CYCIL, S/O MARKOSE v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935 CRL.A.No. 2536 of 2006 (B) ------------------------------AGAINST THE JUDGMENT IN SC 33/2003 of ADDL. SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM (CP 118/2002 of J.F.M.C.-II,NEYYATTINKARA IN CRIME NO.263/01 OF VIZHINJAM POLICE STATION) ------ APPELLANT/ACCUSED: ------------------------- CYCIL, S/O MARKOSE, OSAVILA LAKSHAM VEEDU COLONY, HOUSE NO.V.P.XV/11 VIZHINJAM DESOM, VIZHINJAM VILLAGE. BY ADV. SRI.BLAZE K.JOSE RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REP. BY THE CIRCLE INSPECTOR OF POLICE VIZHINJAM POLICE STATION, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P. BHAVADASAN, J. -----------------------------------------------Crl. Appeal No.2536 of 2006 -----------------------------------------------Dated this the 6[th] day of June, 2013 ## **JUDGMENT** Though charged for three offences the court below tried the accused for offences punishable under Section 511 of 376 and 323 IPC. After trial the court found him guilty of the offence punishable under Sections 323 and 354 IPC. He was convicted for the offence and was sentenced to undergo simple imprisonment for three months under Section 323 IPC and rigorous imprisonment for one year under Section 354 IPC. The sentence were directed to run concurrently. Set off as per law was allowed. 2. The incident in this case occurred on 26/11/01. The victim is CW2. She is a minor aged 13 years at the time of the incident. According to the allegations, on the date of the incident at about 3.00 p.m. while the victim was returning home situated near Vizhinjam ferry after taking bath, the Crl. Appeal No.2536 of 2006 -2- accused enticed and threatened the minor CW2 at the road leading from Thennoorkonnam - Kottapuram road to Ozhavila colony and taken her to house No.XV/11 situated in the Vizhinjam Grama Panchayat and made her lie on a mat and removed her clothes forcibly and thereafter making himself nude attempted to commit rape on CW2. When she resisted the accused slapped on her cheek and on hearing her alarm when people gathered, the accused ran away. 3. PW1 is the only sister of CW2 who was not available for examination at the time of trial. On the date of the alleged incident PW1 saw CW2 at about 3.00 p.m going for a bath and she did not return within a reasonable time. At about 5.30 p.m CW2 came home screaming. When PW1 asked what happened, CW2 stated that one person taken her to his house and she has been spoiled. On the same day at 10.00 p.m PW1 took CW2 to the police station and registered Ext.P1 FIS. PW13 the Sub Inspector of Police Crl. Appeal No.2536 of 2006 -3- recorded Ext.P1 furnished by PW1 and registered crime as per Ext.P14 FIR. Ext.P13 body note was also prepared. He also seized MOs.1 to 3 worn by the victim at the relevant time. The victim was sent for medical examination. PW8 is the Doctor who examined the victim. He issued Ext.P8 certificate. PW11 took over the investigation. He prepared Ext.P6 mahazar and seized MO4. He recorded the statement of witnesses and laid charge before the Judicial First Class Magistrate's Court-II, Neyyattinkara. 4. Since the court before whom Final Report was laid took cognizance of the offence found that the offence is exclusively triable by a court of sessions, the said court committed the case to court of sessions. That court made it over to the Additional Sessions Judge, Fast Track III, Thiruvananthapuram for trial and disposal. The latter court after obtaining records and appearance of accused framed charge for the offence punishable under Section 511 of 376 Crl. Appeal No.2536 of 2006 -4- and 323 IPC. To the charge the accused pleaded not guilty and claimed to be tried in the matter. Prosecution had PWs.1 to 13 examined; Exts.P1 to P14 marked; and MOs.1 to 4 identified and marked. After the closure of the prosecution of evidence, the accused was questioned under Section 313 Cr.P.C. He denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. In addition he stated that on the day of the incident, he had come after fishing and while he was sleeping, a girl came for snatching his chain. Then he slapped once or twice on her cheek. People said that this girl is of unsound mind. Then the girl ran away. He denied having committed any other act. 5. Finding that the accused could not be acquitted under Section 232 Cr.P.C, the accused was asked to enter on defence. But the accused did not adduce any evidence. Relying on the evidence of PW1 and also the evidence of PW8 and Ext.P1, the court below came to the conclusion that Crl. Appeal No.2536 of 2006 -5- the prosecution has succeeded in establishing the guilt in the accused and convicted and sentenced him for offence punishable under Sections 323 and 354 IPC. The said conviction and sentence are challenged in this appeal. 