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2003(8) Supreme 121
SUPREME COURT OF INDIA
(From Kerala High Court)
Doraiswamy Raju and Arijit Pasayat, JJ.
Vidyadharan -Appellant
versus
State of Kerala -Respondent
Criminal Appeal No. 278 of 1997
Decided on 14-11-2003
Counsel for the Parties :
For the Appellant : K. Sukumaran, Sr. Advocate, N.R. Shonkar, Advocate for M/s TTK. Deepak and Co. Advocates.
For the Respondent : Ramesh Babu M.R., Advocate.
Held : Delay in every case cannot be a ground to arouse suspicion. It can only be so when the delay is unexplained. In the instant case the delay has been properly explained. Further, PW-2 is an independent witness and a neighbour of both the accused appellant and PW-1. There is no reason as to why he would falsely implicate the appellant. A charge under Section 354 is one which is very easy to make and is very difficult to rebut. It is not that art of enmity false implications are made. It would however be unusual in a conservation society that a woman would be used as a pawn to wreck vengeance. When a plea is taken about false implication, Courts have a duty to make deeper scrutiny of the evidence and decide acceptability or otherwise of the accusations. In the instant case, both the trial Court and the High Court have done that. There is no scope for taking a different view. (Para 8)
Intention is not the sole criteria of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her witness should receive same weight. In the instant case after careful consideration of the evidence, the trial Court and the High Court have found the accused guilty. As rightly observed by the Courts below Section 3(1)(xi) of the Act which deals with assaults or use of force on any woman belonging to scheduled Caste or Scheduled Tribe with intent to or dishonour or outrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between Section 3 (1) (xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, Section 3 (1)(xi) applies. The other difference is that in Section 3(1)(xi) dishonour of such victim is also made an offence. Section 448 provides for punishment relating to house trespass. In order to sustain the conviction under Section 448 IPC it must be found that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and there must be proof of one or other of the intentions mentioned in Section 441 IPC. In the case at hand evidence clearly establishes the commission of offence punishable under Section 448. (Para 10)
A Special Court under this Act is essentially a Court of Session and it can take cognizane of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid down before the Special Court under the Act. We are re-iterating the view taken by this Court in Gangula Ashok and Anr. v. State of A.P. (2000 (2) SCC 504) in above terms with which we are in respectful agreement. The Sessions Court in the case at hand, undisputedly has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met. The inevitable conclusion is that the learned Sessions Judge, as the undisputed factual position goes to show, could not have convicted the appellant for the offence relatable to Section 3 (1) (xi) of the Act in the background of legal position noted supra. That is accordingly set aside. However, for the offence under Sections 354 and 448 IPC, custodial sentence for the period already undergone which as the records reveal is about three months, would meet the ends of justice considering the background facts and the special features of the case. (Paras 22 and 23)
(ii) Criminal Procedure Code, 1973 -Section 193-Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989-Section 3(1)(xi)-Court of Sessions Special Court-It can take cognizance of offences when the case is committed to it by Magistrate -A complaint or a chargesheet cannot straight away be laid down before the Special Court under the Act. (Para 22)
Key Points: - A Special Court under the Act is essentially a Court of Session and cannot take cognizance of an offence unless the case is committed to it by a Magistrate (!) (!) . - Section 3(1)(xi) of the Act applies when the victim belongs to a Scheduled Caste or Scheduled Tribe and is an aggravated form of Section 354 IPC, which punishes assault or use of criminal force to outrage a woman's modesty (!) (!) . - Delay in lodging an FIR cannot be a ground for suspicion unless it is unexplained; in this case, the delay was properly explained (!) (!) .
JUDGMENT
Arijit Pasayat, J.-Appellant faced trial for alleged commission of offences punishable under Sections 354 and 448 of the Indian Penal Code, 1860 (for short the IPC ) and Section 3 (1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short the Act ). He was convicted and sentenced to undergo three months and six months custodial sentence for offences relatable to Section 448 IPC and Section 3 (1)(xi) of the Act respectively. No separate sentence was imposed for the other offence. Aforesaid conviction and sentence was affirmed by the High Court.
2. Prosecution case which led to the trial is essentially as follows:
While the victim (PW-1) was alone in her house on 1.10.1992 at about 2 p.m. the accused entered into her house, went to the kitchen where she was cooking and attempted to catch hold of her hand, that when she attempted to escape from him by running to the front room and attempting to close the door, the accused followed her, opened the door forcibly and caught hold of and grasped her, when she made a hue and cry her brother PW-3 and other witnesses including PW-2 came there, and at that time the accused left PW-1 and pushed down PW-3 from the verandah and went along with his parents who came there hearing the hue and cry.
3. PW-1 lodged the first information report at the Kannamali Police Station on 2.10.1992 and a case was registered against the accused under Sections 448 and 354 IPC and Section 3 (1)(xi) of the Act. The C.I. of Palluruthy took up the investigation and laid the charge sheet against the accused after completing the investigation.
4. During trial, nine witnesses were examined to further the prosecution version. One witness was examined to substantiate the plea of false implication raised by the accused. On consideration of the evidence on record, learned Sessions Judge, Ernakulam found the accused guilty and convicted him as aforesaid. According to learned Sessions Judge the offence punishable under Section 3 (1) (xi) of the Act is an aggravated form of an offence punishable under Section 354 IPC and, therefore, no separate sentence for the latter offence is called for. Appeal before the Kerala High Court did not bring in any relief to the appellant.
5. In support of the appeal, Mr. K. Sukumaran, learned senior counsel submitted that the evidence on record clearly established that there was false implication. According to him PW-3, the brother of PW-1 outraged modesty of the appellant s sister after trespassing into their house on 27.9.1992. The sister of the accused was examined as DW-1. She is an unmarried girl and hence the family members counselled her not to make any complaint about the incident to avoid publicity. Apprehending legal action against PW-3 a false case was made with the active support of a communal organisation against the appellant.
6. The prosecution version is that at about 2.00 p.m. on the date of occurrence i.e. 1.10.1992 accused entered into the kitchen of PW-1 and caught hold of her hands and tried to outrage her modesty. She is a married woman with children. The information was lodged at police station on the next date. This itself shows that there is unexplained delay in lodging the FIR and as the incident involving PW-3 took place on 27.9.1992, as a counter blast a false case was instituted. Additionally, it was submitted that the conviction under Section 3(1)(xi) of the Act is clearly unsustainable and learned Sessions Judge had no jurisdiction to try the offence.
7. Residually, it is submitted that the incident took place more than a decade back and the appellant has suffered custodial sentence for nearly 3 months and, therefore, after this long passage of time it would not be proper to send the accused back to custody.
8. We shall first deal with the plea about false implication. It is seen that though there were some delay in lodging the FIR, it is but natural in a traditional bound society to avoid embarrassment which is inevi
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