LAWS(KER)-2016-5-55

SHIVAN Vs. STATE OF KERALA

Decided On May 31, 2016
SHIVAN Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The appellant herein challenges the conviction and sentence against him under Section 376 IPC. On the allegation that the appellant subjected a mentally retarded girl to sexual intercourse without her consent at about 9.30 p.m. On 25.07.2003, the appellant faced prosecution before the Court of Session, Palakkad in S.C.No.757 of 2005. The Alathur police registered the crime against the appellant under Section 376 IPC on the complaint of the step father of the girl. The victim, and her parents had been viewing television programmes at their residence in the night of 25.07.2003. At about 9.15 p.m. the victim went outside to urinate. Seeing her not coming back the parents got perplexed, and they immediately made a search in the nearby houses including those of the relatives. During the search, it is alleged, they heard some noise from near the well at the house compound. When the father of the girl lighted torch, they saw the girl lying at the side of the well, with the accused on her body, and indulging in sexual intercourse. Immediately the father of the girl caught the accused, but somehow he wriggled out and escaped. Without any delay the girl was taken to the hospital.

(2.) The accused pleaded not guilty to the charge framed against him by the learned Additional Assistant Sessions Judge, Palakkad under Section 376 IPC after hearing both sides, and he claimed to be tried. The prosecution examined eleven witnesses including the parents of the victim, and also proved Exts.P1 to P11 documents. The dress materials which the victim had worn at the time of the incident were identified during trial as MO1 and MO2. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances, but did not adduce any oral evidence in defence. However, Exts.D1 series and D2 series contradictions in the statements given by the material witnesses were marked. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for ten years, and to pay a fine of Rs.1 lakh under Section 376 IPC by judgment dated 08.07.2008. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

(3.) When this appeal came up for hearing the learned counsel for the appellant submitted that the evidence given by the parents of the victim, who are the main witnesses in this case, is really inconsistent, and the whole prosecution case is doubtful. On the other hand, the learned Public Prosecutor submitted that no other independent evidence is possible in this case, because only the parents of the girl had in fact seen the actual incident, and that just when the accused was caught by the father of the girl before the others reached at the spot, the accused wriggled out and escaped.