Kerala High Court
Unnikrishna Pillai vs State Of Kerala on 10 April, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935
Crl.Rev.Pet.No. 2185 of 2012 (C)
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[CRL.A.NO.223/2007 OF THE ADDITIONAL DISTRICT & SESSIONS COURT
(ADHOC)-II, KOLLAM,
S.C. NO.1541/2002 OF THE PRINCIPAL ASSISTANT SESSIONS COURT,KOLLAM]
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REVISION PETITIONER/APPELLANT/ACCUSED:
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1. UNNIKRISHNA PILLAI,
S/O. RAMACHANDRAN PILLAI, KRISHNA VILASATHIL,
VENCHIPPUZHAKAVU, KOCHALUMMOODU, KUREEPUZHA CHERI,
THRIKKADAVUR VILLAGE.
2. JOSEPH,
S/O. MARTIN, KALLUVILA KIZHAKKATHIL,
NEAR VANCHIPPUZHAKAVU, KOCHALUMMOODU, KUREEPUZHA CHERI,
THRIKKADAVUR VILLAGE.
BY ADV. SRI.C.RAJENDRAN.
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY PUBLIC PROSECUTOR SMT. R. REMA.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 10-04-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Prv.
P. BHAVADASAN, J.
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Crl.R.P. No. 2185 of 2012
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Dated this the 10th day of April, 2013.
ORDER
Two persons, who were accused of having committed offences punishable under Sections 366A, 354, 323 and 506(i) read with Section 34 of Indian Penal Code, were found guilty on all counts. They were, therefore, convicted and each of them were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 5000/- each for the offence under Section 366A read with Section 34 I.P.C. with a default sentence of simple imprisonment for six months each. They were also directed to undergo rigorous imprisonment for one year each for the offence under Section 506(i) read with Section 34 of I.P.C. They were also sentenced to undergo rigorous imprisonment for six months each for the offence under Section 323 read with Section 34 of I.P.C. Substantive sentences were directed to run concurrently. Set off as per law was allowed. Crl.R.P.2185/2012.
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2. P.W.1 is the victim in the case. She was studying in the 5th standard at the relevant time. The incident is said to have taken place on 6.9.2001. On that day, as usual, P.W.1 was on her way to the School. The allegation is that accused Nos. 1 and 2 followed her in an autorickshaw. First accused was driving the autorickshaw and the second accused was sitting on the back seat. When they reached near P.W.1, the first accused is alleged to have asked the victim her name and her father's name. She replied to both the queries. Then the allegation is that the first accused suddenly got out of the autorickshaw and threw the victim into the autorickshaw and left the place. It is alleged that the second accused, who was sitting behind, closed her mouth so as to make sure that the victim does not make any noise. P.W.1, the victim struggled. On the way, it so happened that a cyclist feeling suspicious, intercepted the autorickshaw with his cycle and enquired about the hue and cry of the girl. The accused had told him Crl.R.P.2185/2012.
3that she is the daughter of the second accused and she was being taken to the school. At that time, P.W.1 somehow managed to escape and told the story to the cyclist. There ensued an altercation between the cyclist and the accused which enabled the victim to escape and reach the school. She conveyed the news to the teacher and then to the Headmistress. Her parents were summoned to the School. Thereafter, the victim along with her parents and a teacher went to the police station and laid Ext.P1 first information statement which was recorded by P.W.3, who registered crime as per Ext.P3 F.I.R. Investigation was taken over by P.W.5. He prepared Ext.P5 scene mahazar and also seized the autorickshaw. He recorded statements of witnesses, completed investigation and laid charge before court.
3. The court, before which, final report was laid took cognizance of the offence. Finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Kollam. The said Crl.R.P.2185/2012.
4court made over the case to Principal Assistant Sessions Court for trial and disposal.
4. The latter court, on appearance of the accused and on receipt of records framed charges for the offences punishable under Sections 366A, 354, 323 and 506(i) read with Section 34 I.P.C. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution examined P.Ws.1 to 9 and had Exts.P1 to P7 marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. Finding that they could not be acquitted under Section 232 Cr.P.C., they were asked to enter on their defence. They chose to adduce no evidence.
5. The trial court found the evidence of P.Ws.1, 2 and 5 convincing enough and found the accused guilty of the offences and accordingly convicted and sentenced them as Crl.R.P.2185/2012.
5already mentioned. The disappointed accused carried the matter in appeal as Crl.Appeal 223 of 2007 before the Additional District and Sessions Court (Adhoc) II, Kollam. The said court confirmed the conviction and sentence passed by the trial court and dismissed the appeal.
6. Learned counsel appearing for the revision petitioner mainly focussed on the issue that even assuming all what the prosecution says is true, no offence under Section 366A can be attracted. It is also pointed out that there are inherent contradictions in the evidence of P.Ws.1, 2 and 5 which were omitted to be noticed by the trial court as well as the appellate court which makes their evidence vulnerable and open to serious doubt. At any rate, according to the learned counsel, sentence imposed is on the high side which is not warranted on the facts and circumstances of the case.
7. Learned Public Prosecutor reminds this court that this court is exercising revisional jurisdiction and Crl.R.P.2185/2012.
6interference is called for only if the findings suffer from any illegality, irregularity or impropriety. The learned Public Prosecutor went on to point out that it had to be shown that the findings are perverse or totally unwarranted by the evidence on record. Both the courts below, according to the learned Public Prosecutor, chosen to believe P.Ws.1, 2 and 5 and no infirmity could be pointed out in their evidence. At any rate, according to the learned Public Prosecutor, there is nothing to show that the findings are either perverse or contrary to the evidence on record. The findings are based on the evidence on record and no grounds are made out to interfere with the said finding of fact.
