IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 CRL.A.No.1709 of 2003 (D) -------------------------------- SC.121/1999 OF ADDL. DISTRICT AND SESSIONS JUDGE FAST TRACK COURT-I, MANJERI. CP.1/1999 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT: ACCUSED -------------------------- RATNAKARAN S/O. PAPPARU, VALIYAPARAMBATHU KUTTIKKATTIL, VAZHAYOOR AMSOM, AZHINJILAM DESOM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN 6RI.A.S.SABU RESPONDENT: COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1709 of 2003 ------------------------------------------------ Dated this the 14th day of January, 2008 JUDGMENT The accused convicted for offence under Section 511 of Section 376 IPC is the appellant. 2. The prosecution case against the appellant/accused is that at about 5.30 p.m on 15/06/97 while PW7 the prosecutrix was collecting firewood from near the back side of the dilapidated old building near to her house the accused forcibly caught hold of her and dragged her into the said dilapidated building and committed rape on her. 3. On appearance of the accused before the Sessions Court pursuant to issuance of summons he was heard and charge was framed against him by the court below for offence under Section 376 IPC; was read over and explained to him and he was questioned. Crl. Appeal No.1709 of 2003 -2- Thereupon, he pleaded not guilty and consequently, a trial of the case was conducted. 4. Prosecution examined PWs.1 to 10; got marked Exts.P1 to P13 and got identified MO1. On the prosecution closing their evidence the accused was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, the case was being foisted against him on account of prior animosity towards him. Apart from getting marked Ext.D1 portion of C.D statement of PW7, the defence did not adduce any other evidence either oral or documentary. 5. The court below considered the case in the light of the evidence adduced as aforesaid; found the appellant guilty of offence punishable under Section 511 of Crl. Appeal No.1709 of 2003 -3- Section 376 IPC convicted him thereunder and sentenced him to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for a term of one year with right of set off for the substantive term of imprisonment. Hence, this appeal by the aggrieved accused. 6. Though an attempt was made by the learned counsel for the appellant to canvass for the contention that the entire case is one foisted against the appellant and that evidence of PW7/the prosecutrix and PWs.8 and 9 who are her sisters would go to show that no occurrence as alleged has taken place, after elaborate arguments and after taking me through the entire evidence in the case, counsel for the appellant submitted that on the evidence adduced by the prosecution, apart from discrepancies in the testimony which is Crl. Appeal No.1709 of 2003 -4- accountable for reason of illiteracy of PWs.7 to 9 he would not be able to establish that no occurrence at all has taken place as alleged though he may be able to advance contention that what all transpired was with consent. All the same, there is no such case for the accused according to whom the case was one foisted on account of animosity. When confronted with this stand taken by the accused, counsel for the appellant submitted that he would plead only for the gravity of the offence being reduced as according to him, there is no convincing evidence as regards an attempt to commit rape but evidence is there only to establish that the appellant has drawn the victim into the dilapidated building and kissed her and caught on her breast and probably attempted to raise her skirt and not that any attempt was made to have penetration of his penis into the vagina and therefore, Crl. Appeal No.1709 of 2003 -5- the offence committed by him be held to be an offence punishable under Section 354 IPC only and not one under Section 511 of Section 376 IPC. 7. On a consideration of the entire evidence in the case, I am on agreement with the counsel for the appellant in that aspect and that there is no convincing evidence to establish that there was an attempt at having penetration. The medical evidence as also the report of the Chemical Analyst available also is not helpful to establish that there was any attempt at having penetration effected to any extent whatsoever. Under the circumstances, taking a lenient view of the matter, it is only proper that the conviction and the sentence awarded to the appellant/accused for offence under Section 511 of 376 IPC is modified to one for offence under Section 354 IPC. The Prosecutor also has no ground to Crl. Appeal No.1709 of 2003 -6- point out from the evidence in the case that the conviction entered into by the court below has to be maintained. 8. In the result, I set aside the conviction and sentence passed by the court below against the appellant for offence under Section 511 of Section 376 IPC and alter the conviction to one for offence under Section 354 IPC and sentence him to pay a fine of Rs.15,000/- and in default to undergo simple imprisonment for one year. The fine amount has to be paid in one month. K.P.BALACHANDRAN, JUDGE kns/-