MATHAI ALIAS PAPPEN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant is the sole accused in S.C.No.200 of 2008 of the court of the Special Judge, Kottayam and in this appeal, he challenges the conviction and sentence imposed on him by the judgment dated 27.7.2011 in S.C.No.200 of 2008 of the said trial court.

(2.) THE case of the prosecution is that on 28.7.2007, the accused committed rape of the de facto complainant, who belongs to scheduled caste and also caused loss by destroying the articles belonging to her and thereby, the accused has committed the offenceS punishable under Sections 376 and 427 of the Indian Penal Code (for short 'the I.P.C.') and Section 3(1) (xi) and (xv) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act, (hereinafter referred to for short as 'the SC/ST (PA)Act' only). On the basis of the above allegation, crime No.216 of 2007 was registered in the Kaduthuruthi Police Station, initially for the offences under Section 376 of I.P.C. and Section 3(1) (xi) and (xv) and 3(2)(v) of the SC & ST(PA) Act. Consequently, the investigation was undertaken and on completing the same, charge was laid in the Judicial First Class Magistrate Court, Vaikom for the above offences as well as for the offence under Section 427 of I.P.C. Subsequently, by order dated 17.9.2008 in C.P.No.21/2008, the learned Magistrate committed the case to the present trial court wherein S.C.No.200 of 2008 was instituted. After hearing the prosecution as well as the accused, the learned Judge of the trial court (Special Court) framed a formal charge against the accused for the offences punishable under Section 376 of I.P.C. and Section 3(1) (xi) and (xv) and 3(2)(v) of the SC & ST(PA) Act. When the said charge was read over and explained to the accused, he denied the same and pleaded not guilty and consequently, the prosecution adduced its evidence by examining Pws.1 to 14 and producing Exts.P1 to P18 documents. Mos.1 to 4 were also identified and marked as material objects. The incriminating circumstances and evidence which are emerged during the prosecution evidence, when put to the accused under Section 313, he denied the same. During the defence evidence, DW1 was examined and the defence has also got marked Exts.D1 to D3. The trial court, after considering the entire evidence and materials and after hearing the prosecution as well as the defence, has specifically found that there is no reason to suspect the credibility of the evidence of PW1 and accordingly, found that the accused had sexual intercourse with her without her consent and thus, the prosecution has established that the offence under Section 376 of I.P.C. is committed by the accused. Accordingly, the accused is convicted for the said offences and on such conviction, he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-under Section 376 of I.P.C. and also to undergo rigorous imprisonment for six months under Section 3(1)(xi) of SC/ST(PA) Act . The sentence is ordered to be run concurrently. It is also ordered that if the fine amount realises, the same shall be paid to PW1 as compensation. It is further ordered that in case of default in paying the fine, he shall undergo simple imprisonment for a further period of three months. Set off is allowed. It is the above finding, order of conviction and sentence are challenged in this appeal.

(3.) PW2 is a rubber tapper, who was residing adjacent to the house of victim and he was residing in the rented house of PW4. PW2 stated that he had seen PW1 coming from the place of occurrence and she arrived in front of the house of PW4 where he was residing. PW3 is the wife of PW2 and when she was examined, she had deposed that she had heard the cry of PW1 and she came out of her house and she had seen PW1 coming from the place of occurrence. It was PW3, who gave a nighty to PW1. PW3 has also stated about the information furnished by PW4 to the husband of PW1 and the children. PW4 is the employer of PWs.2 and 3. When PW4 has been examined, he had also stated in par with the evidence of PWs.2 and 3. He had stated that he had seen the victim coming to the house belonging to him where PWs.2 and 3 were residing and he had also deposed that he had contacted the husband of the victim and advised them to give information to the Police.