IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 CRL.A.No. 247 of 2005 AGAINST THE JUDGMENT IN SC.633/1999 of ADDL. DISTRICT COURT (ADHOC) COURT - I, KOLLAM DATED 17-01-2005 APPELLANT/ACCUSED: SUNIL, S/O.YESODHARAN, KOLLASSERILTHARAYIL, ADHINADU, THEKKUM MURI ADINADU VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.J.OM PRAKASH RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.REMA R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. Crl. Appeal No.247 OF 2005 Dated this the 5th day of February, 2013. J U D G M E N T
The appellant-accused was prosecuted for the offences punishable under Sections 457, 511 of 376 and 325 of Indian Penal Code. He was found guilty of the offences punishable under Sections 451, 325 and 511 of 376 IPC. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- for the offence punishable under Section 451 IPC and was sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/- for the offence punishable under Section 325 IPC and also to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- for the offence punishable under Section 511 of 376 IPC. The sentences were directed to run consecutively.
2. The incident which gave rise to the case occurred on 01.10.1998 at about 9.40 p.m. The victim is PW1 whose husband at the relevant time was working at Kashmir as a Military personnel. She was residing in the house with her two children. On the date of incident and at the relevant time, she had gone to the bathroom which is situated outside the house but adjacent to kitchen. The allegation against the accused is that when PW1 was coming out from the bathroom, the accused pushed her inside the bathroom and tried to commit rape on her. Hearing the hue and cry, PW2 came to the spot and saved her from being ravished. PW1 was taken to the hospital and was examined by PW5 who issued Ext.P3 wound certificate. Thereafter, Ext.P1 First Information Statement was furnished by PW1 which was recorded by PW6 who registered a crime as per Ext.P4 First Information Report. He prepared Ext.P2 scene mahazar and also recorded the statement of the witnesses, completed the investigation and laid charge before the court.
3. The learned Judicial First Class Magistrate Court, Karunagappally before whom final report was laid took cognizance of the offence. On finding that the offence is one triable by the Court of Sessions, Kollam, the learned Magistrate committed the case to the said court and then the Sessions Court, Kollam made over the case to the Principal Assistant Sessions Court, Kollam for trial and disposal. The latter court framed charges for the offences punishable under Sections 457, 325 and 511 of 376 of the Indian Penal Code. The accused pleaded not guilty to the charge. The prosecution examined PWs 1 to 6 and had Exhibits P1 to P5 marked and M.Os I and II were also identified and marked. After closing the prosecution evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure. The accused denied all the incriminating circumstances against him and maintained that he is innocent. The further case is that at the relevant time, he was not at the place of occurrence and his elder brother who look exactly like him was in the habit of going to the house of PW1 to watch Television. On hearing the hue and cry, the people gathered and he also reached the site and he took his brother away. Long time thereafter when he received summons from the court, then only he came to know that he is arrayed as accused. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter upon evidence but he chose to adduce no evidence.
4. On a consideration of the evidence, the court below found that the offences under Sections 451, 325 and 511 of 376 IPC have been made out and convicted and sentenced the accused as already mentioned. The conviction and sentence are challenged in the appeal.
5. Sri.J.Omprakash, learned counsel appearing for the appellant attacked the findings of the court below on several grounds. It was pointed out by the learned counsel that a close scrutiny of the evidence would show that there has been embellishment in the evidence of PWs 1 and 2 and at the time of evidence, they attempted to fill up the lacuna caused in the initial stage which would make their evidence suspect. Neither in Ext.P1 nor in Ext.P2, there is any mention of light available which would have enabled the PWs 1 and 2 to identify the accused. It is pointed out that at the time of giving Ext.P1 First Information Statement, the case of PW1 was that the accused pushed her into the bathroom after she had came out from the bathroom but at the time of evidence, the case was that the incident happened while she was inside the bathroom itself. It is further pointed out that in Ext.P1, PW1 had no case that she had several injuries on various parts of the body and that embellishment is made at the time of evidence. Referring to the evidence of PW2, it is pointed out that he would say that when he reached the spot, he found the accused sitting on the body of PW1 inside the bathroom. PW1 has no such case. At any rate, there is nothing to show that PWs 1 and 2 could have identified the accused in the absence of mention of light especially when the defence is that his brother, who is exactly like him, was having the habit of going to the house of PW1 to see Television. According to the learned counsel for the appellant, at any rate there is no justification for directing the sentence to run consecutively.
6. Learned Public Prosecutor, on the other hand, supports the finding of the court below. It is pointed out by the learned Public Prosecutor that, may be there are slight inconsistencies, contradictions, developments and embellishments in the evidence of PWs 1 and 2. Those are natural and does not affect the core of the prosecution case at all. Inconsistencies in the usual course are bound to arise and that only confirm the truth of their version. Referring to the evidence of PW3, learned Public Prosecutor pointed out that the said witness makes mention of the light available at the place even though it may not have been mentioned by PWs 1 and 2. Learned Public Prosecutor further pointed out that the attempt of the accused in pushing down the victim i.e. PW1 to the bathroom can only be with an intention to commit rape on her. According to the learned Public Prosecutor, there is no reason as to why PWs 1 and 2 should be disbelieved and their evidence are unimpeachable. It is also submitted that there is no ground to interfere with the findings of the court below.
7. After having heard the learned counsel for the appellant and the learned Public Prosecutor and after having meticulously going through the records, the submissions made by the learned Public Prosecutor seem to be justified. True, there are certain contradictions, inconsistencies, developments and embellishments in the evidence of PWs 1 and 2. PW1 was residing with her two children. Going by her evidence, on the date of the incident, she had gone to the bathroom which was just outside the house and while she was coming out, she was attacked, though at the time of evidence she would say that the incident was happened while she was inside the bathroom. It is true that Ext.P1 does not contain any mention about light. However, the evidence of PWs 1 to 3 referred to by the learned Public Prosecutor would show that there were light available in the place. Even assuming that there is no mention of light in Exts.P1 and P2, that may not be sufficient to disbelieve the evidence of PWs 1 and 2. It is true that in Ext.P1, there is no mention by PW1 that she had suffered several injuries, but at the time of evidence, she would say that there were abrasions on several parts of her body which could be seen in the wound certificate also which is marked as Ext.P3. But, that by itself is not a reason to disbelieve PW1. One cannot omit to note that Ext.P1 First Information Statement came into existence very soon after the incident and the victim was examined by doctor within a short span of time. Wound certificate makes mention of the reason for the injuries and the First Information Statement narrates the incident in detail. Coming into the existence of the First Information Statement soon after the incident rules out developments or embellishments or false implication of the accused.
8. With regard to the contention as far as identification is concerned, the accused is residing very nearby and is very familiar to both PWs 1 and 2. Therefore, identification does not assume much of significance in the case. The suggestion made by the accused to both PWs 1 and 2 is that his brother was in the habit of going to the house of PW1 to watch Television and on the date of incident also, he had gone there and it was he who was at the place and who had came out from the house was stoutly denied by both PWs 1 and 2. PW2 has categorically stated that he can very well identify the accused and his brother.
9. The evidence of PW1 receives sufficient corroboration at the hands of PW2. PW1 has stated that, on attack by the accused, she made a hue and cry which brought PW2 to the scene immediately. It was he who had helped the victim to extricate herself from the accused. PW2 confirms this version. Inconsistencies, embellishments and developments pointed out do not affect the prosecution case and they are not sufficient to throw away the evidence of PWs 1 and 2. Again, there is no reason suggested as to why PWs 1 and 2 would falsely implicate the accused.
10. For the above reasons, as rightly noticed by the court below, there is no reason to disbelieve the version of PWs 1 and 2 even though there may be slight inconsistencies and developments in their evidence. The finding that the accused who had committed the acts is to be confirmed.
11. Coming to the sentence, as rightly pointed out by the learned counsel for the appellant, it seems to be on the harsh side. There was no justification for ordering sentence to run consecutively. The accused has no prior criminal antecedent and there is no case for PW1 that he had ever before made any overt acts with ill motive. Considering all these facts, the direction of the court below that the sentence shall run consecutively needs a review.
In the result, while confirming the sentence and conviction, the direction to run the sentence consecutively is set aside and it is ordered that the sentence shall run concurrently.
The Crl.Appeal is disposed of as above.
P.BHAVADASAN JUDGE smp