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2004 DIGILAW 128 (KER)

Ravi v. State of Kerala

2004-03-23

N.KRISHNAN NAIR

body2004
Judgment :- This appeal is directed against the judgment and order dated 18th August, 1999 of the Sessions Judge, Thrissur, in S.C.No. 11/1998. The appellant was charged with the offences punishable under Sections 493 and 496 of the Indian Penal Code and Sections 3(1) (xii) and 3 (2) (v) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. After the trial, the learned Sessions Judge found the appellant not guilty of the offences punishable under Sections 493 and 496 of the Indian Penal code and Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and he was acquitted of the offences. But the appellant was found guilty of the offence under Section 3 (1) (xii) of the S.C./S.T. (Prevention of Atrocities) Act and convicted him. He was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.50,000/-; in default to undergo rigorous imprisonment for a period of 15 months. The order of conviction and sentence is seriously challenged in this appeal. 2. The prosecution story runs in the following lines: P.W.1, Lalitha, is a member of the scheduled Caste belonging to Pulaya community. She is a member of the All Kerala Tailors Union. The appellant was also an active worker of All Kerala Tailors’ Union and he was the Secretary of the Pavaratty Union of the said Union. As P.W.1 had involved herself actively as a worker of the Tailors’ union, she had become acquainted with the appellant. The appellant was in love with P.W.1 and she was made to believe that the appellant would marry her. The appellant told P.W.1 that they had to wait till the marriage of his brother and at last the marriage of the said brother was fixed. The marriage was to take place on 2nd December 1996. The appellant asked P.W.1 to accompany him when he went to Ernakulam to invite some of his relatives. P.W.1 left her house on the morning of 24-11-1996 and met the appellant at Guruvayoor from where they proceeded to Ernakulam in a bus. When they reached Ernakulam, they spent some time in the beach at Ernakulam. As the public looked them with suspicious eyes they wanted to undergo a Ceremony of marriage. The appellant took P.W.1 to a temple at Ernakulam. He had purchased a rolled gold chain with a tali. When they reached Ernakulam, they spent some time in the beach at Ernakulam. As the public looked them with suspicious eyes they wanted to undergo a Ceremony of marriage. The appellant took P.W.1 to a temple at Ernakulam. He had purchased a rolled gold chain with a tali. The appellant tied the chain with tali around the neck of P.W.1 in front of the temple, though the temple was closed at that time. Later they returned to Guruvayoor by bus. They spent the night in the house of P.W.9, a close friend of both. P.W.9 and her relatives were under the impression that the appellant and P.W.1 were married and accordingly they were given all facilities. They had physical and sexual relationship at that night. On the next morning P.W.1 and the accused went away from the house of P.W.9 to their respective houses. After some days on coming to know that she was pregnant, P.W.1 approached the appellant and told him of her consumption. Then the appellant suggested that the pregnancy could be aborted. But, P.W.1 was not willing to follow the said course. She informed her relatives about the alleged marriage, sexual relationship and the Consumption. P.W.1 lodged a complaint before the police at Pavaratty, Chavakkad. She also approached the Superintendent of Police, Thrissur and narrated the incident to Superintendent of police. The Superintendent of Police asked P.W.1 to go to the circle Inspector of Police, Chavakkad and lodge a complaint. Accordingly P.W.1 went to the Circle Inspector of Police, P.W.5, and lodged Ext.P1 complaint. P.W.5 forwarded the complaint to the Sub Inspector of Police, Paramanglam. P.W.6 registered a crime under Ext.P5 F.I.R. P.W.11, the Deputy Superintendent of police took up the investigation in the case. After completing the investigation P.W.11 laid the charge before the court. The accused denied the charge. The prosecution examined P.Ws. 1 to 11, marked Exts.P1 to P13 and identified M.Os. 1 to 3. 3. After the close of the prosecution evidence the accused was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution evidence and pleaded that he is innocent. On a consideration of the evidence brought on record, the learned Sessions Judge found the accused guilty of the offence under Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, convicted him and sentenced him as stated earlier. 4. He denied the prosecution evidence and pleaded that he is innocent. On a consideration of the evidence brought on record, the learned Sessions Judge found the accused guilty of the offence under Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, convicted him and sentenced him as stated earlier. 