Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935** ## **CRL.A.No. 2410 of 2006 ( )** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC NO.28/2004 OF ADDITIONAL SESSIONS COURT (ADHOC I), MANJERI DATED 30-11-2006** **.....** **AGAINST THE ORDER/JUDGMENT IN CP NO.23/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PONNANI** **.......** ## **APPELLANT(S)/ACCUSED:** **----------------------------------------** **VIJAYAN, S/O.KRISHNANKUTTY, KALATH VALAPPIL VEEDU, EDAPPAL AMSOM, PERUMPARAMBU.** ## **BY ADV. SRI.P.S.SREEDHARAN PILLAI** **RESPONDENT/COMPLAINANT:** **----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.BHAVADASAN, J.** -----------------------------------------Crl.A. No. 2410 of 2006 -----------------------------------------Dated this the 03[rd] day of June, 2013 ## **J U D G M E N T** The accused in this case was prosecuted for the offence punishable under Section 511 of 376. But he was found guilty of the offence under Section 354 of IPC. He was therefore convicted to the said offence and sentenced to suffer rigorous imprisonment for two years. 2. PW2 is the victim and PW1 is her mother. The incident is alleged to have taken place on 08.06.2003 at about 8.30 a.m. That was a Sunday. On that day, as usual, PW1 would say that she had sent PW2, her daughter to Madrasa. She had also handed over a letter to the person in charge of Madrasa to let PW1 to go home early. She expected the child to return by 8.15 am. But the child did not do so. She therefore asked her husband to go and see where the child is. By that time, the child had almost reached near home. According to the prosecution, the child **-2-** ## **Crl.A. No.2410/2006** along with her mother went for a wedding. On return, PW1 asked PW2 to go and study. She then told her mother about the incident that took place in the morning in which the accused was involved. It is alleged that while the child was coming from Madrasa, the person who is familiar to her and as it was raining, he asked whether he could share the umbrella. The person took the umbrella from the hands of the child and when they reached the barber shop, the person handed over the umbrella to the child and the child was on her way to home. The further allegation is that soon thereafter, a van driven by the accused halted near her and she was asked to get inside. When they reached the place near compound of one Balakrishnan Vaidyar, the allegation is that the accused came to the rear seat which was occupied by the victim and committed the offensive acts. She was asked to keep quite about the incident. The further allegation is that the victim was let to go near the shop of one Rajan and the accused went away with the vehicle. ## **Crl.A. No.2410/2006** **-3-** Coming to know about the incident, the father of the child made enquiries and came to know that it was one Vijayan who had taken the child. The next day, that is on 09.06.2003, PW1 laid Ext.P1, First Information Statement. That was recorded by PW10 who registered crime as per Ext.P1(a), FIR. He prepared Ext.P5, scene mahazar and had the victim sent for medical examination. The victim was examined by PW9 who issued Ext.P7 certificate. He recorded statement of witnesses and on 09.06.2003 according to him, at 3.00 pm he arrested the accused and had him subjected to potency test. He completed investigation and laid charge before the court. 3. The court before which the final report was laid took cognizance of the offence and committed the case to Sessions Court, finding that the offence is exclusively triable by a court of sessions. The Sessions Court, Manjeri made over the case the Additional Sessions Court Adhoc-I for trial and disposal. The said court on receipt of records and on ## **Crl.A. No.2410/2006** **-4-** appearance of the accused framed charges for the offence punishable under Section 511 of 376 to which the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 11 and had Exts.P1 to P10 marked. 4. 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. His stand was that the police had come forward with a case in which he was made a scapegoat. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 5. On an appreciation of the materials before it, the court below found that the only offence under Section 354 was made out and accordingly the accused was convicted and sentenced as already mentioned. The said conviction and sentence are assailed in this appeal. **Crl.A. No.2410/2006** **-5-** 6. The learned counsel appearing for the appellant contended that the court below has omitted to note certain vital aspects which would make the prosecution story open to serious doubt. According to the learned counsel, the evidence of PW2 would show that first the signed statement of the victim was taken which is not seen the light of the day. Going by the evidence of PW2, it was thereafter a statement of PW1, her mother was taken. According to the learned counsel, going by the evidence of PW2, her statement would figure as the First Information Statement and for the reason best known to the prosecution, they have suppressed the same and an adverse inference needs to be brought on by the prosecution. It was then contended that strictly speaking there is no identification of the accused by the victim. Going by the evidence of PW1, it is contended that the accused was very familiar to the members of the family of PW1 and there was no hindrance for PW2 to specifically describe the features of the accused and to **Crl.A. No.2410/2006** **-6-** name him also when she narrated the incident to PW1. The statement of PW2, the victim that the person who is familiar to her had done the offensive act to her does not mean that it was the accused who are the culprit. For had it been the accused, the victim would have described him as a familiar person who would be easily identified. 