Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935** **CRL.A.No. 1791 of 2005 (F) ---------------------------** **AGAINST THE JUDGMENT IN SC.484/2002 of ADDL. DISTRICT COURT(ADHOC-II, THRISSUR DATED 16-07-2005** **APPELLANT/ACCUSED:** **------------------** **BABU, S/O.VELAYUDHAN, CHULLIPARAMBIL, NEAR ALUNGA TEMPLE THAMPANKADAVU DESOM, THALIKULAM VILLAGE.** **BY ADVS.SRI.RAJIT SRI.RANJIT BABU SRI.PHILJO VARUGHEESE PHILIPS(STATE BRIEF)** ## **RESPONDENT/COMPLAINANT/STATE:** **----------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.R.REMA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OKB.** ## **P.BHAVADASAN, J.** ------------------------------------------ Crl.A. No. 1791 of 2005 -----------------------------------------Dated this the 26[th] day of March, 2013 ## **J U D G M E N T** The accused was prosecuted for the offence punishable under Section 511 of 376. On trial he was found guilty of the offence punishable under Section 354 of IPC and was convicted for the said offence and sentenced to suffer rigorous imprisonment for a period of 3 months. 2. PW1 is the victim. The incident is said to have taken place while the victim was in the house of the accused who is none other than the husband of the sister of the mother of PW1. She had gone to the house of her aunt as directed by her mother and while she was sleeping there on the night of 12.10.1999 along with others. It is alleged that the accused went near her and fondled her breasts and tried to lift her skirt. However DW1, the wife of the accused had woke up and she happened to see the accused near PW1. The accused is said to have retracted. On 20.10.1999, the ## **Crl.A. No.1791/2005** **-2-** mother of PW1 laid Ext.P4 FIS which was recorded by PW4. He registered a crime as per Ext.P5, FIR. Investigation was conducted by PW3 and final report was laid. 3. Cognizance of the offence was taken by the JFCM Chavakkad. Finding that the offences are exclusively triable by the court of sessions, the case was committed to the Sessions Court, Thrissur. The said court made over the case to Additional Sessions Court, Fast Track-II, Adhoc for trial and disposal. The said court on receipt of records and on appearance of the accused framed charges for the offence punishable under Section 511 of 376 to which the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 4 and had Exts. P1 to P5. As there was some dispute regarding the mental capacity of PW1, the court below had her examined by CW1 and obtained Ext.C1 certificate. After the close of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances **Crl.A. No.1791/2005** **-3-** brought out against him and maintained that he is innocent. He claimed that he has been falsely implicated. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He examined his wife as DW1. 4. On an appreciation of the evidence of the case, the trial court came to the conclusion that while the offence under Section 511 of 376 was not made out, on the evidence it is clear that the offence under Section 354 had been committed. Accordingly conviction and sentence for the said offence has been followed. 5. When the appeal was listed for hearing, there was no representation either on behalf of the appellant or his counsel to argue the matter. This court directed the Registry to appoint a State Brief and Adv. Philjo Varughese Philip was appointed as state Brief. Quite unfortunately, the said counsel also is not present today for arguing the case. In the light of the decision reported in **Panduranga v.** **Crl.A. No.1791/2005** **-4-** **State of Karnataka [2013 (1) KLT 874]** this Court has no other option but to go through the records and consider whether the conviction is sustainable or not. 6. PW1 is the victim. Going by the evidence of PW1, even though PW1 is aged at 19 years, she has the intelligence of a child of 11 years of age only. 7. The evidence of PW1 is to the effect that her mother Santha, who left her since the incident, had asked her to go over to her aunt’s house where the DW1 and accused were also staying. PW1 would say that her parents were residing separately. On the date of incident, according to PW1, she was lying beside the daughter of DW1. While the night advanced, PW1 would say that she realized that someone was fondling her breasts and was pulling her churidar. While that time, DW1 got up and lit the kerosene lamp. DW1 happened to see the accused near PW1 and questioned his presence. The accused came forward with an explanation that he had accidentally fallen on PW1. **Crl.A. No.1791/2005** **-5-** 8. PW2 is the doctor who had examined PW1. She could find no visible external injuries on PW1. PW3 is the investigating officer who had laid charge before the court. PW4 is the sub inspector of police who had registered the crime and conducted initial investigation. 9. The accused in his defence had examined DW1, his wife who denied the incident at whole and pointed out that the mother of PW1 is living a wayward life and the relationship between mother of the victim and DW1’s family was not pleasant. The court below, on a consideration of evidence of PW1, found it to be acceptable and rejected the evidence of DW1 as the interested testimony named only to support her husband who is the accused. The court below has also taken note of the mental capacity of the victim and had her examined by CW1 and obtained Ext.C1 certificate. It was in the light of the said fact that the evidence of PW1 was appreciated by the court below. The court below has ## **Crl.A. No.1791/2005** **-6-** noticed that there are slight discrepancies in the evidence of PW1 regarding the actual date of occurrence and that is only natural in the light of the facts and circumstances of the case. 10. On going through the evidence of PW1, there is nothing to show that she had any more reason to falsely implicate the accused. No reason is also suggested in that direction. PW1 with a limited intelligence has given a convincing version regarding the incident. There is no reason to disbelieve her and her evidence passes scrutiny. The evidence of PW1 is found acceptable and the court below is fully justified in coming to the conclusion that the offence under Section 354 is made out. 11. No grounds are made out the interfere with the findings of the court below that the accused is guilty of the offence punishable under Section 354 of IPC. The sentence awarded being reasonable and no grounds are made out to interfere with the sentence also. **-7-** ## **Crl.A. No.1791/2005** The result is that this appeal is without merits and is liable to be dismissed. I do so. **Sd/P.BHAVADASAN, JUDGE** ds //True copy// P.A. To Judge