Sunil vs State Of Kerala
2022 Latest Caselaw 8127 Ker

                  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.
          ------------------------------------
                   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

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

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

(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

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

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

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

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