Shybi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 27TH DAY OF FEBRUARY 2013/8TH PHALGUNA 1934** **CRL.A.No. 335 of 2006 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC.176/2005 of ADDL. SESSIONS COURT, (ADHOC-I),KOTTAYAM** **---------------** ## **APPELLANT/ACCUSED::** **-------------------** **SHYBI, S/O.KUNJUTTY, PUTHUPARAMBILAYA THALIKULLUMKAL VEEDU KOOROPPADA VILLAGE.** **BY ADV. SRI.R.REJI** **RESPONDENT/STATE & COMPLAINANT::** **--------------------------------** **STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING S I OF POLICE, PAMPADY.** **BY PUBLIC PROSECUTOR SMT.R.REMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **P.BHAVADASAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No.335 OF 2006** **- - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of February, 2013** ## **J U D G M E N T** The accused was prosecuted for the offences punishable under Sections 341, 323, 354 and 511 of 376 of IPC. On trial he was found guilty of the offences punishable under Sections 341, 323 and 354 of IPC. He was found not guilty of the offence punishable under Section 511 of 376 and the accused was acquitted for the said offence. For the offences for which he was found guilty; he was convicted for rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- in default of payment of which he had to undergo rigorous imprisonment for one month for the offence punishable under Section 323 of IPC, he was sentenced to undergo 18 months rigorous imprisonment and a fine of Rs. 1,000/- in default of payment of which he had to suffer rigorous imprisonment for three months under Section 354 ## **Crl.A.No.335/2006** **-2-** of IPC, he was also sentenced to pay a fine of Rs. 500/- in default of payment of which he had to undergo simple imprisonment for 15 days for the offence punishable under Section 341 of IPC. 2. The incident which gave rise to the case is alleged to have occurred on 26.04.2004. The allegation is that while PW1, the victim was returning home after going to the house of a person to take injection for a lady, the accused intercepted her and tried to commit rape on her. When she tried to raise voice, her mouth was gagged and she was beaten. PW1 laid Ext.P1, First Information Statement before the police. The same was recorded and crime was registered. PW6 took over the investigation. It is alleged that while PW1 was struggling, PW2 had come to her rescue and he was also beaten. PWs 1 and 2 were taken to the hospital. They were examined by PW5, the doctor who issued Exts.P3 and P4 wound certificates. PW6, who had registered crime as per Ext.P5, FIR, took over investigation and prepared Ext.P6, mahazar. He had seized MO 1, lungi. ## **Crl.A.No.335/2006** **-3-** He filed Ext.P7, report which seems to have Section 376 incorporated. Accordingly, he completed investigation and laid charge before the court. 3. The JFCM Court-I, Kottayam, before whom the final report was laid, took cognizance of the offence. Finding that the offences are triable by a Court of Sessions, the said court committed the case to Sessions Court, Kottayam under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court (Adhoc-I), Kottayam for trial and disposal. 4. On receipt of records and on appearance of the accused, the charge was laid punishable under Sections 341, 323, 354 and 511 of 376 of IPC. To the charge, the accused pleaded not guilty and claimed to be tried. 5. The prosecution had PWs 1 to 6 examined and Exts. P1 to P8 marked. Mo 1 got identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought out in evidence and ## **Crl.A.No.335/2006** **-4-** maintained that he is innocent. He stated that while he was returning home after having visited one of his friends, PW1 was seen coming from the opposite side. When he looked at her PW1 asked him why he was staring at her. He denied having done so. She is alleged to have called him dog to which he replied. He would say that she beat him with her slippers. When he caught hold of her hand, she fell down. By that time, PW2 reached the place and there was some scuffle between PW2 and the accused. When the people gathered there, the accused left the place. 