Kerala High Court
Ramar vs State Of Kerala on 25 January, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939
CRL.A.No. 272 of 2011
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AGAINST THE JUDGMENT IN S.C NO.98/2010 of SESSIONS
COURT, THODUPUZHA DATED 25-01-2011
APPELLANT/ACCUSED:
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RAMAR, S/O. VELU, DYMUKKU ESTATE,
4TH DIVISION, DYMUKKU KARA,
PERIYAR VILLAGE.
BY ADV. SRI.LATHEESH SEBASTIAN
RESPONDENT/STATE:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
ab
P.UBAID, J.
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Crl.A No.272 of 2011
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Dated this the 5th day of July, 2017
J U D G M E N T
The appellant herein challenges the conviction and sentence against him under Section 354 of the Indian Penal Code in S.C No.98/2010 of the Court of Session, Thodupuzha.
2. The police brought the prosecution as a case of attempted rape under Section 376 r/w 511 IPC. The prosecution case in the final report is that at about 11.30 am on 9.8.2008 the appellant trespassed into the house of a partially deaf and dumb lady and made an attempt to commit rape on her. The FIR was initially registered only under Section 354 IPC, and after investigation the police submitted final report in court under Sections 450 and 376 r/w 511 IPC as a case of house trespass and attempted rape. On committal, the case came up before the Court of Session. The case was tried by the learned Sessions Judge, Crl.A No.272 of 2011 2 Thodupuzha.
3. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 450 and 376 r/w 511 IPC. The prosecution examined 14 witnesses in the trial court and proved Exts.P1 to P14 documents. MO1 and MO2 properties were also identified during trial. The competence of the victim to give evidence was tested by the trial court, and some of her statements were recorded by the trial judge. That was marked as Ext.C1. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C. He did not adduce any evidence in defence. On an appreciation of the evidence the trial court found that what is proved is only the offence of outrage of modesty under Section 354 IPC. Accordingly, the trial court found the accused not guilty under Sections 450 and 376 r/w 511 IPC. But he was found guilty and convicted under Section 354 IPC as a lesser offence. On conviction he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1,000/- by judgment dated 25.1.2011. Aggrieved by the said judgment of conviction, the accused has come up in appeal.
4. When this appeal came up for hearing the learned Crl.A No.272 of 2011 3 counsel for the appellant submitted that the parties have in fact settled the whole dispute amicably out of court, but the accused happened to be convicted on the basis of a casual statement made by the victim when questioned by the court. On a perusal of the entire materials I find that all the material witnesses including the victim examined in this case turned hostile during trial. PW1 is the mother of the victim and PW4 is her father. These witnesses stated that they have settled the dispute amicably out of court, and they have no complaint. They did not support the prosecution. The victim of offence in this case is a grown up lady. She was examined as PW2. PW3, PW5 and PW6 are the neighbours. They also did not support the prosecution. PW7 is the doctor, who had examined the victim in view of the complaints of attempted rape, and PW8 is the doctor who examined the accused to test his potency. The other evidence need not be discussed, being formal in nature, except that of PW11.
5. As already stated everybody turned hostile in this case. Even the victim turned hostile and stated that she was not molested or outraged by the accused in this case. The prosecution case is that the victim of offence is a partially deaf Crl.A No.272 of 2011 4 and dumb lady. To test her competence to give evidence, the learned trial judge put some questions to her and she correctly answered all the questions. She even gave something in writing to prove her competence to give evidence as a witness. Ext.C1 is the writings. The learned trial judge allowed the witness to be examined without interpretor, on being satisfied that she is not fully deaf and dumb, and even without an interpretor she could give evidence. Accordingly, she was examined as PW2. In examination in chief the lady stated that she was not outraged by the accused and he had not made any attempt on her as alleged by the prosecution. At that juncture she was cross examined by the learned Public Prosecutor with the permission of the court. I find that no effective cross examination was made by the learned Public Prosecutor. That is why probably the learned trial judge put some questions directly. To all the questions she gave answers and she casually stated that the accused had once embraced her. The lady did not give the details as to when the accused did so, or where the accused did so, or how he did so, or in what circumstance he did so. This is the only piece of evidence, and on the basis of this the trial court found the accused guilty under Section 354 IPC.
Crl.A No.272 of 2011 5
6. PW11 is the interpretor who has got special training to interpret the statements given by deaf and dumb persons. Her evidence is that she had once recorded the statements given by the victim in this case, during investigation. In fact no value can be attached to the evidence given by this witness because the victim was examined in court without the aid of an interpretor. She was allowed to be examined as a witness when the trial court was satisfied that she is not deaf and dumb as the prosecution would say. In such a situation the evidence given by PW11 will have only hearsay value. It cannot even claim sanctity under Section 6 of the Evidence Act. Anyway, the victim also practically turned hostile as her parents did. On a perusal of the materials I find that everybody turned hostile during trial in view of the statement made by the parties amicably out of court. Anyway, she did not implicate the accused and she did not state in examine in chief that she was either molested or outraged by the accused. When questioned by the court she happened to say that the accused had once embraced her. Simply on the basis of a casual statement given by the lady without the required details the accused cannot be found guilty under Section 354 of IPC. Thus I find that the accused is entitled for acquittal. Crl.A No.272 of 2011 6
In the result, this appeal is allowed. The appellant is found not guilty of the offence under Section 354 IPC, and accordingly he is acquitted of the said offence under Section 386(b)(i) Cr.P.C. The conviction and sentence against him in S.C No.98/2010 of the court below will stand set aside. The appellant is released from prosecution, and the bail bond, if any, executed by him will stand discharged.
Sd/-
P.UBAID, JUDGE //True Copy// P.A to Judge ab