SHAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant before us was convicted for the offence punishable under Ss. 376 and 493 of the Indian Penal Code (for short IPC) along with Sec. 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "SC/ST Act") by the trial court. It was challenged before the High Court which allowed the appeal in part by setting aside the conviction under Ss. 376 and 493 IPC, while confirming the one imposed by the trial Court under the provisions of the SC/ST Act and thus, imposed a sentence of six months. Seeking to overturn the aforesaid decision, the present appeal by special leave has been filed.

(2.) Having found the prima facie case, we thought it fit to issue notice to hear the prosecutrix/respondent No. 2 for consideration of not only the quantum of punishment as against the acquittal sought for, but also compensation if any. Unfortunately, despite notice having been served, she has chosen not to appear before us.

(3.) The learned counsel appearing for the appellant submitted that the reasons assigned by the High Court in rendering an order of acquittal against the offences charged under Ss. 376 and 493 IPC, ought to have been extended to the remaining one under the SC/ST Act as well. It is not as if the appellant was in a position to dominate the will of the prosecutrix/respondent No. 2 and, therefore, there is no question of using that position to exploit her sexually. The fact that the agreement was registered between the parties itself would indicate that the parties fell apart due to a misunderstanding between them and, therefore, it is a mere case of two individuals leading separate lives. In any case, there is no criminality which could be attributed to the appellant for merely leaving the prosecutrix/respondent No. 2.