Thomas alias Sasi 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. 2202 of 2004 ( )** **-----------------------------------SC.416/2002 of ADDITIONAL SESSIONS COURT (ADHOC - I), ERNAKULAM . CRIME NO.117/2000 OF KUTTAMPUZHA POLICE STATION.** **...........** **APPELLANT(S)/ACCUSED:** **----------------------------------------** **THOMAS ALIAS SASI S/O.GEORGE, PUTHURAN PUTHENPURA, VADATTUPARA KUTTAMPUZHA, KOTHAMANGALAM.** **BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM** **RESPONDENT(S)/COMPLAINANT: ----------------------------------------------------** **STATE OF KERALA REP. BY DEPUTY SUPERINTENDENT OF POLICE MUVATTUPUZHA.** **BY PUBLIC PROSECUTORSRI.ROY THOMAS** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27-02-2013, ALONG WITH CRA. 1046/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** **P.BHAVADASAN, J. --------------------------------------Crl. Appeal Nos.2202 OF 2004 & 1046 OF 2005** **--------------------------------------Dated this the 27[th] day of February, 2013.** ## **J U D G M E N T** Crl.Appeal No.2202/2004 is filed by the accused who stands convicted for the offence punishable under Section 354 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of two years. Crl.Appeal No.1046/2005 is filed by the State. 2. It is pointed out by the learned Public Prosecutor that the court below has erred in finding the accused guilty of the offence under Section 354 IPC whereas in fact the offence that is actually made out is punishable under Section 511 of 376 IPC. 3. PW2 is the daughter of PW1. The accused is their neighbour. The daughter of the accused is the classmate of PW2. On 05.12.2000, PW1, the mother of the child namely, PW2 asked her to go to the shop and get a match box. The child refused and said she was frightened. PW1 asked for the reason. Then the **Crl. Appeal Nos.2202/04 & 1046/05** **2** child is said to have disclosed that the accused who stays on the way used to abuse her sexually. The mother then laid Ext.P1 First Information Statement. Ext.P1 was recorded by PW9 who registered a crime as per Ext.P7 First Information Report. Initially the crime was registered for the offences punishable under Section 376 read with Section 511 IPC and Section 3(1) and (XI) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act. PW10 took over the investigation. In the meanwhile, the victim was examined by PW5 who issued Ext.P3 certificate. PW10 prepared the scene mahazar and seized the clothes handed over by PW1. He recorded the statement of the witnesses. He arrested the accused and had him subjected to potency test. PW7 who issued Ext.P5 certificate. His successor in office, PW11 completed the investigation and laid charge before the court. In the meanwhile, a report was filed whereby the offence was altered. 4. The court below before whom final report was filed took cognizance of the offence. On finding that, from the materials available, the offence under Scheduled Caste and Scheduled **Crl. Appeal Nos.2202/04 & 1046/05** **3** Tribes Prevention of Atrocities Act cannot stand cognizable, final report was confined to offence under Section 511 of 376 IPC. Learned Magistrate on finding that the offence is one exclusively triable by the Court of Sessions, committed the case to Sessions Court, Ernakulam. The said court made over the case to Additional Sessions Court (Adhoc)-I, Ernakulam. The latter court, on receipt of the records and on appearance of the accused, framed charge for the offence punishable under Section 511 of 376. 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 P8 marked. M.O.s I to III were also 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 stated that he has been falsely implicated due to political rivalry. 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 **Crl. Appeal Nos.2202/04 & 1046/05** **4** evidence. 6. On an appreciation of the evidence in the case, the trial court came to the conclusion that, from the materials available, an offence under Section 354 IPC alone is made out and therefore, the accused was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. 7. On the other hand, the State would say that from the evidence available especially in view of Ext.P8 it is evident that the offence under Section 511 of 376 is made out and the court below has erred in holding that the offence under Section 354 IPC alone is committed by the accused. 8. Learned counsel appearing for the appellant in Crl.Appeal No.2202/2004 pointed out that the court below has placed considerable reliance on the evidence of PW1, the mother of the victim who has only hearsay knowledge about the incident. The evidence regarding the actual incident is confined to PW2, the victim. Learned counsel invited the attention of this Court to the judgment of the court below where the lower court formed an **Crl. Appeal Nos.2202/04 & 1046/05** **5** opinion that the possibility of tutoring PW2 cannot be ruled out. If that be so, the available evidence is very thin and it cannot be said that the entire evidence of PW2 falls within the realm of acceptance. According to the learned counsel, there is want of evidence to come to the conclusion that the appellant has committed any offencive act on the victim. At any rate, according to the learned counsel, the sentence imposed is too harsh. 9. Learned Public Prosecutor, on the other hand, pointed out that the court below was very lenient in taking a view that only an offence under Section 354 IPC is made out whereas actually, from the materials available, it is evident that the offence under Section 511 of 376 IPC is made out. Learned Public Prosecutor also pointed out that the evidence of PW1, the mother of the child cannot be brushed aside nor does it need to be rejected. In support of their proposition, learned Public Prosecutor relied on the decision in _**Rameshwar, S/o.Kalyan Singh** vs._ _**The State of Rajasthan**_ (AIR (39) 1952 Supreme Court 54). **Crl. Appeal Nos.2202/04 & 1046/05** **6** 10. Learned Public Prosecutor further pointed out that, even assuming that the evidence of PW1 cannot be taken as such, the evidence of PW2 is sufficient to come to a conclusion that the offence has been made out. There was no material, according to the learned Public Prosecutor, for the lower court to observe that PW2 might have been tutored. Learned Public Prosecutor pointed out that unless it is shown that there are serious infirmities in the evidence, it will not be appropriate to look upon such evidence with suspicion and seek corroboration from elsewhere. The evidence of PW2 stands corroborated to a certain extent by the evidence of PW1 and it is sufficient to show that an offence under Section 511 of 376 is made out. Therefore, learned Public Prosecutor contended that the conviction may be altered to one under Section 511 of 376 and the sentence may be enhanced. 