C.M. Daniel vs State of Kerala

P. Bhavadasan, J.—The accused who was prosecuted for the offences punishable under Sections 450, 376 and 511 of Indian Penal Code and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was found guilty on all counts and was convicted and sentenced to suffer rigorous imprisonment for 3 = years for the offence punishable u/s 511 of Section 376 I.P.C., two years for the offence punishable u/s 450 I.P.C. and six months for the offence punishable u/s 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Substantive sentences were directed to run concurrently. He was granted set off also. The incident which gave rise to the case occurred on 11.12.2000 at about 1 p.m. P.W. 1 is the victim in this case. She was aged 12 years at the relevant time. She and her mother used to reside in a hut which infact belonged to the brother of the mother of P.W. 1. Her mother is a casual labourer. On 11.12.2000 at about 6.30 a.m. The mother of the victim left for work. By about 1 p.m. the accused came there with an enquiry to get any plantain for sale. Even though P.W. 1 said that there was no plantain to sell, he remained there. The allegation is that frightened P.W. 1 ran inside the house. The accused followed the child, caught hold of her and laid her on the ground and tried to ravish her. Fortunately, hearing her cries, P.W. 5 is said to have come there, which aborted the act attempted by the accused. The accused is said to have left the place on seeing P.W. 5. In the afternoon, when the mother came home, the information was conveyed to the mother and on the next day, P.W. 1 was taken to the hospital. While P.W. 1 was undergoing treatment in the Government Hospital at Pathanamthitta, intimation was received by P.W. 8. He went to the hospital and recorded the statement of P.W. 1, which is marked as Ext. P1. He prepared the body note and after returning to the police station registered crime as per Ext. P1 (b) First Information Report. He seized M.O. 2 dress belonging to P.W. 1 as per Ext. P6 mahazar and M.O. 1 churidar as per Ext. P4 mahazar. He recorded the statements of witnesses, had the accused arrested and subjected him for potency test. In the meanwhile, P.W. 1 was examined by P.W. 3, who furnished Ext. P2 certificate. Investigation was conducted by the successor-in-office of P.W. 8, namely, P.W. 9, who obtained the necessary records, completed investigation and laid charge before court.

JFCM Court, Ranny, before whom final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a special court, the case was committed to Sessions Court, Pathanamthitta. The said court, on receipt of records, and on appearance of the accused, framed charges for the offences punishable under Sections 511 of Section 376 and 450 of I.P.C. and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws. 1 to 9 and had Exts. P1 to P10 marked. M. Os. I, I(a) and II were got identified and marked After the close of the prosecution evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He would point out that the excise officers conducted a raid in the house of P.W. 1, from where illicit arrack was seized. They were under the belief that it was on the information furnished by the accused that the said raid was conducted and in order to wreak vengeance a false complaint has been laid. Finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.

On an appreciation of the evidence in the case, the court below came to the conclusion that there is evidence to show that the offences alleged against the accused have been established and therefore conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

Learned counsel appearing for the appellant pointed out that the court below has not critically analysed the evidence in the case and has omitted to take note of the contradictions, inconsistencies, embellishments and developments in the evidence of P.Ws. 1, 2 and 5. P.W. 1 is the victim. In the FIS, it is pointed out that in the earlier portion of the FIS she has stated that she was wearing churidar and in the latter portion she has stated that she was wearing a nighty and shirt. In her evidence she has stated that she had handed over the churidar to the police. The evidence of P.W. 8 is to the effect that the churidar was handed over to him by the mother of the victim. It is pointed out by the learned counsel for the appellant that surprisingly enough, the mother of the victim was not examined by the prosecution for reasons best known to them. Referring to the evidence of P.W. 2, it was pointed out that going by his evidence, when he reached the hut where P.W. 1 was residing, hearing a cry, he found P.W. 5 there and when he enquired about the matter, P.W. 5 asked him to look inside the room. When he looked inside the room, he saw P.W. 1 lying naked and the accused running away from the place through the kitchen door. Referring to the evidence of P.W. 5, learned counsel pointed out that P.W. 5 has no case that P.W. 2 had either came there or asked about what had transpired there. His evidence is to the effect that when he reached the place hearing the cries of P.W. 1, he found the victim lying on the floor and the accused lying on top of her. He would further say that on seeing P.W. 5, the accused came out of his house and fell on his feet and then he ran away. Learned counsel for the appellant pointed out that the claim of P.Ws. 1 and 2 that the accused had left through the back door, i.e., kitchen door is belied by the scene mahazar which would show that no such door is seen noticed.

