Murali @ Muraleedharan S/O. Paramu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 06TH DAY OF JULY 2018 / 15TH ASHADHA, 1940** ## **CRL.A.No. 1283 of 2004** **AGAINST THE JUDGMENT IN SC 47/2003 OF THE SESSIONS JUDGE, THODUPUZHA** ## **APPELLANT/ACCUSED:** **MURALI @ MURALEEDHARAN S/O. PARAMU, KYLAS VEETTIL, EDAMARUKU KARA, UDUMBANNOR VILLAGE.** **BY ADV. SRI.P.A.ABDUL JABBAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** BY PUBLIC PROSECUTOR SMT.SHEEBA K.K **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.A.No. 1283 of 2004 2 ## **JUDGMENT** The appeal on hand is directed against the judgment of Court of Sessions, Thodupuzha (for short 'the court below') dated 17.07.2004 in SC No. 47 of 2003. 2. The appellant is the sole accused in the case. The court below found the accused guilty of the offences punishable under Sections 451, 354 and 506(ii) of Indian Penal Code (For short 'IPC') and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention Of Atrocities) Act, 1989 (for short 'the Act') and convicted and sentenced him in the following manner. For the offence under Section 451 of IPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and pay fine of Rs.1500/- and in default to undergo rigorous imprisonment for three months. For the offfence under Section 354 IPC, the appellant was sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.3000/- and in default to undergo rigorous imprisonment for six months. For the offence under Section 506(ii) IPC, the appellant was sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.2000/- and in default to undergo rigorous imprisonment for four months. For the offence under Section 3(1)(xi) of the Act, the accused was sentenced to undergo CRL.A.No. 1283 of 2004 3 rigorous imprisonment for one year and pay fine of Rs.2000/- and in default to undergo rigorous imprisonment for four months. Aggrieved by the finding of guilt and the order of conviction and sentence imposed on him by the judgment under challenge, the appellant has approached this court in the captioned appeal. The parties to this appeal are referred to hereinafter as the accused and the prosecution. 3. The facts relevant for the disposal of this appeal are summarised hereunder:- On 29.08.2001 at about 4 P.M, one Mr. Murali @ Muraleedharan, criminally trespassed into a residential house bearing No.231/VI of Udumbanoor Panchayath in Udumbanoor village, wherein, PW1 along with her family was residing. The accused caught hold of PW1 against her will and thus outraged her modesty. He has also intimidated her by threatening that if she discloses the incident to anyone, she would be killed. PW1 got out of hold of the accused and rushed to the verandha. The accused then left the house. PW1 went to her friend Roshini's house situated about 1km away and informed her about the incident. Her friend Roshni accompanied her to her house and spend time till 5 P.M. She left the house at about 7 P.M. when the parents of PW1 returned home. She disclosed everything happened in the house to them. On the succeeding day PW2, CRL.A.No. 1283 of 2004 4 father of PW1, went to the Panchayath Office at Udumbanoor to inform the Panchayath member about the incident and the latter agreed to have a talk with the accused. The accused absconded and therefore the talk promised was not facilitated. In the meantime PW2 went to the office of Dy.S.P, Thodupuzha and lodged a complaint there. The complaint was not pursued with and therefore he approached the Superintendent of Police. At the intervention of the Superintendent of Police, a policeman visited the house of PW1 and directed her to lodge statement before the Karimannoor police. Accordingly, statement was given by PW1 at Karimannoor police station, which was recorded by the Sub Inspector of Police of that Police station and crime No.213 of 2001 was registered. The case was investigated by the Circle Inspector of Police of Karimannoor Police Station. Finding that an offence under Section 3(1)(xi) of the Act is also attracted from the allegations, the investigation was handed over to Dy.S.P, Thodupuzha. After concluding the investigation, a final report was laid before Judicial First Class Magistrate Court I, Thodupuzha. It is alleged in the final report that the accused had committed offences punishable under Sections 451, 354 and 506(ii) of IPC and under Section 3(1)(xi) of the Act. The Magistrate committed the case to the Court of Sessions, Thodupuzha. The accused entered appearance on process being CRL.A.No. 1283 of 2004 5 served on him. After a preliminary hearing, charge was framed by Court of Sessions, Thodupuzha for all the offences, for which, the accused was charge sheeted by the police. The charge was read over and explained to the accused. He pleaded not guilty and faced trial. 