Kerala High Court
Ummar vs State Of Kerala on 11 July, 2025
CRL.A NO. 541 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
CRL.A NO. 541 OF 2014
AGAINST THE JUDGMENT IN SC NO.154 OF 2010 OF THE COURT OF
SESSIONS, KALPETTA, WAYANAD.
APPELLANT/ACCUSED:
UMMAR
AGED 58 YEARS
S/O.KUNHEETHU, AYYAPPAN KANDATHIL HOUSE, BEENACHI,
PAZHUPPATHUR KAVALA, PAZHUPPATHUR POST, SULTHAN BATHERY
BY ADV SRI.K.A.SALIL NARAYANAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM
OTHER PRESENT:
SR PP RENJITH GEORGE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.06.2025, THE COURT ON 11.07.2025 DELIVERED THE FOLLOWING:
CRL.A NO. 541 OF 2014
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C R
A. BADHARUDEEN, J
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Crl. Appeal No. 541 of 2014
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Dated 11th day of July 2025
JUDGMENT
The conviction and sentence imposed against the appellant, who is the sole accused in SC No. 154 of 2010 on the files of the Sessions Court, Kalpetta, are under challenge in this appeal at the instance of the accused. The state of Kerala is the respondent.
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2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor in detail. Perused the judgment as well as the trial court records.
3. The prosecution case is that, at about 11.00 am on 16.03.2010, the accused wrongfully restrained PW5, the minor daughter of PW1, by tying her to a coffee plant at Manthamkolly in Sulthan Bathery. Further, the accused criminally intimidated the victim with fear of death and also sexually molested her. Accordingly, investigation was initiated, alleging commission of offences punishable under Sections 341, 506(ii), and 511 read with 376 of the IPC, by the accused. On completion of the investigation, final report was filed, and the learned Sessions CRL.A NO. 541 OF 2014 4 2025:KER:51259 Court framed charge for the said offences and proceeded with the trial.
4. During trial, PWs 1 to 8 were examined, Exts. P1 to P9, as well as MOs 1 and 2, were marked on the side of the prosecution. After questioning the accused under Section 313(1)(b) of the Code of Criminal Procedure, an opportunity was given to the accused to adduce defence evidence. But no defence evidence was adduced. On evaluating the evidence, the learned Sessions Judge found the accused was guilty for the offences punishable under Sections 341, 506(ii), and 511 read with 376 of the IPC. Accordingly, he was sentenced as follows. CRL.A NO. 541 OF 2014 5 2025:KER:51259 "The accused is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.20,000 in default, rigorous imprisonment for three months for offence punishable under Section 511 of 376 (2) (f) of IPC. He is further sentenced to undergo simple imprisonment for one month for offence under Section 341 IPC. He is further sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000 in default rigorous imprisonment for one month for offence under Section 506(ii) IPC. Half of the fine amount, if realized, shall be paid over to the victim child towards compensation under Section 357(1)(b) Cr.P.C. The substantive sentences shall run concurrently. The accused is entitled to eligible set off under Section 428 Cr.P.C." CRL.A NO. 541 OF 2014 6 2025:KER:51259
5. While assailing the conviction and sentence imposed by the trial court, the learned counsel for the appellant/accused raised three specific points. The first point argued is that there existed previous animosity between PW1 and the accused, as the accused had provided a pathway to his neighbours, while denying the same to the family of PW1. He further argued that, based on the evidence of PW5, the victim of the alleged crime -- whose sole evidence was relied upon by the trial court to find that the accused was guilty for the offence under Section 511 read with Section 376 of the IPC -- the crucial incriminating overt acts were stated by PW5 for the first time before the court and the said overt acts not stated when her statement under Section 161 of the Code of Criminal Procedure, was recorded by the police. CRL.A NO. 541 OF 2014 7 2025:KER:51259 The learned counsel for the appellant/accused submitted that the overt acts which led to the finding that the accused committed an offence punishable under Section 511 r/w 376 of the IPC are based on material omissions. It is also stated by PW8, the Investigating Officer, that these material overt acts were not disclosed when the previous statement of PW5 was recorded under Section 161 CrPC. He also pointed out that PW1 has been in the habit of lodging complaints of sexual molestation with ulterior motives. It is pointed out that she had previously lodged a complaint against her sister's husband, which led to registration of S.C. No. 43 of 2014, where all the prosecution witnesses turned hostile to the prosecution under the guise of settlement, and the accused therein was acquitted. However, CRL.A NO. 541 OF 2014 8 2025:KER:51259 PW1 obtained benefits on the basis of the settlement. The learned counsel placed judgment in Sessions Case No. 43/2014 to substantiate his contention.
