Gireeshan vs State of Kerala

P. Bhavadasan, J.—The accused, who faced trial for the offence punishable u/s 511 of 376 of the Indian Penal Code, was found guilty of the offence punishable u/s 354 IPC. He was therefore, convicted and sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- and in default of payment of which to undergo rigorous imprisonment for a period of three months u/s 354 IPC. It was also directed that if the fine amount was realised, the entire amount shall be given to the victim, PW2 as compensation. Set off as per law was allowed. PW2 is the victim in this case. The accused is her neighbour as also PW3 who is closely related to PW1. PW2''s parents died long ago and she was residing with her grand parents. On the date of the incident i.e. on 20.05.2004, in the morning, the grandparents had gone to the hospital and PW2 was alone at home. She was trying to cook rice. When she found the accused outside the house, she enquired about his presence. But except for a smile, the accused did not reply. Feeling odd, PW2 went inside the house. Short while thereafter she came out to the lean to the house where the rice was being cooked to see whether the rice has been cooked. The allegation is that while she was attending to the rice, she was caught hold by the accused who dragged her to the room and made her to lie on a cot and then tried to ravish her. Her undergarments were removed and while the accused was attempting to rape her, PW3 who was residing nearby happened to come there and that aborted his action. On seeing PW3, it is alleged that the accused ran away from the place. Complaint was laid by PW2 on 21.05.2004 at about 10.30 a.m. PW6 recorded Ext. P2 First Information Station and registered a crime as per Ext. P2(a) First Information Report. He prepared Ext. P3 scene Mahazar. He had PW2 sent for medical examination and PW1 doctor examined her and issued Ext. P1 certificate. From the place of incident, PW6 seized M.O.1 series of clothes alleged to have been worn by the victim at the relevant time. He recorded the statement of witnesses. His successor in office namely, PW7 completed the investigation and laid charge before the court.

The court before which final report was laid took cognizance of the offence. On finding that the offence is one exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kozhikode u/s 209 Cr.P.C. The said court made over the case to Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, framed charges for the offence punishable u/s 511 of 376 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 7 examined and Exts. P1 to P6 marked. M.O.1 series were got identified and marked. On finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. But he chose to adduce no evidence. He had a case at the time of questioning u/s 313 Cr.P.C. that the family members of PW2 had come over to his house and talked to his mother that the accused should marry PW2 and to which course, the accused was not amenable to. The allegation is, therefore, that in order to trap him, false allegations have been made.

On finding that the evidence of PWs 2 and 3 are acceptable and they stand scrutiny, the court below found that the evidence discloses only commission of offence u/s 354 IPC and accordingly, the accused was found guilty of the said offence and the 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 there has not been any critical analysis of the evidence in the case and the court below has mechanically accepted the evidence of PWs 2 and 3. The inconsistencies in their evidence, the omissions in Ext. P2 furnished by PW2 and also the omissions in the 161 statement furnished by PW3 have not been given due significance while considering the evidence of PWs 2 and 3. Apart from all these, according to the learned counsel, the inherent improbability of such an incident taking place has also not been appreciated.

The evidence of PWs 2 and 3 are clear to the effect that the house where PW2 was residing is surrounded by other houses. A reading of the evidence of PW2 would show that when the attack was made by the accused, she let out cries. If that be so, according to the learned counsel, obviously, it would have been heard by the neighbours and they would have come to her rescue. It is strange that none of the neighbours heard the cries of PW2 and that it was not even heard by PW3 who is closely related to the victim and residing nearby.

At the time of evidence, PW2 comes forward with a case that a radio was switched on in the house of PW3 and due to that sound, PW3 might not have heard the cries let out by PW2. It is further pointed out that, going by the evidence of PW2, the attack continued for a considerable period of time and that severe resistance was offered by her. If that be so, necessarily the attack must have resulted in causing some visible injuries on the body of the victim.