11. It is no doubt that the incident is an unfortunate one. The victim was only 4 ½ years old at the relevant time. The evidence, strictly speaking, is confined to PW2. PW1 is the mother. The occasion when PW2 revealed the agonising **Crl. Appeal Nos.2202/04 & 1046/05** **7** experience that she had with the accused occurred on 05.12.2012 when PW1 asked her to go and get a match box from the nearby shop. The child responded immediately saying that she is afraid to go to the shop since she has to pass the house of the accused who used to sexually abuse her. 12. PW1 in her evidence does give the description about what PW2 told her about the incident. How far the evidence of PW1 as regards the acts committed by the accused can be accepted is open to debate. At any rate, the spontaneous reaction of the child and the reason given by the child as spoken to by PW1 are admissible in evidence. Here, one has to notice the decision relied on by the learned Public Prosecutor in _**Rameshwar, S/o.Kalyan Singh** vs._ _**The State of Rajasthan**_ (AIR (39) 1952 Supreme Court 54). Paragraph 30 of the said judgment reads as follows: “The next question is whether the mother can be regarded as an 'independent' witness. So far as this case is concerned, I have no doubt on that score. It may be that all mothers may not be sufficiently independent to fulfil the requirements of the corroboration rule but there is no legal bar to **Crl. Appeal Nos.2202/04 & 1046/05** **8** exclude them from its operation merely on the ground of their relationship. Independent merely means independent of source which are likely to be tainted. In the absence of enmity against the accused there is no reason why she should implicate him falsely. It is true the accused suggested that they were on bad terms but that has not been believed by anyone”. 13. Relying on the above decision, it is pointed out that there is no reason to discard the evidence of PW1 in this case since the facts of the case are on a par with the facts of the case relied on by the learned Public Prosecutor. A reading of the said decision shows that, on facts, the victim in that case conveyed the information of assault within a short span of time. That made the Apex Court in accepting the evidence of the mother of the victim. 14. After having carefully gone through the evidence of PW2, this Court is unable to understand what had persuaded the court below to imagine that there might be a possibility of tutoring the child. The child speaks about the incident and in fact speaks about only one of the incidents and she is not able to remember two other incidents. There is nothing artificial or **Crl. Appeal Nos.2202/04 & 1046/05** **9** suspicious in her evidence and she seems to have given evidence spontaneously and naturally. 15. There is nothing to show that either PW1 or PW2 had any reason to falsely implicate the accused. One should remember here that the accused is the father of the classmate of the victim and going by the evidence of PW1, she in no less terms says that the accused is a good friend and she never had occasion to have any complaint against him. Under these circumstances, it will be highly improper to view their evidence with suspicion. If the evidence of PW2 is acceptable, then the incident is proved. 16. What now remains to be considered is what is the offence made out. The lower court has come to the conclusion that an offence under Section 354 IPC alone is made out, on the basis of the evidence adduced in the case. Learned Public Prosecutor points out that the presence of semen in the frock and the presence of blood in the undergarment of the girl as could be seen from the chemical analysis report namely, Ext.P8 would clearly show that there was an attempt of rape on the child. The **Crl. Appeal Nos.2202/04 & 1046/05** **10** question is whether the above items of evidence are sufficient to come to a conclusion that it is an attempted rape. Here, one cannot omit to note the evidence of PW5 and Ext.P3. PW5 is the doctor who had examined the victim. He had examined the victim on 05.12.2000 i.e. on the date on which First Information Statement was laid. He deposed that the history narrated in Ext.P3 has narrated by the victim herself. He would also say that he could not find any signs of attempted penetration or penetration as such. Ext.P3 is the certificate issued by him. Therein also it is stated that there is no evidence of any bodily injury or genital injuries of penetration. 17. Of course, the presence of semen in the frock and blood in the undergarment of the child may indicate an offencive act. But whether that by itself is sufficient to come to a conclusion that there is an attempt to rape is to be considered. 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. If one goes by the evidence in the case, the act was performed by the accused in one of the rooms of his house and it **Crl. Appeal Nos.2202/04 & 1046/05** **11** is not possible to understand what could have intervened which prevented him from actually committing rape. Of course, PW2 has stated that the accused had rubbed his organ against her organ. But there is nothing to suggest that there was any attempted penetration or penetration as such. One has to remember the difference between attempted rape and rape. In the case on hand, there is no case for PW2 that she experienced pain in genitals and there is no medical evidence to show that there is any sign to show attempted penetration. Merely because semen has been detected on the frock of the child and blood has been detected on the undergarment of the child, it may be difficult to come to a conclusion that there was an attempt of rape. There are several possibilities as to how semen happened to come on the frock so also blood stains on the undergarments. If blood group was detected and it is found that the blood group found on the undergarment is of the same group of the accused, the situation would be entirely different. 18. Whatever that be, from the materials now available, it is difficult to disagree with the finding of the court below that an **Crl. Appeal Nos.2202/04 & 1046/05** **12** offence under Section 354 IPC alone is made out. Considering the nature of the offence and the age of the victim and the fact that the accused occupied almost fiduciary relationship with the victim, there is no reason to take a lenient view and the sentence does not call for any interference at all. In the result, both these appeals are without merits and they are liable to the dismissed. I do so confirming the conviction and sentence passed by the court below. ## **P.BHAVADASAN JUDGE** smp