Partly allowed

Syam Prakash @ Jose v. State of Kerala

Kerala HC7 Jan 2016CRL.A/1005/2006

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a criminal appeal challenging a conviction under Sections 451 and 354 IPC for trespassing and molestation. The court upheld the conviction but reduced the rigorous imprisonment term from 1½ years to six months, finding the original sentence harsh for a first offender aged 20.

What did the court decide?

Conviction under Sections 451 and 354 IPC confirmed; jail sentence reduced from 1½ years to six months rigorous imprisonment for each section.

Syam Prakash @ Jose Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.UBAID

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THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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CRL.A.No. 1005 of 2006 (S)

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AGAINST THE JUDGMENT IN SC 626/2000 OF THE ADDL. SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM DATED 6.5.2006

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APPELLANT/ACCUSED:

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SYAM PRAKASH @ JOSE, S/O BABU, SYAM NIVAS, MARUVATHUKKAL, ERUMPA MURI, ARUVIKKARA VILLAGE, THIRUVANANTHAPURAM.

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BY ADV. SRI.G.SUDHEER

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SHEEBA M.T

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.UBAID, J. --------------------------------------Crl.A No.1005 of 2006 ---------------------------------------

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Dated this the 7^th day of January, 2016

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J U D G M E N T

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The appellant herein challenges the conviction and sentence against him under Sections 451 and 354 of IPC. On the allegation that he trespassed into the bathroom attached to the house of a lady and molested her, and even attempted to kill her, the appellant faced prosecution before the Court of Session, Thiruvananthapuram in S.C No.626/2000. Crime in the said case was registered by the police on the complaint of the husband of the victim lady. After investigation the police submitted final report in court under Sections 451, 354 and 307 IPC. The accused pleaded not guilty to the charge framed against him by the trial court under Sections 451, 354 and 307 of IPC. The prosecution examined 11 witnesses including the victim of offence and proved Exts.P1 to P8 documents. The MO1 property was also identified and marked during trial. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances, and maintained a defence of total denial. Inspite of opportunities the accused did not adduce any

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Crl.A No.1005 of 2006

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evidence in defence.

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On an appreciation of the evidence, the learned trial judge found that there is absolutely nothing to constitute the offence under Section 307 IPC, but found the accused guilty under Sections 451 and 354 IPC. On conviction thereunder the learned Additional (Adhoc II) Sessions Judge, Thiruvananthapuram sentenced the accused to undergo rigorous imprisonment for 1½ years each and to pay a fine of 1,000/-₹ each under Sections 451 and 354 of IPC by judgment dated 6.5.2006. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

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On an examination of the prosecution records, and on hearing the parties I find no scope or reason to interfere in the finding made by the trial court. Of the 11 witnesses examined by the prosecution PW8 is the victim, PW5 is her husband who made complaint, and PW1 is the doctor who examined the victim without any delay. The incident happened at about 3.30 pm on 18.10.1999. Ext.P5 is the complaint made the husband of the victim on the same day, without any delay. However, the victim was examined by the doctor only on 26.10.1999. Ext.P1 wound certificate contains the details of the

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Crl.A No.1005 of 2006

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injuries noted by the doctor. The prosecution mainly relied on the evidence of PW6 and PW8. PW5 is the husband of the victim who made the complaint. He made Ext.P5 complaint on the basis of what his wife told him. PW8 is the victim and PW6 is the neighbour. The points raised by the defence in this case are:

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(i) Delay in FIR.

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(ii) Suspicion regarding the injuries noted by the doctor.

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(iii) Proper identification of the accused during trial.

