Joseph @ Ardar Joseph and Babu @ Gopalakrishnan v. State of Kerala

CRL.A.No.440 OF 2004(B) 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942** ## **CRL.A.No.440 OF 2004(B)** **AGAINST THE JUDGMENT IN SC 42/2001 DATED 12-03-2004 OF III ADDITIONAL SESSIONS JUDGE(ADHOC), FAST TRACK COURT NO.I, THRISSUR** ## **APPELLANTS/ACCUSED NO.1 AND 2:** **1 JOSEPH @ ARDAR JOSEPH, AGED 42 YEARS, COMPANY OWNER, WILLIAMS, TIRUPUR MUNICIPALITY, COIMBATORE DT., TAMIL NADU. 2 BABU @ GOPALAKRISHNAN, AGED 53 YEARS COOLIE, DOOR NO.41, 2ND STREET, TAMIL NADU.** **BY ADVOCATE SHAHNA KARTHIKEYAN- STATE BRIEF** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 C.I. OF POLICE CHALAKUDY, THRISSUR, KERALA. R1-2 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.440 OF 2004(B) 2 ## **JUDGMENT** ## **Dated this the 3rd day of July 2020** The appellants are accused Nos.1 and 2 in S.C.No.42/2001 on the file of the III Additional Sessions Judge (Adhoc) Fast Track Court I, Thrissur. The above case is chargesheeted by the Circle Inspector of Police, Chalakkudy against the appellants, and another alleging the offences punishable under Sections 364 and 307 r/w 34 IPC. 2. After filing this appeal, the counsel who filed the above appeal has relinquished the vakalath, and hence this court issued notice to the appellants. Even though several postings were given, the police were not able to serve notice to the appellants. Therefore this court on 3.10.2019 passed the following order: “The appellants are absconding after executing bail bonds to the satisfaction of the trial court. The trial court is directed to take appropriate steps against the appellants.” 3. Thereafter, the III Additional Sessions Judge, Thrissur reported that non bailable warrant was issued against the appellants. It is also reported that the proceedings under Section 446 Cr.P.C were also initiated against the sureties. The III Additional District and Sessions Judge reported that strict CRL.A.No.440 OF 2004(B) 3 direction had been given to the Station House Officer, Athirappilly (Vettilappara) Police Station, to serve nonbailable warrants and notices. Even then, the police were not able to locate the appellants. On 22.11.2019, this court passed the following order: "The report submitted by III Additional Sessions Judge shows that necessary steps have been taken for securing the appearance of the appellants and M.Cs have been registered against the sureties as well. Registry will issue notice to the Circle Inspector, Chalakkudy to pursue the matter and take steps for production of appellants and report their whereabouts, in case they were not available.” 4. Even then, the police were not able to locate the appellants. Hence, this court issued a show cause notice to the officer concerned. They filed a report submitting that the arrest of the first accused is not possible because when the officers of the Police Station visited the 1[st] accused, the 1[st] accused was seen completely bedridden. The whereabouts of the 2[nd] respondent were also not known till that date. The relevant portion of the report is extracted hereunder: “CPO 6434 Abhilash and CPO 6967 Dhanesh of Athirappilly Police Station were entrusted for executing the warrant. On their enquiry conducted on 27.10.2019 it is revealed that A1 Joseph @ Arthur Joseph is now residing along with his son Melvin at his residence at Door NO.2, Mullai Nagar, Karumarampalayam, Oothukulli Road, Thirupur, Tamil Nadu. On reaching his residence it was found that A1 Joseph is in a bedridden state after he was subjected to stroke. He had lost his memory and speech. It was found that feeding was done through a tube. He is CRL.A.No.440 OF 2004(B) 4 under the treatment of Amrita Institute of Medical Sciences, Ernakulam. He was not in state that he could be arrested and produced before the Honourable Court. A report regarding the same was submitted before the Honourable Additional District and Sessions Court III, Thrissur on 30.10.2019. Enquiries conducted regarding A2 Babu at his address at Door No.41, Stails Road, II Street, Odakkad, Thirupur revealed that presently a paint shop is functioning in the said room. The owner of the building Nachimuthu Gounder and his son Selvaraj said that previously lot of people stayed there as tenants and they doesn't know about a tenant named Babu. Enquiries revealed that after the incident Babu who is a Malayalee a native of Kollam district left the place. The only person who knows about A2 Babu is A1 Joseph and he is not in a state to speak. No useful information regarding A2 Babu was obtained so far. A report regarding the same has been submitted before the Honourable Additional District and Sessions Court III, Thrissur on 30.10.2019. Arrest warrants against A1 and A2 and to sureties 1) Nandanan, S/o.Divakara Menon, Kunnath House, Marathakkara, Thrissur 2) Sunilan, S/o.Malathy