STATE OF KERALA Vs. SIVADASAN

JUDGEMENT

(1.) State has preferred this appeal under S.377(1) of the Code of Criminal Procedure for the enhancement of the sentence. The accused was originally convicted by the Assistant Sessions Judge, Palghat for the offence punishable under S.376 read with S.511 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years and a fine of Rs. 1000/-. The Sessions Court, Palghat Division interfered with the finding of the Trial Court and altered the conviction and sentence. The accused has now been found guilty of offence under S.354 IPC and sentenced to pay a fine of Rs. 500/- and in default to undergo imprisonment for a period of three months. The State seeks for enhancement of sentence.

(2.) The accused is alleged to have attempted to commit rape of Pw. I who was aged 13 1/2 years at the time of the occurrence. On 28-1-1984 at about 1 p. m. Pw. 1, Usha was collecting cow dung from a property known as Kurukkenkundu in Nochur village of Palghat District. The accused stealthily came near Pw. 1 and lifted her and took her to a slope of hill and made her lie in the shade of a palmyra tree and attempted to rape her. Pw. 1 made a hue and cry and Pws. 2 and 3 who have been residing near the scene of occurrence came to the spot and saw Pw. 1 lying on the ground and the accused pressing his body against the body of Pw.1. Pws. 2 and 3 shouted at the accused to go away from the place. They threw a handful of mud at the accused and be collected his cloth and left the place.

(3.) Pw. 3 gave intimation regarding this incident to the mother of Pw. 1. In the evening Pw. 1 was taken to the nearby Government Hospital, Alathur. Pw. 8 examined Pw. I and issued Ext. P6 wound certificate. There was an abrasion of 2 x 1 cm. on the left knee and there were also complaints of pain on both cheeks and neck. No injuries were found on the private parts. Pw. 8 gave intimation to the Police and Pw. 10 the Circle Inspector of Police recorded the first information statement from Pw. 1. Pw. 10 took over the investigation. He prepared Ext. P4 scene mahazar. Clothes worn by Pw. I were taken into custody and on the next day the accused was arrested and he was sent for medical examination. Pw. 9, the doctor examined him and issued Ext. P8 potency certificate.