Partly allowed

Baby Mathew and Another v. State of Kerala

Kerala HC18 Aug 2016CRL.A/460/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed this criminal appeal in part, maintaining the appellants' conviction for caste humiliation and common intention offences but reducing the sentence for the Scheduled Castes (Prevention of Atrocities) Act offence to the statutory minimum of six months imprisonment.

What did the court decide?

Conviction maintained; sentence for Section 3(1)(x) of the Act reduced to six months simple imprisonment and a fine of ₹5,000/-

Baby Mathew and Another Vs State of Kerala — Caste Atrocities | 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 B.KEMAL PASHA

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THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938

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CRL.A.No. 460 of 2009 ( ) -------------------------SC 207/2007 of SPECIAL COURT, KOTTAYAM ----------

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APPELLANT(S)/ACCUSED:

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1. BABY MATHEW @ BABY,S/O.ULAHANNAN, KOTTACKAKATHU(VATTAMATTATHIL)VEEDU, KAVEEKUNNU BHAGOM, KIZHATHADIYOOR, LALAM VILLAGE.

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2. BABY GEORGE @ BABY, S/O.VARKEY, KAVIYIL VEEDU, KAVEEKUNNU BHAGOM, KIZHATHADIYOOR, LALAM VILLAGE.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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================

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Crl.A. No.460 of 2009

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======================= Dated this the 18^th day of August, 2016

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JUDGMENT

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Appellants are the accused in S.C.No.207/2007 of the court of the Special Judge, Kottayam, who stand convicted under Sections 447 and 294(b) read with Section 34 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act) and each of whom sentenced to undergo simple imprisonment for two months each for the offences under Sections 447 and 294(b) IPC and to undergo simple imprisonment for two years and to pay a fine of 5,000/-, in₹ default to undergo simple imprisonment for three more months for the offence under Section 3(1)(x) of the Act.

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The prosecution case is that on 17.12.2006 at 7.30 p.m., the accused, in furtherance of their common intention to intimidate, insult and annoy PWs.1, 2, 5 and CW3,

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Crl.A. No.460 of 2009

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criminally trespassed into the courtyard of their house at Kizhathadiyoor kara in Lalam village. The accused are not members of any Scheduled Castes or Scheduled Tribes; whereas, PWs.1, 2, 5 and CW3 are members of the Pulaya Community, which is a Scheduled Caste. The accused intentionally insulted and intimidated them with intent to humiliate them and severely abused them by calling their caste name and also by abusing them in filthy language, that too, by making use of sexually coloured remarks.

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PW1 had allegedly preferred a complaint before the

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Deputy Superintendent of Police in respect of the matter. Even though he was awaiting for actions, the Police have not initiated proper actions and thereby, PW1 preferred Ext.P1 private complaint before the Judicial First Class Magistrate's Court, Pala. The same was forwarded to the Police under Section 156(3) Cr.P.C. PW10 Sub Inspector of Police, Pala, on getting Ext.P1 complaint forwarded from the Judicial First Class Magistrate's Court, Pala, registered Crime No.21/2007 for the offences under Sections 294(b),

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Crl.A. No.460 of 2009

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447, 452 and 506(ii) read with Section 34 IPC and Sections 3(1)(x) and 3(1)(xv) of the Act. PW11 Deputy Superintendent of Police, Pala, took over the investigation. He conducted the investigation, completed it and filed the final report.

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On the side of the prosecution, PWs.1 to 11 were examined and Exts.P1 to P10 were marked. On the side of the accused, DW1 was examined and Exts.D1 and D2 were marked. The court below found the accused guilty of the offences punishable under Sections 447 and 294(b) read with Section 34 IPC and Section 3(1)(x) of the Act, convicted them thereunder and sentenced them as aforesaid.

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Heard the learned counsel for the appellants and the learned Public Prosecutor.

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The learned counsel for the appellants has argued that the FIR in this case is belated and the delay has not been explained in Ext.P1 complaint. It has also been argued that PW1 is quarrelsome and immoral and he had made

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Crl.A. No.460 of 2009

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certain sexual overtures towards the wife of the 2^nd appellant, which had resulted in complaints from their part as against PW1. It has been argued that no such incident as narrated by PW1 had ever taken place. It has also been argued that there are contradictions between the contents of Ext.P1 complaint and the evidence of PW1 with regard to the abusive words used, and the manner in which the caste name was allegedly called.

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PW1 has clearly narrated the incident which had occurred. He has clearly narrated the obscene words used by the accused. According to him, the accused had committed trespass into his courtyard. Repeatedly, his caste name was called and abusive words were used along with it. The abusive words allegedly uttered by the accused are sufficient enough to invite the offence under Section 294(b) IPC. It is true that PW2 has not reproduced the abusive words made use of by the accused. At the same time, she has fully supported the evidence of PW1 and has stated that their caste name was called and along with it,

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abusive words in filthy language were uttered by the accused. PW5 is none other than the daughter of PWs.1 and 2. PW2 is the wife of PW1. PW5 has also fully supported the case of PWs.1 and 2. PW5 is a girl of 19. She is not expected to reproduce the abusive words in filthy language allegedly uttered by the accused. Same is the case with PW2 also. PW2 is a Government servant. She is also not expected to reproduce the entire abusive words in filthy language uttered by the accused. At the same time, in Ext.P1 complaint as well as in the evidence of PW1, the said abusive words used along with the caste name of PW1, have been clearly narrated.

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Apart from the above, PW3, who is one of the neighbours of the parties, has clearly deposed that on 17.12.2006 at 7.30 p.m., he could see the occurrence and also he could hear the caste name and also the abusive words uttered by the accused. According to him, the caste name as well as the abusive words were uttered by the accused by standing in front of the house of PW1.

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Crl.A. No.460 of 2009

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According to PW3, he could see the incident and hear all the same by standing in front of his house. Similar is the case with PW4 also. PW4 has also supported the versions of PW3. At the same time, apart from stating that abusive words were uttered by the accused, he has not stated that the accused had uttered the caste name of PW1. He has also reproduced the abusive words uttered by the accused.

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From all the above, it seems that there is sufficient corroboration to the evidence of PW1. Of course, some minor contradictions are there relating to the abusive words used and the manner, in which, the caste name was called. But those contradictions are not at all material. As pointed out above, PWs.2 and 5 were not expected to reproduce those abusive words uttered by the accused.

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Regarding the complaint against PW1, the evidence adduced by the accused is not of any use. Evidently, the said complaints were preferred after the filing of the present private complaint. Therefore, it can only be concluded that such complaints from the part of the

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accused are matters of afterthought, with a view to defending the case against them.

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PW9 has proved that his building and property were sold by him to PW1 and therefore, the building in question belongs to PW1. When there was a trespass into the courtyard, it will necessarily invite an offence under Section 447 IPC.

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PW7 was the Village Officer concerned, who had issued Exts.P4 and P5 caste certificates of the accused. He has proved Exts.P4 and P5 and has deposed that the 1^st accused belongs to Roman Catholic Community and the 2^nd accused also belongs to Roman Catholic Community. PW8 was the Tahsildar concerned, who proved Ext.P6 caste certificate of PW1. He has clearly deposed that PW1 is a member of the Hindu Pulaya Community, which is a Scheduled Caste.

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The next question to be considered is, whether PWs.1, 2, 5 and CW3 were intentionally insulted or intimidated by the accused with intent to humiliate them in

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public view? It is evident that PWs.3 and 4 could witness the incident. Therefore, any further evidence is not required to conclude that the said atrocities were committed by the accused in public view. The nature of abusive words used by the accused and the calling of caste name in public view necessarily reveal that they had staged such acts with intent to humiliate them. Matters being so, all the proved facts clearly constitute the offence under Section 3(1)(x) of the Act.

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From all the above, it can safely be concluded that the appellants have committed the offences punishable under Sections 447 and 294(b) read with Section 34 IPC and Section 3(1)(x) of the Act. The conviction passed by the court below is not liable to be interfered with.

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Regarding sentence, it seems that the sentence imposed by the court below on the appellants for the offence under Section 3(1)(x) of the Act is on the higher side. The minimum sentence that has to be imposed is six months for such an offence. It is a case, wherein, there was

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no physical attack. No bodily harm was inflicted. It is true that the caste name along with abusive words were uttered, which has invited the offence under Section 3(1)(x) of the Act. In such case, this Court is of the view that the sentence can be limited to the minimum prescribed. A sentence of simple imprisonment for six months and to pay a fine of ₹5,000/-, in default to undergo simple imprisonment for three more months for the offence under Section 3(1)(x) of the Act, will meet the ends of justice in this case. The sentence imposed by the court below for the offences under Sections 447 and 294(b) IPC are not liable to be interfered with.

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In the result, this Crl.Appeal is allowed in part by maintaining the conviction and by modifying the sentence as follows:

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Each appellant shall undergo simple imprisonment for two months each for the offences under Sections 294(b) and 447 IPC and to undergo simple imprisonment for six months and to pay a fine of 5,000/-, in default, to undergo simple₹

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imprisonment for three more months for the offence under Section 3(1)(x) of the Act. All the substantive sentences of imprisonments shall run concurrently. It is made clear that the appellants are entitled to set off, of the period, if any, undergone by them in detention in connection with the investigation, inquiry, and trial of this case under Section 428 Cr.P.C.

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Sd/- B.KEMAL PASHA, JUDGE

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stu

Baby Mathew and Another v. State of Kerala

Case brief

What is this about?

What did the court decide?

Baby Mathew and Another v. State of Kerala

Case brief

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What did the court decide?

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