Kerala High Court
Vijayan vs Station House Officer on 4 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF MARCH 2025 / 13TH PHALGUNA, 1946
CRL.A NO. 235 OF 2019
CRIME NO.32/2015 OF THAMARASSERY POLICE STATION, KOZHIKODE
AGAINST THE JUDGMENT DATED 12.07.2018 IN SC NO.319 OF
2015 ON THE FILE OF THE SPECIAL COURT FOR TRIAL OF CASES
RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND
CHILDREN, KOZHIKODE
APPELLANT/ACCUSED:
VIJAYAN,
AGED 55 YEARS,
S/O.RAGHAVAN, C.NO.547/18
CENTRA PRISON & CORRECTIONAL HOME,
KANNUR (THROUGH SUPERINTENDENT, CENTRAL PRISON &
CORRECTIONAL HOME, KANNUR)
BY ADV SRI.SIDHARTH A.MENON
RESPONDENT/RESPONDENT:
STATION HOUSE OFFICER,
THAMARASSERY POLICE
REP.BY PUBLIC PROSECUTOR.
BY ADV SMT.AMBIKA DEVI S, SPL.GP ATROCITIES
AGAINST WOMEN & CHILDREN & WELFARE OF W & C
SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.02.2025, THE COURT ON 04.03.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Crl.Appeal No.235 of 2019
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Dated this the 4th day of March 2025
JUDGMENT
In this jail appeal filed under Section 383 Cr.P.C., the
appellant, the sole accused, in S.C.No.319/2015 on the file of the
Special Court for Trial of Cases Relating to Atrocities and Sexual
Violence Towards Women and Children, Kozhikode, challenges
the conviction entered and sentence passed against him for the
offences punishable under Section 9(m) read with Section 10 of the
Protection of Children from Sexual Offences Act, 2013 (the
PoCSO Act) and Section 3(1)(xi) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC/ST
Act).
2. The prosecution case is that on 19/01/2015 at 16:30
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hours, while PW2, a minor girl aged 8 years, was on her way to the
house of PW3, for giving sweets to the daughter of the latter, the
accused lifted her and sexually assaulted her by touching her
private parts by inserting his fingers into her inner-wear from either
side, that is, from the back as well as front, and thereafter pasted a
sticky fluid on her leg. The accused sexually assaulted PW2
knowing fully well that she was a member of the Scheduled Caste
community. Thus as per the final report, the accused is alleged to
have committed the offences punishable under the aforementioned
Sections.
3. Crime no.32/2015, Thamarassery police station, that is
Ext.P10 FIR, was registered by PW12, Sub Inspector, on the basis
of Ext.P1 FIS of PW1. PW14, Dy.S.P., Thamarassery, conducted
the investigation and on completion of investigation, submitted the
final report/charge sheet before the court.
4. On appearance of the accused before the trial court, a
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charge under Section 9(m) read with Section 10 of the PoCSO Act
and Section 3(1)(xi) of the SC/ST Act was framed, read over and
explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 14 were examined
and Exts.P1 to P15 were marked in support of the case. After the
close of the prosecution evidence, the accused was questioned
under Section 313(1)(b) Cr.P.C. with regard to the incriminating
circumstances appearing against him in the evidence of the
prosecution. The accused denied those circumstances and
maintained his innocence.
6. As the trial court did not find it a fit case to acquit the
accused under Section 232 Cr.P.C., he was asked to enter on his
defence and adduce evidence in support thereof. No oral or
documentary evidence was adduced on behalf of the accused.
7. On a consideration of the oral and documentary evidence
and after hearing both sides, the trial court by the impugned
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judgment found the accused guilty of the offences punishable
under Section 9(m) read with Section 10 of the PoCSO Act and
Section 3(1)(xi) of the SC/ST Act. He has been sentenced to
simple imprisonment for five years and to a fine of ₹50,000/- and
in default to simple imprisonment for two years for the offence
punishable under Section 9(m) read with Section 10 of the PoCSO
Act, and to simple imprisonment for two years and to a fine of
₹5,000/- and in default to simple imprisonment for three months
for the offence punishable under Section 3(1)(xi) of the SC/ST Act.
The substantive sentences of imprisonment have been directed to
run concurrently. Set off under Section 428 Cr.P.C. has been
allowed. Aggrieved, the accused has come up in appeal.
8. The only point that arises for consideration in this appeal
is whether the conviction entered and sentence passed against the
accused/appellant by the trial court are sustainable or not.
