Jagadeesh Kumar @ Jagadeesh S/O SivaramAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 8TH DAY OF JULY 2013/17TH ASHADHA, 1935** ## **Crl.Rev.Pet.No. 22 of 2006 ( )** **------------------------------CRL.A. NO.71/1997 OF II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM. SC. NO.164/1995 OF ASSISTANT SESSIONS COURT, NEYYATTINKARA.** **..........** **REVISION PETITIONER/APPELLANT/1ST ACCUSED.:** **-----------------------------------------------------------------------------** **JAGADEESH KUMAR @ JAGADEESH S/O.SIVARAMAN, 'SARAS', THEKKEKONAM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.S.MOHAMMED AL RAFI.** **RESPONDENT/RESPONDENT/COMPLAINANT.:** **--------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MR.DHANESH MATHEW MANJOORAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **P.BHAVADASAN, J. ------------------------------------------Crl. Revision Petition No.22 OF 2006 ------------------------------------------Dated this the 8[th] day of July, 2013.** ## **O R D E R** The 1[st] accused in S.C.No.164/1995 before the Assistant Sessions Court, Neyyattinkara who has suffered conviction for the offences punishable under Sections 366A and 354 read with Section 34 of Indian Penal Code and who was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.10,000/- for the offence under Section 366A IPC and also to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- for the offence under Section 354 read with Section 34 IPC is the revision petitioner before this Court. Default sentences were also awarded by the trial court. The sentences were directed to run concurrently. 2. PW2 is the victim and PW1 is her mother. The 1[st] accused is a Doctor and the 2[nd] accused was Nurse in his Clinic. PW1 the de facto complainant was staying with three daughters and a son, and her husband was employed abroad. The eldest **Crl.R.P. No.22/2006** **2** among them is PW2. She was at the relevant time was studying in 10[th] standard. As PW2 complained of chest pain in the month of July, she was taken to hospital and was admitted there and treated by the 1[st] accused. They gained acquaintance with the 2[nd] accused who was working as Nurse in the said clinic. As per the allegations, even after PW2 had left the hospital, the 2[nd] accused used to come to their house and take the victim to the hospital quite often. It is also alleged that PW2 had complained about the indecent behaviour of the 1[st] accused. Thereafter, according to PW1, she had instructed PW2 not to go to the hospital. On 02.09.1994, it is alleged that the 2[nd] accused came to the house of PW1 and insisted that PW2 should go along with her. PW1 replied that it was difficult for her to sent PW2 along with her and she said she would find it extremely difficult to put up with the members of the family if they came to know about the same. The 2[nd] accused is said to have replied that she was taking PW2 to her house and she will take care of her. On 03.09.1994, as usual, PW2 went to school. A few minutes thereafter the 1[st] accused along with another Nurse came to the **Crl.R.P. No.22/2006** **3** house and enquired about PW2. They were informed that she had gone to school. Surprisingly enough it is stated that the 2[nd] accused got inside the house and took few clothes belonging to PW2 and said that PW2 was going along with her to her house. At about 2 p.m on the said day, the niece of PW1 brought books of PW2 home and said PW1 that two Nurses had taken PW2 in a car. 3. On 05.09.1994 at about 8.30 a.m, PW2 and the 2[nd] accused returned home. On enquiry, PW1 was told that on Saturday she was taken from the school in a car and was taken to bus stand at Vizhinjam from there they went to Trivandrum. They went for a movie. It is alleged that the 1[st] accused joined them in the theatre. From there she was taken to Ernakulam and it is alleged that there was an attempt by the 1[st] accused to commit rape on PW2. When PW1 was told about what had transpired between 03.09.1994 and 05.09.1994, she laid Ext.P1 First Information Statement. The statement given by PW1 was recorded by PW14 who took over the investigation. He had PW2 examined by PW10 doctor and obtained Exts.P5 and P6 **Crl.R.P. No.22/2006** **4** certificates. Ext.P6 certificate is relating to the age of the victim. He had obtained Ext.P8 extract of the School register from PW12 to establish the age of the victim. He recorded the statement of witnesses, prepared the scene mahazar, completed the investigation and laid charge before the court. 4. The court before which the charge was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thiruvananthapuram. The said court made over the case to Assistant Sessions Court, Neyyattinkara for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 366A, 511 of 376, 354 read with Section 34 of Indian Penal Code. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 14 examined and Exts.P1 to P11 marked. Ext.D1 was marked on the side of the defence. 5. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the **Crl.R.P. No.22/2006** **5** incriminating circumstances brought out in evidence against them and maintained that they are innocent. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They chose to adduce no evidence. 6. On appreciation of the evidence in the case, the trial court came to the conclusion that offence under Section 511 of 376 IPC has not been made out and acquitted the accused of the said offence. However, the court found that the accused were guilty of offences under Section 366A and 354 read with Section 34 IPC. 7. Disappointed accused persons preferred appeals namely, Crl.Appeal Nos.69 and 71 of 1997 before the Sessions Court, Thiruvananthapuram. The said court, on re-appreciation of the evidence, found no merit in the appeals and dismissed them. Aggrieved by the dismissal of the appeals, the 1[st] accused as already mentioned has come up in revision. 8. Learned counsel appearing for the revision petitioner contended that by no stretch of imagination as far as the 1[st] **Crl.R.P. No.22/2006** **6** accused is concerned, offence under Section 366A IPC can be attracted. There is no allegation much less in evidence that he had enticed the girl for the purpose of offering her for sexual exploitation. It is pointed out that in order to attract the offence under Section 366A IPC, there has been a minimum of three persons and there cannot be an offence committed by the victim and the accused to attract the offence under Section 366A IPC. The courts below were therefore unjustified in finding that the revision petitioner is guilty of offence under Section 366A IPC. In support of his contention, learned counsel for the revision petitioner relied on the decisions in _**Iqbal** vs._ _**State of Kerala**_ (AIR 2008 Supreme Court 288) and in _**Rajesh** vs._ _**State of Kerala**_ (2012 (3) KLT 360). 9. Learned counsel for the revision petitioner also contended that there is no evidence to show that the doctor had accompanied the victim and the 2[nd] accused from Thampanoor and the only allegation is that he had joined them in the theatre. As far as the incident in the lodge is concerned, according to the learned counsel, going by Ext.P9 proved by PW13, it only **Crl.R.P. No.22/2006** **7** contains the name of the petitioner and it does not contain his address. Therefore, it could not be related to the accused. Therefore, all that is alleged and proved as per the evidence of PW2 is that the 1[st] accused, who is the revision petitioner, had kissed the victim and nothing more had transpired. That is insufficient to attract the offence under Section 354 IPC. Therefore, it is contended that the conviction and the sentence for both the offences cannot stand. 10. Learned Public Prosecutor, on the other hand, pointed out that even assuming that Section 366A may not be available as against the 1[st] accused, offence under Section 354 IPC is clearly made out going by the version of the incident given by PW2 that took place in the lodges. It cannot be disputed, according to the learned Public Prosecutor, that the 1[st] accused had attempted to ravish the victim and on resistance, he retracted. At any rate, the case spoken to by PW2 as against the 1[st] accused is sufficient to attract the offece under Section 354 IPC. It is, therefore, contended that no grounds are made out to interfere with the findings of the court below. **Crl.R.P. No.22/2006** **8** 11. This Court must remind itself that it is sitting in a revisional jurisdiction and unless it is shown that the findings suffer from any illegality, impropriety or irregularity, interference will not be justified. A re-appreciation of the evidence is unwarranted in a revisional jurisdiction. Unless it is shown that the findings are contrary to the evidence on record, there is no justification for this Court in interfering in revision. 12. The courts below have chosen to place reliance on the evidence of PWs 1, 2, 3 and 4. The testimony of PW1 is confined to what is told to her by PW2. However, she speaks about 2[nd] accused having taken the victim i.e. PW2 from the house on 03.09.1994 and having brought her back only on 05.09.1994. The evidence of PW4, though attacked on the ground that the address shown in the final report is different from the address given at the time of evidence, is to the effect that she had accompanied the 2[nd] accused to the house of the victim on 03.09.1994 and they had together left the house of the victim along with the victim in a car and she, however, disassociated herself at Thampanoor bus stand shows that she had no role to **Crl.R.P. No.22/2006** **9** play thereafter. 