6. Finding that the accused could not be acquitted under Section 232 of Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On an appreciation of the materials before it, the court below came to a conclusion that the offence under Section 511 of 376 was not made out and accused was acquitted for the said offence. He was found guilty of the offence already made mention of and the conviction and sentence followed. The conviction and sentence are assailed in this appeal. ## **Crl.A.No.335/2006** **-5-** 7. The learned counsel appearing for the appellant pointed out that the court below has not appreciated the evidence in proper perspective and has not adverted to the contradictions and inconsistencies in the evidence of PWs 1, 2 and 4 which would show the prosecution case is improbable and unbelievable. At any rate, according to the learned counsel, the incident did not originate as alleged by the prosecution and the evidence of PW5, the doctor would show that the version given by PW1 cannot be accepted. It was pointed out that there is considerable improvement and embellishment by PW1 at the time of evidence which made her evidence vulnerable and the evidence given by PW2 would show that it cannot be relied on. Therefore, it is contended that the conviction and sentence are unsustainable in law. 8. The learned Public Prosecutor on the other hand pointed out that even going by the admitted case of defence and the incident occurred on that particular day and at the place as alleged by the prosecution, there is nothing to show ## **Crl.A.No.335/2006** **-6-** that the accused was beaten by PW1 using her slippers. On the other hand PWs 1 and 2 were taken to the hospital and they were examined by PW5, the doctor who issued Exts. P3 and P4 wound certificates which would show the injuries suffered by them. The learned Public Prosecutor pointed out that the FIS had come into effect shortly after the incident which guaranteed that, that version is true. The learned Public Prosecutor pointed out that there are certain inconsistencies and improvements in the evidence of PW1 but that is only natural and that cannot affect the prosecution case. The learned Public Prosecutor pointed out that the court below has for cogent reasons found the evidence of PWs 1, 2 and 4 to be acceptable and there is no reason to take a different view. It is also pointed out that no grounds are made out to interfere with the conviction and sentence of the court below. 9. The evidence in the case consist of the testimony of PWs 1, 2 and 4. As rightly pointed out by the learned Public Prosecutor that it is an admit case of the defence that ## **Crl.A.No.335/2006** **-7-** the place and time an incident had occurred. Only thing is that the version given by the defence is different from the prosecution version. 10. PW1 would say that while she was returning home after going to a particular house to give an injection to a patient there, she was intercepted by the accused. She would say that the accused first beat her on her stomach and pulled her and threw her down to the road. When she cried aloud, he closed her mouth. Then, thereafter when she wriggled, he pulled her saree. She would also say that her saree and skirt were lowered to her knee and hooks of her blouse were pulled off exposing her breast. She then says that he sat on her body and removed his lungi. When hearing her cry, PW2 had come to the spot and rescued her he was assaulted by the accused. 11. PW2 is a part time sweeper attached to a hospital. On the date of incident, he says that he was standing near a bunk shop owned by PW4 and was smoking, then he heard a cry of a lady. He too would say that he had seen the ## **Crl.A.No.335/2006** **-8-** accused sitting on the body of the victim and he pulled him away and he was also beaten by the accused. 12. PW4 is the person who is running the bunk shop near to which PW2 is claimed to have been standing. He would say that he had seen the incident. But he would say that he had not seen the accused sitting on the body of the victim. However, he deposes that he had seen PW2 running to the rescue of PW1. He too would say that he heard the cries of the victim. 13. PW1 would in her evidence say that as a result of fall on the ground, she suffered injuries on the back of her neck. It must be noticed here that at the time of given First Information Statement, the complaint of PW1 is only to the effect that her saree was pulled by the accused. She had no such case at that point of time that her saree and skirt were brought down till her knee. She also did not have a case that the accused had sat on her body. 14. The evidence of PW2 to the effect that he had seen the accused sitting on the body of the victim. He goes ## **Crl.A.No.335/2006** **-9-** on to say that at the time when he saw PW1, she was only having her undergarments. 15. There are certain embellishments and developments in the case by PWs 1 and 2. The claim of the PW1 that her saree and skirt were pulled down upto her knee seems to be a subsequent development. Her only claim at the time of giving Ext.P1 is that her saree was attempted to be pulled away by the accused. 