Kerala High Court
Shibu vs State Of Kerala on 3 October, 2024
Crl.Appeal No.88 of 2016
1
2024:KER:72989
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
2
2024:KER:72989
C.S.SUDHA, J.
-------------------------------------------------------
Crl.Appeal No.88 of 2016
------------------------------------------------------
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.
2024:KER:72989
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
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
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,
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
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
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
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
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
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
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
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
