Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941 Crl.Rev.Pet.No. 1097 of 2009 AGAINST THE ORDER/JUDGMENT IN CRA 433/2000 of ADDL SESSIONS COURT FAST TRACK (ADHOC) NO.11,TVM. AGAINST THE ORDER/JUDGMENT IN CC 21/1999 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEDUMANGAD
REVISION PETITIONER/APPELLANT/ACCUSED: MADHU, S/O.BHASKARAN NADAR, PARAMOOL THOTTATHIL VEEDU,, OZHUKUPARA, PATHAPLAVU MURI,, VATTAPPARA VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA PROSECUTOR,HIGH COURT OF KERALA,, ERNAKULAM, BY ADV. PUBLIC PROSECUTOR OTHER PRESENT: PP C.K. PRASAD; AMICUS CURIE SRI. ANEESH PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
1. Revision on hand is directed against judgment of the Judicial First Class Magistrate Court -1 in CC No.21/1999, as modified by judgment dated 29.9.2017 of the Additional Sessions Court Fast Track (Ad hoc) No.ll, Thiruvananthapuram in Crl.A.No.433/2000. The revision petitioner is the sole accused involved in the case. The offence for which he was chargesheeted by the police was one punishable under section
354 IPC. On appearance of the accused before the court, pursuant to receipt of process issued from the Court, charge was framed against him for the offences punishable under section 354 IPC. The charge when read over and explained to him, he pleaded not guilty and faced trial. Before the trial court, the prosecution had examined PWs.1 to 7 and marked Exhibits P1 to P5. After closure of the evidence of the prosecution, the accused was questioned under section 313 (1) Cr PC with reference to the incriminating circumstances brought against him in evidence by
the prosecution. The accused denied the incriminating circumstances put to him during examination and pleaded that
he was falsely implicated into the case. Grounds having not been made out to record an order of acquittal under section 232 Cr PC, the accused was called upon to enter on his defence. He did not adduce any evidence. Both Counsel representing the prosecution and the accused were heard. The Judicial First Class Magistrate Court-1, Nedumangad found the accused guilty of the offence punishable under section 354 IPC, convicted and sentenced him to undergo rigorous imprisonment for two years and pay fine of Rs.5000/- and in default, to undergo simple imprisonment for 6 months. The fine amount on realisation was directed to be paid to PW1, father of PW2, the victim, as compensation under section
351 Cr PC. The aggrieved accused has prefered Crl.A.No.433/2000 before the Additional Sessions Judge Fastrack (Adhoc) Il, Thiruvananthapuram. The appellate Court confirmed the finding of guilt of the accused and the order of conviction, but modified the sentence by reducing the substantive term of imprisonment from two years to 3 months. The fine amount imposed and default sentence were maintained. Aggrieved by the finding of guilt against the order of conviction and sentence as modified by the appellate court, the accused has approached this court in the revision proceedings.
2. Though revision petition was filed by
Adv.T.A.Unnikrishnan, he did not turn up. Therefore, this Court has appointed Adv.Anish Paul as Amicus Curiae to advance arguments on behalf of the revision petitioner. He has also been supplied with all documents pertaining to the case.
3. Mainly four grounds were raised by the revision
petitioner in the revision petition. The first one was that the court below has not properly appreciated the evidence on record and thereby miscarriage of justice was resulted. Secondly the ground taken was that the examination of the accused under section 313 (1) Cr.PC was not properly done. The third ground taken was that the only individual witness cited by the prosecution as PW4 did not support the case of the prosecution. The ground forthly taken was that the sentence imposed by the appellate court is high and considering the age of the petitioner and lack of antecedents, it needs to be reduced.
4. The learnerd Amicus Curiae advanced arguments based on all grounds. According to him, the court below has relied on the interest testimony of PWs.2 and 3 to conclude that the
accused is guilty of the offence punishable under section 354 IPC. According to him, PW4 is the sole independent witness and he turned hostile to the prosecution and therefore, independent evidence is totally lacking. It is further contended that the evidence relied on by the prosecution in the interested testimony of PW2, the alleged victim of the incident and PW3, her sister to
arrive at the finding of guilt against the accused. According to him, witnesses being interested ones, the court below ought not to have blindly relied on them to arrive at the finding of guilt. He has also canvassed that the examination under section 313 (I) Cr.PC was improper and therefore, prejudicial to the accused.
Accordingly, the learned Counsel pleaded for reversal of concurrent findings of guilt against the accused. He has also pleaded in the alternative to reduce the term of substantive sentence from three months to a lower period.
5. The learned Public Prosecutor has contended on the contrary that the court below has relied on the oral evidence of the victim PW2 and her sister PW3 to arrive at the finding of guilt against the accused. According to the public prosecutor, the offence being one punishable under section 354 IPC, the
court below is perfectly justified in relying on the testimony of PW2, the victim, which finds corroboration strictly in the version of PW3 on material aspects of the prosecution case. According to him, accused was questioned under section 313 (I) Cr.PC with reference to all incriminating circumstances brought on record by the prosecution and the Amicus Curiae is not justified in submitting that the examination was not properly held. It is also contended by the learned public prosecutor that the appellate court has reduced the substantive sentence from two years to 3 months and further reduction in sentence is totally unwarranted,
in view of the seriousness involved in the offence. Accordingly, the public prosecutor canvassed for confirmation of the concurrent findings of guilt of accused, the order of conviction and sentence imposed by the trial court and modified by the appellate court.
6. This court had a glance at the evidence relied on by the
prosecution. PW2 and PW3 are none other than daughters of PW1. PW1 lodged first information statement (Ext.P1) regarding the incident. PW1 was apprised of the incident by PWs.2 and 3, his daughters. According to PW3, while herself along with her sister were returning home from school after attending the examination, the accused followed them. PW2 being mentally retarded was studying in a school meant for educating such students. While PW2 and PW3 were walking through a nadavaramba, the accused followed them, caught hold of PW2's hand and pressed her breast. She pushed him aside and ran to her house. The incident was at about 1.45 pm. On getting the information, PW1 lodged first information statement and got the crime registered. PW3 was accompanying PW2 at the relevant time. She has also deposed the entire aspects in tune with PW2's version. According to PW2, PWI came to the house at night at 9 p.m. The matter was informed to him then and he lodged the first information statement before the police on the day suceeding. During trial, accused was identified by both. Therefore, corrborative versions of PW2 and PW3 were available before the tiral court. PW4 was cited as a witness to the occurance by the prosecution. But during examination before the court, he turned hostile to the prosecution by stating that his information about the incident was only hearsay. PW5 is an attestor to Ext.P3 scene mahazar. PW6 is an official who registered the crime based on the first information statement lodged by PWI. PW7 had prepared scene mahazar and filed the report describing the identity of the accused.
7. The accused on examination under section 313 Cr.PC
though has denied the incriminating circumstances and pleaded false implication, failed to adduce any evidence to establish those. The case of the prosecution is well established from the versions of PW2 and PW3, the victim and her sister. The place of occurrence was described in the scene mahasar as a ridge having properties on either side and planted with coconut trees and
plantains. It is also described in Ext.P3 scene mahazar that houses are not situated near to the place of occurrence. Therefore, circumstances are favourable for such an incident to occur. This court did not find any reason to doubt the versions of PW2 and PW3 regarding the incident.
8. Therefore, the court below cannot be found fault with
for arriving at a finding of guilt of the accused for an offence under section 354 IPC. Absolutely no reason is there to interfere with the concurrent finding of guilt of the accused, the order of conviction and the sentence as modified by the appellate court. The commission of an offence under section 354 IPC, when established, the punishment liable to be imposed as on date of occurrence is imprisonment of either description for a term
which may extent to two years or with fine or with both. The maximum term of imprisonment was imposed by the trial court, but the appellate court has modified the same by reducing it to imprisonment for 3 months. The offence proved being serious in nature, this court is declined to interfere with the sentence of imprisonment as modified by the appellate court vide the
judgment under challenge.
9. For the foregoing reasons, the revision petition is only liable to be dismissed. In the result, the revision petition is dismissed. Sd/- MARY JOSEPH Judge kkb.