IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 CRL.A.No. 2380 of 2010 ----------------------------- ( SC.31/2010 of THE COURT OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA) .................... APPELLANT(S): APPELLANT ---------------------------------------- APPUKUTTAN, C.NO.5204 CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.ADEEP ANWAR (STATE BRIEF) RESPONDENT(S): ---------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON 28/07/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2380 of 2010 ---------------------------------------- Dated this the 28th day of July, 2011 J U D G M E N T The sole accused in Crime No.201 of 2009 of the Cumbammettu Police Station is the appellant as he is aggrieved by the conviction and sentence imposed against him under Sections 324 and 511 of 376 I.P.C. as per the judgment dated 21.6.2010 in S.C.No.31 of 2010 of the court of the IVth Additional Sessions Judge (ADHOC)-II, Thodupuzha. 2. The prosecution case is that on 18.11.2009 at midnight, the accused with the intention to commit rape on PW8, his own daughter, aged 11 years forcefully dragged her from the western side bedroom of the numberless house to the kitchen room, which is situated on the eastern side of the house and forcefully laid her down on the floor, untied her dress and sat over her body after removing his lungi and kissed on her face and forehead and thereafter pressed her neck and bit on the left side of her forehead and when she tried to cry CRL.A.NO.2380 of 2010 :-2-: out, he hushed up her voice by covering her mouth with his hands and thus, according to the prosecution, the accused has committed the offences punishable under Sections 324 and 511 of 376 of I.P.C. On the basis of the above allegation, Crime No.201 of 2009 was registered in the Cumbammettu Police Station for the said offences and on completing the investigation, the Police filed a report in the court of the Judicial First Class Magistrate, Nedumkandam and on taking cognizance upon such report, for the said offences, C.P.No.83 of 2009 was instituted and subsequently, the learned Magistrate, by his order dated 14.1.2010 committed the case to the Sessions Court wherein it was taken on file as S.C.No.31 of 2010 and the same was made over to the trial court for disposal. Thus, after hearing the accused as well as the prosecution, a formal charge was framed for the offences under Sections 324 and 511 of 376 I.P.C. which was read over and explained to the accused, who in turn denied the same and pleaded not guilty. Consequently, the prosecution examined Pws.1 to 10 and Exts.P1 to P8 were marked to prove its case. Mos.1 to 4 were CRL.A.NO.2380 of 2010 :-3-: also identified and marked. No evidence is adduced from the side of the defence. On conclusion of the trial, the learned Judge of the trial court has found that the accused is guilty under Section 324 and 511 of 376 I.P.C. and accordingly, sentenced him to undergo R.I. for one year under Section 324 of I.P.C. and he is also sentenced to undergo R.I. for five years and to pay fine of Rs.5000/- and in default of payment of fine, to undergo S.I. for six months. It is also ordered that on realisation of the fine amount, the same shall be given to the victim under Section 357(1)(b) of the Cr.P.C. It is the above conviction and sentence challenged in this appeal. 3. Since the appellant/accused is undergoing imprisonment in pursuance of the impugned judgment, he preferred this appeal from the jail and accordingly, as directed by this Court, the Registry has appointed Sri.Adeep Anwar, from the panel of State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Sri.Adeep Anwar, learned counsel for the appellant and Sri.P.A.Salim, learned Public Prosecutor for the State. CRL.A.NO.2380 of 2010 :-4-: 4. In order to substantiate the above allegation, though the prosecution has cited and examined PW1, he had turned hostile. Admittedly, PW1 is the neighbour of the accused and the accused is his first cousin. According to him, the incident had taken place on 18.11.2009 and the wife of the accused informed him that the accused has attempted to commit murder with the daughter and therefore, she requested for his help. According to him, the wife of the accused further informed him that the accused attempted to commit rape on the victim. PW2 is another witness examined by the prosecution and she is a nurse by profession. According to PW2, the victim was brought to her hospital at 10 a.m. on 19.11.2009. She has noticed tooth mark and nail mark on the face of the victim and she administered a T.T. injection on the victim and medication was also given. When she was cross-examined, she admitted that there is no document to show that the victim was treated in her hospital. PW3 is an attester to Ext.P1 scene mahazar. PW4 is an attester to Ext.P2 seizure mahazar by which MO1 skirt, MO2 shirt, MO3 petticoat and MO4 jetty of the CRL.A.NO.2380 of 2010 :-5-: victim were seized and the same are identified and marked through PW4. Ext.P3 is the sketch of the place of occurrence which was prepared by the Village Officer PW5 and marked through him. PW6 is the Doctor, who examined the victim and issued Ext.P4 wound certificate. In Ext.P4 wound certificate, he had noted multiple nail marks around the mouth of the victim. 