IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 CRL.A.No. 1621 of 2003() ------------------------ SC.108/2002 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC)-II, KOTTAYAM .................... APPELLANT/ACCUSED:- ------------------------- RAJESH @ KOCHUMON, S/O.KUNJAN KUNJU, VARIYAMPARAMBU, (PANDAVERKALARI), PANDAVERKALARI BHAGOM, MANARCAUD KARA, MANARCAUD VILLAGE. BY ADV. MR. JAMES KURIAN RESPONDENT/RESPONDENT:- ---------------------------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.10.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 1621/2003 ORDER ON CRL. M.A.NO. 9962/2003 IN CRL.A. NO. 1621/2003 DISMISSED 01.10.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. -------------------------------------------------- Crl. Appeal No. 1621 of 2003 ---------------------------------------------------- Dated this the 1st day of October, 2009. JUDGMENT The appellant who was the sole accused in S.C. No. 108 of 2002 on the file of the Additional Sessions Court, Fast Track (Adhoc)-II, Kottayam, challenges the conviction entered and the sentence passed against him by the said court for an offence punishable under Section 354 IPC. 2. The case of the prosecution can be summarised as follows:- On 23.08.2000, at about 5.30 p.m., in the rubber estate belonging to Manganam family and situated by the side of Pandavarkalari – Oravackal Panchayat road, the accused with the intention of committing rape on PW3 Bitty Thomas clasped her tightly from behind and squeezed her breasts, kissed her on the face and thereafter he made her lie on the ground and he lay on her. When he tried to remove her underskirt by raising her nighty, she bit him and raised a Crl. Appeal No. 1621/2003 : 2 : hue and cry and when the people came running, the accused took to his heels. The accused has thereby committed the offence of attempt to commit rape punishable under Section 511 of Section 376 IPC. 3. On the accused pleading not guilty to the charge framed against him by the court below for the offence of attempt to commit rape, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as P.Ws 1 to 9 and got marked 6 documents as Exts. P1 to P6 and one material object as MO1. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances. 5. Since this was not a case of no evidence for the prosecution, the court below did not record an order of Crl. Appeal No. 1621/2003 : 3 : acquittal under Section 232 Cr.P.C. The appellant was, therefore, called upon to enter on his defence. He examined a fish vendor as DW1 to say that on the alleged date, time and place of occurrence, DW1 was in the smoke house in the very same rubber estate and there are people residing in the vicinity and he did not witness any occurrence as alleged. 6. The learned Additional Sessions Judge after trial, as per judgment dated 01.09.2003 acquitted the appellant of the offence punishable under Section 511 of Section 376 IPC, but convicted him of the offence punishable under Section 354 IPC. For the said conviction, he was sentenced to rigorous imprisonment for five months and to pay a fine of Rs.1000/- and on default to pay the fine, to suffer simple imprisonment for one month. It is the said judgment which is assailed in this appeal. 7. I heard Adv. Shri. James Kurian, the learned counsel appearing for the appellant and the learned Public Crl. Appeal No. 1621/2003 : 4 : Prosecutor. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not. 9. PW3 Bitty Thomas is the alleged victim who was aged 15 years on the date of occurrence. PW3 was at the relevant time studying in the 8th standard in Infant Jesus High School. PW4 who is a relative of PW3, was also a student of the very same school where PW3 was studying. Both PWs 3 and 4 were residing in the house of PW3 and both of them on the date of occurrence, had gone to the Manganam estate for collecting firewood. The actual occurrence as spoken to by PW3 is as follows:- After collecting some firewood, the same was taken by PW4 to the house. While PW3 was still collecting firewood, the accused came there from the back of the sheet house. He clasped PW3 from behind and pushed her to the ground. Crl. Appeal No. 1621/2003 : 5 : He kissed her on her face. He also teared the nighty worn by her and squeezed her breasts and then lay on her. When he tried to untie her skirt, she bit him on the left shoulder and raised a hue and cry. Hearing her cry, PW4 came running. On seeing PW4, the accused hurriedly abandoned his attempt and took to his heels. 10. But the earliest statement of PW3 when examined by PW1, Dr. A. Suseeladevi on 24.08.2000, as revealed by Ext.P1 medical certificate was that the accused held her round her body and pushed her on the ground and squeezed her breasts and teared her nighty. She had no case to the doctor that the accused had lay on her or had tried to untie her skirt. 11. Medical examination of PW3 showed that there was no abrasion, contusion or teeth mark on her breasts and no injury was also found on her external genitalia. Her hymen was intact and that region was found normal. This shows that there has been some amount of exaggeration on Crl. Appeal No. 1621/2003 : 6 : the part of PW3. But at the same time, her testimony to the effect that the accused had clasped her from behind and had squeezed her breasts and had pushed her on the ground and had torn her nighty was found to be credible by the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility. This Court sitting in appeal will be loath to interfere with the finding recorded by the trial Judge in that behalf. The accused was, thus, rightly acquitted of the offence punishable under Section 511 of Section 376 IPC. He was rightly convicted for the offence punishable under Section 354 IPC. The punishment for the said offence is imprisonment of either description for a term which may extend to two years or with fine or with both. 12. Considering the facts and circumstances of the case, including the medical evidence as revealed by Ext.P1 certificate proved by PW1 (the doctor), I do not think that the appellant deserves penal servitude by way of Crl. Appeal No. 1621/2003 : 7 : incarceration for the offence committed by him. I am of the view that the interests of justice will be adequately met by imposing a sentence of imprisonment till the rising of the court and an appropriate compensation payable to PW3, the victim. Accordingly, the sentence imposed on the appellant is set aside and instead, for the conviction under Section 354 IPC, he is sentenced to imprisonment till the rising of the court and to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) by way of compensation to PW3 under Section 357(3) Cr.P.C. The appellant is given two months' from today to deposit the compensation amount before the trial court failing which he shall undergo simple imprisonment for three months by way of default. This appeal is accordingly disposed of confirming the conviction but modifying the sentence as above. Dated this the 1st day of October, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 1621/2003 : 8 :