8. Learned Public Prosecutor pointed out that even assuming that the offence under Section 366A of I.P.C. may not be strictly attracted to the facts of the case, at any rate, the act of the accused falls within the ambit of Section 361 of I.P.C. which is punishable under Section 363 of I.P.C. Regarding the sentence imposed, according to the learned Crl.R.P.2185/2012.
7Public Prosecutor, considering the nature of the act committed by the petitioner and the age of the victim, there is no justification to interfere with the sentence.
9. As rightly pointed out by the learned Public Prosecutor, this court is exercising the revisional jurisdiction and the scope and ambit of interference is very limited. Unless it is shown that the findings suffer from any illegality, irregularity or impropriety, merely because this court feels that a different view is possible, interference will not be justified in law.
10. P.W.1 is the victim in this case. She speaks about the incident in detail. She gained support from the evidence of P.Ws.2 and 5. P.W.1 was admittedly going to the school and she was studying in the 5th standard at the relevant time. She speaks about having been forced into the autorickshaw by the accused and taking her away. According to her, at the relevant time, P.W.2 intervened and then she managed to escape from the place. Crl.R.P.2185/2012.
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11. Her evidence in this regard gets sufficient corroboration at the hands of P.W.2. In fact P.W.2 had occasion to intercept the vehicle hearing the hue and cry of P.W.1 and when he asked about the matter, the accused persons told him that the girl was being taken to the school. It was then that the girl managed to escape and then she told the real facts.
12. The testimony of P.W.2 to the effect that he had occasion to intercept the autorickshaw with his cycle and he had occasion to question the act of the accused persons is corroborated by the evidence of P.W.5. P.W.5 is an autorickshaw driver by profession. He says that seeing an autorickshaw which was not of the local area, gained his attention and then he saw the incident and found the cyclist intercepting the autorickshaw and talking to the accused persons and the girl running away from the autorickshaw. He says about the altercation between the accused and the Crl.R.P.2185/2012.
9cyclist. Even though a motive is suggested as far as P.W.2 is concerned, there is no reason suggested to P.W.5 as to why he should speak anything against the accused. So is the case of P.W.1. On going through the evidence of P.Ws.1, 2 and 5, as regards the incident, there is consistent version. May be that considering the evidence of P.Ws.1 and 4, the victim and the Headmaster of the School, there is some inconsistency regarding the persons who had gone to the police station when P.W.1 laid first information statement. But that has no significance to the incident as such.
13. Both the courts below chose to accept the evidence of P.Ws.1, 2 and 5 and have given reasons for doing so. The courts below have analysed the evidence on record and this court finds no reason to take a different view. The act committed by the accused stands proved on the basis of the evidence adduced by P.Ws.1, 2 and 5.
14. There may be considerable force in the submission of the learned counsel for the appellant that the Crl.R.P.2185/2012.
10offence under Section 366A of I.P.C. cannot be attracted to the facts of the case. That provision reads as follows:
"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 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."
15. A reading of the provision will show that the procuration of the minor girl should be for illicit intercourse with another person and it should involve inducement of a minor girl to go from any place or to do any act with the intention that such girl may be induced to illicit intercourse with another person. There is nothing in the case on hand to show that the girl was induced to go from one place to another or she was intended to have illicit intercourse with another person. The courts below have clearly erred in Crl.R.P.2185/2012.
11holding that offence under Section 366A I.P.C. is attracted to the facts of the case.
16. Considering the allegations against the petitioner, the offence attracted is one under Section 361 of I.P.C. which is punishable under Section 363 of I.P.C. Section 361 of I.P.C. reads as follows:
"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or Crl.R.P.2185/2012.12
who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
17. One contention raised by the learned counsel for the revision petitioner has to be noticed at this juncture. It was contended on behalf of the revision petitioner that there is no evidence to prove the age of the victim and there is no presumption of law that the victim is a minor.
18. In the charge which the accused had to meet. the definite statement was that the victim was of 10 years of age as spoken to by P.W.1. She was studying in the 5th standard. There is not even a suggestion to anyone of the witnesses that the victim was not a minor. The contention has necessarily to fail.
19. As already noticed, the act of the accused squarely falls within the ambit of Section 361 of I.P.C. and punishment is provided under Section 363 I.P.C. Crl.R.P.2185/2012.
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20. Learned counsel for the accused contended that the sentence imposed is on the high side and considering the age of the second accused, who is 60, and also that 11 years have elapsed, it will be imprudent to hold out such a harsh sentence.
21. It appears that this court had declined to suspend the sentence while admitting this revision petition.
22. There may be some substance in the complaint that the sentence imposed is very harsh. There can be no doubt that the act committed by the accused is abhorrent and it has necessarily to be condemned. But a proportion has to be struck between the act and the punishment. Aggravating and mitigating circumstances will have to be noticed. After evaluating the pros and cons, it is felt that the act of the accused falls within Section 361 of I.P.C. which is punishable under Section 363 of I.P.C.
In the result, while confirming the conviction and sentence passed by the court below for the offences Crl.R.P.2185/2012.
14punishable under Section 354, 323 and 506(i) read with Section 34 of I.P.C., the conviction of the accused for the offence punishable under Section 366A of I.P.C. and the sentence imposed with regard to the said offence are set aside. Instead, they are found guilty for the offence punishable under Section 361 of I.P.C. and they are sentenced to undergo rigorous imprisonment for two years each and also to pay fine of Rs.35,000/- each, in default, to undergo simple imprisonment for six months each. If the fine amount is realised, a sum of Rs.50,000/- will be paid as compensation to P.W.1. Substantive sentences are directed to run concurrently. Set off as per law will be allowed.
P. BHAVADASAN, JUDGE sb.