IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 CRL.A.No. 262 of 2003(A) --------------------------------- SC.313/1999 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ............................................ APPELLANT(S): ACCUSED: ------------------------------------- K.R.SURESH, S/O. RAGHAVAN, KOTTARATHIL HOUSE, KOSADY, ERUMELY, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR (SR.) PUZHAKKARA MUHAMMED. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 262 OF 2003 = = = = = = = = = = = = = = = Dated this the 28th day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge, Adhoc-I, Kottayam in S.C.313/99. The accused was charge sheeted for the offence u/s 511 of 376 IPC but was found guilty u/s 354 IPC and was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.15,000/- and in default to undergo a further imprisonment of one year and out of the fine amount Rs.10,000/- was ordered to be paid to PW3. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are, (1) Whether the materials available are sufficient to hold the accused guilty u/s 354 of IPC and (2) What is the proper sentence? Crl. Appeal NO. 262 OF 2003 -:2:- Points 1 and 2: 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. It is the case of the prosecution that on 8.6.99 at about 4 p.m. while the prosecutrix, PW3 was returning from a ration shop, the accused followed her, physically lifted her and put her on a higher area then forcibly removed her undergarments and sat on her thighs and pressed her naval and breast and thereby had outraged the modesty and had attempted to commit rape on the girl. The main evidence in this case is that of the prosecutrix alone. She was 11 years old at the time of the incident. She had deposed before court that she had gone to purchase kerosene. As kerosene was not available she kept the jar there and returned back. At that time the accused was following her. It is her version that the accused has lifted her and taken her to the rubber estate and made her lie down and thereafter had pressed her thighs etc. She would further submit that when the neighbour Moly came then the accused had opened his umbrella and thereafter left the place. She Crl. Appeal NO. 262 OF 2003 -:3:- had been cross examined at length by the learned counsel for the accused. So many questions are put to her and an attempt was made to state that she is a tutored witness but she would depose that what she states is what had happened. The counsel has brought out some additions and contradictions from the 161 statement and it is also deposed by her that there was drizzling at that time. It is also her version that the place to which she was taken was about 5 feet higher from the road level. She had also stated that there was no thorns or other things to rub against the body. She would further submit that she had not gone to the marriage of the accused and had deposed that she does not know whether there was any enmity between her father and the accused's family. She had specifically stated that she was put in a place where there was no other rough object. She has also further deposed that the accused had put his leg on the rubber root to climb up. 4. Now I will refer to the medical evidence as well in this case. PW1 is the Doctor who had examined the girl. Crl. Appeal NO. 262 OF 2003 -:4:- Before the Doctor she had stated what had happened. She has also specifically stated that the dress worn by her was seen stained with mud. In the cross examination a question was put that whether mud stain may be due to fall in the mud her answer is 'may be'. So the presence of stain of mud was possible on her as evidenced from the evidence of PW1. Therefore medical evidence does not show any positive materials to prove the factum of an attempt to commit rape. 5. PW2 is the mother. She had got a daughter and a son and she describes what the daughter has told her. She also submits the level difference between the road and the place of incident is about 5 feet etc. PW4 is the Doctor who had examined the accused and had certified that there is nothing to suggest that he is incapable of performing the sexual act. It is also stated that the accused is aged 28 years with a weight of 65 kgs. and a height of 160 cms. PW5 is Moly who is said to have seen the girl etc. But she has turned hostile to the prosecution and therefore her evidence may not help the prosecution at all. Similarly the evidence of PW6 who Crl. Appeal NO. 262 OF 2003 -:5:- is the husband of PW5 also does not support the case of the prosecution as also the evidence of PW8. PW9 is the Investigating Officer who had prepared the scene mahazar as well and he had stated in the cross examination that the place is about 1½ meters above the road and there one can climb to that higher level though the slope. He also submits that there are roots of rubber tree which can be used for climbing up. 6. Now the whole case depends upon the acceptability of the evidence of PW3. The suggestion to PW3 and 2 are to the effect that as there is an enmity between the families a false is caused is foisted. It has to be remembered that in Indian society families consider the chastity of the ladies as the most sacrosanct quality. No parent under usual circumstances will try to take vengeance on the neighbours by attributing the factum of rape or attempting to outrage the modesty of their daughter. Because it will have disastrous consequences regarding the life of that girl later. Except the suggestions that there is enmity nothing has come out to prove that really there had been an enmity. Just because Crl. Appeal NO. 262 OF 2003 -:6:- members of a family of PW3 had not attended his marriage that does not mean that they are on inimical terms. She deposed that they are not invited. 7. The next point that is attempted to be alleged is alibi stating that he was not in the Station at the time of the incident. It is also not established in this case. PW3 was a girl aged 11 years at the time of the incident. Answers given by her in the chief and the cross examination would reveal that she is a girl capable of understanding the consequences of her action. It is a well settled principle that Courts can make use of the uncorroborated evidence of the prosecution to arrive at a conviction provided the evidence of the prosecutrix is totally acceptable. 8. Now this Court has to find out whether it can be accepted or not. One most important factor attempted to be raised is that the incident had taken place at 4 p.m. The girl is physically lifted to a height of 5 feet and the act is said to be committed. It has come out in evidence there were nobody on the road at that time. It is also seen that he tried to climb up Crl. Appeal NO. 262 OF 2003 -:7:- but there were no steps. The girl had very specifically stated that the man had put his leg on the rubber roots and climbed up with her. She had also stated that she was put in a place where there was no rough objects. So her evidence only appears to be acceptable and there is no exaggeration except a few omissions here and there which makes her evidence more natural otherwise it would have acquired the nature of a tutored evidence. Therefore I am inclined to accept the evidence of PW3 and hold that the accused has committed the offence u/s 354 IPC. 9. Now turning to the question of sentence. Learned counsel for the accused very strongly contends before me that the man has started a married life and he was married just few days prior to the incident and he had already undergone imprisonment in the form of custody for a period of two weeks. The evidence in this case, according to the counsel, would show that nothing serious had happened. Therefore he requested the Court to show leniency to save the life of the young man otherwise his family life also will be in peril. The Crl. Appeal NO. 262 OF 2003 -:8:- learned Prosecutor also states that the incident had taken place in the year 1999. At that time itself he was in custody for a period of 15 days. It is true that there was an attempt to outrage the modesty of the girl but nothing disastrous had happened. The girl also must have become of a marriageable age now. So taking into consideration the entire materials available I think the sentence requires reduction and ends of justice can be met by reducing the sentence of imprisonment to a period of custody which he had already undergone but at the same time he should be directed to pay some amount as fine. So he is directed to deposit an amount of Rs.25,000/- as fine and out of that amount Rs.20,000/- can be disbursed to the complainant, namely PW3. In the result the Crl.Appeal is disposed as follows: 1) Finding of guilt u/s 354 IPC is sustained. 2) The sentence is modified and the period of imprisonment is reduced to the period of custody which he had already undergone and is sentenced to pay a fine of Rs.25,000/-. In case of default of payment of fine he shall Crl. Appeal NO. 262 OF 2003 -:9:- undergo a further imprisonment for a period of three months. Out of the fine amount of Rs.25,000/-, Rs.20,000/- can be paid to the complainant, PW3 and the rest to the Governmental fund. If the amount of fine is not deposited on or before 15.10.2009 the Court below shall take steps to execute the sentence. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 262 OF 2003 -:10:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 262 OF 2003 = = = = = = = = = = = J U D G M E N T 28th July, 2009