Kerala High Court
Varghese vs State Of Kerala on 7 December, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935
CRL.A.No. 1457 of 2012 ()
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AGAINST THE JUDGMENT IN SC 85/2012 of ADDITIONAL DISTRICT
COURT (ADHOC), ERNAKULAM DATED 07-12-2012
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APPELLANT/ACCUSED :
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VARGHESE
S/O.MARKOSE KIZHAKKEKUDY (H)
KALLADU 3 CENT COLONY BHAGAM
CHELADU KARA, KOTHAMANGALAM PIN 686 691
BY ADVS.SRI.P.BENJAMIN PAUL
SRI.SAJI VARGHESE KAKKATTUMATTATHIL
RESPONDENTS :
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STATE OF KERALA
REPT. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM KOCHI 682031
BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
P.BHAVADASAN
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Crl.A. No. 1457 of 2012
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Dated this the 04th day of December, 2013
J U D G M E N T
The accused was prosecuted for the offences punishable under Sections 450 and 511 of 376 of IPC. He was found guilty on both counts. He was convicted and sentenced to suffer rigorous imprisonment for five years and to pay a fine of 25,000/- with a default clause of three months rigorous imprisonment for the offence punishable under Section 450 of IPC. He was also sentenced to undergo five years rigorous imprisonment and to pay fine of one lakh with a default clause of one year for the offence punishable under Section 511 of 376 of IPC.
2. The incident which gave rise to this case is alleged to have occurred on 25.07.2011. On that day, it is stated that the victim, who was partially paralyzed while was sitting in her house, by about 3.30 to 4 O' clock, the accused came to the house of the victim and unzipping her nighty, fondled her breasts. It is alleged that PW2 who had come back from the school happened to see the incident and Crl.A. No.1457/2012 -2- reported the same to her mother. On the next day, her mother informed the matter to PW1 who laid Ext.P1, First Information Statement. That was recorded by PW10 who registered crime as per Ext.P7, FIR. Investigation was taken over by PW11. He prepared Ext.P2, scene mahazar. He had the victim medically examined by PW6 who furnished Ext.P4 report. He seized the dress worn by the accused as per Ext.P3 mahazar. He had, after the arrest of the accused, subjected him to potency test. PW8 examined him and furnished Ext.P6 report. He recorded statement of witnesses, completed investigation and laid charge before court.
3. The court before which the final report 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, Ernakulam under Section 209 Cr.P.C. The said court, made over the case to Additional Sessions Court, Adhoc-I, Ernakaulam for trial and disposal.
4. The latter court, on getting records, framed charges for the offences punishable under Sections 450 and 511 of 376 of IPC. Crl.A. No.1457/2012 -3- To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had examined PWs 1 to 11 examined and Exts. P1 to P11 marked. MO 1 was got identified and marked.
5. 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 pointed out that there was bitter relationship between him and PW1 and PW1 had threatened him that he put him in his place. He denied having committed any act as alleged. 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.
6. Mainly based on the evidence of PWs 2, 3 and the statements made by the victim to the Police during investigation which fall under Section 161 of Cr.P.C., the court below came to the conclusion that the offences have been made out. Conviction and sentence as already mentioned followed.
Crl.A. No.1457/2012 -4-
7. The learned counsel appearing for the appellant assailed the said conviction and sentence both on facts and in law. The learned counsel pointed out that there is no consistent case for the prosecution regarding the time of incident nor the nature of incident. Even going by the evidence adduced by the prosecution, at the time of the alleged incident is said to have taken place, there were three persons inside the house, apart from the little girl, PW2 who claims to have returned from the school at the relevant time. It is inconceivable that all the three would have omitted to see the coming in of the accused and performing the objectionable act. It is also significant to notice according to the learned counsel for the appellant that when Ext.P1, First Information Statement was laid, the case of PW1 was that the incident had taken place at 1.00 p.m. in the noon on 25.07.2011. Finding that, that would be incompatible with the evidence of PW2, the time was shifted conveniently to 4.30 p.m. so as to enable PW2 to see the incident and give evidence in that regard. This change of timing is deliberate and with ulterior motive. It was also pointed out that the evidence of PW3 is also Crl.A. No.1457/2012 -5- open to serious doubt. She is a person who was present in the house to look after the victim who was partially paralyzed. It is strange to note that she would say that she and the other two inmates of the house were in sound sleep at 4.30 p.m. on the day when the incident is alleged to have taken place. These artificial and unnatural evidence has been relied on by the court below to convict the accused. It is also significant to notice according to the learned counsel for the appellant that PW1 has admitted in his testimony that the relationship between him and the accused was far from pleasant and they were not on cordial terms. There was in fact a dispute between the families which had spilled over in the present generation also. The learned counsel for the appellant then pointed out that even assuming all what the prosecution says is true, the offence under Section 511 of 376 of IPC can never be attracted. The learned counsel also pointed out that the court below has not appreciated the evidence in proper perspective and has relied on inadmissible items of evidence to come to the conclusion that the offences have been made out. The learned counsel then pointed out Crl.A. No.1457/2012 -6- that the lower court seems to have been greatly impressed by an entry in the potency certificate that the accused is a chronic alcoholic and entered on a discussion about alcoholism in the judgment which has nothing to do with the incident. The learned counsel pointed out that the court below has mainly relied on inadmissible items of evidence and unnecessary materials to find the accused guilty. On these basis, it is contended that conviction and sentence cannot stand.
