{"id":266172,"date":"2007-07-17T00:00:00","date_gmt":"2007-07-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunnath-baby-esthappan-vs-state-of-kerala-on-17-july-2007"},"modified":"2016-05-11T15:55:21","modified_gmt":"2016-05-11T10:25:21","slug":"kunnath-baby-esthappan-vs-state-of-kerala-on-17-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunnath-baby-esthappan-vs-state-of-kerala-on-17-july-2007","title":{"rendered":"Kunnath Baby @ Esthappan vs State Of Kerala on 17 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kunnath Baby @ Esthappan vs State Of Kerala on 17 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 876 of 2007()\n\n\n1. KUNNATH BABY @ ESTHAPPAN\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :K.SANIL KUMAR[STATE BRIEF]\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :17\/07\/2007\n\n O R D E R\n                           K. THANKAPPAN, J.\n                     ------------------------------------------\n                       CRL.A.NO.876 OF 2007- D\n                     ------------------------------------------\n                 Dated this the 17th day of July, 2007.\n\n                                 JUDGMENT\n<\/pre>\n
      The sole accused in S.C.No.1548\/2005 on the file of the Special<\/p>\n
Judge,    Thalassery is the appellant.           The appellant faced trial for<\/p>\n
the offences punishable under Sections 376, 379 and 3(1)of SC\/ST<\/p>\n
(Prevention of Atrocities Act), 1989. The prosecution case against the<\/p>\n
appellant was that on 27.6.1999 at 5 p.m while PW4 was returning<\/p>\n
from the house of her sister, the appellant stopped her at the way<\/p>\n
and he caught hold of her from behind and committed rape on her.<\/p>\n
The further case of the prosecution was that the appellant had stolen<\/p>\n
an amount of Rs.500\/= which PW4 kept in her dress.                 PW4 belongs<\/p>\n
to SC\/ST community. The appellant had                    committed the offences<\/p>\n
against PW4 punishable under Section 3 of the SC\/ST (Prevention of<\/p>\n
Atrocities) Act also.     To prove the case against the appellant,<\/p>\n
prosecution examined Pws 1 to 12 and produced Exts.P1 to P16.<\/p>\n
MOs 1 to 3 were also produced.                  After closing the prosecution<\/p>\n
evidence, the appellant was questioned under Section 313<\/a> of the Code<\/p>\n
of Criminal procedure.          Denying the prosecution allegation, the<\/p>\n
appellant had stated that he is innocent. Further he had stated before<\/p>\n
CRL.A.NO.876\/2007                     2<\/span><\/p>\n
the court that he had consumed alcohol from PW4 and paid Rs.100\/=.<\/p>\n
As the balance of Rs.40\/= has not been returned,           there ensued a<\/p>\n
quarrel between PW4 and himself and            because of this,  the case<\/p>\n
was foisted against him by Pws 1, 5 and the father of PW4. Exts.D1<\/p>\n
and D2 were also marked on the side of           defence.  However, after<\/p>\n
considering the entire evidence, the trial court found the appellant<\/p>\n
guilty under Section 511<\/a> of 376 and he was convicted thereunder and<\/p>\n
sentenced to undergo R.I for 4 years and to pay compensation of<\/p>\n
Rs.25,000\/=and in default of payment of the compensation,                to<\/p>\n
undergo S.I for a term of three months more.         The above judgment<\/p>\n
of the trial court is assailed in this appeal.\n<\/p>\n
\n
2.    Since the appeal is filed through the jail authorities and the<\/p>\n
appellant is not having a counsel of his own choice to argue the case, a<\/p>\n
member from the State brief panel has been appointed to argue the<\/p>\n
case for and on behalf of the appellant. This Court heard the learned<\/p>\n
counsel appearing for the appellant and also the Public Prosecutor<\/p>\n
appearing for the State.        The learned counsel appearing for the<\/p>\n
appellant had taken the following contentions for challenging the<\/p>\n
judgment of the trial court.    Firstly it is contended that the trial court<\/p>\n
CRL.A.NO.876\/2007                   3<\/span><\/p>\n
committed a serious error in finding the appellant guilty under Section<\/p>\n
511 of Section 376 only on the basis of the evidence of PW4 as there<\/p>\n
was no supporting evidence       or corroborative evidence to prove the<\/p>\n
case against the appellant.     Secondly, it is contended that even if the<\/p>\n
evidence of PW4 is accepted as the evidence of a prosecutrix, the<\/p>\n
finding of the trial court that the appellant had committed an offence<\/p>\n
punishable under Section 511<\/a> of 376 is not justifiable.         Finally it is<\/p>\n
contended that as the prosecution case set up against the appellant<\/p>\n
for the offence punishable under Section 379<\/a> is not proved on the<\/p>\n
basis of the evidence adduced by PW4 and on the              basis   of the<\/p>\n
infirmity     in the evidence of the investigating officers,       the case<\/p>\n
against the appellant      is also not justifiable.  Lastly it is contended<\/p>\n
that the punishment awarded against the appellant is excessive.<\/p>\n