5. PW7 is the wife of the accused and the mother of the victim. According to her, on 18.11.2009 at about 1 a.m., she heard the accused calling her name from outside the house. When she opened the door, the accused slapped on her face and as a result of the same, she fell down and thereafter, ran out of the house. According to PW7, while so, she could hear the cry of her daughter the victim and therefore, she came running back to the house. According to PW5, the accused threatened to do away with her if she dared to enter into the house. According to PW7, she had seen the accused and the victim in a naked position and particularly, the accused was sitting over the body of the victim. It is the further case of PW7 that she CRL.A.NO.2380 of 2010 :-6-: along with her son Sreekuttan pulled out the victim from the body of the accused and she made the victim to put on her dress. According to PW7, at the time of the incident, the victim was only at the age of 11 years. She is specific in her deposition that the accused was in the habit of manhandling of PW7 and her children after taking alcohol and ganja. She had also deposed that the accused bit on the forehead of the victim, which resulted in bleeding injury. According to her, there was a kerosene lamp in the kitchen at the time of the incident. She had deposed that nail marks were seen on the neck and face of the victim. According to PW7, on the next day, the victim was taken to the hospital and medicines were administered on her. He had also deposed that she gave information to the Police as per Ext.P5 First Information Statement. Thus, according to PW7, the wife of the accused and the mother of the victim, the accused was attempting to commit rape on CW2 the victim. 6. In the present case, the victim is examined as PW8. During the investigation, the Police questioned her as CW2. During CRL.A.NO.2380 of 2010 :-7-: her examination in the court, the victim PW8 has deposed that while she was sleeping in her house on 18.11.2009, at night, the accused was heard calling them from the outside of the house and when her mother opened the door, the accused beat her and thereby, forced her to run away from the house. Thus, according to PW8, thereafter, the accused dragged her into the kitchen from her bedroom. According to PW8, thereafter the accused removed her skirt and jetty. She also deposed that the accused kissed her on her forehead and when she tried to push him away, the accused bit her on her forehead and tried to strangulate her by her neck, and when she tried to cry out, again the accused tried to hush up her sound by covering her mouth and neck with his hands. According to PW8, thereafter the accused sat over her body after removing his lungi. According to PW8, at this point of time, PW7, the mother helped her to put on jetty and skirt and according to PW8, due to the beating, she sustained bleeding injury on her forehead and there were nail marks on her neck and face. PW8 was subjected to lengthy cross-examination, during which she CRL.A.NO.2380 of 2010 :-8-: deposed that she did not feel at any time that her father was a person of unsound mind. She had also deposed that the accused used to ill- treat the children. PW9 is the Sub Inspector of Police, Cumbammettu Police Station during the relevant time and according to him, at about 5 p.m. on 19.11.2009, he had recorded the F.I. statement of PW7 on the basis of which, he registered Ext.P5(a) F.I.R. Ext.P5 is the F.I.statement. It was PW10, the C.I.of Police, Nedumangad Police Station undertook the investigation. According to him, the accused was arrested as per Ext.P6 arrest memo on 20.11.2009. PW10 deposed that he preferred Ext.P7 report to add Section 324 of I.P.C. Ext.P8 property list was also marked through him. It is the above evidence and materials formed the basis for conviction recorded by the trial court against the accused for the offence under Section 324 and 511 of 376 of I.P.C. 7. Learned counsel for the appellant vehemently submitted that absolutely there is no independent evidence to prove the prosecution allegation against the accused and therefore, the findings CRL.A.NO.2380 of 2010 :-9-: and conviction recorded by the trial court are liable to be set aside. It is also the submission of the learned counsel on the basis of the appeal memorandum, that the accused is a drunkard and addict to ganja and the said fact is proved through the evidence of PW8 and therefore, the accused is entitled to get the benefit of Section 85 of I.P.C. It is also the contention of the appellant that the Police had arrested him on the same day, but he was not subjected to medical examination to get the certificate from the Doctor to ascertain as to whether he was drunken at the time of the alleged incident. According to the learned counsel for the appellant, the Police had deliberately suppressed the above fact. It is urged in the jail appeal that no normal person would dare to commit rape on his daughter aged 11 years and actually, the accused was under the influence of liquor and ganja and therefore, it is prayed that this Court may acquit him from all the charges levelled against him, by extending the benefit under Section 85 of I.P.C. 8. On the other hand, Mr.P.A.Salim, learned Public Prosecutor submitted that in the present case, there is ample evidence CRL.A.NO.2380 of 2010 :-10-: to prove the prosecution allegation against the accused and such evidence is that of the daughter and wife of the accused. It is also the submission of the learned counsel that the evidence of Pws.7 and 8 are free of any infirmities and contradictions. Being the wife and daughter of the accused, Pws.7 and 8 are not expected to give false evidence against him and thus, according to the learned Public Prosecutor, the is no illegality in the findings of the learned Sessions Judge and recording the conviction against the accused on the basis of the above reliable evidence of Pws.7 and 8 and therefore, no interference is warranted. 