IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 372 of 2002()
1. SDAJEEV S/O.RAJAPPAN,KOCHU KULATHIL,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY
... Respondent
For Petitioner :SRI.K.JAGADEESCHANDRAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/09/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.372 of 2002.
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Dated this the 23rd day of September, 2009
O R D E R
The revision petitioner is the accused in
CC.No.126/1993 on the file of the Judicial Magistrate of
First Class, Ettumanoor. The Sub Inspector of Police,
Gandhi Nagar Police Station who was examined as Pw10
prosecuted the revision petitioner alleging offence under
Sec.377 IPC with an allegation that at 4.30 pm on 10.6.1993
the revision petitioner had carnal sexual intercourse against
the order of nature with a girl who was examined as Pw1,
daughter of Pw4 and 5.
2. The offence was committed at a time when Pws.4
and 5 had gone out of the house. On their return Pw1
reported the matter. Pws.4 and 5 took Pw1 to Gandhi
Nagar Police Station and lodged Ext.P1 First Information
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Statement. Pw6, the Head Constable recorded Ext.P1
statement given by Pw1 and registered the case as Crime
No.313/1993 for offence under Sec.377 IPC. Pw9, the
Assistant Sub Inspector of Police conducted the
investigation. The investigation conducted by Pw9 was
verified by Pw10 and filed the charge sheet before the trial
court.
3. The learned Magistrate took cognizance and
issued process, responding to which the revision petitioner
entered appearance. Copies of the charge sheet and
relevant records were furnished. After hearing the revision
petitioner and prosecution, charge for offence under
Sec.377 was framed. When it was read over and explained,
revision petitioner pleaded not guilty. Hence, he was sent
for trial.
4. On the side of prosecution Pws.1 to 10 were
examined and Exts.P1 to P6 and MO1 were marked. When
questioned under Sec.313 Crl.P.C., the revision petitioner
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took up a defence that the case was falsely foisted because
of an earlier money dispute. However, no defence evidence
was let in. The learned Magistrate on appraisal of the
evidence arrived a finding that the prosecution had
succeeded to establish the offence alleged. Consequently
the revision petitioner was convicted and sentenced to
rigorous imprisonment for two years.
5. Being aggrieved by the above conviction and
sentence, the revision petitioner preferred an appeal as
Crl.Appeal No.21/1998 before the Court of Sessions,
Kottayam. The Addl.Sessions Judge, to whom the appeal
was made over, by judgment dated 7.1.2002 came to the
finding that the prosecution had succeeded to establish the
offence. Consequently, the conviction was confirmed. But
the sentence was reduced to rigorous imprisonment for one
year.
6. Assailing the legality, correctness and propriety of
the conviction and sentence as was modified in appeal, this
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revision petition was preferred.
7. The learned counsel Sri.Jaishankar V. Nair on
behalf of the revision petitioner argued that the prosecution
had not succeeded to prove the offence beyond the shadow
of reasonable doubt and that to support the prosecution
there is only the oral testimony of victim as Pw1 and hence
the prosecution story should have been disbelieved. It was
further argued that there was no penetration and hence no
offence under Sec.377 IPC was made out. Even if the
revision petitioner had committed any offence, it is only
under Sec.354 IPC.
8. Having gone through the judgment impugned and
the evidence on record, I find that in support of the
prosecution case there is only the oral testimony of Pw1.
Pws.4 and 5 who are the parents of Pw1 have got only
hearsay information. On a critical scrutiny of the evidence
of Pw1, I find that her evidence, though that of a child
witness, instil confidence. The courts below were justified
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in giving credence to her testimony to come to a conclusion.
The learned counsel for the revision petitioner could not
point out anything to disbelieve the testimony of Pw1.
There is nothing on record to show that Pws.4 and 5, the
parents of Pw1 had fabricated a case like the one to wreak
vengeance against the revision petitioner. So the argument
that the evidence of Pw1 is not believable and that this is a
cooked up case is devoid of any merit.
9. The evidence of Pw1 would show that the revision
petitioner who was familiar had been to the house of Pw1 at
a time when Pw1 was alone. The revision petitioner
approached Pw1 with a request for a pen for a purpose
which was known to the revision petitioner alone and after
making some scribblings pen was returned. Then Pw1 was
lifted and took inside the room. She was made lie over the
cot. The revision petitioner removed her under garments
and lay over Pw1. According to Pw1, the revision petitioner
pressed his genital at her thighs and there was bleeding
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from the genital. It appears that there is discharge. There
is nothing on record to show that there was carnal
intercourse. So, the contention of the learned counsel for
the revision petitioner that no offence under Sec.377 IPC is
made out has merit. From the evidence of Pw1 it is
revealed that the intension of the revision petitioner was to
satisfy his lust and in that attempt her modesty was
outraged and an offence under Sec.354 IPC is made out.
So, the conviction and sentence under Sec.377 are not
sustainable. Whereas, offence under Sec.354 IPC is made
out and the revision petitioner is liable to be convicted and
sentenced for offence under Sec.354 IPC.
10. Having due regard to the entire circumstances
and facts of the case, I find that a sentence of simple
imprisonment for nine months and a fine of Rs.3,000/- would
meet the ends of justice.
11. In the result, this revision petition is allowed in
part. The conviction and sentence for offence under
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Sec.377 IPC are set aside. Instead he is convicted for offence
under Sec.354 IPC and sentenced to simple imprisonment
for 9 months and a fine of Rs.3,000/-. In default of payment
of fine, the revision petitioner shall undergo simple
imprisonment for a further period of two months.
P.S.GOPINATHAN, JUDGE.
Kvs/-
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P.S.GOPINATHAN, J.
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Crl.R.P.No.372 of 2002.
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O R D E R
23rd September, 2009.