It is also pointed out that infact P.W. 5 would admit that the mother of the victim was engaged in sale of illicit liquor and the suggestion made in that regard to the various witnesses is strengthened by the said statement of P.W. 5. The above aspects were not considered by the court below in the proper perspective and the court below blindly accepted the evidence of P.W. 1 and jumped into the conclusion that the offences have been made out. At any rate, according to the learned counsel, offence u/s 511 of Section 376 I.P.C. and Section 3(1)(xi) cannot lie. At worst, according to the learned counsel, the accused could have been found guilty for the offence u/s 354 of I.P.C. in case what the prosecution says is true and stands proved. According to the learned counsel, since the offence alleged under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act has not been proved, the conviction and sentence for that offence has necessarily to be set aside.

Learned Public Prosecutor on the other hand would point out that the court is justified in accepting the evidence of P.W. 1 who was aged 12 years at the relevant time as there is nothing to disbelieve the said evidence. Even assuming that there are contradictions in the evidence of P.W. 2 and 5, and if any one of them is believed, it becomes clear that when they reached the place of the incident, they happened to see P.W. 1 lying naked on the floor and the accused on top of the child.

Learned Public Prosecutor pointed out that true that no injuries are noticed by the Medical Officer on the body of P.W. 1 even though P.W. 1 had a case that she had suffered injuries. It is also contended that even assuming that the version given by P.W. 1 cannot be taken on its face value, it has to be appreciated in the light of the illiteracy, ignorance and poverty of the persons involved in this case. Learned Public Prosecutor went on to point out that the court below has analysed the evidence in considerable detail and no grounds are made out interfere with the finding of the court below.

P.W. 1 is the victim and P.Ws. 2 and 5 are her uncles. P.W. 1 at the time of evidence has given a description of the incident which took place on the date of the incident, i.e. on 11.12.2000. She would say that the incident occurred at about 1''o clock in the noon when the accused came there asking for plantain and when she replied that there was no plantain to be sold to him, he remained there. P.W. 1 would say that frightened she rushed inside, but she was followed by the accused and committed the offensive act.

P.W. 2, who is the uncle of P.W. 1, would say that he heard the cry from the nearby house where P.W. 1 and her mother were residing while taking lunch and he rushed to the place. When he reached the place, P.W. 5 was already there. He asked P.W. 5 what had happened. P.W. 5 asked him to look inside. Then P.W. 2 looked inside and he found that P.W. 1 was lying naked on the floor and the accused on top of her. His further evidence is to the effect that seeing him the accused ran into another room and escaped through the kitchen door.

The evidence of P.W. 5 is to the effect that hearing the cry when he reached the place and looked inside, he found P.W. 1 lying on the ground naked and the accused on top of her. According to him, seeing him, the accused took to his heels.

It is true that there is inconsistency in the evidence of P.W. 2 and P.W. 5. P.W. 5 is definite that he had no occasion to see P.W. 2 at the relevant time. But P.W. 2 would say otherwise. P.W. 2 would also say that when he reached the house of P.W. 1 and on seeing him, the accused escaped through the kitchen door. The existence of kitchen door is extremely doubtful in the light of the scene mahazar and also the evidence of P.W. 8.

On a reading of the evidence of P.Ws. 2 and 5, it looks as if P.W. 2 was not at the place at the relevant time.

However, there is no such infirmity in the evidence of P.W. 5. P.W. 5 says that when he reached the place he saw the unfortunate incident. Of course, P.W. 1 does not say that the accused went and fell on the feet of P.W. 5. She too would say that the accused had escaped through the kitchen door. But her evidence has to be appreciated in the circumstances under which she was placed at the relevant time. It is true that P.W. 8 has stated that no kitchen door is noticed by him. However, there is no reason to disbelieve P.W. 5 when he says that he saw the accused lying on the top of the victim.

