Soman vs State of Kerala

P. Bhavadasan, J.—The accused faced trial for the offence punishable u/s 511 of 376 of the Indian Penal Code and was found guilty of the said offence. He was, therefore, convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 25,000/- with default clause of six months rigorous imprisonment. If the fine amount was realised, it was directed to be paid to PW5, the victim as compensation. PW5 is the victim in the case and she was aged eight years at the relevant time. She stays with her parents and sister. On the date of the incident, i.e. on 24.08.2001, as usual at about 7 a.m. PW1, the father of PW5, left the house directing PW6, the mother of PW5, to entrust the children to their grandmother, PW10 who is residing nearby and then to go for the meeting she had to attend. She did as she was told. While PW5 and PW7 who is none other than the sister of PW5 were playing along with other children, PW5 and another child had gone to the house of the accused to drink water. After drinking water, the child who had accompanied PW5 went to watch T.V. in a nearby house while PW5 was left alone. The allegation is that the, made her to lie on a cot and did the offencive act. She returned home crying and PW10 asked her about the reason. She is said to have narrated the incident to her. At about 2.30 p.m., the father had returned home and PW10 conveyed the information to him. Later in the evening PW6 mother also returned home. The news was conveyed to her also. On the next day i.e. on 25.08.2001, Ext. P1 First Information Statement was laid by PW1. It was recorded by PW13 who registered a crime as per Ext. P1(a) First Information Report. Investigation was taken over by PW14. He prepared Ext. P6 scene Mahazar and recorded the statement of witnesses. In the meanwhile, PW5 was examined by PW2 doctor who prepared Ext. P2 wound certificate. She was also examined by PW3 doctor who prepared Ext. P3 certificate. On getting the details about the accused, PW14 filed Ext. P8 report. On arrest, the accused was subjected to potency test and the clothes worn by the victim at the relevant time were seized and that were sent for chemical examination and Ext. P10 report was obtained. Statement of witnesses was recorded and after completing the investigation, charge was laid before the court.

The Judicial First Class Magistrate Court, Ramankari before which final report was laid took cognizance of the offence. On finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Alappuzha u/s 209 Cr.P.C. The said court made over the case to Additional Sessions Court, Fast Track- I, Alappuzha for trial and disposal. The said 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, examined PWs 1 to 15 and had Exts. P1 to P10 marked. M.Os. 1 and 2 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. According to him, on the relevant date, he was not at home and his wife and children were alone at home and he had gone for work. On finding that the accused could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence. He had examined DWs 1 to 3.

On an appreciation of the evidence in the case, the court below found the evidence of PW5 cogent, convincing and supported by the evidence of PWs 7 and 10 and held that the offence has been made out and consequently he was found guilty of the offence u/s 511 of 376 IPC, 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 is considerable delay in lodging the First Information Statement for which no acceptable and reasonable explanation has been offered. Going by the evidence, PW1, the father of the victim returned home at about 2.30 p.m. on the date of the incident and the information was conveyed to him immediately by PW10, the grandmother of PW5, the victim. There was no reason for PW1 to have waited till the next day evening to lay the First Information Statement. In the light of the fact that no reasonable explanation has been offered, the story now put forward is a cooked up one to wreak vengeance against the accused. Moreover, it is pointed out that, even going by the evidence, there are so many houses near to the place of the incident and according to PW5 she did cry at the time of the incident and if that be so, it would have been heard by the neighbours. But, strangely enough, none of the neighbours are seen examined and there is no case for the prosecution that anybody had heard the noise of PW5. It is also pointed out that when the scene Mahazar was prepared, there was no one in the place. It is further contended that the claim of the appellant that he was not at home at the relevant time was not considered in the proper perspective. In short, the conviction and sentence cannot stand, it is contended.

Learned Public Prosecutor, on the other hand, pointed out that the court below has analysed the evidence in considerable detail and has come to the conclusion that the evidence is sufficient and cogent enough and that the offence has been made out.

Drawing attention to the evidence of PW5, it is pointed out by the learned Public Prosecutor that, in the chief examination, she narrates the incident in a convincing manner and there is no change in her version in the cross examination. If the evidence of PW5 is acceptable and remains unshakened in cross examination, there is no reason to look for corroboration since she is the victim and in the portion of an injured victim, her evidence has considerable weight. It is also pointed out that, true the medical evidence does not give much support to the prosecution. But the nature of the act is alleged to have such that it is possible that no injuries would have caused to the victim. Even the victim has no case that she had suffered any external injuries.

