VIJEESH AND SHIJO Vs. STATE OF KERALA

JUDGEMENT

(1.) The accused, two in number, faced prosecution for the offences under Sections 376(2)(g) and 506(i) of Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and they are found guilty of the offence punishable under Section 376(2)(g) of I.P.C. only. They were, therefore, convicted and sentenced to undergo rigorous imprisonment for ten years each and to pay Rs. 20,000/- each as fine with a default sentence of rigorous imprisonment for one year each. It was also directed that if the fine amount is realised, a sum of Rs. 20,000/- shall be paid as compensation to P.W.1. Set off as per law was allowed. They were acquitted of the other offences charged against them. P.W.1 is the victim in this case. Her father had left her long ago and she was residing with her mother. She belonged to Scheduled Tribe and she had studied upto 5th standard. On 5.9.1998 she had gone to the house of her uncle and after taking lunch, her uncle and aunt went for a movie and she and the daughter of her uncle alone were at home. Going by the initial allegation, at about 3 p.m. in the noon, the accused is said to have come over to the house where P.Ws. 1 and 6 were staying and told P.W.1 that she would be abducted in the night. She ran inside and conveyed the information to P.W.6. The further allegation is that at 8 p.m. in the night on the same day, the accused persons again came to the house and called P.W.1 out. She went out to them. No sooner than she got out of the house, P.W.6 followed her. Seeing the accused, P.Ws.1 and 6 ran through the garden land of one Sami and they were chased by the accused. P.W.1 was apprehended by the accused, laid her on the ground and going by the initial allegation, she was gagged by one of the accused and attempted to rape her. It is alleged that the first accused removed her ear studs. She warded off further attack from the accused and cried aloud. That made the accused to ran away from the scene. Frightened, it is claimed, both P.Ws.1 and 6 remained in the garden land for the rest of the night. On the next day, when the uncle and aunt of P.W.1 came in search of them, they were found in the coffee plantation of Sami and they have told about what had transpired on the previous night. On 7.9.1998, P.W.1 was taken to the hospital and admitted in the said hospital for treatment.

(2.) On intimation being given from the hospital, P.W.10, the Sub Inspector of Police went over to the hospital and recorded Ext. P1 first information statement given by P.W.1. P.W.10, on the basis of Ext. P1, registered crime as per Ext. P1(a) FIR. Investigation was taken over by late P.K. Haridas, the then Dy. S.P. He prepared Ext. P15 scene Mahazar and seized M.O.1 as per Ext. P9 seizure Mahazar. He recorded the statements of witnesses. Subsequent investigation was taken over by P.W.14, who also recorded the statements of witnesses and who, during his investigation, found that the second accused had no role to play in the incident and filed a report seeking to have his name deleted. He then had the statements of P.Ws.1 and 6 taken under Section 164 Cr.P.C. by P.W.7, who recorded the statements as per Exts. P2 and P7. Finding that in her Statement under Section 164 Cr.P.C., P.W.1 had implicated the second accused, a report was filed by P.W.14 to incorporate the name of second accused also. It may be mentioned here that in the hospital, P.W.1 was examined by P.W.13, who prepared Ext. P13 report. On the arrest of the accused they were subjected to potency test and obtained Exts. P11 and P12 reports. The investigating officer had the material seized during investigation sent for chemical examination and obtained Exts. P14 report.

(3.) Chief Judicial Magistrate Court, Kalpetta, before whom final report was laid, took cognizance of the offences. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kalpetta. The said court framed charges for the offences punishable under Sections 376(2)(g) and 506(i) of I.P.C. and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 13 examined and had Exts. P1 to P18 marked. The defence had the contradictions and inconsistencies in the evidence marked as Exts. D1 and D14. M.O.1 was got identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they are innocent. On finding that they could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence.