Kerala High Court
Chandran vs State Of Kerala on 3 July, 2025
Crl.R.P.No.832 of 2018 1 2025:KER:49504
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CRL.REV.PET NO. 832 OF 2018
AGAINST THE JUDGMENT IN Crl.A NO.489 OF 2011 OF
ADDITIONAL SESSIONS COURT, IRINJALAKUDA ARISING OUT OF THE
JUDGMENT IN SC NO.607 OF 2008 OF ASSISTANT SESSIONS COURT,
IRINJALAKUDA
REVISION PETITIONER/APPELLANT/ACCUSED:
CHANDRAN,
AGED 42 YEARS, S/O CHERUNGORAN, CHAZHOOR HOUSE,
CHANDAPPADY, VALAPPAD, CHAVAKKAD, THRISSUR.
BY ADV SRI.MANSOOR.B.H.
RESPONDENT/COMPLAINANT AND STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031, REPRESENTING STATION HOUSE
OFFICER, VALAPPAD POLICE STATION, THRISSUR DISTRICT.
BY SRI.SANAL P RAJ PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 19.6.2025, THE COURT ON 03.07.2025 DELIVERED THE
FOLLOWING:
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CR
M.B.SNEHALATHA, J.
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Crl.R.P.No.832 of 2018
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Dated this the 3rd July, 2025
ORDER
This revision petition has been filed by the revision petitioner
challenging the concurrent finding of conviction and sentence
against him for the offence punishable under Section 354 of Indian
Penal Code (for short 'IPC') by the trial court and the appellate
court.
2. Accused faced indictment for the offence punishable
under Section 354 IPC on the allegation that on 25.9.2006 at
around 11 am, when the victim girl aged 14, who is a neighbour of
the accused, had gone to the house of the accused to watch TV
programme, he dragged her to his bedroom and committed rape on
her and thereby committed the offence punishable under Section
376 IPC.
3. The law was set in motion by PW1, the father of the
victim girl by laying Ext.P1 First Information Statement, pursuant to
which Ext.P1(a) FIR was registered. After the investigation, final
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report was laid against the accused for the offence punishable under
Section 376 IPC.
4. To bring home the guilt of the accused, prosecution
examined PW1 to PW14 and marked Exts.P1 to P10. MO1 to MO3
are the material objects. No defence evidence was adduced by the
accused.
5. On an appreciation of the evidence, both oral and
documentary and other materials on record, though the trial court
found the accused not guilty of the offence under Section 376 IPC
and he was acquitted of the said charge, he was found guilty of the
offence punishable under Section 354 IPC and was convicted and
sentenced to undergo simple imprisonment for one year. Though
challenging the conviction and sentence, accused filed Crl.A
No.489/2011 before the Additional Sessions Court, Irinjalakkuda,
the learned Sessions Judge dismissed the appeal by confirming the
conviction and sentence for the offence under Section 354 IPC.
6. Heard the learned counsel for the appellant/revision
petitioner and the learned Public Prosecutor.
7. In this revision, the revision petitioner/accused assails
the conviction and sentence against him for the offence under
Section 354 IPC on the ground that there are material discrepancies
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in the testimony of prosecutrix and her parents regarding the
incident and therefore their evidence is not reliable; that there was
no charge against him for the offence under Section 354 IPC and
therefore, the conviction and sentence against him for the offence
under Section 354 IPC is unsustainable in law. It was contended
that since the trial court found him not guilty of the offence under
Section 376 IPC and acquitted him of the said charge, he cannot be
convicted for the offence under Section 354 IPC based on the very
same evidence. The learned counsel for the revision petitioner/
accused contended that Section 354 IPC is not a minor offence of
Section 376 IPC and therefore, the conviction and sentence against
the revision petitioner for the offence under Section 354 IPC is
illegal and liable to be set aside.
8. Per contra, the learned Public Prosecutor submitted that
the evidence on record and the materials placed by the prosecution
clearly established the ingredients of the offence under Section 354
IPC and therefore by invoking the provisions under Section 222
Cr.P.C, the court was competent to convict and sentence the
accused for the offence under Section 354 IPC; that there is no
illegality or error in convicting the accused for the offence under
Section 354 IPC and therefore, the judgment of conviction and
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order of sentence warrants no interference at all.
9. In view of the rival submissions, let us consider whether
the conviction and order of sentence against the accused for the
offence under Section 354 IPC warrants any interference by this
Court.
