Partly allowed

Biju v. State of Kerala, Rep. by Its Public

Kerala HC21 Jan 2016CRL.A/134/2008

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction for attempting to cause death under Section 308 IPC, acquitting the accused due to lack of material evidence. The court confirmed conviction for outraging modesty under Section 354 IPC but modified the sentence to three months rigorous imprisonment and directed payment of compensation instead of a fine.

What did the court decide?

Appellant acquitted of Section 308 IPC; conviction for Section 354 IPC confirmed; sentence reduced to three months rigorous imprisonment; fine replaced with compensation of Rs. 20,000/- to victim.

Biju Vs State of Kerala, Rep. by Its Public — Kerala HC (2016) — LawSathi Research

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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 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937

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CRL.A.No. 134 of 2008 ( )

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SC 140/2006 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA

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APPELLANT/ACCUSED :

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---------------------------------

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BIJU,ALIKKUNNEL, PANAKKADIKKUNNU, POOTHADI, WAYANAD DISTRICT.

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BY ADV. SRI.RAJESH NAIR

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RESPONDENT/COMPLAINANT AND STATE :

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-------------------------------------------------------------

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

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BY PUBLIC PROSECUTOR SRI. JUSTIN JACOB

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P. UBAID, J.

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Crl.Appeal No.134 of 2008

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Dated this the 21^st day of January, 2016

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JUDGMENT

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The appellant herein challenges the conviction and sentence against him under Sections 354 and 308 IPC. On the allegation that at about 3.30 p.m. on 18.10.2005 on the banks of a river at Kenichira, the appellant molested a woman and also made attempt on her life while she was washing her cloths, the appellant faced prosecution in S.C.No.140/06 before the Court of Session, Wayanad. He pleaded not guilty to the charge framed against him under Sections 308 and 354 IPC. The prosecution examined six witnesses including the victim of offence and also proved Exts.P1 to P4 documents. When examined under Section 313 Cr.P.C., the accused denied the incriminating circumstances and submitted that this is a false prosecution brought against him due to previous enmity. In spite of opportunities, he did not adduce any evidence in defence. On an appreciation of the evidence, the learned Additional Sessions Judge (Adhoc) II, Kalpetta found the accused guilty. On conviction, he was

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Crl.Appeal No.134/2008

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sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,500/- under Section 308 IPC, and to undergo another term of rigorous imprisonment for six months and to pay a fine of Rs.2,500/- under Section 354 IPC by judgment dated 19.12.2007. Aggrieved by the said judgment of conviction, the accused has come up in appeal.

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On hearing both sides, and on a perusal of the materials including the impugned judgment and the evidence given by the victim of offence, I find that the prosecution has well proved the case under Section 354 IPC, but there is no satisfactory material to prove the offence under Section 308 IPC. Of the six witnesses examined by the prosecution, PW2 is the victim of offence and PW1 is the doctor who examined her at the hospital without any delay. PW3 is her mother and PW4 is her brother who came to the scene on hearing her cry. PW5 is the police officer who registered the FIR, and PW6 is the police officer, who conducted investigation and laid charge.

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The evidence of PW3 and PW4 proves a circumstance against the accused. They stated that when they came to the

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Crl.Appeal No.134/2008

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scene of incident on hearing the cry of PW2, they saw the accused running off. Of course this is a very strong circumstance corroborating the evidence given by the victim.

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The evidence of PW1 read along with Ext.P1 wound certificate shows that the victim had not sustained any visible injury in the alleged incident. However, she had some complaints of pain. The evidence given by the victim, examined as PW2, is that while she was washing cloths, the accused came there and obstructed her. When she resisted, he caught on her and made an attempt to push her into the river. When she got up and started collecting the dress materials scattered there, the accused again caught her from behind, pressed her, and even tried to dip her in water. Seeing her mother and brother coming, the accused ran off and escaped. While running off, he even threatened that if he is determined, she will have to give birth to so many children. This statement alleged to have been made by the accused while escaping from the seen of incident tells very much about his intention when he assaulted the victim.

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Of course, it is true that the evidence given by the

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Crl.Appeal No.134/2008

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victim is not at all satisfactory for a finding under Section 308 IPC. This evidence will not convince the court that any attempt was made by the appellant on the life of the victim. What is proved by her evidence is that she was assaulted by him, and he even outraged her modesty or molested her. The accused came to the river side, caught on the victim, and while escaping from the seen, he even threatened that if he is determined, she will have to conceive many times. Definite it is, that his intention was nothing but to molest her. Use of criminal force by the accused on the victim with bad intention is well proved by the evidence of PW2. This proves the offence punishable under Section 354 IPC.

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The evidence given by PW6 shows that the case was also properly investigated by him. There is nothing in evidence to show that there was any flaw or irregularity or illegality in the investigation made by him. The evidence of the victim in court is fully consistent with her versions in the Ext.P2 First Information Statement. I find no reason to disbelieve the evidence given by the victim. The previous enmity alleged by the defence stands

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Crl.Appeal No.134/2008

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not proved or probabilised. On the other hand, the motive alleged by the prosecution stands well proved. Of course, there is a hypothetical statement in the First Information Statement and also in her evidence that, had she not escaped, she would have died. This is not sufficient for a finding under Section 308 IPC.

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As discussed above, the conviction under Section 354 IPC is only to be confirmed in appeal, but the conviction under Section 308 IPC is liable to be set aside. As regards the sentence under Section 354 IPC, I find it appropriate to make some modification. The trial court has imposed rigorous imprisonment for six months and also a fine of Rs.2,500/-. I feel it appropriate

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in the interest of justice to grant some reasonable amount of compensation to the victim. The jail sentence imposed by the trial court can be accordingly reduced reasonably, the fine sentence can be set aside, and instead, there can be a direction to the accused to pay compensation to the victim. A sentence of rigorous imprisonment for three months will be just and adequate in this case, when the accused is directed to pay a a

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Crl.Appeal No.134/2008

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substantial amount as compensation to the victim.

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In the result, this appeal is allowed in part. The appellant is

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found not guilty of the offence under Section 308 IPC. Accordingly, he is acquitted of the said offence in appeal under Section 386(b)(i) Cr.P.C., and the sentence imposed thereunder

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by the court below is set aside. The conviction under Section 354 IPC will stand confirmed. However, the sentence will stand modified. The fine sentence imposed by the court below under Section 354 IPC is altered, and in its place, the appellant is directed to pay a compensation of Rs.20,000/- to the victim (PW2). The substantive sentence imposed by the court below under Section 354 IPC will stand reduced to rigorous imprisonment for three months. The direction to pay compensation will carry default sentence of rigorous imprisonment for three months.

Sd/-

P. UBAID, JUDGE

P.A. to Judge

Biju v. State of Kerala, Rep. by Its Public

Case brief

What is this about?

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Biju v. State of Kerala, Rep. by Its Public

Case brief

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