It is true that there are some inconsistencies and contradictions in the evidence of P.W. 1. While giving first information statement, initially it was stated that she was wearing a churidar, while at a later portion of the same statement she would say that she was wearing a nighty and undergarments. It is to be noticed that the clothes handed over to P.W. 8 is churidar and undergarment. The mere fact that there are some inconsistencies in the first information statement regarding the clothes worn by the victim at the relevant time will not make the entire evidence of P.W. 1 unacceptable or unworthy of credit. When P.W. 1 was asked about the same, she has stated that she did not say that she was wearing nighty as shown in Ext. P1. Whatever that be, that has not much significance in the context of the case.

It is also true that P.W. 1 has infact denied that she was ever taken to Perinad Hospital while evidence of P.W. 2 shows otherwise. The mere fact that P.W. 1 might have been taken to the hospital at Perinad hospital, then to the Community Health Centre and then to the Government Hospital, that has not much bearing on the incident. P.W. 1 was examined on 12.12.2000 at 8 p.m. The history is noticed in Ext. P2. Going by the evidence of P.W. 3, it is seen that the history was given by the victim herself. The fact that P.W. 3 has also stated that the victim was referred from CHC, Ranny also shows that P.W. 1 had been taken to another hospital earlier. That shows that the claim of P.W. 1 that she had not been taken to any other hospital may not be true. But one has to notice the ignorance and illiteracy of the witness to speak about the incident and what had transpired thereafter in the state of affairs in which she was placed. But as regards the actual incident, there is consistent version.

The claim of P.W. 1 that she had suffered bodily injuries is belied by Ext. P2 certificate. The doctor had examined P.W. 1. P.W. 3 in her evidence would say that no external injuries could be noticed though there was an attempted sexual assault. To that extent, the evidence of P.W. 1 may have to be discarded. True, one needs to be noticed that there seems to be some embellishments and developments at the time of evidence. But the fact remains that the accused did attempt some sort of sexual assault on the victim.

Even though, the inconsistencies, contradictions etc. pointed out by the learned counsel for the appellant do exist, they are not so material so as to completely discard the testimony given by P.Ws. 1 and 5. It is true that a suggestion is made to P.W. 5 that the accused had been falsely implicated in order to wreak vengeance as there was a raid conducted by the excise officers in the house of P.W. 1 at the instance of the accused. Except that statement, there was no evidence produced by the defence, even though P.W. 5 admits that the mother of P.W. 1 was engaged in sale of illicit arrack.

On a consideration of the materials before this court, this court finds that no grounds are made out to disagree with the finding of the court below that sexual assault has been committed on the victim.

What now remain to be considered are what are the offences committed by the accused. In the light of the medical evidence and also in the light of the evidence furnished by P.W. 3, it is extremely difficult to come to the conclusion that there was an attempt to commit rape. Even though P.W. 1 would say that there was an attempted penetration, that is belied by the evidence of P.W. 3 and Ext. P2. However, the evidence of P.Ws. 2 and 5, even assuming that the evidence of P.W. 2 is not fully acceptable, would show that when they reached the place, they saw the accused lying on the top of P.W. 1. But on the basis of the medical evidence, it is difficult to hold that offence u/s 511 of Section 376 of I.P.C. is made out. On the facts of the case and in the light of the evidence offence u/s 354 of I.P.C. alone is made out. Of course, the court below was justified in holding that offence u/s 450 is made out.

Coming to the offence alleged u/s 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, there is no evidence that the act was committed on P.W. 1 because she belonged to Scheduled Caste/Scheduled Tribe or that the accused knew that she belonged to the said class. In this regard, it will be useful to refer to the decision reported in Stephen Joseph v. State of Kerala (2013(2) KLT 58) wherein an identical issue was considered and it was held that unless there was racial prejudice, the offence u/s 3(1)(xi) of the Act cannot be attracted. In the light of the principle laid down in the said decision, necessarily the conviction and sentence passed for the offence under the said Act will have to be set aside. In the light of the above findings, the finding of the court below that the accused is guilty of the offence u/s 511 of Section 376 I.P.C. and u/s 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and the conviction and sentence awarded for the said offences are set aside. The conviction and sentence for the offence u/s 450 of I.P.C. is confirmed. The accused is found guilty of the offence u/s 354 of I.P.C. and he is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 15,000/-, in default of payment, to undergo simple imprisonment for a period of one month. If the fine amount is realised, the same shall be paid to P.W. 1 as compensation. The substantive sentences shall run concurrently and set off as per law is allowed.