10. PW2 is the prosecutrix. PW1 and PW3 are her parents.
PW4 and PW5 are the sister and sister-in-law of PW1. PW7 is the
doctor who examined the prosecutrix on 30.9.2006 and issued
Ext.P3 wound certificate. PW8 is the doctor who examined the
accused and issued Ext.P4 certificate. PW9 is the principal of
GVHSS, Valappad who issued Ext.P5 certificate from the said school
showing the date of birth of the prosecutrix as per school admission
register. PW6 and PW10 are witnesses to Ext.P2 scene mahazar.
PW11 is the Village Officer who prepared Ext.P6 site plan. PW13
and PW14 are witnesses to Ext.P8 seizure mahazar prepared for
seizing MO1 to MO3 clothes of the prosecutrix. PW12 is the
investigating officer who completed the investigation and laid
charge sheet against the accused.
11. The prosecutrix who was examined as PW2 has testified
that during the period of incident, she was studying in 8 th standard;
that on the date of incident, that is, on 25.9.2006, she did not go
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to the school. On that day, at about 10 am, she had gone to the
neighbouring house of the accused to watch TV programme. When
she reached there, accused was present there. His wife was absent
in the house. On seeing the prosecutrix, the accused proceeded to
the eastern room of his house and called her to the said room.
When she did not respond, accused dragged her to his room and
forced her to lie down on the floor and thereafter committed rape
on her. Her further version is that when her mother called her, she
ran out from the house of the accused. She has further testified
that soon after the incident, though her mother asked her what
happened to her, she did not disclose the incident to her mother
since the accused had made a threat that if she disclose the incident
to anyone, he would kill her. According to PW2 subsequently she
revealed the incident to her parents and aunt Geetha; that her
father laid Ext.P1 First information statement to the police. She has
also testified that the police had taken her to the hospital for
medical examination. She identified MOs 1 to 3 as the clothes
worn by her at the time of the incident.
12. PW1 is the father of the prosecutrix. He testified that on
25.9.2006, when his daughter had gone to the house of the accused
for watching TV programme, accused committed rape on her.
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According to him, he informed the matter to his sisters and on
enquiry made by his sisters, the victim told them about the
incident. Ext.P1 is the First Information Statement given by him to
the police on 30.9.2006.
13. PW3 is the mother of the prosecutrix. She testified that
at the time of incident, her daughter, namely the prosecutrix was
studying in 8th standard; that on 25.9.2006 at about 11 am, when
she returned home after work and called her daughter, the
prosecutrix was found coming out from the house of the accused;
upon noting the unbuttoned blouse worn by her daughter, when she
made enquiry with her daughter the latter told her about the
incident. PW3 informed the incident to her husband, namely, the
father of the prosecutrix who in turn informed the matter to his
sisters and thereafter PW1 laid Ext.P1 complaint before the police.
PW3 has further testified that after the incident, PW2 discontinued
her studies due to shame and humiliation.
14. PW5, the paternal aunt of the prosecutrix, has testified
that the prosecutrix told her that the accused committed rape on
her on 25.9.2006.
15. PW7 doctor was the Assistant Surgeon of Government
Hospital, Valappad. He examined the prosecutrix on 30.9.2006 and
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issued Ext.P3 certificate. In Ext.P3 certificate it has been noted by
the doctor that the hymen was found torn. No other physical
injuries were noted in Ext.P3 and during cross examination the
doctor has testified that there were no marks of violence on the
private parts of the victim.
16. The trial court found the accused not guilty of the offence
under Section 376 IPC as the evidence adduced by the prosecution
was insufficient to sustain the conviction under Section 376 IPC.
The findings of the trial court and the appellate court that the
accused is not guilty of the offence under Section 376 IPC has
become final. Therefore, the question is whether the trial court and
the appellate court were right in its finding that accused is guilty of
the offence under Section 354 IPC.
17. As per the prosecution case, the prosecutrix was a minor
at the time of incident. Ext.P5 certificate issued from the school
wherein she was studying during the relevant time coupled with the
evidence of PW9 would show that the date of birth of the
prosecutrix is 12.3.1992. Thus, as on the alleged date of
occurrence, she was aged 14. The prosecutrix has categorically
stated that on the date of incident she had gone to the house of
the accused to watch TV; that at that time accused was present in
Crl.R.P.No.832 of 2018 9 2025:KER:49504
the said house; his wife was not present there. The specific version
of the prosecutrix is that upon seeing her, the accused called her to
the eastern room of his house and when she did not respond, he
dragged her to the said room and forced her to lie down on the floor
and undressed her and thereafter committed sexual assault. The
version of PW3, the mother of the prosecutrix that when she
returned home and called her daughter, the prosecutrix was seen
coming out from the house of the accused with unbuttoned blouse
is a strong circumstances which corroborates the version of the
prosecutrix. Though the accused would contend that he was falsely
implicated, there is nothing on record to show that neither the
prosecutrix nor her parents had any enmity or animosity against the
accused to implicate him in a serious crime of this nature. The
defence could not make any semblance of enmity between the
accused and PWs 1 to 3. The trial court was right in believing the
consistent version of the prosecutrix that the accused forcibly
dragged her to his bedroom and made her to lie down on the floor
and undressed her. There is no reason to disbelieve the version of
minor prosecutrix that the accused dragged her to his bedroom and
made her to lie down on the floor and undressed her.
