Kerala High Court
Ajesh vs State Of Kerala on 17 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA,
1946
CRL.REV.PET NO. 1317 OF 2024
CRIME NO.1672/2017 OF Palluruthy Police Station,
Ernakulam
AGAINST THE JUDGMENT DATED 15.10.2024 IN Crl.A
NO.169 OF 2020 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - VII, ERNAKULAM, ARISING OUT OF THE JUDGMENT
DATED 05.03.2020 IN CC NO.1556 OF 2017 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, KOCHI
REVISION PETITIONER/APPELLANT/ACCUSED NO.1:
AJESH, AGED 28 YEARS
S/O. VASU THATTEKKATTUPARAMBU HOUSE,
WARRIYAM JUNCTION,
PALLURUTHY KOCHI ERNAKULAM (DIST).,
PIN - 682006.
BY ADVS.
ANIL K.MUHAMED
HASEEB HASSAN.M
KRISHNAKUMAR G.
AJIN SALAM
MUHAMMED AFRIN NUHMAN T.T.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
PUBLIC PROSECUTOR SRI JIBU T S
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 22.01.2025, THE COURT ON 17.02.2025
DELIVERED THE FOLLOWING:
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Crl.R.P.No.1317/2024 2
"C.R"
A. BADHARUDEEN, J.
================================
Crl.R.P.No.1317 of 2024
================================
Dated this the 17th day of February, 2025
ORDER
The 1st accused in C.C.No.1556 of 2017 on the files of Judicial
Magistrate of First Class-II, Kochi, has filed this Revision Petition under
Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
challenging the judgment in Crl.Appeal No.169/2020 on the files of
Additional Sessions Court-VII, Ernakulam, whereby the Additional
Sessions Court confirmed the conviction and sentence imposed by the
Magistrate in the above case.
2. Heard the learned counsel for the revision petitioner/1 st
accused and the learned Public Prosecutor in detail. Perused the verdicts
under challenge.
3. Prosecution allegation in this case is that at about 9.30
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a.m on 02.08.2017 when the defacto complainant was travelling as a
pillion rider on a motorcycle driven by her husband through Palluruthi-
Thoppumpadi road and when they reached near Marampally temple at
about 9.30 p.m, accused 1 to 3, who were standing on the road, after
sharing common intention blocked the motorcycle and wrongfully
restrained the movement of the defacto complainant and her husband by
standing in front of the motorcycle and then they removed the ignition key
of the motorcycle and restrained the further movement of the defacto
complainant and her husband. Then the 1st accused slapped on the face of
the husband of the defacto complainant and accused 2 and 3 uttered
obscene words against the defacto complainant and her husband. The
further case of the prosecution is that in continuation of the common
intention shared between the accused, the 2nd accused caught hold of the
hand of the defacto complainant and when her husband intervened, the 3 rd
accused kicked him down and the 2nd accused kicked out the defacto
complainant and pressed on her breast with lustful intention to outrage her
modesty. According to the prosecution, accused 1 to 3 committed
offences punishable under Sections 323, 341, 354 and 294(b) r/w 34 of the
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Indian Penal Code,1860 (`IPC' for short). Recording the statement of the
defacto complainant, crime was registered and final report also was filed
alleging commission of the above offences. When the final report was
filed before the trial court, the trial court took cognizance of the said
offences and on complying the pre-trial formalities, proceeded with trial.
4. During trial, PWs 1 to 6 were examined and Exts.P1 to
P3 were marked on the side of the prosecution. No defence evidence
adduced though the accused were given opportunity to opt for the same
after questioning them under Section 313 Cr.P.C by explaining the
incriminating circumstances found in evidence against them.
5. On meticulous analysis of the evidence, the trial court
found that accused 1 to 3 committed offences punishable under Sections
341 and 354 read with 34 of IPC and they are convicted for the same
u/s.248(2) of the Code of Criminal Procedure (`Cr.P.C' for short
hereafter). Accordingly, the trial court imposed sentence as under:
"The convicts above are sentenced to fine of Rs.500/- each
for the offence u/s.341 IPC and if the fine amount is not paid, they will
undergo simple imprisonment for a period of one month each as
default sentence. As regards the offence u/s.354 IPC, it is the 2 nd
convict, who laid his hands on the lady and hence he is sentenced to
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rigorous imprisonment for a period of two years together with fine of
Rs.10,000/- for the offence u/s.354 IPC, and if the fine amount is not
paid, he will undergo a further period of simple imprisonment for two
months as default sentence. As regards, convicts 1 & 3, both are
sentenced to simple imprisonment for a period of one year together
with fine of Rs.10,000/- for the offence u/s.354 IPC, and if the fine
amounts are not paid, they will undergo a further period of simple
imprisonment for one month as default sentence."
