Kerala High Court
Biju Abraham vs State Of Kerala on 29 January, 2025
2025:KER:7186
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.REV.PET NO. 1196 OF 2024
CRIME NO.756/2011 OF ARANMULA POLICE STATION, PATHANAMTHITTA
CRL.A NO.11 OF 2023 OF ADDITIONAL SESSIONS COURT - II,
PATHANAMTHITTA
CC NO.371 OF 2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
I,PATHANAMTHITTA
REVISION PETITIONERS/APPELLANTS/ACCUSED 1 & 2:
1 BIJU ABRAHAM,
AGED 55 YEARS
S/O.ABRAHAM JOHN, KULANJIKOMBIL HOUSE, NEAR
VAZHETHOPPILPADI, NARANGANAM MURI, NARANGANAM VILLAGE,
PATHANAMTHITTA DISTRICT, PIN - 689642
2 VARGHESE GEORGE,
AGED 55 YEARS
S/O.GEORGE KUTTY, KANNAMKARA HOUSE, VATTAKAVU, NARANGANAM
MURI, NARANGANAM VILLAGE, PATHANAMTHITTA DISTRICT, PIN -
689642
BY ADVS.
K.N.RADHAKRISHNAN(THIRUVALLA)
ANJU SUSAN REJI
RESPONDENTS/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
BY SR.PUBLIC PROSECUTOR SRI.RENJITH GEORGE
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
16.1.2025, THE COURT ON 29.01.2025, PASSED THE FOLLOWING:
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CRL.R.P.NO.1196 OF 2024 2
"C.R"
ORDER
Dated this the 29th day of January, 2025
Accused Nos.1 and 2 who were found guilty for the offence
punishable under Section 354 r/w Section 34 of the Indian Penal
Code (for short, 'the IPC' hereinafter) in C.C.No.371/2011 on the files
of the Judicial First Class Magistrate Court-I, Pathanamthitta, being
aggrieved by the said conviction and sentence, had approached the
Additional Sessions Court, Pathanamthitta by filing Crl.A.No.11/2023
and by judgment dated 31.8.2024, the learned Additional Sessions
Judge confirmed the conviction and sentence. Challenging the
concurrent verdicts, this revision has been filed.
2. Heard the learned counsel for the revision petitioners and
the learned Public Prosecutor appearing for the respondent.
3. I shall refer the parties in this revision as 'prosecution' and
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'accused' for easy reference, hereafter.
4. The prosecution case is that, in furtherance of common
intention shared by the accused to outrage the modesty of the de facto
complainant, at about 8.00 p.m. on 18.9.2011 while the de facto
complainant was travelling in an Autorickshaw along with accused
Nos.1 and 2 through Nellikala-Vattakavu public road, the 1 st accused
pressed on the left breast of the de facto complainant and the 2 nd
accused caught on her belly and thereby, outraged her modesty.
Thus, offence under Section 354 r/w Section 34 of the IPC was alleged
by the prosecution against the accused. Initially, crime was registered
alleging commission of the said offence and on completion of
investigation final report also filed accordingly.
5. The trial court took cognizance of the matter and
proceeded with trial. During trial, PWs 1 to 7 were examined and
Exts.P1 to P7 were marked on the side of the prosecution. Thereafter,
the accused were questioned under Section 313 of the Code of
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Criminal Procedure, highlighting the incriminating circumstances
against them found in evidence and they denied the same. Although
opportunity was provided to the accused to adduce defence evidence,
no evidence adduced.
6. The trial court addressed the question as to whether the
prosecution succeeded in proving commission of offence under
Section 354 r/w Section 34 of the IPC by the accused and the trial
court relied on the evidence of PW1 supported by PW4, her mother in
a case where PW2-the Autorickshaw driver, PW3-the neighbour and
PW6-the husband of the de facto complainant, were turned hostile to
the prosecution. Relying on the evidence of PW1 and PW4, the trial
court found that the prosecution succeeded in proving commission of
offence under Section 354 r/w Section 34 of the IPC, by the accused.
Accordingly, the accused were convicted for the said offence and in
consideration of the fact that the occurrence was on 18.9.2011, which
is before amendment of Section 354 of the IPC which enhanced
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punishment as "shall not be less than one year", and in consideration
of the fact that the unamended provision provided punishment upto
two years or with fine or with both, the accused were sentenced to
undergo for rigorous imprisonment for 6 months for the offence
punishable under Section 354 r/w Section 34 of the IPC. Although
the verdict of the trial court was challenged before the appellate court,
as per judgment in Crl.A.No.11/2023 dated 31.8.2024, the learned
Additional Sessions Judge also concurred the finding of the trial
court.
7. The learned counsel for the accused would submit that
there are contradictions in the evidence of PW1 and PW4 and the
same were not considered by the trial court as well as the appellate
court. According to the learned counsel, PW1 gave evidence in excess
of what she had stated before the police in the First Information
Statement. Further, PW4 is not an occurrence witness. She had only
hearsay knowledge. It is pointed out that PW2-the Autorickshaw
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driver and PW3-the neighbour turned hostile to the prosecution.
According to the learned counsel for the accused, when there are
material contradictions in the evidence of the witnesses by disclosing
new facts, the evidence is not reliable. In this connection, he has
placed decision of the Apex Court in Vijay Kumar v. State of
Rajasthan reported in [2014 (1) KLD 560 (SC)] and submitted
that, if the evidence of PW1 is taken together, it could only be held
that the prosecution case rests on concocted story and therefore, the
trial court as well as the appellate court went wrong in convicting and
sentencing the accused. Therefore, the same would require
interference.
8. The learned Public Prosecutor fully supported the evidence
and pointed out paragraph Nos.22 and 23 of the appellate judgment,
where the appellate court considered the challenge raised as regards
to contradictions and embellishments in the evidence of PW1 and
submitted that, in fact, no material contradictions or additions to
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disbelieve the prosecution case, as rightly found by the trial court and
the appellate court. Therefore, the conviction is only to be justified.
The learned Public Prosecutor opposed reduction in sentence as
canvassed by the learned counsel for the accused on the ground of
leniency, on the submission that the sentence imposed by the trial
court is only reasonable in parity with the gravity of the offence.
9. The power of this Court while exercising revision is not
wide enough to re-appreciate the evidence as that of an appellate
court and take a contra view, and the power is limited to address
illegality and perversity.
10. In the instant case, PW1 is the victim. Even though PWs 2,
3 and 6 were cited by the prosecution, to support version of PW1, they
did not support the prosecution case. Therefore, the trial court as
well as the appellate court placed reliance on the evidence of PW1,
who is the victim supported by the evidence of PW4, who is none
other than the mother of PW1. As per the evidence of PW1, the
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incident occurred inside an Autorickshaw. PW1 deposed that she and
her kid entered inside the Autorickshaw by name 'Ammukutty'
enroute and accused Nos.1 and 2 also entered in the Autorickshaw
enroute. While travelling along with accused Nos.1 and 2, the 1 st
accused pressed on her left breast and the 2nd accused caught on her
belly and thereby outraged her modesty. While PW1 was screaming,
her mother, PW4 called her over phone and then PW1 pressed the call
button instead of attending her call so as to make her mother to hear
her hue and cry. Later, she reached Nellikala by bus, as instructed by
the mother. PW4, who heard the hue and cry of PW1 through
telephone also deposed in support of the evidence given by PW1, and
stated that she heard the hue and cry of PW1 and immediately she
rushed to Nellikala and directed PW1 to return to Nellikala.
Thereafter, PW1 narrated all the events to PW4. PW1 identified
accused Nos.1 and 2.