18. The learned counsel for the revision petitioner/accused
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contended that there was a delay of five days in lodging the
complaint before the police and the said delay is crucial.
19. It is true that though the alleged incident was on
25.9.2006, Ext.P1 First Information Statement was laid by the
father of the prosecutrix only on 30.9.2006. Thus, there was a
delay of five days. The question is whether the said delay is crucial,
which undermines the prosecution case.
20. It is true that prompt lodging of FIR inspires confidence
that it was not an outcome of any consultation or deliberation. But
the delay in lodging the FIR in a case of sexual assault cannot be
equated with the case involving other offence. When a sexual
offence is committed against a girl or woman, the prosecutrix and
her family often remain deeply concerned about their honour and
social reputation. As a result, before approaching the police station,
they may hesitate or take time to decide whether to lodge a
complaint weighing the consequences and stigma associated with
such disclosure. Delay in lodging the FIR in sexual offences against
girls and woman has to be considered with a different yardstick.
21. In State of Himachal Pradesh vs. Prem Singh [(2009) 1
SCC 420] the Hon'ble Apex Court held that the delay in a case of
sexual assault, cannot be equated with the case involving other
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offences. It was observed by the Hon'ble Apex Court that there are
several factors which weigh in the mind of the prosecutrix and her
family members before coming to the police station to lodge a
complaint and in a tradition bound society prevalent in India, more
particularly, rural areas, it would be quite unsafe to throw out the
prosecution case merely on the ground that there is some delay in
lodging the FIR.
22. In Karnel Singh vs. State of M.P[(1995) 5 SCC 518] the
Hon'ble Supreme Court observed that Indian women are slow and
hesitant in making a complaint regarding sexual events and mere
delay will not indicate the complaint false and the reluctance to go
to the police is because of society's attitude towards such women.
Therefore, delay in lodging complaints in such cases does not
necessarily indicate that her version is false.
23. In State of Punjab vs. Gurmit Singh and Ors [(1996) 2
SCC 384] the Hon'ble Apex Court while rejecting the plea of delay in
lodging the FIR held that in sexual offences delay in lodging the FIR
can be due to variety of reasons particularly the reluctance of the
prosecutrix or her family members to go to the police and complain
about the incident which concerns the reputation of the prosecutrix
and the honour of her family. Therefore, the mere delay of five
Crl.R.P.No.832 of 2018 12 2025:KER:49504
days in lodging the Ext.P1 FIS is not a ground to doubt the veracity
of the version of the prosecutrix. Thus, though the evidence
adduced by the prosecution was insufficient to sustain conviction for
the offence under Section 376 IPC, prosecution could establish that
the accused outraged the modesty of the prosecutrix and
committed the offence under Section 354 IPC.
24. Section 354 of IPC reads as under: (Prior to the
amendemnt in 2013)
"354. Assault or criminal force to woman with
intent to outrage her modesty.--Whoever assaults
or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with
imprisonment of either description for a term which
may extend to two years, or with fine, or with both."
25. In Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC
560] the Apex Court observed that so far as the offence under
Section 354 IPC is concerned, intention to outrage the modesty of
the women or knowledge that the act of the accused would result in
outraging her modesty is the gravamen of the offence. The essence
of a woman's modesty is her sex. The culpable intention of the
accused is the crux of the matter. The reaction of the woman is
very relevant, but its absence is not always decisive. Modesty is an
attribute associated with female human beings as a class. It is a
virtue which attaches to a female owing to her sex. (para 28)
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26. The moot point for consideration is whether a person
charged under Section 376 of IPC can be convicted for a lesser
offence under Section 354 IPC in the absence of a specific charge
for the latter.
27. The learned counsel for the revision petitioner
vehemently contended that as there was no charge for the offence
under Section 354 IPC, the trial court and the appellate court went
wrong in convicting the accused for the offence under Section 354
IPC. The learned counsel for the revision petitoiner contended that
Section 354 IPC is not a minor offence of Section 376 IPC and
therefore, the conviction of the accused for the offence under
Section 354 IPC is unsustainable in law. In support of the said
contention, the learned counsel placed reliance on a decision of the
High Court of Gauhati in Pulin Bihari Roy v. State of Tripura
reported in (MANU/GH/0648/2012).
