SANOSH S/O. GOKUL DAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein is the first accused in S.C 696/2010 of the Court of Session, Ernakulam. He and the 2nd accused faced trial before the court below under Sections 451 and 376 I.P.C, on the allegation that they trespassed into the house of the prosecutrix at about 5 p.m on 11.5.2009, with the object of committing rape on her, the 1st accused thus took his turn first, and subjected the lady to sexual intercourse without her consent, the 2nd accused waited outside for his turn, and when the complainant's daughter came there, the two accused ran off and escaped. The crime in this case was registered on 12.5.2009 on the complaint made by the victim alleging house trespass, assault and outrage of modesty. Thus, the F.I.R was originally registered under Sections 341, 451, 323 and 354 read with 34 of the Indian Penal Code. A case of rape or attempted rape was not specifically revealed at the initial stage by the victim of offence. After a few days, the victim gave statement to the Police that an attempt to commit rape was in fact made by the appellant when the other accused was waiting outside, that it was not merely outrage of modesty, and she did not reveal the truth at the initial stage due to some delicacy, or fear that it would affect the future of her daughter. It appears that out of the humiliation caused by the alleged incident, the victim's husband committed suicide during the investigation. On 8.6.2009, the victim gave statement to the learned Judicial First Class Magistrate-I, Aluva under Section 164 Cr.P.C revealing a case of rape. She also explained in the said statement that at the initial stage she did not reveal a case of rape due to fear that the future of the girl would be affected adversely if the whole truth is revealed. On 19.5.2009, the police submitted a report in court modifying the sections and making it a case of attempted rape, in view of the subsequent statement given by the victim. After 8.6.2009, the Police submitted another report on 12.6.2009 adding Section 376 I.P.C. Thus, initially, the crime was registered as a case of outrage of modesty, later, it was altered to one under Section 376 I.P.C read with 511 I.P.C as an attempted rape, and at the third stage, when the victim gave statement to the learned Magistrate revealing a case of rape, the Police made it a case of actual rape. After investigation, the Police submitted final report in court under Sections 451 and 376 I.P.C. The person, who allegedly committed the offence of rape is the first accused, and the allegation as against the second accused is that he waited outside for his turn and also facilitated the commission of rape by the 1st accused.

(2.) Both the accused appeared before the learned Assistant Sessions Judge, Kochi to whom the case was made over for trial from the Court of Session. During the trial process, the 2nd accused was discharged by the trial court under Section 227 Cr.P.C and the case proceeded against the 1st accused. He pleaded not guilty to the charge framed against him under Sections 451 and 376 I.P.C by the trial court, and claimed to be tried.

(3.) The prosecution examined 11 witnesses including the victim of offence and her daughter, and also proved Exts.P1 to P15 documents including the First Information Statement and the statements of the victim under Section 164 Cr.P.C. The MO1 and MO2 properties were also identified during trial. MO2 is the damaged watch of the appellant seized from the house of the victim. The prosecution allegation is that this watch was damaged when the victim kicked the appellant. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence that this is a false case foisted against him. The accused also examined DW1 on his side in defence.