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
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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
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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
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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
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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
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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
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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
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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.