MOHANDAS @ MOHAN P. Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sole accused in S.C.No.477/2005 on the file of the Additional Sessions Judge(Fast Track Court No.II ),Palakkad is the appellant herein.The offences alleged against the accused are punishable under Sections 305,306 and 376 I.P.C.The prosecution case,in a nutshell,is that the appellant committed rape of a 13 year old girl Kumari Saritha and she became pregnant out of the same.She along with her father Bharathan and mother Saraswathy committed suicide on 17.3.2003 between 10 a.m.and 5 p.m.It is alleged that the accused is responsible for the commission of suicide by them.The prosecution examined Pws.1 to 18 and Exts.P1 to P22 and Mos.1 to 4 have been marked in evidence.The case diary contradiction in the testimony of PW.2 was marked as Ext.D1.

(2.) THE accused was found guilty by the learned Sessions Judge of all the offences and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/ - and in default,to undergo rigorous imprisonment for one year;for offence punishable under Section 305 I.P.C .,to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/ - and in default of payment of fine,to undergo rigorous imprisonment for one year;for the offence under Section 306 I.P.C .,to undergo rigorous imprisonment for eight years and to pay a fine of Rs.15,000/ - and in default of payment of fine,to undergo rigorous imprisonment for two years for the offence under Section 376 I.P.C .,the sentences to run concurrently.

(3.) LEARNED counsel for the appellant submitted that the prosecution has failed miserably to establish the required proof to connect the accused in respect of the offence under Section 376 as well as under Sections 305 and 306 I.P.C.Learned counsel submitted that there is no reliable oral or medical evidence to support the allegation that the accused had committed rape on the deceased Kumari Saritha.It is submitted that even though it was found that she was pregnant more than 9 months,the prosecution failed to conduct DNA test to establish that the accused had any connection in the matter,especially with the parentage and the absence of the same will strike at the root of the prosecution case.It is submitted that the witnesses examined had no direct knowledge to support the allegation of rape.They are having only hearsay information with regard to the alleged pregnancy and nobody has spoken about any interaction between them at any point of time as well as any access leading to any sexual assault on the deceased Kumari Saritha.It is also submitted that Ext.P2 which is produced by the prosecution and relied upon as a suicide note of Kumari Saritha does not reveal that the accused was responsible for the impregnation.It is therefore submitted that it will not be safe to rely upon the same to convict the accused for such a serious charge.With regard to the offences under Sections 305 and 306 I.P.C.also,it is submitted that the evidence is so scanty and there is no evidence of any overt or otherwise exhortation,urge or intentional act on the part of the accused to show any abetment.It is therefore submitted that unless and until the prosecution is able to establish the elements required to constitute abetment within the meaning of Section 107 I.P.C .,there cannot be any conviction under Sections 305 and 306 I.P.C.At any rate,the learned counsel submitted that the appellant is entitled for benefit of doubt.Lastly,it is submitted that he has already undergone about four years of imprisonment and even if this Court finds the complicity of the appellant,the sentence may be reduced to that already undergone by him.