Kerala High Court
Shibu vs State Of Kerala on 3 October, 2024
Crl.Appeal No.88 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.A NO. 88 OF 2016
CRIME NO.815/2010 OF VENJARAMOODU POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE JUDGMENT DATED 23/12/2015 IN SC NO.250/2015 ON
THE FILE OF THE ADDITIONAL SESSIONS COURT-I, (SPECIAL COURT
FOR TRIAL OF OFFENCES AGAINST CHILDREN),THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
SHIBU
S/O.SASI, PUTHEPALLY VEEDU,
AMBALLOOR, KOLIYAKODE VILLAGE.
BY ADVS.
SRI.D.AJITHKUMAR
SRI.D.JEEVAN
SMT.T.MANASY
RESPONDENTS/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 25/09/2024, THE COURT ON 03/10/2024 DELIVERED THE
FOLLOWING:
Crl.Appeal No.88 of 2016
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C.S.SUDHA, J.
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Crl.Appeal No.88 of 2016
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Dated this the 3rd day of October 2024
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the first accused in S.C.No.250/2015 on the file of the Court of Session, Thiruvananthapuram, challenges the conviction entered and sentence passed against him for the offence punishable under Section 354 IPC.
2. The prosecution case is as follows - PW2, a girl child studying in VIIIth standard, daughter of PW1, on 24/07/2010 was on her way to the house of PW4, her grand mother. On the way at Putharipoika by about 08:45 a.m, the accused, her neighbour, saying that he wanted to say something to her, immorally pulled her towards him by catching hold of PW2 by her right hand, thus outraging her modesty. Crl.Appeal No.88 of 2016 3
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3. On the basis of Ext.P1 FIS of PW1, crime no.815/2010 of Venjaramoodu police station, that is, Ext.P1(a) FIR was registered by PW6, a Grade Head Constable of the said police station. Thereafter the investigation was conducted by PW7, the then Sub Inspector of Police, Venjaramoodu police station, who completed the investigation and submitted the charge sheet before the court.
4. On appearance of the accused before the jurisdictional magistrate, copies of all the prosecution records were furnished to him. The magistrate after complying with all the necessary formalities committed the case to the Court of Session, Thiruvananthapuram. Thereafter the case was made over to the Additional Sessions Judge-I designated as the Special Court for trial of offences against women and children, Thiruvananthapuram, for trial and disposal.
5. After the accused appeared before the trial court, on 03/10/2015 the particulars of the offence under Section 354 IPC was read over and explained to the accused to which he Crl.Appeal No.88 of 2016 4 2024:KER:72989 pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW7 were examined and Exts.P1 to P3 were marked. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. Ext.D1 is the contradiction brought out in the statement of PW3.
8. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment convicted and sentenced the accused to Crl.Appeal No.88 of 2016 5 2024:KER:72989 rigorous imprisonment for a period of one year and fine of ₹5,000/- and in default of payment, imprisonment for three months. The entire fine amount, if realized, was directed to be paid as compensation to PW2 under Section 357(1)(b) Cr.P.C. Aggrieved, the accused has come up in appeal.
9. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not.
10. Heard both sides.
11. It was quite persuasively argued by the learned counsel for the accused/appellant that the present false case is a counterblast to the case filed by the accused against PW1. There is a dispute regarding a pathway between the accused and PW1, the mother of PW2 and hence the reason why the present false case has been registered against him. There are several inconsistencies, embellishments and improvements in the testimony of the prosecution witnesses. The testimony of PW2, Crl.Appeal No.88 of 2016 6 2024:KER:72989 the victim, is not of sterling quality and hence not sufficient to prove the guilt of the accused beyond reasonable doubt, goes the argument. In support of the arguments, reference was made to a judgment of this Court dated 17/06/2016 in Crl.Rev.Pet.No.3512 of 2005 (Babu v. State of Kerala).
12. Per contra, it was submitted by the learned Public Prosecutor that no grounds for interference has been made out as there are no material contradictions or inconsistencies in the testimony of the prosecution witnesses.
13. I make a brief reference to the evidence on record relied on by the prosecution to prove the case. PW2, the victim deposed that on 24/07/2010 she did not go to school. She was on her way to the house of PW4, her maternal grandmother situated at the place by name Putharipoika, which is situated near her residence. While she was on her way through a lane adjacent to a rubber plantation, she saw the accused stepping into the lane from a nearby shop. When she reached near him, she stood by the side of the lane to give way for him to pass through. The accused Crl.Appeal No.88 of 2016 7 2024:KER:72989 then approached her and said that he wanted to say something to her. She ignored it and walked ahead, at which time the accused caught hold of her hand. She shook his hands off and ran and went to the house of her grandmother. She informed her grandmother about the incident. Thereafter, she along with her grandmother returned home and during her return journey they met her uncle Reghu (PW3), who was also informed of the incident. When she reached home, she informed her mother about the incident. The police was informed. The police came to her residence and as instructed, they went to the police station and give a complaint. PW2 further deposed that because of the traumatic experience, her studies was adversely affected. She started scoring low marks. When her peers came to know about the incident, they started ridiculing her. Even now she is scared of going out alone.
13.1. PW4, the grandmother of PW2, deposed that she does not remember the date of the incident; that on the said day PW2 had come to her residence; that on her way the accused Crl.Appeal No.88 of 2016 8 2024:KER:72989 caught hold of her grand daughter and tried to take her along with him. (... ... ... വ ള ക ന വര ന വഴ ഈ പയന എനറ റ ച മ റള റ ട പ ട ച വല ച എട തറ ണ പപ നപ ക. ... ...
...) and that both of them returned to her daughter's house and thereafter gave a complaint to the police.
13.2. PW1, the mother of PW2, deposed that the date of birth of her daughter is 23/11/1997; that she was studying in VIIIth standard when the incident took place; on 24/07/2010 her daughter did not go to the school as she was not keeping well; that she was also not keeping well and therefore to go to the hospital, she sent her daughter to the house of her mother (PW4). On the way to her mother's house, there is a rubber plantation. Her daughter left the house at about 08:45 a.m. While she was passing through the lane by the side of the rubber plantation, the accused pulled her daughter by her hand. Her child freed herself and ran to her mother's house. The accused pulled her daughter by her hand while she was walking through the road by the side of the rubber plantation. The accused said that he wanted to say Crl.Appeal No.88 of 2016 9 2024:KER:72989 something to her daughter and by saying so, had pulled her daughter's hand. Her daughter returned with her mother (PW4) and informed her about the incident. PW2, her daughter, was a studious student. However, after the incident, due to the trauma, her studies was adversely affected.
13.3. PW3, the uncle of PW2, also supports the case of the prosecution. However he has a case that the accused had caught PW2 by her hand as well as groped her stomach (വയറ ല പ ട ച ). The accused also pulled PW2 towards the rubber plantation. He informed the matter to PW1 and her son. He had also accompanied PW2 and family to the police station. On the said day he had seen the accused going towards his residence.
14. It is true that there are slight inconsistencies in the testimony of the prosecution witnesses. PW2 says that she had stated to the Magistrate that the accused had caught her belly also. The 164 statement of PW2 has not been brought in evidence. No contradiction has been brought out by the defence in the said statement. During the time of cross examination when the Crl.Appeal No.88 of 2016 10 2024:KER:72989 attention of PW2 was drawn to the absence of any reference to the act of the accused catching her belly in her 161 statement, she answered that she is unaware of the same and that she had given such a statement to the police. When PW3, her uncle, was cross examined, a contradiction was brought out in his statement which has been marked as Ext.D1. But this is only relating to the aspect whether he had gone for work or not on the said day. This contradiction is not material and has not in any way affected the prosecution case. There is no reason to disbelieve PW2, the victim, or her relatives.
15. It was pointed out on behalf of the accused that all the prosecution witnesses are close relatives of PW2 including the attestor to the scene mahazar, who admitted that he is staying 40 kms away from the place of occurrence. They are all interested witnesses. This was pointed out as a suspicious circumstance to doubt the prosecution case. The term 'interested' postulates that the witnesses must have some direct interest in having the accused somehow or the other convicted for some animus or for some Crl.Appeal No.88 of 2016 11 2024:KER:72989 other reasons. (See Kartik Malhar v. State Of Bihar, 1996 KHC 1402 : (1996) 1 SCC 614 and Dalbir Kaur v. State Of Punjab, 1976 KHC 932 : AIR 1977 SC 472). The mere fact of relationship, far from being a foundation for false implication is often a sure guarantee of truth. There is no proposition in law that relatives are to be treated as untruthful witness. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witness has reasons to falsely implicate the accused. (Harbans Kaur v. State Of Haryana, AIR 2005 SC 2989). Therefore close relationship of witnesses with the victim is no ground to reject their evidence. What is to be looked into, is whether they are speaking the truth or whether they are speaking falsehood to falsely implicate the accused in the crime. No material has come on record to show that though other independent witnesses were present at the scene, they were not examined. In fact there are no eye witnesses at all. There is only the testimony of PW2 in support of the incident. Immediately after the incident, she narrated the incident to PW4, her Crl.Appeal No.88 of 2016 12 2024:KER:72989 grandmother. Thereafter, accompanied by PW4, she returned home and informed PW1, her mother, also. Information given by PW2 to PW4 immediately after the incident would certainly be res gestae as contemplated under Section 6 of the Evidence Act. (See Sukhar v. State Of Uttar Pradesh, AIR 1999 SC 3883 and Badruddin Rukonddim Karpude v. State Of Maharashtra, AIR 1981 SC 1223) There is absolutely no reasons to disbelieve or discard the testimony of PW2. Therefore I find no infirmity in the findings of the trial court.
16. Now coming to the sentence passed against the accused. The incident took place in the year 2010, that is before the amendment was brought to Section 354 IPC w.e.f. 03/02/2013. In 2010, an offence under Section 354 IPC was punishable with imprisonment of either description for a term which may extend to 2 years or with fine or with both. Taking into account the fact that the accused is a first offender and he has no criminal antecedents, the sentence of rigorous imprisonment of one year imposed on the accused is modified to rigorous Crl.Appeal No.88 of 2016 13 2024:KER:72989 imprisonment for one month.
In the result, the appeal is partly allowed to the aforesaid extent.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms