IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE13H DAY OF JANUARY201423RD POUSHA, 1935 CRL.A.No. 1520 of 2003 (E) --------------------------- AGAINST THE ORDER
/JUDGMENT
IN SC982003 of SESSIONS COURT, ERNAKULAM DATED0608-2003 APPELLANT : ACCUSED ------------------------ ABRAHAM @ AVARACHAN, S/O.KORATHU, AGED31YEARS, AREEKKAL HOUSE, POIKKATTUSSERY KARA, NEDUMBASSERY VILLAGE. BY ADVS.SRI.C.A.CHACKO SRI.I.J.AUGUSTINE RESPONDENT: ---------------------------- THE DY. SUPDT. OF POLICE, ALUVA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON1301-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J.
-------------------------------------- Crl.A.No.1520 of 2003 --------------------------------------- Dated this the 13th day of January, 2014 JUDGMENT
The above appeal is directed against the judgment dated 6/8/2003 in S.C.No.98 of 2003 of the court of Sessions, Ernakulam, as the appellant who is the sole accused therein is aggrieved by the conviction and sentence imposed on him for the offence under Sections 451 and 323 of IPC.
2. The prosecution case is that, on 28/4/1997 at about 8.30 p.m., when the mother of PW.1-victim had gone to the nearby Tharavadu house for grinding and PW.1 alone was present in the house and studying in the house, the accused in order to commit certain offences trespassed into the house of PW.1 and caught hold of her hand and pulled her down to the courtyard. He used criminal force on PW.1 with the alleged intention to outrage her modesty by such assault. The accused not being a member of Scheduled Caste or Scheduled Tribe, he being a Christian committed the offence against PW.1, who Crl.A.No.1520 of 2003 2 is a member of the Scheduled Caste (Pulaya) and thereby the accused committed the offences punishable under Sections 451, 323 & 354 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities Act).
3. On the above allegation Crime No.100 of 1997 was registered in the Chengamanad Police Station and on completing the investigation, a report laid in the Judicial First Class Magistrate Court-I, Alappuzha. Accordingly C.P.No.3 of 2001 was registered and subsequently the learned Magistrate committed the case to the Sessions Court, where S.C.No.98 of 2003 was instituted. Thus, when the accused appeared, after hearing both the prosecution as well as the defence, a formal charge was framed against the accused for the offence punishable under Sections 451, 323 & 354 of IPC and Section 3(1)(xi) of SC/ST (Prevention of Atrocities) Act, which when read over and explained to the accused, he denied the same and pleaded not guilty. Consequently the prosecution adduced its evidence by examining PWs.1 to 11 and produced Exts.P1 Crl.A.No.1520 of 2003 3 to P7 documents. The learned Judge finally found that it was not possible to conclude that the accused has committed the offence punishable under Section 354 of IPC and offence under Section 3(1) (xi) of SC/ST (Prevention of Atrocities) Act. However, it is found that the prosecution has succeeded in establishing that the accused has committed the offences punishable under Sections 323 and 451 of IPC. Thus, the accused is convicted for the offence under Section 323 & 451 of IPC and on such conviction he is sentenced to undergo simple imprisonment for three months and to pay fine of `5,000/- and in default of payment of fine he is directed to undergo simple imprisonment for one month under Section 451 of IPC. Whereas, on conviction for the offence under Section 323 of IPC, the accused is sentenced to undergo simple imprisonment for two months and to pay a fine of `1,000/- and in default, to undergo simple imprisonment for ten days. It is ordered that, in case of realising the fine amount, the same shall be paid to PW.1. It is also ordered that the Crl.A.No.1520 of 2003 4 substantial sentence shall run concurrently and set off is allowed and the accused is acquitted of the offences under Section 354 of IPC and 3(1)(xi) of SC/ST Act. It is the above order of conviction and sentence for the offence under Section 323 and 351 of IPC that are challenged in this appeal.
4. Heard Sri.C.A.Chacko, the learned counsel for the appellant and Sri.N.Suresh, the learned Public Prosecutor for the State.
5. To prove the prosecution case, as I mentioned above, PWs.1 to 5 were examined. PW.1 is the victim, who is allegedly assaulted by the accused and solely on the basis of the evidence of PW.1, the trial court found the case in favour of the prosecution. PW.2 to 5 are the witnesses, who had rushed to the scene on hearing the cry of PW.1 the victim. PW.2 is the mother of PW.1. PW.3 and PW.4 are neighbours of PW.1. PW.5 is the victim's mother's sister's husband, who had come to the Tharavadu on the date of occurrence. Except PW.4, all other witnesses supported the prosecution case. Crl.A.No.1520 of 2003 5 6. The learned counsel for the appellant submitted that the occurrence was during the year 1997 and thereafter the accused as well as the victim married different persons and now they are leading separate peaceful married life. Therefore, according to the counsel, in the matter of sentence, a lenient view may be taken. According to the learned counsel, even if it is admitted for the sake of argument, that the accused has committed the house trespass, no offence under Section 451 of IPC would attract, since no injury is sustained by PW.1 at the instance of the accused and therefore Section 451 of IPC is not attracted. On the other hand, the learned Public Prosecutor submitted that the evidence of PW.1 coupled with the evidence of PW.6, the doctor who examined her and Ext.P3 wound certificate would show that PW.1 had sustained injury and therefore the trial court is fully justified in convicting the appellant for the offences under Sections 451 and 323 of IPC. Crl.A.No.1520 of 2003 6 7. I have carefully considered the submissions made by the learned counsel for the appellant and the learned Public Prosecutor. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the trial court is justified in convicting the appellant for the offence under Sections 323 and 451 of IPC.
8. I have already referred to the evidence and materials on record. As rightly pointed out by the learned Judge of the trial court, the overt act and the offence alleged against the accused are tried to establish by the prosecution through the sole evidence of the victim-PW.1, since, even according to the prosecution the other occurrence witnesses arrived at the scene after the incident. So, the further question to be considered is how far the evidence of PW.1 can be believed and whether it is safe to convict the appellant for the above offence on the sole evidence of PW.1. Going by the evidence of PW.1 and other witnesses namely, PWs.2, 3 and 5, according Crl.A.No.1520 of 2003 7 to me, it can be safely concluded that the prosecution has succeeded in proving that the accused trespassed into the house of PWs.1 and 2. Therefore, the further question to be considered is whether the accused has trespassed into the house of PWs.1 and 2 and whether the prosecution has succeeded to establish that such house trespass was committed to commit any offence punishable with imprisonment and whether the prosecution has succeeded in establishing such facts. Before considering the above questions, it worth to recollect the case of PW.1. According to her, the accused initially approached her with the request to marry her, which was declined by her. The entire case has to be examined in the light of the above version of PW.1. In this juncture it is relevant to note that, when PW.1 gave F.I.S, her version is that, when the accused pulled her from the house, she had fallen on the ground and she had pain on her lip and nose. But, it is relevant to note that, immediately after the incident, as claimed by her, she was examined by PW.6 the Crl.A.No.1520 of 2003 8 Doctor attached to the Primary Health Centre at Chengamanad and no injury is noted by him on the lip or nose or face of PW.1. In fact, what the Doctor had noted is only abrasion on the middle finger of the right hand of the victim. But PW.1, when gave F.I.S., she had no complaint about the injury on the finger of her right hand. So the version of PW.1 in Ext.P1 is not tallying with the entries in Ext.P3 wound certificate, thus the medical evidence is not corroborating with the version of PW.1. In this juncture, it is also relevant to note that, the learned Judge has already find that Section 354 of IPC is not attracted, in spite of the finding that the accused caught on the hand of PW.1. If no offence under Section 354 of IPC is not attracted, it cannot be said that the prosecution has succeeded in proving the alleged overt act against the accused. So, according to me, the trial court is not justified in its finding that the accused has committed any offence punishable with imprisonment and holding that he is liable to be punished with sentence of imprisonment. If that be so, the Crl.A.No.1520 of 2003 9 finding of the court below that the accused has committed the offences under Sections 323 and 451 of IPC are incorrect and liable to be set aside.
9. But according to me, the evidence of PW.1 positively shows that the accused has trespassed into the house of PW.1 and therefore he is liable to be punished for the offence under Section 448 of IPC. Accordingly I am unable to sustain the finding and order of conviction recorded by the learned Judge of the trial court for the offences under Section 323 and 451 of IPC. Accordingly the conviction recorded by the trial court against the appellant for the offence under Section 323 and 451 are set aside. But, in the light of the evidence referred to above, according to me, the prosecution has succeeded in proving that the accused has committed trespass into the house of the accused and therefore the accused/appellant is liable to be convicted for the offence under Section 448 of IPC. Accordingly he is convicted thereunder. Crl.A.No.1520 of 2003 10 10. As this Court has found that the accused is guilty of the offence under Section 448 of IPC and convicted thereunder, the learned counsel for the appellant submitted that as the appellant is now leading a peaceful marital life, instead of imposing substantial sentence, the sentence may be confined to fine only. I am of the view that the said submission can be considered positively and after taking into account all the relevant inputs, I am of the view that the accused can be awarded with sentence of fine only as contemplated under Section 448 of IPC. Accordingly the appellant is sentenced to pay a fine of `1,000/- for the offence under Section 448 of IPC and in default in paying the fine amount, he is directed to undergo simple imprisonment for a period of three months. In the result, this appeal is disposed of setting aside the conviction and sentence imposed on the appellant for the offence under Section 323 and 451 of IPC. But he is convicted under Section 448 of IPC and sentenced to pay fine of `1,000/- Crl.A.No.1520 of 2003 11 (Rupees One thousand only) within one month from today and in default, in paying the fine amount, he is directed to undergo simple imprisonment for a period of three months. If there is any failure in paying the fine amount as directed above, the trial court is free to take coercive steps to execute the above sentence and to realise the fine amount. On realisation of the fine amount, the same shall be paid to the victim-PW.1 under Section 357(1)(a) of Cr.P.C. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE skj True copy P.A. to Judge