Criminal Appeal No. 83 of 2002 · Kerala High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No. 83 of 2002 (A) - - - - - - - - - - - - - - - - - - - -Dated this the 29th day of March, 2007J U D G M E N TThe accused in Sessions Case No.111/2001 on the file ofSessions Court, Ernakulam, is the appellant. He was found guiltyof the offence punishable under Sections 448 and 354 of the IndianPenal Code as well as under Sections 3(1)(xi) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,in short the Act. Therefore, convicted and sentenced him, toundergo simple imprisonment for one month under Section 448I.P.C. Simple imprisonment for a period of six months and also topay a fine of Rs.5,000/- under Section 3(1)(xi) of the Act. Noseparate sentence was imposed under Section 354 I.P.C. In viewof the sentence imposed under Section 3(1)(xi) of the Act, the saidconviction and sentence are under challenge through this appeal.2.The brief facts of this case, required for thedisposal of the appeal, are that, PW.1, a woman, aged about 20years and who studied upto Std.X, is the wife of PW.5, a carpenterby profession. The latter was working under the appellant, who isalso a carpenter. Both PW.5 and the appellant were doing the Crl.A.No.83/2002-: 2 :-work for a person, by name Ravi, a contractor. There was aworking shed near the house of Ravi. It is alleged that theappellant trespassed into the house of PW.1, demanding insulationtape, when PW.1 was alone in the house and, whileso, caught onher hand and closed her mouth when she tried to make an alarm.She pushed him away. He then left the place. When PW.5returned from the work place PW.1 complained about the incidentand both of them went to the house of the appellant who wasresting after his lunch. All the three, on the request of theappellant, came to the house of Ravi, the contractor. But he wasaway from his house. PW.2, his wife was present. PW.5 asked theappellant, why he caught on the hand of his wife. Thereafter,after a brief talk, PWs.1 and 5, went back to their house. 3.The parents of PW.5 had gone out at the time ofthe occurrence. They returned in the evening. They discussedeach other and as the appellant did not ask any excuses for hismisdeed, PW.5 went and gave complaint before PW.7, the SubInspector of Police, Kalamassery Police Station. On recordingExhibit P1, First Information Statement of PW.1, PW.7 registeredExhibit P1(a), First Information Report, under Sections 448 I.P.C Crl.A.No.83/2002-: 3 :-and 3(1)(xi) of the Act. PW.8, the Assistant Commissioner of Policeconducted the investigation. PW.8 questioned the witnesses,completed the investigation and filed the final report.4.To prove the offence under Section 3(1)(xi) of theAct, there should be a use of force or an assault on a woman,belonging to a scheduled caste, with an intention to dishonour her,or outrage her modesty. PW.3, the Tahsildar of Kanayannur Taluk,issued Exhibit P2 caste certificate, certifying that PW.1 belongs topulaya community, which is included under the scheduled caste.Exhibit P3 is the community certificate issued by PW.3, showingthat the appellant is a Christian. The important ingredients ofSection 3(1)(xi) of the Act is that the criminal act must beperpetuated with an intention that the woman is a member of thescheduled caste or scheduled tribe. None of the prosecutionwitnesses particularly, PWs.1 and 5 had deposed that the accusedhad trespassed into the house of PW.1 and assaulted her becauseshe is a member of a scheduled caste. Only when such an act isdone, with an intention of outraging her modesty or using criminalforce, Section 3(1)(xi) of the Act will be attracted. In the presentcircumstances, there is absolutely no material to show that the Crl.A.No.83/2002-: 4 :-appellant had committed the criminal act alleged against him, onPW.1, with an intention that PW.1 is a scheduled caste woman, andalso used force on her with an intention of dishonouring her, oroutraging her modesty. Therefore, I hold that the findings of thetrial court under Section 3(1)(xi) of the Act is unsustainable.Therefore, I set aside the same.5.The final report field by PW.8 was under Sections448 I.P.C and Section 3(1)(xi) of the Act. Section 354 I.P.C was notthere. However, when the court took cognizance of the matter, itadded Section 354 I.P.C along with the other offence u/s 3(1)(xi) ofthe Act. 6.The conviction is under Section 448 I.P.C. Toprove the offence under Section 448 I.P.C, the prosecution has toestablish, inter alia, that the appellant had committed the trespassin the house of PW.1, or he, after having lawfully entered,remained there unlawfully, with an intention to commit an offence,or to intimidate PW.1, insult her, or to annoy her. I have gonethrough the evidence of PW.1. It is her case that the appellantcame to the house, enquiring for insulation tape. She was in thehall of the house. There was no door to the house. She showed Crl.A.No.83/2002-: 5 :-the bedroom and pointed out to the appellant that the insulationtape would be in the drawer of the bedroom. It is also the case ofPW.1 that she extended her hand, pointing to the drawer that theinsulation tape was inside the drawer of the table. It was then thatthe accused caught on her hand.7.PW.1 deposed that the appellant had closed hermouth. At one point she deposed that the appellant had closed hermonth so as to prevent her from making