Amma, Kombath House, Marathakkara were ordered by the Honourable Additional District and Sessions Court III, Thrissur on 23.12.2019. A1 Joseph was in the same bedridden state as before. No clue was obtained regarding the whereabouts of A2 Babu. A report has been submitted before the Honourable court on 10.02.2020. The sureties in this case approached the Honourable High Court of Kerala and filed an appeal (Crl.A No.21 of 2020) against the order of the Honourable Additional District and Sessions Court III, Thrissur. The order of the lower court was set aside by the Honourable High Court in Crl.A No.21 of 2020 dated 09.01.2020.” ## 5. In such circumstances, this court passed an order on ## 19.6.2020. The relevant portion of the order is extracted hereunder: “3. The Inspector of Police, Athirappilly Police Station filed a statement informing that on enquiry, it is CRL.A.No.440 OF 2004(B) 5 found that accused No.1 is now residing with his son Melvin at his residence at Door No.2, Mullai Nagar, Karumarampalayam, Oothukulli Road, Thirupur, Tamil Nadu. The officer stated in his report that the first accused had lost his memory and speech. It was found that he is feeding through a tube. The officer also stated that, on enquiry about the 2[nd] accused, his whereabouts are not found out even now. 4. This is an appeal filed by the 1[st] and 2[nd] accused in Sessions Case No.42/2001 on the file of the III Additional Sessions Judge, (Adhoc), Fast Track Court I, Thrissur. Since this is an appeal against conviction, this court cannot dispose of this appeal without hearing the accused. The status of the accused is submitted by the Inspector of Police Athirappilly as per statement dated 18.6.2020. In the light of the above facts, the Registry is directed to appoint an experienced counsel from the panel of State Brief in this case. The Registry will give legible copy of the depositions and other documents to the counsel by tomorrow. Specific instruction should be given to the counsel that the case will be taken up for final hearing on 29.6.2020. Registry will issue a copy of this order also to the lawyer”. 6. Accordingly, Advocate Shahna Karthikeyan was appointed as State Brief. Today, I heard Advocate Shahna Karthikeyan on behalf of the appellants and the learned Pubic Prosecutor. 7. The prosecution case is that the first accused had impregnated charge witness No.1, and when she was seven months pregnant, accused Nos.1 to 3 took her from Tiruppur in Tamil Nadu and brought her to Athirappilly in Kerala in a Maruti Car owned by the 1[st] accused bearing registration No.TN-39D/3000. It is the further case of the prosecution that CRL.A.No.440 OF 2004(B) 6 on 16.7.1997 at 3.30 A.M., the accused administrated some poison to CW1 by force and threw her in a pit on the side of Malakkapara-Chalakkudy Public Road intending to cause her death and thereby accused Nos.1 to 3 committed the offence under Sections 364 and 307 r/w 34 IPC. 8. On appearance of the accused, the trial court framed charge under Sections 364 and 307 r/w 34 IPC. They pleaded not guilty. 9. To substantiate the case, the prosecution examined PW1 to PW14. Exts.P1 to P19 are marked on the side of the prosecution. DW1 to DW4 are the defence witnesses. Exts.D1 to D3 are marked as exhibits on the side of the defence. MO1 to MO5 are the material objects. 10. After going through the evidence and the documents, the trial court found that the accused Nos.1 and 2 committed the offence under Sections 364 and 307 r/w 34 of IPC. But the 3[rd] accused found not guilty and he was acquitted. The 1[st] and 2[nd] accused were directed to undergo rigorous imprisonment for four years each for the offence under Sections 364 and 307 r/w 34 IPC. Aggrieved by the conviction and sentence, this Criminal Appeal is filed by the 1[st] and 2[nd] accused. The point for consideration in this appeal is whether CRL.A.No.440 OF 2004(B) 7 the accused committed the offences under Sections 364 and 307 IPC. 11. Altogether 14 witnesses were examined in this case. PW1 is the victim in this case. PW1 is a native of Tiruppur in Tamil Nadu. She deposed that she was the servant in the house of 1[st] accused from the age of 8 to 13 years. Thereafter, she left the house of the 1[st] accused. The 1[st] accused is a married man with three children. He is the owner of Soniya Tex Company at Thirupur in Tamil Nadu and about 70 employees are working under him. According to PW1, after she left the house of 1[st] accused at the age of 13 years and she again went to the house of the 1[st] accused when she was 16 years of age. According to PW1 she had been a servant in the house of 1[st] accused for one year and during this period, she became pregnant through the 1[st] accused. PW1 had deposed that her eldest child Aneesh, who is aged six years when she was examined before the court, is the