MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) MOIDU, the appellant stands convicted by the Asst. Sessions Judge of Kasaragod in Sessions Case 16 of 1966 under S. 307,354, and 326 IPC. , and sentenced to rigorous imprisonment for five years each under s. 307 and 326 and two years under S. 354. The sentences are to run concurrently.

(2.) THE case against him is that on the 22nd of September 1965 at 4 P. M. he used criminal force at one Madhavi daughter of one Kunhambu nair by catching hold of her from behind and shooting her with a gun. Madhavi is a married woman aged 23; but at the time of the occurrence the marriage had been dissolved and she was staying with her brother Krishnan Nair. Pw. 2 in the case is the wife of Krishnan Nair. THE accused is a young man aged about 20. About a year prior to the occurrence he had once attempted to outrage her modesty. THE stir created by that incident was allowed to cool down finally by his tendering an apology on the advice of mediators. On the 22nd of September, 1965 at about 4 p. m. the complainant Madhavi, with Pw. 2 was engaged in collecting firewood in the reserve forest. THE accused availing himself of the opportunity made his appearance there and approaching Pw. 1 from behind caught hold of her hand, seized the billhook that she had for cutting firewood and threw it aside. She struggled with him for some time and in the course of the struggle she was thrown on the ground on her back. His purpose it is stated, was to ravish her. On the ground also they struggled, and finally she managed to extricate herself from the grip of the accused. THE accused then stood up and took his gun which he had placed near a tree and fired a shot at her. THE shot hit her chest above the sternum and caused a bleeding injury. Pw. 1 raised an outcry which attached Pw. 2 to the spot and on seeing her, the accused took to his heels with the gun. Pw. 1 staggered and was about to fall on the ground, when she was held by Pw. 2. She told Pw. 2 all that had happened. Pw. 6 is a person who heard the sound of a gun and within a few minutes saw the accused running towards the south. Pw. 3 and one Malingan Nair were on their way to a nearby place called "kanathur. " On hearing the hubbub they proceeded to the scene of occurrence and on the way they saw the accused running with the gun. On proceeding further, Pw. 3 saw the injured being supported by Pw. 2, and to him also the occurrence was narrated by them. Pw. 5 the elder brother of pw. 1 was also attracted to the scene and Pw. 1 was removed by him in a car to the Govt. Hospital, Kasaragod. At about 9-45 p. m. she was admitted in the hospital. Pw. 9 the head constable went to the hospital at 11-20 p. m. and recorded the F. I. statement. Her dying declaration was recorded by the sub-Magistrate, Kasaragod. On being examined by the doctor it was found that pw. 1 had four injuries on her person. Injury No. 1 was a lacerated wound 21/2" x 11/2" bone deep, situated on the chest in front of the middle of sternum. THE surrounding area had been charred and ecchymosis had extended to 2" all around the wound. Injury No. 2 was an abrasion and a contusion over the right side of the neck; ecchymosis extended to 11/2" x 1" and was irregular in shape in front of the neck. Injury No. 3 was a contusion and abrasion over the posterior anterior aspect of the right elbow joint over the right forearm. Contusion was present on the anterior and posterior aspect of left forearm around the wrist joint and injury No. 4 was an abrasion over the right hypochordium and there was an abrasion over the left ankle-joint anterior aspect. According to the doctor, injury Nos. 2 to 4 could be caused in the course of a struggle and injury No. 1, which is the most serious one could be caused by gun shot.

(3.) THE learned judge has also convicted the accused under s. 354 assault or use of criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It has clearly come in the evidence that Pw. 1 was caught hold of by her hand from behind and in the struggle that followed she was thrown on the ground on her back. That this would amount to assault or criminal force contemplated in S. 354 cannot be doubted, even though the learned counsel appearing for the appellant tried to point out that, viewed in the modern social set up, catching hold of a woman by the hand or pushing or pulling her would only be a mere trifling which no woman would take to heart. It is too much to claim that society, Indian society in particular, has reached such a height of social or moral regeneration. I would leave it at that; no separate sentence is, however, called for under S. 354 I. P. C. in the circumstances of the case. My conclusion, therefore, is that the accused has committed an offence under S. 324 i, P. C. and he is liable to punishment therefor.