IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 1978 of 2004 ----------------------------------------------- CRA.836/2001 of II ADDL.SESSIONS COURT, ERNAKULAM CC.209/1999 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... REVN. PETITIONER/APPELANT/ACCUSED: JOSE S/O. VARGHESE, MAPPANCHERIL HOUSE, INCHATHOTYKARA, KUTTAMPUZHA VILLAGE. BY ADV. SRI.R.SREERAJ SRI.M.T.MATHAI SRI.S.D.ASOKAN SRI.NIDHI BALACHANDRAN SRI.ANIL R. NAIR SRI.T.A.GEORGE JOSEPH RESPONDENT/STATE: STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.9135/2004 IN CRRP 1978/2004 DISMISSED 7.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1978 of 2004 -------------------------- ORDER Petitioner, the accused in C.C.No.209/1999 was convicted and sentenced for the offence under Section 354 of Indian Penal Code by Judicial First Class Magistrate-II, Muvattupuzha. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.A.No.836/2001. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and the solitary uncorroborated evidence of PW1 should not have been believed. It is argued that brother-in-law of PW1 is a Police Constable, CRRP 1978/04 2 who was on inimical terms with the petitioner and the case was foisted due to the enmity at the instance of the said police man and the case has been developed from stage to stage. It was argued that what was disclosed by PW1 to the Doctor was that she was caught in the hands and pulled by the petitioner and made her to fall in the thodu and there was no allegation that petitioner did anything to outrage her modesty. When Exhibit P1 F.I. Statement was recorded, there was no case that petitioner caught hold of the breast of PW1 as claimed from the box and in such circumstances, evidence of PW1 should not have been accepted. Learned counsel would argue that in the light of the cause of the injury noted in Exhibit P2, even if the incident is true, petitioner cannot be convicted for the offence under Section 354 of Indian Penal Code and therefore, the conviction is illegal. 4. Learned Public Prosecutor pointed out that evidence of PW1 establishes that even previously CRRP 1978/04 3 petitioner had made sexual advances towards her and the incident occurred on the early morning and the attempt of the petitioner was to outrage her modesty and when petitioner had caught hold of the breast of PW1, as proved by her evidence, an offence under Section 354 of Indian Penal Code is definitely made out and hence, the revision is only to be dismissed. 5. Prosecution case is that PW1 was residing in her parental home. On 26.9.1996 at about 6.30 a.m., she was proceeding to her house from the house of Tisy, after borrowing a gold chain in order to visit one of her relative's house. Evidence of PW1, which is corroborated by Exhibit P1 F.I. Statement, establishes that petitioner was standing on the way and when PW1 reached near the petitioner, he caught hold of her and when she tired to save herself, she fell on the ground and sustained injuries. Petitioner threatened her not to disclose the incident and went away. PW1 was examined by PW6, the Doctor at about 1 p.m. on the same day and CRRP 1978/04 4 prepared Exhibit P3 wound certificate. PW6 found abrasions on her back of right thumb and tenderness over the right shoulder. The tenderness over the right shoulder noted by the doctor corroborates the evidence of PW1 that she had a fall. True, Exhibit P3 wound certificate does not show that PW1 had disclosed to the doctor that her modesty was outraged. At the same time it was specifically stated that no rape was committed. That does not mean that her modesty was not outraged. 6. On going through the evidence of PW1, I find no reason to doubt her version of the incident. Evidence of PW1 establishes that while she was returning to her house, petitioner caught hold of her with the intention to outrage her modesty and thereby outraged her modesty. Though it was argued that the case was foisted because of the enmity of the brother-in-law of PW1 had with the petitioner, that was denied and there was no material to support the suggestion. Even otherwise it is impossible to disbelieve PW1 and her parents would CRRP 1978/04 5 agree to foist a case which would affect the name and fame of PW1 herself, who is a married woman. It cannot be accepted that she would agree to foist a case with the allegation that she was caught hold of by the petitioner. When the entire evidence is appreciated in the proper perspective, I find no reason to interfere with the concurrent findings of the courts below that petitioner outraged the modesty of PW1. Therefore, conviction of the petitioner for the offence under Section 354 of Indian Penal Code is perfectly legal. 7. Then the only question is regarding the sentence. Section 354 of Indian Penal Code provides for a sentence of imprisonment for a term which may extend to two years or fine or both. Learned Magistrate himself awarded a sentence of rigorous imprisonment for six months and a fine of Rs.1,000/- with a direction that on realisation of the fine, it is to be paid to PW1 as compensation. The incident was in 1996. Considering the fact that threat of imprisonment was hanging over the head of CRRP 1978/04 6 the petitioner all these years, interest of justice will be met if the sentence is modified to simple imprisonment for one month and a fine of Rs.5,000/- and in default, simple imprisonment for one month. Revision is allowed in part. Conviction of the petitioner for the offence under Section 354 of Indian Penal Code is confirmed. The sentence is modified. Petitioner is sentenced to simple imprisonment for one month and a fine of Rs.5,000/- and in default, simple imprisonment for one month. On realisation of the fine, Rs.3,000/- is to be paid to PW1 as compensation. Petitioner is directed to appear before Judicial First Class Magistrate's Court-II, Muvattupuzha on 5.7.2010. Judicial First Class Magistrate-II, Muvattupuzha is directed to execute the sentence. 7th June, 2010 (M.Sasidharan Nambiar, Judge) tkv