11. The argument advanced by the learned counsel for the
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accused before the trial court was that there was no independent
evidence available to find commission of the above offence by the
accused in view of the fact that PWs 2, 3 and 6 turned hostile to the
prosecution. Further some anomaly in the form of omissions also
pointed out to disbelieve the evidence of PW1 and PW4.
12. The law is well settled that absence of independent witness
by itself would not give clean chit to an accused if the testimony of an
injured witness itself is wholly reliable. Law does not insist for
plurality of witnesses and the legal mandate is to address on reliable
evidence. That is why the said contention was negatived by the trial
court after believing the evidence of PW1 supported by the evidence
of PW4, her mother, and thus, the trial court entered into the
conviction and sentence.
13. Going by the appellate judgment, as pointed by the
prosecution, the contradictions in the form of omissions were addressed
by the trial court in paragraph Nos.21, 22 and 23, which are as under:
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"21. A plain reading of the above provision
makes it clear that such contradiction can be used
only to impeach the credit of the witness.
22. Admittedly in the case on hand no contradiction
was brought out. However, there are certain
omissions. Section 162 of Cr.P.C is the provision
which deals with omissions. Explanation to Section
162 of the Cr.P.C states thus: "An omission to state a
fact or circumstance in the statement referred to in
sub-section (1) may amount to contradiction if the
same appears to be significant and otherwise
relevant having regard to the context in which such
omission occurs and whether any omission amount
to a contradiction in the particular context shall be a
question of fact." Having regard to the explanation to
Section 162 of the Cr.P.C, as far as the omissions
pointed out by the learned counsel are concerned, it
can be said that such omissions are not relevant to
fall under the category of contradiction. Even
otherwise, such contradictions or omissions can be
taken consideration only if they were brought subject
to the procedure contemplated under section 145 of
the Indian Evidence Act. It is obvious that such
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procedure was not complied with.
23. Even if there were any variations in the
evidence with the statements that can be treated a
natural as the witnesses were examined before the
Court after five years from the date of the incident.
The Hon'ble Apex Court in Balu Sudam Khalde v.
State of Maharashtra (AIR 2023 SC 1736) explained
the parameters for appreciating the ocular evidence.
It said that minor discrepancies on trivial matters
not touching the core of the case, hyper technical
approach by taking sentences torn out of context here
or there from the evidence, attacking importance to
technical error committed by the investigating officer
not going to the root of the matter would not
ordinarily permit rejection of the evidence as a
whole. By and large a witness cannot be expected to
possess a photographic memory as to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen. Ordinarily it so
happens that a witness is overtaken by events. The
witness could not have anticipated the occurrence
which so often has an element of surprise. The mental
faculties therefore, cannot be expected to be attuned
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to absorb the details. The powers of observation
differ from person to person. What one may notice,
another may not. An object or movement might
emboss its image on one person's mind whereas it
might go unnoticed on the part of the other."
14. In this case, no marked contradiction brought out during
cross examination of PW1 and PW4. However, contradictions in the
form of omissions are the plank on which the accused raised a
contention that the evidence of PW1 and PW4 could not be relied on.
It is the well settled law that mere immaterial omissions by itself
would not give any aid to the accused unless the contradictions in the
form of omissions are so material, which would make the evidence of
the witnesses wholly unreliable. In the instant case, PW1, a poor lady,
along with her kid, happened to travel in an Autorickshaw along with
accused Nos.1 and 2 enroute. While travelling so, the 1 st accused
pressed on her left breast and the 2 nd accused caught on her belly and
thereby, her modesty was outraged. This consistent version of PW1
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was not shaken during cross examination and no material omission in
this aspect brought into.
15. Section 354 of IPC provides that, whoever assaults or uses
criminal force to any woman, intending to outrage or knowing it to be
likely that he will there by outrage her modesty shall be punished with
imprisonment.
16. Reading the provision, in order to attract an offence under
Section 354 of IPC, assault or use of criminal force to any woman, (1)
intending to outrage or (2) knowing it to be likely that he will there by
outrage her modesty, is to be made out, prima facie.
