STATE OF KERALA Vs. DEEPAK @ DEEPU

JUDGEMENT

(1.) This appeal by the State challenges the acquittal of the accused for the offences punishable under Section 511 of Section 376(2)(f) and 506(ii) of Indian Penal Code. P.W. 2 is the victim in this case and P.Ws. 1 and 3 are her parents. The incident is said to have taken place on 12.4.1997 at about 12'o clock in the noon. On that day, as usual the father of the victim had gone for work. The mother, who runs a petty shop, had gone to purchase articles for the shop. The allegation is that during that period the accused invited the little girl to watch TV in his house and the girl went there. No sooner than she entered into the house, she was made to lie on a cot and she was brutally ravished. The further allegation is that hearing the cry of the child, P.W. 3 came from the shop and ascertained the reason and she was told that the child had been sexually assaulted. The victim was taken to the hospital and the doctor there examined her. She was admitted for a day in the hospital and on the next day she was discharged from the hospital. P.W. 1 on 14.4.1997 at 8.30 p.m. laid Ext. P1 first information statement before the Kalamassery Police Station. P.W. 1, the Sub Inspector of Police, recorded Ext. P1 FIS and registered crime as per Ext. P1(a) FIR. P.W. 15 took over investigation. He had Ext. P4 scene mahazar prepared and had M.O. 3 bed sheet seized from the place of occurrence. He had M.Os. 1 and 2, the dresses alleged to have been worn by the victim at the relevant time seized as per Ext. P5. As per Ext. P6(a) confession statement made by the accused on questioning him, P.W. 15 seized M.O. 4 knife as per Ext. P6 mahazar. He had Ext. P2 document obtained from the Medical Centre Hospital, Palarivattom where the victim was admitted and had undergone treatment for a day. He then had the victim examined at the Government Hospital, Ernakulam and obtained Ext. P10 certificate. After the arrest of the accused, he had him subjected to potency test and obtained Ext. P9 certificate. He recorded the statements of witness and found that no offence under Section 376 had been made out during investigation and only offence under Section 511 of Section 376 was made out Therefore, he filed a report before the court concerned seeking to have the offences altered to one under Section 511 of Section 376 and 506(ii) I.P.C. After investigation he laid final charge before court.

(2.) JFCM-II, Aluva, before whom final charge was laid took cognizance of the offences. Finding that the offence is one exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Ernakulam under Section 209 Cr.P.C. The said court made over the case to Assistant Sessions Court, North Paravur for trial and disposal.

(3.) The latter court on receipt of records and on appearance of accused, framed charge for the offences under sections 511 of Section 376(2)(f) and Section 506(ii) I.P.C. To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws. 1 to 15 examined and Exts. P1 to P11 marked. M.Os. 1 to were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.