IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 Crl.Rev.Pet.No. 425 of 2002() ----------------------------- CRA.215/2001 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.919/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- SAJEEVAN, S/O.RAMAN NANGAMTHURUTHY, CHERAMAN DESOM, ERIYAD, KODUNGALLUR. BY ADV. SRI.T.N.MANOJ SRI.DINESH R.SHENOY RESPONDENT(S)/RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE KODUNGALLUR, THROUGH PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.2862/2002 IN CRL.R.P.NO.425/2002 DISMISSED. 8.4.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.425 OF 2002 (A) ----------------------------------- Dated this the 8th day of April, 2009 O R D E R Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence punishable under Section 354 of the Indian Penal Code. He was prosecuted for the offences punishable under Sections 354 and 377 of IPC on a charge laid by the S.I. of police, Kodungallur police station. He pleaded not guilty to the offences. The learned Magistrate, after trial, found him guilty of the offence under Section 354 IPC and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- with default term of rigorous imprisonment for three months more. He was found not guilty of the offence under Section 377 IPC and acquitted of that offence. In the appeal preferred by the accused against the conviction under Section 354 of IPC, the learned Sessions Judge upheld the conviction and approved the sentence without any modification. Aggrieved by the conviction and sentence, CRL.R.P.425/02 2 questioning its legality, propriety and correctness, the accused has preferred this revision. 2. The gist of the prosecution case is that, the accused with the intention to have carnal intercourse of the victim PW1, a six year old child, outraged her modesty at his house in Eriyad Panchayat on the evening of 4.8.1999. The victim lived in the neighbourhood of the accused and she used to go over to his house to play with the children. On the evening, when she went over to his house, after returning from the school, the brutal incident occurred, is the case of the prosecution. The victim informed the matter to her mother PW3. She was taken to hospital and thereafter the police was informed. Ext.P6 FIR was registered over the occurrence and the accused was arrested. After completion of the investigation, PW10, the then S.I. of police, Kodungallur Police Station, laid the charge indicting of the accused for the offences punishable under Sections 354 and 377 of IPC. 3. The accused, on appearance, pleaded not guilty when the charges framed against him on the materials produced CRL.R.P.425/02 3 were made known. Prosecution examined PWs.1 to 11, got marked Exts.P1 to P7and identified MOs.1 and 2 to prove its case. The accused, maintaining his innocence when questioned under Section 313 of Cr.P.C, canvassed a defence that the parents of PW1 had a grudge against him consequent to a dispute and litigation over a pathway and the case had been falsely foisted on account of their enmity. Though such a defence was canvassed, no evidence was adduced in support thereof. 4. The learned Magistrate, after appreciating the materials produced, found the accused guilty of the offence under Section 354 of IPC, upon which he was convicted and sentenced thereunder. The materials produced by the prosecution were found not satisfactory to bring home the charge under Section 377 of IPC against the accused, and hence he was acquitted of that offence. Conviction of the accused under Section 354 of IPC, as already stated was confirmed by the Sessions Judge in appeal. Hence this revision by the accused. CRL.R.P.425/02 4 5. I heard the learned counsel for the revision petitioner/accused and also the learned Public Prosecutor. Though several grounds are urged in the memorandum of revision to assail the conviction of the accused under Section 354 of IPC, at the time of hearing, the learned counsel confined his submissions only on the non consideration of the applicability of the Probation of Offenders Act by both the courts below before passing sentence on him after finding him guilty and convicted him of the offence, to which the provisions of the above Act are applicable. The Sessions Judge, in the appeal also, has not adverted to the benevolent provisions of the Probation of Offenders Act and as to why the provisions of that Act are not applicable to the accused, submits the counsel. The offence under Section 354 of IPC provides for maximum punishment of two years imprisonment and fine, and so much so, it is submitted by the counsel, on conviction of such offence, it is imperative on the part of the Judicial Magistrate to state why the Probation of Offenders Act is not applicable to the accused convicted of that offence. Inviting my attention to the decision in Dilip Umare v. State of Maharashtra (1996 (1) Crl.L.J. 721), the learned CRL.R.P.425/02 5 counsel submitted that when the accused convicted of the offence under Section 354 of IPC was found to be not a previous convict or a habitual offender, extending him the benefit of probation under Section 360 of Cr.P.C. was held proper by the High Court of Bombay. Since Section 360 of the Cr.P.C. is inapplicable in the State, where the Probation of Offenders Act has been brought into force, it is submitted, the court on conviction of the accused for the offence under Section 354 of IPC is bound to consider the applicability of the benevolent provisions of that Act to the accused before passing the sentence. Since both the courts below have not considered that aspect, it is submitted, by exercising of revisional jurisdiction, this Court may extend the benefit of the provisions of that Act to the accused and release him on probation. Learned counsel also relied on Daljit Singh v. State of Punjab (2006 (3) KLT SN Case.No.120), to contend that the provisions of the Probation of Offenders Act apply to any person, found guilty and convicted of any offence if it is not punishable with sentence of death or imprisonment for life. CRL.R.P.425/02 6 6. I have perused the records of the case and also the judgment passed by both the courts below to examine the merits of the submissions canvassed by the learned counsel for the revision petitioner/accused for extending to the accused the benevolent provisions of the Probation of Offenders Act. Of course, the counsel is right in contending that the trial Magistrate, after having found the accused guilty and convicted him of an offence not punishable with sentence of death or imprisonment for life was bound to consider the applicability of the Probation of Offenders Act to the offender, if the enforcement of provisions of that Act are not excluded to the offence by any law in force. The case in hand, where a six year old child was outraged to satisfy the lust of the accused, which is amply proved by the legal evidence tendered in the case, of which no challenge is raised, has been found to be a heinous crime by the learned Magistrate and, presumably, it has persuaded him in passing the sentence imposed without referring to the applicability of the Probation of Offenders Act. Though no specific advertence why the benevolent provisions of Probation of Offenders Act are inapplicable to the accused had been made by the CRL.R.P.425/02 7 Magistrate before proceeding to consider the proper sentence to be awarded, the expression used by the Magistrate that it is a heinous crime, is indicative that on the facts established in the case, he was satisfied that provisions of Probation of Offenders Act have no applicability to the case and the offender/accused is not entitled to any benefit under that Act. The appellate Judge, after reappreciating the evidence, found the conviction of the accused and sentence awarded, adequate. He was also not satisfied that this was a case where the offender deserved any leniency in punishment, leave alone release on Probation applying the benevolent provisions of the Probation of Offenders Act. The counsel has relied on Daljit Singh v. State of Punjab (2006 (3) KLT SN Case.No.120) to contend that it is only by providing special reasons that the applicability of Section 360 of the Cr.P.C. or the provisions of the Probation of Offenders Act, as the case may be, can be withheld by the court. The apex court has drawn the distinction between the provisions of Section 360 of the Cr.P.C. and those covered by Probation of Offenders Act and it has been held that where the provisions of Probation of Offenders Act have been brought into force, provisions of CRL.R.P.425/02 8 Section 360 of Cr.P.C. are inapplicable. While considering the distinction of the provisions of the two Acts, and also their applicability, the apex court has categorically stated that only by providing special reasons, their applicability can be withheld by the court. So the counsel is right in contending that the court is obliged, after conviction of the accused and before imposing the sentence for the offence, if it is punishable not with death or imprisonment for life, to consider the applicability of the provisions of Probation of Offenders Act and if it is denied to state special reasons for doing so. True, the learned Magistrate, while imposing the sentence has not specifically adverted to the provisions of Probation of Offenders Act, but he has expressed the view that it is a crime committed by the accused was heinous outraging the modesty of a six year old child indicating in unmistakable terms that he was disentitled to have the benefit of the Probation of Offenders Act. The decision cited by the learned counsel in Dilip Umare v. State of Maharashtra (1996 (1) Crl.L.J. 721) dealt with a 17 year old offender at the time of occurrence and by application of Section 360 of the Cr.P.C., the benefit of probation had been extended to CRL.R.P.425/02 9 him, though he suffered a conviction under Section 354 IPC. That is not so in the present case. The victim, a six year old child, in her evidence, has stated that she considered the accused as her elder brother. The medical evidence tendered in the case would show that she had suffered bleeding on her private parts, but, of course, there was no legal evidence to prove that the accused had penetrated her vagina in his brutal assault to satisfy his lust. The proved facts and circumstances in the case demonstrate in unmistakable terms, that he committed a brutal assault on the victim, a six year old child, and intentionally outraged her modesty to satisfy his sexual lust. The accused, no doubt, is not entitled to the benefit of provisions of the Probation of Offenders Act and the inadvertence to the applicability of the Act by both the courts below, in the proved facts of the case, is justifiably excusable. Revision is devoid of merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.425 OF 2002 (A) --------------------------------------------------------- O R D E R --------------------------------------------------------- 8th April, 2009