Thomas Koshy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934** **CRL.A.No. 865 of 2006 ( ) -------------------------** **AGAINST THE ORDER IN SC.220/2004 OF SESSIONS COURT, PATHANAMTHITTA DIST. DATED 25-03-2006** **-------------** **APPELLANT/ACCUSED.:** **-------------------** **THOMAS KOSHY, KARUVELIL KUTTIKATTIL HOUSE, KADAPRA, MANNAR, THIRUVALLA.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT/COMPLAINANT.:** **------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.R.REMA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.865 OF 2006 --------------------------------------Dated this the 6[th] day of March, 2013.** ## **J U D G M E N T** The accused in this case was prosecuted for the offences punishable under Sections 376 and 506 (1) of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He was acquitted of the offences punishable under Sections 376 and 506(1) of IPC and was convicted for the offence under Section 3(1)(xii) of SC/ST (PA) Act. He was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.25,000/- and in default of payment of which to suffer simple imprisonment for a further period of six months. 2. PW1 is the victim in this case. At the relevant time, she was working as maid servant in the house of the accused. The allegation in Ext.P1 private complaint which was forwarded for investigation under Section 156(3) of the Code of Criminal Procedure is that, while she functioned as housemaid of the **Crl. Appeal No.865/2006** **2** accused, she was overpowered and subjected to sexual intercourse by the accused and she was threatened with dire consequences in case she revealed the incident to anybody. Later she had conceived and delivered a baby girl on 19.12.1998. Thereafter, PW1 demanded that maintenance should be paid to her which was refused by the accused and that has led to filing of a complaint on 10.03.2000. On the basis of the complaint, a crime was registered as per Ext.P9 First Information Report. Investigation was conducted and scene mahazar was prepared and statement of witnesses were taken. During investigation, according to the prosecution, it was revealed that the offence under Section 3(1)(xi) of SC/ST (PA) Act is also made out and therefore a report was filed to that effect before the court concerned. After investigation, final report was laid before the court. The Judicial First Class Magistrate Court, Thiruvalla before whom final report was laid took cognizance of the offence and on finding that the case is exclusively triable by the Court of Sessions, the case was committed to Special Court, Pathanamthitta. The said court, on receipt of the records and on **Crl. Appeal No.865/2006** **3** appearance of the accused, framed charges for the offences punishable under Sections 376, 506 (1) of IPC and Section 3(1) (xi) of the SC/ST (PA) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined PWs 1 to 11 and had Exts.P1 to P11 marked. 3. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought in evidence against him and maintained that he is innocent. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence. 4. On an appreciation of the evidence in the case, the trial court came to the conclusion that offence under Section 376 and 506(1) of IPC are not established and therefore, acquitted him for the said offences and found him guilty for the offence punishable under Section 3(i)(xii) of SC/ST (PA) Act and convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal. 5. Learned counsel appearing for the appellant Sri.Vinu Raj, **Crl. Appeal No.865/2006** **4** relying on the decisions reported in _**Prasannan M.C.** vs._ _**State**_ (1999 KHC 1954) and in _**Raman Alias Ramu** vs._ _**State**_ (2009 STPL (LE-Crim) 30382 MAD), pointed out that once the accused is charge sheeted for the offence under Section 376 IPC and Section 3(1)(xii) of SC/ST (PA) Act, when the charge under Section 376 IPC fails, automatically the other charge also falls to ground. Learned counsel also pointed out that a reading of the evidence of PW1 would clearly show that there is no exploitation as envisaged under Section 3(1)(xii) of SC/ST (PA) Act and also that there is nothing to show that the appellant was in a dominating position as contemplated by the provision. 6. Learned counsel drew the attention of this Court to the fact that the place of occurrence has been shifted by PW1 at the time of evidence and also that the evidence of PW1 is to the effect that PW1 and the accused were living together as husband and wife and the accused was married and has three children. It is also contented that the caste certificate issued namely, Ext.P4 showed the name of the mother of PW1 as Rajamma while in the final report filed under Section 173(2) Cr.P.C by the investigating **Crl. Appeal No.865/2006** **5** officer, it is shown as Thankamma. This anomaly, according to the learned counsel, has been omitted to note and that vitiates the conviction and sentence. 7. Learned Public Prosecutor tried to support the findings of the court below regarding the conviction for the offence punishable under Section 3(1)(xii) of SC/ST (PA) Act. It is pointed out by her that PW1 was the maid servant of the accused and she had to dance to his tunes. She was dependent on him. It is in these circumstances, the court below found that the offence under Section 3(1)(xii) of SC/ST (PA) Act is attracted which is fully justified. 8. Even though sincere efforts were made to see how the offence under Section 3(1)(xi) of SC/ST (PA) Act is made out, this Court is unable to find anything in favour of the prosecution. First of all, the said section is attracted only in cases where the accused has knowledge that the victim belonged to Scheduled Caste or Scheduled Tribe and the accused assaults or uses force on that woman with an intention to dishonour or outrage her modesty. In the case on hand, there is no allegation in the **Crl. Appeal No.865/2006** **6** complaint that the victim was exploited because she belonged to Scheduled Caste/Scheduled Tribe community. In fact, in the complaint, there is no allegation regarding the offence under the SC/ST (PA) Act. Later, during investigation, it was revealed that the victim belongs to SC/ST though it was not incorporated. 9. Apart from the above fact, a reading of the evidence of PW1 is sufficient to show that the sexual contact they had is voluntary and with the consent of PW1 and there was no compulsion at all. As pointed out by the learned counsel for the appellant at the time of evidence, the place of occurrence is completely shifted. In the complaint, the place of occurrence is the house of the accused whereas at the time of evidence, it became the house of the brother of the accused. 10. A reading of the entire evidence of PW1 shows that, at no point of time she was compelled to have sexual intercourse with the accused and on all occasions where they had physical contact, it was voluntary and with her consent. It is significant to notice that the court below did not accept case of forceful sexual assault and found against the prosecutrix regarding the offence **Crl. Appeal No.865/2006** **7** under Section 376 IPC. When the finding is to the effect that there was no rape or forceful sexual assault, it becomes difficult to understand how she can be sexually exploited. 11. An identical situation was considered by the Madras High Court in _**Raman Alias Ramu** vs._ _**State**_ (2009 STPL (LECrim) 30382 MAD) wherein it was held that when a person is charged for the offence punishable under Section 376 IPC and also Section 3(1)(xii) of the SC/ST (PA) Act, when the case ends in acquittal of the accused for the offence under Section 376 IPC, then the offence under Section 3(1)(xii) of SC/ST (PA) Act cannot survive. Paragraph 18 of the said judgment reads as follows: “It is needless to say that once the charge for the offence under Section 376 IPC is not proved by the prosecution, the charge under Section 3(1)(xii) of the Act automatically falls into the ground. Therefore, the impugned judgment of conviction and sentence passed on the appellant herein by the learned II Additional District and Sessions Judge, (Protection of Civil Rights) Thanjavur, in S.C.No.37 of 2000 dated 7-12-2000 is unsustainable and accordingly the same is set aside. Bail bonds executed by the appellant shall stand cancelled”. **Crl. Appeal No.865/2006** **8** 12. Almost a similar question was considered by the Calcutta High Court in _**Prasannan M.C.** vs._ _**State**_ (1999 KHC 1954). Section 3(1)(xii) of SC/ST (PA) Act was considered therein and it was held as follows: “28. Let us now consider if S.3(1)(12) of the SC and ST (Prevention and Atrocities), Act, 1989 applies in the instant case. S.3(1)(12) of the said Act, 1989 provides as follows:- “Whoever not being a member of a Scheduled Caste or Scheduled Tribe, being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed, is punishable with imprisonment for a term which shall not be less than 6 months, but which may extend upto 5 years and with fine”. 29. In the instant case, there is no question of dominating the will of the victim girl since she herself gave consent according to the case of prosecution to have sexually intercourse. Allegation, however, is that the accused promised to marry her. There is no allegation however that subsequently the accused declined to marry her. No case has been made out to that effect”. 13. When the facts of the above cases are considered, it can **Crl. Appeal No.865/2006** **9** be seen that the principles laid down therein will apply to the facts of this case also. In this case, the accused was acquitted of the offences punishable under Sections 376 and 506(1) of IPC. There is nothing in the case to show that the accused was in a position capable of dominating the will of PW1 and that she was sexually exploited to which she otherwise would not agree. 14. A reading of the evidence of PW1 shows otherwise. As regards the contention based on the caste certificate is concerned, it is only to be rejected. It is true that in the final report, the victim is shown as the daughter of Thankamma. In Ext.P4, her mother is shown as Rajamma. But this aspect was neither put to PW1 nor to the investigating officer. Whatever that be, in the light of the fact that the offence under Section 376 IPC is not made out, it is difficult to held that offence under Section 3(1)(xii) of SC/ST (PA) Act will survive. For all the above reasons, this Court is unable to accept the finding of the court below that the accused is found guilty of the offence under Section 3(1)(xii) of SC/ST (PA) Act. The conviction and sentence passed against the accused for the said offence is **10** **Crl. Appeal No.865/2006** set aside and he is acquitted of the said offence also. The bail bond shall stand cancelled. If the fine amount has already been paid, the same shall be refunded to him. The appeal is allowed. **P.BHAVADASAN JUDGE** smp