Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3512 of 2005 ( ) --------------------------------AGAINST THE JUDGMENT IN Crl.Appeal No. 358/2003 of III ADDITIONAL SESSIONS JUDGE, KOZHIKODE DATED 30-08-2005** **AGAINST THE JUDGMENT IN CC 618/1999 of JUDICIAL FIRST CLASS MAGISTRATE-III,KOZHIKODE DATED 12-06-2003** **REVISION PETITIONER(S)/APPELLANT/ACCUSED: -----------------------------------------BABU, S/O.KARIYATHAN,PARAYARUKUNNATH HOUSE, KANNANKARA AMSOM,KOZHIKODE DISTRICT.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENT(S)/RESPONDENT/COMPALAINANT & STATE:** **-----------------------------------------------STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM.** **R BY PUBLIC PROSECUTOR SMT.M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.3512 of 2005 ---------------------------------------------Dated this the 16[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.358/2003 of III Additional Sessions Judge, Kozhikode. He was charge sheeted in C.C.No.618/1999 u/s.354 IPC by the Judicial First Class Magistrate Court-III, Kozhikode. After trial, The learned Magistrate convicted the accused u/s.354 IPC and sentenced to rigorous imprisonment for one year and fine of ₹2,000/- in default simple imprisonment for two months. Against that, the accused preferred Crl.Appeal before III Additional Sessions Judge, Kozhikode, which was dismissed by the learned Sessions Judge. Being aggrieved by that, he Crl.R.P. No.3512/2005 2 preferred this revision petition. 2. The charge against the accused is that on 17.6.1999 at about 7 a.m., he caught hold on both hands of PW1 while she was passing through the pathway on the side of the Pattarpalam river Kannangara amsom, thereby outraged the modesty of a woman. For that, Kakkur Police registered a crime and after completing investigation, Sub Inspector laid charge in the trial Court. During trial prosecution examined PW1 to PW6 and marked Exts.P1, P1 (a) and P2. The incriminating circumstances brought out in evidence were denied by the accused while questioning him and he did not adduce any defence evidence. 3. The learned counsel for the revision petitioner contended that the evidence of PW1 is not believable, since she had inconsistent versions about the incident. Independent evidence is necessary to prove the offence, Crl.R.P. No.3512/2005 3 since there was political enmity between the revision petitioner and PW1. Besides this, a civil dispute has been pending between the uncle of PW1 and the revision petitioner, if that be the reason, the accused is entitled to get the benefit of doubt. 4. The learned public prosecutor contended that there is no reason to discard the oral testimony of PW1, since the occurrence was in the day light and PW2 supported the evidence. 5. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the Crl.R.P. No.3512/2005 4 fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. Apex Court in **Pandurang Sitaram Bhagwat** v. **State of Maharashtra** ## [2005 (9) SCC 44] held as follows: “ The statements of the said witnesses with regard to commission of an offence by the appellant under Section 354 IPC should have been considered keeping in view the extent of falsity in their statements. PW2 and PW3 not only failed to substantiate the allegations as regards commission of offences under Sections 323, 504, 506 read with Section 34 IPC but also implicated the three persons falsely The statements of the said witnesses should have been accepted with a pinch of salt and keeping in view the admitted animosity between the parties. The background of the case vis-a-vis continuous animosity between the complainant and her husband, on the one hand, as also the appellant and his other tenants could not have been lost sight of by the learned trial Judge. 23. We, therefore, are of the opinion that having regard to the totality of the facts and circumstances Crl.R.P. No.3512/2005 5 of the case, the appellant is entitled to be given the benefit of doubt.” 6. In order to attract the offence u/s.354 IPC, the intention to outrage the modesty of a woman is not the sole criterion of the offence. It can be committed by a person assaulting or using criminal force to any woman with intend to outrage her modesty. Prosecution examined PW1 as the prime witness to prove the occurrence in this case. Her evidence shows that the incident occurred on 17.12.2002 at 7 a.m. while she was walking along the pathway on the eastern side of Pattarpalam river and going to the temple, the accused came from behind and caught her by his both hands below her waist. She told him to remove his hand, but he was reluctant and she cried loudly. Again he caught her tightly, thereby the accused outraged her modesty. For that, she gave Ext.P1 statement to the Kakkur Police. On the basis of that, Kakkur Police Crl.R.P. No.3512/2005 6 registered Ext.P1(a) crime. But during cross examination, she deposed that while she was walking through road by the side of the canal, the accused came from behind and she gave space for him to move forward. When she was about to come forward, he stood in front of her and caught hold of her from the front side itself. This inconsistent version about the occurrence is not fully believable. 7. The evidence of PW2 shows that while he was sitting in his house, he heard the sound of PW1 and went to the place of occurrence, then he saw the accused was holding PW1. Another lady was standing near them. On seeing them, the accused let off her. His evidence shows that the incident occurred in a field and there was political enmity between the revision petitioner and PW1. The revision petitioner was sympathizer of CPM and PW1's Crl.R.P. No.3512/2005 7 brother was the worker of BJP. The evidence of PW1 and PW2 is inconsistent with each other. The inconsistencies in the oral evidence of these witnesses and the various circumstances highlighted in the cross examination forced me to discard the oral testimony of PW1. However, what constitutes an outrage of the modesty of a woman is nowhere defined. It can be described as the quality of being modest and in relation to woman 'womanly propriety' of behaviour, scrupulous chastity of thought, speech and conduct reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions'. This position has been settled by the Apex Court in **Tarkeshwar Sabu** v. **State of Bihar** [2006(8) SC 560]. In order to attract the offence under this Section, the prosecution has to produce the credible and cogent evidence for convicting a person u/s.354IPC. In the absence of such Crl.R.P. No.3512/2005 8 evidence, the revision petitioner is entitled to get the benefit of doubt. 8. Apex Court in **Vidhayadharan** v. **State of Kerala** [AIR 2004 SC 536] held that the prosecution has to prove not only that the accused assaulted or used criminal force to the woman but also that he did it with either the intend to outrage her modesty or the knowledge that it would outrage her modesty. The statement of witnesses with regard to the commission of offence by the revision petitioner u/s.354 should have been considered. It is pertinent to note that the manner in which the offence u/s.354 was committed by the revision petitioner materially differs in chief examination and cross examination. Having regard to the totality of the facts, I am of the view that the revision petitioner is entitled to get the benefit of doubt. Crl.R.P. No.3512/2005 9 In the result, the conviction and sentence passed by the trial Court u/s.354 IPC are set aside. The revision petitioner is acquitted and set at liberty. Crl.R.P. is allowed. **P.D. RAJAN, JUDGE.** acd