Roji P. Sam vs State

P. Bhavadasan, J.—Though the appellant-accused was tried for the offence punishable u/s 511 of 376 of Indian Penal Code, the court below found the accused guilty of the offence punishable u/s 354 IPC. He was convicted and sentenced to suffer simple imprisonment for a period of three months and to pay a compensation of Rs. 5,000/- and in default of payment of which to suffer simple imprisonment for a period of three months. The victim in this case is a handicapped lady who is the daughter of PW1. She is unable to move about and so when PW1 mother goes out for work, nobody would be at home and PW1 used to leave the child lying on the kitchen floor. The allegation is that on the date of the incident i.e. on 11.07.2003 at about 11.30 a.m, PW2 heard a loud cries from the house of PW1 and when she reached the house, she found the accused sitting near the victim and fondling her breasts. On seeing PW2, the accused is said to have taken to his heels. At the same time, hearing the cries, PW3 also claims to have reached the place. PW3, after noticing the contusions on the breasts of the victim, went to fetch PW1.

According to PW1, when she came home, she found her daughter, the victim crying and there was semen all over her body. PW1 stated that she washed the body of the victim and then went to Police Station and laid First Information Statement. Ext. P1 First Information Statement was recorded by PW8, the Sub Inspector of Police who on that basis registered a crime as per Ext. P7 First Information Report. PW10 took over the investigation and he prepared Ext. P4 scene mahazar and by Ext. P5 mahazar, he seized the clothes of the victim. He had the victim sent for medical examination. The victim was examined by PW9 who issued Ext. P9 certificate. PW10, after the arrest of the accused, had the kaily worn by the accused seized under Ext. P6 mahazar and had him subjected to potency test. He had the plan prepared, recorded the statement of the witnesses, completed the investigation and laid charge before the court.

The Judicial First Class Magistrate Court, Ranny before whom final report was filed 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, Pathanamthitta u/s 209 Cr.P.C. The said court made over the case to Additional District & Sessions (Adhoc) Court-I, Pathanamthitta for trial and disposal. The latter court, on receipt of the records and on appearance of the accused, framed charge 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 examined PWs 1 to 11 and had Exts.P1 to P14 marked. M.Os. 1 to 3 were also 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 there was a long standing enmity between him and PWs 1 and 3. He had occasion to see the illicit relationship of PW1 with another person that had irritated PW1 which resulted in implicating the accused in the crime. He had denied all the incriminating circumstances against him. On finding that the accused could not be acquitted u/s 232 Cr.P.C. he was asked to enter on his defence. He, however, chose to adduce no evidence. But, Exts.D1 to D1(b) were marked on his side.

On an appreciation of the materials produced before the court, the court below came to the conclusion that only an offence u/s 354 IPC has been made out and accordingly convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal.

Learned counsel appearing for the appellant submitted that the court below has not appreciated the evidence in the proper perspective and has omitted to note the contradictions and inconsistencies in the evidence of PWs 1 and 3 and also that the evidence of PW2 is not beyond doubt. The court below seems to have placed implicit reliance on the evidence of PWs 2 and 3. It was pointed out that, at the time of evidence, PW3 said that she had come to the place of occurrence hearing the cries of the victim whereas in the statement given to the Police she said that she came to the spot hearing the cries of PW2. Learned counsel also pointed out that PW3 too speak about the wiping of the body of the victim and the presence of semen etc. This aspect is belied by the medical evidence as well as the forensic evidence. It is further pointed out by the learned counsel that even according to PWs 2 and 3, there were contusions on the breasts of the victim, but PW9 doctor did not find any external injury not even a tenderness on the breasts of the victim. It was also pointed out that, going by the evidence of PWs 2 and 3, the police had reached the place and recorded the statement of witnesses. PW2 would then say that thereafter PW1 had gone to Police Station and she had also gone along with her to the Police Station. Learned counsel also pointed out that the First Information Statement then should have been constituted by the statement given by PW2. Attention was also drawn to the statement of PW1 that initially she had filed a written complaint before the Police that is also not produced. PW8 denies the said fact. But the First Information Statement now produced before the court is the statement given by PW1 long thereafter. Learned counsel would point out that the real First Information Statement is suppressed with ulterior motive. It is also pointed out by the learned counsel that, according to him, the investigating agency has prepared Ext. P4 scene mahazar as shown by PW2. PW2 categorically denied having shown the place of occurrence. These infirmities, inconsistencies and contradictions in the evidence of PWs 1 to 3 and also the possible manipulation of the First Information Statement make the prosecution case extremely vulnerable and it cannot be said that the offence has been made out beyond reasonable doubt.

Learned Public Prosecutor, on the other hand, pointed out that even assuming that there was some motive for PWs 1 and 3 to falsely implicate the accused, there is no infirmity as for as PW2 is concerned. PW2 had come to the place to visit PW3 and she is a natural witness. Her evidence has been believed by the court below and there is no reason to reject the same. The inconsistencies and contradictions pointed out in the evidence of PWs 2 and 3 are minor in nature and does not affect the core of the prosecution case. At any rate, it is clear, according to the learned Public Prosecutor, that the accused was seen in the house of the victim and something had taken place in the house. There is no suggestion to PW2 that she had any reason to falsely implicate the accused.

The court below having chosen to believe the evidence of PWs 1 to 3, unless it is shown that their evidence suffers from serious infirmities, the learned Public Prosecutor pointed out that this Court will not be justified in interfering with the findings of the court below.

It is not much in dispute that the victim is severely handicapped and is affected by cerebral palsy. It has come out in evidence that the accused is also handicapped but not to the extent of the victim. The lower court has chosen to accept the evidence of PWs 2 and 3 to come to the finding that the offence u/s 354 IPC has been made out. The evidence of PWs 1 and 3 are uniform and consistent to the effect that the father of the victim is a cleaner in a lorry and when he goes for work, he returns after few days and mostly comes on Saturdays only. Their evidence is also consistent regarding the fact that after the siblings of the victim go to school, the victim would be alone in the house as her mother also goes for work. It is not in dispute that PW3 is the paternal grandmother of the victim who occasionally goes to the house of the victim to have a look at her.

The incident is spoken to by PW2. PW2 had come for a visit to the house of PW3. PW2 is related to both the victim and the accused. PW2 says that she, on hearing the cries of the victim, went to the house of the victim and found the accused sitting near the victim and fondling her breasts. She would then say that on seeing her, the accused is said to have taken to his heels. PW3, the paternal grandmother, happened to hear the cries of the victim and that brought her to the scene. The evidence of PW2 is to the effect that she informed about the incident to PW3 who came home immediately.

As already stated, if the evidence of PWs 2 and 3 found to be acceptable, then there is evidence to show that the victim has been assaulted by the accused. In the cross examination, PW3 stated that she had not stated to the police that she had come to the place hearing the cries of the victim. She was confronted with that portion of the statement and it is seen stated that she came to the spot hearing the noise raised by PW2. She then speaks about the presence of semen etc. on the body of the victim which is belied by the medical evidence as well as the forensic evidence.

PW1, of course, is not an eye witness. She has only hearsay knowledge. Her evidence has not been relied upon by the court below also to come to the conclusion that the offence has been made out. What is relied on is the evidence of PW2. PW2 would say that she was able to notice contusion on the breasts of the victim. She does not say about PW1 having given an oil bath to the victim nor does she say about the presence of semen, wiping of the body of the victim by PW1 etc. What is significant is that, in the cross examination, she had stated that on the date of the incident, PW1 had initially gone to the Police Station and the Police had come to the house of PW1 by 3 p.m. Therefore, she is definite that on that occasion her statement was recorded by the Police. She then says that she, the victim and PW1 again went to the Police Station and they were questioned again. If what PW2 says is correct, then the statement recorded by the Police in the house of the victim becomes the First Information Statement as given by PW2. Recalling the evidence of PW1, she is definite that initially she had filed a written complaint and thereafter the Police had come to her house. Here, one has to notice the evidence of PW8. He denies PW1 having come to the Police Station and given written complaint. He also denies having gone to the house of the victim and later PW1 and other coming to the Police Station and furnishing the First Information Statement. It is also significant to notice that, according to PW10, the scene of occurrence was shown by PW2. When this was put to PW2, she denied the same. PW9 is the doctor who had examined the victim. He was unable to notice any external injury on the body of the victim. He has categorically stated that he has not even found any tenderness on the body of the victim. The Forensic Science Laboratory report namely, Ext. P14 does not show the presence of semen in any of the items of clothes sent for chemical examination. PWs 1 and 3 are definite that there was semen on the body of the victim and PW1 wiped the same etc.

There is considerable force in the submission made by the appellant that if PW2 is to be believed, then Ext. P1 may not be the First Information Statement. The assertion of PW2 is that initially PW1 had gone to the Police Station and filed a written complaint and thereafter the Police came to their house and had taken her statement. She is the sole eye witness and if she had given a statement to the Police that would have constituted the First Information Statement. PW2 is also definite that, later on she along with the victim and PW1 had gone to the Police Station and furnished the information to the Police. As already noticed, PW8 denies all these statements made by PW2.

There is considerable doubt regarding the authenticity of Ext. P1 First Information Statement. The contention raised by the appellant that the original First Information Statement is suppressed cannot be brushed aside in the above context. The finding of the court below that the evidence of PWs 2 and 3 are without blemish also cannot be accepted. The infirmities in the evidence of PWs 2 and 3 have also been noticed. Both PWs 1 and 3 have admitted in the cross examination that they had an axe to grind against the accused. Having considered all the above aspects, it is felt that a reasonable doubt is created regarding the actual incident. If that be so, the benefit of doubt will have to be extended to the accused. This Court is, therefore, unable to accept the finding of the court below that the accused has outraged the modesty of the victim and therefore he is guilty of the offence punishable u/s 354 IPC.

The appeal is allowed. The conviction and sentence are set aside. The appellant is not found guilty of the offence u/s 354 IPC and he is acquitted of the said offence. The bail bond shall stand cancelled. He is set at liberty forthwith. If the fine amount has already been paid, the same shall be refunded.