4. On the side of the prosecution, witnesses were examined as PW1 to PW9 and documents were marked as Ext.P1 to P5. On closure of the evidence of prosecution, the accused was questioned under Section 313 (1) (b) Cr.P.C and incriminating circumstances brought in evidence by prosecution were put to him. He denied all questions put to him and raised a specific plea that he was falsely implicated into the case due to animosity of the family of PW1, with him. 5. The learned Public Prosecutor and the learned counsel for the defence were heard. 6. Grounds having not been made out to record an order of acquittal under Section 232 Cr.P.C, the accused was asked to enter on his defence. Oral evidence was not adduced, but, documentary evidence was adduced as Exts.D1 to D4. 7. After hearing the learned Public Prosecutor and the learned counsel appearing for the defence, Court of Sessions, Thodupuzha arrived at a finding that of the accused is guilty of all offences charged against him and thus sentenced him. Aggrieved CRL.A.No. 1283 of 2004 6 thereby the accused approached this Court in the appeal on hand. The parties to this appeal are referred to hereinafter as the accused and the prosecution, in accordance with their original status before the trial court. 8. Shri. P.A Abdul Jabbar, the learned Counsel and Smt. Sheeba.K.K, learned Public Prosecutor respectively advanced arguments for the accused and the prosecution. The rival arguments were evaluated in the backdrop of the evidence on record. 9. The first contention of Shri.P.A. Abdul Jabbar, the learned counsel for the accused was that evidence on record was not appreciated by the court below in the correct perspective and thereby the accused was found guilty for the offences. According to him, PW1 is the solitary witness relied on by the prosecution to establish its case. It is contented by the learned counsel that PW1 is none other than the victim of incident and being an interested witness, her evidence needs to be scrutinized with utmost care and caution. The learned counsel has invited this Court's attention to certain discrepancies in the oral evidence tendered by PW1. According to PW1, the statement given by her to the Police as Ext.P1 formed the basis for registration of crime No.213 of 2001 of Karimannoor police station. FIS was lodged by PW1 on 02.11.2001, after a period of CRL.A.No. 1283 of 2004 7 33 days from 29.08.2001, the date of occurrence. Therefore, lodging of FIS was delayed inordinately. It is incumbent upon the first informant to explain the reason for such an inordinate delay occurred in lodging the FIS. According to PW1, the panchayath member of Udumbannoor Panchayath was approached by her immediately after the incident on the expectation that the issue could be settled at his instance. According to her, though waited for sometime expecting an amicable settlement, that was not fructified. Thereafter, she had approached the Karimannoor Police and FIS was launched to set the law in motion. 10. According to the learned counsel, the version of PW2, father of PW1 has relevance in the context. According to him, while explaining the delay PW2 has stated a totally different reason. In the version of PW2, on the day following the incident, he had approached the panchayath member and informed about the incident. The panchayath member had promised to negotiate the issues with the accused and try for a settlement. He waited for sometime and thereafter went to the office of Dy.S.P, Thodupuzha, and lodged a complaint. Due to inaction of the Dy.S.P in the matter, he again approached the Superintendent of Police. At his intervention, a police was sent to the residence of PW1 and as directed by him, himself and PW1 went to Karimannoor Police station and lodged Ext.P1, FIS and that lead CRL.A.No. 1283 of 2004 8 to the registration of Ext.P1(a), FIR in the case. Drawing the court's attention to the discrepant versions of PW1 and PW2, it is contended by the learned counsel that the inordinate delay occurred for setting the law in motion was not explained reasonably and consistently and in the circumstances, the case of prosecution can only be taken as one concocted based on afterthought. 11. A scan was done on the versions of PW1 and PW2 on material aspects of the prosecution case. It is true that PW1 is the only witness examined by the prosecution, who has direct knowledge about the incident. She was aged 17 years at the relevant time of incident and was alone at her house. According to PW1 the reason for setting the law in motion belatedly was her expectation that issues will be settled at the intervention of the panchayath member. She has not stated that a compliant was lodged at the office of the Dy.S.P, Thodupuzha. According to PW1, PW2 went to the office of Dy.S.P, Thodupuzha alone and lodged a complaint there and she was not informed about that. The specific case of PW2 also was that he went to the office of the Dy.S.P, Thodupuzha alone and the complaint was lodged. According to PW2, due to inaction of police