16. At this point of time, it is relevant to note the medical evidence in detail. PW5, the doctor who had examined PWs 1 and 2 and had issued Exts. P3 and P4 wound certificates. PW5 in his evidence says that the injuries noticed on PW1 were: 1. Tendons present on both side of the face. 2. Abrasion present on the upper lip. 3. tendons present back of neck. 4. Tendons present over both knee joint. He also says about having examined PW2 and injuries were noticed as: ## **Crl.A.No.335/2006** **-10-** 1) Tendons present on the back of the neck and 2) Tendons present on both side of chest. 17. In cross examination, PW5 says that the injuries noticed by him could not have sustained on a fall on the ground, but sustained only if the victim fell down on the hard object. The lower court has noticed that the accused has feeble physique where as PW1 is tall and well build. She is much more stronger than the accused. 18. The learned counsel appearing for the appellant pointed out the inconsistencies and contradictions regarding the evidence of PWs 1 and 2. The facts remains that an incident had occurred. There may some doubt regarding the origin of the incident. From the evidence of PWs 1 and 2, it is clear that accused had assaulted both of them and also had tried to pulled the saree of the victim, PW1. Even though, the accused claimed that he was slapped with slippers, there is nothing to show that what he claims is true. The injuries found on the body of PW1 by PW5 does not help the defence much. It is true that PW1 has stated that she ## **Crl.A.No.335/2006** **-11-** did suffer an injury on the back of her neck. In fact, it is not true. But there are injuries on her face and that is in tune with her evidence and when she tried to cry aloud, her mouth was closed and pushed down. 19. It is significant to notice that no oblique motive is alleged as against PW2, whose evidence is found to be acceptable by the court below. He has stated that he was smoking near the bunk shop of PW4 when he heard the cry of a lady and he reached the spot. It is also to be noticed that in the incident he also had suffered injuries. His presence therefore cannot be disputed. 20. The fact that the FIS had come into effect almost immediately after the incident and also that the victims were taken to the hospital soon thereafter strengthen the prosecution case. The version given by the defence is not supported by any evidence except the fact that the appearance of the accused is seen such that he appears to be feeble. As already noticed, claim of the accused that he was slapped with the footwear of PW1 is not supported by ## **Crl.A.No.335/2006** **-12-** medical evidence. Further he ran away from the place, which according to him was due to the fact that people had gathered there and he feared that he will be beaten. What ever that be, the court below seems to be fully justified in coming to the conclusion that the offences under Sections 341, 323, 354 have been made out. 21. The learned counsel appearing for the appellant relied on a decision reported in **Hanuman v. State of Haryana [1977 SC 1614]** wherein it was held that on the facts of the case before that there are some omissions, embellishments and developments made by the prosecutrix at the time of evidence and considering the facts of the case, only offence punishable under Section 352 is made out. 22. First of all, in that case there was only the solitary evidence of prosecutrix unlike in the present case where the evidence of prosecutrix gets support from the evidence of PW2 and also to a certain extent, from that of PW4. However, one cannot omit to note that as submitted by the ## **Crl.A.No.335/2006** **-13-** learned counsel for the appellant, there are considerable embellishments in the evidence of PWs 1 and 2. 23. The court below seems to be fully justified in come into the conclusion that the offences under sections 341, 323 and 354 are made out. 24. The learned counsel appearing for the appellant then contended that the sentences imposed on the appellant under Section 354 is highly excessive. 25. There seems some merit in the above submission. Considering the nature of the allegation, the manner in which the incident had occurred and also the probability of the victim picking up quarrel with the accused as could be seen from the evidence of PW4, it is felt that the sentence imposed seems to be very harsh and needs to be interfered with. In the result, while confirming the conviction and sentence passed by the court below for the offences punishable under Sections 341, 323 of IPC and also confirming the conviction for the offence under Section 354 ## **Crl.A.No.335/2006** **-14-** of IPC, the sentence awarded is set aside. He is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 2,000/- in default of payment of which he shall undergo simple imprisonment for a further period of one month for the offence punishable under Section 354 of IPC. Set off as per law will be allowed. Substantive sentences shall run concurrently. **sd/P.BHAVADASAN, JUDGE** ds **//TRUE COPY//** **P.A. TO JUDGE**