7. Drawing attention of this Court to the evidence of PWs 1 and 2, it is contended by the learned counsel for the appellant that there is considerable variance regarding the narration of the incident by PWs 1 and 2. While PW1, the mother would say that it was after returning from place of marriage in the evening, by about 5.45 that the child had conveyed the information to her. PW2 the victim would say that soon after the incident, the child came running home crying and informed her mother about the incident. This incongruity in the evidence of PWs 1 and 2, according to the learned counsel, has not been properly appreciated by the court below and that strikes at the root of the prosecution ## **Crl.A. No.2410/2006** **-7-** case. That is sufficient to make the prosecution case vulnerable. It is further contended that it is too difficult to believe that the accused could have chosen an open busy area to commit an act alleged against him. If he had any such intention, it is only probable to believe that the victim would have been taken to the secluded place and the accused would not venture to perform the act in the open at the risk of drawing attention of passers by and the residence nearby. These vital aspects according to the learned counsel, were not considered by the court below and the evidence of PWs 1 and 2 cannot be said to be beyond doubt. 8. The learned counsel for the appellant pointed out that at any rate, there is a reasonable doubt in the mind of court regarding the incident and if that be so, the benefit should go to the accused. 9. The learned Public Prosecutor meeting the above arguments contended that the evidence of PWs 1 and 2 leave one in no doubt regarding the incident. The mere fact **Crl.A. No.2410/2006** **-8-** that the child has not named the accused does not mean that the accused was unfamiliar to the child. PW2 has stated to the mother that a person who is familiar to her had gone along with her in the umbrella and thereafter committed the offensive act. May be that according to the learned Public Prosecutor that PW2, the victim did not know the name of the accused. But that is far from saying that the accused was a total stranger and an identification parade was absolutely necessary. Apart from the fact that the evidence would disclose that the accused was known to the victim as well as PW1 and also shows that the victim had told her mother that the act was committed by a person who is familiar to her. It is also contended that the victim was with the accused for a quite some time and the victim could have easily noticed the features of the accused. It is also contended by the learned Public Prosecutor that the child was not in the know of things that were to follow so that the contention of the appellant that no hue and cry was raised **-9-** ## **Crl.A. No.2410/2006** by the child is without basis. 10. As regards the inconsistency between the evidence of PWs 1 and 2 regarding the time at which the incident was narrated to PW1, the learned Public Prosecutor contended that such inconsistencies are bound to arise when the witnesses are examined after a long time of the incident. It is also pointed out that PW2, the victim is not of sufficient maturity and also that one could not expect mathematical precision of narration of the incident from PW2, the victim. The broad probability will have to be appreciated and there is no reason suggested either to PW1 or PW2 as to why they should falsely implicate the accused. The learned Public Prosecutor contended that the court below which has the occasion to watch the demeanor of the witnesses has chosen to accept the evidence of PWs 1 and 2 and therefore unless it is found that the appreciation is perverse or the findings are contrary to the evidence on record, interference in appeal may not be justified. **Crl.A. No.2410/2006** **-10-** 11. It is true that the accused was prosecuted for the offence punishable under Section 511 of 376 for attempted rape. After trial, he was found guilty only of the offence of outraging the modesty of the victim. PW1 is the mother of the victim and PW2 is the victim. PW1's evidence is in tune with the Ext.P1, First Information Statement given by her. It is true that in Ext.P1, what is stated is that the child had described the accused as only a person familiar to the child and also the physical features of the accused. In Ext.P1, what is stated is that the father of the child then went and made enquiries and he came to know that it was the accused who was the culprit. At the time of evidence, PW1 sticks on to the same story. PW1 has no case at the time of evidence that the child had told her that the person by name Vijayan had committed the act. As rightly pointed out by the learned Public Prosecutor it may be that the child though familiar with the accused may not know his name. But the sequence of events, namely that, the accused sharing the ## **Crl.A. No.2410/2006** **-11-** umbrella without any objection from the side of the child and later on getting into the vehicle at the insistence of the accused, to the great extent show that the accused was familiar to the victim though she may not know his name. 12. As regards the identification, as rightly pointed out the learned Public Prosecutor that the contention is without any merit whatsoever. In the decision relied on by the learned counsel for the appellant namely **Krishnan Kumar v. State of Haryana** (2011 KHC 4553), the question of the identification was considered in a different context altogether. There the issue was one of kidnapping and molestation. The victim knew that she was being kidnapped and objectionable act was being committed. She was with the accused for a long time and on facts it was found that the prosecutrix had occasion to know the name of the accused and even thereafter, she had not narrated the name of the accused in the FIS, which according to the apex court casts doubt about the version given by the prosecutrix. ## **Crl.A. No.2410/2006** **-12-** Apart from the fact that, that was only one of the grounds found by the apex court there were several other grounds which made the evidence of prosecutrix open to serious doubt. 