sound. But at anotherpoint she deposed that he had closed her month thinking that shemay make sound. It is also her case in Exhibit P1 F.I.S., that theappellant pushed her to the wall. But she did not depose the samewhile in the box. It is the further case of PW.1 that when shepushed him, he went out. 8.The prosecution has put up a case that thegrandmother of PW.5, the husband of PW.1, was aged about 86,and was hard of hearing and seeing. She was sick and, thereforewas lying. No one else was in the house. But PW.1 deposed thatat about 10 a.m. or 11 a.m., the said grandmother walked awayfrom the house and went to the adjacent house of greatgrandmother. Therefore, the evidence of PWs.1 and 5 that the Crl.A.No.83/2002-: 6 :-grandmother was sick and therefore, she was unable to moveabout, cannot be accepted. As rightly pointed out by the defence,during the trial, neither PW.7 nor PW.8 had questioned thegrandmother. The proper investigation ought to have been, toquestion her, record her statement, cite and examine her, as awitness, in the court of law, so that the court could appreciate,whether she was really suffering from any such ailments, as hadbeen stated by PWs.1 and 5.9.Even according to PW.1, the appellant did nottrespass into the house. He took the permission of PW.1 and shepermitted him to enter into the bedroom. Therefore, the questionis, after having entered, whether he unlawfully remained andcommitted the offence alleged, by using criminal force on PW.1.There is no evidence to show that the appellant left the work cite,as PW.6 did not support the prosecution case. But the importantpoint which I appreciate is the evidence of PW.2, who though washostile, had deposed that PWs.1 and 5, and the appellant had cometo her house and were speaking about the some incidence whichoccurred involving the appellant and PW.1. The defence putforward by the appellant was that the work done by PW.5 was not Crl.A.No.83/2002-: 7 :-to the satisfaction of the contractor and, therefore, he wasthreatening PW.5 to send out of the job. There was a feeling forPWs.1 and 5 that the reason for sending him off from the job wasthe appellant and, hence they have falsely put forward this case.The proper person to disprove or prove this fact was the contractorRavi. But he was not cited and examined by the defence.Therefore, I am unable to accept that contentions. Therefore, thefact remains that something had happened, involving the appellantand PW.1, that was the reason why PWs.1 and 5 went to the houseof the appellant during the lunch period and, thereafter, all thethree of them came to the house of PW.2 and talked about it. Insuch circumstances, I do not disbelieve the version of PW.1.10.The next question is whether there was anintention to outrage the modesty of PW.1. 'Modesty' has somerelation to the sense of propriety of behavior in relation to PW.1,against whom the offence is said to have been committed. Themere physical act of the appellant is insufficient to attract theintention or the ingredients of Section 354 I.P.C. But the use ofthe criminal force or an assault, must contain a subjective element,so far as PW.1 is concerned, against whom the force was used. In Crl.A.No.83/2002-: 8 :-the facts of this case, the evidence of PW.1 is not clear about theclosing of her mouth. Due to the non examination of thegrandmother and the other circumstances, I am of the opinion thatthere was no intention on the appellant to outrage the modesty ofPW.1. But he intentionally used criminal force on PW.1 bycatching on her hand, which she extended to point out where thedrawer was, from where insulation tape could be collected by theappellant. Therefore, the offence attracted on that count is underSection 352 I.P.C for using criminal force on any person otherwisethan on grave provocation given by that person. After havingpermitted the entry into the house of PW.1, the appellant remainedthere and caught hold on the hand of PW.1. He unlawfullyremained in the bedroom of PW.1 and committed the offenceunder Section 352 I.P.C, as stated above. Hence, the ingredientsof Section 448 I.P.C., as having entered unlawfully, remained backto commit an offence also comes into play. Therefore, the offenceproved is under Section 448 I.P.C. as well.11.The parties are neighbours. The occurrence tookplace in the year 2000. In such circumstances, sending this personto jail would be against the interest of both the parties. Crl.A.No.83/2002-: 9 :-12.In the result, I allow the appeal in part. Theconviction of the trial court under Section 3(1)(xi) of the Act is setaside. The conviction under Section 354 I.P.C is also set aside.The conviction under Section 448 I.P.C is sustained. I also convictthe appellant under Section 352 I.P.C. The sentence of simpleimprisonment for one month, imposed under Section 448 I.P.C isset aside, instead, I impose a fine of rupees one thousand, underSection 448 I.P.C, in default to undergo simple imprisonment forone month. I also impose a fine of rupees five hundred underSection 352 I.P.C, in default to undergo simple imprisonment fortwo weeks. The trial court shall take steps to realise the fine fromthe appellant, on receipt of a copy of this judgment.(J.M.JAMES)Judgems Crl.A.No.83/2002-: 10 :-J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No.83 of 2002 (A) - - - - - - - - - - - - - - - - - - - -J U D G M E N T 29th March, 2007