Attention was drawn to the fact that PW2 has a definite case that she had bitten on the hand of the accused and also had hit him with a torch and the glass of the torch had broken to pieces. The evidence of PWs 6 and 7, the investigating officers, according to the learned counsel, show that there was no glass pieces seen at the place of occurrence nor any torch was handed over to the investigating officer by the victim. So the claim of PW2 is totally false.

Learned counsel for the appellant very fairly stated that even though Ext. P2 may not be of much significance in this case, in the light of the entries contained therein, the evidence of PW2 can be taken only with a pinch of salt. She cannot be said to be a creditworthy witness. It is further pointed out that, going by the evidence of PW2, even while she was in the kitchen and thereafter, the door of the house in the eastern side was left open and if, as a matter of fact, the accused had any intention to violate the body of the victim, he could have easily entered through the said door instead of waiting for the victim to come out again i.e. to come to the lean to the house. The above aspects have not been considered by the court below and had it done so, it would found that the evidence of PWs 2 and 3 cannot be accepted as creditworthy and trustworthy. At any rate, according to the learned counsel, a serious doubt is cast regarding the actual occurrence and if that be so, benefit of doubt surely go to the accused. Learned counsel concluded by pointing out that the conviction and sentence cannot stand.

Learned Public Prosecutor, on the other hand, tried to sustain the conviction and sentence. It was pointed out by him that true there may be some developments, inconsistencies and omissions in the evidence of PWs 2 and 3. But, regarding the crux of the matter, there is consistency in the evidence of PWs 2 and 3. Whether radio was switched on in the house of PW3 is of little significance since the evidence of PW2 to a certain extent corroborates with the evidence of PW3 has no case that she had come to the house of the victim hearing her cries. But her case is that she had come to the house of PW2 to grind coconut. The presence of PW3 appears to be natural and there is nothing unbelievable about it.

According to the learned Public Prosecutor, the evidence of PW2 though may contain some statements which are not found in Ext. P2, the same cannot be rejected on that ground. One has to remember that she is the victim of sexual assault and is in the position of an injured witness. Unless it is shown that her evidence is totally unacceptable, it may not be possible to reject the same. The time for which the attack lasted and such other matters are only approximate features spoken to by PW2 and they cannot be taken literally.

Learned Public Prosecutor also pointed out that it is true that PW2 has stated that her house is surrounded by other houses. But there is nothing to show that the inmates of the houses were there and in all probability the incident having been occurred at 9.30 in the morning, the inhabitants of the houses might have gone for work. At any rate, according to the learned Public Prosecutor, there is no reason to disbelieve PW2 and the court below has analysed the evidence of PW2 in considerable detail and found to be acceptable. There is no suggestion for PW2 to falsely implicate the accused even though there is a suggestion that there was a proposal from the side of the family members of PW2 to the mother of the accused that the accused marries PW2, which was refused by him. Learned Public Prosecutor went on to point out that there is nothing to show that the findings are either perverse or contrary to the evidence in the case. At any rate, the view taken by the court below is a possible one and if that be so, this Court may not be justified in interfering in its appellate jurisdiction even assuming that a different view is possible.

The allegation initially was one of attempt to commit rape. PW2 is the victim. The evidence regarding the incident is confined to the testimony of PWs 2 and 3. Among them, PW2 is the victim and PW3 is her aunt. It is not in dispute that PW3 resides near to the house where PW2 was residing at the relevant time. PW2 was residing with her maternal grandmother and her parents were no more. She speaks about the incident in detail of course, as pointed out by the learned counsel for the appellant, radio seems to have been introduced at the time of evidence. But, on the material aspects, PW2 gets corroboration from Ext. P2 First Information Statement. In both Ext. P2 and at the time of giving evidence in court, PW2 has stated that while she was cooking rice, the accused had seen first outside the house and when she asked why he was there, he just smiled and did not reply. She then speaks about the occasion when she came out to the lean to the house and she was attacked by the accused.