3.    The trial court relied on the evidence of Pws 1 and 4 to prove<\/p>\n
the charge against the appellant.     As per the evidence of PW4 it is<\/p>\n
seen that she was gone to the house of her sister early morning on<\/p>\n
the day of the incident and she was returned from the house of her<\/p>\n
sister in the evening . When she reached the shop of Subash, the<\/p>\n
appellant was seen there and on seeing           PW4, the appellant went<\/p>\n
CRL.A.NO.876\/2007                 4<\/span><\/p>\n
ahead along the way which PW4 also has to go. This witness has<\/p>\n
further stated that when she went along the way she had seen that<\/p>\n
the appellant was waiting on a rock and when she reached near the<\/p>\n
appellant she was perplexed. But the appellant told her to proceed<\/p>\n
and she need not be afraid of him and hence,        PW4 passed the<\/p>\n
accused, immediately the appellant         caught hold of her from<\/p>\n
behind and lift up the nighty and under skirt from behind and he<\/p>\n
appellant committed rape on PW4. PW4 has further stated that the<\/p>\n
appellant committed rape     on her body from behind for ten minutes<\/p>\n
and thereafter she was left free. She had narrated the way in which<\/p>\n
the appellant committed rape on her. She had further stated that<\/p>\n
she   lost  Rs.500\/= in the midst of the incident and she    believed<\/p>\n
that the amount was taken by the appellant. Further       evidence of<\/p>\n
this witness was to the effect that    after releasing her    by the<\/p>\n
appellant she went to the house of PW1 and reported the matter and<\/p>\n
PW1 had told her that he would        compromise the matter after<\/p>\n
having a talk with the appellant.    So she waited.    Thereafter she<\/p>\n
waited up to     6.7.1999 and it was       found that PW1 had not<\/p>\n
intervened in the matter and had not compromised the matter, she<\/p>\n
went to the Kudiyanmala Police Station and    filed Ext.P4 statement<\/p>\n
CRL.A.NO.876\/2007                  5<\/span><\/p>\n
before the police.   On the basis of which,     a crime was registered<\/p>\n
against the appellant.      This witness has further stated that as<\/p>\n
directed by the police she has     gone to the hospital and she was<\/p>\n
examined by PW9 on 6.7.1999. This witness has        further stated that<\/p>\n
she had reported the matter to PW5 also who helped her to file a<\/p>\n
complaint before the police.\n<\/p>\n
\n
4.     The evidence of PW1 was accepted by the trial           court as<\/p>\n
corroborative   evidence of PW4.       The trial court considered   the<\/p>\n
evidence of PW9 the       Assistant Surgeon of the Disitrict Hospital,<\/p>\n
Kannur who examined PW4 on 6.7.1999. PW9 had stated            that she<\/p>\n
had examined PW4 on        6.7.1999 and    had issued Ext.P8 medical<\/p>\n
certificate. According to this witness, she had not noted any stain<\/p>\n
of blood or semen. No grass or hair. No abrasions or contusions of<\/p>\n
face, back of shoulders, arms or things of PW4.       But this witness<\/p>\n
has    also stated that   there was no general body      injury on the<\/p>\n
external genitalia. Though there was an injury noted, which was a<\/p>\n
heeling injury having 3 to 7 days of age.        This witness has also<\/p>\n
proved in Ext.P9 chemical report the dresses worn by PW4 at the<\/p>\n
time of the incident. As per Ext.P9 report it was reported that none of<\/p>\n
CRL.A.NO.876\/2007                     6<\/span><\/p>\n
the dresses alleged to have worn by PW4 at the time of the incident<\/p>\n
contained semen or spermotozoa and          hence the prosecution failed<\/p>\n
to prove that the appellant       raped PW4.      However,     considering<\/p>\n
the evidence adduced by the prosecution, the trial court found that<\/p>\n
the evidence of PW4 and PW9 postulates a case of attempt of rape by<\/p>\n
the appellant on PW4.       The trial court also relied on the evidence of<\/p>\n
PW1 to find that the he helped PW4 for reporting the assault made<\/p>\n
on PW4 by the appellant on the day of the incident to the police.<\/p>\n
The other witnesses examined by the prosecution are only           formal<\/p>\n
witnesses and PW10 is the investigating officer, who conducted<\/p>\n
investigation of the case and seized material objects on preparing<\/p>\n
certain mahazers.      All these mahazares were attested by Pws 5, 6<\/p>\n
and 7. Though these witnesses had stated before the court that<\/p>\n
they have seen      some amounts were recovered from one Gopi- PW8,<\/p>\n
that evidence was not accepted by the trial court.         Relying on the<\/p>\n
evidence of Pws 1, 4 and 9 the trial court found the appellant guilty<\/p>\n
of an offence punishable under Section 511<\/a> of 376. The question         to<\/p>\n
be decided in this appeal is whether the judgment of the trial court is<\/p>\n
justifiable or not. In this context it has to be noted that even in Ext.P4<\/p>\n
statement given by PW4 before the police she had a case that the<\/p>\n
CRL.A.NO.876\/2007                7<\/span><\/p>\n
appellant committed rape on her in a standing position and from<\/p>\n
behind. When she was examined before the court she had narrated<\/p>\n
the way in which the appellant committed rape on her. According to<\/p>\n
her,  she was made bent of her body by the appellant and after<\/p>\n
removing her skirt and nighty the appellant committed rape on her<\/p>\n
from behind the body. In this context, the evidence of PW9 is<\/p>\n
relevant. When PW9 was cross examined, she had stated that it was<\/p>\n
not possible to have a sexual intercourse from behind without the<\/p>\n
consent   of a victim. This witness though had stated that she was<\/p>\n
not in a position to say whether rape was committed or not on PW4<\/p>\n
but, the evidence of Pws 4 and 9 were accepted by the trial court to<\/p>\n
find that the appellant had attempted to commit rape on PW4.     In<\/p>\n
this context, it has to be noted that as per the evidence of PW4<\/p>\n
when she was going along the pathway, the appellant was waiting on<\/p>\n
a rock and when she reached the appellant she was in a perplexed<\/p>\n
move and thereupon the appellant asked her to pass through and<\/p>\n
at that time immediately the appellant caught hold of her     from<\/p>\n
behind and attempted to commit rape.      In this context, the trial<\/p>\n
court  correctly analysed the   evidence of PW9 and came     to    a<\/p>\n
conclusion that there was no evidence for rape but the question is<\/p>\n
CRL.A.NO.876\/2007                    8<\/span><\/p>\n
that what was the actual offence committed by the appellant against<\/p>\n
PW4. In this context PW4 had stated to PW1 that the appellant<\/p>\n
waylaid her and      assaulted her. The learned trial judge       though<\/p>\n
considered this aspect in paragraph 37 of the judgment to the effect<\/p>\n
that version of PW4 with regard to the narration of the commission<\/p>\n
of rape was embellishment , the trial court without considering the<\/p>\n
above aspect of the evidence of PW4 came to the conclusion that<\/p>\n
there was an attempt for committing rape by the appellant. But on<\/p>\n
analysing the evidence of PW4 and PW9, it can be seen that the<\/p>\n
appellant had      committed only an offence punishable under Section<\/p>\n
354<\/a> of I.P.C as the appellant molested PW4       and had outraged the<\/p>\n
modesty of PW4.        If so   the   finding of the trial court that  the<\/p>\n
appellant had committed the offence punishable under Section 511<\/a> of<\/p>\n
376 is not justifiable and it has to be set aside.\n<\/p>\n
\n
  5.      In the above circumstances, on taking the entire evidence<\/p>\n
  adduced by the       prosecution, this Court is of the view that the<\/p>\n
  finding of the trial court that the appellant had committed an<\/p>\n
  offence punishable under Section 511<\/a> of 376 is not justifiable and<\/p>\n
  that finding is set aside.       Instead it is found that the appellant<\/p>\n
CRL.A.NO.876\/2007                  9<\/span><\/p>\n
 had committed an offence punishable under Section 354<\/a> of I.P.C.<\/p>\n
 Admittedly, PW4 was a woman of 33 years at the time of the<\/p>\n
 incident and she is having three children and her husband was<\/p>\n
 also    away from her more than six years.           In the above<\/p>\n
 circumstances, the version given by PW4 regarding the attempt<\/p>\n
 made by the appellant for the commission of the offence punishable<\/p>\n
 under Section 376<\/a> is not justifiable. However, this Court finds that<\/p>\n
 the appellant had committed an offence punishable under Section<\/p>\n
 354<\/a> of I.P.C. Accordingly, the appellant is found guilty under<\/p>\n
 Section 354<\/a> and convicted thereunder and sentenced to undergo<\/p>\n
 R.I for two years.   It is also   ordered to pay   compensation of<\/p>\n
 Rs.10,000\/= under Section         457(3)<\/a> of the Code of Criminal<\/p>\n
 Procedure to PW4.     If the compensation is not paid as aforesaid,<\/p>\n
 the appellant   shall undergo S.I for    a further period of  three<\/p>\n
 months.\n<\/p>\n
     Accordingly, the appeal is allowed in part<\/p>\n
                                          K. THANKAPPAN, JUDGE.\n<\/p>\n
\n cl<\/p>\n
CRL.A.NO.876\/2007    10<\/span><\/p>\n
                       K. THANKAPPAN, J.\n<\/p>\n
\n
                       CRL.A.NO.876 OF 2007<\/p>\n
                       JUDGMENT<\/p>\n
CRL.A.NO.876\/2007    11<\/span><\/p>\n
                       17th July, 2007.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kunnath Baby @ Esthappan vs State Of Kerala on 17 July, 2007 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-266172","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKunnath Baby @ Esthappan vs State Of Kerala on 17 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kunnath-baby-esthappan-vs-state-of-kerala-on-17-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunnath Baby @ Esthappan vs State Of Kerala on 17 July, 2007 - 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