IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Friday, the 1st day of July 2022 / 10th Ashadha, 1944
CRL.M.APPL.NO.1/2022 IN CRL.A NO. 465 OF 2022
S.C No.867 of 2017 of Additional District & Sessions Court-1, Kollam
APPELLANT/ACCUSED
SUNIL, S/O PARASURAMAN, AGED 29 YEARS SUNIL BHAVAN, THAZHUTHALA
CHERRI, THAZHUTHALA VILLAGE, KOLLAM, PIN - 691571
RESPONDENTS/STATE & COMPLAINANT
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
2. THE INSPECTOR OF POLICE, KOTTIYAM, KOLLAM., PIN - 691571
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed inthe Judgment dated
2.03.2022 in S.C No.867 of 2017 rendered by the Additional District &
Sessions Judge-1, Kollam(Crime No.872 of Kottiyam Police) and direct to
release the petitioner on bail, in the interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S O.D.SIVADAS, K.S.SAMEERA, Advocates
for the petitioner and PUBLIC PROSECUTOR for the respondents, the court
passed the following:
p.t.o
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
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Crl.M.A No.1 of 2022
in
Crl.Appeal No.465 of 2022
-------------------------------------
Dated this the 1st day of July, 2022
O R D E R
Jayachandran, J.
1. This Criminal Miscellaneous Application is preferred by the appellant/accused under S.389(1), Cr.P.C, seeking suspension of sentence and release of the accused on bail, on various grounds as will be discussed hereunder.
2. Petitioner herein is the accused in S.C. No.867/2017 of the Additional Sessions Court-I, Kollam. As per the judgment impugned, he was found guilty of the offences under Ss.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [SC & ST (POA) Act]; 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act); and 450 of the Penal Code. For the offences, under S.3(2)(v) of the SC & ST (POA) Act, the accused was sentenced to undergo imprisonment for life, with a fine of Rs.50,000/-; for offences under Ss.4 and 8 of the POCSO Act, the accused was sentenced to rigorous imprisonment for a period of ten years and a fine of Rs.3,00,000/- and three years with a fine of Crl.MA 1/22 in Crl.Appeal 465/2022 2 Rs.50,000/- respectively; and for offence under S.450 of the Penal Code, the accused was sentenced to undergo rigorous imprisonment for a period of seven years, with a fine of Rs.10,000/-.
3. The prosecution case is as follows: The victim is a minor girl aged 16 years, who is a member of Hindu-Pulaya community, and the accused is a member of Hindu-Ezhava community. On 18.3.2017, at about 11 a.m, while the victim girl was washing her clothes, the accused trespassed into her residential plot, dragged her to the bathroom outside her house and forcefully disrobed her. He kissed on her face and lips, caressed her breasts and attempted penile penetration to a small extent, besides inserting his finger to her vagina. In order to escape from his clutches, the victim girl bit on the chest of the accused. The accused thus committed the offences enumerated above.
4. Heard Sri.O.D. Sivadas, learned counsel for the appellant/accused and Smt.Sheeba Thomas, learned Public Prosecutor.
Crl.MA 1/22 in Crl.Appeal 465/2022 3
5. Learned counsel for the appellant/accused argued that the offence under S.3(a) of the POCSO Act is not attracted, since there is no penetrative sexual assault as per the prosecution allegations. Ext.P6 medical report would not suggest any such act on the part of the appellant/accused. That apart, the penetrative sexual assault is not stated by the victim in her statement under S.164, Cr.P.C. On the basis of the scene plan, learned counsel propounded two fold argument. Firstly, the residential plot was having an extent of 2½ cents only, with no compound wall, wherefore, the incident as alleged by the prosecution is impossible to happen since there are neighbouring dwelling places. Secondly, the bathroom - the alleged place of occurrence - is not shown in the scene plan. Learned counsel also contended that the offence under the SC & ST (POA) Act will not lie, inasmuch as the prosecution has no case that the victim was molested for the reason of her caste status. There is nothing to show that the appellant/accused knows the caste status of the victim at the time of the attack. In the absence of such a knowledge, the offence under S.3(2) Crl.MA 1/22 in Crl.Appeal 465/2022 4
(v) of the SC & ST (POA) Act will not lie, is the contention of the learned counsel.
