Kerala High Court
Ratheesh @ Sajeesh vs State Of Kerala on 8 November, 2024
Criminal Appeal No.49 of 2016
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2024:KER:82763
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
CRL.A NO. 49 OF 2016
AGAINST THE JUDGMENT DATED 16/12/2015 IN SC NO.562 OF
2012 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA.
CRIME NO.510/2012 OF NEDUMKANDAM POLICE STATION, IDUKKI.
APPELLANT/ACCUSED:
RATHEESH @ SAJEESH,
AGED 24 YEARS,
S/O.MOHANAN, PARAYIL HOUSE, PONNAMALA, BETHEL,
KALKOONTHAL VILLAGE, IDUKKI DISTRICT.
BY ADV SRI.LATHEESH SEBASTIAN
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY ADV SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.11.2024, THE COURT ON 08.11.2024 DELIVERED THE FOLLOWING:
Criminal Appeal No.49 of 2016
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2024:KER:82763
C.S.SUDHA, J.
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Criminal Appeal No.49 of 2016
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Dated this the 08th day of November 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the accused in S.C.No.562/2012 on the file of the Court of Session, Thodupuzha challenges the conviction entered and sentence passed against him for the offence punishable under Section 354 IPC.
2. The prosecution case is that the accused who belongs to the Ezhava community, with the intention of outraging the modesty of PW2, a minor child aged 9 years and daughter of PW1 belonging to the Scheduled Caste Sambava community, on 29/05/2012 at 12 noon took her to his residence and forcibly kissed her. Hence as per the final report the accused was alleged to have committed the offences punishable under Section 354 IPC, Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Criminal Appeal No.49 of 2016 3 2024:KER:82763 Act, 1989 (SC/ST PoA Act) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
3. Crime no.510/2012, that is, Ext.P6 FIR was registered by PW7, Sub Inspector of Police, Nedumkandam police station on 29/05/2012 at 04:30 p.m. based on Ext.P1 FIS given by PW1, the mother of PW2, the victim. The case was investigated by PW9, the then Deputy Superintendent of Police, Kattappana who after completion of the investigation submitted the charge sheet/final report before the jurisdictional magistrate alleging the commission of the offences punishable under the above mentioned sections.
4. The jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Thodupuzha. The case was taken on file as S.C.No.562/2012 and summons was issued to the accused.
5. After the appearance of the accused before the trial court, on 01/08/2014 a charge under Section 354 IPC, Section 3(1)
(xi) SC/ST PoA Act and Section 25 of the Commissions for Protection of Child Rights Act, 2005 was framed, read over and Criminal Appeal No.49 of 2016 4 2024:KER:82763 explained to the accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW9 were examined and Exts.P1 to P11 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.
8. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 354 IPC and hence sentenced him to imprisonment for a period of one year and to a fine of ₹5,000/- and in default to imprisonment for two months. The accused has been acquitted under Section 235(1) Cr.P.C. for the remaining offences. Aggrieved, the Criminal Appeal No.49 of 2016 5 2024:KER:82763 accused has come up in appeal.
9. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not.
10. Heard both sides.
11. It was submitted by the learned counsel for the accused/appellant that the evidence on record is unsatisfactory to find the accused guilty of the offence alleged against him. Per contra, it was submitted by the learned Public Prosecutor that the evidence on record is satisfactory and sufficient to establish beyond doubt the offence for which he has been convicted by the trial court and hence no interference is called for.
12. PW2, the victim, in this case deposed that on the date of the incident she along with her brother and PW3 were playing in the courtyard of her house. While they were playing both the boys climbed on to a tree and she was left alone in the courtyard. At this time, the accused, her neighbour gestured to her to come over to his house. As indicated by him she went near the accused. The accused took her inside a room in his house, closed and bolted the door. He Criminal Appeal No.49 of 2016 6 2024:KER:82763 led her to a cot and though she resisted, the accused made her lie on the cot and then forcibly kissed her. She cried out loudly. Hearing her cries her brother Sreerag and PW3 Jinesh came running and knocked on the windows and doors. Her grandmother also came and called out to her. At this point, the accused opened the back door of his house and let her out. She revealed the incident to all the others who had gathered there, who in turn informed her parents.
12.1. PW3, one of the boys with whom PW2 was playing in her courtyard also supported the version of PW2. PW1 is the mother of PW2. It is on the basis of Ext.P1 FIS of PW1, the crime was registered by PW7. PW1 in Ext.P1 stated that she along with the mother of the accused had gone out for work in the morning. By about 12:45 p.m., she received a phone call informing her about the incident. According to PW1, she along with the mother of the accused left the workplace and immediately reached home where they saw PW2 weeping. PW2 narrated the incident to her. PW1 to PW3 were extensively cross examined. However, nothing was brought out to discredit or disbelieve their testimony. Therefore, the trial court was right in relying on their testimony to find that the Criminal Appeal No.49 of 2016 7 2024:KER:82763 accused has committed the offence punishable under Section 354 IPC and so I find no reasons to interfere with the same.
13. It was submitted by the learned counsel for the accused/appellant that in the event of this Court confirming the conviction of the accused under Section 354 IPC, the substantive sentence imposed may be modified and a lenient approach may be taken as the accused was only 24 years at the time of the incident and he was also a first offender. As per the final report, the accused was 24 years at the time of commission of the offence, which was on 29/05/2012. 12 years have elapsed since the commission of the offence. The accused has no criminal antecedents. Therefore, taking into account the age of the accused as well as the fact that he has no criminal antecedents, I find that the interest of justice would be met by modifying the sentence awarded by the trial court. The substantive sentence of one year is modified to the period of imprisonment already undergone by the accused/appellant during the crime stage, that is, from 30/05/2012 to 16/07/2012. The accused/appellant is also directed to pay compensation of ₹10,000/- (ten thousand rupees) under 357(3) Cr.P.C. to PW2, the victim in Criminal Appeal No.49 of 2016 8 2024:KER:82763 this case. The impugned judgment is modified to the aforesaid extent.
In the result, the appeal is partly allowed as aforesaid. Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak