Joshi vs State of Kerala

P. Bhavadasan, J.—The accused, who faced trial for the offence punishable u/s 511 of Section 376 of Indian Penal Code was found guilty of the offence punishable u/s 354 of Indian Penal Code. He was therefore convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/-, in default of payment of which to undergo rigorous imprisonment for a further period of six months. Set off as per was allowed. It was also directed that if the fine amount is realised, a sum of Rs. 4,000/- was directed to be paid as compensation to P.W. 1. The incident which gave rise to the case is alleged to have occurred on 14.5.2005 at little past after midnight. P.W. 1, whose children were employed outside, was residing with her husband. On the date of the incident her husband had gone out for a meeting and to attend a marriage function. Around midnight, it is stated that she heard a knock at the door and when she looked outside, she saw a person standing there. He told P.W. 1 that her husband has been brought fully drunk and she may come out and take him in. As per the allegations, initially, P.W. 1, the victim, refused to go outside and collect her husband. After ensuring that the person had covered a long distance, it is claimed that P.W. 1 armed with a stick and along with her dog went to the place where her husband was alleged to be lying drunk. However, she did not find her husband and so she decided to return home. On the way back, the allegation is that she found the accused standing there with his shirt removed and no sooner than she reached near him, he grabbed her and attempted to commit rape on her. She offered stiff resistance and in the process, she suffered injuries. However, before the heinous crime could be committed, it is seen stated that a person was seen coming with a candle and which made the accused to flee from the place. Soon the husband of P.W. 1 reached the place and carried P.W. 1 to the nearby house of P.W. 3. P.W. 1 changed her dress and she was taken to the hospital in the autorickshaw of P.W. 4. P.W. 5, the doctor, examined P.W. 1 and issued Ext. P2 certificate. On getting intimation from the hospital, P.W. 7 went to the hospital and recorded Ext. P1 first information statement furnished by P.W. 1. He registered crime as per Ext. P4 FIR. Investigation was taken over by P.W. 8. He prepared Ext. P3 scene mahazar and seized M.O. 1 as per Ext. P5 mahazar. He had the statement of P.W. 1 taken u/s 164 of Cr.P.C. by P.W. 9. He recorded the statements of witnesses, completed investigation and his successor-in-office, namely, P.W. 10 laid charge before court.

The court before which, final report was laid took cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kottayam. That court made over the case to Sessions Court (Adhoc)-I for trial and disposal. The latter court, on receipt of records and on appearance of the accused before the said court, framed charges for the offence punishable u/s 511 of Section 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws. 1 to 10 and had Exts. P1 to P7 marked. Ext. X1 was also marked and M.Os. 1 and 2 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 pointed out that on the date of the incident, he along with P.W. 2 had gone for the State Meeting of a particular party under the leadership of one Johny. While the rest of the persons accompanied by P.W. 2 and the accused left for the meeting, they remained in the bus itself. The accused would say that when P.W. 2 tried to have food before others had come, that was objected to by the accused. There ensued a quarrel between them and infuriated P.W. 2 left the place threatening the accused with dire consequences. They returned from the place of the meeting by about 11.30 p.m.. He would say that since the vehicle had to be washed, he had taken the vehicle home and washed it. Thereafter he went to sleep. He would say that he had been falsely implicated. Finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. The accused examined D.Ws. 1 and 2 and had Exts. D1 to D3 marked. On an appreciation of the evidence in the case, the court below found the evidence of P.Ws. 1 to 4 acceptable as corroborated by the evidence of the doctor and therefore found the accused guilty of the offence punishable u/s 354 of I.P.C., though he was found not guilty of the offence u/s 511 of Section 376 of I.P.C. The conviction and sentence as already mentioned followed. The said conviction and sentence are assailed in this appeal.

Two main grounds are seen urged in this appeal. It is pointed out that the evidence of P.W. 1 is open to serious doubt in view of the several inconsistencies and contradictions in her evidence when read along with Ext. P1 first information statement. It is also pointed out that the evidence of P.W. 1 would show that the accused was very familiar to her and a close friend of her husband in which case the narration of the assailant in Ext. P1 as is a total stranger betrays the prosecution case. It is also pointed out that in Ext. P2 document, which is the certificate issued by the doctor the cause is given by P.W. 1 herself. She told the doctor that she was attacked by an unknown person. Referring to the evidence of P.Ws. 1 to 4, it is pointed out that the accused is a very familiar person in the locality and in fact it was P.W. 2, who has secured an employment for the accused, namely, P.W. 1. Under these circumstances, if as a matter of fact, it was the accused who had assaulted her or outraged the modesty of the victim, namely, P.W. 1, surely she would have mentioned him.

Learned Public Prosecutor on the other hand tried to support the finding of the court below pointing out that there was no need for P.W. 1 to falsely implicate the accused. The reason given by the accused for false implication is not proved. It is pointed out that the version of P.Ws. 1 to 4 taken along with Ext. P2 and the evidence of the doctor would clearly show that what is stated by P.W. 1 is true and correct. The court below, according to the learned Public Prosecutor, on an evaluation of the evidence has come to the conclusion that it was the accused who had committed the offence against the victim. That being essentially a finding based on the evidence available, unless it is perverse, learned Public Prosecutor contends that interference is not called for.

