Conviction requires clear evidence of intent and action; absence of injury does not negate other offences.

JUDGMENT :

(GOPINATH P., J.)

This appeal has been filed challenging the conviction and sentence imposed on the appellant in S.C.No.4/2013 on the file of the Additional Sessions Court – I, Kalpetta. S.C.No.4/2013 arises out of Crime No.128/2012 registered by the Sub Inspector of Police, Kenichira Police Station alleging commission of offences under Sections 341 , 342, 354, 323 and 294(b) of the Indian Penal Code ( IPC ) and Section 23 of the Juvenile Justice (Care and Protection) Act 2000. The allegation leading to the registration of Crime No.128/2012 is that on 17.05.2012 at about 09.30 A.M in the morning, the appellant due to his enmity towards PW2 (a girl aged 16 at the relevant time)had wrongfully confined her in the premises of his house bearing door No.XIII/398, Basavankally, Oorali Colony, Pulpally Grama Panchayat, voluntarily caused hurt to her and had caught hold of her hands with an intend to outrage her modesty and uttered obscene words and thereby he committed the offences alleged against him.

2. The trial court convicted the appellant for the offences under Sections 341 , 342, 354, 323 and 294(b) of the IPC but acquitted the appellant of the offence alleged under the provisions of the Juvenile Justice (Care and Protection of Children) Act , 2000. On conviction for the offences referred to above, the appellant was sentenced to simple imprisonment for six months and a fine of Rs.1,000/- for the offence under Section 342 of the , to simple imprisonment for six months and to a fine of Rs.1,000/- for the offence under Section 323 of the , to simple imprisonment for a period of one year and a fine of Rs.5,000/- for the offence under Section 354 of the Indian Penal Code and to simple imprisonment for two months and a fine of Rs.1,000/- for the offence under Section 294 (b) of the . No separate sentence was awarded for the offence punishable under Section 341 of the in the light of the provisions contained in Section 71 of the . The substantive sentences were to run concurrently. The learned trial Judge also directed that the period from 19.05.2012 to 02.06.2012 (during which period the appellant had undergone judicial custody) will be set-off under Section 428 of the Cr.P.C.

3. Sri.K.R.Sunil, the learned counsel appearing for the appellant submits that the appellant and PW2 (the victim) belong to two different Scheduled Tribe communities. It is submitted that while the appellant belongs to the ‘Oorali’ community, the victim belongs to ‘Kattunayakan’ community. It is submitted that even going by the statement of PW2 in the box, the appellant had accosted her on the allegation that a “bandarapetty” (offering chest normally placed in front of a deity) had been taken away by the victim. It is submitted that even if all the allegations raised are accepted as true, the appellant could not have been found guilty of the offence under Section 354 of the IPC . It is submitted that the First Information Statement of the victim, which was recorded by PW7 indicates that there were absolutely no injuries commensurate with the allegations. It is submitted that this is also confirmed by the evidence tendered by PW9, Assistant Surgeon, Community Health Center, Pulpally. Therefore, it is submitted that the offence alleged under Sections 341 , 342 and 323 of the cannot be sustained. It is submitted that the conviction for the offence under Section 294 (b) of the also cannot be sustained as the evidence of PW2 (the victim) does not even indicate as to the abusive, humiliating or defamatory words that were allegedly used by the appellant. It is submitted that the conviction under (b) of the is solely on the statement of PW3 (the younger sister of the victim). It is submitted that in the absence of any specific statement from the victim regarding the words, if any, used by the appellant, the finding that an offence under (b) of the has been committed cannot be sustained. The learned counsel has taken the court through the depositio