Kerala High Court
Abdul Salam vs The State Of Kerala on 20 January, 2025
Criminal Appeal Nos.64 and 139 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
CRL.A NO. 64 OF 2014
AGAINST THE COMMON JUDGMENT DATED 08.01.2014 IN SC
NO.251 OF 2012 ON THE FILE OF THE COURT OF SESSION, MANJERI.
APPELLANT/ACCUSED:
ABDUL SALAM,
S/O. KHALID, VALAPPARAMBIL HOUSE,
THODUKUTHU PARAMBU,
MATTATHUR, OTHUKKUNGAL,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.BABU S. NAIR
SRI.K.RAKESH
RESPONDENT/STATE:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI - 682 031.
BY ADV.SRI.VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2025, ALONG WITH CRL.A.139/2014, THE COURT ON 20.01.2025
DELIVERED THE FOLLOWING:
Criminal Appeal Nos.64 and 139 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
CRL.A NO. 139 OF 2014
CRIME NO.209/2010 OF MALAPPURAM POLICE STATION, MALAPPURAM.
AGAINST THE COMMON JUDGMENT DATED 08.01.2014 IN SC
NO.291 OF 2011 ON THE FILE OF THE COURT OF SESSION, MANJERI.
APPELLANT/1ST ACCUSED:
SUBAIR,
S/O.KUNHU MUHAMMED,
KAVUNKAL HOUSE,
THODAKKUTHU PARAMBA, MATTATHOOR.
BY ADV SRI.ESM.KABEER
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
(REPRESENTED THROUGH SUB INSPECTOR OF POLICE,
MALAPPURAM DITRICT)
BY ADV.SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2025, ALONG WITH CRL.A.64/2014, THE COURT ON 20.01.2025
DELIVERED THE FOLLOWING:
Criminal Appeal Nos.64 and 139 of 2014
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C.S.SUDHA, J.
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Criminal Appeal Nos.64 and 139 of 2014
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Dated this the 20th day of January 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C. the
appellants who are accused nos.1 and 2 in S.C.No.291/2011 and S.C.
No. 251/2012 on the file of the Court of Session, Manjeri challenges
the conviction entered and sentence passed against them for the
offence punishable under Section 377 IPC.
2. The prosecution case is that the accused persons
two in number in furtherance of their common intention to commit
carnal intercourse against the order of nature, on 19/05/2010 at
01:45 p.m. took PW5, a boy aged 16 years in their car, forcibly made
him drink alcohol, took him to a desolate place and had carnal
intercourse against the order of nature. Hence, the accused persons as
per the final report/charge sheet are alleged to have committed the
offences punishable under Sections 363 and 377 read with Section 34
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IPC.
3. Crime no.209/2010, Malappuram police station,
that is, Ext.P7 FIR was registered by PW8, Sub Inspector,
Malappuram police station based on Ext.P4 FIS of PW5, the victim
boy, which statement was recorded by PW6, Sub Inspector,
Malappuram police station. The case was investigated by PW8, who
completed the investigation and submitted the final report/charge
sheet against the accused alleging the commission of the offences
punishable under the above-mentioned Sections.
4. On appearance of the accused persons, the
jurisdictional magistrate, after complying with all the necessary
formalities contemplated under Section 209 Cr.P.C., committed the
case to the Court of Session, Manjeri. The case was taken on file as
S.C.No.291/2011 and S.C.No. 251/2012. On 01/07/2013, the trial
court framed a charge for the offences punishable under Sections 366
and 377 read with Section 34 IPC, which was read over and
explained to the accused persons to which they pleaded not guilty.
5. On behalf of the prosecution, PW1 to PW8 were
examined and Exts.P1 to P14 and M.O.1 to M.O.10 were got marked
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in support of the case. After the close of the prosecution evidence,
the accused persons were questioned under Section 313(1)(b) Cr.P.C.
regarding the incriminating circumstances appearing against them in
the evidence of the prosecution. The accused persons denied all those
circumstances and maintained their innocence.
