Saleem C.H. v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935** ## **CRL.A.No. 213 of 2010 ( )** **-------------------------SC.NO. 35/2008 OF SESSIONS COURT, KASARAGOD CP.NO. 117/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II,HOSDURG ----------------------------------------** **APPELLANT/ACCUSED:** **----------------------------------------** **SALEEM.C.H., AGED 30 YEARS, CHIRAMMAL HOUSE, KUNNUMKAI, BEEMANADI VILLAGE, KASARGODE DISTRICT.** **BY ADV. SRI.JAWAHAR JOSE** **RESPONDENT:** **----------------------------** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. MUHAMMED SHAFI.M.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** **--------------------------------------Crl. Appeal No.213 OF 2010 --------------------------------------Dated this the 14[th] day of August, 2013.** ## **J U D G M E N T** The accused who was prosecuted for the offences punishable under Sections 511 of 376 and 354 of Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was found guilty on all counts. He was therefore convicted for the said offences and sentenced to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs.5,000/- with default clause of rigorous imprisonment for one year under Section 511 of 376 IPC and also to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- with default clause of rigorous imprisonment for three months under Section 354 IPC. He was further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- with default clause of **Crl. Appeal No.213/2010** **2** rigorous imprisonment for two months under Section 3(1)(xi) of SC/ST (PA) Act. It was also directed that if the fine amounts were realised, a sum of Rs.4,000/- shall be paid to the victim as compensation. The substantive sentences were directed to run concurrently and set off as per law was allowed. 2. The incident in this case is alleged to have taken place on 01.07.2007. PW1 is the victim and PW3 is her father. On the date of the incident at about 2.45 p.m, PW1, the victim was on her way to her grandmother's house. On the way, she happened to see the accused who asked her where she was going. She replied that she was going to her grandmother's house. She proceeded further and then it is alleged that the accused caught hold of her from behind and thereafter threw her into a channel by the side of the road. He went on top of her and pressed her breasts and had torn her dress. When she cried aloud, the accused got up from her body and then she returned home. In the evening, when her mother returned home after work, she conveyed the information to her mother who conveyed the same to her father. On the next day, Ext.P1 First Information **Crl. Appeal No.213/2010** **3** Statement was laid by PW1 while she was undergoing treatment in the hospital. 3. PW10, the Sub Inspector of Police, recorded Ext.P1 First Information Statement and based on the same, he registered a crime as per Ext.P9 First Information Report. Investigation was taken over by PW11. He prepared Ext.P2 scene mahazar and had PW1 sent for medical examination. She was examined by PWs 4 and 5 who issued Exts.P3 and P4 certificates. He recorded the statement of witnesses and seized the clothes said to have been worn by the victim at the relevant time which are marked as M.O.s 1 and 2. After having the accused arrested, he completed the investigation and laid charge before court. 4. The court before which charge was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kasaragod. The said court, on receipt of records and on appearance of the accused, framed charges for the offences under Sections 511 of 376 and 354 of Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled **Crl. Appeal No.213/2010** **4** Tribes (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 11 examined and Exts.P1 to P12 marked. M.O.s 1 and 2 were got identified and marked. 5. 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. He also stated that he had planted rubber trees in his properties and the goats reared by PW1 used to graze in his property and there was frequent quarrels with regard to grazing of goats and he would say that he has been falsely implicated. 6. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence. 7. On appreciation of the evidence in the case, the court below found the evidence of PW1 to be convincing enough and came to the conclusion that the offences had been made out. The conviction and sentence as already mentioned followed. The **Crl. Appeal No.213/2010** **5** said conviction and sentence are assailed in this appeal. 8. Learned counsel appearing for the appellant contended that the evidence regarding the incident stands confined to PW1. A close reading of the evidence of PW1 taken along with the medical evidence would clearly show that the version given by PW1 cannot be believed as such. If, as a matter of fact, PW1 is to be believed, then necessarily she would have suffered external injuries which would have been noticed either by PW4 or PW5 and that would have reflected in Ext.P3 or Ext.P4 documents. The absence of injuries belies the version given by PW1. It is also pointed out by the learned counsel that even going by the version given by PW1, she had cried aloud while she was being attacked and as there were no houses nearby, no one might have heard her cries. Learned counsel pointed out that even going by the evidence of PW1, one Tony who is familiar to the victim was standing about 10-20 meters away and if the claim of PW1 to the effect that she cried aloud is true, the said person would have heard her cries. 