IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 876 of 2007()
1. KUNNATH BABY @ ESTHAPPAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :K.SANIL KUMAR[STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :17/07/2007
O R D E R
K. THANKAPPAN, J.
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CRL.A.NO.876 OF 2007- D
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Dated this the 17th day of July, 2007.
JUDGMENT
The sole accused in S.C.No.1548/2005 on the file of the Special
Judge, Thalassery is the appellant. The appellant faced trial for
the offences punishable under Sections 376, 379 and 3(1)of SC/ST
(Prevention of Atrocities Act), 1989. The prosecution case against the
appellant was that on 27.6.1999 at 5 p.m while PW4 was returning
from the house of her sister, the appellant stopped her at the way
and he caught hold of her from behind and committed rape on her.
The further case of the prosecution was that the appellant had stolen
an amount of Rs.500/= which PW4 kept in her dress. PW4 belongs
to SC/ST community. The appellant had committed the offences
against PW4 punishable under Section 3 of the SC/ST (Prevention of
Atrocities) Act also. To prove the case against the appellant,
prosecution examined Pws 1 to 12 and produced Exts.P1 to P16.
MOs 1 to 3 were also produced. After closing the prosecution
evidence, the appellant was questioned under Section 313 of the Code
of Criminal procedure. Denying the prosecution allegation, the
appellant had stated that he is innocent. Further he had stated before
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the court that he had consumed alcohol from PW4 and paid Rs.100/=.
As the balance of Rs.40/= has not been returned, there ensued a
quarrel between PW4 and himself and because of this, the case
was foisted against him by Pws 1, 5 and the father of PW4. Exts.D1
and D2 were also marked on the side of defence. However, after
considering the entire evidence, the trial court found the appellant
guilty under Section 511 of 376 and he was convicted thereunder and
sentenced to undergo R.I for 4 years and to pay compensation of
Rs.25,000/=and in default of payment of the compensation, to
undergo S.I for a term of three months more. The above judgment
of the trial court is assailed in this appeal.
2. Since the appeal is filed through the jail authorities and the
appellant is not having a counsel of his own choice to argue the case, a
member from the State brief panel has been appointed to argue the
case for and on behalf of the appellant. This Court heard the learned
counsel appearing for the appellant and also the Public Prosecutor
appearing for the State. The learned counsel appearing for the
appellant had taken the following contentions for challenging the
judgment of the trial court. Firstly it is contended that the trial court
CRL.A.NO.876/2007 3
committed a serious error in finding the appellant guilty under Section
511 of Section 376 only on the basis of the evidence of PW4 as there
was no supporting evidence or corroborative evidence to prove the
case against the appellant. Secondly, it is contended that even if the
evidence of PW4 is accepted as the evidence of a prosecutrix, the
finding of the trial court that the appellant had committed an offence
punishable under Section 511 of 376 is not justifiable. Finally it is
contended that as the prosecution case set up against the appellant
for the offence punishable under Section 379 is not proved on the
basis of the evidence adduced by PW4 and on the basis of the
infirmity in the evidence of the investigating officers, the case
against the appellant is also not justifiable. Lastly it is contended
that the punishment awarded against the appellant is excessive.
3. The trial court relied on the evidence of Pws 1 and 4 to prove
the charge against the appellant. As per the evidence of PW4 it is
seen that she was gone to the house of her sister early morning on
the day of the incident and she was returned from the house of her
sister in the evening . When she reached the shop of Subash, the
appellant was seen there and on seeing PW4, the appellant went
CRL.A.NO.876/2007 4
ahead along the way which PW4 also has to go. This witness has
further stated that when she went along the way she had seen that
the appellant was waiting on a rock and when she reached near the
appellant she was perplexed. But the appellant told her to proceed
and she need not be afraid of him and hence, PW4 passed the
accused, immediately the appellant caught hold of her from
behind and lift up the nighty and under skirt from behind and he
appellant committed rape on PW4. PW4 has further stated that the
appellant committed rape on her body from behind for ten minutes
and thereafter she was left free. She had narrated the way in which
the appellant committed rape on her. She had further stated that
she lost Rs.500/= in the midst of the incident and she believed
that the amount was taken by the appellant. Further evidence of
this witness was to the effect that after releasing her by the
appellant she went to the house of PW1 and reported the matter and
PW1 had told her that he would compromise the matter after
having a talk with the appellant. So she waited. Thereafter she
waited up to 6.7.1999 and it was found that PW1 had not
intervened in the matter and had not compromised the matter, she
went to the Kudiyanmala Police Station and filed Ext.P4 statement
CRL.A.NO.876/2007 5
before the police. On the basis of which, a crime was registered
against the appellant. This witness has further stated that as
directed by the police she has gone to the hospital and she was
examined by PW9 on 6.7.1999. This witness has further stated that
she had reported the matter to PW5 also who helped her to file a
complaint before the police.