that he was constrained to approach the Superintendent of Police and then a policeman was send to their house and as directed, himself and CRL.A.No. 1283 of 2004 9 PW1 went to Karimannoor police station to lodge Ext.P1. It is clear from the version of PW2 that what has been done by PW2 after approaching the Panchayat member was not disclosed by him to anyone. That may be the reason for PW1 not to state such a version before the police as well as during trial. As far as PW1 is concerned her knowledge was confined to the approach of herself and PW2 before the panchayath member seeking his intervention to settle the matter. Therefore the version of PW1 was confined to that alone in her venture to explain the inordinate delay. Whereas the version of PW2 was confined to some more aspects. However, the discrepancy in the versions of PW1 and PW2 while attempting to explain the inordinate delay cannot be taken as a material one to doubt the prosecution case. Then the question comes whether the reason stated by PW1 for the delay is a cogent one. The case on hand is undoubtedly one affecting the moral side of PW1 and therefore, they had approached the Panchayat member who had some relation with PW1's family to settle it amicably. The Panchayath member, who was examined as PW4 deposed that PW1 and PW2 had approached him on the immediate succeeding day of the incident and seeks for his intervention in the matter of settling the issues. According to PW4, he had not promised them that the matter would be settled by him. However, it is clear from his version that CRL.A.No. 1283 of 2004 10 he tried to contact the accused, but was in vain, since he was absconding. Therefore from the point of view of PW1, she was expecting some positive action from PW4 and therefore did not opt to initiate legal proceeding. Thereafter when a police visited their house that they proceeded to Karimannoor Police station and lodged Ext.P1 and got the crime registered. Therefore the explanation offered by PW1 can be considered as a cogent one. The offences involved being one affecting her moral side, the belated lodging of FIS cannot be treated as outcome of her afterthought. The contention of the learned counsel that the case of the prosecution is liable to fail due to the unexplained inordinate delay is discarded for the aforesaid reasons. 12. According to Shri.Abdul Jabbar, the learned counsel for the accused, PW1 and the accused were in strained relationship for the reason that accused has married a relative of PW1. According to him PW1 belongs to Scheduled Caste community and the accused belongs to OBC. Therefore, since the accused had married a relative of PW1, there was enmity among the family members. Eventhough such an enmity was there among the families of PW1 and accused, that factum was suppressed by PW1 while lodging FIS as well as while deposing before the court. According to the learned counsel several disputes were pending among the two families and that was the CRL.A.No. 1283 of 2004 11 reason for PW1 to lodge Ext.P1 containing false allegations against the accused. According to the counsel, the incident as narrated by the prosecution had never occurred and solely out of enmity that PW1 had lodged the FIS, which culminated in the registration of the crime, the investigation and filing of the final report against the accused. It is contended by the learned counsel that the relationship of the parties was strained in such a way that there was not even a chance for the accused to visit the house of PW1. Thus learned counsel canvassed for disbelieving the case of the prosecution. 13. According to the learned counsel eventhough PW1 has stated in the FIS that immediately after the incident she cried aloud and rushed out of the house, she has not deposed so, when examined before the court as PW1. According to the learned counsel that is a material discrepancy, liable to view the prosecution case with suspicion. 14. A contention was also raised by the learned counsel that the ingredients of offence under Section 506 (ii) of IPC are not attracted from the alleged words spoken by the accused to PW1. According to him the intention behind the words allegedly spoken by the accused to PW1 has to be viewed in the backdrop of the colloquial language frequently spoken at the place of occurrence. It is contended by the learned counsel that both CRL.A.No. 1283 of 2004 12 PW1 and accused were natives of Udumbannoor Village, which is a hilly area. According to him the words allegedly spoken by the accused, which according to the prosecution are liable to attract the offence under Section 506(ii) of IPC, does not have that much gravity. In Ext.P1, PW1 has stated that the accused uttered words to her immediately after the incident, which are extracted hereunder: "അപ��ൾ അയ�ൾ അടകളയ�ൽ ന�ന� പ��ണ എന��ട ഈ വ�വര� പറത ആനര�പ�ങല� പറഞ�ൽ ന�പ� പ��ന�ളയ�നയ� ന�പ# ഭ�വ�ക ന&�ഷ� വരത� വ�ധത+ൽ പവർത+ക�നന� മ��ക�യ�ല എന പറഞ ഭ+ഷണ+പ�ടത� മൻവശ� വ�ത�ല�ൽ ക�+ ഇറങ+ന��യ�." 