RAVI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner was prosecuted for the offence punishable under Section 511 of Section 376 of Indian Penal Code. He was found guilty of the offence both by the trial court as well as the appellate court. He was convicted by the trial court and sentenced him to undergo rigorous imprisonment for five years and also to pay fine of Rs.50,000/- with a default sentence of simple imprisonment for six months. It was also directed that if the fine amount was realised, the same should be paid to the victim as compensation. The appellate court, in appeal, modified the sentence to one of rigorous imprisonment for two years and maintained the fine amount and default sentence. The direction to pay compensation was also confirmed.

(2.) P .W.4 is the victim in this case and P.W.3 is her mother. The incident is alleged to have taken place on 14.4.2000. On that day, by about 6.00 p.m. P.W.4 had gone to the house of the accused to watch T.V. As per the prosecution case, while the daughter of the accused had gone to the shop, the accused inserted his finger into the private part of P.W.4 and thereafter made her to lay on the floor and laid on top of her. By that time, the daughter of the accused reached home and P.W.4 was let off. She went home crying and narrated the incident to P.W.3, her mother. P.W.3 conveyed the information to her husband who returned home at 6 p.m. P.W.4 was taken to Karothukuzhi Hospital. The doctor examined her opined that there was a slight injury on the private part of the victim. Later the victim was taken to the Government Hospital, Aluva, where P.W.1 examined her and issued Ext.P1 wound certificate. He also proved Ext.P7 discharge certificate. On getting information from the hospital, P.W.11 reached the hospital and recorded Ext.P3 first information statement said to have been furnished by P.W.3, the mother of the victim. P.W.11 registered crime as per Ext. P9 FIR. Investigation was taken over by P.W.9. He seized M.Os. 1 to 3 as per Ext.P4 mahazar. He prepared Ext.P5 scene mahazar, recorded the statements of witnesses, completed the investigation and laid charge before court.

(3.) LEARNED counsel for the revision petitioner pointed out that voire dire test was not conducted and without conducting the said test, evidence of P.W.4 cannot be taken into consideration at all. It is also pointed out that even going by the evidence of P.W.3, the victim was first taken to Karothukuzhi Hospital. But surprisingly enough, the prosecution has not produced any document from the said hospital nor examined the doctor who attended to the victim in the said hospital. Learned counsel pointed out that Ext.P1 shows that no injuries were noticed in the private part of the victim and that would belie the prosecution version. At any rate, according to the learned counsel, offence under Section 511 of Section 376 of I.P.C. cannot be attracted as there is no evidence to show that there was an attempted rape on the victim. Learned counsel pointed out that viewed from any angle, the sentence imposed is on the high side and does not warrant in the facts and circumstances of the case.