6. Per contra, all these allegations were refuted by the learned Public Prosecutor.
7. Having heard the learned counsel appearing on both sides, we are not persuaded to allow the instant application. As regards the contention that the offence under S.3(a) of the POCSO Act is not attracted, we notice that such an allegation is levelled by the prosecution through the victim in her first information statement, as also, in her evidence before the court. For the mere reason that the same was not spoken of in her statement under S.164, Cr.P.C, we are not persuaded to doubt the conviction entered into by the learned Sessions Judge and to suspend the sentence on that count. We also notice that the punishment is under S.4 of the POCSO Act, which punishment is prescribed for all the offences coming under S.3 of the Act. Therefore, even assuming that the offence under S.3(a) is not maintainable, the offence under S.3(b) is very much made out, wherefore, Crl.MA 1/22 in Crl.Appeal 465/2022 5 the punishment under S.4 is quite maintainable. Therefore, the contention that there was no penetrative sexual assault is of no avail, prima facie.
8. The second contention that the extent of the residential plot is only 2½ cents, wherein it is impossible for an incident, as alleged by the prosecution, to happen, is again one which we cannot countenance. Absence of compound wall is no reason to doubt the alleged incident, which took place in the bathroom situated outside the residential building, but within the compound. The place of occurrence is not an open place and amply covered on all sides, which afford necessary privacy for the incident, as alleged, to take place. The said contention is, therefore, rejected. We perused the scene plan and the allegation that the place of occurrence/bathroom is not shown in the scene plan is absolutely incorrect. Sl.No.1 in the scene plan is the place of occurrence (കത സല ), which according to the prosecution is the bathroom. The fact that the word 'bathroom' is not Crl.MA 1/22 in Crl.Appeal 465/2022 6 specifically employed is of no avail.
9. The third ground that the offence under the SC & ST (POA) Act will not lie for want of knowledge as regards the caste status of the victim, also does not appeal to us. Here, we notice that the prosecution has a specific case, as taken note of in the judgment impugned, that a sexual assault was mounted on the victim girl by taking advantage of her backward caste status. That apart, it has come out in evidence that the victim was not a stranger to the accused and that the accused knew her. Therefore, there exists every possibility for the accused to know the caste status of the victim girl, who was permanently residing in the residential plot, where the bathroom/scene of occurrence is located. A threadbare analysis as regards the knowledge of the accused regarding her caste status is not contemplated at this stage, while we consider the question of suspension of sentence, for, the same is a matter to be considered at the time of hearing the appeal. The question as to whether the offence under the SC & ST (POA) Act is attracted in the given facts has already been answered by the Crl.MA 1/22 in Crl.Appeal 465/2022 7 learned Sessions Judge against the appellant in the impugned judgment, with which we do not find any infirmity, prima facie. That apart, the order of sentence is not liable to be interfered with, also for the reason that the appellant/accused is not punished only for offence under the SC & ST (POA) Act, but also for offence under the POCSO Act, the findings in respect of which are supported by ample evidence.
10. Finally, we find a clinching evidence supporting the prosecution in the bite mark on the chest of the appellant/accused, which according to the prosecution was made by the victim in her attempt to rescue herself from the illegal advance of the accused. As discussed in paragraph no.19 of the impugned judgment, it could be seen that the photographs of the bite mark found on the chest of the accused was sent for forensic analysis, along with the impressions of the teeth of the victim girl. The analytical comparison revealed that the bite mark found on the chest of the accused was inflicted by the victim girl, which fact is entered into in Ext.P7 report of PW7, Dr.S.K.Padmakumar.
Crl.MA 1/22 in Crl.Appeal 465/2022 8
11. We, therefore, hold that the order of sentence is not liable to be suspended, since we find that the impugned judgment is supported by adequate reasons, prima facie, with no infirmity worth the name. In the circumstances, the Criminal M.A would stand dismissed.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
C.JAYACHANDRAN JUDGE jg 01-07-2022 /True Copy/ Assistant Registrar