9. In the light of the above findings of the trial court and the evidence and materials referred to above, and particularly, in the light of the rival pleadings, the question to be considered is whether the trial court is justified or not in convicting the accused for the offence under Section 324 and 511 of 376 of I.P.C. 10. The crux of the prosecution allegation is that in the midnight of 18.11.2009, the accused, who is none other than the father CRL.A.NO.2380 of 2010 :-11-: of PW8, the victim, after driven out his wife PW7 from the house, dragged PW8 from the western side bedroom of the house to the kitchen and forcefully laid the girl on the floor and he had removed the clothes of the victim and attempted to commit rape on her and when she had tried to cry out, he had hushed up her voice by covering her mouth with his hands and inflicted injuries on the forehead and face of the victim. The above incident is fully established through the evidence of PW7, who is none other than the wife of the accused. During the evidence of PW7, she had deposed each and every incident and according to her, she had witnessed that the accused was sitting on the victim after removing his as well as the victim's dress and it was PW7, who with the help of her son, removed PW8 from the clutches of the accused. The above evidence of PW7 is further corroborated from the evidence of PW1 though he turned hostile to the prosecution. Of course, PW1 is a neighbour and accused is also his cousin. But, he had deposed that on the date of the incident, PW7 approached him for helping her to save the victim from the accused. CRL.A.NO.2380 of 2010 :-12-: Though PW1 turned hostile, the above portion of his evidence appears to be correct and reliable and can be acted upon. If that be so, the evidence of PW7 is corroborated by the independent evidence of PW1. Besides the evidence of PW7, there is the evidence of victim, who is examined as PW8, who was at the age of 11 years at the time of the incident. She had deposed the entire incident that had taken place on the night of 18.11.2009. There are no infirmities or contradictions to disbelieve her version. In spite of the fact that the accused is her father, she had given a clear account regarding the incident which is incriminating in nature against the accused. In pursuance of the incident, the victim was hospitalised and she was examined by PW6 and he had treated her and issued Ext.P4 wound certificate. Though there is no documentary evidence, the evidence of PW2 also shows that firstly the victim was taken to her hospital and she gave a T.T.injunction. It has also come out in evidence that on the basis of Ext.P5 F.I.statement given by PW7 on 19.11.2009, PW9 the S.I. of Police registered Ext.P5(a) F.I.R. and consequent to the CRL.A.NO.2380 of 2010 :-13-: registration of F.I.R., investigation was undertaken by PW10 the S.I. of Police and he arrested the accused as per Ext.P6. Ext.P7 is the report to include Section 324 and Ext.P8 property list covered is proved through PW10. So the investigation was also done without any lapse of time and the accused was arrested without any delay. 11. Going by the evidence of prosecution witnesses, it is true that Pws.7 and 8 have deposed that the accused is a drunkard. But, Pws.7 and 8 have never deposed that the accused was drunken on the date of incident and there is no positive evidence to show that on the date of the incident, he had drunken or consumed ganja. In the jail appeal, it is stated that the appellant is entitled to the benefit of Section 85 of I.P.C. , but no such plea was taken during the trial. Under the above circumstances, I find no fault on the side of the Police in not subjecting the accused for medical test, to ascertain whether he had drunken at that time or not. As rightly pointed out by the learned Public Prosecutor, the facts and circumstances involved in the case and the evidence show that the accused committed the CRL.A.NO.2380 of 2010 :-14-: offence on the victim after driven out PW7 -the mother from the house, and the above facts itself are sufficient to hold that he is not under the influence of liquor or ganja, but he was pre-planned to commit rape on PW8. Therefore, the contention raised by the appellant from the jail and the counsel for the appellant, so as to attract Section 85 of I.P.C. is not sustainable and he is not entitled to the benefit of Section 85 of I.P.C. 12. In the light of the above discussion and the evidence referred to above, I find that the learned Judge of the trial court is perfectly justified in his finding and convicting the accused for the offences under Section 324 and 511 of 376 of I.P.C. Thus, the conviction recorded by the trial court against the accused as per impugned judgment is confirmed. 13. Counsel for the appellant submitted that since the appellant/accused is being a coolie, a lenient view may be taken while considering the sentence. According to me, the accused deserves no leniency since the allegation against him is a heinous one and he tried CRL.A.NO.2380 of 2010 :-15-: to commit rape on his own minor daughter after driven out his wife from the house. Therefore, no interference is warranted with respect to the sentence as well. In the result, this appeal is devoid of any merit and accordingly the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.A.NO.2380 of 2010 :-16-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 ORDER Dated:23.6.2011 CRL.A.NO.2380 of 2010 :-17-: