imposed against him in the said case dated 21.06.2016.
2. Heard the learned counsel for the
appellant/accused. Also heard the learned Public Prosecutor
in detail. Perused the verdict impugned and the evidence
3. Here the prosecution alleges commission of
4. The prosecution case in brief is that around at 2:00
p.m. on 12.12.2010, the accused with an intention to
village bearing door No.II/540. Thereafter the accused
modesty was outraged. Further the accused forcefully
intercourse and thereby committed the aforesaid offences.
5. On getting the matter before the Additional
tried the case. During trial, PW1 to 16 were examined,
the prosecution. Ext.D1 was marked on the side of the
defence. No other defence evidence adduced.
6. Finally the Additional Sessions Court found that the
450, 354 and 377 of the IPC. The sentence imposed on the
7. While assailing the verdict, it is submitted by the
life. According to the learned counsel, though the serious
evidence of PW1, the victim. Thus none of the offences
convincing evidence. It is also pointed out that there is
04.01.2011. It is also submitted that Ext.P1 was also
while issuing Ext.P3 certificate. According to him, even prior to
same did not form part of the prosecution records. The
accusations made against the accused are false.
8. The learned Public Prosecutor strongly supported
the offence little bit late than the date of occurrence. In the
9. According to the learned Public Prosecutor, the
10. The following points arise for discussion and
5. Order to be passed?
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Point Nos. 1 to 5:
11. The learned Additional Sessions judge has given much
emphasis on the evidence of PW1, the Victim to find commission
of the above offences by the appellant/accused.
12. PW1, the prosecutrix testified that she was residing
with her parents at Chunangad in Ottapalam. According to
her, on the date of occurrence she alone was there in her
house. Her father had gone to the cattle shed for attending
the newborn calf, her elder sister had gone for her studies
and the younger siblings went for playing. Her mother had
gone for collecting hay for the cow and she was left alone
in the house. According to her, at around 1 - 2 P.M while
she was watching T.V, a stranger came over there and
enquired of her parents. When she interacted, he inquired
whether they would sell bicycle and she answered in the
negative. He asked her name and she replied. He then
went away and after a short while he again came back. She
had testified that on his first visit he was wearing a brown
colour shirt and he returned back his clad was green in
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colour. He at once rushed into her room and suddenly
closed the door. Although she screamed for her father, at
once the accused gagged her mouth and tied around with
her father's cloth. He tied up her upper and lower limbs
with his clads. Before that he ungarbed her. He was
inebriated and then he made her to lay down and kept
himself close to her; he cuddled her bosom and forcefully
possessed her lips. He squeezed her vagina and beat her
hardly. When she resisted, he spit on her face. He then
forcefully penetrated his sexual organ to her mouth untying
the cloth put around. When she refused to open her mouth
he beat her. He photographed her porno.
13. She deposed that then accused put a knife on her
belly and scared her against disclosure of this event with
dire consequences that her father would be killed. Further
the accused threatened her that he would show her nude
photographs to his friends and would show the same in
Internet. When her father knocked the door, he untied her
and moved beneath the cot. On seeing her in such a
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posture, her father brought her out. By that time the
accused got up and came out through the kitchen door and
came over to the front side and conversed with her father.
She out of scare and fright did not reveal the incident to
her father then and there. According to her, after a short
while her mother and sister came back to home. He again
asked her mother for sale of bicycle and she replied in the
negative. She told her sister that this man forcefully hugged
her and took her photograph. Though her sister conveyed the
matter to their mother, the latter did not take it seriously.
14. Her version further is that during night she felt
pain on the body and stomach, and her mother took her to
the Taluk Hospital, Ottapalam, from where she was given
first aid and then referred to Valluvanad Hospital,
Ottapalam. She testified that at the hospital she was
subjected to detailed clinical investigation by scanning
and had given two injections and sent her back to
home. In either of these two hospitals she did not
reveal the incident. Her version further is that on
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the next day she had gone to School and the accused came
over there also and threatened her showing his mobile
phone that he would flash her nudity all around and
intimidated her from divulging the incident to her parents.
On that night also she felt uneasy. She was again taken to
Valluvanad Hospital by her mother. When the doctor asked
about the reason for which she was scared of, her mother
told that a stranger forcefully hugged her. She was
admitted in the hospital. When her mother had gone out for
buying medicine, the accused came there and peeped
through the window to threaten her. She had informed the
same to her mother. Then she could learn from her mother
that he was the son of Parukutty. On the next day, when
the doctor interrogated her, she told the whole incident.
She identified Ext.P1 as the statement she had given before
the doctor and her mother also signed Ext.P1. Ext.P1 is in
the letter pad on Valluvanad Hospital, Ottapalam Ltd. (A multi-
disciplinary Hospital). She further stated that a complaint was
lodged before the Vanitha Cell, which she identified as
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Ext.P2, in which also herself and her mother signed. Ext.P2
is a signed statement of the victim recorded by the Circle
Inspector of Police, Women Cell, Palakkad, on 27.12.2010
in the presence of her mother.
15. In Ext. P2 also PW1 narrated the casual response
expressed by her mother on having been told by her elder
sister that the victim was hugged by the accused. The
version of PW1 found to be consistent that she disclosed
the entire incident at the Valluvanad Hospital when she was
again taken over there for treatment.
16. PW1 during her examination identified MO1 and
MO2 as the inner outfits worn by her on the date of
occurrence. Even though PW1 was subjected to searching
cross examination, nothing elicited either to shake or to
make her testimony unbelievable.
17. In addition to the evidence of PW1, PW2 the
mother of the victim was also examined on the prosecution
side. She deposed that the occurrence was on 12.12.2010
at Chunangadu Madathumpilli House, during this time her
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cow delivered and she went to purchase hay from the
house of Manorama Teacher and returned back in between
2:30 p.m.and 3:00 p.m. On return she found the accused
on the courtyard of the house after keeping his shirt
hanging on his hand and when she asked why he was
there, he replied that he came to purchase a cycle which
was offered for sale. She deposed further that, the accused
found to be intoxicated. During this time her husband, PW3
was in the cattle shed. When it was informed to her by
daughter Bindu that the accused caught hold PW1 and took
her photograph, she did not care about that because she
was engaged in the care of the cow. Later PW1 disclosed
stomach pain and she was taken to the Government
Hospital, Valluvanad. Even though the doctor advised to
admit her, it was not done due to presence of young
children at home. On the second day, at 8:00 p.m., PW1
felt stomach pain and she was taken again to the hospital.
Hence she was admitted there. When the nurse informed
that the accused threatened PW1 at hospital, PW2 told that
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the accused was the son of one Parukuttty and Krishnan
Ezhuthachan. She identified the accused at the dock.
18. On 27.12.2010 they reached the Vanitha cell and
lodged Ext.P2 and produced MO1 and MO2 before the
police. Apart from the evidence of PW2, PW3 also support
of the versions of PWs 1 and 2. The evidence of PW2 and
PW3 also failed to be shaken by the defence with the aid of
cross examination, though they were cross-examined
thoroughly. In Ext.P5, the certificate issued by the Doctor,
it was stated that she had examined the victim but she did
not find any evidence of sexual violence. Considering the
evidence of PW1, a delayed examination of the victim may
not show much evidence for sexual assault.
19. In order to prove the age of the victim, PW8 the
headmistress, LSN Girls High School, Ottappalam, was
examined and Ext.P6, the extract of School Admission
Register was marked showing the date of birth of the victim
as 22.01.2000 and as per which evidently, PW1 is a minor
girl. Ext.P7 is the scene mahazar prepared in this case.
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PW9 and PW12 supported of the same. In order to prove
the place of occurrence, Ext.P12 certificate issued by PW15
was given emphasis by the Sessions Court and in fact the
same is not at all disputed.
20. The question to be decided in this case whether
the offences alleged against the accused/appellant are
proved by the prosecution beyond reasonable doubt to
record conviction and sentence.
21. Sections 354, 377 and 450 of IPC before
amendment (ie. during the period of occurrence) are as
under:
"354. Assault or criminal force to woman with intent
to outrage her modesty.--Whoever assaults or uses
criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her
modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or
with fine, or with both.
377. Unnatural offences.--Whoever voluntarily has
carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with
imprisonment for life, or with imprisonment of either
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description for a term which may extend to ten years, and
shall also be liable to fine.
Explanation.--Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in
this section.
450. House-trespass in order to commit offence
punishable with imprisonment for life- Whoever
commits house-trespass in order to the committing of any
offence punishable with imprisonment for life, shall be
punished with imprisonment of either description for a
term not exceeding ten years, and shall also be liable to
fine."
22. In the decision reported in Anwesh Pokkuluri
and Others V. Union of India [(2018) 10 SCC (1)] the
Apex Court considered the constitutionality of 377 of IPC
and held as under:
"Section 377 IPC, so far as it penalises any
consensual sexual relationship between two adults,
be it homosexuals (man and a man), heterosexuals
(man and a woman) or lesbians (woman and a
woman), cannot be regarded as constitutional.
However, if anyone, which includes both man and a
woman, engages in any kind of sexual activity with
an animal, the said aspect of Section 377 is
constitutional and it shall remain a penal offence
under Section 377 IPC. Any act of the description
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covered under Section 377 IPC done between two
individuals without the consent of any one of them
would invite penal liability under Section 377 IPC.
Testing Section 377 IPC on the principles
evolved under Articles 14, 19 and 21 of the
Constitution, it is clear that it neither withstands the
sanctity of dignity of an individual, expression of
choice, paramount concept of life, nor it allows an
individual to lead to a life that one's natural
orientation commands. That apart, more
importantly, such a gender-neutral offence, with the
efflux of time, should not be allowed to remain in
the statute book especially when there is consent
and such consent elevates the status of bodily
autonomy."
23. Thus by the above decision the Apex Court held
that the consensual sexual relationship between two adults,
viz., man and a man, man and a woman and a woman and
a woman is not an offence under Section 377 of IPC. But
the said dictum of law would not apply when the victim is a
minor. In the instant case, it is argued by the learned
counsel for the accused/appellant that no evidence is
forthcoming from the version of PW1 regarding carnal
intercourse as provided under Section 377. But the learned
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Public Prosecutor would submit that in the evidence of PW1
it was stated that the accused put his penis on the mouth
of the victim and therefore the offence is completed. On
scrutiny of the evidence of PW1 to address this contention,
she categorically deposed that the accused forcefully
penetrated his penis into her mouth after untying the cloth
put around when she resisted to open her mouth. This
categorical evidence established that there was carnal
intercourse to find the commission of offence under Section
377 of IPC.
24. Thus from the oral evidence of PW1, the
ingredients to bring home an punishable under Section 377
of IPC is fully made out and thus the prosecution succeeded
in establishing the said offence. Therefore, the said finding
entered into by the Additional Sessions Judge is only to be
confirmed.
25. It is argued by the learned counsel for the
accused/appellant that in order to bring home an offence
under Section 450 IPC,house tresspass shall be
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in order to commit an offence punishable with
imprisonment, on the premise that the prosecution failed to
prove the ingredients to constitute an offence under Section
377 of IPC. But as already found, the prosecution
succeeded in proving commission of offence under Section
377 of IPC by the accused. It is vivid that for unnatural
offences also the maximum punishment is imprisonment for
life as such offence under Section 450 of IPC would attract
into the facts of this case. Therefore, this contention also
would not yield.
26. Coming to Section 354 of IPC, assault or use of
criminal force to any woman intending to outrage or
knowing it to be likely that he will thereby outrage her
modesty. The evidence of PW1 satisfies the said
requirements. Therefore, the conviction entered by the
Special Court for Sections 354, 377 and 450 IPC is liable to
be confirmed.
27. As regards to the delay in lodging the FIS and
consequential registration of FIR are concerned, PW1 and
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PW2 categorically justified the reasons for the delay and
the same are found to be acceptable in cases where sexual
assault against a minor is the subtractum of the
prosecution case. Thus the contentions raised by the
learned counsel for the accused/appellant to unsettle the
conviction imposed by the learned Sessions Court is found
to be untenable.
28. Coming to the sentence, for the offence punishable
under Section 377 of IPC the Sessions Court imposed
sentence of imprisonment for 7 years and for the offence
under Section 354 of IPC, rigorous imprisonment for two
years, and for the offence under Section 450 IPC, rigours
imprisonment of four years and also payment of fine.
Considering the request made by the learned counsel for
the appellant, I am inclined to modify the substantive
sentence for the offence punishable under Section 377 of
IPC as rigorous imprisonment for a period of five years
while maintaining all other sentences imposed by the
Additional Sessions Judge as confirmed.
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29. In the result, this appeal stands allowed in part by
confirming the conviction and modifying the sentence as
indicated above.
30. The order granting suspension of sentence and
bail to the accused and the bail bond executed by the
accused/appellant stand cancelled. The appellant/accused
is directed to surrender before the Additional Sessions
Court, Palakkad, forthwith to undergo the modified
sentence. On failure to do so, the Additional Sessions
Court is directed to execute the sentence without fail.
The Registry is directed to forward a copy of this
judgment to the 1st Additional Sessions Court, Palakkad, for
information and compliance without fail.
Sd/-
A. BADHARUDEEN
JUDGE
MJL