6. As the trial court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., they were asked to enter on
their defence and adduce evidence in support thereof. No oral
evidence was adduced by the accused persons. Ext.D1 was marked
on behalf of the accused persons.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the impugned
judgment acquitted the accused persons under Section 235(1) Cr.P.C.
of the offence punishable under Section 363 IPC. However, they have
been found guilty of the offence punishable under Section 377 IPC
and hence have been sentenced to rigorous imprisonment for 3 years
each and to a fine of ₹5,000/- each and in default to rigorous
imprisonment for two months each. The fine amount, if realized, has
been directed to be paid to PW5. Set off under Section 428 Cr.P.C.
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has been allowed. Aggrieved, the accused persons have come up in
appeal.
8. The only point that arises for consideration in this
appeal is whether the conviction entered, and sentence passed against
the accused persons/appellants by the trial court are sustainable or
not.
9. Heard both sides.
10. It was argued on behalf of the accused persons that
the evidence on record is totally unsatisfactory to establish the charge
against the accused beyond reasonable doubt. To prove the offence
under Section 377 IPC, there is only the sole testimony of PW5, the
victim boy, which is not of sterling quality and hence the trial court
ought not to have convicted the accused based on his testimony. The
testimony of PW2 would show that there was yet another person
inside the car at the time of the alleged incident. However, PW5
denied the same. Therefore, the testimony of the prosecution
witnesses is inconsistent regarding the number of persons who were
present inside the car at the time of the incident. In such
circumstances, benefit of doubt ought to have been given to the
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accused persons, goes the argument. In support of the arguments,
reference was made to the dictum in Manak Chand @ Mani v.
State of Haryana, AIR 2023 SC 5600. Per contra, it was submitted
by the learned Public Prosecutor that the materials on record are more
than sufficient to establish the charge against the accused persons.
There is no reason why PW5 should make up such a false allegation
against the accused persons.
11. In Manak Chand @ Mani (Supra), the appellant
therein aged 20 years, was alleged to have raped a girl who was
stated to be under 16 years of age. However, there was no satisfactory
evidence to show that the prosecutrix was under 16 years old at the
time of the commission of the offence. The evidence was also
unsatisfactory regarding the incident of rape as materials came on
record to show that on the date of rape, the prosecutrix had attended
School. There was also delay in the prosecutrix informing the
incident to her parents. Evidence also came on record that the
proposal for marriage put forward by the father of the prosecutrix
was turned down by the family of the accused. When the marriage
did not materialise, a complaint was made to the police based on
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which the crime was registered. The materials on record probabilised
a consensual relationship. The accused was acquitted finding the
evidence unsatisfactory as it was found that the incident was quite
improbable and unlikely. The testimony of the prosecutrix was also
not found to be creditworthy. Relying on this dictum, the argument
advanced on behalf of the accused persons is that the testimony of
PW5 is not of sterling quality and hence the accused are entitled to
the benefit of doubt.
12. I make a brief reference to the testimony of the
witnesses relied on by the prosecution to establish the charge against
the accused persons. PW5, the victim boy, when examined deposed
that the incident took place on 19/05/2010 on which date he along
with his friend Uwais, left School in the afternoon and by about
01:45 p.m. they reached the place by name Alathurpadi junction.
While Uwais went to a nearby shop to make some purchase, a car
approached PW5 and stopped near him. Both the accused persons
who were inside the car asked PW5 directions to a place. When PW1
was trying to explain the way to them, A1 Subair, who was sitting on
the back seat of the car, opened the door of the car and pulled him
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inside. When PW5 tried to cry out for help, A1 covered his mouth
with the latter's palm. The car then sped off and after travelling some
distance, A2 Abdul Salam, who was driving the car, stopped the car
and came to the back seat. A2 mixed liquor with 7up and he was
forcibly administered the same. He lost consciousness for some time.
When he regained consciousness, he found the car parked in a
deserted place. Both the accused persons took him out of the car to a
grassy area, undressed him and sexually abused him. A1 thrust his
penis between his thighs which act was repeated by A2 also.
