JOSHI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused, who faced trial for the offence punishable under Section 511 of Section 376 of Indian Penal Code was found guilty of the offence punishable under Section 354 of Indian Penal Code. He was therefore convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/-, in default of payment of which to undergo rigorous imprisonment for a further period of six months. Set off as per was allowed. It was also directed that if the fine amount is realised, a sum of Rs.4,000/- was directed to be paid as compensation to P.W.1.

(2.) THE incident which gave rise to the case is alleged to have occurred on 14.5.2005 at little past after midnight. P.W.1, whose children were employed outside, was residing with her husband. On the date of the incident her husband had gone out for a meeting and to attend a marriage function. Around midnight, it is stated that she heard a knock at the door and when she looked outside, she saw a person standing there. He told P.W.1 that her husband has been brought fully drunk and she may come out and take him in. As per the allegations, initially, P.W.1, the victim, refused to go outside and collect her husband. After ensuring that the person had covered a long distance, it is claimed that P.W.1 armed with a stick and along with her dog went to the place where her husband was alleged to be lying drunk. However, she did not find her husband and so she decided to return home. On the way back, the allegation is that she found the accused standing there with his shirt removed and no sooner than she reached near him, he grabbed her and attempted to commit rape on her. She offered stiff resistance and in the process, she suffered injuries. However, before the heinous crime could be committed, it is seen stated that a person was seen coming with a candle and which made the accused to flee from the place. Soon the husband of P.W.1 reached the place and carried P.W.1 to the nearby house of P.W.3. P.W.1 changed her dress and she was taken to the hospital in the autorickshaw of P.W.4. P.W.5, the doctor, examined P.W.1 and issued Ext.P2 certificate. On getting intimation from the hospital, P.W.7 went to the hospital and recorded Ext.P1 first information statement furnished by P.W.1. He registered crime as per Ext.P4 FIR. Investigation was taken over by P.W.8. He prepared Ext.P3 scene mahazar and seized M.O.1 as per Ext.P5 mahazar. He had the statement of P.W.1 taken under Section 164 of Cr.P.C. by P.W.9. He recorded the statements of witnesses, completed investigation and his successor-in-office, namely, P.W.10 laid charge before court.

(3.) TWO main grounds are seen urged in this appeal. It is pointed out that the evidence of P.W.1 is open to serious doubt in view of the several inconsistencies and contradictions in her evidence when read along with Ext.P1 first information statement. It is also pointed out that the evidence of P.W.1 would show that the accused was very familiar to her and a close friend of her husband in which case the narration of the assailant in Ext.P1 as is a total stranger betrays the prosecution case. It is also pointed out that in Ext.P2 document, which is the certificate issued by the doctor the cause is given by P.W.1 herself. She told the doctor that she was attacked by an unknown person. Referring to the evidence of P.Ws.1 to 4, it is pointed out that the accused is a very familiar person in the locality and in fact it was P.W.2, who has secured an employment for the accused, namely, P.W.1. Under these circumstances, if as a matter of fact, it was the accused who had assaulted her or outraged the modesty of the victim, namely, P.W.1, surely she would have mentioned him.