[S.377 IPC Attempt] Crimes Against Women & Children On The Rise, Releasing Convict On Probation Will Send Wrong Message: Kerala High Court

Justice C.S. Sudha however took a lenient view considering that the appellant, now 25 years old was only aged 19 years at the time of commission of the offence. It also noted that there was only an attempt to commit offence against the minor and no commission of offence attracting Section 377 of IPC. Consequently, the Court reduced his four years imprisonment to one day, till the rising of the Court.

Court said, “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. 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.”

The prosecution case was that the accused had carnal intercourse against the order of nature on minor boy and threatened that he would kill his sister if he about the alleged incident to others.

The Trial Court had convicted the accused to four years rigorous imprisonment under Section 377 of IPC and one year rigorous imprisonment under Section 506 of IPC. The sentences were ordered to run concurrently.

The Counsel for accused submitted that even if entire allegations were considered, no offence under Section 377 of IPC was attracted. It was also submitted that he was only 19 years at the time of alleged incident and that he must acquitted by invoking Section 360 of the CrPC. It was argued that

On examining the First Information Statement, the Court found that the victim has stated that the accused pulled at his private part causing pain. It noted that there was no case of insertion/thrusting of private part on the victim.

Section 377 IPC is punishable with imprisonment for life or with imprisonment for ten years and also fine. The Court noted that the evidence do not attract Section 377 of IPC, but only makes out an attempt to commit the offence punishable under Section 377, which attracts only Section 511 of IPC. Section 511 provides punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.

The Court further noted that Section 360 of CrPC is not applicable in Kerala, but only provisions of the Probation of Offenders Act. It noted that as per Section 6 of the Act, restrictions are imposed on imposition of imprisonment on offenders under the age of 21. As per Section 6, sentence can only be imposed on an offender found guilty of committing an offence punishable with imprisonment, excluding life imprisonment, if the Court was satisfied that the offender cannot be released on probation of good conduct under Sections 3 and 4 of the Act.

In the facts of the case, the Court noted that even though the accused was only 19 years old at the time of commission of the offence, but he was above 21 years old at the time of his conviction. The Court thus ruled that the accused cannot be given the benefit under Section 6 of the PO Act.

It said, “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.”

However, considering the young age of the accused, the Court took a lenient view and reduced his imprisonment to one day, till the rising of the Court. The Court has also ordered the accused for payment of rupees twenty five thousand as compensation to the victim.

As such, the appeal was allowed to the above extent.

Counsel for Petitioner: Advocate P Venugopal

Counsel for Respondents: Public Prosecutor Sheeba Thomas

Case Title: Ajeesh @ Ajeeshkumar v State of Kerala

Case No: CRL.A NO. 96 OF 2014

Citation: 2025 LiveLaw (Ker) 166