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PW8 has given convincing and definite evidence

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regarding the alleged incident. Of course, the prosecution was brought under Section 307 IPC also. On this aspect, the learned trial judge found in favour of the accused. In evidence there is nothing to constitute the said offence. PW8 is definite that while she was taking bath in the bathroom outside her house at about 3.30 pm on 18.10.1999 the accused entered into the bathroom by braking open the door, he caught her by force and tried to embrace her. Anyway, the victim wriggled out and escaped. Her evidence is that when people from the neighbouring houses rushed to the scene on hearing her cry, the accused ran off and escaped. In court the victim identified the accused as the

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Crl.A No.1005 of 2006

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assailant. The learned counsel submitted that in the absence of evidence regarding test identification parade, the evidence of the victim regarding identification cannot be believed. This is not a case where the victim had only a glimpse of the assailant. The Ho'ble Supreme Court has settled the position that if the victim had sufficient time to have the face and features of the accused imprinted in her mind, it doesn't matter that a test identification parade was not conducted by the police as part of investigation. The victim is definite that while she was taking bath in the bathroom the accused in this case trespassed into the bathroom by braking open the door, and he molested her. When she cried aloud he ran off and escaped. The accused was well identified by the victim during trial. There is absolutely no reason to disbelieve her evidence or to suspect her evidence regarding identification.

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PW6 is the other witness relied on by the prosecution. She is a close neighbour. Her evidence is that when she heard some noise, she came out from her house, and then she saw the accused in this case is being chased by the people. She remembers that the accused had worn a black pant and a red shirt.

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I find no reason to disbelieve the evidence given by PW8. There is no reason why the lady should foist a false case against the accused. The incident happened on 18.10.1999 and she was examined by the doctor on 26.10.2009. Ext.P1 wound certificate contains the details of the injuries noted by the doctor. PW1, the doctor has not stated that the injuries were fresh in nature. She stated that the injuries were not so old. The defence did not bring out in cross examination that the injuries were fresh. The evidence of PW1 indicates that the injuries noted by the doctor in Ext.P1 wound certificate were not fresh and were not very old too. The versions of the victim regarding the assault made by the accused are corroborated by the medical evidence given by the PW1 read along with Ext.P1 wound certificate.

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Ext.P5 complaint in this case was made by PW5 at about 7.30 pm on 18.10.1999. The incident happened at about 3.30 pm on the same day. It cannot be said that the FIR is delayed. As regards identification also I find that the evidence given by the victim and PW6 is really convincing. Both the witnesses well identified the accused during trial. PW9 identified the accused as the person who assaulted and molested

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her, and PW6 identified the accused as the person who ran off from the house of PW8. The evidence of PW6 shows that she had in fact seen the accused proceeding towards the house of PW8, a few minutes before the incident. The witness very well identified the accused during trial. I find no reason to disbelieve the evidence given by PW6 or PW8.

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The accused projected a defence of total denial during trial. He has no explanation why PW6 or her husband should make a false complaint against him or why the victim should foist a false case against him. He has no case of any sort of enmity or other reason for a complaint. The oral evidence given by the victim is corroborated by the medical evidence given by PW1. I find that the accused was rightly found guilty and convicted by the trial court. The judgment of conviction does not require any interference.

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Now let me come to the question of sentence. The sentence imposed by the court below under both the sections is rigorous imprisonment for 1½ years each and a fine of 1,000/- each. The accused was aged only 20 years at the time₹ of the alleged incident. He is not involved any other case of similar nature. I find that a sentence of six months'

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imprisonment will be the adequate sentence in this case. In the particular facts and circumstances, I find that the jail sentence for one year or 1½ years will be harsh and unreasonable. To this very limited extent of modification in sentence, this appeal can be allowed in part.

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In the result, the appeal is allowed in part to the very limited extent of reducing the sentence imposed by the court below. The conviction made by the court below under Section 451 and 354 IPC will stand confirmed. However, the jail sentence imposed by the court below will stand reduced to rigorous imprisonment for six months each under Sections 451 and 354 IPC. The fine sentence imposed by the court below, with the default sentence thereon, is maintained.

Sd/P.UBAID JUDGE

//True Copy//

P.A to Judge

Syam Prakash @ Jose v. State of Kerala

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Syam Prakash @ Jose v. State of Kerala

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