13. PW3 is closely related to the victim and a friend of the victim. She speaks about PW2 seen going along with two nurses in a car. The main item of evidence regarding the incident which attracts the penal offence as far as the 1[st] accused is concerned is confined to PW2. There is considerable dispute regarding the age of the victim. Both the courts below placing reliance on the testimony of PW2 have come to the conclusion that the date of birth of the victim is 30.05.1978. Being a concurrent finding of fact, that issue does not arise for debate before this Court. 14. PW2 has stated about the incident. She gives a similar version regarding leaving of her house with the 2[nd] accused. She then says that they went in a car and got down at Vizhinjam and from there they caught a bus to Trivandrum and when they reached Trivandrum, they had gone for a movie. According to PW2, at that time PW4 left their company. They hired an auto and went to theatre. When they reached the theatre, she happened to notice the presence of the 1[st] accused. They went inside. According to PW2, she began to cry and wanted to go **Crl.R.P. No.22/2006** **10** home and she asked the 2[nd] accused as to why she did not reveal that the doctor would join them in the theatre. The 2[nd] accused is alleged to have replied that it was at the instance of the 1[st] accused that she had been brought there. After seeing the movie, they mounted a bus to Ernakulam. Dismounting at Ernakulam, they stayed in a lodge. It is stated that PW2 and the 2[nd] accused shared a bed whereas the 1[st] accused occupied another bed. On hearing a sound, when PW2 got up, she saw 1[st] accused lying beside her. PW2 would say that then she sat on a chair. She was forcibly kissed by the 1[st] accused. Hearing her hue and cry, the 2[nd] accused got up. They left the place at about 5 p.m and reached Trivandrum at 9 p.m. Again they took PW2 in a lodge there and PW2 says that the 1[st] accused tried to commit rape on her and because of her stiff resistance, he failed in his attempt. Even though the 1[st] accused is alleged to have threatened her, the due intervention of the 2[nd] accused prevented the act being committed. 15. Both the courts below, on appreciation of the evidence in the case, have found that the claim of attempt to rape has not **Crl.R.P. No.22/2006** **11** been proved especially in the light of the medical evidence furnished by PW10 taken along with Exts.P5 and P6. Both the courts below found no reason to disbelieve the evidence of PW2 when she speaks about the acts said to have been committed by the 1[st] accused. 16. On going through the evidence of PW2, this Court also finds no reason to doubt the version given by PW2. It is true that as regards the incident spoken to by PW2, there is a solitary testimony of PW2. But the acts are of such a nature that they committed in secrecy and not in open. It will be imprudent on the part of the court to seek corroboration. True, PW4 does say that she happened to see the doctor joining the 2[nd] accused and PW2 in the theatre after they reached Trivandrum. But that by itself is not a ground a disbelieve the version given by her. The fact remains that Ext.P9 proved by PW13 which is the guest register of the lodge shows the name of the 1[st] accused though his address is not shown in the register. At any rate, the courts below have found that the evidence of PW2 is sufficient and have come to the conclusion that the acts spoken to by her are true **Crl.R.P. No.22/2006** **12** and correct. 17. What now remains to be considered is the offences committed by the 1[st] accused. There is no allegation, as rightly pointed out by the learned counsel for the petitioner, that the 1[st] accused had enticed the girl who was below the age of 18 years to go along with him with the intention of subjecting her to sexual intercourse by another person. As rightly pointed out by the learned counsel for the petitioner, in order to attract the offence under Section 366A IPC, involvement of a minimum of three persons is necessary. In the case on hand, there is no case that the doctor had procured or enticed the girl for the purpose of subjecting her to sexual intercourse by any other person. In the decision in _**Iqbal** vs._ _**State of Kerala**_ (AIR 2008 Supreme Court 288), it was held in paragraph 10 as follows: “In the instant case, the admitted case of the prosecution is that girl had left in the company of the accused of her own will and that she was not forced to sexual intercourse with any person other than the accused. The admitted case is that she had sexual intercourse with the accused for which, considering her age, conviction under Section 376 IPC has been maintained. Since the essential ingredient that the **Crl.R.P. No.22/2006** **13** intercourse must be with a person other than the accused has not been established, Section 366A has no application”. ## 18. In the decision in _**Rajesh** vs._ _**State of Kerala**_ (2012 ## (3) KLT 360), it was held in paragraphs 14 and 15 as follows: “14. The evidence of PWs 2 to 4 coupled with the evidence of PWs 15 and Ext.P12 would convincingly establish that as on 17.8.2002 PW2 was a minor aged 15 years. The appellant has no case that PW2 was not a minor and there is no reason to disbelieve the date of birth of PW2 deposed by PWs 2 to 4 and PW15. Their evidence is corroborated by Ext.P12. The above evidence adduced by the prosecution would convincingly establish that PW2, who was a minor, was enticed by the appellant and was taken to Guruvayoor from the custody of her parents and had intercourse, of course with consent. Since PW2 was only 15 years, her consent is insignificant. The learned counsel for the appellant would argue that no offence under S.366A I.P.C. is established even believing the prosecution case as such. For a correct appraisal of the case a reference to S.366A I.P.C., which reads as follows, would be relevant. **“366A. Procuration of minor girl.--** Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to **Crl.R.P. No.22/2006** **14** do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” To constitute offence under S.366A, a minor girl should be induced to go away from any place with intent or knowing that she will be forced or seduced to illicit intercourse with another person and not with the person taking her or seducing her. 15. Carefully going through the evidence, which I discussed earlier and S.366A I.P.C, I find that PW2 was not induced by the appellant and taken away from the custody of her parents or either forced or seduced to have illicit intercourse with another person. On the other hand, the consistent evidence on record is that PW2 was enticed on promise of marriage and she was taken to Guruvayoor; and the appellant, after performing the marriage ceremony had intercourse with PW2. There is no case that PW2 was forced or seduced to have any illicit intercourse with another person. Therefore, I find merit in the argument advanced by the learned counsel for the appellant that no offence under S.366A I.P.C. is made out. But going by the evidence on record, I find that the appellant had kidnapped PW2, aged 15 years from the lawful guardianship of PWs 3 and 4. Therefore, an offence under S.363 I.P.C. is made **Crl.R.P. No.22/2006** **15** out. Though the evidence on record would show that the appellant had intercourse with PW2 with her consent, PW2 being under 15 years of age it would amount to offence of rape under S.375 I.P.C. and is punishable under S.376 I.P.C.. For the reasons discussed earlier, I find that the prosecution had succeeded to establish offences under Ss.363 and 376 I.P.C. and no offence under S.366A is established”. 19. The facts of the above said cases have resemblance to the facts of the present case and there is no justification for not applying the said principles here. It is difficult to hold that offence under Section 366A IPC is made out. 20. Coming to the offence under Section 354 IPC, the fact that PW2 has spoken about the exploits made by the doctor is sufficient to attract the offence under Section 354 IPC. 21. After having found the accused guilty of offence under Section 354 IPC, what remains to be considered is the question of sentence. Maximum sentence of imprisonment that can be awarded at the relevant time for the offence under Section 354 IPC was two years. Considering the occupation of the 1[st] accused and the fact that he was able to prevail upon the victim and the **Crl.R.P. No.22/2006** **16** age of the victim and also the predicament in which she was placed, the court below was extremely lenient in awarding a sentence of simple imprisonment for one year. If at all the court below has erred in the matter of sentence, it has erred on the side of leniency. Therefore, the sentence awarded for the offence under Section 354 IPC does not call for any interference at all. In the result, while setting aside the conviction and sentence for the offence under Section 366A IPC, the conviction and sentence for the offence under Section 354 IPC is confirmed. The accused is acquitted of the offence under Section 366A IPC. This Crl.R.P. is party allowed. ## **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.