6. The learned counsel appearing for the appellant challenges the finding of the court below with reference to the offence punishable under Sections 323 and 354 IPC. It was conceded that offence under Section 323 was made out. Relying on the decisions reported in Vasudevan v. State of Kerala (2006(2) KLT 1019) and Sasidharan v. State of Kerala (2005(3) KLT 185), it is contended that by any stretch of imagination the act committed by the accused would not extend to one constituting outraging the modesty of the victim. If that be so, offence under Section 354 is made out. The learned counsel drew our attention to the evidence of PW1 and also to Ext.P1. It was pointed out that the evidence of PW1 is prone to a considerable amount of exaggeration -6- Crl. Appeal No.2536 of 2006 and embellishment and her evidence to a great extent belied by the testimony of PW8 and Ext.P8 certificate. It is contended that it may not be possible for the court below to arrive at a conclusion solely based on the evidence of PW1 that the offence punishable under section 354 IPC is made out. The learned counsel also drew attention to Ext.P13 body note prepared by PW13 at the time of furnishing Ext.P1 First Information Statement and pointed out that in the body note there is no mention of scratch on the chest of the victim. PW8 who had examined the victim, has in cross examination stated that there was a scratch found on the chest of the victim. Learned counsel pointed out that on facts the court below was not justified in coming to the conclusion that the offence under Section 354 IPC is made out. 7. The learned Public Prosecutor pointed out that it is not as if that the First Information Statement confines a scratch on the chest of the victim. It gives narration of Crl. Appeal No.2536 of 2006 -7- various acts alleged to have been committed by the accused. The mere fact that there is no scratch noticed in Ext.P13 body note by itself is not a ground to reject the evidence furnished by PW1 and the entry contained in Ext.P8. It is pointed out by the learned Public Prosecutor that the history given in Ext.P8 is in consonance with Ext.P1 statement and there is no reason to disbelieve the version made by PW1 which is supported by medical evidence. 8. Unfortunately, in this case the victim CW2 was not available for examination at the relevant time. Her whereabouts were not known. The incident is spoken to by PW1. However, one must remember that her knowledge about the incident is what is spoken to by CW2 to her. It is significant to notice that the information regarding the act committed by the accused was conveyed. Soon after the incident the victim had gone home screaming as a result of the act. It may be possible to say that the evidence of PW1 Crl. Appeal No.2536 of 2006 -8- falls within the ambit of res gestae evidence. 9. Coming to the decisions relied on by the learned counsel for the appellant in both the cases it was only physical assault without sexual intent. On facts the court found that there was no act committed by the accused concerned with the intention of outraging the modesty of the victim in both the cases. It is only a case of hurt intended and caused to the victim and the court on facts held that mere assault or hurt caused to the victim cannot attract offence punishable under Section 354 IPC. 10. In the case on hand Ext.P1 was prepared at 10.00 p.m. and the victim was examined on the very next day of the incident. PW1 has given a vivid description about what is conveyed her by the victim. It cannot be said that the version given in Ext.P1 is exaggerated. While examining in the court PW1 has stated that the victim was raped and there was acts of violence on her body committed by the -9- Crl. Appeal No.2536 of 2006 accused. Even though many of the allegations of PW1 is not supported by the medical evidence there is a definite finding by the Doctor which is mentioned in Ext.P8 about possible sexual assault. 11. The law regarding appreciation of evidence in the case of sexual assault are well settled. But it is significant to note that in cross examination of PW1 it could not be established that she had any intention to falsely implicate the accused by exaggerating the injuries other than the injuries noted in the body note of the victim and also that of in Ext.P8 issued by PW8 where the history of the injury is also stated. These evidence even in the absence of testimony of the victim points to the fact that the allegation made by PW1 and as spoken to by her to a certain extent is correct. 12. It could not be said that the evidence of PW1 has no corroborative support at all. It gets enough strength from Crl. Appeal No.2536 of 2006 -10- the evidence of PW8 coupled with Ext.P8. Under these circumstances, the court below was perfectly justified in coming to a conclusion that the offence punishable under Sections 323 and 354 are made out. The conviction for the said offence has been rightly made out. The incident is of the year 2001. The child is found missing. Considering the facts and circumstances some leniency can be shown with regard to the sentence. 13. After having bestowed attention to various aspects it is felt that some leniency can be shown to the sentence imposed with regard to the offence under Section 354 IPC. Thus while confirming the conviction and sentence for the offence punishable under Section 323 IPC as awarded by the court below and confirming the conviction itself for the offence punishable under Section 354 IPC, the sentence awarded by the court below is set aside and the accused is sentenced to suffer rigorous imprisonment for six months. Crl. Appeal No.2536 of 2006 -11- With the above modification this appeal is disposed of. Sd/P. BHAVADASAN JUDGE kns/- //TRUE COPY// P.A. TO JUDGE