17. As I have already discussed, the most essential ingredient
to attract an offence under Section 354 of IPC is assault or use of
criminal force to any woman with intent to outrage or knowing it to
be likely that he will thereby outrage her modesty.
18. Indubitably Indian Society places great emphasis on
modesty of women and any act that seems as an insult to modesty is a
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matter of serious concern. The offence of outraging the modesty of a
woman is not limited to physical acts of violence but also includes any
verbal or non-verbal conduct that is intended within the ambit of
assault or use of criminal force. In recent years, the issue of the safety
and security of women has come to the forefront in India, with large
number of cases of sexual offences against women being reported.
The legislature has taken steps to strengthen laws against sexual
offences, with stricter deterrents for rape and sexual assault.
However, sexual offences against women continue to be a major
problem in India and efforts are still needed to ensure that laws are
effectively implemented. It is important for individuals to be aware of
their rights and for the society to take a zero-tolerance approach
towards sexual offences to arrest the menace of sexual assault and
molestation.
19. The act of outraging a female's modesty is increasing
exponentially thereby taking a toll on the lives of women leading to
mental and physical agony. The word `modesty' has to be judged as a
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quality or state of being modest, which is characterised by humility,
restraint, simplicity, and good taste. The act of outraging the
modesty of a woman, refers to the virtue that attaches to a female
owing to her gender and is an attribute associated with females in
general. It is a sense of shame or bashfulness that a woman feels
when faced with any act that is intended to outrage her modesty. To
put it differently, modesty to a woman has evolved as altogether a
different concept which has very little to do with the physique of the
woman. The modesty of a woman is intimately connected with
femininity including her sex. Modesty is not only limited to physical
modesty but it also includes moral and psychological modesty. The
moral modesty of a woman is said to be the sense of shame or
bashfulness that a woman feels when faced with any act that is
intended to outrage her modesty. The psychological modesty of a
woman is said to be her innate sense of self-respect and dignity. Thus
the modesty of a woman is sublime and any sort of intrusion or
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intercession is to be dealt with resolutely and soberly.
20. Considering the arguments tendered by the learned
counsel for the revision petitioners within the sphere of limited power
of revision, it could be gathered that the trial court as well as the
appellate court rightly entered into conviction on finding that the
evidence of PW1 supported by PW4, fully established the prosecution
case that the accused persons outraged the modesty of PW1 by
assault and use of criminal force. The said finding only to be justified.
21. Coming to the sentence, the learned counsel for the
revision petitioners prayed for interference in the sentence. But the
same is opposed by the learned Public Prosecutor. It is true that this
occurrence is of the year 2011, prior to amendment of Section 354 of
IPC w.e.f 03.02.2013, enhancing the punishment which shall not be
less than one year. Prior to that, the punishment provided for the
offence under Section 354 IPC was imprisonment of either
description for a term which may extend to 2 years or with fine or
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with both. In the instant case, the trial court imposed rigorous
imprisonment for 6 months and the same was found to be reasonable
by the appellate court. However, in the interest of justice, I am
inclined to modify the sentence. Accordingly, the accused/revision
petitioners are sentenced to undergo rigorous imprisonment for a
period of 5 months for the offence punishable under Section 354 r/w
34 of IPC.
22. In the result, this Revision Petition stands allowed in part,
confirming the conviction and modifying the sentence as under:
23. The revision petitioners/accused shall undergo rigorous
imprisonment for five months for the offence punishable under
Section 354 r/w 34 of IPC.
24. The interim stay in executing the sentence stands vacated
with direction to the revision petitioners to surrender before the trial
court within two weeks from today to undergo the sentence. On
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failure to do so, the trial court is directed to execute the sentence
hereby modified without fail.
Registry shall forward a copy of this order to the jurisdictional
court for information and compliance.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