4. The evidence of PW1 was accepted by the trial court as
corroborative evidence of PW4. The trial court considered the
evidence of PW9 the Assistant Surgeon of the Disitrict Hospital,
Kannur who examined PW4 on 6.7.1999. PW9 had stated that she
had examined PW4 on 6.7.1999 and had issued Ext.P8 medical
certificate. According to this witness, she had not noted any stain
of blood or semen. No grass or hair. No abrasions or contusions of
face, back of shoulders, arms or things of PW4. But this witness
has also stated that there was no general body injury on the
external genitalia. Though there was an injury noted, which was a
heeling injury having 3 to 7 days of age. This witness has also
proved in Ext.P9 chemical report the dresses worn by PW4 at the
time of the incident. As per Ext.P9 report it was reported that none of
CRL.A.NO.876/2007 6
the dresses alleged to have worn by PW4 at the time of the incident
contained semen or spermotozoa and hence the prosecution failed
to prove that the appellant raped PW4. However, considering
the evidence adduced by the prosecution, the trial court found that
the evidence of PW4 and PW9 postulates a case of attempt of rape by
the appellant on PW4. The trial court also relied on the evidence of
PW1 to find that the he helped PW4 for reporting the assault made
on PW4 by the appellant on the day of the incident to the police.
The other witnesses examined by the prosecution are only formal
witnesses and PW10 is the investigating officer, who conducted
investigation of the case and seized material objects on preparing
certain mahazers. All these mahazares were attested by Pws 5, 6
and 7. Though these witnesses had stated before the court that
they have seen some amounts were recovered from one Gopi- PW8,
that evidence was not accepted by the trial court. Relying on the
evidence of Pws 1, 4 and 9 the trial court found the appellant guilty
of an offence punishable under Section 511 of 376. The question to
be decided in this appeal is whether the judgment of the trial court is
justifiable or not. In this context it has to be noted that even in Ext.P4
statement given by PW4 before the police she had a case that the
CRL.A.NO.876/2007 7
appellant committed rape on her in a standing position and from
behind. When she was examined before the court she had narrated
the way in which the appellant committed rape on her. According to
her, she was made bent of her body by the appellant and after
removing her skirt and nighty the appellant committed rape on her
from behind the body. In this context, the evidence of PW9 is
relevant. When PW9 was cross examined, she had stated that it was
not possible to have a sexual intercourse from behind without the
consent of a victim. This witness though had stated that she was
not in a position to say whether rape was committed or not on PW4
but, the evidence of Pws 4 and 9 were accepted by the trial court to
find that the appellant had attempted to commit rape on PW4. In
this context, it has to be noted that as per the evidence of PW4
when she was going along the pathway, the appellant was waiting on
a rock and when she reached the appellant she was in a perplexed
move and thereupon the appellant asked her to pass through and
at that time immediately the appellant caught hold of her from
behind and attempted to commit rape. In this context, the trial
court correctly analysed the evidence of PW9 and came to a
conclusion that there was no evidence for rape but the question is
CRL.A.NO.876/2007 8
that what was the actual offence committed by the appellant against
PW4. In this context PW4 had stated to PW1 that the appellant
waylaid her and assaulted her. The learned trial judge though
considered this aspect in paragraph 37 of the judgment to the effect
that version of PW4 with regard to the narration of the commission
of rape was embellishment , the trial court without considering the
above aspect of the evidence of PW4 came to the conclusion that
there was an attempt for committing rape by the appellant. But on
analysing the evidence of PW4 and PW9, it can be seen that the
appellant had committed only an offence punishable under Section
354 of I.P.C as the appellant molested PW4 and had outraged the
modesty of PW4. If so the finding of the trial court that the
appellant had committed the offence punishable under Section 511 of
376 is not justifiable and it has to be set aside.
5. In the above circumstances, on taking the entire evidence
adduced by the prosecution, this Court is of the view that the
finding of the trial court that the appellant had committed an
offence punishable under Section 511 of 376 is not justifiable and
that finding is set aside. Instead it is found that the appellant
CRL.A.NO.876/2007 9
had committed an offence punishable under Section 354 of I.P.C.
Admittedly, PW4 was a woman of 33 years at the time of the
incident and she is having three children and her husband was
also away from her more than six years. In the above
circumstances, the version given by PW4 regarding the attempt
made by the appellant for the commission of the offence punishable
under Section 376 is not justifiable. However, this Court finds that
the appellant had committed an offence punishable under Section
354 of I.P.C. Accordingly, the appellant is found guilty under
Section 354 and convicted thereunder and sentenced to undergo
R.I for two years. It is also ordered to pay compensation of
Rs.10,000/= under Section 457(3) of the Code of Criminal
Procedure to PW4. If the compensation is not paid as aforesaid,
the appellant shall undergo S.I for a further period of three
months.
Accordingly, the appeal is allowed in part
K. THANKAPPAN, JUDGE.
cl
CRL.A.NO.876/2007 10
K. THANKAPPAN, J.
CRL.A.NO.876 OF 2007
JUDGMENT
CRL.A.NO.876/2007 11
17th July, 2007.