Vincent v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934** ## **CRL.A.No. 1315 of 2004 (C)** **-------------------------SC.147/2003 OF ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA. .............** **APPELLANT/ACCUSED:** **------------------------------------** **VINCENT, S/O.MATHAI, PUTHENPURACKAL HOUSE, KILIYARA BHAGOM, KARIMANNOOR VILLAGE.** **BY ADV. SRI.THOMAS J.ANAKKALLUNKAL.** **RESPONDENT/COMPLAINANT.:** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, KARIMANNOOR.** **BY PUBLIC PROSECUTOR SMT.R. REMA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.Appeal. No. 1315 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of March, 2013. ## **JUDGMENT** The accused was prosecuted for the offence punishable under Section 511 of Section 376 of Indian Penal Code. He was found guilty. He was therefore convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for a further period of three months. 2. P.W.5 is the victim and the incident is said to have taken place on 26.10.2002 at about 6.30 p.m. While P.W.5, after her work, was taking bath in the canal, the accused caught hold of her from behind and when she looked back, she found that it was the accused and he was found naked. She wriggled out of his clutches and ran for shelter. The accused followed her. She fell on sand mound and the accused caught hold of her and tried to pin her down. The accused then tried to sexually assault her and somehow the victim managed to escape and reach the Crl.Appeal. 1315/2004. 2 house of P.W.1 and conveyed the information to P.W.1 and P.W.2, the son of P.W.1, went to fetch the husband of P.W.5, who took her home. Even though P.W.5 was taken to St. Mary's Hospital, they refused to attend to her and P.W.5 was then taken to Taluk Head Quarters Hospital where P.W.3 examined her and furnished Ext.P1 wound certificate. Later on getting information about the incident, P.W.6, the Head Constable went to Taluk Head Quarters Hospital and recorded Ext.P3 first information statement furnished by P.W.5. The then Circle Inspector of Police registered the crime as per Ext.P4 FIR. He prepared the scene mahazar, recorded statements of witnesses, completed investigation and laid charge before court. 3. JFCM, Thodupuzha, before whom the final report was laid, took cognizance of the offence. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Thodupuzha. The said court made over the case to Crl.Appeal. 1315/2004. 3 Additional Sessions Court (Adhoc-I), Thodupuzha for trial and disposal. 4. The said court, on appearance of the accused before the said court, framed charge for the offence under Section 511 of Section 376 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore examined P.Ws.1 to 6 and had Exts.P1 to P5 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. According to him, he was falsely implicated due to his quarrel with the husband of the victim who had hired his vehicle and refused to pay hire charges that were due to the accused. There was an altercation between them and on a push by the accused, the husband of P.W.5 had fallen down. He had threatened the accused with dire consequences and that with the help of P.W.5 he was falsely Crl.Appeal. 1315/2004. 4 implicated in the crime. D.W.1 was examined on the defence side. 5. On an appreciation of the evidence in the case, the court below found that there is no reason to disbelieve P.W.5 and found the defence set up by the accused unacceptable. Accordingly, he was found guilty and conviction and sentence followed. The said conviction and sentence are assailed in this appeal. 6. Learned counsel appearing for the appellant pointed out that the court below has erred in finding the accused guilty on the basis of the materials now available on record. The court below ought to have seen that there was no proper identification of the accused and the medical evidence does not support the prosecution case. It is also contended that no offence under Section 511 of Section 376 of I.P.C. is made out and that the court below was not justified in convicting the accused under Section 511 of Section 376 I.P.C. Crl.Appeal. 1315/2004. 5 7. Learned Public Prosecutor contended that there is nothing to disbelieve the evidence of P.W.5, the victim, who stands by her first information statement and there are no inconsistencies or contradictions brought out in the evidence of P.W.5. The court below chose to disbelieve the reason given by the accused for falsely implicating him and those reasons are justified. It is not correct, according to the learned Public Prosecutor, that medical evidence does not support the prosecution case. The evidence of P.W.3 taken along with Ext.P1 shows that there is medical evidence supporting the prosecution. 