28. The learned Public Prosecutor on the other hand,
contended that by invoking Section 222 Cr.P.C the Court can
convict and sentence the accused for the minor offence proved,
though the accused is not charged for the minor offence.
29. Section 222 of Cr.P.C reads as under:-
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"222. When offence proved included in offence
charged.
(1)When a person is charged with an offence consisting of
several particulars, a combination of some only of which
constitutes a complete minor offence, and such combination
is proved, but the remaining particulars are not proved, he
may be convicted of the minor offence, though he was not
charged with it.
(2)When a person is charged with an offence and facts are
proved which reduce it to minor offence, he may be
convicted of the minor offence, although he is not charged
with it.
(3)When a person is charged with an offence, he may be
convicted of an attempt to commit such offence although the
attempt is not separately charged.
(4)Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions
requisite for the initiation of proceedings in respect of that
minor offence have not been satisfied. '
30. In Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC
560] the Hon'ble Supreme Court held that where the accused is
charged with a major offence and the said charge is not proved,
accused can be convicted of the minor offence. It was a case
wherein the appeal was filed challenging the conviction and
sentence for the offence under Section 511 of 376 IPC. The Apex
Court held that the offence proved against the accused falls within
the four corners of 366 and 354 IPC and accordingly by invoking
Section 222 Cr.P.C the accused therein can be convicted for the
offence under Section 366 and 354 IPC, though he was found not
guilty under Section 511 of 376 IPC.
31. In Shamnsaheb M. Multtani Vs. State of Karnataka
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[2001(2) SCC 577], the Apex Court held as follows:
"15. Sections 221 and 222 of the Code are the two
provisions dealing with the power of a criminal court to
convict the accused of an offence which is not included
in the charge. The primary condition for application of
section 221 of the Code is that the court should have felt
doubt, at the time of framing the charge, as to which of
the several acts (which may be proved) will constitute
the offence on account of the nature of the acts or series
of acts alleged against the accused. In such a case the
section permits "to convict the accused" of the offence
of which he is shown to have committed though he was
not charged with it." But in the nature of the acts
alleged by the prosecution in this case there was
absolutely no scope for any doubt regarding the offence
under Section 302 IPC, at least at the time of framing
the charge.
16. Section 222(1) of the Code deals with a case
"when a person is charged with an offence consisting of
several particulars". The Section permits the court to
convict the accused "of the minor offence, though he
was not charged with it." Sub-section (2) deals with a
similar, but slightly different, situation. "When a person
is charged with an offence and facts are proved which
reduce it to a minor offence, he may be convicted of the
minor offence although he is not charged with it."
32. In Pandhari Nath v. State of Maharastra (AIR 2010 SC
1453) the Apex Court following its earlier decision in State of
Maharashtra vs. Rajendra Jawanmal Gandhi [(1997) 8 SCC 386]
and Tarkeshwar Sahu's case (cited supra) held that under Section
222 of Cr.P.C. when a person is charged with a major offence and if
the ingredients of the major offence are not proved, accused can be
convicted for the minor offence, if the ingredients of minor offence
stands proved.
33. The judgment in Pulin Bihari's case (cited supra) relied
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on by the learned counsel for the revision petitioner is of little
assistance to the revision petitioner since on the facts of that case,
prosecution failed to prove the ingredients of assault or criminal
force to establish the charge under Section 354 IPC and it was a
case wherein the court found that the statement of the witnesses
coupled with the discrepancies was doubtful.
34. In the case in hand, the prosecution has succeeded in
establishing all the ingredients of the offence under Section 354 IPC
against the accused. The offence committed by the accused
squarely covers all the ingredients of Section 354 IPC. Therefore,
the trial court and the appellate court were right in convicting the
accused for the offence under Section 354 IPC and this Court finds
no reason to interfere with the said concurrent finding of conviction.
35. The next aspect for consideration is whether the sentence
awarded to the accused needs any interference.
36. Reckoning the nature and gravity of the offence
committed, the sentence of simple imprisonment for one year
imposed by the trial court and confirmed in appeal is not harsh and
excessinve rather it is just and reasonable. Therefore, the sentence
awarded to the accused needs no interference. This Court finds no
reason at all to interfere with the impugned judgment of conviction
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and sentence.
The Criminal Revision Petition is devoid of any merit and
accordingly dismissed.
The trial court shall take steps to execute the sentence.
Registry shall transmit the records to the trial court forthwith
along with a copy of this judgment.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
