahazar. He recorded the statements of witnesses and filed Ext.P10 report before the court showing the details of the accused. He produced the articles seized during investigation before the court and had them sent for chemical examination. After obtaining chemical Crl.Appeal. 855/2006.
3examination report, investigation was completed and charge was laid before court.
3. The court before which final report was laid took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Ernakulam. That court made over the case to Additional Sessions Court (Adhoc-I), Ernakulam for trial and disposal.
4. The latter court, on receipt of records, framed charge for the offence under Section 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 13 examined and had Exts.P1 to P13 marked. M.Os.1 to 5 were got 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. He also Crl.Appeal. 855/2006.
4stated that there were fractions of Muslims in the locality and they were at loggerheads. Because he was a PDP member and a working member of that group, he was implicated. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.
5. The court below mainly accepting the evidence of P.W.1, the victim, and P.W.9, the doctor who had examined the victim, found that offence under Section 511 of Section 376 of I.P.C. has been made out and accordingly, the conviction and sentence as already mentioned followed.
6. Learned counsel appearing for the appellant assailed the finding of the trial court on several grounds. It was pointed out that P.W.1 is not a trustworthy witness and no reliance could be placed on her evidence. According to the learned counsel, she had no case that there was any penetration at all. If as a matter of fact what P.W.1 says is Crl.Appeal. 855/2006.
5true, she would have cried aloud and that would have attracted the attention of the people who were in the Madrassa. It is also contended that P.W.9's evidence also is open to serious doubt, which is not consistent with the version given by P.W.1. Therefore, the conviction and sentence cannot stand.
7. Learned Public Prosecutor on the other hand contended that there is no reason to disbelieve P.W.1 and if at all any corroboration is required, that is available in the evidence of P.W.9 and Ext.P6 certificate. It is important to notice that the victim was examined by the doctor on the very next day of the incident and injuries were noticed on her private parts, which according to the doctor establishes slight penetration. It is also pointed out that there is no oblique motive or reason suggested to P.W.1 as to why she should falsely implicate the accused. In short, the contention is that there are no grounds made out to interfere with the finding of the trial court.
Crl.Appeal. 855/2006.
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8. Of course, as usual the evidence regarding the actual incident is confined to P.W.1, the victim. After conducting voire dire test and after satisfying that the witness was competent to depose, P.W.1 was examined in court. At the time of giving evidence she was studying in the 7th standard. According to her, while she was studying in the 4th standard, she was sent to Madrasasa at Parappuram Juma Masjid for studying Quran. She stated that the classes for Quran were being taken by the accused. According to her, on Saturdays and Sundays, she used to go in the morning and on other days, she used to go in the evening. While she was studying in the 4th standard, on a particular day, she went to the Madrassa in the evening. After the classes were over, the accused asked her to broom the upper floor and she was taken to the upper floor of the building. Her dress was removed and the accused lay on her. She then speaks about what had transpired. She would also say that she was threatened with Crl.Appeal. 855/2006.
7dire consequences in case she disclosed the incident to anybody. However, P.W.1 says that she told her mother on the very same day and her father came to know the incident from her mother and he laid the complaint. She identifies that M.Os. 1 to 3 are the clothes worn by her at the relevant time. P.Ws.2 and 3 are the parents of the victim. Both of them say about the information they received from P.W.1. P.W.2 also says about making of Ext.P1 FIS.
9. P.W.9 is the doctor who had examined P.W.1 and Ext.P6 is the certificate. The evidence of P.W.9 is of considerable relevance. He would say that he noticed aberrations on labium majer and and also found an injury on vulva. According to him, both these injuries could be caused in an attempted slight penetration.
10. Even though it was suggested to the doctor that if what is spoken to by him is true, some injuries will be present, the doctor replied that it is not always necessary that Crl.Appeal. 855/2006.
8it be so. He denied the suggestion that the injuries noticed by him can be caused in any other manner.
11. The court below was greatly impressed by the evidence of P.Ws.1 and 9. This is a case where the evidence of P.W.1, the victim, is sufficiently corroborated by the evidence of P.W.9 and the entries in Ext.P6 certificate issued by him.
12. It needs to be noticed that the incident was occurred on 11.3.2002 and the FIS was laid on the next day which also strengthens the case of the prosecution. Even though P.W.1 was cross-examined at length, no inconsistency or contradiction could be brought out in her evidence which makes her evidence vulnerable. Her evidence stands scrutiny. The evidence of P.Ws.2 and 3 also supports the evidence of P.W.1 though they have only hearsay information.
13. The court below was perfectly justified in coming to the conclusion that offence under Section 511 of Section 376 of I.P.C. has been made out on the basis of the Crl.Appeal. 855/2006.
9evidence of P.Ws.1 and 9 and the entries in Ext.P6. No grounds are made out to interfere with the said finding.
14. What now remains to be considered is the question of sentence. According to the learned counsel for the appellant, the sentence to undergo rigorous imprisonment for a period of five years is harsh and it is not warranted in the facts of the case and in the light of the passage of time it warrants a lenient view.
15. One must remember that the victim was 8 years of age and the offence is of a grave and serious nature. But 11 years have elapsed and circumstances must have changed. Considering the lapse of time and also the age of the accused also, it is felt that some leniency can be shown with regard to the sentence.
In the result, this appeal is partly allowed and while confirming the conviction of the accused for the offence under Section 511 of Section 376 of I.P.C., the sentence imposed by Crl.Appeal. 855/2006.
10the court below is set aside and the accused is sentenced to undergo rigorous imprisonment for a period of three years. Set off as per law is allowed.
P. BHAVADASAN, JUDGE sb.