Kerala High Court
Joji @ Kunjanja vs State Of Kerala on 29 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
Wednesday, the 29th day of January 2025 / 9th Magha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.20 OF 2021
SC 598/2017 OF ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM
APPLICANT/APPELLANT/ACCUSED:
JOJI @ KUNJANJA, AGED 40 YEARS,
S/O ANTONY, VADAKKEKARA HOUSE,
ITTIYANIKUNNU COLONY,
PARATHATTA PALLITHAZHAM BHAGOM,
SOUTH MARADY KARA, MARADY VILLAGE,
ERNAKULAM DISTRICT, PIN - 680542.
RESPONDENTS/RESPONDENTS/STATE:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, COCHIN-682 031.
2. DEPUTY SUPERINTENDENT OF POLICE, MUVATTUPUZHA POLICE STATION,
MUVATTUPUZHA, PIN-686661.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the Appellant by
the Court of Additional District and Sessions Judge (For the trial of
cases relating to Atrocities and Sexual Violence against Women and
Children), Ernakulam in S.C.No.598/2017 and to release him on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.ARCHANA HARIDAS K., C.C.ANOOP,
R.ANAS MUHAMMED SHAMNAD, SARUN RAJAN, Advocates for the petitioner and of
the PUBLIC PROSECUTOR for the respondents, the court passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V.,
&
P.V.BALAKRISHNAN, JJ.
-------------------------------
Criminal Appeal No.20 of 2021
-------------------------------
Dated this the 29th day of January, 2025
ORDER
Raja Vijayaraghavan V., J.
This application is filed seeking suspension of sentence under Section 389
of the Code of Criminal Procedure.
2. The applicant was the accused in S.C.No.598 of 2017 on the file of
the Additional District and Sessions Court, Ernakulam. In the aforesaid case, he
was charged for having committed offences punishable under Sections 451, 354,
376(2) (i), 376(2)(l), 377 of IPC, coupled with Section 3 (a) r/w. 4, 5 (k) r/w. 6,
9 (l) r/w. 10, 10 r/w. 9 (k) of the Protection of Children from Sexual Offences
Act, 2012 and Section 3(1)(w)(i), 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to "SC/ST Act").
3. By the impugned judgment, he was found guilty and was
sentenced to undergo -
a) rigorous imprisonment for a period of 10 years and to pay a fine of
Rs.10,000/- with default clause for the offence punishable under
Section 376(2)(i) of the IPC;
b) R.I for a period of 10 years and to pay a fine of Rs.10,000/- with
default clause for the offence under Section 376(2)(l) of the IPC;
c) RI for a period of 10 years and to pay a fine of Rs.10,000/- with
default clause for the offence under Section 377 of the IPC;
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
d) Imprisonment for life and to pay a fine of Rs.10,000/- with a
default clause for the offence under Section 3(2)(v) of the SC/ST
Act.
For the other offences, lesser sentences were imposed.
4. The survivor in the instant case is a minor girl, aged 14 years, at
the time of occurrence and a member of a Scheduled Caste. The accused, who
was her neighbour, was 34 years of age. As per the charge, the incidence of
sexual abuse took place during the period between 01.01.2017 and 31.01.2017.
The prosecution alleged that while the minor child was taking a bath, the
applicant trespassed into the bathroom and subjected her to sexual assault. On
another day, the applicant trespassed into the house of the survivor and after
disrobing the child, subjected her to penetrative sexual assault and snapped
explicit pictures of the child.
5. The learned counsel appearing for the applicant submitted that
though an earlier application filed by the applicant for suspension of sentence
and also for grant of interim bail were rejected by this Court, the fact remains
that the applicant has undergone the sentence for over four years. It is
submitted that insofar as the offence under Section 376 of the IPC is concerned,
the learned Special Judge had proceeded to impose only a term sentence. It is
submitted that insofar as Section 3(2)(v) of the SC/ST Act is concerned, the
learned Sessions Judge has imposed the maximum sentence of imprisonment for
life. The learned counsel submits that, in the case on hand, Section 3(2)(v) of
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
the SC/ST Act will have no application since in order to attract the provision, the
offence must be committed on the ground that the victim is a member of the
Scheduled Caste and not otherwise. In order to substantiate his contention,
much reliance is placed on the judgment of the Apex Court in Hitesh Verma vs.
State of Uttarakhand and Another1 and in Aneesh vs. State of Kerala2.
6. The learned counsel would then point out that the admitted case of
the prosecution is that the victim is a mentally retarded child. The child was
examined with the help of a Special Educator attached to Snehasadan College of
Special Education, Angamaly. He would urge that the learned Sessions Judge
failed to administer an oath to the Special Educator, who had assisted the Court
in recording the evidence of the child. He would also point out that the Court has
also not made an endeavour to ascertain the competency of the child to testify
as mandated under Section 118 of the Indian Evidence Act.
7. The learned Public Prosecutor submitted that the applicant
subjected a mentally retarded child to sexual abuse and it was after evaluating
all contentions that the applicant was found guilty of the offences charged. It is
submitted that, it was after noticing all the relevant facts and taking note of the
gravity of the allegations, the earlier applications submitted by the applicant
were dismissed.
8. We have considered the submissions advanced and have gone
(2020 KHC 6631)
(2024 KHC 726)
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
through the records.