6. Aggrieved by the conviction and sentence imposed by
the trial court, the accused persons preferred two appeals, viz., Crl.Appeal
Nos.165 of 2020 and 169 of 2020. As per common judgment dated
15.10.2024, the appellate court confirmed the conviction and sentence
imposed by the trial court, on re-appreciation of evidence.
7. While assailing the concurrent verdicts of conviction and
sentence imposed by the trial court as well as the appellate court, the
learned counsel for the revision petitioner argued that, in this matter there
was failure to record 164 statement of the defacto complainant, who was
examined as PW1, though the same is mandatory in view of 2 nd proviso to
Section 154(1)(c) of Cr.P.C. According to the learned counsel for the
revision petitioner, non-recording of 164 statement of the victim is an
absolute illegality committed by the investigating officer and the same
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would go to the root of the matter to hold that the accused persons are
innocent. The second point argued by the learned counsel for the revision
petitioner is that, if the entire prosecution case is taken as such, the same is
the outcome of a scuffle and there is nothing to hold that the accused
persons had done any overt acts to outrage the modesty of PW1 and there
was no evidence to prove the ingredients for the offence under Section 354
of IPC. It is also pointed out that there is some discrepancy in the
evidence of PW3 in the matter of time of occurrence and the same shall be
adjudged in favour of the revision petition. Another contention is that in
Ext.P2 scene mahazar there was street light available 20 metre away from
the place of occurrence is unbelievable. Further commission of offence
under Sections 341 and 354 of IPC would not be possible in a place where
the vehicles are passing frequently, as per the prosecution allegation. Yet
another contention raised is that there was no proper examination of the
accused under Section 313 of Cr.P.C. On the above grounds, the learned
counsel for the revision petitioner pressed for interference in the
concurrent verdicts of conviction and sentence of the trial court as well as
the appellate court.
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8. Adverting to the first contention raised by the learned
counsel for the revision petitioner, the learned Public Prosecutor would
submit that even though as per clause (c) to second proviso to Section
154(1) of Cr.P.C, the police officer shall get the statement of the victim
involving an offence under Section 354 of IPC recorded by a Judicial
Magistrate under clause (a) of sub-section (5A) of Section 164 as soon as
possible in view of the amendment came into force w.e.f 03.02.2013, non-
recording of 164 statement would not give any benefit to the accused when
the evidence adduced by the prosecution fully established the guilt
otherwise. The learned Public Prosecutor pointed out that in paragraph 6
of the trial court judgment the trial court relied on the decision of the Apex
Court in [AIR 2010 SC 2119], Abu Thakir & others v. State of Tamil
Nadu, wherein it was held that criminal justice should not be made a
casualty for the wrongs committed by the investigating officers in the case.
Thus the question arises for consideration is; whether non-recording of 164
statement of a person against whom offences under Sections 354, 354A,
354B, 354C, 354D, sub section (1) 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB, 376E and 509 of IPC is fatal to the prosecution? In this
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connection, it could be gathered that, in view of the amendment brought
into force w.e.f 03.02.2013 to second proviso to Section 154(1)(c) of
Cr.P.C, police officer shall get statement of the victim recorded by a
Judicial Magistrate under clause (a) of sub-section (5A) of Section 164 as
soon as possible, when offences under Sections 354, 354A, 354B, 354C,
354D, sub section (1) or 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB, 376E and 509 of IPC are alleged to be committed against the
victim. Since the word used in the proviso is "shall get statement of the
person recorded by a Judicial Magistrate', compliance of the said
provision is mandatory. While answering the question as to whether when
there is failure on the part of the investigating officer in complying the
mandatory statutory requirement as part of investigation, the same would
throw the prosecution allegation in toto or the same would go to the root of
the matter, where the evidence tendered by the prosecution otherwise
established guilt of the accused, reference to precedents is necessary. In
Abu Thakir & others v. State of Tamil Nadu (supra) as well as in the
earlier decision of the Apex Court in [(1999) 8 SCC 715], State of
Karnataka v. K.Yarappa Reddy, the Apex Court held that even if the
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investigation is illegal or even suspicious, the rest of the evidence must be
scrutinised independently of the impact of it. Otherwise the criminal trial
will plummet to the level of the investigating officers ruling the roost. The
court must have predominance and pre-eminence in criminal trials over the
action taken by investigating officers. Criminal justice should not be made
a casualty for the wrongs committed by the investigating officers in the
case. If the court is convinced that the testimony of a witness to the
occurrence is true, the court is free to act on it albeit the Investigating
Officer's suspicious role in the case.