9. Heard both sides.
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10. It was submitted by the learned counsel for the
accused/appellant relying on the dictum in Asharfi v. State of
Uttar Pradesh, (2018)1 SCC 742 : AIR 2017 SC 5819 that the
trial court committed a mistake in convicting and sentencing the
accused as the offence under Section 3(2)(v) of the SC/ST Act is
not made out. Hence on the said ground alone, the accused is
entitled to be acquitted, goes the argument.
11. The incident in this case took place on 19/01/2015.
Asharfi (Supra) was a case in which the appellant/accused therein
was convicted for the offences punishable under Sections 450,
376(2)(g), 323 IPC and under Section 3(2)(v) of the SC/ST Act.
Varying terms of imprisonment were given for the aforesaid
offences and invoking Section 3(2)(v), the appellant was also
sentenced to life imprisonment and fine with a default clause. The
Apex court confirmed the sentence awarded for the offence under
Section 376(2)(g) IPC. The Apex court held that the gravamen of
Section 3(2)(v) is that any offence, envisaged under IPC
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punishable with imprisonment for a term of ten years or more,
against a person belonging to Scheduled Caste/Scheduled Tribe,
should have been committed on the ground that “such person is a
member of a Scheduled Caste or a Scheduled Tribe or such
property belongs to such member”. Prior to the Amendment Act 1
of 2016, the words used in Section 3(2)(v) of the SC/ST Act are
“……on the ground that such person is a member of a Scheduled
Caste or a Scheduled Tribe”. By way of the amendment, the
words “…….on the ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe” have been substituted with
the words “……..knowing that such person is a member of a
Scheduled Caste or Scheduled Tribe”. Therefore, if an offence
under IPC punishable with imprisonment for a term of ten years or
more, is committed upon a victim who belongs to SC/ST
community after 26/01/2016 and the accused person has
knowledge that such victim belongs to the said community, then
the charge of Section 3(2)(v) of SC/ST Act would be attracted.
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But from the unamended provisions of Section 3(2)(v) of the
SC/ST Act, it is clear that the statute laid stress on the intention of
the accused in committing such an offence in order to belittle the
person as he/she belongs to Scheduled Caste or Scheduled Tribe
community. It was found that the evidence and materials on record
did not show that the appellant therein had committed rape on the
victim on the ground that she belonged to Scheduled Caste.
Section 3(2)(v) of the SC/ST Act can be pressed into service only
if it is proved that the rape had been committed on the ground that
the victim belonged to Scheduled Caste community. In the
absence of evidence proving intention of the appellant therein in
committing the offence on the victim only because she belonged to
Scheduled Caste community, the conviction of the appellant under
Section 3(2)(v) of the SC/ST Act was held to be not sustainable
and hence the conviction under Section 3(2)(v) of the SC/ST Act
was set aside. However, the conviction and sentence of the
appellant for the offence under Section 376(2)(g) IPC as well as
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the other offences were confirmed.
12. As is clear from a reading of Section 3(2)(v) of the
SC/ST Act, the same does not deal with any particular offence. It
only provides for life imprisonment in case a person is found guilty
of an offence under IPC which is punishable with imprisonment
for a term of ten years or more against a member of the Scheduled
Caste/Scheduled Tribe on the ground that such person belongs to
the said caste or community. The accused has not been found
guilty of any offence(s) punishable under the IPC. The
accused/appellant has been found guilty only of the offences
punishable under Section 3(1)(xi) of the SC/ST Act and Section
9(m) read with Section 10 of the PoCSO Act. The term of
imprisonment that could be imposed under Section 3(1)(xi) was six
months which could extend to five years and for the offence under
Section 9(m) of the PoCSO Act, the minimum sentence is five
years which may extend to seven years. None of the ingredients
under Section 3(2)(v) of the SC/ST Act are attracted. The trial
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court has rightly not invoked the said Section. Therefore the
dictum in the aforesaid case is not applicable to the facts in the
present case.
13. Now coming to the offences under Section 9(m) read
with Section 10 and Section 3(1)(xi) of the SC/ST Act. I make a
brief reference to the materials on record relied on by the
prosecution to prove the offence. PW2, the victim, the daughter of
PW1 deposed that in the year 2015, she was studying in the II nd
Standard. Her mother was working as a nurse. She was residing
along with her mother and brother. On the date of the incident, she
reached home by about 4 o’ clock in the evening. Her mother gave
her some sweets. She then sought her mother’s permission to go to
her neighbour’s house to give sweets to her friend. On her way to
the house of her friend, she saw Vijayettan (the accused herein)
along with Kuttappi and another person on the road. Kuttappi was
repairing a bike. When she reached there, Kuttappi left the place
by taking his vehicle. The accused lifted her and made her swing,
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during the course of which he touched her private parts by
inserting his fingers through the front and back portion of her
inner-wear. Thereafter she was placed on the ground and the
accused pasted a sticky fluid on her legs. By this time, Kuttappi
returned with his vehicle and so the accused released her. She did
not proceed to her friend’s house due to the incident and so she
returned home and informed her mother.
