IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 Crl.Rev.Pet.No. 372 of 2002() ------------------------------------------ CRA.21/1998 of SESSIONS COURT, KOTTAYAM CC.126/1993 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SDAJEEV S/O.RAJAPPAN,KOCHU KULATHIL, KAIPUZHA. BY ADVS. MR.K.JAGADEESCHANDRAN NAIR MR.J.KRISHNAKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. NO.2640/2002 IN CRL.RP. NO.372/2002 DISMISSED 23/09/2009 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.S.GOPINATHAN, J. =============== Crl.R.P.No.372 of 2002. =============== Dated this the 23rd day of September, 2009 O R D E R The revision petitioner is the accused in CC.No.126/1993 on the file of the Judicial Magistrate of First Class, Ettumanoor. The Sub Inspector of Police, Gandhi Nagar Police Station who was examined as Pw10 prosecuted the revision petitioner alleging offence under Sec.377 IPC with an allegation that at 4.30 pm on 10.6.1993 the revision petitioner had carnal sexual intercourse against the order of nature with a girl who was examined as Pw1, daughter of Pw4 and 5. 2. The offence was committed at a time when Pws.4 and 5 had gone out of the house. On their return Pw1 reported the matter. Pws.4 and 5 took Pw1 to Gandhi Nagar Police Station and lodged Ext.P1 First Information Crl.R.P.No.372 of 2002. -: 2 :- Statement. Pw6, the Head Constable recorded Ext.P1 statement given by Pw1 and registered the case as Crime No.313/1993 for offence under Sec.377 IPC. Pw9, the Assistant Sub Inspector of Police conducted the investigation. The investigation conducted by Pw9 was verified by Pw10 and filed the charge sheet before the trial court. 3. The learned Magistrate took cognizance and issued process, responding to which the revision petitioner entered appearance. Copies of the charge sheet and relevant records were furnished. After hearing the revision petitioner and prosecution, charge for offence under Sec.377 was framed. When it was read over and explained, revision petitioner pleaded not guilty. Hence, he was sent for trial. 4. On the side of prosecution Pws.1 to 10 were examined and Exts.P1 to P6 and MO1 were marked. When questioned under Sec.313 Crl.P.C., the revision petitioner Crl.R.P.No.372 of 2002. -: 3 :- took up a defence that the case was falsely foisted because of an earlier money dispute. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived a finding that the prosecution had succeeded to establish the offence alleged. Consequently the revision petitioner was convicted and sentenced to rigorous imprisonment for two years. 5. Being aggrieved by the above conviction and sentence, the revision petitioner preferred an appeal as Crl.Appeal No.21/1998 before the Court of Sessions, Kottayam. The Addl.Sessions Judge, to whom the appeal was made over, by judgment dated 7.1.2002 came to the finding that the prosecution had succeeded to establish the offence. Consequently, the conviction was confirmed. But the sentence was reduced to rigorous imprisonment for one year. 6. Assailing the legality, correctness and propriety of the conviction and sentence as was modified in appeal, this Crl.R.P.No.372 of 2002. -: 4 :- revision petition was preferred. 7. The learned counsel Sri.Jaishankar V. Nair on behalf of the revision petitioner argued that the prosecution had not succeeded to prove the offence beyond the shadow of reasonable doubt and that to support the prosecution there is only the oral testimony of victim as Pw1 and hence the prosecution story should have been disbelieved. It was further argued that there was no penetration and hence no offence under Sec.377 IPC was made out. Even if the revision petitioner had committed any offence, it is only under Sec.354 IPC. 8. Having gone through the judgment impugned and the evidence on record, I find that in support of the prosecution case there is only the oral testimony of Pw1. Pws.4 and 5 who are the parents of Pw1 have got only hearsay information. On a critical scrutiny of the evidence of Pw1, I find that her evidence, though that of a child witness, instil confidence. The courts below were justified Crl.R.P.No.372 of 2002. -: 5 :- in giving credence to her testimony to come to a conclusion. The learned counsel for the revision petitioner could not point out anything to disbelieve the testimony of Pw1. There is nothing on record to show that Pws.4 and 5, the parents of Pw1 had fabricated a case like the one to wreak vengeance against the revision petitioner. So the argument that the evidence of Pw1 is not believable and that this is a cooked up case is devoid of any merit. 9. The evidence of Pw1 would show that the revision petitioner who was familiar had been to the house of Pw1 at a time when Pw1 was alone. The revision petitioner approached Pw1 with a request for a pen for a purpose which was known to the revision petitioner alone and after making some scribblings pen was returned. Then Pw1 was lifted and took inside the room. She was made lie over the cot. The revision petitioner removed her under garments and lay over Pw1. According to Pw1, the revision petitioner pressed his genital at her thighs and there was bleeding Crl.R.P.No.372 of 2002. -: 6 :- from the genital. It appears that there is discharge. There is nothing on record to show that there was carnal intercourse. So, the contention of the learned counsel for the revision petitioner that no offence under Sec.377 IPC is made out has merit. From the evidence of Pw1 it is revealed that the intension of the revision petitioner was to satisfy his lust and in that attempt her modesty was outraged and an offence under Sec.354 IPC is made out. So, the conviction and sentence under Sec.377 are not sustainable. Whereas, offence under Sec.354 IPC is made out and the revision petitioner is liable to be convicted and sentenced for offence under Sec.354 IPC. 10. Having due regard to the entire circumstances and facts of the case, I find that a sentence of simple imprisonment for nine months and a fine of Rs.3,000/- would meet the ends of justice. 11. In the result, this revision petition is allowed in part. The conviction and sentence for offence under Crl.R.P.No.372 of 2002. -: 7 :- Sec.377 IPC are set aside. Instead he is convicted for offence under Sec.354 IPC and sentenced to simple imprisonment for 9 months and a fine of Rs.3,000/-. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for a further period of two months. P.S.GOPINATHAN, JUDGE. Kvs/- Crl.R.P.No.372 of 2002. -: 8 :- P.S.GOPINATHAN, J. ================ Crl.R.P.No.372 of 2002. ================ O R D E R 23rd September, 2009.