Kerala High Court: In a criminal appeal filed by the convict, under Section 374(2) of the Code of Criminal Procedure, 1973 (‘CrPC’), challenging the conviction order and sentence passed against him for the offences punishable under Sections 377 and 506 Part II of the Penal Code, 1860 (‘IPC’), C.S. Sudha, J. highlighted that sexual offences against children and women are on the increase. Hence invoking the provisions of the Probation of Offenders Act, 1958 (‘PO Act’) may send a wrong message to society at large. However, considering the age of the convict at the time of the commission of the offence and the nature of the offence made out from the materials on record, reduced the substantive sentence of 4 years imprisonment to imprisonment for a day till the rising of the Court and to payment of compensation of ₹25,000/ to the minor boy under Section 357(3) CrPC.
Background
The prosecution case is that on 11-10-2008 the convict had carnal intercourse against the order of nature with a minor boy aged 12 years. He also threatened to harm his sister if he revealed the incident to anyone. 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.
The convict has been sentenced to rigorous imprisonment for four years and to a fine of ₹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 the minor boy, as compensation under Section 357(1)(b) CrPC.
Issue
Whether the conviction and sentence passed against the convict by the Trial Court are sustainable or not?
Analysis and Decision
The Court took note of the medical report of the minor boy, wherein it was mentioned that there is contusion on the neck as well as on the scrotum. Further, it was noted that according to the Trial Court, the minor boy had deposed that the convict had inserted/thrust his penis between his thighs and rubbed it. However, as per the victim’s statement his case is only that the convict pulled at his private part causing pain. There is no case of insertion/thrusting of the penis of the convict between the thighs of the victim or rubbing it. Thus, the Court concluded that the materials on record do not make out an offence under Section 377 IPC. The overt acts of the convict 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.
Therefore, the Court held that the convict can only be held guilty of the offence of attempt to commit carnal intercourse against the order of nature, that is, Section 511 of Section 377 IPC and therefore one half of the longest term of imprisonment, which is imprisonment for life, would be 10 years.
The convict contended that he was only 19 years old at the time of the commission of the offence, therefore, he is entitled to be given the protection under Section 360 CrPC, hence Section 3 and Section 4 of the PO Act are not applicable.
The Court said that in the light of Section 19 of the PO Act, Section 360 CrPC is not applicable in Kerala, as where the provisions of PO Act are applicable, Section 360 CrPC is not applied.
Examining whether the benefit of Section 6 of PO Act can be extended to the convict, the Court noted that the injunction contained in Section 6 of the PO Act is not to impose a sentence of imprisonment to those who are below the age of 21 years on the date of conviction. The Court concluded that the convict was 19 years in the year 2008, that is, when the incident occurred. However, on the date of his conviction by the Trial Court, that is, in 2014, he was apparently above 21 years. Therefore, the benefit of Section 6 of the PO Act cannot be given to him.
Considering whether the benevolent provisions of Section 4 of the PO Act be invoked and the convict be released on probation, the Court said that the reason given by the Trial Court that as 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 read with Section 377 IPC. But in the light of the nature of the offences committed, the benevolent provisions were required 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.
The Court highlighted that 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, the Court added that considering the age of the convict 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 interest of justice can be met by adequately compensating the victim.
Hence, the Court reduced the substantive sentence of imprisonment to imprisonment for a day till the rising of the Court and to payment of compensation of ₹25,000/ to the minor boy under Section 357(3) CrPC and in default of payment, the convict was directed to undergo simple imprisonment for three months.
[Ajeesh v State of Kerala, CRL.A NO. 96 OF 2014, decided on 06-03-2025]
Advocates who appeared in this case :
For Appellant: P.Venugopal
For Respondent: .Sheeba Thomas, Public Prosecutor
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