15. During trial also the very same version has been spoken by her, relevant part of which is extracted here under: "അപ��ൾ പത� എപ���< ന+ ഇത ആനര��<ങല� പറ<ഞ�ൽ ഞ�ൻ ന�പ� പ��ന �ളയ�, ന�പ# ഭ�വ�ക തപ�യ�ണ ന&�ഷ�. ഭ�വ�ക ന&�ഷ� പBയ� ര+ത�യ�ൽ പത� പവർത+ക� എന എന���< പറ<ഞ. എ��ട പത� വ+�+പ# മൻവശ� വ�ത�ല�ൽ ക�+ പറനതക ഇറങ+ന��യ�." 16. It is relevant to notice from the versions extracted above that the accused had threatened her by saying that she would be done away with and her future would be spoiled, if she revealed the incident to anyone. In the backdrop, it is pertinent to have a look at Section 503 of IPC which incorporates the definition of criminal intimidation and is extracted hereunder: “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is CRL.A.No. 1283 of 2004 13 interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.” 17. To attract the offence under Section 503 IPC, threat must be extended to a person that he would be endangered and the person to whom it was extended must have felt fear or apprehension. It is true that PW1 is the aggrieved person. It is also relevant to notice that the evidence of PW1 alone was available for the prosecution to establish the guilt against the accused. Even after subjecting to lengthy cross examination, PW1 remained static and consistent in her version. The defence could not succeed in drawing anything from her liable to discredit her version. The ingredients of the offence under Section 503 IPC are well attracted from the definition extracted above. The court below had correctly appreciated the evidence of PW1 after a thorough scrutiny and a conclusion was reached that the accused is guilty for the offence under Section 506 IPC. 18. Accused was also tried for the offence under Section 451 IPC. For an offence under Section 451 IPC to be attracted, there must either be a legal entry with intention to commit an illegal act or an illegal entry to commit something illegal later. In the case on hand, it is well evidenced from the evidence on CRL.A.No. 1283 of 2004 14 record that the accused has trespassed into the house of PW1 and inside the kitchen, attempted to molest her. Therefore, entry of the accused to the house of PW1, though was legal, by the commission of the act alleged after the entry undoubtedly turned illegal. PW1 has clearly spoken about entry of the accused into her house and the commission of the act at the kitchen to molest her. This Court finds no reason to disbelieve her and the court below is justified in arriving that the accused has committed the offence under Section 451 IPC. 19. An offence under Section 3(1)(xi) of the Act is also alleged as committed by the accused. The provision is extracted hereunder: “(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;” 20. The ingredients to attract the offence under Section 3(1)(xi) of the Act are similar to those under Section 354 IPC. The only difference was that the person who commits the act, which is punishable under Section 3(1)(xi) of the Act must belongs to a community other than Scheduled Caste or Scheduled Tribe and must have done the same to a lady who belongs either to Scheduled Caste or Scheduled Tribe. In the CRL.A.No. 1283 of 2004 15 case on hand, the castes certificates of PW1 and the accused have been procured by the investigating officer from the Tahsildar, Udumbanoor and marked in evidence respectively as Exts.P3 and P4. It is evidenced therefrom that PW1 belongs to Scheduled Caste and the accused belongs to OBC. The learned counsel has invited my attention to **Sanjay Das v. The State of M.P (2011 KHC 6315)** to contend that for the offence under Section 3(1)(xi) of the Act to be attracted, the act must have been established as committed by the accused with the knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe and with intention to commit it to a lady for the reason that she belong to such a caste. The Chhattisgarh High Court held in the case cited supra accordingly and the relevant portion is extracted ## hereunder:- “There is absolutely no evidence on record to show that the entire act has been done by the accused/appellant with an intention to assault or with an intention to dishonour or outrage the modesty of the prosecutrix because she belongs to Scheduled Caste community. Nowhere in her Court statement it has been stated by the prosecutrix or any other witness that as the prosecutrix belonged to Scheduled Caste category, this act has been done by the accused/appellant. The mere fact that the prosecutrix happened to be a lady belonging to Scheduled Caste does not attract the provisions of the Act unless evidence otherwise is available.” CRL.A.No. 1283 of 2004 16 21. The Court held in the case that for the mere fact that the prosecutrix is a lady belonging to Scheduled Caste the offence alleged will not be attracted. The evidence must be adduced by the prsoecution to show