9. The first contention of the learned counsel is that the offence under
Section 3(2)(v) of the SC/ST Act will not be attracted in the instant case, as
according to the learned counsel, the act of sexual abuse has to be committed
on the ground that the child is a member of the Scheduled Caste. We note that
the incident in the instant case happened during the period from 01.01.2017 and
31.01.2017. The applicant, admittedly, is the neighbour of the victim.
Section 3(2)(v) of the SC/ST Act as it stood then reads as under:
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe,--
(v) commits any offence under the Indian Penal Code (45 of 1860)
punishable with imprisonment for a term of ten years or more
against a person or property [knowing that such person is a
member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member], shall be punishable with
imprisonment for life and with fine; (emphasis supplied )
The underlined portion within brackets was substituted by Act 1 of 2016
substituting the phrase "on the ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe or such property belongs to such member"
(w.e.f. 26-1-2016).
10. A plain reading of Section 3(2)(v) of the SC/ST Act, as it originally
stood, makes it clear that only a person not being a member of a Scheduled
Caste or Scheduled Tribe could be punished with imprisonment for life and fine if
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
they committed an offence under the Indian Penal Code, punishable with
imprisonment of ten years or more, on the ground that the victim was a member
of a Scheduled Caste or a Scheduled Tribe or that the property belonged to such
a member. However, this requirement was significantly watered down by the
amendment, which replaced the phrase "on the ground that such person is a
member of a Scheduled Caste or a Scheduled Tribe or such property belongs to
such member" with "knowing that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property belongs to such member". Thus,
after the 2016 substitution, it is sufficient if the accused knew that the victim
belonged to a Scheduled Caste or Scheduled Tribe. In other words, the statute
no longer mandates that the offence must have been committed on the ground
the victim belonged to a Scheduled Caste or Scheduled Tribe.
11. Furthermore, sub-clause (c) of Section 8 of the SC/ST Act was also
inserted with effect from 26.1.2016, which provision reads as under:
8. Presumption as to offences.--In a prosecution for an offence
under this Chapter, if it is proved that--
xxxxx xxxxx xxxxx xxxx
(c) the accused was having personal knowledge of the victim or his
family, the Court shall presume that the accused was aware of
the caste or tribal identity of the victim unless the contrary is
proved.
The provision says that in a prosecution under the Chapter, if the accused
had personal knowledge of the victim or their family, the Court shall presume
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
that the accused was aware of the victim's caste or tribal identity unless proven
otherwise. A combined reading of Sections 3(2)(v) and 8(c) of the SC/ST Act
makes it evident that, after the 26.01.2016 substitution, the only requirement is
the knowledge of the accused that the victim is a member of a Scheduled Caste
or Scheduled Tribe. There is no longer a requirement that the offence under the
Indian Penal Code must have been committed on the ground that the victim
belonged to a Scheduled Caste or Scheduled Tribe. Both judgments relied upon
by the learned counsel were rendered while interpreting the provision before its
substitution. Further, the observations in Khuman Singh vs. State of Madhya
Pradesh3 relied on in both the decisions referred by the learned counsel were
made concerning an incident that occurred prior to the substitution of the
provision. Insofar as Aneesh (supra) is concerned, though Section 3(2)(v) of the
SC/ST Act as substituted in 26-1-2016 is extracted, a reading of the facts would
reveal that the incident had taken place in the year 2005. It is merely an
oversight.
12. As regards the competency of the child witness, at the time of
examination before the Court, the victim was 17 years of age. Section 118 of the
Evidence Act governs the competency of a witness. It is merely as a matter of
caution that prudence dictates that a court conduct a voir dire test to ensure the
witness's capacity to testify. It is in this context that courts have held that, before
examining witnesses who may be under some form of incapacity, the Court must
(2019 KHC 6858)
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
make an endeavour to test their capacity and ascertain whether they are capable
of understanding the questions put to them and of giving rational answers. If
competency is not assessed, it amounts to an irregularity in the evidence, but it
does not vitiate the evidence tendered by the victim. Therefore, the contention
based on the voir dire test and the plea that the evidence of PW2 should be
rejected cannot be sustained. See Sasi v State of Kerala4.
13. The argument of the learned counsel that the Court sought the
assistance of a Special Educator and that the child's evidence must be
disregarded because no oath was administered to the Educator is also untenable.
A reading of the evidence reveals that the victim provided a graphic and detailed
account of the abuse she was subjected to. The Special Educator was present
only to assist the Court and played no role beyond that. The child was studying
at a BUDS school, and from the evidence tendered, it is evident that the Court
was convinced of her competence and fitness to testify.
14. As held by the Apex Court in Preet Pal Singh v. State of U.P 5,
while considering an application for suspension of sentence, the Appellate Court
is only to examine if there is such patent infirmity in the order of conviction that
renders the order of conviction prima facie erroneous. Where there is evidence
that has been considered by the trial court, it is not open to a court considering
an application under Section 389 of the Code to reassess and/or re-analyze the
same evidence and take a different view, to suspend the execution of the
(2013 SCC ONLINE KER 11812)
(2020) 8 SCC 645
Crl.M.A.No.1 of 2024 In Crl.Appeal No.20/2021
sentence and release the convict on bail.
15. We are, prima facie, of the view that the appreciation of evidence
and the findings arrived at by the learned Sessions Judge cannot be said to be
patently erroneous. Having regard to the nature of accusations, the volume of
evidence, the gravity of the offence, and the desirability of releasing the
applicant on bail, we are of the view that the applicant has not made out any
case for suspension of sentence.
This application will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
Bng JUDGE
29-01-2025 /True Copy/ Assistant Registrar