8. Learned Public Prosecutor would point out that the act of removing the clothes of the victim and also the utterance of the accused “ഞ�ന��ന� ന�ന�ന� ന�യ����� ന��യ����ള��”shows his intention and desire and that is sufficient to show that his attempt was to commit rape but P.W.5 was fortunate enough to escape. Accordingly, it is Crl.Appeal. 1315/2004. 6 contended that there are no grounds to interfere with the conviction and sentence passed by the court below. 9. After having heard learned counsel for the appellant and the learned Public Prosecutor and after having perused the evidence in the case, there seems to be considerable force in the submission of the learned Public Prosecutor. The evidence of the incident is furnished by P.W.5, the victim. She has given the first information statement. She in her evidence gave a verbatim reproduction of what is stated in Ext.P3. No contradictions or inconsistencies could be brought out even though she was subjected to severe cross examination. Her evidence that soon after the incident she went to the house of P.W.1 and sought their help, is seen supported by the evidence of P.Ws.1 and 2. Her statements at the time of deposition finds a place in Ext.P3 also. 10. The claim of the accused that he was falsely implicated, was not found acceptable by the court below. Crl.Appeal. 1315/2004. 7 The court below found the evidence of D.W. 1 very artificial and it is extremely difficult to believe that the accused has been falsely implicated on the lines mentioned by him. The court has believed the evidence of P.Ws.1, 2 and 5 and has come to the conclusion that the offence has been made out. After perusing the evidence of P.Ws.1, 2 and 5, this court finds it difficult to take a different view. 11. As rightly pointed out by the learned Public Prosecutor, the medical evidence does support the prosecution case. It is true that the deposition of the doctor shows tenderness can be pretended. But one fails to understand the logic of saying that tenderness could be pretended. It is something to be noticed by the doctor on physical examination. One fails to understand the validity of such a statement in the evidence of P.W.3 which can only be a mistake. It is significant to notice that P.W.5 had stated that the accused had caught hold of her hands and legs and tried to pin her down and had pressed her neck. On all Crl.Appeal. 1315/2004. 8 these places going by Ext.P1, tenderness is noticed by the doctor, namely P.W.3, who had examined her when she went to Taluk Headquarters Hospital on the next day of the incident. 12. As regards the identification, there is some discrepancy in her evidence. She has named the accused in the FIS itself. But in her evidence, she has stated that she came to know of the name of the accused from some autorickshaw drivers on the next day. But this discrepancy need not be taken as a ground to doubt the version given by P.W.5. There seems to be no justification in the contention that the accused was falsely implicated. 13. Since the evidence of P.W.5 stands scrutiny, and gets support from the evidence of P.Ws.1 and 2, there is no reason why this court should disagree with the finding of the lower court. The finding is only to be confirmed. 14. It is very vehemently contended by the learned counsel for the appellant that even assuming all Crl.Appeal. 1315/2004. 9 what is stated by the prosecution is true, there is no evidence of offence under Section 511 of Section 376 I.P.C. and only offence under Section 354 I.P.C. is made out. For the said proposition, learned counsel relied on the decision reported in **Tukaram Govind Yadav v. State of Maharashtra** (2011 KHC 6226). On going through the above decision, the facts show only removal of cloths. However, in the case on hand, apart from the removal of clothes of the victim and also pinning down to the ground, as rightly pointed out by the learned Public Prosecutor the utterance of words “ഞ�ന��ന� ന�ന�ന� ന�യ����� ന��യ����ള��”shows the intention and motive also. It is a clear indication of what was intended and what his attempt was. Considering these aspects, the court below was justified in coming to the conclusion that offence under Section 511 of Section 376 I.P.C. is made out. No grounds are made out to interfere with the said finding. Crl.Appeal. 1315/2004. 10 15. Learned counsel for the appellant then made strenuous efforts to show that the sentence awarded is on the high side and some leniency may be shown and that considering the age of the victim, the sentence awarded is on the higher side. Therefore, confirming the conviction of the accused for the offence under Section 511 of Section 376 I.P.C., the appellant is directed to suffer rigorous imprisonment for 18 months and pay fine of Rs. 5,000/-, and in default , to suffer simple imprisonment for one month. P. BHAVADASAN, JUDGE sb.