Kuriakose vs State of Kerala

T.M. Hassan Pillai, J.—This appeal is directed against the judgment and order of conviction passed by the learned Sessions Judge, Ernakulam in C.C. No. 30/94 whereby he found the Appellant guilty of the offences punishable u/s 354 I.P.C. and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Consequent on conviction the Appellant was ordered to undergo simple imprisonment for six months and to pay a fine of Rs. 500 in default to undergo simple imprisonment for 15 days for the offence punishable u/s 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the ''Act'') and no separate sentence was awarded by the trial court for the commission of the offence u/s 354 I.P.C.

The prosecution case stated in the judgment under appeal is that on 3rd April 1993 at about 11 a.m. at the Keezhillam Parambi Peedika road leading towards east from Perumbavoor-Moovattupuzha M.C. Road at Keezhillam Kara in Rayamangalam Village Appellant "caught hold of both breast" of Karthika (P.W. 1), who is a member of the Scheduled Caste, from behind and when she resisted, the Appellant hit on her back with a stone, which was picked up from the road by the Appellant. Thus it is alleged by the prosecution, the Appellant committed the offences punishable under Sections 324 and 354 I.P.C. and also u/s 3(1)(xi) of the Act.

The case was registered on the basis of Ext. P-1 statement of P.W. 1 recorded by P.W. 9, who was the Head Constable attached to Kuruppampady Police Station on the next day of the alleged incident, and the then Sub Inspector of Police, Kuruppamnady Police Station, registered a case in Crime No. 66/93. F.I.R. lodged is Ext. P-1l. The investigation was taken up by P.W. 10, who was the then Circle Inspector of Police, and after completing the investigation, he laid the challan against the Appellant before the Sessions Court, Ernakulam alleging the commission of the aforesaid offences.

To connect the Appellant with the crime alleged as many as 10 witnesses were examined and Exts. P-1 to P-13 were marked. The defence case of the Appellant was that P.W. 4, who is the husband of P.W. 1, was a subscriber to the Kuri conducted by him (accused- Appellant) as Foreman and P.W. 1''s husband, who was a prized subscriber, defaulted in making the subscriptions to the Kuri and when demand for the defaulted subscriptions was made there ensued a quarrel between the Appellant and P.W. 1''s husband. It was on account of the enmity such a false case has been foisted against him.

The .learned trial Judge on a consideration of the evidence held that the prosecution succeeded in establishing the charge levelled against the Appellant u/s 354 I.P.C. and Section 3(1)(xi) of the Act and imposed sentence on one count.

Assailing the conviction the learned Counsel for the Appellant contended vehemently that no endeavour was made by the learned Sessions Judge to analyse and appreciate the evidence in the proper perspective, though sufficient materials are available to hold that the culprit is not identified at the time of alleged commission of an offence by P.W. 1 and no attempt was made by the prosecution to conduct a test identification parade. Counsel argued that in her evidence P.W. 1 has not clearly implicated the accused-Appellant as the perpetrator of the crime and the learned Judge should have discarded the evidence given by P.W. 1 implicating the Appellant. Counsel for the Appellant also contended that there is no consistent case for the prosecution regarding the place of the incident i. e. in the earliest version of the incident given by P.W. 1 in Ext. P-1 she has stated that the place of incident is a thondu (pathway) which is passing through a rubber estate belonging to one Yoyakki, whereas in the evidence given by her the place of incident is described as a Panchayat road having a width of 5.16 metres and according to the prosecution, it is a motorable road. He contended that no credence can be given to the evidence given by P.W. 6, who is a child witness and the learned Counsel submitted that the evidence given by P.W. 6 contradicted materially with the evidence given by P.W. 1 regarding outraging of her modesty. The learned Counsel also brought to my notice the fact that the prosecution has not adduced any evidence to prove that the Appellant is not a member of Scheduled Caste or Scheduled Tribe and he contended vehemently that as the prosecution failed to prove that fact, the trial Judge erred grossly in holding that the offence u/s 3(1)(xi) of the Act was made out.

The learned Public Prosecutor has not taken pains to support the finding of the learned Sessions Judge, in view of the unsatisfactory nature of the evidence adduced by the prosecution to prove its case.