13. It is difficult to understand how the principle laid down in the decision can apply to the facts of the present case. There is nothing to show that the child had an opportunity before the incident to know the name of the accused though, he was familiar to her. It is not a case where the victim was aware of the name of the accused and deliberately name was omitted to be stated to the mother. Therefore, the decision can be of no help to the accused in this case. 14. It is too difficult to accept the plea of the appellant that had the accused harboured an intention to commit an offence he would not have ventured to do so in an open place where the attention of people could have easily attracted. One has to go back to the evidence of PW2, the ## **Crl.A. No.2410/2006** **-13-** victim. She had stated that the glasses were put on and no one could see what was happening inside the car. It must be remembered that the child had no inkling as to what was coming to her and therefore the contention that the child could have raised hue and cry and could have attracted the attention of the people is without merit. The child has also stated that when she cried, the accused let go the child. Merely because it is probable that it could have been noticed by passers-by itself is not a ground to doubt the version given by PW1 in this regard. 15. As regards the evidence of PW2 to the effect that her statement was taken first and thereafter her mother's statement, apart from suggesting to PW10 the Investigating Officer that the child was questioned only on the next day there was no specific pin pointed question from the Investigating Officer that he had in fact taken the statement of the victim first and that was seen suppressed since if produced it would go against the prosecution. Apart from ## **Crl.A. No.2410/2006** **-14-** suggesting that the child's statement was taken there was no suggestion to PW10 that Ext.P1 is not the real FIS but the statement taken from the victim. In the absence of any such specific suggestion to PW10, it cannot be countenanced. 16. While appreciating the evidence of PW2 one has to remember the plight in which the child was placed. The accused had shared an umbrella with the child and left her near barber shop. It was thereafter that he had come in a car and taken the child in a van. Even though, it is stated in Ext.P1 that the child was reluctant to mount the vehicle, PW2 at the time of evidence does not say that she showed any diffidence to mount the car. That in all probability shows that though she did not know the name of the accused, he was familiar to her. 17. The court below has considered all these aspects and has come to the conclusion that the offence has been made out. One glaring aspect is that there is no specific suggestion to PWs 1 and 2 that they had any ill motive to ## **Crl.A. No.2410/2006** **-15-** falsely implicate the accused. It is true that the father of the victim has not been examined. Going by the materials on record and also the evidence of PW1, the enquiry regarding the assailant was made by the father and it would have been proper to examine him. But the non examination of that witness has not caused any doubt regarding the version given by PWs 1 and 2. It is the quality of the evidence elicited from PWs 1 and 2 that needs to be considered and not the quantity of the evidence. PW1 has maintained the same stand at the time of giving Ext.P1 and also at the time of giving evidence that she has a consistent and cogent version. 18. Though regarding the time of the incident, narration of PW1 and PW2 differ that by itself is not sufficient to seriously doubt the evidence given by PW2 regarding the incident. 19. Thus it could be seen that the court below was justified in come into the conclusion that there has been ## **Crl.A. No.2410/2006** **-16-** offensive act at the hands of the accused. The conviction for the offence under Section 354 has only to stand. 20. What now remains to be considered is regarding the question of sentence. The court below has awarded maximum sentence prescribed for the offence. Considering the facts and circumstances of the case, it is felt that sentence is on the harsh side and some leniency can be shown. But the court below has considered the fact that the accused was familiar to the victim and he had exploited that situation. After having bestowed attention to various aspects, it is felt that a sentence of imprisonment for a period of one year will meet the ends of justice. In the result, while confirming the conviction of the offence punishable under Section 354 of IPC, the sentence awarded by the court below is set aside and instead he is sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs. 10,000/- in default of payment of which he is to suffer simple imprisonment for a ## **Crl.A. No.2410/2006** **-17-** period of two months. If the fine amount is realized, the same shall be paid to the victim as compensation. Sd/- **P.BHAVADASAN JUDGE** ds //True copy// P.A. To Judge