Kerala High Court
Ratheesh @ Sajeesh vs State Of Kerala on 8 November, 2024
Criminal Appeal No.49 of 2016
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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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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)
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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
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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
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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
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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
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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
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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