that the act was committed with intent to molest the lady for herself being a member of Scheduled Caste or Scheduled Tribe. The evidence in the case on hand when analysed in the backdrop of the dictum cited supra, it is relevant to notice that no evidence is forthcoming from the side of the prosecution to establish that the accused had committed the act on PW1 with the intention to commit the same solely for the reason that she is a member of scheduled caste. In the absence of such evidence forthcoming in the matter, there is no reason to find the accused guilty of the offence under Section 3(1)(xi) of the Act. The court below failed to appreciate the evidence in correct perspective while arriving at a finding of guilt of the accused for the offence under Section 3(1)(xi) of the Act. Therefore, undoubtedly the court below is erred in arriving at such a finding and therefore, the finding is liable to be reversed. The finding of the court below that the accused is guilty of the offences punishable under Sections 451, 506(ii) and 354 IPC and the orders of conviction and sentence passed consequently are liable to be confirmed for reasons stated above. CRL.A.No. 1283 of 2004 17 22. In the result, appeal stands allowed in part. The findings of the court below on guilt of the accused for the offences punishable under Sections 451, 354 and 506(ii) of IPC are confirmed and the finding of the court below that the accused is guilty for the offence punishable under Section 3(1)(xi) of the Act is reversed. The accused therefore, is entitled for an order of acquittal for the offence under Section 3(1)(xi) of the Act. 23. At this juncture, the learned counsel for the appellant urged to show some leniency in the matter of imposition of sentence. According to him, the punishment imposed by the court below for the offences, the commission of which are confirmed by this Court needs to be reduced, taking into account of the reason that the accused has not been convicted in crimes of similar nature. In the impugned judgment, no whisper is made about convictions of accused in offences of similar nature. In the said circumstances, this Court is inclined to show leniency in the matter of imposition of sentence. 24. As per the impugned judgment rigorous imprisonment for a term of one year and fine of Rs.1,500/- was awarded by the court below for the offence under Section 451 IPC; rigorous imprisonment for one year and fine of Rs.3,000/- was imposed for the offence punishable under Section 354 IPC; and rigorous imprisonment for a term of two years and fine of Rs.2,000/- was CRL.A.No. 1283 of 2004 18 imposed for the offence punishable under Section 506(ii) IPC. 25. It is relevant to notice that the incident was occurred in the year 2001. The offence under Section 354 IPC as it stood originally in the Indian Penal Code was amended in the year 2013 and the sentence liable to be imposed had been enhanced. Prior to the amendment, the punishment liable to be imposed was either rigorous imprisonment for a term of two years or with fine or with both. After the amendment, the punishment proposed was imprisonment of other description for a term which shall not be less than one year, but it may extent to five years and fine. As stated herein above, the court below had imposed a punishment of rigorous imprisonment for a period of one year and fine of Rs.3,000/- for the offence under Section 354 IPC. The amendment brought in the Code was only to take effect from 3.2.2013. Therefore, prior to 2013, the punishment proposed was imprisonment of either description for the period specified therein or with fine or with both. Therefore, there was scope for discretion to be exercised. The court below had exercised that discretion and imposed sentence of imprisonment and fine. This Court in interference is inclined to modify the same to rigorous imprisonment for one year. The direction to impose the fine is not interfered with. The imposition of sentence of two years for the offence under Section 506(ii) IPC is modified and reduced to CRL.A.No. 1283 of 2004 19 rigorous imprisonment for one year and the direction to pay fine of Rs.2,000/- as per the impugned judgment is maintained. For the offence under Section 451 IPC, the punishment imposed being the lowest, this Court is declined to interfere with. The sentences shall run concurrently. The directions to undergo imprisonment in default of payment of fine and set off are maintained. In the result, the appeal stands allowed in part. The judgment of the court below finding the accused guilty for the offences punishable under Sections 451, 354 and 506(ii) IPC are confirmed with modifications in the punishment as above. The finding on Section 3(1)(xi) of the Act and conviction are reversed and the accused is acquitted for that offence. The court below shall proceed to execute the sentence with immediate effect. **Sd/MARY JOSEPH Judge** ab/NAB