IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 CRL.A.No. 1369 of 2003() ------------------------ SC.75/1998 of ADDL.SESSIONS COURT-II, MAVELIKKARA CP.2/1998 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT/ACCUSED: ---------------------------------- RAVI, SON OF DAMODARAN, MANALIKKATTIL PADEETTATHIL, VAZHUVADI MURI, THAZHAKKARA VILLAGE. BY BY ADVS. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH RESPONDENTS/STATE AND COMPLAINANT: --------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB INSPECTOR OF POLICE, MAVELIKARA. BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. Q. BARKATH ALI, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.A. No. 1369 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of March, 2011 JUDGMENT In this appeal the accused in S.C. No.75 of 1998 on the file of the Addl. Sessions Court-II, Mavelikara challenges the judgment dated July 31, 2003 convicting him under sections 367 and 511 of section 377 IPC and sentencing him to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year under each count. Substantive sentences were ordered to run concurrently. Out of the fine amount, if realized, Rs.10,000/- was ordered to be paid to PW1 as compensation. 2. The case of the prosecution as shaped in evidence before the lower court, in brief, is this:- PW1 is the de facto complainant and the victim. He was a boy aged 14 at the time of the incident and was studying in X Standard. He was attending special tuition class in the house of one Crl.A.No.1369/2003 2 Prasad. On October 17, 1996 at about 7p.m. he went for tuition. As the Tuition Master was not in his house, PW1 was on his way back home along with Thazhakkara – Vazhuvadi road. As there was drizzling, he was holding an umbrella. When he reached near one petty shop, the accused came under his umbrella and went along with him. The accused is a friend of his father. When they reached near Pre-primary School of Narayanachan, the accused forcibly lifted him up. PW1 slipped down. The accused again lifted him and carried him to the courtyard of the school bearing door No.790/11 of Thazhakkara Panchayat. He was forcibly laid down on the ground. The accused removed the pant and underwear of PW1. The accused kneeled over PW1 and pushed his penis between the thighs of PW1. When PW1 tried to shout, the accused closed his mouth with his hand. PW1 threw sand into the eyes of the accused. When the accused released his hold, PW1 ran away to PW4 who is his paternal uncle. He told PW4 about the incident. PW4 took him to the Government Hospital, Crl.A.No.1369/2003 3 Mavelikkara. PW3 is the Medical Officer attached to the Government Hospital, Mavelikkara who examined PW1 at about 7.05 p.m. on October 17, 1996 and issued wound certificate Ext.P3. PW6 the then Head Constable of Mavelikkara Police Station recorded Ext.P1 First Information Statement given by PW1. PW7 the then Sub Inspector of Police, Mavelikakra Police Station on the basis of Ext.P1 registered the case against the accused. Ext.P6 is the F.I.R. He conducted the investigation in this case. He questioned the witnesses, recorded statements and prepared scene mahazar Ext.P5. PW8 the then Addl. S.I. of Police, Mavelikkara conducted further investigation and arrested the accused. PW8 completed the investigation and laid charge before the committal court Judicial Magistrate of the First Class, Mavelikkara. 3. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offences under sections 367 and 511 of section 377 IPC are triable by the Court of Crl.A.No.1369/2003 4 Sessions, the case was committed to the Sessions Court from their it was made over to the trial court for trial and disposal. 4. On appearance before the trial court, the accused pleaded not guilty to charge under sections 367 and 511 of section 377 IPC. PWs.1 to 8 were examined and Exts.P1 to P7 were marked on the side of the prosecution. When questioned by the trial court under section 313 Cr.P.C., the accused denied the entire incident and submitted that due to political enmity PW4 in collusion with PW1 foisted a false case against him. DW1 was examined on his side. The learned Sessions Judge on an appreciation of the evidence found the accused guilty of the offences punishable under sections 367 and 511 of section 377 IPC, convicted him thereunder and sentenced him as aforesaid. The accused has come up in appeal challenging his conviction and sentence. 5. Heard learned counsel for the appellant and learned Public Prosecutor. Crl.A.No.1369/2003 5 6. The learned counsel for the appellant argued that as PW1 the victim being a boy aged 14 his evidence should not have been believed by the lower court without any corroboration and that PW4 is on enmical terms with the accused and that due to that enmity he has foisted the case against the accused. The learned Public Prosecutor on the other hand supported the judgment of the lower court. 7. The following points arise for consideration:- 1) Whether the conviction of the appellant/accused under sections 367 and 511 of section 377 IPC by the lower court can be sustained? 2) Whether the sentence imposed is excessive or unduly harsh? 8. PWs.1 to 8 were examined and Exts.P1 to P7 were marked on the side of the prosecution to prove the guilt of the accused. PW1 was the victim aged 14 at the time of the incident. He gave the F.I.S. to PW6 the then Head Constable of Mavelikkara Police Station. PW5 is an eye witness who turned hostile. PW3 is the Medical Officer of Government Hospital, Mavelikkara who examined PW1 and Crl.A.No.1369/2003 6 issued wound certificate Ext.P3. PW3 is another Medical Officer attached to the same hospital. He issued potency certificate Ext.P4. PW4 is the paternal uncle of PW1 with whom PW1 was residing. PW1 immediately after the incident narrated the incident to PW4. PW5 is an attestor to scene mahazar Ext.P5. PW7 is the then S.I. of Police Mavelikkara who registered the FI.R. and conducted the initial investigation. PW8 is the then Addl.S.I. of Police, Mavelikakra who completed the investigation and laid the charge before the committal court. 9. The prosecution mainly relied on the evidence of PW1 and PW4 to prove the case. PW1 testified in terms of the prosecution case in a convincing manner before the trial court. I have gone through his evidence. Nothing was brought out in cross-examination to discredit his evidence. The main contention was that PW1 was aged 14 and therefore his evidence should not have been believed by the lower court without any corroboration. I find no substance in the above contention. The incident happened on October Crl.A.No.1369/2003 7 17, 1996. PW1 was examined on June 16, 2003. By that time he has become a major aged 20. Therefore, the above contention of the appellant that PW1 was a boy aged 14 and therefore his evidence cannot be believed, will not sustain. 10. That apart, his evidence is to some extent corroborated by PW4. Immediately after the incident he narrated the incident to PW4. Even in Ext.P1 PW1 stated that he has narrated the incident to PW4. Illustration (a) to Section 6 of Indian Evidence Act provides that A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. 11. The above illustration squarely applies to the present case. Therefore, the evidence of PW4 can be taken as a corroborative piece of evidence of PW1. That being so, the learned Sessions Judge is perfectly justified in believing the evidence of PW1. 12. PW4 has also gave a consistent version regarding Crl.A.No.1369/2003 8 the evidence as narrated by PW1. The evidence of PW4 is mainly challenged on the ground that PW4 and accused were earlier working in Communist Party (Marxist), that accused and his brother later joined in the Congress Party and that in view of political enmity PW4 foisted a false case against the accused. DW1 is the brother of the accused. The trial court has chosen to disbelieve his evidence. I have gone through the evidence of DW1. It is clear from the evidence that to help the accused he is testifying falsely. That apart PW4 gave a consistent version regarding the incident which was narrated to him by PW1. Except the above suggestion there is no other evidence to show that he has any enmity towards the accused. That being so, I am of the view that the learned Sessions Judge is perfectly right in believing his evidence. 13. The learned counsel for the appellant/accused argued that there is delay in registering the F.I.R., which cast serious doubt regarding the true version of the incident of PW1. There is no substance in the above contention. The Crl.A.No.1369/2003 9 incident happened on October 17, 1996 at about 7 p.m. PW6 Head Constable on receipt of the intimation from the doctor, went to the hospital and recorded F.I.S. at about 1.45 p.m. on the next day. Therefore, there is no delay in recording the F.I.S. and registering the F.I.R. That apart even if there was some delay in recording the F.I.S. and registering the F.I.R., it is not a ground for disbelieving the evidence of PWs.1 and 4 whose evidence I have found reliable. Therefore, there is no merit in the above contention raised by the accused. 14. It is argued by the learned counsel for the appellant/accused that as there was absence of injury on the body of PW1, version of PW1 regarding the incident cannot be believed. The version of PW1 was that the accused when first lifted him, he slipped down and again lifted and put him down on the road. Therefore, no occasion arose for PW1 sustaining any injury in the incident. That apart merely because on that ground alone I am not inclined to disbelieve the evidence of PWs.1 and 4, which Crl.A.No.1369/2003 10 was otherwise found reliable. No other point is argued before me. 15. Thus the evidence of PWs1 and 4 proved beyond doubt that on October 17, 1996 at about 7 p.m. the accused forcibly took PW1, who was a minor at that time and attempted to have carnal intercourse against the order of nature and thereby committed the offences punishable under sections 367 and 511 of section 377 IPC. Therefore, I confirm the conviction of the accused thereunder. 16. Point No.2: As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for four years and to pay fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year on each count. The incident happened in 1996 i.e., about 15 years back. The accused is now aged 50. Therefore, I feel that a sentence of rigorous imprisonment for three years and fine as imposed by the trial court would meet the ends of justice. 17. In the result, the conviction of the appellant/accused by the trial court under sections 367 and Crl.A.No.1369/2003 11 511 of section 377 IPC is confirmed. Sentence is modified to the effect that he is sentenced to undergo rigorous imprisonment for three years each under sections 367 and 511 of section 377 IPC. The sentence of fine imposed by the lower court and direction to pay compensation to PW1 is maintained. His bail bonds are cancelled. Send the records to the lower court forthwith. P. Q. BARKATH ALI, JUDGE. mn.