9. Thus the law is well settled that omission to comply
mandatory provisions of the procedural law or otherwise by the
investigating officer by itself would not give a clean chit to the accused
and would not throw out the case of the prosecution in toto, and the courts
are duty bound to evaluate the evidence available to see independently
whether the allegation as to commission of the offence/s at the instance of
the prosecution is established beyond reasonable doubt. Once the court,
on evaluation of available evidence could find that the prosecution
established the guilt of the accused regardless of the omissions, which may
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be mandatory, eschewing the omissions, the court can enter into
conviction. In such view of the matter, fault in the investigation including
failure to record 164 statement of a victim, who involved in offences
punishable under Sections 354, 354A, 354B, 354C, 354D, 376, 376A,
376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509 of IPC is not
fatal to the prosecution in a case, where the evidence adduced is sufficient
to prove guilt of the accused beyond reasonable doubt.
10. While addressing the challenge against concurrent
verdicts, the question that arises is whether anything in the instant case to find
that the verdicts are illegal or the same suffer from perversity to be addressed
by this Court by exercising the power of revision.
11. In this matter, the trial court as well as the appellate court
had given heavy reliance on the evidence of PW1, the defacto complainant
and PW2, her husband to find that accused Nos.1 to 3 committed offences
punishable under Sections 341, 354 r/w 34 of IPC. Evidence of PW1
discussed by the trial court and the appellate court is to the effect that PW1
had spoken in the box in chief examination about the date and time of the
incident, and she had narrated the sequence of events, which is in tune
with that of her Ext.P1 FIS. Going by her evidence in chief, when their
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bike reached in front of Marampally Temple, accused 1 to 3 were seen on
the road side and the 1st accused blocked the bike and he removed the
ignition key after shouting abuses. As her husband removed the helmet,
the 1st accused attempted to slap him and she stepped down from the bike.
Soon, the 2nd accused caught PW1 on her hand and twisted her hand and
pulled her aside. As she managed to wriggle out, the 3 rd accused was
about to kick her husband and she stood in front of her husband and
covered him. At that moment, the 2 nd accused intentionally caught hold of
her breasts with lustful intention, and that act outraged her modesty. The
trial court as well as the appellate court concurrently found that no material
contradictions brought out during cross examination of PW1 to discredit
her version.
12. Turning to the evidence of PW2, he had spoken almost in
tune with that of PW1 and no material contradictions brought out during
his cross examination also as found by the trial court and the appellate
court.
13. The trial court as well as the appellate court found that
the evidence given by PW1 and PW2 are almost identical. The trial court
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addressed some minor contradictions which are not material, pointed out
by the learned counsel for the accused regarding the evidence of PW1 and
PW2. It was observed by the trial court that as per PW1's evidence, she
had fallen due to the push of the 2 nd accused. But the evidence of PW2 in
that regard is different from that of PW1 and PW2 stated that the 2 nd
accused caught hold of her hand. In fact, use of hand by the 2 nd accused
against PW1 is the inference to be drawn from the evidence of PW1 and
PW2 and therefore the trial court as well as the appellate court found that
those are no material contradictions to discredit the version of PW1 and
PW2. Another contradiction regarding the place of occurrence is also
addressed by the trial court on the point that at the time of occurrence,
PW2 was sitting on the bike whereas PW2 stated that he had on the foot.
Same also negatived by the trial court holding that minor contradictions,
inconsistencies or embellishment of trivial nature could not be taken as a
ground to reject prosecution evidence in its entirety. In this regard the trial
court relied on 2 decisions of the Apex Court and observed as under:-
"This position is fortified by the judgment of the Apex
Court in "Shyamal Ghosh v. State of West Bngal", reported in
(AIR 2012 SC 3539). Further, it is also to be noted that the maxim,
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"falsus in uno falsus in omnibus" has no application in Indian
circumstances, and it is the duty of the Court to separate the grain
from the chaff. Doubt in this regard is settled by the Apex Court in
"Nisar Alli v. State of UP", reported in (AIR 1957 SC 366).
