Saji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935** ## **CRL.A.No. 5 of 2008 ( )** **-----------------------SC.NO. 407/2004 OF ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM CP.NO. 45/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, ATTINGAL CRIME NO.3/2002 OF KADINAMKULAM POLICE STATION** **-----------------------------------------** **APPELLANT/ACCUSED:** **------------------------------------------** **SAJI, S/O.SUNDARAN, PUTHUVAL VEEDU, NO:K.P. 16/13, KADINAMKULAM DESOM, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.** **RESPONDENT/COMPLAINANT:** **------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR AT HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - Crl.Appeal. No. 5 of 2008 - - - - - - - - - - - - - - - - - Dated this the 1[st] day of August, 2013. ## JUDGMENT The accused, who was prosecuted for the offence punishable under Section 511 of Section 376 of Indian Penal Code, was found guilty of the same and was therefore convicted and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.5000/- with a default sentence of one year. If the fine amount was realized, it was directed to be paid as compensation to P.W.2 and set off as per law was allowed. 2. The incident which gave rise to the case occurred on 7.1.2002. On that day, P.W.2, a girl aged 5 ½ years, was on her way back from school to her house. The allegation is that the accused caught the child and took her to a nearby place and committed rape on her. When the child returned home crying, her mother asked for the reason and she disclosed the incident. The further allegation is that the mother and the 2 Crl.Appeal.5/2008. child went to the place where the incident had occurred and they happened to see the accused sitting there. On being asked about the incident, he denied the same and thereafter P.W.2, the victim, and P.W.1, the mother went to the police station and laid Ext.P1 first information statement, which was recorded by the Station House Officer, who registered crime as per Ext.P1(b) FIR. Investigation was done by P.Ws.11, 12 and 15. The scene mahazar was prepared and the child was sent for medical examination. She was examined by one Dr.Minimol who was not available for examination and P.W.14 was examined who was conversant with the signature of the doctor and Ext.P13 is the medical certificate issued by the doctor who examined the child. The clothes worn by the accused were seized and sent for chemical examination. After completing the investigation, charge was laid before the court. Crl.Appeal.5/2008. 3 3. The court before which charge was laid took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, committed the case to Sessions Court, Thiruvananthapuram. The said court made over the case to Additional District and Sessions Court (Fast Tract - I), Thiruvananthapuram for trial and disposal. 4. The latter court, on receipt of records and on appearance of the accused, framed charge for the offence punishable under Section 511 of Section 376 of I.P.C., to which the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 15 and had Exts.P1 to P13 marked. M.Os. 1 and 2 were 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. On finding that he could not be acquitted under Section 232 Cr.P.C., he Crl.Appeal.5/2008. 4 was asked to enter on his defence. The accused chose to adduce no evidence. 5. The court below, on an appreciation of the evidence in the case, came to the conclusion that the offence has been established and conviction and sentence as already mentioned followed. 6. Learned counsel appearing for the appellant assailed the finding of the court below on several grounds. Learned counsel pointed out that the court below was not justified in coming to the conclusion that there was an attempt to commit rape since the evidence does not support the said finding. It was pointed out that the medical certificate does not show any injury on the private part of the victim, and that would belie the allegation of attempt to rape. He also relies on Ext.P7, the chemical analysis report, which would show that there was no semen and spermatozoa found on the articles sent for examination. It is further contended that the 5 Crl.Appeal.5/2008. evidence of P.Ws.1 and 2 are inconsistent with regard to the incident and the court could not have relied on the evidence of P.Ws.1 and 2 to find the accused guilty. Learned counsel pointed out that it is true that Ext.P6 FSL report shows presence of semen and spermatozoa in the clothes sent for examination. But according to the learned counsel, no DNA test was conducted to establish that it was that of the accused. In the absence of any DNA test, the court could not have come to the conclusion that semen and spermatozoa was that of the accused. Relying on the decision reported in Mohammed Hussain v. State (Govt. of NCT of Delhi) ((2012) 2 SCC 584), learned counsel went on to contend that the accused was deprived of an opportunity to cross examine P.W.2 and even though a petition for recalling the witness was filed, the same was dismissed on unjustifiable reasons. In the absence of an opportunity to cross examine the witness, the evidence of that witness could not have been relied on. Learned counsel 6 Crl.Appeal.5/2008. therefore contended that even assuming all what the prosecution says is true and is taken as established, at worst the offence under Section 354 of I.P.C. alone is attracted. 7. Learned Public Prosecutor contended that it is not as if there is no evidence of attempted penetration. The medical certificate Ext.P13 would indicate that there was an attempt to penetrate. It was also pointed out that the evidence of P.W.2 is very clear to the effect that there was an attempt to commit sexual assault. Learned Public Prosecutor pointed out that it was not as if that no opportunity was available to the defence to cross examine P.W.2. A reading of the judgment of the lower court would reveal, according to the learned Public Prosecutor, the circumstances under which the witness was not subjected to cross-examination. The obligation of the prosecution, according to the learned Public Prosecutor, is only to make the witness available for cross-examination and if that opportunity is not availed of, Crl.Appeal.5/2008. 7 the defence cannot now turn round and say that the evidence given in chief-examination cannot be relied on, Learned Public Prosecutor further pointed out that presence of semen and spermatozoa in the clothes sent for FSL examination establishes that the victim was subjected to sexual intercourse. Learned Public Prosecutor relied on the decision reported in Madan Lal v. State of Jammu and Kashmir (AIR 1998 SC 386) wherein, according to the learned Public Prosecutor, the distinction between preparation and attempt has been laid. It is contended that no grounds are made out to interfere with the findings of the court below. 8. The evidence regarding the incident in this case is remained confined to P.Ws.1 and 2 among them P.W.1 is the mother and P.W.2 is the victim. Of course, the evidence regarding the actual incident is confined to P.W.2, the victim. P.W.2 would say that on the date she was coming back home from school. She was called by the accused saying that he 8 Crl.Appeal.5/2008. wanted to say something to the child. She went near him. P.W.2 would say that she was taken inside a shop and the act was committed by the accused. She would also say that after the incident she was given 2 rupees and asked not to reveal the incident to anybody. She reached home crying. When her mother asked her what had transpired, she had informed about the incident. The child would say that she was feeling pain in her private part. She then says that the mother took her to the place of incident where they happened to see the accused, who according to P.W.2 ran away when P.W.1 asked him what he had done. 9. The evidence of P.W.1 is to the effect that on the date of the incident the child came home crying and when she asked about the reason, the incident was conveyed to her. She would say that she along with the child went to the place and the accused was present there and when she asked him what he had done to the child, then the accused replied that he had Crl.Appeal.5/2008. 9 done nothing and he left the place. 10. It is very vehemently contended on the basis of the decision reported in Mohd. Hussain v. State (Govt. of NCT Delhi) ((2012) 2 SCC 584) that since P.W.2 was not made available for cross-examination, her evidence cannot be relied on. The defence has lost an opportunity to test the veracity of the evidence and unless the witness is subjected to cross examination, it could not be said that the answers given in chief examination are creditworthy and acceptable. 11. There can be no doubt regarding the said principle. But the question is whether that principle can be applied to the case on hand. It is seen that on the date on which the child was present, cross-examination was not conducted. On the next day child was brought and at the time when the case was taken up, the child was found missing. Later the child was traced and put in the box. Then the submission made from the side of the defence was that Crl.Appeal.5/2008. 10 'no-cross'. The court has recorded the same in the deposition. Thereafter, after the entire evidence was over, much later, a petition was filed by the learned counsel for the defence seeking to have P.W.2 re-called. Certain things have transpired which need not be mentioned here as they are not very pleasant. The court below, for cogent and convincing reasons, dismissed the application for recalling P.W.2. After having gone through the records, this court finds that there is no reason to interfere with the order of the court below. 12. This is not a case where the witness was not available for cross examination. This is a case where the witness was available and the opportunity was not utilized. In such circumstances, the defence cannot be heard to contend that the evidence furnished in chief examination cannot be accepted. Crl.Appeal.5/2008. 