Thereafter, he again lost consciousness. When he regained
consciousness, he was in the hospital. He was first taken to a hospital
at Malappuram. Thereafter he was taken to the General hospital,
Manjeri, from where he was taken to the Medical College hospital,
Kozhikode. Ext.P4 is the FIS given by PW5 to the police.
12.1. PW2, Head Constable, Malappuram police station
when examined deposed that on 19/05/2010 he was on patrol duty
along with the Sub Inspector. When they reached the place called
Korangode, Malappuram they saw a car parked by the side of the
road. The Sub Inspector stopped the jeep and inspected the car. They
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found PW5 in a semi-conscious condition. Apart from PW5 there
were three other people in the car. On questioning, the said persons
were unable to give any satisfactory answers which aroused suspicion
in their mind and hence the three persons in the car were taken into
custody. PW5 the boy was taken to the Taluk Hospital, Malappuram
for treatment. PW2 identified the accused persons as the two among
the three persons present in the car. PW2 also deposed that the car
was parked on the opposite side of a liquor shop. In the cross-
examination PW2 deposed that PW5 was taken to a hospital at
Malappuram. They had not taken PW5 to any other hospital. The boy
was unable to give any statement at that time. PW2 denied the
suggestion that PW5 was completely conscious when the police saw
him. He also denied the suggestion that the present false case has
been registered because the three people travelling in the car had an
altercation with the police. PW2 further deposed that after the boy
was taken to the hospital the accused persons were taken to the police
station.
12.2. PW1, Medical Officer, Taluk Head Quarters
Hospital, Malappuram deposed that on 19/05/2010 at 05:36 p.m. he
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examined PW5 aged 16 years and had issued Ext.P1 certificate. On
examination he found discolouration on the buttocks of the boy who
was brought to the hospital in a semiconscious state. Pieces of grass
were found on the buttocks area. There was smell of alcohol. PW1
also deposed that the boy had been brought to the hospital by the
police.
12.3. PW6, Sub Inspector, Malappuram police station
deposed that on 20/05/2010 he had recorded Ext.P4 FIS of PW5 at
the Medical College Hospital, Kozhikode.
12.4. PW8, Sub Inspector, Malappuram police station
deposed that based on Ext.P4 he had registered Ext.P7 FIR. He had
conducted an investigation into the case. On 19/05/2010 he took both
the accused persons into custody and their arrest was recorded on
20/05/2010. The accused persons were subjected to potency test. In
the cross-examination PW8 deposed that till the crime was registered
he did not have any information regarding the case. He admitted
Ext.D1 report submitted by him to the effect that the car bearing
registration no.KL-8V/3180 used by the accused was seized and a
seizure mahazar had been prepared relating to the same. At the time
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of seizure, a liquor bottle, the key of the car and the school bag of
PW5 containing his books as well as the books of his friend
Mohammed Uwais had been seized. However, by mistake the bag
was omitted to be referred to in the seizure mahazar and hence
Ext.D1 report. PW8 when asked whether in addition to the accused
persons there was a person by name Salih inside the car, replied that
he was unable recollect the same. PW8 admitted that he had not
questioned Uwais, the friend of PW5. PW8 denied the suggestion that
on the date of the incident there was a quarrel between the accused
persons and the police and hence due to the said enmity, the present
false crime had been registered against the accused persons.
13. It is true that PW2 has a case that apart from the
accused persons and PW5 there was yet another person inside the car
on the date of the incident. However, PW5 denied the existence of
such a person in the car. PW8 the investigating officer, on the other
hand, deposed that he does not remember whether a person by name
Salih was also present inside the car. PW8 deposed that till the crime
was registered he was unaware of the incident. This was pointed out
as an aspect which would raise serious doubts about the case because
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the testimony of PW2 is that PW5 was found in an unconscious stage
while he was on patrol duty along with the Sub Inspector of Police. It
is not clear whether it was PW6 or PW8 who was leading the patrol
team because PW8 says he had registered the crime pursuant to the
FIS recorded by PW6 being handed over to him. PW6 in his
testimony described himself as Sub Inspector of Police, Malappuram.