son of the 1[st] accused. PW1 has deposed that she resided at the house of the 1[st] accused up to her six months of pregnancy. PW1 had disclosed her pregnancy to the 1[st] accused. Thereafter, 1[st] accused asked PW1 to reach near the Soniya Tex Company on the night of 15[th] July, 1997. PW1 has deposed that the 1[st] accused had brought CRL.A.No.440 OF 2004(B) 8 his Maruti Car, and it was driven by the 2[nd] accused. She has also deposed that the 3[rd] accused is the person who was found in the Maruti Car in the company of 1[st] and 2[nd] accused. PW1 has deposed that she was promised by the 1[st] accused to provide a house, and it is for that purpose she was brought to Athirappilly. Because of that offer, she accompanied accused Nos.1 to 3 in that Maruti Car from Thiruppur, Tamil Nadu. According to PW1, she was sitting at the back seat of the car along with the 1[st] accused. Second accused was driving the car. PW1 deposed that while she was in the car she was given something to drink stating that it is a tonic. When PW1 did not like the taste of the drink, she was forced to drink by the 1[st] accused. According to PW1 by force the 1[st] accused had poured the liquid into her mouth. Thereafter she had vomited inside the car. According to PW1 when they reached Athirappilly, she was pushed out of the car by accused Nos.1 to 3. According to PW1, she was really lifted by them and a dumped in a pit. Eventhough PW1 cried for help, nobody had approached her. It was about 3.30 A.M. on 16.7.1997. After some time she came out of the pit, and she had seen one bus and autorickshaw parked there. When she approached the bus, the occupants of the bus denied shelter and she spent the CRL.A.No.440 OF 2004(B) 9 night in an autorickshaw parked there. Thereafter she went to the nearby tea shop owner who was examined as PW3. PW2 is the conductor of the bus who denied shelter to the victim. She had narrated the incident to PW2 and PW3. She has also deposed that accused Nos.1 to 3 had attempted to kill her since she was pregnant through the 1[st] accused. PW3 asked her to approach the police and PW3 accompanied PW1 to the police station. PW1 has given the first information statement before the police. 12. PW2 is Vijayan who was the conductor of the bus bearing registration NO.KER 774. His bus is plying in the route Athirappilly-Thrissur and the bus used to halt at Athirappilly. PW2 deposed that he had seen PW1 in the early morning of 16.7.1997. According to PW2 he had seen her at about 3.30 A.M. while she was sleeping inside the bus. PW2 has deposed that PW1 had knocked on the bus and then he woke up. Thereafter PW1 has narrated the entire incident to PW2. PW2 had asked PW1 to seek shelter at the nearby autorickshaw. 13. PW3 is Parameswaran, who is the owner of the hotel Ambika. It is the definite case of PW1 that he had approached PW3 in the morning of 16.7.1997. PW3 has supported the case of PW1. According to PW3, PW1 had reached his hotel at 6 CRL.A.No.440 OF 2004(B) 10 A.M. on 16.7.1997 PW1 requested for some hot water. Thereafter PW1 narrated the incident to PW3. PW3 deposed that PW1 was pregnant and her dress was stained with some liquid. PW1 has also disclosed her name as Manjula before PW3. PW3 has also deposed the incident narrated to him by PW1. Thereafter PW3 sent PW1 along with CW2 to the hospital. PW4 is Devassykutty. He is a fisherman. He has been examined to prove that in the morning, he had seen a Maruti Car with bearing registration No.3000. But he cannot identify the person who was travelling in that car. According to him, he had seen Maruti Car at about 3.45 A.M. PW5 and PW6 are mahazar witnesses. PW7 is the doctor, who examined PW1 and issued Ext.P4 wound certificate. PW8 examined to prove that PW1 was pregnant. PW9 is the doctor examined to prove Ext.P6 potency certificate of the 1[st] accused. PW10 is the Assistant Motor Vehicle Inspector. PW11 is the Village Officer. PW12 is the owner of the shop from where the 2[nd] accused alleged to have purchased the Malanchite which is administrated to PW1 by the 1[st] accused. PW13 and PW14 are the investigating officers. 