Being an appeal against conviction this Court has to re-appraise the entire evidence and enter a finding regarding the culpability or otherwise of the accused-Appellant making a close scrutiny of evidence.

Let me first deal with the evidence led by the prosecution regarding the commission of an offence u/s 3(1)(xi) of the Act. For proving a charge u/s 3(1)(xi) of the Act it is imperative on the prosecution to prove that accused is not a member of Scheduled Caste or Scheduled Tribe. P.W. 1 deposed that she is a member of the Harijan Community and Ext. P-3 caste certificate issued by the Tahsildar, Kunnathunadu Taluk (P.W. 3) also proved that she is a member of Scheduled Caste or Scheduled Tribe. No attempt was made by the prosecution to prove that the accused-Appellant is not a member of Scheduled Caste or Scheduled Tribe. P.W. 1 has not stated that the accused-Appellant is not a member of Scheduled Caste or Tribe and he is a Christian or member of any other community. Her evidence shows that she has no knowledge regarding the community of Appellant. Prosecution failed to discharge its bounden duty to prove that Appellant is not a member of Scheduled Caste or Scheduled Tribe. The evidence relied on by the prosecution to prove that the Appellant is not a member of Scheduled Caste or Scheduled Tribe is the evidence given by P.W. 10, the Investigating Office. It is clear from his evidence that he-has no direct knowledge regarding the community of Appellant and his assertion is that investigation was conducted by him to ascertain or to find out the community of Appellant (his assertion is that he questioned the neighbours). None of the neighbours was examined by the prosecution to prove that Appellant is not a member of Scheduled Caste or Scheduled Tribe. P.W. 10''s evidence on that aspect which is based on the statements of neighbours of Appellant made during the course of investigation is to be discarded on the ground that it is unacceptable. Since the prosecution failed to prove that the Appellant is not a member of Scheduled Caste or Scheduled Tribe, it cannot be held that offence u/s 3(1)(xi) of the Act was committed by him.

The prosecution story of attacking P.W. 1 by the Appellant with a stone is not accepted by the learned Sessions Judge and the learned Sessions Judge acquitted the Appellant of the charge u/s 324 I.P.C. State has not preferred any appeal challenging that finding of trial Judge. Acquittal has become final. So, that part of the evidence given by P.W. 1 regarding the attack made by the Appellant with a stone on her back is to be discarded (there is no medical evidence to prove that P.W. 1 sustained any injury as a result of attack made on her with a stone and in Ext. P-2 wound certificate issued by P.W. 2, who examined her on the next day of the alleged incident, it is stated that no external injury was found on examination of the person of P.W. 1).

The remaining question that is to be considered is whether the prosecution was able to establish its case of outraging the modesty of P.W. 1 by the Appellant. The earlier version of the incident given by P.W. 1 in Ext. P-1, is that while she was returning to her home on the fateful day (on 3rd April 1993 at about 11 a.m.) after purchasing rice from the grocery shop belonging to one Muthuvadan Yoyakki situated at Vayalipadi through the rubber estate belonging to one Yoyakki, the Appellant came from behind and fondled or pressed her breast. She resisted and she attempted to get released from the grip of the Appellant and fell down. Thereafter, when she resisted the armorous attempt the Appellant attacked her with a stone on her back. No such story was narrated by her to her husband (P.W. 4). The evidence given by P.W. 4 is to the effect that when he returned to his house after his day''s work on the fateful day, he was told by P.W. 1 that she was hit with a stone on her back by the Appellant while returning from the shop after purchasing rice and it is clear from his evidence that no story of pressing or fondling her breast from behind by the Appellant is disclosed to him. It is also to be pointed out that while giving history of the incident to Doctor (P.W. 2), who examined P.W. 1 it was not the version of P.W. 1 that her modesty was outraged by the Appellant. The history given to P.W. 2 is that she was attacked

