KRISHNAKUTTY v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 23RD DAY OF JULY 2013/1ST SRAVANA, 1935** ## **CRL.A.No. 913 of 2009 ( )** **-------------------------SC.NO. 197/2007 OF ADDL. SESSIONS COURT (ADHOC)-1, KALPETTA --------------------------------------------** ## **APPELLANT/ACCUSED:** **------------------------------------------** **KRISHNAKUTTY, S/O.KUNHAN, KANISSERIYIL HOUSE, KANNARAPUZHA, KAPPISET, PADICHIRA.** **BY ADV. SRI.S.M.PRASANTH** ## **RESPONDENT/STATE :** **---------------------------------------** **THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 913 of 2009 - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of July, 2013. ## JUDGMENT The accused, who faced prosecution for the offence punishable under Section 376 of Indian Penal Code, was found guilty of the offence punishable under Section 511 of Section 376 of I.P.C. after trial. He was therefore convicted for the said offence and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 511 of Section 376 of I.P.C. The fine amount, if realized, was directed to be paid to the decto complainant. Set off as per law was allowed. 2. P.W.6 is the victim in this case. She is the daughter of P.W.5. The incident is alleged to have taken place on 22.6.2006. At the relevant time, the victim was aged 7. On 27.6.2006, P.W.6 complained of pain while urinating and then P.W.5 enquired the reason. The child, P.W.6 is then said 2 Crl.Appeal.913/2009. to have told her mother what had been done to her by the accused. P.W.5 laid Ext.P5 First Information Statement. That was recorded by P.W.10, who registered crime as per Exrt.P5(a) FIR. He would say that the child was sent for medical examination. P.W.8 examined the child and issued Ext.P6 certificate. P.W.11 took over investigation. He recorded the statements of witnesses, prepared Ext.P4 scene mahazar. He seized M.O.1 produced before him as per Ext.P2 mahazar. After arrest of the accused, he had him subjected to potency test, obtained the necessary certificate, completed investigation and laid charge before court. 3. The court, before which final report was laid took, cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Wayanad under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court (Adhoc) I, Kalpetta for trial and disposal. Crl.Appeal.913/2009. 3 4. The latter court on receipt of records and on appearance of the accused framed charge for the offence under Section 376 of I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 11 and had Exts.P1 to P14 marked. M.O.1 was got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. 5. The court below mainly relied on the evidence of P.Ws. 6 and 8, who issued Ext.P6 wound certificate, and came to the conclusion that there was evidence to show that there was attempt to commit rape and therefore offence under Section 511 of Section 376 of I.P.C. is attracted to the facts of Crl.Appeal.913/2009. **==> picture [7 x 9] intentionally omitted <==** the case and convicted and sentenced him as already mentioned. The said conviction and sentence are assailed in this appeal. 6. Learned counsel appearing for the appellant contended that the court below has not meticulously analysed the evidence of P.W.6, the victim, which would show that there was no evidence to show that there was attempt to commit rape on the victim. The evidence of P.W.8, the doctor, has not been appreciated in the light of Ext.P6 and the doctor has not suggested that there was an attempted penetration. It is significant to notice, according to the learned counsel, that the victim had stated that at the time when the alleged incident is said to have taken place she had no pain at all. If as a matter of fact there was an attempted penetration, surely the child would have felt pain. It was further contended that even going by the evidence of P.Ws.5 and 6 they have only a case that a sticky substance was found in M.O.1 when it was handed over Crl.Appeal.913/2009. 5 to the investigating officer. That article was sent for forensic examination, but the result is against the prosecution. That would also belie the prosecution version. These aspects are omitted to be noticed and that vitiates the conviction and sentence. 7. Learned Public Prosecutor contended that the court below has considered the evidence in considerable detail and came to the conclusion that the offence has been made out. There is no reason to disbelieve P.W.6, the victim, when she gives a version of the incident. The court below has chosen to accept the evidence of P.W.6 and it suffers from no infirmity. Therefore, it is contended that no grounds are made out to interfere with the conviction and sentence. 8. This is a case where the evidence of the incident is actually confined to P.W.6 who was aged 7 years at the relevant time. Her evidence shows that the accused is her neighbour and that the incident happened while she was 6 Crl.Appeal.913/2009. studying in the third standard. She was taken to a shed which belonged to one Pushpa. According to her, after she returned from the school she had gone near the shed to play in the canal nearby. Her friends namely, Bhavana and Unni, were with her. When she left the house to play, her mother had gone outside. After some time, P.W.6 would say that her friends went home and the accused offered her toffee and took her to the shed. She was taken inside the shed and her undergarment was removed. She would then say that the accused inserted his organ between her thighs and ejaculated. She then says that she later developed pain while urinating and later abdominal pain. P.W.6 says that she conveyed the information to her mother two or three days after the incident. Initially, she was afraid to disclose it to her mother and she thought it proper to pass on the information after the father came home. She would say that she had conveyed the information to one Omana chechi. Crl.Appeal.913/2009. 