Balamurali @APPELLANT@Hash State Of Kerala And Anr

The revision petitioner herein challenges the conviction and sentence against him under Sections 452, 354 and 506(ii) of the Indian Penal Code, in C.C.No. 73 of 1999 of the Judicial First Class Magistrate Court-I, Aluva. He faced prosecution in the court below on the allegation that at about 6.45 p.m. on 29.10.1996, he trespassed into the house of the defacto complainant, being armed with a knife, he assaulted her, and intimidated her for the reason that her uncle had filed a complaint against him before the Police. The Police registered the crime on the First Information Statement given by the victim, and submitted final report in court.

The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him. The prosecution examined six witnesses, and proved Exts.P1 to P4 documents in the trial court.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for two years under Section 452 IPC, to undergo simple imprisonment for four months under Section 354 IPC and to undergo simple imprisonment for one year under Section 506(ii) IPC.

Aggrieved by the judgment of conviction dated 12.11.2001, the accused approached the Court of Session, Ernakulam, with Crl.A.No. 839 of 2001. In appeal, the learned Additional Sessions Judge, North Paravur, confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, I find that what is at the best proved by the prosecution evidence is house trespass with intention to cause hurt, use of criminal force otherwise than on sudden provocation, and also criminal intimidation. These are punishable under Sections 451, 352 and 506(i) IPC.

PW1 is the victim, PW2 is her mother, and PW3 is her sister. They are the main witnesses in this case. All the witnesses have given consistent and definite evidence that at about 6.45 p.m. when there was load shedding, the accused trespassed into their house, being armed with a knife, he intimidated the victim that she would be done away with if she did not withdraw the complaint against him, and he also pushed her down. On these aspects, the material witnesses are consistent. All are consistent that the accused had pushed the victim down with much force, and she was threatened by him by holding a knife. Everything happened at the house of PW1. There is nothing to show that the accused had made any preparation for causing hurt. Just because he had a knife in his hands, it cannot be said that he had made preparations to cause hurt. Evidence shows that his intention was to threaten the victim and the others, and not to inflict injury on anybody. Mere house trespass with intention to commit an offence punishable with imprisonment, will come only under Section 451 IPC.

There is nothing in the evidence of PW1 to show that criminal force was used by the accused against her with intent to outrage her modesty, or to molest her. Criminal force was actually used by him in the process of intimidating the girl, and not otherwise. There is nothing to show that the accused had any bad intention, or sexual intent when he pushed the girl down, or used criminal force against her. It was only an instance of simple assault involving only use of criminal force, and he probably did it with the object of intimidating the girl. Mere use of criminal force otherwise than on sudden provocation, whether it is on a male or female, is punishable only under Section 352 IPC. For a prosecution under Section 354 IPC, there must be an instance of use of criminal force on a woman with the object of outraging her modesty. There is no such instance in this case. I find no reason to disbelieve PW1 to PW3, or to reject their evidence on factual aspects. I find that the conviction is liable to be confirmed subject to the alteration that the house trespass is punishable only under Section 451 IPC, that the alleged use of criminal force is punishable only under Section 352 IPC, and the criminal intimidation is punishable only under Section 506(i) IPC.

Now the question of sentence. The case of the accused is that the girl had been proposed to him in marriage. There is reason to believe that there was some dispute between the parties, or that there was some difference of opinion regarding the said marriage proposal. It was probably this difference of opinion or dispute that led to the alleged incident. The accused was aged only 27 years on the date of incident. He probably believed that he would get the girl in marriage. The victim was aged only 17 years at that time. On a consideration of all the relevant aspects, I feel that the minimum possible sentence under the law, and also a direction to pay adequate amount of compensation will do justice to both sides.

In the result, the conviction against the revision petitioner is confirmed in revision, subject to the alteration that it shall be under Section 451 IPC instead of 452 IPC, under Section 352 IPC instead of 354 IPC, and under Section 506(i) IPC instead of Section 506(ii) IPC. Accordingly, the conviction under Sections 452, 354 and 506(ii) is set aside, and sentence is modified as follows on alteration of conviction:

(a) The revision petitioner is sentenced to undergo imprisonment till rising of the court under Sections 451, 352 and 506(i) IPC.

(b) In lieu of modification and reduction in sentence, the revision petitioner/accused is directed to pay a compensation of Rs.15,000/-to PW1 under Section 357(4) Cr.P.C.. In case of default in making payment of the compensation, the accused will have to undergo a sentence of rigorous imprisonment for three months.

(c) The revision petitioner will surrender before the trial court within three weeks from this date to serve out the modified sentence, and to make payment of the compensation voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence, and to realize the amount of compensation, or to enforce the default sentence.