Therefore, the defence contention in the matter can only be
repelled, which I do."
14. Even though it is argued by the learned counsel for the
petitioner that evidence of PW3 is contrary to the version of PW1 and
PW2, in para.7 of the judgment, the trial court addressed the evidence of
PW3 and found that it is not correct to say that evidence of PW3 is
evasive. It was observed by the trial court that PW3 is not a victim or a
close relative of the victim. So he would forget the exact date and time of
the occurrence. However, evidence of PW3 did also generally support the
version of PW1 and PW2 regarding the occurrence.
15. In the instant case, the evidence given by PW1 and PW2
regarding the occurrence would inspire confidence, where PW3 also
supported the occurrence, but as regards the time of occurrence PW3's
evidence is in deviation from PW1 and PW2. That by itself would not
make the evidence of PW1 and PW2, the victims of the crime,
unbelievable. If at all evidence of PW3 is eschewed, then also the
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prosecution case is proved beyond reasonable doubt.
16. On reading the verdicts impugned, it could be gathered
that the trial court as well as the appellate court believed the evidence of
PW1 and PW2 to hold that the 1st accused wrongfully restrained them and
the 2nd accused used criminal force against PW1 to outrage her modesty
after sharing common intention between accused Nos.1 to 3 and thereby
all the accused committed offences punishable under Sections 341, 354
r/w 34 of IPC. In fact, the evidence given by the victim in a crime which
failed to be shaken during cross examination can be relied on to enter into
conviction. The trial court as well as the appellate court rightly exercised
the said option.
17. It could be noticed that before the trial court a contention
was raised to the effect that with the aid of Section 34 of the IPC, the 1 st
accused could not be made liable for the offence punishable under Section
354 of IPC relying on the decision of the Apex Court reported in [2010
(10) SCC 281], Abdul Syeed v. State of Madhya Pradesh, where the Apex
Court in paragraph 19 with reference to the evidence given by PW1 and
PW2 therein found that there cannot be any direct evidence regarding
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common intention by the accused and it is a matter proved by
circumstances. Here in paragraph 19, the appellate court observed that,
according to PW1, while she was travelling as a pillion on a motor cycle
rode by her husband, all the accused blocked the vehicle in front of
Marampally temple. The 1st accused took away the key so that they
became unable to proceed further. PW2 also gave evidence regarding the
same Regarding the common intention, it was also observed by the trial
court that accused 1 and 3 herein are not mere spectators present at the
spot and the motorcycle where PW1 and PW2 were travelling was blocked
by all of them and the 1st accused removed ignition key and restrained the
further movement of PW1 and PW2. Thereafter accused 1 to 3 did
different acts and the 2nd accused caught hold on the breast of PW1 after
sharing common intention between accused Nos.1 to 3 and they blocked
and assaulted PW1 and PW2. In fact, in such a case, it could not he held
that the principle of joint liability embodied under Section 34 of IPC is not
made out to hold that apart from the 2nd accused, the other accused, who
shared common intention, should not be punished for the offence
punishable under Sections 341, 354 with the aid of 34 of IPC.
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18. As regards to the challenge with respect to the
availability of light at the spot also, the trial court and the appellate court
rightly found availability of light on evaluation of evidence and the said
finding doesn't require any interference by exercising the limited power of
revision by re-appreciating the evidence. Similarly as far as the illegality
pointed out by the learned counsel for the revision petitioner regarding non
examination of the victim under Section 313 of Cr.P.C, in fact, such a
contention cannot succeed since it was not raised before the trial court or
before the first appellate court. That apart, the judgment would show that
such a procedure was rightly opted. Therefore, this challenge also would
fail. Thus the conviction and sentence imposed by the trial court as well as
the appellate would require no interference.
19. Coming to sentence imposed, the same in relation to the
revision petitioner is the statutory minimum. Thus no interference is
possible in the sentence also. Accordingly, the sentence also is confirmed.
20. In the result, this Revision Petition stands dismissed.
Registry shall forward a copy of this order to the jurisdictional
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court for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
