C.M. DANIEL Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused who was prosecuted for the offences punishable under Sections 450, 376 and 511 of Indian Penal Code and Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was found guilty on all counts and was convicted and sentenced to suffer rigorous imprisonment for 3 = years for the offence punishable under Section 511 of Section 376 I.P.C., two years for the offence punishable under Section 450 I.P.C. and six months for the offence punishable under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Substantive sentences were directed to run concurrently. He was granted set off also. The incident which gave rise to the case occurred on 11.12.2000 at about 1 p.m. P.W. 1 is the victim in this case. She was aged 12 years at the relevant time. She and her mother used to reside in a hut which infact belonged to the brother of the mother of P.W. 1. Her mother is a casual labourer. On 11.12.2000 at about 6.30 a.m. The mother of the victim left for work. By about 1 p.m. the accused came there with an enquiry to get any plantain for sale. Even though P.W. 1 said that there was no plantain to sell, he remained there. The allegation is that frightened P.W. 1 ran inside the house. The accused followed the child, caught hold of her and laid her on the ground and tried to ravish her. Fortunately, hearing her cries, P.W. 5 is said to have come there, which aborted the act attempted by the accused. The accused is said to have left the place on seeing P.W. 5. In the afternoon, when the mother came home, the information was conveyed to the mother and on the next day, P.W. 1 was taken to the hospital. While P.W. 1 was undergoing treatment in the Government Hospital at Pathanamthitta, intimation was received by P.W. 8. He went to the hospital and recorded the statement of P.W. 1, which is marked as Ext. P1. He prepared the body note and after returning to the police station registered crime as per Ext. P1 (b) First Information Report. He seized M.O. 2 dress belonging to P.W. 1 as per Ext. P6 mahazar and M.O. 1 churidar as per Ext. P4 mahazar. He recorded the statements of witnesses, had the accused arrested and subjected him for potency test. In the meanwhile, P.W. 1 was examined by P.W. 3, who furnished Ext. P2 certificate. Investigation was conducted by the successor -in -office of P.W. 8, namely, P.W. 9, who obtained the necessary records, completed investigation and laid charge before court.

(2.) JFCM Court, Ranny, before whom final report was laid, took cognizance of the offence. Finding that the offences are exclusively triable by a special court, the case was committed to Sessions Court, Pathanamthitta. The said court, on receipt of records, and on appearance of the accused, framed charges for the offences punishable under Sections 511 of Section 376 and 450 of I.P.C. and Section 3(1)(xi) 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, examined P.Ws. 1 to 9 and had Exts. P1 to P10 marked. M. Os. I, I(a) and II were got 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 in evidence against him and maintained that he is innocent. He would point out that the excise officers conducted a raid in the house of P.W. 1, from where illicit arrack was seized. They were under the belief that it was on the information furnished by the accused that the said raid was conducted and in order to wreak vengeance a false complaint has been laid. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.

(3.) LEARNED counsel appearing for the appellant pointed out that the court below has not critically analysed the evidence in the case and has omitted to take note of the contradictions, inconsistencies, embellishments and developments in the evidence of P.Ws. 1, 2 and 5. P.W. 1 is the victim. In the FIS, it is pointed out that in the earlier portion of the FIS she has stated that she was wearing churidar and in the latter portion she has stated that she was wearing a nighty and shirt. In her evidence she has stated that she had handed over the churidar to the police. The evidence of P.W. 8 is to the effect that the churidar was handed over to him by the mother of the victim. It is pointed out by the learned counsel for the appellant that surprisingly enough, the mother of the victim was not examined by the prosecution for reasons best known to them. Referring to the evidence of P.W. 2, it was pointed out that going by his evidence, when he reached the hut where P.W. 1 was residing, hearing a cry, he found P.W. 5 there and when he enquired about the matter, P.W. 5 asked him to look inside the room. When he looked inside the room, he saw P.W. 1 lying naked and the accused running away from the place through the kitchen door. Referring to the evidence of P.W. 5, learned counsel pointed out that P.W. 5 has no case that P.W. 2 had either came there or asked about what had transpired there. His evidence is to the effect that when he reached the place hearing the cries of P.W. 1, he found the victim lying on the floor and the accused lying on top of her. He would further say that on seeing P.W. 5, the accused came out of his house and fell on his feet and then he ran away. Learned counsel for the appellant pointed out that the claim of P.Ws. 1 and 2 that the accused had left through the back door, i.e., kitchen door is belied by the scene mahazar which would show that no such door is seen noticed.