However, PW6 in the first page of his deposition, apart from giving
his name and other details has given his 'calling' as- 'Additional Sub
Inspector'. PW8 was the Sub Inspector of Malappuram police station
during the said time. Neither side has clarified as to who was heading
the patrol team in which PW2 was a member. It is true that PW2 says
that another person was present in the car. However, no explanation
is given either by PW2 or PW8 as to why the said person was not
included or arrayed as an accused or why he was excluded from the
case. But it is pertinent to note that PW5 has no case that any person
other than the accused herein had sexually abused him. Going by the
version of PW5, his friend Uwais, was not present in the car when the
incident took place. I find no reason(s) to disbelieve his version
regarding the same. Ext.D1 report does say that the school bag of
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PW5 contained the books of his friend Uwais also. Admittedly,
Uwais is a friend of PW5. Therefore, there is nothing unnatural in
the books of his friend to be inside his bag, especially when the
prosecution case is that PW5 and Uwais were together on the date of
the incident before PW5 had been taken away in the car by the
accused persons. It would certainly have been ideal for the
prosecution to have examined Uwais as a witness in this case.
However, evidence must be weighed and not counted.
14. It was submitted that the attempt of PW5 was to
somehow save his face as he had consumed alcohol on the said day
and therefore it was difficult for him to face his parents. In the light
of his deviant character, his testimony is not reliable or safe, goes the
argument. PW5 admitted that he used to smoke but not drink.
Merely because PW5 admitted that he used to smoke, would not be a
ground to conclude that he is of a deviant character. Youngsters are
prone to commit mistakes/follies during their teens or young age for
which they cannot be branded as deviant and wholly unreliable. The
accused persons, when questioned under Section 313 Cr.P.C., denied
the prosecution case and submitted statements in writing putting forth
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their contentions. According to them, on the said day they were
travelling in a car. The second accused was driving the car. They
stopped the car at a place by name, Alathurpadi, where they saw their
friend Uwais along with two youngsters standing by the roadside.
They were told by Uwais that one among them was quite drunk and
therefore requested a lift to Kottappadi, Malappuram. They acceded
to the request of Uwais and his friends. When they reached the place
called Munduparambu, a pedestrian abruptly crossed the road and the
second accused, to avoid hitting him, swerved the car. This led to an
altercation between the second accused and the said pedestrian at
which time the Sub Inspector of Police arrived at the spot. They
questioned the second accused. The police did not like the way the
second accused answered them and so the accused persons were
taken to the police station. PW5 admitted to the police that he had
consumed liquor. As Uwais and the other person Salih had not
consumed liquor, they were released by the police. The accused
persons were kept in the lock-up for a day and on the next day, a false
crime was registered, and they were remanded. The accused persons
have no such case when PW2, PW6 or PW8 were in the box. No
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such defence was put forward during the cross examination of the
said witnesses. There is no reason to disbelieve PW5 who has clearly
deposed regarding the overt acts of the accused. It is highly
improbable and unlikely for PW5 to have fabricated such a false
story against the accused persons especially when he has no motive
or reason(s) to do so. No evidence or materials have been brought on
record to show that the accused had any prior acquaintance with PW5
and that due to some enmity, a false allegation has been raised.
15. It was further pointed out that the medical evidence
also does not support the prosecution case. No injuries have been
noted on the private parts of PW5 by the doctor who examined him
and hence this was pointed as yet another reason to doubt the
prosecution case. According to PW5 the accused persons had abused
him by thrusting their penis in between his thighs. That being the
position there cannot be any injury on his private parts. PW1 the
doctor has deposed that on examination he found discolouration on
the buttocks of PW5 and pieces of grass on the buttocks area. This
aspect substantiates the version of PW5 who deposed that the accused
persons had taken him out of the car to a grassy area, undressed him
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and then the accused one by one had abused him by thrusting their
penis between his thighs. This explains the discolouration on his
buttocks and pieces of grass on the buttocks. I find no reason(s) to
disbelieve PW5 and hence I find no infirmity in the impugned
judgment calling for an interference.
In the result, the appeals sans merit are dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
