Jyothishkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931** **CRL.A.No. 1187 of 2003()** **------------------------------------SC.1360/2002 of SESSIONS COURT, KOTTAYAM** **....................** ## **APPELLANT(S): ACCUSED** **---------------------** **JYOTHISHKUMAR, SON OF GOPINATHA PILLAI, PARAMKIAMTHUNDIL VEEDU, NEAR MATTATHU TEMPLE, KAUMKUMOHERRI, PIDAVOOR VILLAGE.** **BY ADV. MR.M.V.MATHAI MUTHIRENTHY** **RESPONDENT(S):** **---------------------------** **KERALA STATE, REPRESENTED BY THE ASSISTANT SUPERINTENDENT OF POLICE, PUNALUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR MR.C.M.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1187 OF 2003 = = = = = = = = = = = = = = = Dated this the 23[rd] day of July, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed in S.C.1360/02 of the Addl. Sessions Judge, Kollam. The accused was charge sheeted for offence u/Ss 354 and 511 of 376 IPC and S.3(1)(xi) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act. The Court below found the accused guilty u/s 3(1) (xi) of S.C./S.T(PA) Act and sentenced the accused to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for a period of one month. It is against that decision the present appeal is filed by the accused. 2. The points that arise for determination are; - (1)Whether the materials are sufficient to convict the accused u/s 3(1) of S.C./S.T(PA) Act? - (2) In case of guilt, is the sentence proper? ## **Crl. Appeal NO. 1187 OF 2003** -:2:- ## **Points 1 and 2:** 3. Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on 20.7.1999 while PW1 was going to school along MukkadavoorPallimukke public road at Thonnallur, the accused came and bodily lifted her and took her to a nearby rubber plantation from where he caught hold of her breast and waist, she struggled and beat him with an umbrella and ran away thereafter. Then she went along with her mother to the school and later to the Pathanapuram Police Station and a crime has been registered on the basis of the first information statement. She was sent to the Government Hospital for examination. Scene mahazar was prepared. The petticoat worn by her was seized and thereafter the prosecution proceeded. So far as the offence u/s 311 of 376 is concerned the evidence of PW1 would itself reveal that no such thing had happened for the reason she had admitted in the cross examination that she was not made to lie down or an attempt was made by the accused to be on her and she has categorically stated that she has not stated so before the police. So an offence u/s 511 of 376 as rightly found by the trial court will not lie. The ## **Crl. Appeal NO. 1187 OF 2003** -:3:- evidence of PW1 has to be meticulously scrutinized for the reason that it is her evidence that will throw light on this case. She had stated in the chief examination that the accused is residing one kilometer away from her house and on 20.7.99 while she was going to the school the accused had bodily lifted her and took her to a nearby rubber plantation and she was made to stand and thereafter he had pressed her breast and waist and at that time she had beaten him with an umbrella which was in her hand and thereafter she ran away to her house. According to her the accused also left the place in an auto rickshaw and on account of the tussle the undergarment owned by her was torn. She reported the matter to her mother and the mother took her to the school and thereafter she along with her mother went to the Police Station reporting the matter to the Sub Inspector of police who recorded it in his handwriting and she was sent to the Doctor for examination. She had also identified the petticoat owned by her as MO1. She submitted that she was studying in the 7[th] STD. She had been subjected to severe cross examination. She had stated about the location and the neighboring houses. She has stated that on that day when she came to the bus-stand the ## **Crl. Appeal NO. 1187 OF 2003** -:4:- buses had left and therefore she has to walk and there was nobody at that time accompanying her at the time when the incident had taken place. According to her the accused had lifted her from the tarred road portion and took her to the rubber plantation. A meticulous reading of her evidence would never show she is attempting to utter any falsehood in this case. Primarily after the incident she had gone and reported the matter to her mother who in turn had taken her to the school and the police initiated action and the accused was apprehended and proceeded with. So the evidence of PW1 in this case is sufficient to hold that she had been subjected to assault by the accused and there was an attempt to outrage her modesty. Ordinarily in a case of this nature it will be S.354 IPC that will be attracted. The materials available in this case would reveal that the girl belonged to a Scheduled Caste. Ext.P5 proves the same and it is marked. PW7 is the person who had issued it. So when a girl belonging to the Scheduled Caste was subjected to insult under the provisions of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, a provision has been enacted for the offences against a scheduled caste. S.3(1)(xi) of the Act says ## **Crl. Appeal NO. 1187 OF 2003** -:5:- that 'whoever not being a member of scheduled caste or scheduled tribe assaults or use force to any woman belonging to a scheduled caste or scheduled tribe with intent to dishonour or outrage her modesty, shall be punishable with imprisonment which shall not be less than six months or which may extend to five years and with fine. The learned counsel for the appellant very strongly contends before me that in order to attract the offence u/s 3(1)(xi) of the Act the accused at the time of committing the offence should be aware of the fact that the victim is a scheduled caste and scheduled tribe. Whenever such a thing is to be established the Section is very clear on that point, for example. When S.3(1)(x) is dealt with there it is clearly stated that the intention must be to humiliate a member of a scheduled caste. So the question of humiliation of a scheduled caste does not arise unless one knows that she is a scheduled caste but when we go to S.3(1) (xi) the word is very wide and generic and the phrase used is “assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe”. The matter came up for consideration before the Apex Court in the decision reported in _**Vidhyadharan v. State of Kerala(2003 AIR**_ ## **Crl. Appeal NO. 1187 OF 2003** -:6:- _**SCW 6511**_ . In the said decision the Apex Court laid down the difference between S.354 IPC and the offence u/s 3(1)(xi) of SC/ST (PA) Act. “S.3(1)(xi) of the Act deals with assault or use of force on any woman belonging to Scheduled Caste or Scheduled Tribe with intent to dishonour or outrage her modesty is an aggravated form of offence under Section 354 IPC. The only difference between Section 3(1) (xi) and S. 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, Section 3 (1) (xi) applies. The other difference is that in Section 3(1) (xi) dishonour of such victim is also made an offence.” 4. So far as this case is concerned there is an assault or force used on her with intent to dishonour or outrage her modesty. So the offence clearly come under S.3(1)(xi) of the Act and the finding of the learned Sessions Judge that the said offence is committed by the accused is perfectly in order and it does not call for any interference. 5. Now turning to the question of sentence. The learned Sessions Judge has awarded the minimum punishment provided under the Statute. The Sessions Judge has imposed ## **Crl. Appeal NO. 1187 OF 2003** -:7:- a sentence of six months rigorous imprisonment and a fine of Rs.5,000/- and in default to undergo one month rigorous imprisonment. I think, in the light of the materials available it can be reduced to a fine of Rs.1,000/- and the default sentence to undergo imprisonment for 15 days. 6. In the result the Crl.Appeal is disposed as follows. (1) The conviction passed u/s 3(1) (xi) of the S.C./S.T. (PA) Act is confirmed. (2) The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for a further period of 15 days. (3) The accused is also entitled to set off as contemplated under law and the lower Court shall execute the sentence. ## **M.N. KRISHNAN, JUDGE.** ul/-