IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1307 of 2002(B) ------------------------------- CC.65/1993 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR CRA.20/1998 of ADDL.SESSIONS COURT, KOTTAYAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- SAJEEV, S/O. RAJAPPAN, KOCHU KULATHIL HOUSE, KAIPUZHA. BY ADV. SRI.K.JAGADEESACHANDRAN NAIR RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY S.I. OF POLICE, ETTUMANOOR, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.1307 of 2002 ------------------------------------- Dated this the 30th day of March, 2009 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 354 I.P.C. The petitioner faces a sentence of S.I for a period of 6 months. 2. The petitioner, a young man aged about 21 years on the date of the offence is alleged to have indecently assaulted PW1-a married woman, aged about 23 years and employed as a Mahila Pradhan agent at about 7 p.m when she was proceeding along the public pathway near her matrimonial home at Kaippuzha on 21.07.1993. Hearing the cries of PW1, some local people had come to the scene. She was taken to the Medical College hospital. She was discharged from the hospital. Intimation was given by the hospital to the police. Next day PW1 went to the police station and lodged Ext.P1 F.I statement. On the basis of Ext.P1 F.I statement recorded by PW5-a Head constable, Ext.P3 F.I.R was registered. PW6 completed the investigation and filed charge sheet. PW4 is an attestor to Crl.R.P No.1307 of 2002 2 Ext.P2 scene mahazar prepared by the police. PW1-victim gave evidence in support of her case. PW2 an alleged independent witness who had come to the scene of the crime on hearing the cries and PW3 brother in law of PW1 who had also reached the scene of crime on hearing the cries of PW1, were examined by the prosecution. PW2 was declared hostile. 3. The accused in the course of cross examination of the prosecution witnesses and later when examined under Section 313 Cr.P.C took up a defence of total denial. He took the stand that there was some dispute about the payment of amounts due in respect of news paper supply between him and the husband of PW1. Because of such animosity false allegations were being raised against him, it was contended. No defence evidence was adduced. 4. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing the ingredients of the offence under Section 354 I.P.C. 5. The courts below found that the oral evidence of PW1 can safely be accepted. The oral evidence of PWs 2 and 3, though they did not support the prosecution case entirely, was held by the courts below to be sufficient to draw inspiration for Crl.R.P No.1307 of 2002 3 the oral evidence of PW1. Accordingly they proceeded to pass the impugned concurrent judgment. 6. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner first of all contends that the courts below erred grossly in placing reliance on the uncorroborated oral evidence of PW1. At least the benefit of doubt must have been conceded to the petitioner, it is contended. 7. I have considered all the relevant inputs. Except a vague allegation that there was some disputes between the husband of PW1 and the accused regarding amounts payable in respect of some newspapers which the accused, admittedly a newspaper agent, had given to the husband of PW1, there is nothing tangible to indicate any prior animosity as to persuade PW1 to raise a totally false and vexatious allegations against the petitioner herein. It is true that the incident proper is not corroborated by the oral evidence of any other independent witnesses. PWs 2 and 3 are persons residing in the neighbourhood. On hearing the cries of PW1, they had rushed to Crl.R.P No.1307 of 2002 4 the scene of occurrence and the version of PW1 about the incident took place is eminently supported on broad probabilities by the oral evidence of PWs 2 and 3. The evidence of PW1 is inherently inspiring. She is a 23 year old married woman. It does not appear to be probable that she would be raising such totally false allegations against him. There is no serious or satisfactory motive for such false implications. The absence of specific corroboration for the overt acts committed by the petitioner against PW1 does not in these circumstances appeal to me as a sufficient reason at this third tier of criminal litigation to interfere with the concurrent finding of fact that reliance can be placed on the oral evidence of PW1. The broad improbability of PW1 raising such false allegations, which allegations in our societal context is detrimental to the interests and reputation of the victim herself, cannot be lost sight of by any prudent mind. 8. The counsel contends that there is some delay in the F.I.S being filed. Counsel further contends that though PW1 has a version that she had gone to the Medical College Hospital and she was attended on by the doctor there, there is no evidence adduced by the prosecution in support of such assertion. I find Crl.R.P No.1307 of 2002 5 no merit in this contention. It is true that the investigator has not alertly verified the details about admission/treatment of PW1 in the hospital. Even in Ext.P1 she had clearly stated to the police that she had been examined by the doctor. The case records reveal that along with F.I.R an intimation from the hospital to the police has also been submitted to the court and the F.I.R along with the F.I.S and the intimation had reached the court on 29.01.1993, the incident having taken place on 27.01.93 and the F.I.R having been registered on 28.01.1993. That inadequacy on the part of the Investigating Officer of not questioning the doctor and producing the medical documents is not according to me a valid or sufficient reason to interfere with the discretion exercised by both the courts below to place reliance on the oral evidence of PW1. The broad circumstances revealed from Exts.P1 and P3 as also the oral evidence of PWs 2 and 3 definitely persuade me to hold that the course adopted by the courts below of having placed reliance on the oral evidence of PW1 does not warrant revisional interference. 9. Finally the counsel contends that leniency may be shown on the question of sentence. A period of about 16 years has already elapsed and the petitioner who was a young man Crl.R.P No.1307 of 2002 6 aged about 21 years at the time of the occurrence and has stood the trauma of this criminal prosecution all along for the indiscretion committed by him at his young age, may not be obliged him to serve a deterrent substantive term of imprisonment in prison now, submits the learned counsel for the petitioner. 10. I have considered all the relevant circumstances. Insult and dishonur to a woman at a public place of the variety which is revealed in evidence deserves to be viewed and responded to effectively. A polity which respects the modesty of women cannot tolerate such conduct. I cannot accept the passage of time can be held to be sufficient in itself to deal with the offender in an undeservedly lenient manner. The sentence to be imposed by courts must bear a direct nexus and proportion to the abhorrence with which the polity views the crime. I am, in these circumstances, not persuaded to agree that the substantive sentence of imprisonment deserves to be avoided altogether. However I take note of the other circumstances. Passage of time and the age of the petitioner/accused on the date of the offence are all taken note of by me. I am satisfied that leniency can be shown on the question of sentence for these reasons and the Crl.R.P No.1307 of 2002 7 substantive sentence of imprisonment can be reduced. Deterrence in a case like this against a young offender does not necessarily depend on the period of time that he is sent to prison. The purpose of deterrence is perhaps served not by the length of the term he spends behind bars. Deterrence is eloquently achieved in sending the accused to prison. Of course a sentence of fine can also be imposed. 11. In the result: a) This revision petition is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Section 354 I.P.C are upheld; c) The sentence imposed on him is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo S.I for a period of 2 months and to pay a fine of Rs.5,000/- (Rupees Five thousand only). In default the petitioner shall undergo S.I for a further period of one month. Fine amount if deposited, shall be released entirely to the victim/PW1 as compensation under Section 357(1) Cr.P.C. 12. The petitioner shall have time till 02.05.09 to raise and pay the compensation amount and avoid the default Crl.R.P No.1307 of 2002 8 sentence. The modified sentence hereby imposed shall not be executed till that date. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on that day. If the petitioner does not so appear, needless to say, appropriate action under Section 446 Cr.P.C can be initiated against the petitioner and his sureties by the learned Magistrate. (R.BASANT, JUDGE) rtr/-