P.W. 1 is the victim in this case. Her evidence shows that on the date of the incident she was alone at her house and a little past midnight a person is said to have come over to her house and told her that her husband has been brought drunk and she may collect him. Initially, P.W. 1 would say that she refused to come out and asked the person to go away. Going by the evidence furnished by P.W. 1, after ensuring that the person who had come has covered a long distance, she, armed with a stick and along with her dog, went in search of her husband. But she could not find her husband. She decided to return to her house. While on her way back, she happened to see a person standing on the way with his shirt removed. As soon as she reached near him, he grabbed her and attempted to sexually assault her. According to P.W. 1, she was able to escape from the clutches of the accused. She would say that seeing someone coming with a candle, the accused took to his heels. It was none other than her husband who had come in search of her.

P.W. 2 is the husband of P.W. 1. He would say that when he returned home after attending the marriage function, he could not find his wife there and he went in search of her. When he reached the rubber plantation, he saw P.W. 1 lying there crying. He took her to the house of P.W. 3 where P.W. 1 changed her cloths and from where she was removed to the nearby hospital in the autorickshaw driven by P.W. 4 and from there she was removed to Medical College Hospital.

P.W. 3 would say that on the eventful day, P.W. 1 was brought to her house in pitiful condition by P.W. 2 and she had given her cloths to change and she further says that she had an autorickshaw summoned and P.Ws. 1 and 2 went to the hospital.

P.W. 4, the autorickshaw driver, deposes that he had occasion to take a lady to the hospital at the midnight on the eventful day.

P.W. 5 is the doctor who examined P.W. 1 and issued Ext. P2 certificate. The injury noticed in Ext. P2 corresponds to the injury mentioned by P.W. 1 in her evidence.

There is thus convincing evidence to show that P.W. 1 was infact attacked by someone and she had suffered injuries.

The next question that arises for consideration is has the prosecution succeeded in establishing that it was the accused who was the assailant.

Here one has to notice the description of the assailant in Ext. P1. The features of the assailant are described. But there is nothing in Ext. P1 to show that the assailant was familiar to P.W. 1. It is also significant to notice that when she was examined by the doctor, she told the doctor that she was attacked by an unknown person.

The accused seriously disputes the identity. According to him, going by the evidence now available on record, he is a very familiar person in the locality and it is inconceivable how P.W. 1 could not identify him had he been the assailant. Even P.W. 1 admits that the accused is a close friend of P.W. 2 who is none other than her husband. She also says that she has on several occasions seen him while going for work and he was familiar to her. P.W. 1 also says that she happened to see the face of the assailant in the light of the torch she had. If that be so, according to the learned counsel, P.W. 1 could have easily said that it was the accused who was the assailant and need not give description of the assailant which would indicate that the assailant was unfamiliar to her and was a total stranger.

There seems to be considerable force in the said submission. On a reading of the evidence of P.Ws. 1 to 3 would clearly show that the accused is a familiar person in the locality. P.W. 1, in cross-examination, admitted that the accused is very familiar to her and she had occasion to see him on several occasions while going for work. P.W. 2 the husband of P.W. 1, the victim, conceded that the accused was his good friend and on the date of the incident they had gone together for a meeting at Kottayam. He, however, disputed that there was any quarrel between them on the said date. P.W. 3 also confirms that the accused is a familiar face.

It is not as if that P.W. 1 could have had only a fleeting glimpse of the assailant at the time of incident. If one has to go by the records, the assailant has come to the house of P.W. 1 and talked to her and he was there for sometime. Thereafter, he left the place. The incident in which P.W. 1 was injured lasted for a considerable period and her evidence shows that she had a good look of the assailant in the lit torch. When these facts are taken along with the evidence of P.Ws. 1 to 3, it is clear that if the accused was the actual assailant, there would have been no difficulty in identifying the accused or atleast point out that the assailant was none other than the close friend of her husband. Instead, the description given is as if the assailant was a total stranger, who was not at all familiar to P.W. 1.

Under the above circumstances, a reasonable doubt is created in the mind of the court regarding the identity of the assailant. It is not for the accused to answer the question as to why he should be falsely implicated. The burden is on the prosecution to prove the case beyond reasonable doubt. If there is any doubt regarding the identity of the accused, the benefit should go to the accused. Applying the above principle, it is clear that there is a serious identity crisis involved in the present case and this court will not be justified in coming to the conclusion that it was the accused who was the assailant on the basis of the evidence available in the case. This court is unable to uphold the conviction and sentence passed by the court below.

In the result, this appeal is allowed, the conviction and sentence passed by the court below are set aside it is held that the accused is not guilty of the offence punishable u/s 354 of I.P.C. He stands acquitted of the said offence. His bail bond shall stand cancelled and he is set at liberty. If he has already paid the fine amount, the same shall be refunded to him.