6. Strongly repelling the contentions raised by the learned counsel for the appellant/accused, the learned Public Prosecutor pointed out that, as regards the alleged previous animosity, not even a remote suggestion was made during cross-examination of PW1, and therefore, the contention regarding animosity cannot be accepted.
7. It is pointed out by the learned public prosecutor that, even though there may be omissions regarding the overt acts as pointed out by the learned counsel for the appellant, in the CRL.A NO. 541 OF 2014 9 2025:KER:51259 previous statement, attempt to penetrate the penis of the accused on the body of PW5 stated to the police. But during evidence, PW5 testified that after tying her, the accused removed her panties and pricked his finger into her vagina. Then the accused pricked his penis on her vagina. He also pricked on her body and abdomen. Therefore, the omissions need not be reckoned as material to disbelieve the evidence of PW5; otherwise, the allegations are proved beyond reasonable doubt, therefore the conviction and sentence do not require any interference.
8. On appraisal of the rival contentions, the questions to be decided are:-
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1.Whether the trial court went wrong in holding that the accused committed offence punishable under section 511 r/w 376 of the IPC?
2.Whether the trial court is justified in holding that the accused committed offence punishable under section 506(ii) of the IPC?
3.Whether the trial court is right in holding that the accused committed offence punishable under section 341 of the IPC?
4.Whether the verdict under challenge would require interference?
5.The order to be passed?.
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9. In this matter, the trial court relied on the evidence of PW5, the victim, to find the commission of the above offences by the accused supported by other evidence. In view of the rival arguments, particularly pointing out material omissions regarding the overt acts, it is necessary to evaluate the evidence of PW5. PW5 deposed that, at the time of occurrence, she was studying in the 3rd standard in Assumption School, Sulthan Bathery, and she was the eldest among the three children born to his parents. She deposed that the accused was the adjacent property owner. According to PW5, the occurrence was in between 10.30 a.m. and 11.30 a.m., on 16.03.2010, and she was at home since school was on leave as there was examination on the day. She deposed further that the crime occurred when her father went for job, her mother CRL.A NO. 541 OF 2014 12 2025:KER:51259 went to the panchayat office, and the other siblings also went to school and the anganwadi. At 10.30 hours, she put the bucket in front of the tap near her house to store water. While drawing water, she found an image behind her, and she identified him as the accused at the dock. There was a piece of cloth put on the tap to filter the water therefrom. The accused taken the cloth and tied the same on her face by closing her eyes, nose, and mouth. Then he tied her hands behind her backside and pushed her forward and tied her to a coffee plant. When she cried, he beat her and threatened to kill her if she would repeat crying.
10. During further examination, PW5 testified that after tying her, the accused removed her panties and pricked his finger into her vagina. Then the accused pricked his penis on her vagina. CRL.A NO. 541 OF 2014 13 2025:KER:51259 He also pricked on her body and abdomen. She stated further that he also caught hold on her breast and then she cried of pain. She identified MO1 as the cloth used to cover her mouth and MO2 as the cloth used to tie her hands. During cross-examination, regarding these overt acts that after tying her, (1) the accused removed her panties and pricked his finger into her vagina and (2) then the accused pricked his penis on her vagina, it was suggested that no such statements were given to the police by PW5. Then PW5 stated that she had given such statements before the police. But referring to the 161 statement of PW5, PW8 - the police officer who recorded the statement of PW5, when cross-examined, he testified that no such statements were given by the victim at the time when her statement was CRL.A NO. 541 OF 2014 14 2025:KER:51259 recorded by him. Here comes the significance of the omissions in the prosecution evidence as pointed out by the learned counsel for the accused.
11. Before analysing the omissions, which would have the effect of contradiction according to the learned counsel for the accused, the other evidence also to be discussed. PW1, examined in this case, is the mother of the victim. This crime was registered on the day itself at 01.00 p.m. (therefore it is recorded as the next day), recording the statement of PW1. She deposed about the occurrence. According to her, the accused attempted to molest PW1, and she reiterated the occurrence as stated by PW5. In fact, the evidence of PW1 is of limited significance since she is not an eyewitness to the occurrence, though she had given Ext.P1, the CRL.A NO. 541 OF 2014 15 2025:KER:51259 First Information Statement (FIS), which led to the registration of the FIR.
12. PW2 examined in this case is Dr. V.S. Rajan, who examined the victim and issued Ext.P2 certificate. PW2 stated that the victim was brought with history of alleged rape, but he did not record the history. According to him, there is no evidence of general violence. In order to prove the potency of the accused, Dr. K M Subash was examined as PW3, and he supported issuance of Ext.P3, which would suggest that 'there was no evidence for Ummer being impotent'. PW4 is another Doctor who attended PW5, the victim. He deposed that he had examined PW5 came with history of assault of rape and there was tenderness on her nose, as stated in Ext.P3. Even though Ext.P3, CRL.A NO. 541 OF 2014 16 2025:KER:51259 there was advice to have an examination, no documents have been produced by the prosecution to show the result of the same. Even though PW4 deposed that the undisplaced nasal bone fracture found on X-ray examination, the said evidence could not be appreciated, since no document suggesting the said fracture was produced by the prosecution. That apart, if such a medical document was available, prosecution ought to have incorporated offence punishable under Section 325 of the IPC also.
13. It is true that PW7 examined in this case stated that soon after the occurrence, she noticed PW5 in a condition so that her eyes were closed by using a cloth piece, and also after tying her hands behind her. When she reached near PW5, it was found that she was crying. When enquired, PW5 stated that it was done CRL.A NO. 541 OF 2014 17 2025:KER:51259 from behind by the accused, and she was untied. PW8 is the Investigating Officer who conducted the investigation. He supported the investigation.
14. The first point to be decided is whether the prosecution succeeded in establishing that the accused committed offence under section 511 r/w 376 of the IPC. Section 511 r/w 376 of IPC can be established by proving that there was attempt to commit rape.
15. In the instant case, as already pointed out, the evidence of PW5, there are ommissions regarding the overt acts which would lead to find commission of attempt to commit rape. It is pointed out by the learned counsel for the accused that in the 161 CRL.A NO. 541 OF 2014 18 2025:KER:51259 CrPC statement of PW5, the only overt act of sexual molestation stated is that the accused pricked his penis into her body and abdomen. But her evidence before the court that the accused removed her panties and pricked his finger into her vagina and then the accused pricked his penis on her vagina, not available in her previous statement.
16. Now it is necessary to decide as to whether these omissions are material to disbelieve the prosecution case as to commission of the offence under Section 511 r/w 376 of the IPC?. Section 511 of the IPC is a general provision to punish an accused who attempts to commit offences punishable with imprisonment for life or other imprisonment which are not CRL.A NO. 541 OF 2014 19 2025:KER:51259 covered by any other provisions of the IPC. The ingredients to attempt to commit an offence under Section 511 of the IPC are:-
1.Intention to commit;
2.Preparation to commit it;
3.Attempt to commit it;
When the attempt is successful, the offence is complete. So when an accused intends to commit an offence and making preparations to commit the same when attempting to commit it, but fails to accomplish the attempt, he is said to have committed an attempt to commit the said offence.
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17. In this connection, it is relevant to refer the definition of rape under section 375 of the IPC. Section 375 of the IPC provides that a man is said to commit rape if he:-
(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other CRL.A NO. 541 OF 2014 21 2025:KER:51259 person, under the circumstances falling under any of the following seven descriptions:-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome CRL.A NO. 541 OF 2014 22 2025:KER:51259 substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is under eighteen years of age.
Seventhly, - When she is unable to communicate consent.
18. No doubt, as pointed out by the learned Public Prosecutor in the previous statement of the victim (PW5), she stated that the accused pricked his penis on her body and abdomen and while giving evidence as PW5 she testified the said overt act before the court. But, regarding her statement, before the court that the accused removed her panties and pricked his finger into her vagina and then the accused pricked his penis on her vagina, the same were not stated before the police as deposed CRL.A NO. 541 OF 2014 23 2025:KER:51259 by PW8 who recorded her statement and as contended by the learned counsel for the accused. In this context, the definition of rape under Section 375(c) of the IPC, a man is said to commit rape when he manipulates any part of the body of a women so as to cause penetration into the vagina, urethra, anus or any part of body of such women. In the instant case, even though there are omissions as to the overt acts to the effect that the accused pricked his finger into her vagina and pricked his penis into the vagina, PW5 given evidence before the court that the accused pricked on her body and abdomen and caught hold on her breast, while attempting to commit rape. Regarding this evidence, she also given similar statement to the police. If so, ignoring the version of PW5 that the accused removed her CRL.A NO. 541 OF 2014 24 2025:KER:51259 panties and pricked his finger into her vagina and then the accused pricked his penis on her vagina was not stated before the police in the previous statement, in the evidence of PW5 attempt to commit rape by manipulating on the body and abdomen of PW5 so as to cause penetration on the genital of PW5 as defined under section 375(c) of the IPC could be gathered. In such view of the matter, it could not be held that because of the omissions, discussed hereunder, the trial court went wrong in finding that the accused committed offence punishable under Section 511 r/w 376 of the IPC. Wrongful restraint, as defined under Section 339 of the IPC, along with criminal intimidation of PW5 by the accused, is clearly evident from the evidence on record. Even though previous animosity is pointed by the learned counsel for CRL.A NO. 541 OF 2014 25 2025:KER:51259 the accused, no evidence forthcoming to see any previous animosity between the accused and the family of PW5. That apart, the allegation that PW1 is in the habit of falsely implicating poor persons in sexual assault cases, as argued by the learned counsel for the accused, cannot be accepted as a ground to disbelieve the prosecution case, in view of the genesis of case discussed with the support of convincing evidence. In such circumstances, there is no need to revisit the conviction, as the prosecution evidence sufficiently established commission of the aforementioned offences by the accused. In view of the matter, the conviction is confirmed.
19. Coming to the sentence, some sort of leniency can be shown. Accordingly, the sentence is modified as follows:-
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20. The accused is sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.50,000 in default, rigorous imprisonment for three months for offence punishable under Section 511 of 376 (2) (f) of IPC. He is further sentenced to undergo simple imprisonment for one month for offence under Section 341 IPC. He is further sentenced to undergo rigorous imprisonment for two years for offence under Section 506(ii) IPC. Half of the fine amount, if realized, shall be given to the victim (PW5) towards compensation under Section 357(1)(b) Cr.P.C. The substantive sentences shall run concurrently, and the default sentence shall run separately. The accused is entitled to set off under Section 428 Cr.P.C. granted by the trial court.
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21. In view of the aforesaid finding, the order suspending the sentence and granting bail to the accused stands cancelled. Consequently, the bail bond executed by the accused is also cancelled, with direction to the accused to surrender before the trial court forthwith. On failure to do so, the trial court shall execute the sentence without fail.
The Registry is directed to forward a copy of this judgment to the trial court for information and compliance.
Sd/-
A.BADHARUDEEN, JUDGE RMV