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Synopsis

The Kerala High Court has reduced the sentence of imprisonment of a man convicted for attempting to commit unnatural sex on a minor boy aged 12 years, to a day till the rising of the court.

A Single judge bench of Justice C.S. Sudha, delivered the verdict, allowing the reduction of the accused’s sentence under Section 4 of the Probation of Offenders (PO) Act, 1958, which deals with the power of court to release certain offenders on probation of good conduct.

The court acknowledged the increasing prevalence of such cases but adopted a lenient approach, considering the offender’s age at the time of the offence. “Of late offences of this nature, that is, sexual offences against children and women are on the increase. Hence invoking the provisions of the PO Act may send a wrong message to society at large. However, considering the age of the accused at the time of the commission of the offence and the nature of the offence made out from the materials on record, a lenient view can be taken,” the court noted.

The prosecution alleged that the accused/ appellant, in 2008, forcibly took the victim  behind a vacant building and committed the offence of carnal intercourse with him and threatened to do away with his sister if he divulged the incident to others. Hearing the victim’s cries, his aunt and others rushed to the scene. The accused then wore his dhoti and ran away into the forest.

The accused was charged under Sections 377 (unnatural offences) and 506 (criminal intimidation) of the Indian Penal Code (IPC). The trial court found the accused guilty on both counts and sentenced him to four years of rigorous imprisonment and a Rs.10,000 fine (or three months' imprisonment in default) under Section 377 IPC, and one year of rigorous imprisonment under Section 506 Part II IPC.

The accused challenged his conviction before the High Court contending that he was just 19 years when the incident took place and therefore, he is entitled to be given the protection under Section 360 Cr.P.C, which allows a court to release an offender on probation if the offender is below the age of 21 years.

The high court found that the material on record did not make out a case under Section 377 IPC. “There is no case of insertion/thrusting of the penis of the accused between the thighs of PW1(victim) or rubbing it. The medical evidence on record shows that PW1 had complained of pain, and he had contusion on his scrotum. In the box PW1 has also a case that the accused had rubbed his genitals on his thighs. The materials on record do not make out an offence under Section 377 IPC. At best the overt acts of the accused can only be termed as an attempt to commit the offence punishable under Section 377, that is, Section 511 of 377, and not an offence under Section 377 IPC,” it observed.

The court clarified that under Section 511 IPC, when no specific punishment for an attempt is provided, the sentence can be up to half of the maximum term. Since imprisonment for life under Section 377 IPC is considered 20 years per Section 57 IPC, the maximum sentence for an attempt under Section 511 IPC would be 10 years.

The court also observed that Section 19 of the PO Act overrides Section 360 Cr.P.C. in Kerala, making the latter inapplicable. The appellant, 19 years old at the time of the offence but above 21 at conviction, was not eligible for relief under Section 6 (Restrictions on imprisonment of offenders under twenty-one years of age) of the PO Act. However, the court considered whether the provisions of Section 4 of the PO Act should be applied to release the accused on probation.

The court noted that while the trial court wrongly denied probation based on an incorrect legal provision, the nature of the offence—an attempt under Section 377 IPC and threats—did not warrant invoking Section 4. “It is true that one reason given by the trial court is that the accused is liable for imprisonment for more than 10 years and hence the benevolent provisions cannot be invoked, is not correct because the materials on record make out only an offence under Section 511 of Section 377 IPC. But in the light of the nature of the offences committed, I do not think that the benevolent provisions require to be invoked because not only was there an attempt to commit an offence under Section 377 IPC but also threatening the victim with dire consequences.”

Despite this, the court, considering the accused's age at the time of the offence, took a lenient approach by reducing the sentence to imprisonment till the rising of the court and imposing ₹25,000 compensation to the victim.

 

Cause Title: Ajeesh @ AjeeshKumar v State of Kerala [Criminal Appeal No.96 of 2014]

Appearance: For the Appellant/ Accused- Advocate P. Venugopal; For the Respondent/ Complainant- Public Prosecutor Sheeba Thomas