IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 CRL.A.No. 1877 of 2009(D) ------------------------- SC.79/2009 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM .................... APPELLANT(S): -------------- KUTTAN @ CHANDRAN, S/O.CHANDRAN, C.NO.7486,CENTRAL PRISON, VIYYUR,THRISSUR. BY ADV. ADV.SINDHU THANKAM [STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSEUCTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1877 of 2009 * * * * * * * * * * * * * * * * * * Dated: 20th day of January, 2010 JUDGMENT In this appeal preferred from the Central Prison, Viyyur, the appellant namely, Kuttan @ Chandran who was the sole accused in S.C. No. 79 of 2009 on the file of the Addl. Sessions Judge (Adhoc-I), Ernakulam, challenges the conviction entered and the sentence passed against him for offences punishable under Sections 450 and 511 of 376 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 25-8-2008 at about 12.30 p.m. the accused trespassed into Vembanad Puthenkotta house No. V/346 of Okkal Panchayath in Kuruppum Poolani Kara in Meloor Village. From the bedroom of the said house the accused restrained P.W.1 and forcibly made her lie on the floor and after removing her clothes he pressed her Crl. Appeal No. 1877 of 2009 -:2:- private parts and when P.W.1 cried aloud, the accused muffled her mouth causing injuries on her face, lips and thereby attempted to commit rape on her. The accused has thereby committed offences punishable under Sections 450 and 511 of 376 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the court below, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined P.Ws 1 to 13 and got marked 10 documents as Exts.1 to 10 and five material objects as Mos 1 to 5. 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 and maintained his innocence. He submitted before the Court below that he had gone to the house of P.W.1 to demand the wages due to him for doing work, that a quarrel ensued and that the neighbours came and pushed him and he was beaten up. 5. Since this was not a case of no evidence for the Crl. Appeal No. 1877 of 2009 -:3:- prosecution,t he court below did not pass an order of acquittal under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on his defence. 6. The learned Addl.Sessions Judge, after trial, as per judgment dated 13-5-2009, found the appellant guilty of the offences charged against him. For his conviction under Sec. 450 I.P.C. he was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- and on default to pay the fine to suffer rigorous imprisonment for two months. For the conviction under Section 511 of Sec. 376 he was sentenced to undergo rigorous imprisonment for 3 ½ years and pay a fine of Rs. 1,000/- and on default to pay the fine to suffer rigorous imprisonment for two months. The substantive sentences of imprisonment were directed to run concurrently. It is the said judgment which is assailed in this appeal preferred from the Central Prison, Viyyur. 7. I heard Advocate Smt. Sindhu Thankam, the learned counsel appearing for the appellant/accused on State Brief and Adv. Sri.K.S. Sivakumar, the learned Public Prosecutor who Crl. Appeal No. 1877 of 2009 -:4:- defended the State. 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:- THE POINT: 9. P.W.1 (Chandrika) who was aged 57 years on the date of occurrence is the victim as well as prosecutrix. She proved Ext.P1 F.I.Statement given by her to the A.S.I., Kodanadu Police Station (P.W.11) on 25-8-2008 at about 1.30 p.m. P.W.2 (Kumari) is the neighbour of P.W.1. She is alleged to have seen the last part of the occurrence. P.W.3 (Abhilash) is an attester to Ext.P2 scene mahazar. P.W.4( Sibi) is an attester to Ext.P3 seizure mahazar as per which MO1 sari, MO2 blouse and MO3 skirt belonging to P.W.1 were seized by the police on 26-8-2008. P.W.5 (Sreejith) is an attester to Ext.P4 seizure mahazar as per which MO4 (safron dhothi) and MO5 blue coloured shirt of the accused were seized by the police on 26-8- 008. P.W. 6 (Balan) is another neighbour of P.W.1. He had seen the accused Crl. Appeal No. 1877 of 2009 -:5:- allegedly coming out of the house of P.W.1 after the occurrence. P.W.7 (Dr. Sini Issac) was the Medical Officer at the community Health Centre, Kothamangalam. She had examined P,.W.1 at 7.30 p.m. on 25-8-2008 and had issued Ext.P5 wound ceertificate as per which P.W.7 had noted the following injuries:- i) Odema on lips and left side of face ii) Multuiple small lacerations inside the lips iii) Laceration with bleeding from the throat iv) Multiple abrasion with nail marks around the lips v) Complaint of throat pain and body ache. P.W.8 (Dr. Bhargavi Kutty) was the Assistant Surgeon of Taluk Headquarters Hospital, Perumbavoor. She examined P.W.1 at 2.05 p.m. on 25-08-2008 and issued Ext.P6 wound certificate as per which she noted the following injuries: i) 1 x 1 cm. mucosal abrasion over lower lip. ii) Mucosal abrasion 2x2 cm. inside the mouth over oral mucosa iii) Throat pain iv) No other external injuries. P.W.9 (Dr. Babu Varghese) who was the Assistant Surgeon at the Taluk Head Quarters Hospiral, Perumbavoor examined the accused on 26-8-1008 and issued Ext.P7 potency certificate . Crl. Appeal No. 1877 of 2009 -:6:- P.W.10 (Anil Kumar) who was the Village Officer of Kothamangalam issued Ext.P8 scene plan. P.W.11 (Abdul Kareem) who was the Assistant Sub Inspector of Police, Kodanad recorded Ext.P1 F.I.statement of P.W.1 from the Taluk Headquarters Hospital, Perumbavoor at 4. 30 p.m. on 25-8-2008. After proceeding to the police station he registered Ext.P9 F.I.R. as Crime No. 380 of 2008 of Kodanad Police Station. P.W.12 (K.P.Jose) who was the Circle Inspector of Police, Perumbavoor conducted the investigation. P.W.13 (Vijaya Kumar) who succeeded P.W.12 laid the charge before Court. 10. The only witnesses to prove the occurrence are P.W.1 the victim and two neighbours who are P.Ws 2 and 6. 11. The learned counsel defending the appellant made the following submissions before me in support of her fervent plea for acquittal:- The specific case of the accused is that he was denied wages for the work done and when he demanded his wages there ensued a quarrel. In Ext.P6 wound certificate the earliest version given by P.W.1 to the Doctor PW8 is that at about 12.30 p.m. a person whom she could identity by sight came to her house and beat her Crl. Appeal No. 1877 of 2009 -:7:- and fisted and kicked her and attempted to outrage her modesty by lifting her saree and had pressed her breasts. This was at 2.05 p.m. as evidenced by Ext.P6 wound certificate. At 7.30 p.m. when she examined by Dr. Sini Issac (P.W.7)she would say that at 11 a.m. Chandran came to her house and asked for water and when she went to take water he came inside the room and caught hold of her, made her lie on the cot and pressed her neck and thrust his hands inside her mouth, removed her saree and blouse, pressed her breasts and lower part of her abdomen and kicked her back. She had thus not only changed her version but also come out with a different type of story. From the witness box P.W.1 would against come out with an exaggerated version to say that it was while she was decanting cooked rice that the accused came to the kitchen asking for water. With regard to the occurrence also she has improved her story. While according to P.W.1 the accused had undressed her by removing her saree and blouse P.W.2 who came running hearing her screams had seen her with her saree and the accused lying on her. P.W.1, however, confessed during her cross-examination that her saree got loosened by itself . She further confessed that the accused did not attempt to commit rape on her. She was also prepared to concede that there was some wages due to the accused. P.W.6 has also admitted that the accused had been engaged for doing some work for two or three days. The fact that P.W.2 had seen P.W.1 with her saree in place at the time of occurrence will go to show that P.W.1 was coming out with an exaggerated version before court. 12. It is true that the testimony of P.Ws 1, 2 and 6 contains minor contradictions, exaggerations and omissions. But they are not in respect of material aspects so as to reject their testimony as Crl. Appeal No. 1877 of 2009 -:8:- unreliable or unworthy of any credence. There will be exaggerations, contradictions and omissions even in the testimony of the most truthful witnesses. This is because the human memory is not so perfect as to expect a photographic accuracy. Even if the accused had been engaged for doing some manual work in the property of P.W.1 he had no business to enter the house or touch the body of P.W.1 under the guise of a demand for wages. P.W.1 was staying alone in that house. The medical evidence shows signs of prurient overtures made by the accused towards P.W.1. He was committing house trespass and outraging the modesty of P.W.1. But the facts proved by the prosecution do not show any attempt to commit rape so as to attract the offence punishable under Section 511 of 376 I.P.C. The offence which is made out is one punishable under Section is 354 I.P.C. which is a lesser offence of a cognate nature. The conviction under Section 511 of 376 I.P.C. is unsustainable and is accordingly, dislodged. The appellant is found not guilty of the offence punishable under Section 511 of 376 and is acquitted thereunder. Instead, he is Crl. Appeal No. 1877 of 2009 -:9:- convicted under Sec. 354 I.P.C. For the said conviction he is sentenced to rigorous imprisonment for one year and six months and to pay a fine of Rs. 1,500/- and on default to pay the fine to suffer simple imprisonment for one month. The conviction under Section 450 I.P.C. is confirmed. But the sentence imposed on him by the court below is altered to rigorous imprisonment for one year and to pay a fine of Rs. 1,500/- and on default to pay the fine to suffer simple imprisonment for one month. From out of the fine a sum of Rs. 2,000/- shall be paid as compensation to P.W.1. In the result, the appeal is allowed in part altering the conviction and and sentence in part. V. RAMKUMAR, (JUDGE) ani. V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1877 of 2009 * * * * * * * * * * * * * * * * * * Dated: 20th day of January, 2010 JUDGMENT