9. Learned counsel for the appellant further pointed out **Crl. Appeal No.213/2010** **6** that after the incident while PW1 was returning home crying, Tony happened to see her and he asked her what had happened. She replied that nothing had happened to her and then went home. It is pointed out that it is surprising to note that Tony who could have given considerable strength to the evidence of PW1 was not even questioned by the investigating officer. It is further pointed out that a reading of the evidence of PW1 would show that she is prone to embellishments and developments and it will be hazardous to enter into a finding of guilt based on her evidence. At any rate, according to the learned counsel, offence under Section 511 of 376 IPC cannot be attracted. There is no case for the prosecution that there was an attempt to remove the undergarments of the victim or that the accused had removed his clothes even though he laid on top of her. Learned counsel pointed out that there is a development in this regard at the time of evidence which is conspicuously absent in Ext.P1. That, according to the learned counsel, is deliberate so as to bring the offence within the ambit of Section 511 of 376 IPC. 10. According to the learned counsel for the appellant, **Crl. Appeal No.213/2010** **7** offence under Section 3(1)(xi) of SC/ST (PA) Act also cannot be attracted because there is no allegation and evidence either that the accused had knowledge that the victim belonged to SC/ST or that the accused had committed the offence with racial prejudice. So it is contended that the conviction and sentence passed by the court below cannot stand. 11. Learned Public Prosecutor, on the other hand, relying on the evidence of PW1, contended that the claims of the appellant cannot be accepted. In such cases, one has to rely heavily on the evidence of the prosecutrix. Unless it is shown that she had an oblique motive to file a case against the accused or that it is inherently improbable, it may not be proper for this Court to look for corroboration. No such infirmity could be pointed out in the evidence of PW1 and it is in consensus with Ext.P1. The absence of injuries, according to the learned Public Prosecutor, by itself is not a ground to suspect the evidence of PW1. It is not necessary that in the case of dragging or pushing into a canal, injuries must result. It is also pointed out that going by the evidence of PW1, she had not narrated the incident to Tony and therefore the non **Crl. Appeal No.213/2010** **8** examination of Tony is of no consequence. There is no reason to believe that the victim has falsely implicated the accused. Moreover, it is pointed out that victim and the accused are neighbours. 12. Learned Public Prosecutor also pointed out that the acts of tearing the dress materials of PW1 and lying on top of her amount to attempt to commit rape and the finding of the court below that offence under Section 511 of 376 IPC is attracted is fully justified. In short, the contention is that there are no grounds made out to interfere with the conviction and sentence passed by the court below. 13. As is usual case, here too, as regards the incident, we have the solitary evidence of the victim namely, PW1. Going by the evidence of PW1, she stays with her parents and younger brother. On the date of the incident, at the relevant time, she was going to her grandmother's house and she happened to come across the accused on the way. PW1 says that the accused asked her where she was going and she replied that she was going to her grandmother's house. She then went ahead and **Crl. Appeal No.213/2010** **9** quite unexpectedly she says that she was caught from behind by the accused. When she tried to wriggle out from him, she was pushed into a canal by the side of the road. She would then say that he had torn her churidar and also lay on top of her. She also says at the time of evidence that he squeezed her breasts and kissed her. She let out cries which made the accused withdrew from his attempt and then he escaped from the place. She would say that on the way, she had occasion to meet Tony. She says that she did not inform him about the incident. She returned home crying and in the evening when her mother arrived, she conveyed the information to her mother. 14. PW3, the father of the victim has only hearsay knowledge in the sense that his information regarding the incident is what he gathered from the mother of the victim who is not examined. 15. The question that arises for consideration is whether the evidence of PW1 is convincing enough and whether, assuming all what PW1 says is true, the offences as alleged are made out. 16. The main attack on the evidence of PW1 is that if, as a **Crl. Appeal No.213/2010** **10** matter of fact, she was dragged even for a short distance along the road and was thrown into a canal which had approximately one feet width and one metre depth and also that she was pressed against the ground and the accused lay on top of her, she should have suffered injuries. It is pointed out that it is inconceivable that she would not have suffered external injuries. It is true that PWs 4 and 5, the doctors who had occasion to examine the victim and their certificates indicate that they could found no external injuries on the body of the victim. The scene mahazar, Ext.P2 is not of much help in this regard. None of the materials found at the place of occurrence is seen mentioned in the scene mahazar. As rightly pointed out by the learned Public Prosecutor, it is not necessary that in such cases, the victim should suffer external injuries. It depends on various factors. The mere fact that PW1 had not suffered any external injuries by itself is not a ground to disbelieve her especially one must remember that she had clothes on her body. It has come out in her evidence that her clothes were torn. The seizure mahazar also is not of much help in this regard. Whatever that be, the **Crl. Appeal No.213/2010** **11** mere fact that no external injuries were sustained by PW1 cannot be a ground to doubt her version. 