14. PW1, the mother of PW2, supports the prosecution
case. She also deposed that on the said day her daughter, who had
left for her friend’s house to give sweets, returned home crying and
revealed the incident to her. She immediately removed her
daughter’s dress and bathed her. Thereafter she went to the house
of the accused to enquire about the incident. However, the
brother-in-law of the accused was present there and therefore she
did not question the accused and instead she requested the wife of
the accused to come to her house in order to speak about an
important matter. When the wife of the accused came to her house,
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she informed the former of the incident. The wife of the accused
cried and requested her not to take any hasty steps and wait till her
daughter’s marriage was over. PW1 also deposed that she had
informed PW3 Alice and one another neighbour, that is, Shantha,
about the incident. The next day she again went to the house of
the accused to question him. The wife of the accused questioned
the accused at which time he apologized to PW1. The accused
expressed his regret and informed PW1 that his daughter’s wedding
is to be solemnised on a near date. The next day she went to the
police station and gave Ext.P1 statement to the police.
14.1. PW3, a neighbour of PW1, deposed that PW1 had
revealed the incident to her also. PW4, the neighbour of PW1 as
well as PW3 deposed that on 20/01/2015 she heard a commotion
in front of the house of the accused and accordingly she went
there. She heard the wife of the accused talking in a loud voice.
However on enquiry she did not respond. On the way back, she
met PW3 Alice, who informed her that the accused had sexually
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harassed PW2.
14.2. PW5, Civil Surgeon, Taluk Hospital,
Thamarassery, examined PW2 on 20/01/2015 at about 04:00 p.m.
and issued Ext.P3 certificate.
14.3. PW9, Headmaster, Government UP School,
Thamarassery, issued Ext.P6 certificate regarding the date of birth
of PW2. Her date of birth as per the said certificate is 06/02/2007.
15. Referring to the testimony of PW1 and PW2, it was
submitted that the prosecution witnesses have no consistent case.
PW1 has given different versions in Ext.P1 FIS, her 164 statement
and in the box. PW1 is a nurse and hence would have been well
aware of the procedure to be followed when a sexual abuse takes
place. However going by her testimony, she bathed her daughter
immediately after the incident resulting in evidence being
obliterated. There is inconsistency in the colour of the frock of
PW2 referred to in Ext.P11 mahazar and in Ext.P15 chemical
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report. There is also delay in reporting the matter to the police. The
materials on record are not satisfactory to find the accused guilty
of the offences alleged against him beyond reasonable doubt and
therefore he canvassed for an order of acquittal.
16. Going by the case of PW2, it is seen that the accused
after lifting her touched her private parts by putting his fingers
inside her inner-wear and thereafter pasted some sticky liquid on
her thighs. PW2 has no case that the sticky liquid was spread on
her frock or dress. That being the position, it is immaterial that no
sperm or spermatozoa was traced in the frock that was worn by the
victim girl at the time of the incident. Hence in such
circumstances, the difference in the colour of the frock alleged to
have been worn by the victim and described in Exts.P11 and P15,
is immaterial.
17. Though it was submitted that the statements of PW1
and PW2 are quite inconsistent, on going through the testimony I
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do not find any major contradictions brought out while they were
cross examined and proved through the investigating officer. There
are no materials to show as to why the accused/appellant should be
falsely implicated in this case. Therefore I do not find any reasons
to disbelieve PW1 and PW2 or the other prosecution witnesses.
18. As far as the delay is concerned, the same has been
explained by PW1. On the date of the incident itself, she had gone
to the house of the accused for questioning him. It was only
because the brother-in-law of the accused was present there, she
did not question him. The next day also she questioned the
accused on which day he expressed regret over the incident. It is
true that the testimony of PW1 shows that she had consulted her
friends and her colleagues at the hospital before she gave her
statement to the police. It is quite natural in offences of such
nature to consult the family and friends before a decision as to
whether or not to set the law in motion is taken by the family of the
victim. There is no inordinate delay in giving the complaint to the
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police and what delay occurred has been explained by the
testimony of PW1. I do not find any infirmity in the findings of
the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ami/