11 13. Of course, P.W.2 would say at the time of evidence that she had pain in her private part. But P.W.1 does not say that she had complained of pain. Equally so is the finding of Dr. Minimole, who had examined the victim. But Ext.P13 made mention of pain in the vaginal region. 14. Ext.P6, the FSL report, discloses that semen and spermatozoa were detected on the clothes sent for examination. Those were that of the victim. It is contended on behalf of the defence that since no DNA test was conducted, it could not be said that semen and spermatozoa are that of the accused. Here, one should remember that seizure of the clothes was on the next day of the incident and there was no time for manipulation of the article. The evidence of P.W.1 is also to the effect that when the child came home crying and narrated, when she examined the clothes, they were found wet. Merely because no DNA test was conducted, it cannot be a ground to doubt the version given Crl.Appeal.5/2008. 12 by P.W.2. What is significant is that there was no suggestion to P.Ws.1 and 2 as to why they should falsely implicate the accused. The inconsistency pointed out in the evidence of P.Ws.1 and 2 regarding the leaving of the accused from the place of occurrence cannot have much bearing at all as that has no relevance to the core issue at all. 15. P.W.2 has stated that her undergarments were removed and there was an attempt to thrust the private organ of the accused into her private part. The court below has come to the conclusion that there is evidence of attempt to rape and therefore Section 511 of Section 376 of I.P.C. is attracted. 16. It cannot be disputed that there was an incident involving the accused and the victim, namely, P.W.2. The question is whether the act complained of amounts to rape or remained only in the region of preparation. It is useful to refer to the decision reported in Madan Lal v. State of J & K. Crl.Appeal.5/2008. 13 (AIR 1998 SC 386) relied on by the learned Public Prosecutor wherein it was held as follows: “11. In this context it is appropriate to notice an argument advanced by Mr. Jain, learned Senior Counsel appearing for the appellant to the effect that in the absence of any penetration into the vagina the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix, and therefore, it would at the most amount to an offence of indecent assault under Section 354, I.P.C. We are unable to accept this contention. Since, if the evidence of the prosecutrix is to be believed, and we do believe the same, the offence committed cannot but be held to be one of attempt to commit rape.The prosecutrix's evidence clearly establishes the fact that the accused spread the blanket on the floor and forcibly laid her on the blanket and thereupon the said accused forcibly opened the cord of the salwar of the prosecutrix Crl.Appeal.5/2008. 14 and kept it apart and then forcibly ride upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and had kept his penis qua her uterus and was doing something and then the accused was trying to penetrate his penis but it did not penetrate and had gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping. 12.The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354, I.P.C. and not an attempt to commit rape under Section 376 read with 511, I.P.C. In the facts and circumstances of the present Crl.Appeal.5/2008. 15 case the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511, I.P.C.” 17. The evidence of P.W.2, even though it may not be sufficient to show that there was rape, it is sufficient to show that the private organ came into contract with the private organ of the victim. It is to some extent justify the entry in Ext.P13 which is already taken note of. It is therefore clear that the act of the accused had gone beyond the said preparation and Ext.P6 is sufficient to show that there was an attempted rape. 18. There is no reason to disbelieve P.W.2 when she gives a narration of the incident. Her evidence gets support to a certain extent from the medical report and FSL report. Here also, there is nothing to show that she had any particular reason to falsely implicate the accused. When 16 Crl.Appeal.5/2008. questioned under Section 313 Cr.P.C., the accused has also no case that there was any reason for P.Ws.1 and 2 to falsely implicate him. 19. For the above reasons, this court is unable to find any infirmity in the finding of the court below that there was an attempt to commit rape and offence under Section 511 of Section 376 of I.P.C. has been committed. That finding is only to be confirmed. 20. Coming to the sentence, the court below has imposed a sentence of rigorous imprisonment for three years and fine of Rs.5000/-. Considering the age of the victim and the manner in which the offence was committed and also the consequence thereof, the sentence seems to be reasonable, just and proper. No interference is called for with the sentence. Crl.Appeal.5/2008. 17 This appeal is without merits and it is only to be dismissed. I do so confirming the conviction and sentence passed by the trial court. P. BHAVADASAN, JUDGE sb.