7 9. P.W.5 is the mother of the victim. P.W.5 would say that on the date of the incident when she returned home in the afternoon, she found the victim in a pensive mood. She bathed the child and at that time some sticky substance was found in the undergarment of the victim. On 26.6.2006 P.W.5 would say that P.W.6 asked her when her father would return and she wanted to say something to her in the presence of her father. According to P.W.5, she kept on pestering the child with queries, then the child had stated that the accused had committed the act on her. She then says about having furnished Ext.P5 first information statement. 10. P.W.8 is the doctor, who had examined P.W.6 and who issued Ext.P6 certificate. His evidence shows that an ulcer was noticed in the vagina and he was of the opinion that that may be due to an attempted penetration or due to other causes also. Probably this evidence had weighed with the Crl.Appeal.913/2009. 8 court below to come to the conclusion that there was an attempted rape. 11. As regards the offence, as already noticed, the solitary evidence of P.W.6 alone is available. The girl does not have a case that there was an attempted penetration. A close reading of the evidence of P.W.6 would reveal that at the time when the act is said to have been committed, she felt no pain on her private part. If there was an attempted thrust by the accused, surely and certainly the victim would have suffered pain. It is also significant to notice that P.W.8, the doctor, has stated that the ulcer noticed by him can be due to other reasons also. One cannot omit to notice the evidence of P.W.5 who says that the child complained of pain while urinating only on subsequent days. It is possible that the ulcer can be due to other reasons and not due to the attempted rape by the accused. Therefore, the finding of the court below in that regard cannot be sustained. Crl.Appeal.913/2009. 9 12. However, the evidence of P.W.6 is to the effect that though there was insertion between her thighs and that act by the accused, going by the decision reported in State of Kerala v. Kundumkara Govindan (1968 K.L.J. 485), would constitute penetration and attracts Section 377 of I.P.C. 13. Faced with the above situation, learned counsel appearing for the appellant contended that the essential ingredients to attract Section 376 of I.P.C. as laid down in the said decision are conspicuously absent in the case on hand. Learned counsel went on to point out that the evidence of P.W.6 is only to the effect that the accused had inserted his organ between the thighs of the child and therefore the principle laid down in the said decision cannot have any application. It is also contended that P.W.7, the doctor, who had examined the accused admitted that he had not conducted any scientific test to come to the conclusion 10 Crl.Appeal.913/2009. that the accused is capable of committing sexual act, and therefore there is no evidence to show that the accused is capable to indulge in sexual intercourse. It is also pointed out that FSL report is against the prosecution and that belies the prosecution version. 14. Though the above contentions may look attractive at the first blush, on a close scrutiny, it can be found to be without any basis. P.W.6, the victim has stated that the accused placed his organ between her thighs. One could not expect a vivid description or more precise description from a girl aged 7 years. The testimony of P.W.6 would show that there was ejaculation by the accused. Even assuming that the FSL report, Ext.P14, did not reveal any semen and spermatozoa on M.O.1, that by itself is not a ground to disbelieve P.W.6. There is no suggestion to P.W.6 that she has any significant motive or she was instigated by somebody to falsely implicate the accused. Crl.Appeal.913/2009. 11 15. If the evidence of P.W.6 is to be accepted in that regard, it necessarily show that there was insertion of the organ by the accused between the thighs of the child and if that be so, it amounts to penetration and unnatural offence falling under Section 377 of I.P.C. The fact that P.W.7 has stated that he had not conducted any scientific test while examining the accused cannot help the accused. There was no suggestion to P.W.7 that the accused was incapable of ejaculation and on the basis of the evidence of P.W.7 it was not possible to say that the accused would have committed the sexual act. In the absence of any such suggestion, the plea now raised cannot be accepted. 16. For the above reason, this court is constrained to observe that offence under Section 511 of Section 376 of I.P.C. is not attracted, but offence under Section 377 I.P.C. is made out. Crl.Appeal.913/2009. 12 17. What now remains to be considered is the question of sentence. It has already been found that offence under Section 511 of Section 376 I.P.C. is not made out on the basis of the evidence in the case and instead offence under Section 377 of I.P.C. is clearly attracted. It is seen that the accused was 72 years of age at the relevant time, i.e. about 7 years ago. Learned counsel for the appellant pointed out that he is a sick person and he is unable to move about. 18. Considering the age of the accused and also the fact that seven years have elapsed, it is felt that some leniency can be shown with regard to the sentence. In the result, while setting aside the conviction and sentence for the offence under Section 511 of Section 376 of I.P.C., the accused is found guilty of the offence punishable under Section 377 of I.P.C. and he is sentenced to undergo rigorous imprisonment for one year and to pay fine of 13 Crl.Appeal.913/2009. Rs.25,000/-, in default, to undergo rigorous imprisonment for three months. If the fine amount is realized, the same shall be paid as compensation to the accused. Set off as per law was allowed. P. BHAVADASAN, JUDGE sb.