It is unnecessary to refer to the details of what the accused did except to say that while he was seen lying on top of PW2, PW3 happened to come there. PW3''s evidence is to the effect that she had come to the house of PW2 to grind coconut. There is no challenge to this version given by PW3. PW3 then says that she happened to see the accused on top of PW2 and on seeing her, he rushed outside. Both PWs 2 and 3 say that initially there was an attempt to resolve the issue from the side of the family members of PW2 but since the accused was very adamant, it did not come through and thereafter the complaint was laid. Merely because there was an attempt from the side of the family members of PW2 to have her married to the accused and it failed, it will be too imprudent to conclude that the accused has been falsely implicated. There is also a suggestion that it is a result of political vendetta. For the said purpose, reliance is place on the evidence of PW5. However, that remains as a mere suggestion. The contention that if, as a matter of fact, the accused had any intention to commit assault on the victim, he could have entered through the eastern side and he did not want to wait outside for the victim to come out on the second occasion, it shows the improbability of the incident has not much value. The said contention cannot be accepted since it depends upon the circumstances of the case and there is a probability that he might have thought that if he came through the eastern side, somebody would see him. There is no suggestion in that regard. Merely because PW2 had stated that the eastern door was kept open does not mean that if the accused wanted to commit assault on her he could have come through the said way and the story put forward by PW2 cannot be correct.

However, there seems to be some confusion regarding the evidence of PW2 with regard to the act committed by her on the accused. She had a definite case that she had bitten him on his hand and had hit him with a torch. There is no visible injury noticed on the body of the accused who was arrested soon after the incident. PW6 has stated that, when he prepared the scene Mahazar, he was unable to see any broken pieces of glasses nor had PW2 handed over torch to him which she alleged to have been used against the accused. May be there are slight exaggerations in that regard. May be in her enthusiasm to show that she had offered resistance, she might have made some embellishments. But, the fact remains that there was an attempt on the side of the accused to violate the body of the victim. Merely because no visible injuries were seen on the body of the accused and since torch was not handed over to PW6 may not be grounds to doubt the version given by PW2.

As rightly pointed out by the learned Public Prosecutor, the entries in Ext. P2 has nothing to do with the incident and that entries cannot be used to discredit the evidence of PW2. The court below has considered the evidence of PWs 2 and 3 and has come to the conclusion that they stands scrutiny. It must be remembered that the court below had occasion to watch the demeanour of the witnesses also. In spite of the lacunas pointed out by the learned counsel for the appellant, on an analysis of the evidence of PWs 2 and 3, it is extremely difficult to come to a conclusion that a false case has been foisted on the accused. It is true that there have been close acquaintance between PW2 and the accused. Whatever that be, the contentions raised by the learned counsel for the appellant are insufficient to come to a conclusion that the accused has been falsely implicated. At any rate, the finding of the court below is a possible one and is based on appreciation of evidence. If that be so, even assuming that a different view may be possible, it will not be proper for this Court to interfere with the findings of the court below. The court below was perfectly justified in coming to the conclusion that offence u/s 511 of 376 IPC is not made out and only offence u/s 354 IPC is made out. The conviction for the said offence shall stand.

Coming to the sentence, learned counsel for the appellant pointed out that the sentence imposed is severe and harsh and is not warranted by the facts and circumstances of the case. It is also pointed out that the accused has since married and is having a family and that may be taken note of while considering the question of sentence. The court below has awarded a maximum sentence provided for the offence. After having given anxious consideration to the contentions raised by the learned counsel for the appellant, it is felt that there is some substance in the complaint raised by the appellant. The sentence seems to be harsh and disproportionate to the offence alleged to have been committed by the accused.

Thus, while confirming the conviction for the offence punishable u/s 354 IPC, the sentence awarded by the court below is set aside and instead the accused is sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs. 15,000/- and in default of payment of which he shall suffer rigorous imprisonment for a period of two months. If the fine amount is realised, the same shall be paid to PW2 as compensation.