17. There may be some substance in the complaint raised by the appellant that the prosecution had deliberately omitted to examine Tony who, even according to PW1, was standing 10-20 meters away from the place of incident and who happened to see her soon after the incident. According to the learned counsel for the appellant, had he been examined, he could have given some credit to the evidence of PW1 and one could have safely act upon her evidence. 18. PW1 has stated that on being questioned by Tony, she did not reveal the incident to him and she went home directly. Probable, there was not much material which he could supply but the mere fact that Tony had not been examined is not a ground to doubt the version of PW1. 19. Coming to the evidence of PW1, of course, there are certain embellishments and developments from her narration of incident as contained in Ext.P1. In Ext.P1, she says about tearing of churidar top and bottom but while at the time of evidence she **Crl. Appeal No.213/2010** **12** was much beyond that even says that there was an attempt to remove her undergarments. This may be a deliberate development. But the fact remains that there is no reason to disbelieve the earlier portion of the version of the incident given by PW1 especially when it is not shown that there was any reason for her to falsely implicate the accused. There is no reason to disbelieve her when she says that after having thrown into the canal, the accused lay on top of her and that her breasts were squeezed and she was kissed. 20. What then remains to be considered is what are the offences committed by the accused. On the very face of it, there can be no doubt that offence under Section 354 IPC is attracted. The next question arises is whether the court below was justified in coming to the conclusion that offence under Section 511 of 376 IPC is attracted. There are four stages in commission of offence i.e. motive, preparation, attempt and actual commission of offence. Attempt means a process by which the accused goes on to perform an act but which gets aborted due to the intervention of unexpected event. In the case on hand, even **Crl. Appeal No.213/2010** **13** accepting the evidence of PW1 in toto, all that the accused did was that he laid on top of her and torn her churidar top and bottom. Of course, PW1 has also stated that he squeezed her breasts and kissed her. She was crying through out the incident and the accused withdrew from his act. There is no case for PW1 that there was an attempt to remove her undergarments in Ext.P1 even though at the time of evidence she would say so. That, as already noticed, can be treated only as an embellishment. PW1 has no case that the accused had attempted to remove his clothes or attempted to touch her private parts. It could not be said that the acts now complained of would constitute an attempt to commit rape. In the decision in _**Koppula Venkat Rao** vs._ _**State of A.P.**_ ((2004) 3 Supreme Court Cases 602), it was held as follows: “11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. **Crl. Appeal No.213/2010** **14** Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect”. 21. Applying the principles laid down in the above decision, it cannot be said that even assuming all what PW1 says is true, offence of attempt to commit rape is made out in the case on hand. It is difficult to concur with the said finding of the court below. Equally unsustainable is the finding regarding the offence under Section 3(1)(xi) of the SC/ST (PA) Act. There is no allegation much less in evidence to show that the victim belonged to SC/ST or that the accused has committed the act with racial prejudice. Either of this is essential to attract the offence under the SC/ST (PA) Act as is held in the decision in _**Stephen Joseph** vs._ _**State of Kerala**_ (2013 (2) KLT 58). Following the principles laid down in the above decision, it is difficult to concur with the finding of the court below that the offence under Section 3(1)(xi) **Crl. Appeal No.213/2010** **15** of SC/ST (PA) Act is made out. In the result, this appeal is partly allowed. The conviction and sentence for the offence under Section 354 IPC stands confirmed and the conviction and sentence for the offences under Section 511 of 376 IPC and Section 3(1)(xi) of SC/ST (PA) Act are set aside. The appellant shall stand acquitted of the offences under Section 511 of 376 IPC and Section 3(1)(xi) of SC/ST (PA) Act. If the fine amounts imposed for the offences under Sections 511 of 376 IPC and 3(1)(xi) of SC/ST (PA) Act have already been paid, the same shall be refunded. If the fine amount imposed for the offence under Section 354 IPC is realised, the same shall be paid to PW1 as compensation. Set off as per law will be allowed. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.