. She had not mentioned the name of the assailant to the Doctor (P.W. 2). No explanation was given by P.W. 1 for not disclosing the fact of outraging her modesty to her husband or to the Doctor and for the first time she came forward with a story of outraging her modesty, when P.W. 9 recorded her statement on the next day of the incident. No credence can be given to her evidence regarding outraging her modesty. Further, she has not stated clearly in her evidence that the Appellant pressed both her breasts or fondled her breast. Her version while giving evidence was that while she was returning to her home after purchasing rice from the shop, culprit came from behind and embraced her or caught bold of her, that she was not able to get herself extricated from his grip, that she cried and that Appellant hit her with a stone. It is clear from her evidence that at the time of the alleged incident she had not identified the culprit who attacked her. It is her version in examination in chief that as she had not seen the culprit at the time of incident, after the incident she went to the grocery shop to ascertain as to who attacked her and P.W. 5 told her that the Appellant is the culprit. She has admitted in cross-examination that she cannot say with certainty as to who caught hold of her from behind. She has also stated that she cannot say who hit her with a stone on her back

. It is her assertion that she came to know as to who was the assailant, only when she came back to the grocery shop. It is also admitted by her in cross-examination that she has not told to the Police that it was the Appellant, who outraged her modesty or attacked her with a stone (Ext. D-2 is the confronted portion of police statement of her). So, relying on the unsatisfactory and uncreditworthy evidence given by P.W. 1 it is not possible to hold that the prosecution succeeded in proving its case that the modesty of P.W. 1 was outraged by the Appellant.

P.W. 5 turned hostile to the prosecution and the only fact elicited by the prosecution from him is that after some time, i.e. some time after leaving the shop after purchasing rice, P.W. 1 returned and told him that the Appellant attacked her. P.W. 5 is not a witness to the incident and as the fact of outraging her modesty is not disclosed by P.W. 1 to P.W. 5 I cannot give much credence to her evidence that P.W. 1 told him that she was attacked by the Appellant.

The evidence of P.W. 6 is also not acceptable on the ground that he has no consistent version regarding the incident in question. He deposed in chief-examination that he had witnessed taking place of push and pull between the Appellant and P.W. 1 and on seeing the Appellant pulling P.W. 1 he cried and went to his Tharwad whereas his evidence in cross examination is that what was seen by him was pulling the hand of P.W. 1 by the Appellant. No such fact was disclosed by him when he was questioned by P.W. 10 during the course of investigation. Further, it is not the version of P.W. 1 that there took place a push and pull between the Appellant and herself or the Appellant pulled her hand. So, the evidence given by P.W. 6 which in no way supports the evidence of P.W. 1 is also to be discarded.

As rightly pointed by the learned Counsel for the Appellant there is no consistent case for the prosecution regarding the place of incident. In Ext. P-l the assertion of P.W. 1 is that the incident took place while she was returning after purchasing rice through the Thondu (evidence of P.W. 10 is that Thondu is a narrow pathway) passing through the rubber estate whereas scene spot described in Ext. P-10 is the panchayat road having a width of 5.16 metres. P.W. 6''s assertion is that incident took place at Thondu. The place of incident was not shown to the police by P.W. 1 or by P.W. 6. Place of incident was shown to the police by P.W. 4. By no stretch of imagination it is possible to hold that scene spot Thondu (narrow pathway) and Panchayat road having a width of 5.16 metres are one and the same. There is no evidence forthcoming to show that P.W. 1 had shown the place of incident to P.W. 4, and P.W. 4 is not an occurrence witness. P.W. lO''s evidence shows that scene spot was not shown to police by any occurrence witness. As the prosecution has no consistent case regarding the place of incident i.e. whether the incident took place at Thondu (a narrow pathway) or at a Panchayat road the course open is to acquit the Appellant of the charge levelled against him. Prosecution must have a consistent case regarding the place of occurrence and it should not shift the scene spot.

The learned Sessions Judge has given wholly unsound reasons to enter a finding regarding guilt of the Appellant and no attempt was made by the learned Sessions Judge to appreciate the evidence in the proper perspective and the finding recorded by him is infirm and unsupportable as it is based on perverse appreciation of evidence.

In the result, the appeal is allowed setting aside the conviction of the Appellant u/s 354 I.P.C. and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The bail bond if any executed by him stands discharged.