Kerala High Court
Abdurahiman Master vs State Of Kerala on 15 November, 2024
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Crl.Rev.Pet. No.1569 of 2014
2024:KER:86149
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
CRL.REV.PET NO. 1569 OF 2014
AGAINST THE JUDGMENT DATED 28.11.2011 IN CC NO.544 OF 2008 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA ARISING OUT
OF THE JUDGMENT DATED 12.08.2014 IN CRA NO.409 OF 2011 OF
ADDITIONAL SESSIONS JUDGE - III, MANJERI/ADDITIONAL MACT, MANJERI
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
ABDURAHIMAN MASTER
S/O. MUHAMMED, AKKARAPARAMBIL HOUSE,
MOORKKANAD AMSOM, KOLATHUR DESOM, P.O. KOLATHUR.
BY ADV SRI.A.MOHAMMED
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
ADV.SANAL P.RAJ -PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
15.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.Rev.Pet. No.1569 of 2014
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P.G. AJITHKUMAR, J
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Crl. Rev.Pet. No.1569 of 2014
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Dated this the 15th day of November, 2024
ORDER
In this revision petition filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973. The
petitioner challenges his conviction for the offence under Sections
323 and 354 of the Indian Penal Code, 1860. Both the trial court
and the Appellate Court found the petitioner guilty of the said
offences and sentenced. The sentence imposed is simple
imprisonment for a period of three months and to pay a fine of
Rs.1,000/- for the offence under Section 323 of the IPC and simple
imprisonment for a period of three months and to pay a fine of
Rs.5,000/- for the offence under Section 354 of the IPC.
2. The prosecution was initiated on the allegations that at
about 11.10 a.m. on 07.07.2008, the petitioner, who was an
Arabic Teacher in Kolathur National High School, voluntarily
caused hurt to PW1, his student in the 10th standard in that school
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and assaulted her, thereby outraged her modesty. The specific
allegation is that the petitioner called PW1 near to him in the
classroom and pinched at her armpit and made a lascivious
comment.
3. Before the trial court, PWs 1 to 9 were examined and
Exts.P1 to P9 were marked on the side of the prosecution. While
examined under Section 313(1)(b) of the Code, besides denying
the incriminating circumstances that appeared against him in
evidence, he stated that this case was manipulated and foisted
against him at the instance of the headmaster and manager of the
school. He stated that the headmaster did not use to take any
class and he unauthorizedly collected from the students Rs.200/-
each towards computer fees and he with the connivance of the
manager, misappropriated that amount. The petitioner questioned
it. Enraged on that this case was foisted against him. On his side,
DWs 1 and 2 were examined and Exts.D1 to D7 were marked.
4. The trial court, after analysing the evidence, found that
PW1 was trustworthy and discrepancies and inconsistencies that
appeared in her evidence were held to be inconsequential. Before
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the appellate court, the petitioner contended seriously about the
unreliable nature of the evidence of prosecution witnesses
particularly PW1, but the said contentions were repelled. The
contention of the petitioner was that the only evidence regarding
the actual incident is that of PW1 and hers being an interested
testimony could not be believed without corroboration. The said
contention was dissuaded by the Appellate Court by placing
reliance on the decision of the Apex Court in State of U.P. v. Hari
Rao [1983 AIR SC 1081]. Resultantly, the appeal was dismissed
and the conviction and sentence were confirmed.
5. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
6. The student is the victim and the teacher is the
assailant. What PW1 the student stated is that she was called near
by the teacher at the classroom and pointing out a mistake in her
note pinched at her armpit, causing her pain. While doing so the
petitioner said to have touched her breast. The further allegation
is that the petitioner made a lascivious comment.
7. A complaint in that regard was lodged in police on
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13.07.2008, which was after five days. Ext.P1 is the statement
complaining of the incident. Besides, PW1, her father, PW4,
deposed before the court about the allegations. A classmate of
PW1 was examined, but she did not state about the incident. Other
witnesses, who deposed about the incident, are PW3, the
headmaster, and PW5, a lady teacher in the school. The evidence
of these witnesses was analysed by the courts below and
concurrently found that there occurred assault on PW1 and that
was done by the petitioner with the intention of outraging her
modesty. When the conviction is based on a concurrent finding,
this Court in exercise of the revisional jurisdiction, shall not
interfere with the findings unless it is shown that the findings are
perverse and totally against evidence.
8. The power of revision under Section 401 of the Code is
not wide and exhaustive. The High Court in the exercise of the
powers of revision cannot re-appreciate evidence to come to a
different conclusion, but its consideration of the evidence is
confined to find out the legality, regularity and propriety of the
order impugned before it. When the findings rendered by the
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courts below are well supported by evidence on record and cannot
be said to be perverse in any way, the High Court is not expected
to interfere with the concurrent findings by the courts below while
exercising revisional jurisdiction. [See: State of Kerala v.
Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC
452; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke (2015) 3 SCC 123; Kishan Rao v. Shankargouda
(2018) 8 SCC 165].
9. The submission of the learned counsel for the petitioner
is that the evidence and circumstances came on record are
eloquent to substantiate that the very genesis of the prosecution,
particularly concerning the offence punishable under Section 354
of the IPC, is doubtful. Therefore, I proceed to consider the
evidence so as to appreciate the said contention.
10. PW1 during cross examination, admitted that she gave
a complaint to the headmaster on the very next day. She admitted
Ext.D1 as that complaint. She admits the contents in that
complaint also. PW3, the headmaster, deposed before the court
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that on getting the complaint from PW1, he engaged PW5, a lady
teacher, to examine PW1 and to report about the incident. PW5
deposed that she had examined PW1 and found a contusion at her
armpit which indicates that PW1's allegation of pinching her by the
petitioner was true. PW1 did not state to PW3, the headmaster or
PW5, her lady teacher, about any other kind of assault of lascivious
comments by the petitioner.
11. PW4 is the father of PW1. His version is that coming
back home on 07.07.2008 PW1 stated to him about pinching by
the teacher at the school. PW4 did not state before the court that
the petitioner did anything more, that is, about the alleged act of
outraging the modesty. His complaints to the headmaster and the
DEO, who visited the school two days after, were also evidently in
the same line.
12. PW1 stated that she made a complaint to the DEO,
when he came to the school for inspection after two days. What
are the contents of those complaint are not proved and the
complaint was not brought on record by the prosecution. When
PW3 and PW4 deposed before this Court about pinching of PW1
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alone and not about any other kind of assault or criminal force by
the petitioner so as to outrage her modesty, non-production of the
complaint, PW3 received and PW4 speaks about becomes
suppression of material evidence.
13. As stated, only on 13.07.2008 PW1 approached the
police and complained against the petitioner. Of course, she was a
girl of 15 years. So, ordinarily her version need not be disbelieved
and delay need not impeach her credibility. But in the light of
Ext.D1 and specific assertions by PW4 in court that the complaint
of her daughter was about pinching and not about outraging her
modesty, the embellishment occurred in Ext.P1 FI statement and
in the evidence counts much. Along with that, evidence of PW5,
the lady teacher, who deposed about pinching alone and nothing
more makes the improvement in evidence apparent. At least, PW1
should have stated to her lady teacher about the alleged acts of
molestation, but she did not. In that situation the uncorroborated
version of PW1 concerning commission of such an offence cannot
be believed. Version of PW2 is also not helpful to substantiate that
act. In the circumstances, I am of the view that the courts below
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convicted the petitioner for the offence under Section 354 of the
IPC without any evidence. So, his conviction for such an offence is
liable to be set aside and I do so. He is acquitted of the offence
under Section 354 of the IPC.
14. Coming to the offence punishable under Section 323 of
the IPC the position is different. From Ext.D1, which was given by
PW1 on the next day, all throughout the version has been
consistent that the petitioner pinched her. She had resultant pain
and contusion. When that act is proved, commission of an offence
of hurt as defined in Section 319 of the IPC was established. The
question is whether such an act by a teacher is liable to be
punished under Section 323 of the IPC.
15. The learned counsel for the petitioner placed reliance
to contend that the said act does not amount to an offence on
Geetha Manoharan v. State of Kerala and Others [2020 (4)
KHC 352], Rajan @ Raju v. Sub Inspector of Police, Feroke
Police Station and Others [2018 (5) KHC 967] and Abdul
Vaheed v. State of Kerala [2005 KHC 535].
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16. The consistent view taken in the said decisions is that
when a teacher inflicts punishment to a student which is of trivial
nature and done with the intention of correcting the student, that
shall not invite a conviction under Section 323 of the IPC or for
any other offence. Corporeal punishment of trivial nature inflicted
by a teacher with the bonafide intention of correcting his student
can never be said to be an intentional act of causing hurt. Here,
the evidence came on record show that the petitioner pinched at
the armpit of PW1, resulting in not only pain, but also contusion.
It cannot be said that such an act was quite trivial and involuntary.
Conviction by the courts below is concurrent. I find no justification
to interfere with that finding in the exercise of revisional
jurisdiction. Hence conviction of the petitioner for the offence
under Section 323 of the IPC is confirmed.
17. The incident occurred in the year 2005. The act was
done by a teacher against a student. In the circumstances of the
case, I am of the view that no sentence is warranted against the
petitioner for the offence under Section 323 of the IPC. Therefore,
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the petitioner is granted admonition under Section 3 of the
Probation of Offenders Act, 1958.
Sd/-
P.G. AJITHKUMAR
JUDGE
SMF