14. On the side of the defence, four witnesses were examined. One among them is the wife of the 1[st] accused. CRL.A.No.440 OF 2004(B) 11 15. After the cross examination of PW1 by the defence, the learned counsel filed Crl.M.P No.2099/2003 to recall and examine PW1 again. That application was dismissed by the trial court. Thereafter, the 1[st] accused preferred a revision before this Court as Crl.R.P No.3333/2003 and that was also dismissed by this court. Subsequently, at the defence stage, the accused filed C.M.P No.2290/2003 with a prayer to recall PW1 for further cross examination. That petition was also dismissed by the trial court but that order was also challenged before this court by filing Crl.M.C No.126/2004. The above order of the trial court was set aside by this court as per order dated 30.1.2004 in Crl.M.C.No.126/2004. This court directed the trial court to recall PW1 for further cross examination on the defence side. 16. Accordingly, PW1 was further examined before the trial court on 16.2.2004. When PW1 was examined at the defence stage, she attempted to deny what she stated when she was examined before the trial court on 24.11.2003. She deposed that she was residing at Vettilappara from June 1996 to August 2000. According to her, her husband is Raju and had not gone to Thiruppur in July 1997 and that she was not working as a servant at the house of the 1[st] accused. She has CRL.A.No.440 OF 2004(B) 12 also deposed that she had no contact with the 1[st] accused. The prosecution declared her as hostile, and she was thoroughly cross examined. Then PW1 admitted that there was no threat from the police to give evidence before the court on the earlier occasion. She also admitted that she had informed the history of injury to the concerned doctor as mentioned in Ext.P4 wound certificate. Ext.P4 is the wound certificate of PW1 dated 16.7.1997. It was prepared on 16.7.1997 at 11 A.M., which means immediately after the alleged incident. The version to the doctor by PW1 is that there is force from the accused. The doctor also found a green colour on the lips and tongue of PW1. It is admitted by PW1 during the time of further cross examination that the police came to the hospital on getting the intimation. The case set up by PW1 at that stage was that she married one Raju on 14.1.1996 and she was residing with him. In the light of the wound certificate, this part of the evidence of PW1 cannot be accepted. It is clear that PW1 gives further evidence on 16.2.2004 because of some adjustments with the 1[st] accused. In other words, it can be presumed that by that time, the 1[st] accused purchased PW1. Even then, the court cannot shut its eye to the commission of a criminal offence. The evidence of PW1 cannot be rejected in CRL.A.No.440 OF 2004(B) 13 toto. A pregnant lady was taken from Thirupur, Tamil Nadu, in a Maruti Car by the 1[st] accused. Some poisonous articles were administrated on her, and after that, she was dumped at Athirappilly, Kerala, in a pit in the early morning of 16.7.1997. The evidence of PW1 is corroborated with the evidence of PW2 to PW4. Their testimony, coupled with the medical evidence, the criminal offence is made out. The evidence of PW1 is corroborated with Ext.P4 wound certificate in which it is noted by the doctor that there was a greenish colour on the mouth and tongue of PW1 when he examined her on 16.7.1997, at 11 A.M. In Ext.P19 certificate of chemical analysis, it is seen that item No.5 contains malachite green. According to the chemical examiner, malachite green is an organical dye used in dying fabric and microscopic staining. It is true that the chemical examiner found that no poison was detected from item Nos.1 to 4 forwarded to him. Therefore, the oral evidence of PW1 to PW4 coupled with Ext.P5 wound certificate and Ext.P19 certificate of chemical analysis, the prosecution proved that the first accused took PW1 in a Maruti car from Tirupur, Tamil Nadu to Athirappilly in Kerala. It is also proved that the first accused administered malachite green to PW1. Even though PW1 was declared hostile by the prosecution, subsequently, the CRL.A.No.440 OF 2004(B) 14 ## above facts are proved beyond doubt. 17. It is true that four witnesses were examined by the defence. They were examined to prove that the mother of the victim girl was an employee in the factory of the first accused. She had stolen an amount of Rs.15,000/- from the Company and she was dismissed from service. The first accused has got a case that the second accused is a security staff of the Company and it is the second accused who had detected the theft of Rs.15,000/by Rugmini, who is the mother of PW1. It is the case of the accused that some amount due to Rugmini was not paid because of the commission of the theft. Because of this enmity, it is the case of the defence that at the instance of the mother of PW1, this false case is registered. According to the accused, PW1 married Raju on 14.1.1996, and she was residing with Raju. To prove this, some of the witnesses were examined by the defence. DW1 is none other than charge witness No.2. He has given evidence to the effect that PW1 has been residing with her husband Raju in a rented house at Vettilappara. But, DW1 admitted that on the date of the incident, he had seen PW1 at the tea shop of PW3. It is also admitted by him that as directed by PW3, he had taken PW1 to the hospital. This actually probablise the case of the prosecution. DW2 claims to be an employee of CRL.A.No.440 OF 2004(B) 15 the factory of the first accused. She had given evidence to the effect that Rugmini is the mother of PW1, who was working in the piece work Section, and the second accused was a security staff of the Company. DW2 has given evidence about the theft of Rs.15,000/- by Rugmini. The trial court considered the evidence of DW1 and DW2 in the light of the evidence of DW4, who is none other than the wife of the first accused. DW3 had been examined to prove that PW1 never worked as a maid servant at the house of the first accused. He had also given evidence to the effect that A2 is the security staff of A1. It is admitted by DW3 that he is having close friendship with the first accused. The trial court found that, that is the reason why he had obliged to give evidence in favour of the first accused. The trial court rejected the evidence of DW3. I think there is nothing wrong in rejecting the evidence of DW3 because he is a close associate of the first accused. 18. DW4 is the wife of the first accused. She deposed that PW1 never resided in her house as a servant. The trial court, after appreciating the evidence, properly rejected the evidence of DW4 who is none other than the wife of first accused. The evidence of DW1 to DW4 are contradictory and are highly artificial. Therefore, the evidence of DW1 to DW4 was rightly CRL.A.No.440 OF 2004(B) 16 rejected by the trial court. 19. Hence according to me, as stated earlier, the prosecution in this case established that PW1 was impregnated by the first accused and the first accused took her from Tirupur to Athirappilly in a Maruti car belongs to him and he dumped PW1 in a pit in the early morning on 16.7.1997. The evidence of PW1 is corroborated by the evidence of PW2 to PW4 and Exts.P5 and P19. There is nothing to disbelieve the evidence of these witnesses and the documents. 20. Now the question is, what is the offence committed by the 2[nd] accused. Even though PW1 gave evidence that the third accused was present throughout in the car, the trial court acquitted the third accused. The second accused was only driving the car. There is no specific overt act attributed to the second accused. Of course, PW1 deposed that the second accused tried to strangulate PW1. But, there is no evidence to corroborate the same. The medical report is also silent about any corresponding injury. Therefore, the second accused also stands in the same position as the third accused. 21. The trial court acquitted the third accused because there are no serious overt acts attributed to the third accused. In such circumstances, the second accused is also entitled the same CRL.A.No.440 OF 2004(B) 17 benefit. Therefore, I think the second accused has not committed any offence under Sections 364 and 307 IPC. He was only driving the Maruti car owned by the first accused. He may be an obedient driver. There is no evidence that there was any meeting of mind between the first accused and the second accused. If the third accused has not committed any offence, simply because the second accused was driving the vehicle, he cannot be convicted under Sections 364 and 307 IPC. Therefore, I give the benefit of the doubt to the second accused also. 22. As far as the first accused is concerned, there is clinching evidence to show that he committed the offences under Sections 364 and 307 IPC. He took PW1 from Tirupur and administered a poisonous substance, which is known as malachite green. After administering the same in the mouth of PW1 forcefully, the first accused dumped PW1 in a pit at Athirappilly, Kerala, which is far away from Tirupur, which is situated in Tamil Nadu. The trial court convicted the accused under Section 307 IPC based on the following findings. “23. Now it is necessary to consider the question whether the offence under Section 307 is attracted. It is true that Ext.P4 wound certificate CRL.A.No.440 OF 2004(B) 18 discloses only minor injuries. It has been argued by the learned defence counsel that as per Ext.P19 the substance alleged to have been administered to PW1 is Malachite and that it is not a poisonous substance. Malachite is really a hazardous and harmful substance. Inhalation and ingestion of, or skin penetration by these substances is harmful to one's health. Non-recurring or lengthy exposure to these substances may result in irreversible damage. (Fluka chemica-Biochemica, of Fluka Chemic A.G.Switzerland). To justify the conviction under Section 307 IPC which is not essential that bodily injury capable of causing death should have been inflicted. What the court has to seek is to whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances as mentioned in Section 307 IPC. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. Therefore, it is not correct to acquit the accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt. State of Maharashtra v. Balram Bama Patil (AIR 1983 SC 385). In this case as deposed by PW12 there is a belief among the common people that Chanipodi if consumed can leads to ones death. By bringing PW1 to Tirupur to Athirappilly and by dumping her in a pit at the odd hour especially CRL.A.No.440 OF 2004(B) 19 when she was seven months pregnant, A1 had the only intention to cause her death. I find that there is sufficient evidence to prove that he had the intention contemplated under Section 300 IPC. In this connection, it is pertinent to note that at the time of the incident, she was very weak and fragile. So I find that the prosecution has succeeded in proving the offence under Section 307 IPC also. There is sufficient evidence to prove that A1 and A2 travelled in the Maruti car of A1 from Tirupur to Athirappilly and they dumped PW1 in the pit and returned in the same car. So there is no difficulty to record a finding that it was done in furtherance of the common intention of A1 and A2. So I find A1 and A2 have committed the offence under Sections 364 and 307 IPC.” 23. As I found earlier, the second accused is not guilty of the offence. But, I see no reason to interfere with the specific finding by the trial court that the 1[st] accused committed the offence under Section 307 IPC. 24. Similarly the first accused committed the offence under Section 364 IPC also. There is strong evidence to show that PW1 was abducted from Tamil Nadu and she was disposed of at Athirappally in Kerala putting her in danger of being murdered. The same amounts to an offence under Section 364 IPC. CRL.A.No.440 OF 2004(B) 20 25. Hence in the result, the first accused has committed the offence under Sections 307 and 364 IPC. The second accused is found not guilty, and he acquitted for the offences charged against him. 26. The next question is regarding the sentence. The statement of the Inspector of Police, Athirappally dated 18.6.2020 is extracted in the earlier portion of this judgment. It is stated that the first accused is now residing along with his son Melvin at his residence at Door No.II, Mullai Nagar, Karumaram Palayam, Oothukuli Road Tirupur, Tamil Nadu. The Police Officers who visited his house, found that the first accused is in a bed ridden state and he was subjected to stroke. They reported that the first accused had lost his memory and speech. It was found that he was feeding through tube. It is also stated that he is under the treatment of Amritha Institute of Medical Sciences, Ernakulam. Medical records of the 1[st] accused issued from Amrita Institute of Medical Sciences and Research Centre also produced. 27. In such circumstances, this court cannot impose a sentence of imprisonment on the first accused in the peculiar facts and circumstances of this case. But, it is a case where he impregnated a poor girl who was working as a servant in the house of the first accused, and the girl was taken from Tirupur, CRL.A.No.440 OF 2004(B) 21 Tamil Nadu to Athirappilly, Kerala and dumped in a pit, that also at about 3 Am. At that time, PW1 was pregnant for seven months. PW1 deposed that the father of his elder son is the first accused. The first accused is admittedly a person who is the owner of a factory in which about 70 employees are working. The first accused was in custody for the period from 20.7.1997 to 2.8.1997 as per the entry on the last page of the impugned judgment. Considering the medical condition of the 1st accused, the sentence can be reduced to the period already undergone by the first accused with a direction to pay fine and compensation to prosecution witness No.1. 28. Hence this appeal is allowed in part with the following directions: (i) The conviction of the first appellant/first accused under Sections 364 and 307 IPC is confirmed. (ii) The first appellant/first accused is sentenced to undergo rigorous imprisonment for a period of ten days each under Sections 364 and 307 IPC. The sentence shall run concurrently. (iii) The first appellant/first accused is entitled set off under Section 428 Cr.P.C. for his CRL.A.No.440 OF 2004(B) 22 pre-trial detention from 20.7.1997 to 2.8.1997. (iv) The first appellant/first accused is directed to pay a fine of Rs.50,000/- each under Sections 307 and 364 IPC. (v) If the fine is recovered, the entire amount of Rs.1,00,000/- should be paid to prosecution witness No.1, who is the victim in this case. (vi) If the fine amount is not paid, the same should be realised from the assets of the first accused in accordance with the provisions of Section 421 and other provisions of Cr.P.C relating to levy of fine. (vii) The conviction and sentence imposed on the second appellant/second accused as per the judgment dated 12.3.2004 in Sessions Case No.42/2001 by the III Additional Sessions Judge (Adhoc), Fast Track Court-I, Thrissur are set aside. He is set at liberty. Bail bond, if any, executed by him is cancelled. Sd/- **P.V.KUNHIKRISHNAN JUDGE** ## **ab/csl**