IMPORTANT POINT
In sexual offences against children and women are on increase – Invoking provisions of Probation of Offenders Act, 1958 may send wrong message to society at large.

JUDGMENT

In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused, in S.C.No.206 of 2010 on the file of the Court of Session, Kalpetta, Wayanad, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 377 and 506 Part II IPC.

2. The prosecution case is that on 11/10/2008 at about 12:30 p.m. the accused had carnal intercourse against the order of nature with PW1 a minor boy aged 12 years and threatened to do away with his sister if he divulged the incident to others. Hence, as per the final report/charge sheet the accused is alleged to have committed the offences punishable under Sections 377 and 506 Part I IPC.

3. Crime no.174/2008, Thalapuzha police station, that is, Ext.P9 FIR was registered by PW8, the then Additional Sub Inspector of police, based on Ext.P1 FIS of PW1. The investigation was conducted by PW9, the then Additional Sub Inspector of Police, Thalapuzha, who on completion of investigation submitted the final report before the jurisdictional magistrate alleging the commission of the offences punishable under the aforementioned Sections by the accused.

4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Kalpetta, Wayanad. The case was taken on file as S.C. No.206 of 2010. On appearance of the accused, the trial court framed a charge for the offences punishable under Sections 377 and 506 Part I IPC, which was read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PW1 to PW9 were examined and Exts.P1 to P10 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. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all 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 consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Sections 377 and 506 Part II IPC. Hence, he has been sentenced to rigorous imprisonment for four years and to a fine of Rs.10,000/- and in default to rigorous imprisonment for three months for the offence punishable under Section 377 IPC and rigorous imprisonment for one year for the offence punishable under Section 506 Part II IPC. The fine amount if realized has been directed to be paid to PW1, the victim boy, as compensation under Section 357(1)(b) Cr.P.C. The sentences of imprisonment have been directed to run concurrently. Set off under Section 428 Cr.P.C. has also 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.

10. It was submitted by the learned counsel for the accused/appellant that there are material improvements in the case put forward by the prosecution. Even if the entire allegations in Ext.P1 FIS are taken to be true, the offence under Section 377 IPC would not be made out. At best the allegations would only make out an offence under Section 511 of Section 377 IPC. It was also pointed out that the accused at the time of the incident was only 19 years old and hence the provisions of Section 360 Cr.P.C. may be invoked.

10.1. Per contra, it was submitted by the learned Public Prosecutor that there are sufficient materials on record to prove the offences alleged against the accused and th