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:
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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
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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.
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"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."
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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.
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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,
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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
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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
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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.
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