8. The learned Public Prosecutor on the other hand pointed out that there is no reason to disbelieve PW2 who had no ill-will or oblique motive to falsely implicate the accused. Her testimony stand scrutiny and the court below was justified in accepting the same. The learned Public Prosecutor pointed out that at any rate, the court below has chosen to accept the evidence of PWs 1, 2 and 3 and also the statements said to have been made by the victim to the Police Officer and unless it is shown that the findings are perverse, interference is not called for.
Crl.A. No.1457/2012 -7-
9. At the outset itself, it may be noticed that the victim is aged more than 70 and the accused is over 62. The incident is alleged to have taken place on 25.07.2011. PW1 is the author of Ext.P1. PW1 would say that on 26.07.2011, his sister in whose house the victim was residing at the relevant time had come to him and told him about the atrocities committed by the accused on his mother. He went to the Police Station and laid Ext.P1, First Information Statement. He is definite while giving the First Information Statement that the incident had happened in the afternoon at about 1 O'Clock. At the time of evidence, he says that the incident occurred at 4.30 p.m.. Whatever that be, his knowledge about the incident is purely hearsay.
10. PW2 is the staunch witness for the prosecution. She is the grand daughter of the victim and she says that she returned from the school, after 3.30 p.m., when she entered the house, she happened to see the accused fondling the breasts of the victim. Her cries got others to the scene and then they all saw the accused running away to his house.
Crl.A. No.1457/2012 -8-
11. The other item of evidence is furnished by PW3 who it is claimed was staying at the relevant time with the victim and who was present there to look after the victim.
12. The contention raised by the learned counsel for the appellant that there was convenient shifting of time from 1.00 to 4.30 p.m, can easily be overlooked. If as a matter of fact, the incident had taken place after PW2 has returned from the school, naturally the incident could have only after 3.30 or at least after 4 O'Clock. There was no occasion then for the sister of PW1 to have told him that the incident had occurred at 1 O'Clock. That can only be with, as rightly pointed out by the learned counsel for the appellant, to enable PW2 to depose that she had witnessed the incident. Whatever that be, the evidence of PW1 is purely hearsay. The main evidence in the case consist of the testimony of PW2.
13. That the victim was partially paralyzed is beyond dispute. The evidence of PW2 is to the effect that when she entered the house, after returning from the school, she happened to see the accused unzip the nighty of the lady and fondle her breast. It is Crl.A. No.1457/2012 -9- significant to notice that there were three other inmates in the house at the relevant time. PW3 conveniently says that all the three of them were sleeping at that time. One should remember that PW3 was brought there to look after the victim and normally, she should have been in the room where the victim was lying. There is no evidence at all in this case to show as to whether the other inmates of the house was present at the relevant time. It is inconceivable that all the inmates would have been sleeping in the house the door thrown open for anybody to enter the house. It is in this context, one will have to view the shift of timing spoken to by PW1. May be that, the defence has not been able to show any oblique motive on the part of PW2 to speak as to the testimony regarding the incident. But it is not for the defence to show as to why the accused has been implicated. That question will arise only when the prosecution establishes the case beyond reasonable doubt.
14. Again, the victim was examined by PW6 on 28.07.2011 that is two days after the incident and Ext.P4 is the report. To the doctor, the time of incident was given as 3.00 p.m., if that be so, Crl.A. No.1457/2012 -10- PW2 could not have seen the incident at all. There is no challenge to the testimony given by PW6 that to her, the time was given as 3.00 p.m.. Therefore, it could be seen that the testimony given by PW2 is open to serious doubt. It is in this context, one will have to appreciate the defence set up that it is out of spite and grudge that he has been falsely implicated. It would appear that the families were not on good terms with each other and if that be so, it is more inconceivable that the accused would have forced himself into the house of the victim at about 4.30 on a day. It is most unlikely that the people in the house will be asleep at that time of the day. It is quite unfortunate that the court below has placed considerable reliance on the statements said to have been given by the victim to the Police Officer concerned which squarely falls within the ambit of Section 161 of Cr.P.C. Those statements which has been relied on by the court below are clearly inadmissible in evidence. It cannot be said that the statements made by the victim fall within the ambit of Section 32 of the Indian Evidence Act.
Crl.A. No.1457/2012 -11-
15. True, it may look odd to say that the evidence of PW2 is open to suspicion. When her evidence is viewed in the light of other items of evidence, it becomes difficult to accept her version. She claims to have seen the incident after she returned from the school which does not go well with the time given to the doctor as well as initially spoken to by PW1. The claim made by PW3 and others that at 4.30 p.m., on the day on which the incident is alleged to have taken place, all the three inmates of the house were in sound sleep and did not notice the entry of the accused is too open to doubt. These unnatural aspects of the prosecution case have been omitted to be noticed by the court below and the court below has mechanically accepted the evidence of PW2 and the non admissible statements given by the victim.
16. In the light of these facts, it becomes difficult to accept the findings of the court below that the prosecution has succeeded in establishing the case against the accused. There is reasonable doubt regarding the conduct of the accused in this case. If that be so, the benefit certainly go to him.
Crl.A. No.1457/2012 -12-
17. In the light of the above findings, even if all what the prosecution says is true, the offences under Sections 511 of 376 and 450 of IPC are not made out. In the light of the finding that the prosecution has not succeeded in establishing the case beyond reasonable doubt, no further discussion is necessary regarding that aspect.
In the result, this appeal is allowed. It is held that the accused is not guilty of the offences alleged against him. The accused stands acquitted of all the charge and if he is in custody, he shall be released forthwith. If he has paid the fine amount, the same shall be refunded to him.
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P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge