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Madhu vs State Of Kerala on 27 May, 2019

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:
Crl.R.P.1097/09

2

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 Sectionsection

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 Sectionsection

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 Sectionsection 313 (1) SectionCrPC 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
Crl.R.P.1097/09

3

he was falsely implicated into the case. Grounds having not been

made out to record an order of acquittal under Sectionsection 232 CrPC,

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 Sectionsection 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 Sectionsection

351 CrPC. 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.

Crl.R.P.1097/09

4

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

Sectionsection 313 (1) SectionCr.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
Crl.R.P.1097/09

5

accused is guilty of the offence punishable under Sectionsection 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 Sectionsection 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 Sectionsection 354 IPC, the
Crl.R.P.1097/09

6

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 Sectionsection 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
Crl.R.P.1097/09

7

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
Crl.R.P.1097/09

8

lodged by PWI. PW7 had prepared scene mahazar and filed the

report describing the identity of the accused.

7. The accused on examination under Sectionsection 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 Sectionsection 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 Sectionsection 354 IPC, when
Crl.R.P.1097/09

9

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.

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