Learned Public Prosecutor pointed out that the mother had returned in the evening on the date of the incident and then she was told about the offencive act committed by the accused. If, thereafter, the family faced with such a situation thought it proper to have a consultation with the relatives and then lay the First Information Statement, they could not be found fault with for not having rushed to the Police immediately after coming to know about the incident. In the facts and circumstances of the case, it is contended that it could not be said that there is unreasonable delay in lodging the First Information Statement. The mere fact that no neighbours have been examined does not help the case of the accused at all. There is no suggestion to PWs 1, 5, 6 or 10 that if PW5 had actually cried allowed, it could have been heard by the neighbours. There is no suggestion to PW5 in that regard. In short, the contention of the learned Public Prosecutor is that there are no grounds to interfere with the findings of the court below and the conviction and sentence are only to be confirmed.

The incident in this case is said to have occurred on 24.08.2001 and the First Information Statement namely, Ext. P1 was laid by PW1, the father of the victim on 25.08.2001. PW5 is the victim. She and her sister were left in the care and custody of PW10 when PWs 1 and 6, their parents had gone for their work. The prosecution case is that, after playing for some time, PW5, the victim and another child had gone to drink water from the house of the accused and after drinking water, the friend of PW5 left her to watch T.V. in another house. PW5, the victim then says that the accused came near her and called her inside the house. She was then made to lie on a cot and then the offencive act was committed by the accused. She gives full description of the incident. She cried aloud when the accused committed the act. When she returned home, she conveyed the news to her grandmother and later to her parents. As rightly pointed out by the learned Public Prosecutor, there is no cross examination regarding her version of incident. The evidence of PW5 and her version regarding the incident stands unchallenged. There is not even a suggestion to PW5 that no such incident had occurred or that accused was at another place at the relevant time. Here, one must remember the definite case that the accused had gone for work and his wife and children were alone at home. If that be so, there should have been a suggestion to PW5 that at the time when PW5 had gone to drink water, the wife and children of the accused were there. No such suggestion is made either to PW5 or to PWs 6, 7 or 10.

It is true that the medical evidence is not of much help in this regard. As rightly pointed out by the learned Public Prosecutor, the prosecution has no case that as a result of the act committed by the accused, the victim had suffered any external visible injury on her private parts. The act is such that only a contact with the private parts of the victim and there was no forcible attempt to penetrate resulting in causing injuries. Therefore, the fact that there is no injury noticed in Exts. P2 and P3 as spoken to by PWs 2 and 3 also does not help the accused.

There is a contention that a public road is running just in front of the house where the incident has taken place and if, as a matter of fact, the incident has taken place as alleged, the by-passers would have certainly noticed the same and would have come to the aid of the victim. True, going by the scene Mahazar, there is a way running in front of the house. It is not necessary that at the relevant time even assuming that PW5 had let out a cry, it should have been heard by the passers by. As long as there is no challenge to the evidence of PW5 regarding the actual incident, the question as to whether the cries would have been heard or not is of little significance. It is also important here to notice that there is no suggestion to PW5 as to why she should falsely implicate the accused. The evidence of PWs 1 and 6 are only to the effect that they were told by the incident by the victim as well as by PW10. The evidence of PW10 is to the effect that as soon as PW5 returned home, she was seen crying on and on enquiry the incident was narrated to her by PW5. Therefore, regarding the actual incident, the solitary evidence is that of PW5.

The evidence of PW5 on a reading shows that it contains a ring of truth and there is no reason as to why she should falsely implicate the accused. It appears to be convincing, cogent and creditworthy. Of course, slight inconsistencies and contradictions are brought out in the evidence of PW5. But they are not with regard to the incident as such but regarding other extraneous matters which have no bearing on the issue.

The court below has analysed the evidence in considerable detail and has come to the conclusion that the evidence of PW5 passes scrutiny and there is no justification for not accepting or acting upon the same. On an independent evaluation of the evidence, this Court also finds no reason as to why the evidence of PW5 is rejected.

In the result, the finding of the court below that the offence is made out does not call for any interference. The conviction is therefore necessary to stand. Learned counsel appearing for the appellant pointed out that the sentence imposed is on a very high side and too harsh and is not warranted by the act alleged against the accused. It is, therefore, contended that some leniency be shown in that regard. After having given anxious consideration to the above contention and also considering the nature of the act said to have been committed by the accused and also considering the age of the victim, it is felt that sentence imposed is slightly on the high side and some leniency is justified.

In the result, while confirming the conviction of the accused for the offence u/s 511 of 376 IPC, the sentence imposed by the court below is set aside and instead he is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 20,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months. If the fine amount is realised, the same shall be given to PW5 as compensation. Set off as per law will be allowed.