4. The learned counsel for the appellant strongly contended that the lower court has seriously erred in finding that the accused is guilty of the offence punishable under Section 3(1) (xii) of the S.C. and S.T. (Prevention of Atrocities) Act. According to the learned counsel, the court below went wrong in coming to a conclusion that the accused made use of his position to dominate her will and exploited her sexually to which exploitation, she would not have otherwise agreed. He further contended that the court below having found that the accused is not guilty of the offences under Sections 493 and 496 should not have convicted the accused under Section 3(1) (xii) of the S.C. & S.T. (Prevention of Atrocities) act. On the other hand the learned Public prosecutor supported the order and urged that there is no ground for interference. 5. The only question arising for consideration is whether the lower court was justified in finding that the accused is guilty of the offence punishable under Section 3 (1) (xii) of the Act. Even according to the court below, there was a valid marriage between P.W.1 and the accused. That may be the reason why the accused was acquitted of the offences under Section 493 and 496 of the I.P.C. In this connection it is relevant to note the following observations in paragraph 48 of the judgment: “I have taken the view that it is not possible on the basis of the data presently available to enter a specific and definite conclusion that the tying of M.O.2 chain with M.O.1 thali by the accused around the neck of P.W.1 on 24-11-1996 at a closed temple at Ernakulam did not create a valid marriage between P.W.1 and the accused”. The lower courts has also held that the prosecution cannot succeed in establishing the charge under Section 493 and 496 of the I.P.C. and Section 3(2) (v) of the S.C. & S.T. (Prevention of Atrocities) Act. But, according to the court below, the accused had dominated the will of P.w.1 and had sexually exploited her. The lower courts has also held that the prosecution cannot succeed in establishing the charge under Section 493 and 496 of the I.P.C. and Section 3(2) (v) of the S.C. & S.T. (Prevention of Atrocities) Act. But, according to the court below, the accused had dominated the will of P.w.1 and had sexually exploited her. If the lower court was not in a position to hold that there was no valid marriage between the parties how can the court find that the accused dominated the will of P.W.1 and sexually exploited her. Even according to P.W.1, she had sex with the accused only after the alleged marriage. Even according to P.W.1 they were at Ernakulam prior to the alleged occurrence. Therefore, if the accused wanted to sexually exploit to her he could have done so while they were at Ernakulam. But, in this case after the alleged marriage both of them went to the house of P.W.9, who is a friend of both and spent the night in her house. P.W.1 has no case that she offered any resistance when the accused wanted sex with her. Section 493 of the I.P.C. deals with cohabitation caused by a man deceitfully inducing a belief of lawful marriage while Section 496 deals with marriage ceremony fraudulently gone through without any lawful marriage. As stated earlier the learned Sessions Judge has found that the accused is not guilty of the offences under Section 493 and 496 of the I.P.C. In other words, according to the learned Sessions Judge, P.W.1 was lawfully married to the accused and had sexual intercourse with her. The sessions Judge has no case that the accused deceitfully or with a fraudulent intention gone through the ceremony of the marriage knowing that he was not lawfully married. Merely because P.W.1 is a member of the Scheduled Caste it cannot be said that the accused was in a position to dominate her will and exploit her sexually. According to me, the ingredients of Sections 493 of the I.P.C. and Section 3 (1) (xii) of the S.C. & S.T. (Prevention of Atrocities) Act are almost the same. The husband may be in a position to dominate the will of his wife. But it cannot be said that the husband sexually exploits his wife for the reason that he is in a dominating position. The husband may be in a position to dominate the will of his wife. But it cannot be said that the husband sexually exploits his wife for the reason that he is in a dominating position. I would have sustained the finding of the learned Sessions Judge if the accused was found guilty of the offences under Sections 493 and 496 of the I.P.C. I see considerable force in the contention of the learned counsel for the appellant that having found that the accused is not guilty of the offence under Sections 493 and 496 of the I.P.C. the lower court should not have convicted the accused under section 3(1) (xii) of the S.C. & S.T. (Prevention of Atrocities) Act. Even if it is assumed that the accused was able to dominate the will of P.W.1 and persuade her to have sexual intercourse with him it cannot be said that he is guilty of the offence under Section 3(1) (xii) of the Act as the lower court was not confident enough to enter a finding that there was no lawful marriage between the parties. For the reasons stated above I set aside the impugned order of conviction and sentence and find the accused not guilty of the offence under Section 3(1) (xii) of the S.C. & S.T. (Prevention of Atrocities) act and acquit him. This appeal is thus allowed.